Opposition Brief — Dunn v. Florida Bar

!

Supreme Court, U.S,

= FILED

S 1 un 2 9

No. 89-1691 JOSEPH F. SPANIOL, JR.

CLERK

IN THE |

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1989

SERENA DUNN, at al.,

Petitioners,

Vv.

THE FLORIDA BAR,

Respondents.

CN WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

BRIEF IN OPPOSITION TO THE

PETITION FOR WRIT OF CERTIORARI

ROBERT A. BUTTERWORTH

ATTORNEY GENERAL

STATE OF FLORIDA

ERIC J. TAYLOR

ASSISTANT ATTORNEY GENERAL

(Counsel of Record)

Office of the Attorney General

The Capitol

Tallahassee, Florida 32399-1050

(904) 487-2142

Attorneys for Respondent,

The Supreme Court of Florida

QUESTION PRESENTED

Was the application of the second

prong of the Nadeau v. Helgemoe, 581 F.2d

zion tat Cir. 19/78), test, used for

determining whether the defendant's

conduct was "not required by law," by the

trial court proper in this case where

there was no judicial determination on the

merits of the plaintiffs' claim at the

time the plaintiffs voluntarily decided to

terminate the litigation and there existed

the assertion by the defendants that there

was no constitutional or statutory right

underlying the plaintiffs' claim?

TABLE OF CONTENTS

QUESTION PRESENTED i

TABLE OF AUTHORITIES BY

STATEMENT OF THE CASE 1

REASONS FOR DENYING THE GRANT

THE DECISION BELOW IS NOT

IN CONFLICT WITH THE

DECISIONS OF OTHER COURTS

OF APPEAL OR OF THIS COURT 14

CONCLUSION 38

TABLE OF AUTHORITIES

CASES:

Amendment to the Rule Regulating

the Florida Bar (Chapter 10),

510 So.2d 596 (FES tS87) 6

Amendment to the Florida Rules

of Civil Procedure,

450 So.2d 817 (Fla. 1983) 3

Bonnes v. Long,

599 F.2d 1316 (4th Cir. 1979),

remanded, 651 F.2d 214

(Gth Cir. 1981),

cert. denied, 455 U.S. 961 (1982) 26

California Association

of the Physically

ET We £eG.C,

(9th Cir. 1983) 22, 24-25

Dunn v. The Florida Bar,

689 F.2d L010

(lith Cir. 1989) Ae Bp 41

iii

Dunn v. The Florida Bar,

726 F.Supp. 1261

(M.D. Fla. 1988) a

The Florida Bar v. American

Legal and Business Forms, Inc.,

x7 So.2d 225 (Fla. T9735 1

The Florida Bar v. Brumbaugh,

355 So.2d 1186 (Fla. 1978) ks. ©

The Florida Bar v. Furman,

(Furman 1)

45I So.2d 808 (Fla. 1984) 1, 6

The Florida Bar v. Furman,

O. a. 1

Garcia v. Guerra,

(Sth Cir. 1984) 21, 24, 28,

32, 33-34

Grano v. Barry,

783 F.20 1104 (D.C. Cir. 1986) aay 22

Greater Los Angles Council

on Deafness v. Community

Television otf Southern California,

B13 F.2d 21/7 (9th Cir. 1987) 22

Goichman v. City of Aspen,

659 F.2d 1466 (1lOth Cir. 1988) pe es

Hanrahan v. Hampton,

446 U.S. 754 (TORO) 1G, 27

Hennigan v. Ouachita Parish

School Board,

749 F.2d 1148 (5th Cir. 1985) 21

Hensley v. Eckerhart,

461 U.S. 424 (1983) 29; an

Hewitt v. Helms,

482 U.S. 755 (1987) 16

J & J Anderson, Inc. v.

Town of Erie,

767 F.2d 1469 (10th Cir. 1985) 22-23

Johnston v. Jago,

(6th Cir. 1982) 21, 25, 28

Kentucky v. Grahan,

Usde ) Rey ae

Long v. Bonnes,

455 U.S. 961 (1982) 20, 25, 32.4 (33

Vv

Lovell v. City of Kankakee,

, t er )

Maine v. Thiboutot,

Miller v. Staats,

, -C. 1983)

Nadeau v. Helgemoe,

(1st Cir. 1978) 18-20, 23, 24,

Ortiz De Arroyo v. Barcello,

st r. )

Palmer v. City of Chicago,

806 F.2d 1316 (7th Cir. 1986)

Premachandra v. Mitts,

t r. 1984),

rev'd on other grounds,

753 F.2d 635 (Sth Cir. 1985)

Sablan v. Department of Finance

of North Mariana Islands,

‘ t ir. 1988) 24,

21

15

29

23

21

22

27

Smith v. Robinson,

4) 15

Texas State Teachers

Association v. Garland

Independent Schocl District,

U.S.

TOS s. ctv 1486 (1989) 15, 16

United Handicapped

Federation v. Andre,

t ir. 1980) 21-22

Webster v. Sowders,

th Cir. 1988) 21

Williams v. Leatherbury,

672 F.2d 549 (5th Cir. 1982) 21

STATUTES AND RULES:

42 U.S.C. Section 1988 16, 45, 202

235 wa

Rule 1.61ll(c),

Florida Rules of

Civil Procedure 7 =

vii

Rule 10-1.1(b),

Rules Regulating

the Florida Bar 7s

viii

STATEMENT OF THE CASE

As pointed out by the Eleventh Circuit

Court of Appeals in its opinion, '"[t]Jhis

case began life in another form.'' Dunn _ v.

The Florida Bar, 889 F.2d 1010, 1011 (11th

Cir. 1989). This case is a continuation

of the so far never ending battle between

Ms. Rosemary Furman, and other nonlawyers,

who desire to conduct commercial, for

profit enterprises providing legal

services to the public. Florida's history

with this issue can be found in such cases

as The Florida Bar v. Furman, 451 So.2d

8U8 (Fla. 1984); The Florida Bar v.

Furman, 376 So.2d 378 (Fla. 1979); The

Florida Bar v. Brumbaugh, 355 So.2d 1186

(Fla. 1978); and The Florida Bar vv.

American Legal and Business Forms, Inc.,

274 So.2d 225 (Fla. 1973). These cases

concerned the extent nonlicensed

individuals could operate without

violating Florida's unlicensed practice of

law (UPL) rules in the conduct of their

commercial businesses.

During the last prosecution of Ms.

Furman by the Florida Bar, one of Ms.

Furman's reputed "clients'', Serena Dunn,

filed aclass action against the Florida

Bar and the Supreme Court of Florida in

the United States District Court for the

Middle District Court of Florida in

Jacksonville. The class consisted of

those individuals who desirec a divorce

but, for whatever reason, could not’ obtain

a lawyer, either for a_ fee or pro bono,

and did not feel comfortable in attempting

to complete the necessary court papers

before appearing pro se before a judge. 1/

1/ While this litigation was in progress,

the Florida Bar proposed and the Supreme

Court of Florida approved a new simplified

dissolution rocedure. The proposal became

Rule 1.611(c), Florida Rules of Civil

Procedure along with the Rule's

accompanying forms, Forms 1.943(b) through

1.934(e), Florida Rules of Civil

Procedure. See, Amendment to’_ the Florida

Rules of Civil Procedure, 450 So.2d 81/

(Fla. 1983). However, this simplified

procedure, and the accompanying forms, was

restricted to those persons’ seeking a

divorce who had (a) agreed to the divorce,

(b) had no minor children or the wife was

not then pregnant, (c) had agreed to the

joint division of their property, and (d)

had agreed to the payment of the joint

financial obligations. Consequently,

those cases involving contested divorces,

contested property settlement, custody and

support of children or contested

obligations on the couple's joint debts

could not use the simplified procedure.

After the proposed Rule was approved, the

Petitioners agreed that the rule did not

affect their class as the vast majority of

the class had children or were involved in

a contested divorce. Therefore, this new

Rule did not materially help the class or

resolve the issues before the District

Court.

The Petitioners' Class sought to

challenge Florida's enforcement of its UPL

rules against such nonlawyer, for profit,

commercial services. ik as the

Petitioners' reasoned, Florida's rules

were struck, they could continue their

commercial business operations without any

interference of the Florida Bar and _ the

Supreme Court of Florida.

The Petitioners' contention before’ the

District Court was that Florida's UPL

rules denied the Petitioners access to the

courts in violation of the equal

protection and due process clauses of the

Fourteenth Amendment. What were not

presented as issues’ to the District Court

were:

l. a claim that Florida barred

the Petitioners from utilizing the

Florida court system in any manner

or prevented them from presenting

their cases pro se; or

2. a claim that Florida was

preventing the Petitioners from

seeking assistance from friends,

neighbors or family members in the

preparation of their legal

questions.

The only issue before the District Court

was the legality of Florida's UPL rules

preventing nonlawyer, commercial, for

profit businesses operating to "assist"

members of the public to obtain certain

legal results for a fee from the

Petitioner class.

Respondents vigorously opposed

Petitioners' contentions because,

Respondents asserted, there was no

constitutional right or other legal

requirement placed on the Respondents’ to

provide the Petitioners' class access’ to

commercial, for profit, but nonlicensed

laypersons, to assist the Petitioners in

obtaining a divorce. 2/

During the course of this proceeding,

the Respondents, in a desire to loosen the

restrictions placed on laypersons in the

Brumbaugh decision, and reaffirmed in the

Furman I decision, modified the UPL rules

to permit limited oral communication with

the public by nonlicensed person.

Amendment’ to the Rule Regulating the

Florida Bar (Chapter 10), 510 So.2d 596

2/ Ironically, even if the Petitioners

could have been '"assisted'' in preparing

their papers for a divorce by one of these

nonlawyer, for profit, businesses, the

Petitioners would still be required to

appear pro se in court as_ the nonlicensed

laypersons are not permitted to represent

the Petitioners’ class in court, a_ status

the Petitioners never challenged in court.

6

(Fla. 1987). But, this communication was

restricted to those communications

reasonably necessary to elicit

factual information to complete the

Llegal] form(s) [approved by the

Supreme Court of Florida] and

inform the individual how to file

such form(s). (emphasis supplied)

Rule 10-1.1(b), Rules Regulating the

Florida Bar. After this change,

nonlicensed persons could elicit factual

information to fill in the blanks on court

approved forms but do nothing else such as

the selection of the proper forms or the

procedure to be followed in court.

At the time of the proposed rule

change, no forms were submitted by the

Florida Bar to the Supreme Court for

approval. While the Supreme Court of

Florida then directed the Florida Bar to

draft such forms for the future, besides

the simplified dissolution forms (Forms

1.943 (b) through 1.943(e))in existence

before the UPL rule change, no- such forms

concerning the dissolution of a marriage

have been submitted to or approved by the

Supreme Court of Florida. Therefore,

since Petitioners' class cannot utilize

the simplified dissolution procedure of

Rule 1.611(c), Florida Rules of Civil

Procedure, there have never been any court

approved forms that the Petitioners could

take to a nonlicensed layperson to fill

out in securing a dissolution. 3/

Shortly after the Supreme Court

approved the rule change, Petitioners

unilaterally decided they had the relief

they desired and sought out the

Respondents with their decision that’ the

case was now moot. Dunn, 889 F.2d at 1013

[describing Petitioners' counsel letter of

3/ This continues to be a major bone of

contention between the Petitioners and the

Respondents. Petitioners' counsel

believes the change to Rule 10-1.1(b),

Rules Regulating the Florida Bar, permits

the nonlicensed layperson to complete an

form contained in the Florida Rules o

Court (West Pub. Ce. 1989). In

particular, Petitioners believe a

nonlicensed layperson can take Form

1.943(a) (copy in the appendix) and fill

in all the information necessary for the

Petitioners to secure a divorce. The

Respondents have consistently taken the

position that the use of Form 1.943(a) by

a nonlicensed layperson will result in

that persons prosecution for the

unlicensed practice of law.

9

July 27, 1987 to Respondents' counsel].

The Petitioners proposed to the

Respondents that the case was moot and

there would be no need to go forward with

a trial on the merits. Id. They

requested that the Respondents join in a

stipulated dismissal of the case. Since

the Respondents saw no reason to go

forward if the Petitioners desired to end

the litigation, they agreed to a dismissal

but inserted into the agreement a

statement that the Respondents’ asserted

that the Petitioners were not a_ prevailing

party.

So, contrary to the impression made by

the Petitioners throughout their Petition,

there was no settlement as one commonly

understands the term. There was but an

10

agreement by the Respondent’ to allow

dismissal of the suit if the Petitioners

did not desire to go forward with their

case. The signed stipulation nor _ the

understanding of the parties addressed the

merits of the case nor was it a concession

by the Respondents that the petitioners

acquired anything they sought in the rule

change. Both the District Court and the

Court of Appeals saw the stipulated

dismissal for what it really was, a

voluntary dismissal by the Petitioners.

See, Dunn v. The Florida Bar, 726 F.Supp.

1261, 1267 (M.D. Fla. 1988) and 889 F.2d

at 1012.

In response to the Petitioners' motion

for fees, the Respondents immediately set

forth their reasons why the Petitioners

11

were not a prevailing party. The

Respondent Supreme Court emphasized _ the

point that the Petitioners’ had never

established the fact that’ there even

existed a constitutional right for the

Petitioners to use nonlicensed laypersons

in securing legal services.

In an attempt to see if the

Petitioners were a prevailing party, the

District Court had to determine if the

acts done by the Respondents outside of

the scope of the lawsuit was required by

law. The District Court was left with no

alternative but to make a legal

determination, based on the facts’ in the

record. The District Court fourd that the

Petitioners were not prevailing because

there existed no right in the Petitioners

nor a duty in the Respondents to see to it

that the Petitioners were provided with

nonlicensed layperson legal assistance

they could afford.

13

REASONS FOR DENYING THE WRIT

THE DECISION BELOW IS NOT IN CONFLICT

WITH THE DECISIONS OF OTHER COURTS OF

APPEALS OR OF THIS COURT

1. THE ANALYSIS APPLIED BY THE

COURT OF APPEAL BELOW IS IN

LINE WITH THE ANALYSIS APPLIED

BY THIS COURT AND THE OTHER

COURTS OF APPEAL.

This case involved the termination of

the litigation by the Petitioners before

there was any judicial determination of

the merits raised by the Petitioners. In

attempting to reach the decision whether

the Petitioners were a "prevailing party"

under 42 U.S.C. Section 1988, the

Petitioners attempt to leave the

impression with this Court that the Court

of Appeals below used a form of analysis,

to determine "prevailing party'' status,

14

not used by this Court or nine of the

other courts of appeal. This impression

is misleading.

To understand the analysis applied by

the Court of Appeals, we must begin with

the underlying intent of the Civil Rights

Attorney's Fees Award Act, 42 U.S.C. Sec.

1988. The very basis of an award of

attorney's fees is the vindication cf a

constitutional or statutory right. Smith

v. Robinson, 468 U.S. 992, 1006 (1984);

Maine _v. Thiboutot, 448 U.S. 1, 9 (1980).

Only one who prevails in protecting such

rights is entitled to an award of fees.

Texas State Teachers Association Vv.

Garland Independent School District,

U.S. __, 109 S. Ct. 1486, 1491 (1989).

15

Stated otherwise, fees are awardable:

only to a party who has established

his entitlement to some relief on

the merits of his claim, either in

the trial court or on appeal.

Hanrahan v. Hampton, 446 U.S. 754, 757

(1980).

In a typical case concerning a

determination of whether the plaintiff is

a "prevailing party" the courts often look

to see if the plaintiff has "at least

received some relief on the merits of his

claim before he can be said to prevail."

Hewitt v. Helms, 482 U.S. 755, 760 (1987).

As this Court has7~ stated, relief must

result in the material alteration cf the

legal relationship between the plaintiff

and the defendant. Texas State Teachers

Association, U.S. at , 109 $.Ce. at

1493. Consequently, ''Section 1988 simply

16

does not create fee liability where merits

liability is nonexistent." Kentucky v.

Graham, 473 U.S. 159, 168 (1985).

Relief is not restricted only to those

decisions resulting from final judgments.

A party can be a prevailing party by

resolving a case through a consent decree,

settlement or voluntary cessation of

unlawful conduct by the defendant. See,

E.g., Hanrahan v. Hampton, 446 U.S. at

757.

But all these cases in which a

termination of the proceeding occurred

prior to a judicial decision assume that

in each case there exists a constitutional

or statutory right which the plaintiff is

attempting to vindicate. But, what if, as

happened throughout this case, there is

17

the allegation that no such constitutional

or statutory right or legal obligation

existed; that the actions of the defendant

were not required by any law? How does

one determine if the result achieved is

worthy of an award of attorney's fee?

The first court to look at that

question and form an analytical test was

the First Circuit Court of Appeals in

Nadeau v. Helgemoe, 581 F.2d 275 (lst Cir.

1978). There the First Circuit

articulated a two-prong test to determine

if an award of fees was appropriate in a

case where no judicial determination on

the merits was reached. The first prong

of the test was whether the plaintiff was

the causal factor in achieving the end

result. Nadeau v. Helgemoe, 581 F.2d at

18

280-81. This is strictly a factual test.

Id. The second prong to the test was a

"legal'' as well as factual analysis. Id.,

581 F.2d at 281. The court decided that

the plaintiff must not only show that

factually his action precipitated the

beneficial result but that, even with the

beneficial result, if the

defendants' conduct, however

beneficial it may be to plaintiffs'

interests, is not required by law,

then defendants must be held to

have acted gratuitously and

plaintiffs have not prevailed ina

legal sense. (emphasis added)

Id. The court of appeal decided it was

proper for the district court to decide

that question, based upon the facts and

law of the case before ce. under

traditional constitutional theory. Id.

19

Nadeau ended up being the seminal case

on this question. Its two-prong test,

with the "not required by law"

standard,

has been nearly universally accepted by

all the other Circuits. 4/ In fact, not

only did the Eleventh Circuit Court below

follow it, but of the Petitioners' cited

so-called circuits in opposition to the

Eleventh Circuit's citation of the not

required by law"

test, the following

Circuits have expressly adopted the Nadeau

two-prong test, and its "required by law"!

standard, in their attorney's fees

4/ Nadeau's second prong of its two-prong

test has not been adopted by only the

Second, Third or Fourth Circuits. This

difference in the two lines of cases

determining "prevailing parties'' was noted

in Chief Justice Rehnquist's dissenting

opinion in Long v. Bonnes, 455 U.S. 961,

966-67 (1982).

20

decisions: Fifth Circuit - Hennigan v.

Ouachita Parish School Board, 749 F.2d

1148, 1151 (5th Cir. 1985), Garcia v.

Guerra, 744 F.2d 1159, 1162 (5th Cir.

1984) and Williams v. Leatherbury, 672

F.2d 549, §51 (Sth Cie. 1982); Sixth

Circuit - Webster v. Sowders, 846 F.2d

1032, 1037 (6th Cir. 1988) and Johnston v.

Jago, 691 F.2d 283, 286 (6th Cir. 1982);

Seventh Circuit - Palmer v. City of

Chicago, 806 F.2d 1316, 1322 (7th Cir.

1986) (there are a number of other Seventh

Circuit cases that expressly adopt’ the

Nadeau two-prong test without expressly

stating the "required by law phrase.

See, e.g., Lovell v. City of Kankakee, 783

F.2d 95, 97 (7th Cir. 1986)); Eighth

Circuit - United Handicapped Federation v.

21

Andre, 622 F.2d 342, 346 (8th Cir. 1980)

(Nadeau two-prong test reaffirmed in

Premachandra v. Mitts, 727 F.2d 717, 721

(8th Cir. 1984), rev'd on other grounds,

753 F.2d 635 (8th Cir. 1985); Ninth

Circuit - Greater Los Angles Council on

Deafness Vv. Community Television of

Southern California, 813 F.2d 217, 220

(9th Cir. 1987) and California Association

of the Physically Handicapped v. F.C.C,

721 F.2d 667, 671-672 (9th Cir. 1983);

Tenth Circuit - Goichman v. City of Aspen,

859 F.2d 1466, 1471 (10th Cir. 1988) and J

& J Anderson, Inc. v. Town of Erie, 767

22

F.2d 1469, 1473 (10th Cir. 1985). 5/ The

District of Columbia Circuit has adopted

the Nadeau test without’ stating the

"required by law'' language. Grano_ v.

Barry, 783 F.2d 1104, 1110 (D.C. Cir.

1986).

The error of Petitioners' argument is

the belief that the analysis applied by

the Eleventh Circuit Court of Appeals in

this case is different from that applied

in the Nadeau decision and by the other

Circuits. What we have in fact is but one

standard but one that is often stated in

different terms. Thus, stated as a

5/ The First Circuit has continued to

follow its earlier two-prong test in

Nadeau along with its “required by law"

language. See, Ortiz De Arroyo v.

Barcello, 765 F.2d 275, 282 (Ist Cir.

1985).

23

cliche, the analyses applied by all these

court are but "different sides of the same

coin." The courts have cited both the

"and the "frivolous,

"required by law

unreasonable, or groundless" language from

Nadeau, using such a phrase as "stated

otherwise" when setting forth both Nadeau

statements. See, Sablan v. Department of

Finance of North Mariana Islands, 856 F.2d

1317, 1325 (9th Cir. 1988).

While some Circuits do use the phrase

"frivolous, unreasonable, or _ groundless"

in determining whether the plaintiff's

claim states a legal claim, other Circuits

used such terms as "arguably supported by

case or statutory law'' (Garcia v. Guerra,

744 F.2d at 1163), "legal basis" (Sablan,

856 F.2d at 1325; California Association

24

Naihewks < nhaltanimintnhemaiiin Satis see

of the Physically Handicapped, 721 F.2d at

672); "minimum basis in law'' (Miiler v.

Staats, 706 F.2d 336, 342 (D.C. 1983);

Johnson v. Jago, 691 F.2d at 286) or

"colorable civil rights claim'' (Grano v.

Barry, 783 F.2d at 1110) to describe the

showing the plaintiff must make in order

to be deemed a "prevailing party." 6/

Therefore, contrary to the

Petitioners' assertions, the Eleventh

Circuit below applied the same standard or

test adopted or utilized by the other

Circuit Courts of Appeal. The "not

required by law'' test of Nadeau, stated in

6/ Even Chief Justice Rehnquist used the

phrase "some basis in law'' to describe the

minimum legal threshold level the

plaintiff must present in order to be

entitled to an award of attorney's fees.

Long v. Bonnes, 455 U.S. at 967.

25

its various forms, is nearly uniform

throughout the United States and _ there

exist no division among the courts of

appeal using the Nadeau two-prong test.

7/

2. THE DECISION BELOW DOES

NOT CONFLICT WITH THE

PURPOSES OF SEC. 1988

The Petitioners next assert that’ the

decision be low conflicts with the

underlying purpose of Section 1988 by

requiring the Petitioners to show to. the

court what constitutional or _ statutory

7/ Thus the "only" conflict that really

does exist is the conflict between the

Nadeau line of cases andthe Bonnes v.

Long, 599 F.2d 1316 (4th Cir. :

remanded, 651 F.2d 214 (4th Cir. 1981),

cert. denied, 455 U.S. 961 (1982), line of

cases.

26

A Ay en REL Rie et be te

eae ee RE) | i At eet hah 0S He Te td

metho

tt ee ee Se Sd eee

right was violated by the Respondents and

vindicated by the Petitioners.

Petitioners misunderstand the meaning

of the lowers courts' decisions. The

decisions do not reflect a requirement the

a plaintiff show that he would "prevail"

on the merits; rather, the decision was

but an exercise in determining whether

there even existed a constitutional right

upon attorney's fees could be awarded to a

plaintiff. This form of analysis applied

in this case has been applied by many of

the other Circuit Courts of Appeal in

order to determine if the plaintiff was a

prevailing party in a case terminated

prior to a judicial determination. See,

Goichman v. City of Aspen, supra; Sablan

v. Department of Finance of North Mariana

27

Islands, supra; Garcia _ v. Guerra, supra;

Johnston v. Jago, supra.

Here the Court of Appeal reached the

conclusion that no such constitutional

right existed and that, had the

Petitioners continued, they would have not

won. The Court of Appeals did this by

restricting itself to the facts in the

record and the clear statement of the law.

However, if the Court of Appeals had found

that such a constitutional right had been

established, then the inquiry would have

ceased as the Petitioners would have been

entitled to fees as the prevailing party.

The Respondents are not in any way

challenging the holdings of this Court

that attorneys fees are awardable at’ the

end of a settlement or upon unilateral

28

action by a defendant. Rather, only that

"when" a settlement or other non-judicial

resolution is reached, there existed a

recognizable constitutional or statutory

right upon whicn the plaintiff bases his

action against a defendant. Anything less

would permit an award of fees irrespective

of the existence of a constitutional right

and contrary to this Court's position that

Section 1988 not permit fees where no

merits liability exists. 8/ Kentucky v.

Graham, 473 U.S. at 168.

8/ And as Justice Brennan observed in

Hensle v. Eckerhart, 461 U.S. 424, 446

(1983), Section 1988 is not a "relief fund

for lawyers,’ rather requiring that’ the

plaintiff be a "prevailing party."

Therefore, the existence of a

constitutional right upon which a

plaintiff bases his claim is mandatory.

Otherwise, Section 1988 would digress into

a lawyer relief act. See also, Kentucky

v. Graham, 473 U.S. 159, 168 (1985).

29

3. THE DECISION OF THE COURT

OF APPEAL DOES NOT CONTRAVENE

THE PUBLIC POLICY FAVORING

SETTLEMENTS

The Petitioners present the argument

that the decision of the Court of Appeals

undermines the public policy encouraging

settlements. This assertion is baseless.

To repeat, this was not a case

concerning a settlement. This was a case

involving a voluntary dismissal by the

Petitioners and then a unilateral claim of

victory coupled with a claim for

attorney's fees. This is far from the

situation of a negotiated settlement where

both sides sit down to resolve their

differences. Rather, this was a _ frivolous

case from the beginning with the

Petitioners claiming victory and then

30

NAR LG 160 2 Orn. thle Ww *

seeking fees for bringing such an action.

Contrary to the Petitioners'

assertions, an award of fees under the

conditions presented here (a claim not

based upon any established constitutional

or statutory right and the denial of the

court to determine the validity of the

asserted claim) will surely lead

defendants to refused to do anything at

all until the case is brought to a final

conclusion proving their point. This

action would be contrary to the intent of

Congress - in simply having defendants

dispose of frivolous cases without

liability for attorney's fees.

Therefore, in a case where the legal

claim being asserted is questionable,

defendants will litigate the issue until

31

the end to prove that their conduct was

"not required by law" or that the

plaintiff's action was "frivolous,

unreasonable or groundless" in order not

to be subject to an award of attorney's

fees.

The Petitioners' citations of Hens ley

v. Eckerhart, 461 U.S. 424 (1983), Long v.

Bonnes, 455 U.S. 961 (1982) and Garcia v.

Guerra, 744 F.2d 1159 (5th Cir. 1984) are

misplaced. In Hensley, the district

court, after a trial on the merits, found

the defendants had violated the

Constitution on five of the six grounds

asserted. The issue before the Court

concerned the legality under Section 1988

of awarding fees for time spent on _ the

unsuccessful claims.

32

te oa

en ie nn i ee

‘aR Be

ve

In Bonnes, Chief Justice Rehnquist

Stated that atrial was not necessary to

determine attorney fees but he also

approved of the Nadeau’ two-prong test

analysis and the finding of the First

Circuit Court that a district court will

in most cases have a _ complete enough

record to reach the legal conclusion

whether or not plaintiff possessed some

basis in law to bring the action or the

defendant was required by law to alter his

conduct. Long v._ Bonnes, 455 U.S. at 966

n.3.

Finally, the Fifth Circuit in Garcia

v. Guerra, while also stating a trial on

the merits is not necessary to determine

attorney's fees, did state a standard the

district courts were to follow. Based

33

upon the facts in’ the record before it, a

district court could determine the

eligibility for fees by merely looking at

the plaintiff's claim and see if it was

"arguably supported by case or statutory

law.'' Garcia v. Guerra, 744 F.2d at 1163.

It was exactly this standard

(‘arguably supported by case or statutory

law) that the District Court used to

determine if the Petitioners' claim

entitled them to fees. Dunn, 726 F.Supp.

at 1270 and 1275.

The decision below is consistent with

the policy of settlements and does not

require a court to have a trial on_ the

merits to determine if attorney's fees are

awardable to the plaintiffs.

34

ba> 1 tly ete te Dente. Sead

4. THE DECISION OF THE COURT OF

APPEALS DOES NOT DO DAMAGE TO

THE "CASE OR CONTROVERSY"

REQUIREMENT OF ARTICLE III,

SECTION 2 OF THE CONSTITUTION

Finally, Petitioners assert that’ the

decision of the Court of Appeals does

violence to the "case" or "controversy"

requirement of Article III, Section 2 of

the Constitution by permitting the federal

courts to make decisions on the merits of

the Petitioners' claims during’ the

attorney's fees portion of the case. If

this assertion were accepted practice, the

federal courts would be unable to

determine the legal basis of a plaintiff's

claim when the case ends in a voluntary

dismissal.

35

The Petitioners begin their argument

by claiming they were not seeking to

impose "a constitutional obligation to

provide lay assistance'' to Petitioners.

Petition for a Writ, p.16. Rather they

were seeking an injunction to prevent

Fiorida from enforcing its UPL rules

against lay assistants. 9/ Id.

The decision of the Court of Appeals

was not given to effect an "advisory

opinion" but made in order to decide

whether the Respondents' action in

amending their UPL rules was "required by

law'' entitling the Petitioners to an award

9/ Ironically, on its face, Petitioners

admit they presented no_ constitutional

claim to the District Court. Furthermore,

no court has ever found a constitutional

violation in the application of UPL laws

against nonlicensed persons admittedly

practicing law.

36

eee eee

baer ae as

en

Pe tae

of attorney's fees. However, to deny this

ability of review to the courts would

prevent the courts from determining if in

fact a constitutional or statutory right

was violated.

37

For

the

Petition for

denied.

Dated: |

June

CONCLUSION

reasons given above, the

Writ of Certiorari should be

Respectfully submitted,

ROBERT A. BUTTERWORTH

ATTORNEY GENERAL

STATE OF FLORIDA

ERIC J. TAYLOR

ASSISTANT ATTORNEY GENERAL

(Counsel of Record)

Office of the Attorney

General, State of Florida

The Capitol

Tallahassee, Florida

32399-1050

(904) 487-2142

Attorneys for Respondent,

The Supreme Court of Florida

, 1990.

38