Amicus Curiae Brief — Farrar v. Hobby

SUPREME COURT

OF THE UNITED STATES

October Term, 1991

DALE FARRAR and PAT SMITH,

as Co-Administrators of the Estate

of Joseph D. Farrar, Deceased,

Petitioners,

vs.

WILLIAM P. HOBBY, JR.,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF OF THE COUNTY OF LOS ANGELES

AS AMICUS CURIAE IN SUPPORT OF

RESPONDENT WILLIAM P. HOBBY, JR.

RICHARD F. TOWNE, ESO.“

KEITH A. FINK, ESQ.

COTKIN & COLLINS

201 N. Figueroa St.

Suite 1100

Los Angeles, CA 90012

(213) 250.3600

*Counsel of Record

QUESTION PRESENTED

Is a plaintiff who seeks a large

damage award, but recovers only one

dollar as nominal damages for a

technical violation of his

constitutional rights, a "prevailing

party" within the meaning of 42 U.S.C.

§ 1988 and this Court’s decisions in

Hewitt v. Helms”, Rhodes v. Stewart”,

and Texas State Teachers Assn. v.

Garland?”

* Hewitt v. Helms, 482 U.S. 755

(1987).

7 Rhodes v. Stewart, 488 U.S. 1, 3-4

(1988).

2

Texas State Teachers Assn. v.

Garland Indep. School Dist., 489 U.S. 782

(1989).

PAGE (8)

QUESTION PRESENTED hh 1

INTEREST OF THE AMICUS ..... 2

ARGUM ENT * 7 * * * * * * * * * * 5

1.

ALLOWING A PLAINTIFF WHO

ONLY RECOVERS NOMINAL

DAMAGES OF ONE DOLLAR TO

COLLECT ATTORNEYS’ FEES IS

CONTRARY TO THE PURPOSE OF

§ 1988 BECAUSE IT ENCOURAGES

A CONFLICT OF INTEREST

BETWEEN THE ATTORNEY AND

CLIENT . «© «© © © © © © © « »@

A. The Adoption of

Petitioners’ Position

Would Encourage Unjust

Results and Jury

Dbecept ion

B. The Romberg Case

Illustrates the

Problems of Conflict of

Interest and Deception

of the Jury .....-.

CONCLUSION . . «© «© «© © © © © « «

- ii «

11

Brooks v. Cook,

938 F.2d 1048

(9th Cir. 1991

BSA, Inc. v. King County,

804 F.2d 1104

(9th Cir. 1986)

Denny v. Elliot,

937 F. 2d 602

(4th Cir. 1991) .

Denny v. Hinton,

131 F.R.D.

(N. D. N. c.

Farrar v. Cain,

941 F.2d 1311

(Sth Cir. 1991)

659

1990) .

Hewitt v. Helms,

482 U.S.

755 (1987)

Lawrence v. Hinton,

937 F.2d 603

(4th Cir. 1991) 0

Levis v. Kendrick,

944 F. 2d 949

(Ist Cir. 1991

MacDonald v. Musick,

425 F. 2d 373,

(9th Cir.

cert. den.

(1970)

1970),

400 U.S.

- iii -

852

National R.R. Passenger Corp. v. Koch

Indus.,

701 F.2d 108

(10th Cir. 1983) ....... 16

Rhodes v. Stewart,

488 U.S. 1 (19868) 1

Riverside v. Rivera,

477 U.S. 561 (1986) 13

Robinson v. Ariyoshi,

933 F.2d 781

(9th Cir. 1991) .-. «ce ces 9

Romberg v. Nichols,

953 F.2d 1152

(0G Gio. S008) . « 0 « Be Se Ge

9-11, 13, 14, 16, 17

Spencer v. General Electric Co.,

894 F.2d 651

(4th Cir. 1990) ... «ee» 8

Texas State Teachers Assn.

v. Garland Indep. School Dist.,

489 U.S. 782 (1989) 1, 9

Venegas v. Mitchell,

495 U.S. 82 (1990) 10

STATUTES:

42 U.S.C. § 1983 „ ec „ ec oe 6

42 U.S.C. 58 1988 .. 1, 5, 13-15, 17

California Government Code

§ S2S(@) ~~ + ee eeeee e 5

— iv =

OTHER AUTHORITIES:

Civil Rights Attorney’s

Fees Awards Act

17

No. 91-990

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1991

DALE FARRAR and PAT SMITH,

as Co-Administrators of the Estate

of Joseph D. Farrar, Deceased,

Petitioners,

vs.

WILLIAM P. HOBBY, JR.,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

BRIEF OF THE COUNTY OF LOS ANGELES

AS AMICUS CURIAE IN SUPPORT OF

RESPONDENT WILLIAM P. HOBBY, JR.

INTEREST OF THE AMICUS

The County of Los Angeles which

appears as Amicus“ in this action has

an abiding interest in this case as an

entity which has been and is currently

subject to substantial attorneys’ fees

awards in cases where nominal damages

of one dollar ($1) have been awarded.»

The Judgment of the Fifth Circuit

in this case, Farrar v. Cain, 941 F.2d

1311 (5th Cir. 1991), is in direct

conflict with the Ninth Circuit’s

decision in Romberg. This Amicus

submits that Farrar is correct and

should be upheld by this Court because

9 Respondent s consent letter is

attached as an exhibit to this brief.

4 See, e.g., Romberg v. Nichols, 953

* 1

F.2d 1152 (9th Cir. 1992) (nominal damage

award of one dollar; attorneys’ fees award of

$29,137.50). Defendants in Romberg are deputy

sheriffs of the County of Los Angeles. Their

Petition for Rehearing En Banc to the Ninth

Circuit Court of Appeals has been pending

since January 26, 1992.

the Petitioners were not "prevailing

parties“ in the underlying action.

For the reasons set forth herein, a

reversal of Farrar would promote the

deception of juries and conflicts of

interest between civil rights

plaintiffs and their counsel. The

result would be to encourage district

courts to". . . reward lawyers who,

in the later stages of the fight,

abandon their client’s interest to

pursue their own when the battle seems

otherwise lost... [by asking for

nominal damages) in order to preserve

prevailing party status ."#

* Thie Brief focuses solely on the

conflict of interest which would be encouraged

if Petitioners’ position were adopted by this

Court. (This point is briefly addressed in

Respondent’s Brief at pages 17-18) While the

touchstone of the “prevailing party” inquiry

is whether there has been a material

alteration in the legal relationship, this

Brief omits a discussion of why nominal

Gamages alone do not meet the threshold for

entitlement to fees since Respondent and the

Amici from Hawaii and Nevada have thoroughly

addressed this point.

225

Romberg, supra, 953 F. 2d at 1160.

i.

The problem presented to the

Amicus by this Petition is very real;

not only to the County of Los Angeles

as an entity responsible to indemnify”

its law enforcement officers, but also

to its taxpayers. If this Court

reverses the Fifth Circuit’s denial of

attorneys’ fees to the Petitioners,

civil rights plaintiffs’ counsel will

2 California Government Code Section

6825(a); MacDonald vy. Musick, 425 F.2d 373, 376

(9th Cir. 1970), cert. den. 400 U.S. 852

(1970).

be encouraged to argue to the jury in

non-meritorious or losing cases that,

as in Romberg, supra:

"Mr. and Mrs. Romberg in

this case don’t want any

money. They want you to

vindicate their rights. If

you find their rights were

violated, you can award

what’s called nominal

damages in some sum like one

dollar. And I think that’s

all they’re entitled to in

this case, is nominal

damages." Id. at 1160.

Romberg is typical of a growing

trend of cases brought under 42 U.S.C.

§ 1983 involving alleged civil rights

violations because it involved a

prayer for several million dollars in

money damages yet resulted in a

verdict of nominal damages only.”

* See, ., Romberg, supra, (Jury

award of one dollar for Forth Amendment

violation, even though plaintiff initially

sought two million dollars in relief); Lewis

y. Kendrick, 944 F.2d 949 (lst Cir. 1991)

(Jury award for Fourth Amendment violation was

technical and de minimis where plaintiff

sought $300,000 and received jury verdict for

$1,000).

Interestingly, in the instant case,

the jury’s verdict in the District

Court was for Petitioner with no money

damages whatsoever.

Typical of this trend of cases,

where plaintiffs’ counsel have made

eleventh hour pleas for nominal

damages, is Brooks X. Cook, 938 F.2d

1048, 1050 (9th Cir. 1991) in which

this Amicus was involved. The

complaint sought $2,000,000 but by the

time of trial plaintiff’s trial

counsel, sensing he would not

otherwise prevail, reduced his request

in summation to "a nominal verdict of

one dollar“ so that he would be

eligible for attorneys’ fees.

In these cases the plaintiff

loses because he or she recovers no

damages, and the defendants lose

because they must pay the attorneys’

fees of both sides; the only winners

are the plaintiff’s counsel. This

Amicus suggests that this Court adopt

a rule that in civil rights cases

where only nominal money damages are

sought or awarded, the District Court

must order that plaintiff demonstrate

that the judgment materially affected

the legal relationship between the

plaintiff and the defendant in order

to award fees.” This rule is

consistent with and would further the

statutory interpretation of the

“prevailing party“ concept set forth

* See, @.g., Spencer v. General

„ 894 F.2d 651, 662 (4th Cir.

1990) (Plaintiff who received nominal damage

award entitled to ‘prevailing party’ status

since in addition to monetary recovery, his

suit served as a catalyst for prompt

development and promulgation of the employers

anti-harasement policy.) Cf. Denny v. Hinton,

131 Fr. R. D. 659 (M.D.N.C. 1990) (Jury verdict

of one dollar was de minimis, since judgment

had no effect on relationship between

plaintiff and defendant.), aff'd mem., Denny

v. Elliot,., 937 F.2d 602 (4th Cir. 1991) and

„ 937 F.2d 603 (4th Cir.

1991).

in this Court’s decision in Texas

State Teachers, supra, 489 U.S. at

792-3.

Regrettably, the Romberg and

Brooks decisions of the Ninth Circuit

seem to compel attorneys’ fees awards

where only nominal damages are

recovered. In affirming the

decision of the Fifth Circuit, this

Court should clarify that District

Courts have the discretion to prevent

such abuses of the system by granting

such awards to plaintiffs’ counsel who

"recognize that [their] own case is

not especially strong (and]

drastically reduces (their) initial

Claims and asks the jury for nominal

@ Other decisions of the Ninth

Circuit are irreconcilable with Romberg and

Brooks. §ee., @.g., Robinson vy. Ariyoshi, 933

. 2d 781 (9th Cir. 1991); BSA, Inc. v. King

County, 804 F.2d 1104, 1112 (9th Cir. 1986).

This intra-circuit conflict could be resolved

by this Court’s decision 1

—— upholding the Fifth

—

damages." Romberg, supra, 953 F.2d at

1160.

As District Judge Williams stated

in the Brooks trial record to the

plaintiff’s counsel:

“Well, what you’re asking me

to do then is to let you,

uh, pull a sneaker on the

jury, and get away with

it... . So you could

then come in [sic] say I’m

the prevailing party, so

give me attorneys fees.

I’m not going to let the

jury go into that

deliberation room with, uh,

that--I don’t want to use

the word fraud but I’1ll use

it--pull upon them. My job

is to instruct the jury, not

to deceive then.“

Brooks, supra, 938 F. zd at 1050.

In a situation such as this, where

attorney’s fees may be awarded following 4

$1.00 damage award, the plea for nominal

damages represents more than just a plea for

vindication - - it is a request that the jury

unknowingly give plaintiff’s counsel the right

to subsequently seek, outside of their

presence, an amount of money potentially tens

of thousands of times the amount of the

nominal award. Then, under Venegas .

„ 495 U.S. 82, 87 (1990) the

plaintiff’s counsel could redistribute the

fees to his client, effectively thwarting the

This Court should discourage any

future "sneakers" by upholding Farrar.

B.

In Romberg, supra, plaintiff’s

counsel acknowledged the limited

significance and technical nature of

plaintiff’s only remaining claim by

arguing at the close of the trial for

nothing more than nominal damages.”

The jury’s award of $1.00 to each

plaintiff and against the individual

deputy defendants, while denying them

punitive damages, demonstrated their

belief that the defendants were acting

in good faith. The peculiar facts of

this one isolated incident lead to

jury system.

2 Before trial concluded, the

District Court dismissed the County, one

Geputy sheriff and most of plaintiff’s claims.

Romberg, gupra, at 1155.

- 10 -

considerable doubt that the verdict

rendered would have any far-reaching

effect in furtherance of Fourth

Amendment rights in general. The fact

that the deputies were acting out of a

good faith concern for the safety of

others negates any deterrent effect’

that that case would otherwise have.

Last minute requests for nominal

damages at the close of testimony

where high damages were originally

sought have ramifications beyond the

desired message that only an isolated

and technical violation has occurred.

These strategic “bailout pleas"

drastically and unfairly reduce the

* The Farrar’s District court e

implicit assumption that the case would

contribute to deterring “impermissible conduct

by government officers” is baffling.

Brief at pg. 19). No showing has been made by

Petitioners that the mere garnering of a jury

verdict, with no money damages, has led to or

was intended to lead to a change in anyone

behavior.

- 11

possibility that the jury will return

defense verdicts and award no damages

at all. Through such arguments,

plaintiff’s counsel can expressly

invite juries to provide plaintiffs

technical and de minimis victories

solely to preserve “prevailing party“

status for purposes of § 1988. .

Although this Amicus does not belittle

a plaintiff’s sense of vindication nor

doubt their counsel’s general

sincerity, to award attorney’s fees to

plaintiffs as “prevailing parties" in

cases such as Romberg is contrary to

the legislative intent behind § 1988”

and the touchstone established by this

Court in Texas State Teacher’s.

In light of the importance of

* ress did not intend for § 1988

to provide a “windfall” to civil rights

attorneys. See, Riverside vy. Rivera, 477 U.S.

561, 580 (1966). b

upholding individual constitutional

rights, this Amicus does not propose

that plaintiffs receiving nominal

damages never be considered as

prevailing parties for purposes of

§ 1988. Such a rule would discourage

future plaintiffs from seeking

vindication of their civil rights

through the Courts. This Amicus does

not seek this result.

However, by affirming the

District Courts’ discretion to deny

attorneys’ fees and prevailing party

status to plaintiffs who prevail only

in the technical or de minimis sense,

this Court can reaffirm the proper

balance between the right of citizens

to seek redress in the Courts and the

Court’s right to protect the court

system and the taxpayers from the

abuse exemplified by Romberg and

— 13 -

Petitioners’ position in this case.

Of grave concern to this Amicus is the

creation of new precedent in this case

which will encourage plaintiffs’ civil

rights attorneys to enter into

contingency fee agreements with

clients seeking coupensatery damages

at the outset while reserving the

right to, at the close of testimony,

weigh the odds of success, and if

unfavorable, request only nominal

damages in an effort to preserve

attorneys fees under § 1988.

In this scenario, only

plaintiff’s counsel wins. The

plaintiff, who filed suit hoping for

compensatory damages, receives

nothing; defendant, whose client did

not justify actual or punitive

damages, is forced to pay high

attorney’s fees, and the courts are

— 14-

re, lie es Bs

he —

burdened with increased litigation.

Few juries are likely to resist a

plea for nominal damages at the close

of the trial. Juries are generally

unaware that an award of even

$1.00 - = ox perhaps even one cent -

— - could entitle a plaintiff to

receive attorney’s fees from the

defendant. From the jury’s

perspective, a nominal award in

response to plaintiff’s counsel’s

request gives them the apparent

opportunity to “make everybody happy“

by giving plaintiff a token win at no

real financial cost to the defendant.

Yet, this is the kind-of 3

verdict" which is clearly

prohibited. The instant case

* "Part of a district court

function, .. . is to prevent 9 ‘Solomonic

solutions’ by the jury. When a jury

compromises les verdict, its verdict should

not stand. Romberg, gupra, 953 F.2d 1160;

2 18 <-

provides an opportunity to discourage

future Romberg-type abuses of the

Civil Rights Attorney’s Fees Awards

Act. This Amicus submits, as it

argued in Romberg, that a technical

violation of civil rights made by

defendants acting in good faith should

not support prevailing party status,

particularly when a plaintiff’s

initial request for exorbitant damages

is reduced to a concession that the

evidence supports at the close of

trial only nominal damages. The

encouragement of such tactics defies

principles of judicial economy and is

directly contrary to the legislative

principles underlying § 1988 and the

701 F.2d 108, 110 (10th Cir. 1983) ("A

compromise verdict is one reached when the

jury, unable to agree on liability,

compromises that disagreement and enters a low

award of damages . . . [s]uspicion should be

aroused if the jury awards only nominal

damages.)

- 16 -

reasoning of this Court. This Court

should speak clearly and forcefully in

this case that such tactics are not to

be rewarded by upholding the decision

of the Fifth Circuit Court of Appeals.

2172

CONCLUSION

The judgment of the United State

Court of Appeals for the Fifth Circuit

should be affirmed.

DATED: June “> 1992

Respectfully submitted,

- LXER Cree

RICHARD P. TOWNE, ESG.

KEITH A. FINK

COTKIN & COLLINS

DE WITT W. CLINTON

County Counsel

4 S. ROBERT AMBROSE

Asst. County Counsel

PATRICK T. MEYERS

Principal Deputy

County Counsel

*Counsel of Record

- 18 -

APPENDIX

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