Opposition Brief — City of Chicago v. Friedrich

BEST AVAILABLE COPY Saifer=or=xm

No. 89-1230

In The

Supreme Court of Che United States

@ctober Term, 1989

CITY OF CHICAGO and

SUPERINTENDENT OF POLICE

Petitioners,

v.

WALTER FRIEDRICH,

individually and on behalf of a class

of similarly situated persons,

Respondents.

BRIEF IN RESPONSE TO PETITION FOR

A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

JOHN A. POWELL WILuiAM M. HANNAy

STEVEN R. SHAPIRO Counsel of Record

AMERICAN Civit LipertTies SHERI L. GRONHOVD

UNION FOUNDATION Scuirr HarpIn & Waite

132 West 43rd Street 7200 Sears Tower

New York, New York Chicago, Illinois 60606

10036 ’ (312) 876-1000

(212) 944-9800

HarRVEY GROSSMAN

Of Counsel RoGer BALDWIN FOUNDATION

OF THE AMERICAN CIVIL

LiBerTieEs Union, Inc

20 East Jackson Boulevard

Chicago, Illinois 60604

(312) 427-7330

Attorneys for Respondents

American Reprographics Management, Inc.™ (312) 332-ARMI

QUESTION PRESENTED

Whether fees and expenses for

experts who advise and testify in civil

rights litigation are reimbursable

under The Civil Rights Attorney's Fees

Awards Act of 1976, 42 U.S.C. § 1988.

TABLE OF CONTENTS

Page(s)

QUESTION PRESENTED ....-+-+-+-- ii

TABLE OF AUTHORITIES .......-. iv

STATEMENT OF THE CASE oT oo te ae ee 1

REASONS FOR NOT OPPOSING THE WRIT

AND FOR CONSOLIDATING ORAL

ARGUMENT WITH THE CASEY CASE ° 8

FRIEDRICH PRESENTS THE IMPORTANT

ISSUE OF THE RECOVERABILITY

OF AN EXPERT'S FEES FOR

NON-TESTIMONIAL TIME IN A

TRADITIONAL CIVIL RIGHTS CASE . 10

CONCLUSION . . * 7 . * * . 7. . 7. . . 2 0

,

TABLE OF AUTHORITIES

Cases Page(s)

Boring v. Kozakiewicz, 833 F.2d

468 (30 Gis. 1987) .....8

Crawford Fitting Co. v. J.T.

y

, 482 U.S.

See ee ei eG ww BG, 24

Denny Vv. Westfield State

College, 880 F.2d 1465

(Soe eeCAOORh ct os 4 «23, 14

Friedri PF i of Chicago,

888 F.2d 511 (7th Cir.

1989), petition for cert.

filed, 58 U.S.L.W. 3505

(U.S. January 29, 1990) passim

Gilbert v i ock,

867 F.2d 1062 (8th Cir.) .. 8

Missouri v. Jenkins, mF

: 109 S.Ct. 2463

(2989) 2. © ee © eo « +) | 6pessin

Sevigny _v. Dicksey, 846 F.2d

953 (4th Cir. 1988) .... 8

Vv i i ‘si

Hosptials _v. Casey, 885

- F.2d 11 (3d Cir. 1989),

petition for cert.

csranted, 58 U.S.L.W. 3545

(U.S. February 26, 1990) passim

West

Statutes and Rules

36 U.8.C. § Bee 41% ¢ « 2 « « GO BS

Sh O50. 6: Os 2 6 ee et

at O.8.6. | SOR sce sik 48 a eB

CS A. ae: oe ae a ae

Supreme Court Rule 27.3... . 9, 21

Legislative History

H. Rep. No. 94-1588 94th Cong.,

2d Sess. (1976) ji Bek « 26

S. Rep. No. 94-1011, 94th

Cong., 2d Sess. (1976) .. 15

122 Cong. Rec. 35,123 (1976) .

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1989

CITY OF CHICAGO and

SUPERINTENDENT OF POLICE,

Petitioners,

Vv.

WALTER FRIEDRICH,

individually and on behalf of a class

of similarly situated persons,

Respondents.

BRIEF IN RESPONSE TO PETITION

FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

STATEMENT OF THE CASE

Respondents are a class of

hundreds of street performers. in

Chicago who brought a successful civil

rights suit under 42 U.S.C. § 1983 to

enjoin a municipal ordinance that

restricted respondents' First Amendment

rights. The litigation was financially

sponsored by the Roger’ Baldwin

Foundation of the American Civil

Liberties Union ("RBF") and the

plaintiffs were represented by RBF and

cooperating pro bono private counsel.

RBF is the not~for-profit legal arm of

the American Civil Liberties Union

("ACLU") in Illinois.

At the trial court level,

respondents engaged two experts to

advise and to testify in the case:

Robert di Grazia, an experienced law

enforcement official, and William H.

Whyte, an internationally-recognized

sociologist. As the prevailing party,

respondents sought and obtained an

award of attorney's fees under the

—"

oom —— -¢. —__. >> ———

Civil Rights Attorney's Fees Awards Act

of 1976, 42 U.S.C. § 1988 (the "Fee

Act" or "Section 1988"), which included

$9,927.91 for the fees and expenses

paid to those experts. App. 19, 31.2

The bulk of the expert fees

awarded to respondents was for out-of-

court research and consultation rather

than testimonial work. As the Court of

Appeals noted, "less than ten percent

of the money paid the experts was for

time actually testifying." Friedrich

v. City of Chicago, 888 F.2d 511, 515

(7th Cir. 1989) (App. 6). In fact,

respondents sought no compensation for

the trial testimony of Mr. Whyte, and

1the district court found

respondents' experts expenses to be

reasonable (App. 30), and neither the

reasonableness nor the necessity of the

expenses incurred for experts was

challenged by petitioners. Friedrich,

888 F.2d at 513 (App. 3).

the $2,026.66 awarded in connection

with his services was only to reimburse

the costs of Mr. Whyte's pretrial

consulting and travel. He declined to

charge a fee for attending and

testifying at the court proceedings.

(R. 120, Ex. B at ¢ 16).

In the proceedings below,

experienced civil rights trial counsel

established, by declaration, the

inability of traditional civil rights

plaintiffs to obtain expert services

pro bono, and their inability in this

and other cases personally to bear such

expenses. (R. 120, Ex. B at 4G 15-16).

The evidence further showed, first,

that private civil rights and civil

liberties organizations like the RBF,

which depend solely on_ private

charitable contributions have only

“Ne a oe

limited ability to sponsor civil rights

litigation and, second, that recovery

of these expenses is critical to RBF's

ability to maintain its legal program

through future cases which advance the

goals of the Fee Act. (R. 120, Ex. B.

at 94% 17-18). None of this evidence

was challenged by petitioner in the

trial court.

The Court of Appeals for the

Seventh Circuit affirmed the district

court's award of experts' fees, relying

on Missouri v. Jenkins, ___ U.S. ___,

109 S.Ct. 2463 (1989), and concluding

that it would be “both arbitrary and

inconsistent" with the meaning of

Section 1988 to hold that, of all

expenses ordinarily shifted under fee-

shifting statutes, only expert-witness

fees are excluded. Friedrich, 888 F.2d

at 519 (App.14).

The Court of Appeals recognized

that the issue of expert fees is

broader than the narrow question of

whether expert witness fees are

"otherwise provided by law" within the

meaning of 28 U.S.C. § 1821. cs.

Crawford Fitting Co. v. J.T. Gibbons,

Inc., 482 U.S. 437 (1987). The court

pointed out that, however this question

is answered, “the plaintiffs in this

case would still be entitled to an

award of fees incurred for advice, as

distinct from testimony." Friedrich,

888 F.2d at 515 (App. 7). The court

2section 1821 provides that,

"(e)xcept as otherwise provided by

law," a witness in attendance at a

court of the United States "shall be

paid an attendance fee of $30.00 per

day." (emphasis added).

m3

reasoned that the time spent by an

expert "to educate counsel in a

technical matter germane to the suit"

is a “substitute for lawyer time, just

as paralegal time is." Friedrich, 888

F.2d at 514 (App. 5). The court stated

as follows:

There is thus no basis for

distinguishing Jenkins

from the present case so

far as time spent by these

experts in educating

plaintiffs’ lawyer is

concerned... , for it

is difficult to separate

time spent by an expert in

educating the lawyer from

time spent in preparing to

testify. Sometimes it is

impossible; the same time

may serve both purposes.

Friedrich, 888 F.2d at 514-15 (App. 5).

REASONS FOR NOT OPPOSING THE WRIT AND

FOR CONSOLIDATING ORAL ARGUMENT

WITH THE CASEY CASE

Respondents’ position is that

this Court's decision in Missouri v.

Jenkine, _ U.S. _¥., 108 8. GE. 2463

(1989), has resolved the issue of

whether Section 1988 authorizes the

reimbursement of fees and expenses for

experts who advise and testify. The

primary reason for the apparent split

in the Circuits is that the cases

disallowing reimbursement, other than

West Virginia University Hosptials v.

Casey, 885 F.2d 11 (3d Cir. 1989),

petition for cert. granted, 58 U.S.L.W.

3545 (U.S. February 26, #1990)

(hereinafter Casey), were decided prior

to Jenkins. ? However, in view of this

3see, e.g., Gilbert v. City of

Little Rock, 867 F.2d 1062 (8th Cir.)

(en banc) (affirming by an equally

divided vote a district court's denial

of expert fees under Section 1988 in

excess of $30 per day), cert. denied,

110 S. Ct. 57 (1989); Sevigny v.

Dicksey, 846 F.2d 953 (4th Cir. 1988)

(denying expert witness fees under

Section 1988); and Boring v.

Kozakiewicz, 833 F.2d 468 (3d Cir.

1987) (denying expert witness fees

Court's grant of certiorari in Casey,

respondents do not oppose a grant of

certiorari in City of Chicago v.

Friedrich No. 89-1230, 4 and request

that Friedrich and Casey be

consolidated for purposes of oral

argument before this Court, pursuant to

Supreme Court Rule 27.3.

Respondents believe that joint

consideration of Friedrich and Casey

will contribute substantially to the

Court's deliberations by providing the

perspective of a traditional civil

rights litigant and organization as

well as a different factual context.

Additionally, this Court will benefit

under Section 1988), cert. denied, 108

S. Ct. 1298 (1988).

“see F.2d 511 (7th Cir. 1989),

, 58 U.S.L.W.

3505 (U.S. January 29, 1990).

10

by hearing the two cases together

because the Court of Appeals' opinion

in Friedrich offers a more complete

analysis of non-testimonial expert

expenses and of this Court's decision

in Jenkins.

FRIEDRICH PRESENTS THE IMPORTANT

ISSUE OF THE RECOVERABILITY OF AN

EXPERT'S FEES FOR NON-TESTIMONIAL

TIME IN A TRADITIONAL CIVIL RIGHTS

CASE.

The question presented in Casey

(No. 89-994) is phrased in terms of

"compensation for expert witnesses"

(emphasis added). Petitioners in

Friedrich have phrased the question as

whether Section 1988 “authorizes an

award of expert witness fees in excess

of the $30 per day allowed by 28 U.S.C.

§§ 1821, 1920(3)." See Petition for

Certiorari at i, Friedrich (No. 89-

11

1230). The true question presented by

these cases -- and the _ issue

respondents request this Court to

address -- is a broader one: whether

the fees reimbursable under Section

1988 include fees and expenses for an

expert's non-testimonial time spent

consulting, advising, and assisting

counsel, as well as fees and expenses

for attendance as a witness at trial.

The decision of the Court of

Appeals for the Third Circuit in Casey

did not address the distinction between

experts' fees and expenses incurred for

testimony and experts’ fees and

expenses incurred for consultation with

attorneys. As the Court of Appeals for

the Seventh Circuit pointed out in

Friedrich, however, the time spent by

an expert advising and educating

12

counsel substitutes for attorney time

and contributes to an attorney's work

product. Friedrich, 888 F.2d at 514

(App. 5). The evidence in the

proceedings below established that

civil rights litigation often includes

important questions relating to many

disciplines which are beyond the

knowledge of lay persons, attorneys and

judges and that the services of experts

are necessary to prepare properly to

litigate such difficult issues. (R.

120, Ex. B. | 14). To deny recovery of

a consulting expert's fees and expenses

"would encourage underspecialization

and inefficient trial preparation."

Friedrich, 888 F.2d at 514 (App. 5).

The court in Friedrich noted that

"less than ten percent of the money

paid the experts was for time actually

= ie eer

13

testifying" and concluded that

respondents were entitled to "fees

incurred for advice, as distinct from

testimony and preparation for

-

testimony, oy experts" because

"Sections 1821 and 1920 do not bear on

fees for nontestimonial services."

Friedrich, 888 F.2d at 515 (App. 7).

In so ruling, the Court of Appeals

answered the two questions posed in

Denny v. Westfield State College, 880

F.2d 1465 (lst Cir. 1989), as to

"whether, or under what conditions,

expenditures for 'non-witness experts'

such as consultants and private

investigators may be shifted after

Crawford" and whether and to what

extent "the costs of non-testimonial

time spent by an expert witness. .

may or may not be shifted." Denny, 880

14

F.2d at 1474. The Court of Appeals in

Casey did not focus on these questions

and therefore misunderstood the

relevance of this Court's decision in

Jenkins to awards of expert fees under

Section 1988.

In concluding that Crawford

Fitting was the controlling precedent

on the issue of expert fees, the Casey

court accepted the superficial argument

that the words "expert witness fees"

must literally appear in the Fee Act in

order to meet the Crawford test.

Casey, 885 F.2d at 34. In so doing,

the Court of Appeals for the Third

Circuit further failed to follow this

Court's guidance in Jenkins and to

examine the legislative history of the

Act.

15

In Friedrich, however, the

Seventh Circuit did examine’ the

legislative background of Section 1988

and did so in the context of the sort

yr" paradigmatic civil rights case

considered by Congress when it adopted

the Fee Act.

As recognized by the Court of

Appeals in Friedrich, the legislative

history and purposes of Section 1988

show that Congress desired prevailing

parties to recover "what it costs them

to vindicate these [civil] rights in

court.* S. Rep. No. 94-1011, 94th

Cong., 2d Sess. 2 (1976), reprinted in,

1976 U.S. Code Cong. Admin. News at

5910. The legislative history also

reveals Congress' recognition that a

"vast majority" of the civil rights

plaintiffs were unable to vindicate

16

their rights in the courts because of

economic barriers. H. Rep. No. 94-

1588, 94th Cong., 2d Sess. 1, 6 (1976).

The plaintiffs in Friedrich, like most

civil rights plaintiffs, are

individuals of extremely limited means,

and, unless their attorneys can be

reimbursed for the expense of expert

consultants and witnesses, their hopes

of vindicating those rights dim.

Here, the Roger Baldwin

Foundation of the American Civil

Liberties Union, Inc. ("RBF") bore the

expense of retaining the experts,

Messrs. di Grazia and Whyte. The RBF

does not accept government grants and

funding and is dependent upon the

private funding community. Because the

RBF, like other civil rights

organizations, sometimes supports

17

unpopular causes, private funding

fluctuates. Recovery of expenses for

‘experts fees, therefore, is vital to

the RBF's "ability to maintain its

legal program through future cases

which further advance the goals of the

Fee Act." (R. 120, Ex. B., at qq 17,

18)

One of the Fee Act's sponsors,

Representative Drinan, made it clear

during House floor debates that the

fee-shifting provision of the statute

was intended to compensate prevailing

civil rights plaintiffs for costs

incurred in bringing civil rights

suits:

I should add that the

phrase "attorney's fee"

would include the values

of the legal services

provided by counsel,

and __ necessary _ expenses

; Pn teenie)

18

representation.

122 Cong. Rec. 35,123 (1976) (emphasis

added). As this Court concluded in

Jenkins, "a 'reasonable attorney's fee'

cannot have been meant to compensate

only work performed personally by

members of the bar." Jenkins, 109 S.

Ct. at 2470. Rather, the phrase "a

reasonable attorney's fee":

must refer to a reasonable

fee for the work product

of an attorney. Thus, the

fee must take into account

the work not only of

attorneys, but also of

secretaries, messengers,

librarians, janitors, and

others whose labor

contributes to the work

product for which an

attorney bills her client;

Jenkins, 109 S. Ct. at 2470 (emphasis

added).

19

Petitioners contend that the

appellate court's interpretation of

Section 1988 in Friedrich "departs

radically from the reasoning of this

Court and the decisions of other

courts, particularly the Third

Circuit." See Petition for a Writ of

Certiorari at 13, Friedrich (No. 89-

1230). Respondents disagree and

contend that, far from being a "radical

departure," the Seventh Circuit's

decision in Friedrich is the only case

cited to the court by petitioners that

is consistent with Jenkins and Section

1988. The decision in Jenkins makes

clear that Congress intended Section

1988 to remove the economic —_—a to

civil rights litigation by granting a

prevailing civil rights plaintiff a

20

fully compensatory fee. Jenkins, 109

S. Ct. at 2470.

Because the facts and legal

analysis in Friedrich present the

broader question of the recovery of

fees and expenses for both testifying

and non-testifying experts in the

context of a traditional civil rights

case, its consideration by this Court

along with Casey will best serve the

interest of justice.

CONCLUSION

In light of this Court's grant

of certiorari in Casey, Respondents do

not oppose a grant of certiorari in

this case and request that it be

consolidated for purposes of oral

argument pursuant to Rule 27.3 with

21

West Virginia University Hospitals v.

Casey, No. 89-994.

Respectfully submitted,

JOHN A. POWELL WILLIAM M. HANNAY

STEVEN R. SHAPIRO Counsel of Record

American Civil SHERI L. GRONHOVD

Liberties Union Schiff Hardin &

Foundation Waite

132 West 43rd St. 7200 Sears Tower

New York, New York Chicago, Illinois

10036 60606

(212) 944-9800 (312) 876-1000

Of Counsel HARVEY GROSSMAN

Roger Baldwin

Foundation of the

American Civil

Liberties Union,

Inc.

20 E. Jackson Blvd.

Chicago, Illinois

60604

(312) 427-7330

Attorneys for

Respondents