Petition for Writ of Certiorari — Creamer v. Raffety

H 3 Court, U.S. |

87-109 | Freeb

| 18

No. | JUL 1987

WZOSEPH F. SPANIOL, JR.

i a

CLERK

}

In The

Supreme Court of the United States

October Term, 1986

ray

Vv

BILL ROSS CREAMER,

Petitioner,

V.

MICHAEL S. RAFFETY, et al.,

Respondents.

ve f)

Vv

Petition For Writ of Certiorari to the

Court of Appeals of the State of Arizona

ray

Vv

PETITION FOR WRIT OF CERTIORARI

ra’

Vv

Davin Rupovsky

Karrys & Rupovsky

924 Cherry Street

Suite 500

Philadelphia, Pa. 19107

(215) 925-4400

Attorney of Record

For Petitioner

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

ur call collect (402) 342-2831

oo 7 Le aioe en mem» el Pe mt — ae ell 7 _—-

eT ns Pe ed = ee ~ ee = a eS mnt — <a has atte Tt Saal,

QUESTION PRESENTED FOR REVIEW

Whether the Civil Rights Attorney’s Fees Act, 42

U.S.C. § 1988 requires a trial court to state reasons for

an award of fees that is substantially less than requested

by a prevailing plaintiff in a civil rights action.

ll

PARTIES TO THE PROCEEDINGS

Petitioner, who was plaintiff below, is Bill Ross

Creamer.

Respondents, who were defendants below, are Micheel

S. Raffety, Jean Raffety, Huey Lee Morris, Ruth Ann

Morris, and City of Willcox.

ill

TABLE OF CONTENTS

Page

Petition for Writ of Certiorari to the Court of Appeals

i i sesessaeesitenbabeetbonmnbon 1

Opinion Below . LE ae 2

Jurisdiction 2

Constitutional and Statutory Provisions Involved ...... 2

uveitis ©

Reasons for Granting the Writ

The Decision Of The Court Of Appeals Of Arizona

Is In Conflict With The Applicable Decisions Of

This Court And Of The Federal Circuit Courts Of

Appeals, With Regard To The Proper Interpreta-

RS ee 8

SE SEER a

acini nctnislaahinennditoiin la

iv

TABLE OF AUTHORITIES CITED

CASES

Pages |

Blum v. Stenson, 465 U.S. 886 (1984) 20000000

City of Riverside v. Rivera, — U.S. — (1986) 00000. )—-10

Creamer v. Raffety, 145 Ariz. 34, 699 P.2d 908 (1984). 5

Crumbaker v. Merit Systems Protection Brd., 781

F.2d 191 (1986) . siiaissadimedesidaaaaaiaiaaimanats a

Davis v. City of Abbeville, 633 F.2d 1161 (Sth Cir.

ED stesccenieisscessonaisesssanadaicnnidelia ‘ 11

Gaines v. Dougherty Cy. Bd. of Education, 775 F.2-’

ee ee Gis I seicsiscrsecsichiceitneemecnananeieionn 11

Greer v. Holt, 718 F.2d 206 (6th Cir. 1983) 200. 11

Hensley v. Eckerhart, 461 U.S. 424 (1983) 200 9

Johnson v. Georgia Highway Express, Inc., 488 F.2d

Cae COI Ci. BOOED iit . 6,9

Jordan v. Multnomah Cy, 799 F.2d 1262 (9th Cir.

TUTE siccoesscipsetescibbceaascidlaeacaetaiciadaeanaaiaaaaiaaaeaaiatatehaaataiaealaae 11

Lucero v. Trinidad, 815 F.2d 1384 (10th Cir. 1987)... «11

Mammamo v. Pittston Co., 792 F.2d 1242 (4th Cir.

1982) 11

Murphy v. Kolovitz, 635 F.2d 662 (7th Cir. 1981) _.... 11

Northeross v. Bd. of Education of a 611

F.2d 624 (6th Cir. 1979) ——.__ wae 12

- Pennsylvania v. Delaware Citizens’ Council for

Clean Air, 55 LW 5113 (June 26, 1987) 0. 6, 10, 11

Sargeant v. Sharp, 579 F.2d 645 (1st Cir. 1978) di

Thorne v. City of Ei Segundo, 802 F.2d 1131 (9th

EE TUNUP sniniccssiciuicindailindelaesiidedamihibelatpadammniaanadaraea 12

Ursic v. Bethlehem Mines, 719 F.2d 670 (3d Cir. 1983) 11

TABLE OF AUTHORITIES CITED—Continued

Pages

Van Ooteghem v. Gray, 6238 F.2d 488 (5th Cir. 1980)... 11

Walje v. City of Winchester, 773 F.2d 729 (6th Cir.

OTHER AUTHORITIES

28 U.S.C. § 1257 siiiiebiaiias ‘vil

42 U.S.C. § 1988

In The

Supreme Court of the United States

October Term, 1986

BILL ROSS CREAMER,

Petitioner.

MICHAEL 8S. RAFFERTY, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF APPEALS FOR THE STATE OF ARIZONA

PETITION FOR WRIT OF CERTIORARI FOR

THE PETITIONER, BILL ROSS CREAMER

To the Honorable, the Chief Justice of the United

States, and the Associate Justices of the Supreme Court of

the United States:

The petitioner, Bill Ross Creamer, plaintiff-appellant

in the court below, respectfully prays that a writ of cer-

1

tiorari issue to review the judgment of the Court of Ap-

peals of the State of Arizona entered in this case on De

cember 26, 1986, affirming the trial court’s decision on the

issue presented. A Petition for Review was denied by the

Arizona Supreme Court on March 24, 1987.

OPINION BELOW

The opinion of the Court of Appeals of Arizona is

reproduced at page 2a in the Appendix. The opinion of the

Superior Court of Arizona is reproduced at page 7a of the

Appendix.

JURISDICTION

The Supreme Court of Arizona denied review of this

case on March 24, 1987. On June 2, 1987 Chief Justice Wil

liam H. Rehnquist granted a Motion For Extension of

Time to file this petition to July 22, 1987.

The jurisdiction of the Supreme Court is invoked pur

suant to 28 U.S.C. § 1257.

STATUTORY PROVISION INVOLVED

42 U.S.C. § 1988:

Proceedings in vindication of civil rights; attorney’s

fees

The jurisdiction in civil and criminal matters con-

ferred on the district courts by the provisions of this

Title, and of Title ‘‘CIVIL RIGHTS,’’ and of Title

‘*CRIMES,”’ for the protection of all persons in the

United States in their civil rights, and for their vindi-

cation, shall be exercised and enforced in conformity

with the laws of the United States, so far as such laws

are suitable to carry the same into effect; but in all

vases where they are not adapted to the object, or are

deficient in the provisions necessary to furnish suitable

remedies and punish offenses against law, the common

law, as modified and changed by the constitution and

statutes of the State wherein the court having jurisdic-

tion of such civil or criminal cause is held, so far as the

same is not inconsistent with the Constitution and laws

of the United States, shall be extended to and govern

the said courts in the trial and disposition of the cause,

and, if it is of a criminal nature, in the infliction of

punishment on the party found guilty. In any action

or proceeding to enforce a provision of sections 1981,

1982, 1983, 1985, and 1986 of this title, title LX of Pub-

lic Law 92-318, or title VI of the Civil Rights Act of

1964, the court, in its discretion, may allow the prevail-

ing party, other than the United States, a reasonable

attorney ’s fee as part of the costs.

STATEMENT OF THE CASE

Petitioner commenced this civil rights case in 1980 by

filing an action for damages and equitable relief in the

Arizona Superior Court. The action presented claims

under 42 U.S.C. § 1983 and related state causes of action.

Petitioner claimed that he had been unlawfully ar-

rested, maliciously prosecuted, denied timely bail, subjected

to an improper strip search, and denied due process of law

with respect to an incident that occurred on January 28,

1980 in the City of Willcox, Arizona.

At about 1 a.m. on that date petitioner was a passenger

in an automobile that was stopped by the police because

they suspected the driver of driving while intoxicated. Pe-

titioner was arrested when he questioned the officer's right

to conduct a search of the automobile and for his refusal to

stand at a distance from the car. He was charged with ob-

structing a police officer, a misdemeanor under a City ordi-

nance.

Petitioner was not searched or frisked at the scene.

He was handeuffed in such a manner as to cause severe

marks and bruises. At the police station, petitioner was

subjected to a strip search and visual body cavity inspec-

tion under a policy requiring such searches for all in-com-

ing prisoners regardless of the charges or any other fac-

tors. The search was conducted on a cold cement floor and

caused petitioner humiliation and mental anguish.

Because the City of Willcox had failed to establish a

bail schedule for violations of City ordinances such as the

charge against petitioner (a schedule existed for all other

criminal charges) and because the police interfered with

petitioner’s attempt to contact his family, petitioner was

forced to spend the night in custody. He was released the

next morning.

On April 2, 1980 petitioner was convicted in magis-

trate’s court, but on trial de novo in the Superior Court of

Arizona he was acquitted of all charges.

In his civil rights action, petitioner challenged the

arrest, strip search, denial of release on bail, and the prose-

cution. The trial court granted summary judgment to the

defendants on the malicious prosecution claim and at trial

granted directed verdicts against petitioner on all other

counts.

On appeal, the Court of Appeals reversed in part and

remanded for a new trial. Craemer v. Raffety, 145 Ariz.

34, 699 P.2d 908 (1984). The court ruled that the strip

search policy was unconstitutional and directed that the

lower court issue an injunction requiring the City to limit

the circumstances under which such searches could be con-

ducted. The court also remanded for trial petitioner’s

claims based on the failure to have a bail schedule for this

offense and for the defendants’ arbitrary interference with

petitioner’s attempts to contact his family to secure release

on bail. According to the Court of Appeals, this claim pre-

sented valid due process and equal protection issues. 699

P.2d, at 917.

On remand, the trial court granted declaratory and in-

junctive relief on the strip search claim. The damages

claim was settled for an amount of $5,250.00

Petitioner thereupon filed a Motion for Attorney’s

Fees and Costs under 42 U.S.C. § 1988 that, as supple-

mented, requested the following:

1. Attorney’s fees

464.8 hours at $90 per hour, $69,720.00

plus 50% contingency multiplier

2. Paralegal fees

89.5 hours at $30 per hour $ 2,685.00

3. Costs $ 6,140,81

TOTAL $78,545.81

In support of this motion, petitioner submitted a de-

tailed affidavit of counsel’s time, records, and bills.

Defendants opposed the request arguing first, that no

fee was appropriate, and second, that if a fee was to be

awarded, it should be iar less than claimed by petitioner.

Litigation of the motion included the testimony of peti-

tioner’s counsel, Tony Kk. Behrens, and two attorneys who

testified as experts for the defendants.

The trial court, after hearing, awarded counsel fees

and costs in the amount of $15,000.00.1 No reasons were

provided tor awarding less than one-fourth of the fee re-

quest. The court did not find that the hours expended or

the hourly rate were excessive; rather, the trial court

adopted a ‘‘Proposed Form of Judgment’’ submitted by

the respondents, which in boilerplate fashion stated that the

court had considered the legal factors set forth in Johnson

v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.

1974), and that it would award $15,000 in attorney’s fee.

A. 7a-8a.

On appeal, the Court of Appeals affirmed the award

(as amended to include taxable costs and expenses) and re-

jected petitioner’s claim that the trial court had erred in

failing to state reasons for its ruling. The Court of Ap-

peals ruled that where a fee was denied ‘‘altogether,”’

reasons must be given, but where a fee is awarded, even if

1Since no reasons were given for the fee award, it is im-

possible to determine whether the trial court rejected petitioner's

requested enhancement on the contingency factor. This factor

was cited by the court, A. 7a, and if this case is remanded the

state courts would have to consider this issue in light of

Pennsylvania v. Delaware Valley Citizen’s Council for Clean

Air, 55 LW 5113 (U.S., June 26, 1987)

far less than requested, ‘‘the trial court is not required to

state reasons in support of the award.’’ A. 4a-da.

The Court of Appeals quite clearly ruled that no rea-

sons had been provided by the trial court. A. 4a. Accord-

ingly, the issue is properly before this Court on this very

specific legal question. Respondents made an argument be-

low that reasons in fact were provided. First, it was as-

seried that while the matter was pending, the Court of Ap-

peals directed the trial court to clarify whether, ‘‘out-of-

pocket expenses were allowed either as costs or otherwise.’’

In response, the trial court purported to state reasons for

its fee award. Procedurally, this addition to the record was

not proper (since not requested by the Court of Appeals).

More important, it was not given any mention or weight by

that court. The Court of Appeals decision is based on the

understanding that no reasons were provided. In addition,

the reasons given are not, we submit, sufficient to meet the

requirements under § 1988.

Second, respondents pointed to remarks made by the

trial court at the close of the evidentiary hearing. At that

point the trial judge merely stated that in light of the na-

ture of the case he was troubled by the amount requested,

but that he would probably grant some part of the request.

Hearing, Dec. 24, 1985, pp. 87-88. Obviously, these com-

ments during a hearing are not the kind of reasons re-

quired by § 1988.

The Supreme Court of Arizona denied review on

March 24, 1987. On June 2, 1987, Chief Justice Rehnquist

extended the date for filing the Petition for Certiorari to

July 22, 1987.

}

REASONS FOR GRANTING THE WRIT

The Decision Of The Court Of Appeals Of Ari-

zona Is In Conflict With The Applicable Decisions

Of This Court And Of The Federal Circuit Courts

Of Appeals With Regard To The Proper Interpre-

tation Of 42 U.S.C. § 1988.

One important issue is presented for this Court’s con-

sideration: whether the Civil Rights Attorney’s Fees

Award Act, 42 U.S.C. § 1988, requires a trial court to state

reasons in support of a decision awarding or denying fees

to a prevailing plaintiff.

In this case, petitioner was clearly the prevailing

party. He succeeded in obtaining a leading appellate court

decision requiring a fundamental Constitutional change in

strip search and bodily cavity searches procedures in Ari-

zona. In addition, he received compensation by way of a

settlement for the damages occasioned by the strip search

and by his post-arrest incarceration.

Petitioner’s Motion for Attorney’s Fees was seriously

contested with regard to the hours expended, the appropri-

ate hourly fee, and the applicability of a contingency en-

hancement. The trial court expressly found that petitioner

was entitled to a fee award, noting that ‘‘they did prevail.

They did change the status of the law in this State.’’ Hear-

ing, Dec. 24, 1985, p. 88. However, after hearing, the trial

court made an award of less than one-fourth of that re-

quested by petitioner, and the court failed to provide a

single reason for its decision. This action was sustained

on appeal; accordingly, unless reviewed by this Court, in

civil rights actions in Arizona state courts, trial courts

will be under no obligation to provide reasons in ad-

9

judicating fee requests under $1988. This clearly erro-

neous ruling conflicts with the decisions of this Court and

of the Federal Circuit Courts of Appeals. i

This Court has made it clear that in exercising its dis-

cretion under § 1988, the trial court must provide reasons

for its decision. In Hensley v. Eckerhart, 461 U.S. 424

(1983) the Court set forth the basic framework for award-

ing fees. First, the ‘‘party seeking an award of fees shotild

submit evidence supporting the hours worked and rates

claimed.’’ Jd. at 433. Based on this evidence, and any

other records or evidence in the case, the court should de-

termine the fee by multiplying the reasonable number of

the hours expended by a reasonable hourly fee.

Second, this amount may be adjusted depending on the

factor of “results obtained,’’ id. at 434, which comes into

play most often where a plaintiff has prevailed on less than

all of the litigated claims. In making this determination the

court may consider the twelve factors of Johnson v. Geor-

gia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974),

but no precise rule or formula is mandated for all cases.

Third, the trial court has discretion in determining

the amount of a fee award, but in exercising this discre-

tion the court must articulate its rationale:

We reemphasize that the district court has dis-

cretion in determining the amount of a fee award.

This is appropriate in view of the district court’s

superior understanding of the litigation and the de-

sirability of avoiding frequent appellate review of

what essentially are factual matters. I¢ remains im-

portant, however, for the district court to provide a

concise but clear explanation of its reasons for the

fee award. When an adjustment is requested on the

basis of either the exceptional or limited nature of

10

the relief obtained by the plaintiff, the district court

should make clear that it has considered the relation-

ship between the amount of the fee awarded and the

results obtained. Hensley, supra, at 437 (Emphasis

added).

In Hensley, the Court remanded for a further hearing

on the fee award, in part because the district court despite

having made a ‘‘commendable effort to explain the fee

award’’, id. at 438, had not adequately explained the re-

lationship between the award and the actual level of suc-

cess. The Court ruled that the issue of which claims were

actually successfully litigated requires a statement of

reasons that is not satisfied ‘‘by a mere conclusionary

statement that this fee was reasonable in light of the

success obtained.’’ Jd. at 439, n.15.

While Hensley contains the most explicit statement

on this issue, this Court’s decisions in other § 1988 cases

also stress the significance of stated reasons in ruling

on a fee award. Jin City of Riverside v. Rivera, — US.

—, 106 S.Ct. 2686 (1986), the Court sustained a fee award

in part because of the district court’s specific fact find-

ings on the issues of whether (1) the time claimed was

reasonably expended, (2) whether the attorneys’ perform-

ance entitled them to be compensated at prevailing mar-

ket rates, and (3) whether the award should be adjusted

to account for the fact that not all claims were success-

fully litigated. 106 S.Ct. at 2692-93.2 See also Pennsyl-

2Justice Powell, concurring, stated that affirmance of the

fee award was “required by the District Court’s detailed findings

of fact, which were approved by the Court of Appeals.’”” 106

S.Ct. at 2698. ;

=

=—_

il

vania v. Delaware Valley Citizens’ Council for Clean Air,

55 LW 5113 (June 26, 1987); Blum v. Stenson, 465 U.S.

886, 900 (1984) (any upward adjustment of fee based on

claim that outcome was of great benefit to class must be

based on specific finding of exceptional success).

The federal circuit courts of appeals are nearly unan-

imous in requiring district courts to state reasons in rul-

ing on fee requests under § 1988 or analogous statutes.

See, e.g., Sargeant v. Sharp, 579 F.2d 645 (1st Cir. 1978) ;

Lucero v. Trinidad, 815 F.2d 1384 (10th Cir. 1987) ; Ursic

v. Bethlehem Mines, 719 F.2d 670 (3rd Cir. 1983); Mam-

mamo v. Pittston Co., 792 F.2d 1242 (4th Cir. 1986);

Van Ooteghem v. Gray, 628 F.2d 488 (5th Cir. 1980);

Walje v. City of Winchester, 773 F.2d 729 (6th Cir. 1985) ;

Greer v. Holt, 718 F.2d 206 (6th Cir. 1983); Murphy v.

Kolovitz, 635 F.2d 662 (7th Cir. 1981); Jordan v. Multno-

mah Cy., 799 F.2d 1262 (9th Cir. 1986) ; Gaines v. Dough-

erty County Board of Education, 775 F.2d 1565 (11th Cir.

1985); Crumbaker v. Merit Systems Protection Board,

781 F.2d 191 (Fed. Cir. 1986). But ef., Davis v. City of

Abbeville, 633 F.2d 1161 (5th Cir. 1981).

The rationale of these cases is consistent with Hens-

ley. Articulation of reasons is necessary to ensure that

the standards mandated by this Court in determining fee

awards are followed and that discretion is properly ap-

plied. Further, an order that does not provide for ‘‘a de-

liberate articulation of its rationale, including some ap-

praisal of the factors underlying the court’s decision

[does not] allow for [an] informed review of the Court’s

diseretion.’’ Sargeant v. Sharp, supra, at 647. See also

Ursic v. Bethlehem Mines, supra, at 675; Van Ooteghem

v. Gray, 628 F.2d 488, 497 (5th Cir. 1980) (‘‘absent spe-

12

cific findings by the district court . . . appellate review

of the reasonableness of the fee award becomes a task

of sheer speculation.’’); Thorne v. City of El Segundo,

802 F.2d 1131, 1141-42 (9th Cir. 1986). In Northcross v.

Board of Educ. of Memphis City Schools, 611 F.2d 624,

632 (6th Cir. 1979), the court stated that:

... both the court’s findings and its mode of analysis

must be clear to enable an appellate court to intelli-

gently review the award. The plaintiffs are entitled

to some explanation of the reasoning used to exclude

those hours ... and some description of the findings

relied upon to find that expenses and billing rates

were excessive. Any review of the court’s awards

in this case would require . . . sheer conjecture on our

part as we speculate as to reasons why the court

might have cut certain documented hours. In fact,

it is impossible to tell whether the district judge might

not have simply overlooked certain services provided

by plaintiffs’ attorneys. Certainly no more substan-

tial reason appears in this record.

In this case, petitioner prevailed on appeal on a major

issue under the Fourth Amendment, thus limiting the

circumstances under which the Arizona police can strip

search arrestees. This ruling resulted in an injunction

and a new state wide rule of law. A. 9a. Further, peti-

tioner received by way of a settlement $5,250 in damages

for his constitutional claims. And while he did not pre-

vail on all of his claims, the record on the attorney’s fee

motion, including counsel’s affidavit and deposition, would

surely justify the full fee requested. There is absolutely

no way of determining whether the trial court applied the

proper standards in reaching its decision. Further, it is

not possible to determine which hours may have been dis-

counted or whether the hourly fee was considered ex-

13

cessive. For all the record shows, this award may have

been based solely on the theory of proportionality, an ap-

proach which was rejected in City of Riverside v. Rivera,

supra.

This is not to say that based on other evidence be-

fore the Court, that the fee request could not be reduced

in some respects under the Hensley standards. But the

court does not meet its responsibilities under Hensley by

merely holding a hearing and then stating that it has

considered the Johnson Express factors. It must also

provide some reasons for its action, particularly when it

reduces a facially valid request by over 75%.

We do not suggest that unnecessarily detailed fact

findings or reasons must be given; rather, the court should

give reasons sufficient to demonstrate it has considered

the evidence in light of the standards under § 1988, that

it has in fact applied the proper standards, and that in

making the award it has properly determined the ap-

propriate hourly rate, reasonable time expended, and

any other factors cognizable under the statute. The de-

cision should state why the award is less than the fee

requested.

A grant of certiorari and reversal is particularly im-

portant in this case, where a federal civil rights claim

was litigated in state court.2 To ensure that the state

courts properly adjudicate fee requests under § 1988 it is

*The Arizona Court of Appeals noted that it had previously

required a trial court to give reasons when it denied a fee award

altogether. A. 4a. But the difference between denying a fee

and the kind of substantial reduction made in this case is wholly

arbitrary.

14

important that the decision of the Arizona Court of Ap-

peals be expressly repudiated. An increasing number of

these cases are being heard by the state courts and it is

critical that they adhere to the standards which govern

attorney’s fee litigation in such cases.

— ———~() —- —-—- ——_ —E

CONCLUSION

For all of the foreging reasons, it is respectfully re-

quested that this Court issue a writ of certiorari to re-

view the judgment of the Court of Appeals of Arizona.

Respectfully submitted,

Davip Rupovsky

Karrys & Rupovsky

924 Cherry Street

Suite 500

Philadelphia, Pa. 19107

(215) 925-4400

Attorney of Record

For Petitioner

la

APPENDIX

TABLE OF CONTENTS

Decision of Arizona Court of Appeals,

December 26, 1986

Judgment, Superior Court of Arizona,

March 17, 1986

lina! Declaratory Judgment and Permanent

Injunction, Superior Court of Arizona,

Julv 1, 1985

9a

2a

IN THE COURT OF APPEALS

STATE OF ARIZONA

DIVISION TWO

BILL ROSS CREAMER, ) 2CA-CV 5761

Department B

Plaintiff/Appellant, )

) MEMORANDUM

v. ) DECISION

) Not for

MICHAEL S. RAFFERTY, ) Publication

JEAN RAFFERTY, HUEY ) Rule 28(a)(2),

LEE MORRIS, RUTH ANN ) Rules of Civil

MORRIS, and CITY OF ) Appellate

WILLCOX, ) Procedure

)-

Defendants/Appellees.) (Filed December

) 26, 1986)

APPEAL FROM THE SUPERIOR COURT

OF COCHISE COUNTY

Cause No. 39687

Honorable James L. Riley, Judge

AFFIRMED AS MODIFIED

BEHRENS & DESENS

by Tony K. Behrens Bisbee

Attorneys for Plaintiff/Appellant

MESCH, CLARK & ROTHSCHILD, P. C.

by Tom R. Clark Tucson

Attorneys for Defendants/Appellees

Rafferty and Morris

RIDENOUR, SWENSON, CLEERE & EVANS

by Michael J. Frazelle

and Thomas E. Weland Phoenix

Attorneys for Defendant/Appellee

City of Willcox

LACAGNINA, Judge.

3a

Bill Ross Creamer filed a civil rights action for dam-

ages arising out of a strip search conducted in connection

with his arrest in Willcox, Arizona. The complaint, filed

pursuant to 42 U.S.C. § 1983, also sought to enjoin the

City of Willcox from enforcing its strip search policy and

asserted various other claims. After this court rendered

its decision in Creamer v. Rafferty, 145 Ariz. 34, 699 P.2d

908 (App. 1984), the parties settled the case except for

Creamer’s claim of $64,000 for attorneys’ fees. Trial of

that claim to the court resulted in an award of $15,000 for

fees, expenses and costs.

Creamer asks in this appeal that we remand the case

to the trial court for a statement of the reasons for the

amount of the award. In the alternative he asks that we

increase the trial court judgment by approximately $64,000,

the amount requested in the trial court. Prior to our con-

sideration of this appeal, we ordered the trial court to

enter findings showing the specific amounts of costs and

fees included in its $15,000 award. In its Minute Entry

response, the trial court stated that the $15,000 was an

award of attorneys’ fees only and that although it had in-

tended to award reasonable costs and expenses in addi-

tion to those attorneys’ fees, it inadvertently failed to do

so in the March 17, 1986 judgment. We affirm the find-

ings of the trial court as amended to include taxable costs

and expenses.

Creamer first argues that the trial court failed to state

its reasons for the amount of attorneys’ fees awarded as

required by 42 U.S.C. § 1988. He relies on Moran v. Pima

County, 145 Ariz. 183, 700 P.2d 881 (App. 1985), cert.

denied, 106 S.Ct. 397; however, Moran is distinguishable

4a

from the instant case. In Moran the trial court denied fees

altogether, and this court held that the judge should have

given the reasons for such denial. We reaffirm that rul-

ing. However, where more than nominal fees are awarded,

we hold that the trial court is not required to state rea-

sons in support of the award.

In the case at issue, the trial court did award attor-

neys’ fees to Creamer, the prevailing party. In its judg-

ment, the trial court stated that it had considered:

(1) the time and labor required; (2) the novelty and

difficulty of the questions; (3) the skill requisite to

perform the legal service properly; (4) the preclu-

sion of employment by the attorney due to acceptance

of the case; (5) the customary fee; (6) whether the

fee is fixed or contingent; (7) time limitations im-

posed by the client or the circumstances; (8) the

amount involved and the results obtained; (9) the ex-

perience, reputation and ability of the attorneys; (10)

the undesirability of the case; (11) the nature and

length of the professional relationship with the client;

and (12) awards in similar cases.

The judgment also stated that the court had presided over

the initial trial of the matter; considered this court’s de-

cision on appeal; reviewed the file, motions, memoranda

and certain depositions, and heard testimony in support

of and in opposition to the motion for attorneys’ fees. Al-

though these statements do not constitute reasons for the

amount of the award, they are matters the trial court

should have considered in determining that amount. See

City of Riverside v. Rivera, — U.S. —, — n.3, 106 S.Ct.

2686, 2691 n.3, 91 L.Ed.2d 466, 475 n.3 (1986), citing John-

son v. Georgia Highway Express, Inc., 488 F.2d 714 (5th

5a

Cir. 1974). This recitation is sufficient. The trial court

is not required to quantify each factor in order to show

how it arrived at the amount of the award. See City of

Riverside v. Rivera, id. This would be a waste of judicial

time and, in some cases, nearly impossible. The record

need only reflect that there was sufficient evidence under

the applicable law to support the court’s determination.

We find that there was substantial evidence to sup-

port the trial court’s award. There is contrary evidence,

but the trial court’s findings are binding unless clearly

erroneous, and we will not substitute our opinion for that

of the trial court. Higdon v. Evergreen International Atr-

lines, Inc., 149 Ariz. 452, 453, 719 P.2d 1068, 1069 (1986) ;

Fleming v. Pima County, 141 Ariz. 167, 168, 685 P.2d 1319,

1320 (App. 1984), vacated in part, 141 Ariz. 149, 685 P.2d

1301 (1984). Two experienced attorneys testified that

they had reviewed the file and familiarized themselves with

the legal work required. One testified that a maximum

reasonable fee for Creamer’s counsel would be $15,000, in-

cluding work on appeal, and the second that $7,500 to

$10,000 would be full, complete, adequate, and just com-

pensation for Creamer’s counsel.

The evidence offered by Creamer showed that his coun-

sel had the case from 1980 through 1985; worked 478.6

hours on it; had billable time of 89.5 hours for a paralegal;

and had a total of $6,172.72 in costs and expenses. The

necessity of the hours claimed by the attorneys and para-

legals was hotly contested. Both attorney witnesses testi-

fied that the amount of time claimed by Creamer’s attor-

neys was unnecessary and unreasonable.

The amount of attorneys’ fees to be awarded in civil

rights litigation is within the sound discretion of the trial

6a

court, Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933,

76 L.Ed.2d 40 (1983), and will not be disturbed absent an

abuse of that discretion. Rutherford v. Pitchess, 713 F.2d

1416 (9th Cir. 1983). We find no abuse of that discretion

in this case.

Since the trial court intended to award costs in addi-

tion to the $15,000 attorneys’ fees, but the judgment failed

to include costs, we amend the judgment of the trial court

to include $4,007.26 for the costs and expenses which we

have determined are properly taxable.

/8/ Michael A. Lacagnina

MICHAEL A. LACAGNINA, Judge

CONCURRING: fect

/s/ Lloyd Fernandez

LLOYD FERNANDEZ, Judge

/s/ Joseph M. Livermore

JOSEPH M. LIVERMORE, Presiding Judge

7a

MESCH, CLARK & ROTHSCHILD, P.C.

259 North Meyer Avenue

Tucson, Arizona 85701

Phone: (602) 624-8886

By: Tom R. Clark #9792

070.05/slr

Attorney for Defendants Raffety and Morris

IN THE SUPERIOR COURT OF THE STATE OF

ARIZONA IN AND FOR THE COUNTY OF COCHISE

BILL ROSS CREAMER, )

. NO. 39687

Plaintiff, )

) PROPOSED

vs. ) FORM OF

) JUDGMENT

MICHAEL S. RAFFERTY, et al., )

) (Filed March

Defendants. ) 17, 1986)

)

The court having considered the Plaintiff’s Motion

For Award Of Attorneys Fees and Costs in the above-

entitled matter and this court having presided over the

initial trial of the matter; having considered the decision

of the Court of Appeals; having reviewed the file, motions

and memorandums in support of and in opposition to the

motion for attorneys fees; having reviewed the depositions

of Mr. Behrens and Mr. McDonald and heard testimony

before the court in support of and in opposition of the

motion for fees; having considered (1) the time and labor

required; (2) the novelty and difficulty of the questions;

(3) the skill requisite to perform the legal service prop-

erly; (4) the preclusion of employment by the attorney

due to acceptance of the case; (5) the customary fee; (6)

whether the fee is fixed or contingent; (7) time limitations

8a

imposed by the client or the circumstances; (8) the amount

involved and the results obtained; (9) the experience, rep-

utation and ability of the attorneys; (10) the undesirability

of the case; (11) the nature and length of the professional

relationship with the client; and (12) awards in similar

cases. IT IS THEREFORE

ORDERED, ADJUDGED AND DECREED that plain-

tiff have judgment against the defendants and the court

assess reasonable costs and attorneys fees in the amount

of $15,000.00.

DONE IN OPEN COURT THIS 17th day of March,

1986.

/s/ James L. Riley

Honorabie James L., Riley

Superior Court Judge

Cochise County-Division 3

9a

SUPERIOR COURT OF ARIZONA.

COUNTY OF COCHISE ie

BILL ROSS CREAMER, )

) No. 39687

Plaintiff, )

) FINAL

vs. ) DECLARATORY

) JUDGMENT

MICHAEL S. RAFFERTY, et al. ) AND

) PERMANENT

Defendant. ) INJUNCTION

)

)

This matter having come before the Court pursuant

to Plaintiff’s Motion for Entry of Final Declaratory Judg-

ment and Permanent Injunction, and the Court having con-

sidered the respective positions of the parties and the de-

cision of the Court of Appeals in Case No. 2 CA-CIV 4981,

and good cause appearing,

IT IS HEREBY ORDERED, ADJUDGED AND DE-

CREED that the policy adopted by the City of Willcox and

effective in 1980 regarding mandatory strip searches of

all City Jail inmates is declared unconstitutional, as in

violation of the Fourth Amendment to the Constitution of

the United States.

IT IS FURTHER ORDERED, ADJUDGED AND DE-

CREED that the City of Willcox be, and is hereby, per-

manently enjoined from engaging in any policy requiring

the strip searching of all City Jail inmates, and henceforth

any strip searches of Willcox City Jail inmates shall be

in accordance with the following conditions:

10a

1. No strip search is permissable of prisoners ar-

rested for traffic violations, petty offenses or minor of-

fenses (misdemeanors), or first offenders, unless reason-

able suspicion exists that the person to be incarcerated

may be carrying or concealing contraband.

fteport Required: A memo shall be prepared when-

ever a prisoner is strip searched based on suspicion. The

memo shall contain all facts present which gave rise to

the suspicion. A person arrested for possession of mari-

Juana, drugs or weapons charges shall meet the minimum

suspicion requirements for a strip search. The memo

shall contain a brief statement articulating all available

details which give rise to suspicion or probable cause. A

copy of the memo shall be stapled to the booking sheet and

the original forwarded to the Chief of Police.

2. Cavity Searches: are prohibited without probable

cause, a warrant, and then are to be conducted only by a

physician at a medical facility.

3. Definition of Contraband. Weapons: pointed or

sharpened instruments, club, or objects capable of inflict-

ing bodily injury upon another. Flammables: poisonous

or explosive material or device, or any kind of ammunition.

Narcotics: intoxicant, depressant or stimulant including

alcohol or alcoholic beverage. Any device, paraphernalia,

or item which can be used for the injection, inhalation or

absorption of drugs or medicines not prescribed by a phys-

ician and administered by a jail staff member. Any mask

or item designation to alter the individual’s appearance

which could be used for escape.

4. Prisoners shall be advised prior to being assigned

to trustee duty that they will be subject to strip searches.

lla

5. Whenever possible single bunking is preferred.

For example, segregation of felony from misdemeanor,

convicted from pending trial, female away from male, and

adult from juvenile.

6. No one shall be strip searched if there is no intent

to introduce the prisoner into the city jail.

7. When it is expected that the prisoner will be booked

and no other prisoner is in the cell, and the person is not

arrested for drugs or weapons charges the prisoner will

not be strip searched.

8. A pat down frisk will suffice for a search prior

to placing prisoners in their cells.

9. All items other than underwear, pants and shoes

without laces will be removed from prisoners.

IT IS THE FURTHER FINDING of the Court that

there is no just reason for delay in the entry of final

judgment as to this Declaratory Judgment and Permanent

Injunction and entry of final judgment is hereby expressly

directed as to such matters, pursuant to Rule 54(b) of the

Arizona Rules of Civil Procedure.

DATED this 1st day of July, 1985.

/s/ James L. Riley

Judge of the Superior Court