Opposition Brief — Willis v. City of Chicago

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No. 93-875

IN THE

Supreme Court of the United States

OCTOBER TERM, 1993

MAcEO G. WILLIS, JR.,

7 Cross-Petitioner,

CITY OF CHICAGO,

Cross-Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

BRIEF FOR CROSS-RESPONDENT CITY OF CHICAGO

IN OPPOSITION

SUSAN 8S. SHER

Corporation Counsel of the

City of Chicago

LAWRENCE ROSENTHAL *

Deputy Corporation Counsel

BENNA RUTH SOLOMON

Chief Assistant Corporation Counsel

FREDERICK S. RHINE

Assistant Corporation Counsel

610 City Hall

Chicago, Lllinois 60602

(312) 744-5337

Attorneys for Cross-Respondent

* Counsel of Record

WILSON - EPES PRINTING Co.. IN - 789-0096 - WASHINGTON, D.C. 20001

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QUESTIONS PRESENTED

1. Whether a plaintiff who will enjoy no benefit from

a precedent that he obtained can recover attorney’s fees

because of the importance of the court of appeals’ decision.

2. Whether court-appointed counsel are entitled to at-

torney’s fees in cases in which they produced no tangible

benefit for their client, and would not receive attorney’s

fees had they been retained.

(i)

QUESTIONS PRESENTED

TABLE OF AUTHORITIES

OPINIONS BELOW

STATEMENT.

TABLE OF CONTENTS

FN 2 5 ee enemaiauin siasilcaaaabniatie

BECAUSE WILLIS WILL DERIVE NO MEAN-

INGFUL BENEFIT FROM THE JUDGMENT

BELOW HE IS NOT ENTITLED TO ATTOR-

NEY’S FEES

CONCLUSION

(ili)

Page

TABLE OF AUTHORITIES

CASES: Page

Alyeska Pipeline Service Co. v. Wilderness Soci-

OR, Ge Radic DO CIO D aces ckcatcnakseseeancacsesdanisanns es 6

Farrar v. Hobby, 118 S. Ct. 566 (1992) 2.0000... 2

Hewitt v. Helms, 482 U.S. 755 (1987) .................. ; 4

Mallard v. United States District Court, 490 U.S.

SE, AE ENR ee UNE Tee a ed 6

Paris v. HUD, 988 F.2d 236 (1st Cir. 1993) ............ 4

Rhodes v. Stewart, 488 U.S. 1 (1988) (per

ee ea 4

Texas State Teachers Association v. Garland In-

dependent School District, 489 U.S. 782 (1989). 5

STATUTES AND RULE:

700 ELASS para. 5/5-8-1 (1992) ...................-......--........

NI MENTE oto ne 5,

IN THE

Suprene Court of the United States

OCTOBER TERM, 1993

No. 93-875

MACEO G. WILLIS, JR..

Cross-Petitioner,

CITY OF CHICAGO,

Cross-Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

BRIEF FOR CROSS-RESPONDENT CITY OF CHICAGO

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals is reported at 999

F.2d 284 (7th Cir. 1993), and is reprinted at Pet. App.

la-l5a. The opinion of the district court concerning

cross-petitioner’s entitlement to attorney’s fees is reported

at 784 F. Supp. 1360 (N.D. Ill. 1992), and is reprinted

at Pet. App. 16a-28a.

STATEMENT

Willis brought this action under 42 U.S.C. § 1983, al-

leging that the period of time between his arrest for rape

and his initial appearance in court violated the Fourth

Amendment. R. 1. The police held Willis approximately

45 hours before his initial appearance in court while they

arranged lineups so that rape victims could view him.

Pet. App. 2a-4a, 8a. On August 19, 1986, Willis was

convicted of aggravated kidnapping and rape, for which

he is now serving a 60-year sentence. R. 90 at 1; R. 155

at 2. The district court held that the City of Chicago’s

policy authorizing police officers to postpone presenting

an arrestee in court for a determination of probable cause

and bail when there is a “necessity for the detention of an

arrestee for a period of time ionger than that which might

routinely be expected, in order that they may continue the

investigation,” R. 90 at Tab 26 at 9, was unconstitu-

tional." The issue of damages was tried to a jury, which

awarded Willis nominal damages of $1.00 on his excessive

length-of-detention claim. R. 170. The City then took

an appeal from the district court’s judgment. R. 183.

While the City’s appeal on the merits was pending, the

district court awarded Willis $139,350.43 in attorney’s

fees under 42 U.S.C. § 1988. R. 218. The City then

took a second appeal from that award. R. 219. Both

appeals were consolidated for argument and decision. On

July 30, 1993, the court of appeals affirmed the district

court’s judgment on liability, but reversed its award of

attorney's fees. Applying this Court’s decision in Farrar

v. Hobby, 113 S. Ct. 566 (1992), the court of appeals

concluded that, as in Farrar, “[t]lhis litigation accom-

plished little beyond giving petitioner[] the moral satisfac-

tion of knowing that a federal court concluded that [his]

rights had been violated in some unspecified way.” Pet.

App. 14a (first brackets in original) (quoting Farrar, 113

S. Ct. at 574).

The City of Chicago has filed a petition for certiorari

(No. 93-657) in which we seek review of the decision of

the court of appeals that any delay in an arrestee’s initial

appearance in order to investigate more fully the circum-

1The facts relevant to Willis’s underlying claim are set out at

greater length in our petition for certiorari. See Pet. 2-8, City of

Chicago v. Willis, No. 93-657.

stances relevant to the arrestee’s eligibility for bail, and

therefore to prepare for the bail hearing to be held at the

arrestee’s initial appearance, is unconstitutional. Willis

has filed this cross-petition, seeking review of the court of

appeals’ decision concerning his entitlement to attorney’s

fees.

ARGUMENT

BECAUSE WILLIS WILL DERIVE NO MEANINGFUL

BENEFIT FROM THE JUDGMENT BELOW HE IS

NOT ENTITLED TO ATTORNEY’S FEES.

In Farrar v. Hobby, 113 S. Ct. 566 (1992), this Court

held that litigants who recover only nominal damages are

ordinarily not entitled to recover attorney’s fees under

42 U.S.C. § 1988. In his cross-petition, Willis does not

ask this Court to reexamine that holding, but simply ar-

gues that it was improperly applied in this case. He cites

two bases for an entitlement to fees notwithstanding

Farrar: first, the importance of the legal principle estab-

lished by the decision of the court of appeals in this case,

and second, the fact that his counsel was appointed, even

though counsel obtained no victory of any significance to

Willis. We readily acknowledge the importance of the

decision of the court of appeals in this case; in our peti-

tion for certiorari and in the briefs of amici in support of

that petition there is considerable discussion of why the

decision below is of great significance. But while a deci-

sion about the procedures the police must follow in pre-

paring for bail hearings may be of great importance to

many, it is of no help to Willis. As a result of the

underlying charge that gave rise to this litigation, Willis

has been convicted of rape, that conviction has become

final, and he is now serving a 60-year sentence. Hence,

the change in the law that the decision below has worked

contains no practical significance for Willis. For that rea-

son, his victory is purely technical, and does not entitle

him to attorney’s fees.

1. While agreeing that the recovery of nominal dam-

ages normally forecloses any entitlement to attorney’s fees,

Willis focuses on the importance of the precedent he has

obtained. Although he acknowledges that his lawsuit was

not the reason the City rescinded the policy at issue below,

Pet. 11 (a point made by the court of appeals as well,

see Pet. App. 14a-15a n.5), he notes that the holding

below, by condemning delays in an arrestee’s initial judi-

cial appearance for investigative purposes, has consider-

able importance for the City’s current policy. With that

we fuily agree; indeed, in our petition for certiorari, we

discuss at some length the importance of the holding

below for law enforcement, as do the amici supporting our

petition. From this, Willis argues, relying on Paris v.

HUD, 988 F.2d 236 (1st Cir. 1993), that his lawsuit was

the “catalyst” for a significant change in the law. But the

fact that Willis has obtained an important development in

the law is not a basis for awarding him attorney’s fees un-

less he can also establish that this development is of bene-

fit to him.

This principle was established in two decisions of this

Court, Rhodes v. Stewart, 488 U.S. 1 (1988) (per

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

The plaintiffs in both cases claimed to have obtained im-

portant changes in prison policies as a result of their

lawsuits. The Rhodes plaintiffs obtained a declaration

that prison policies concerning magazine subscriptions

were unconstitutional and an order directing Ohio prison

Officials to comply with the “proper procedural and sub-

Stantive standards.” 488 U.S. at 2. Hewitt contended

that his lawsuit had been the catalyst in the creation of a

new Pennsylvania Bureau of Corrections policy concern-

ing inmate disciplinary decisions. See 482 U.S. at 759.

Yet the plaintiffs in both cases were held not to be en-

titled to attorney’s fees because the changes they procured

did not benefit them: Hewitt had been released from

prison bv the time the district court had ruled, as had one

of the Rhodes plaintiffs, and the other Rhodes plaintiff

had died. See 488 U.S. at 3-4; 482 U.S. at 759-64. Thus,

as this Court later wrote, citing Hewitt and Rhodes, in

Texas State Teachers Association v. Garland Independent

School District, 489 U.S. 782 (1989), “the plaintiff must

be able to point to a resolution of the dispute which

changes the legal relationship between itself and the de-

fendant.” Jd. at 792 (emphasis supplied).

Willis cannot show how the precedent he has obtained

will benefit him. He is serving a 60-year sentence; the

likelihood that the Chicago Police Department’s policies

governing the period of time between an arrest and the

arrestee’s initial judicial appearance will affect him is ie-

mote, to say the least.* Indeed, that possibility is likely

slimmer than the likelihood that the plaintiffs in Rhodes

or Hewitt would return to prison, and at that point derive

some benefit from the change in prison policies they had

helped to secure. Accordingly, this case is controlled by

Farrar v. Hobby, as the court of appeals concluded. Willis

obtained nothing more than “the moral satisfaction of

knowing that a federal court concluded that [his] rights

had been violated in some unspecified way.” 113 S. Ct.

at 574. Certainly Willis identifies no decision in any

other circuit awarding attorney’s fees on comparable facts,

nor does he explain why this scenario is of such overrid-

ing importance that it merits this Court’s review.

2. Willis also ciaims that because his counsel was ap-

pointed pursuant to a local rule requiring members of the

trial bar to “be available for appointment by the court to

represent or assist in the representation of those who can-

not afford to hire a member of the trial bar,” Pet. App.

31a (quoting N.D. Ill. R. 3.31), he should recover attor-

ney’s fees. He argues that fees are appropriate because

counsel was “not provided an opportunity to make the

2 Illinois has abolished parole and employs a determinate sentenc-

ing scheme that requires Willis to serve at least approximately half

of his 60-year sentence. See 730 ILCS paras, 5/3-6-3 & 5-8-1 (1992).

type of cost-benefit analysis which typically occurs in

deciding whether to undertake the representation of a

client and which is demanded of non-appointed counsel

under Farrar.” Pet. 15. Willis cites no authority sup-

porting the rule he urges, and we are aware of none. Nor

is such a rule supportable.

The general rule is well settled that, absent a statute

expressly providing for the recovery of attorney’s fees,

such fees may not be recovered. E.g., Alyeska Pipeline

Service Co. v. Wilderness Society, 421 U.S. 240 (1975).

We explain above why Section 1988, as construed in

Farrc’ does not authorize the recovery of attorney’s fees

in this case, and plainly nothing in N.D. Ill. R. 3.31 pur-

ports to authorize the recovery of attorney’s fees. Willis

has not contested, at any point in this litigation, the au-

thority of the district court to require counsel to accept

appointments pursuant to its Rule 3.31 without assurance

of compensation, nor has he contested the validity of the

Rule itself. Thus there is no basis for Willis’s recovery of

fees.

Rule 3.31 recognizes the widely acknowledged ethical

obligation of attorneys to represent those who lack the

means to obtain counsel. See, e.g., Mallard v. United

States District Court, 490 U.S. 296, 310 (1989); id. at

310-11 (Kennedy, J., concurring); id. at 313-17 (Stevens,

J., dissenting). Willis’s novel submission would convert

this ethical obligation into something quite different—

merely another way of generating revenue for one’s prac-

tice. Plainly, Willis’s understanding of the scope of coun-

sel’s ethical obligation is quite different from that em-

bodied in N.D. Ill. R. 3.31.

While local rules requiring counsel to accept appoint-

ments to represent indigent persons may well raise signifi-

cant issues (indeed, the question whether district courts

have inherent authority to appoint counsel for indigent

litigants was reserved for decision in Mallard, see 490

U.S. at 310), resolution of those issues should await a

case in which a litigant contests the validity of such a

rule. Here, counsel accepted appointment knowing he

would be compensated, if at all, under Section 1988. As

we explain above, that statute does not authorize recovery

of attorney’s fees in this case, and it is settled law that

recovery of fees should not be permitted in a case such as

this absent statutory authorization. The petition, there-

fore, raises no substantial question for this Court’s review.

CONCLUSION

The cross-petition for a writ of certiorari should be

denied.

December 20, 1993

Respectfully submitted,

SUSAN S. SHER