MEMORANDUM AND ORDER
PETTINE, Chief Judge.
In this § 1983 action challenging the constitutionality of a Rhode Island criminal statute, plaintiffs seek attorney's fees on the theory that their action was at least partially responsible for recent amendments to the statute which effectively mooted the case.
Plaintiffs are Jane Doe, a prostitute; COYOTE, a national organization of women and men (both prostitutes and nonprostitutes) who seek reform of law prohibiting prostitution and other forms of sexual behavior; and COYOTE of Rhode Island, the local chapter of the national organization. Defendants are the Attorney General of the State of Rhode Island and the Chief of Police of the City of Providence, both in their official capacities. In their complaint filed in July 1976, plaintiffs attacked the validity of R.I.G.L. § 11-34-5, the statute which then prohibited prostitution and the commission of other "lewd and indecent acts."
After a lengthy period of discovery and preparation, trial to the Court was held on September 25, 1979. In May 1980, before this Court had rendered a decision on the merits, the Rhode Island legislature amended the challenged statute. At a subsequent conference, all the parties agreed with the Court that the amendments had substantially cured the alleged constitutional infirmities of the statute. In addition, plaintiffs stated that the alleged pattern of discriminatory enforcement on the part of the Providence police force had ceased, or at least substantially diminished, sometime after the commencement of the action. Therefore, on September 22, 1980, an order was entered by consent dismissing the case as moot.
I. Propriety of a Fee Award Against the State Defendant
As defendant properly concedes, plaintiffs' fee request is not foreclosed by the fact that this case was terminated without an entry of judgment in favor of plaintiffs. "[F]or purposes of the award of counsel fees, parties may be considered to have prevailed when they vindicate rights through a consent judgment or without formally obtaining relief." S.Rep.No. 94-1011, 94th Cong., 2d sess. 5, reprinted in  U.S. Code Cong. & Ad. News pp. 5908, 5912 (emphasis added). "Nothing in the language of § 1988 conditions the District Court's power to award fees on full litigation of the issues or on a judicial determination that the plaintiff's rights have been violated." Maher v. Gagne, 448 U.S. ____, 100 S.Ct. 2570, 65 L.Ed.2d 653 (June 25, 1980). See Chicano Police Officers Ass'n. v. Stover, 624 F.2d 127, 131 (10th Cir. 1980); Nadeau v. Helgemoe, 581 F.2d 275, 279 (1st Cir. 1978).
The Civil Rights Attorney's Fees Awards Act encourages the vindication of federal rights by alleviating the financial burdens attendant on resort to the judicial process. Federal courts have uniformly recognized that the intent and purpose of § 1988 mandates the award of fees to plaintiffs who have obtained some significant part of the relief they sought without completing the full course of litigation. A judgment entered into by consent or an out-of-court settlement may support a fee award. E.g., Chicano Police Officers Ass'n v. Stover, 624 F.2d at 131 (pre-trial settlement); Gagne v. Maher, 594 F.2d 336, 338-39 (2d Cir. 1979), aff'd, 448 U.S. ___, 100 S.Ct. 2570, 65 L.Ed.2d 653 (1980). (consent
The Court has not found a case involving the precise situation here—that is, where a challenged state statute is amended by the legislature after trial but before a decision has been rendered. Cf. International Society of Krishna Consciousness v. Andersen, 569 F.2d at 1028 (city ordinance amended after parties had submitted stipulation of fact and presented oral argument). Although the circumstances presented by this case may be unprecedented, the policy considerations implicated by plaintiffs' fee request are essentially the same as those involved in any other fee award case. Had plaintiffs accomplished their goals through a decree rendered by this Court on the merits, a fee award against the state defendant in his official capacity would clearly have been appropriate. See Hutto v. Finney, 437 U.S. 678, 693-700, 98 S.Ct. 2565, 2574, 57 L.Ed.2d 522 (1978); Williams v. Alioto, 625 F.2d 845, 848 (9th Cir. 1980). It seems no less appropriate if there has been a change in the questioned statute that was proximately caused by plaintiffs' suit and that achieved, in a substantial measure, the benefits they sought. For purposes of determining entitlement to a fee award, there should be no difference between inducing the modification of individual behavior or private policy and effecting the modification of official behavior or public policy.
The Court therefore concludes that if plaintiffs have achieved some substantial part of the benefit they sought, and if they otherwise meet the criteria for a "prevailing party" discussed below, they are entitled to a fee award even though the change in Rhode Island law came about without formal judicial involvement.
Benefit Accruing to Plaintiffs by Amendment of R.I.G.L. § 11-34-5
In order to recover attorney's fees in the absence of a clearcut judgment in their favor, plaintiffs must show that the basic objectives they sought from the lawsuit have been achieved, or at least furthered in some significant way. Chicano Police Officers Ass'n v. Stover, 624 F.2d at 131. They need not have accomplished all their goals. Partial success is sufficient so long as it involves some significant issue in the litigation. Nadeau v. Helgemoe, 581 F.2d at 278-79. See Ross v. Horn, 598 F.2d at 1322.
In opposing plaintiffs' fee request, defendant argues that no benefit actually accrued to Jane Doe and COYOTE from the amendment of R.I.G.L. § 11-34-5. The first step in determining whether plaintiffs have benefited from the statutory change is to identify precisely the legal and factual conditions that prompted their suit. Bonnes v. Long, 599 F.2d 1316, 1319 (4th Cir. 1979). These conditions serve as the benchmark against which subsequent developments are measured and evaluated. Here, the prior version of R.I.G.L. § 11-34-5
Asserting that "the constitutional right of privacy must necessarily include the decision of individuals, married or single, to engage in private consensual sexual relations," plaintiffs' emphasis throughout the case was on the allegedly protected nature of the sexual act itself. While insisting that the constitutional protection of private sexual activity did not dissipate once the element of financial remuneration was introduced, plaintiffs readily conceded the State's power to regulate and even criminalize the public facets of prostitution. The following passage from their post-trial memorandum typifies plaintiffs' position throughout the case:
The May 1980 amendments to Chapter 11-34 of the General Laws were both substantive and procedural. The prohibition against loitering to solicit or procure another for prostitution or "any other indecent act" was deleted from § 11-34-5. This conduct now constitutes a petty misdemeanor covered by new § 11-34-8. Another new section denies a jury trial to defendants charged with such behavior and creates a truncated procedure for appeal of § 11-34-8 convictions. The phrase "for pecuniary gain" was added to § 11-34-5 and the prohibition against committing the act of prostitution
The core of plaintiffs' claim was that the State could not constitutionally bar consenting adults from engaging in purely private sexual activity, irrespective of whether the motivation of one of the participants was economic. As the Court reads the statutes, neither the amended version of § 11-34-5 nor the new § 11-34-8 purport to outlaw such activity.
As for the issue of prostitution itself, defendant's argument presents a more difficult question. His point is well taken that plaintiffs may find it difficult to engage in the now decriminalized act of prostitution with impunity because all the preparatory activity remains felonious. Nevertheless, plaintiffs have at all times conceded the State's ability to regulate public aspects of prostitution. They have litigated this case in the belief that decriminalization of the act of prostitution, regardless of the continued vitality of anti-solicitation laws, furthers their campaign to insulate private, adult consensual sexual activity from state control. Doubtless, they would have been happier had privately conducted preliminary activity been exempted from the criminal sanctions of § 11-34-5. Yet, their consent to the order dismissing this case as moot indicates that they did not consider the point to be of any great importance.
In evaluating this argument, the Court has found little guidance in cases from this, or other, circuits. It is well-established that even when a plaintiff obtains in large part the object of her suit, a court must independently assess the substantiality of her claim to ensure that she has prevailed in a legal sense. See infra. Whether a plaintiff who believes that she has achieved something of value must also satisfy an objective test of benefit in a factual sense is not at all clear. To some extent, the law does attempt independently to appraise the degree of real advantage that accrues to a plaintiff from a lawsuit. The doctrine of standing and principles of justiciability that weed out hypothetical questions establish a minimum quantum of objectively-defined benefit that a suit must offer; the sincerest subjective expectation of advantage will not avail the plaintiff who cannot meet those standards. Those criteria ensure that a suit will possess a certain degree of legally-cognizable value to the litigant. Once they have been satisfied, the Court does not know by what more rigorous scale it could purport to gauge the "real" worth of a plaintiff's getting substantially what she wanted. Nor am I sure that a court's judgment of what is worth fighting for should be substituted for that of the litigant who saw fit to institute and prosecute the suit. Therefore, absent a clear indication from a higher court that a different test is required, this Court concludes that the extent of actual benefit to plaintiffs is to be measured by the degree to which defendant's subsequent actions afforded them the relief they sought. Here, as defendant agrees, the statutory amendments satisfied plaintiffs' principal objection to § 11-34-5. The Court therefore finds that the requisite benefit-in-fact exists in this case.
Criteria for "Prevailing Party"
Having concluded that plaintiffs benefited from the statutory amendments, this Court must determine whether they meet the two-prong test for "prevailing party" established by the First Circuit in Nadeau v. Helgemoe, 581 F.2d 275 (1978). No award may be made if the Court finds that plaintiffs' action was "completely superfluous" in bringing about the change. Rather, their efforts must have been a "necessary and important factor in achieving the improvements." Id. at 281. This is a question of fact which, as discussed further below, requires an evidentiary hearing for its resolution. In addition, the Court must determine whether plaintiffs have "prevailed in a legal sense". A fee award is not appropriate if the claims are so "frivolous, unreasonable, or groundless" that defendant's conduct must be presumed to have been gratuitous. Id. Cf. Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978).
The process of evaluating the substantiality of a claim for purposes of § 1988 is not to be equated with ruling on the sufficiency of the claim for purposes of a Rule 12(b)(6) motion to dismiss. Delving too deeply into the actual merits of the claim could enmesh a court in the very trial that extra-judicial resolution of the case had rendered unnecessary. More important —and more relevant here, given that a trial has already been held—it would mean
Prior to May 1980, R.I.G.L. § 11-34-5, as construed by the Rhode Island Supreme Court, purported to outlaw all extramarital sexual intercourse, and all "unnatural" methods of copulation regardless of whether the participants were married. Thus, the prohibition against prostitution was but one segment in a broad scheme of regulation of sexual behavior. The State's power to prohibit particular types of sexual conduct between married persons is extremely questionable after Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1081, 14 L.Ed.2d 510 (1965). Its power to discriminate between married and unmarried adults, at least with regard to "natural" forms of copulation, is open to debate in light of such cases as Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 921, 28 L.Ed.2d 213 (1972) and Carey v. Population Services, 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977) (plurality opinion). See State v. Saunders, 75 N.J. 200, 381 A.2d 333 (1977) (fornication statute unconstitutional). Cf. Commonwealth v. Balthazar, 366 Mass. 298, 318 N.E.2d 478 (1974) (sexual offense statute construed not to reach private consensual acts). The prohibition of "unnatural" forms of intercourse by unmarried persons was perhaps the least vulnerable part of the statute, for the Supreme Court has twice summarily refused to disturb convictions of unmarried persons who engaged in such acts. See Poe v. North Carolina, 445 U.S. 947, 100 S.Ct. 1593, 63 L.Ed.2d 782 (1980), dismissing, for want of substantial federal question, appeal from 40 N.C. App. 385, 252 S.E.2d 843 (1979); Doe v. Commonwealth's Attorney, 425 U.S. 901, 96 S.Ct. 1489, 47 L.Ed.2d 751 (1976), summarily aff'g 403 F.Supp. 1199 (E.D.Va.1975). But see Commonwealth v. Bonadio, ___ Pa. ____, 415 A.2d 47 (1980) (invalidating voluntary deviate sexual intercourse statute). Such summary dispositions are binding on the lower courts as rulings on the merits; they do not, however, have the same precedential weight as a full opinion. Illinois State Board of Education v. Socialist Workers Party, 440 U.S. 173, 180-81, 99 S.Ct. 983, 986, 59 L.Ed.2d 230 (1979); Mandel v. Bradley, 432 U.S. 173, 176, 97 S.Ct. 2238, 2240, 53 L.Ed.2d 199 (1977) (per curiam). Finally, with respect to prostitution itself, the effect that financial motivation has on the status of an activity that might otherwise merit constitutional protection is an uncertain and difficult question.
In sum, it cannot be said that plaintiffs' challenge to the alleged overbreadth of R.I.G.L. § 11-34-5 was patently frivolous or unreasonable. The Court therefore concludes that their claim was sufficiently substantial to meet the standard required of a "prevailing party".
The remaining question is one of causation. "[P]laintiffs' conduct, as a practical matter, must have played a significant role in achieving the objective .... This causation can be the initial catalyst in producing action, or can be the constant prodding that motivates a defendant to go further than it otherwise would have." Chicano Police Officers Ass'n v. Stover, 624 F.2d at 131. The chronological sequence of events is persuasive, although not decisive, circumstantial evidence that the plaintiff's lawsuit was a material factor prompting the defendant's actions. Morrison v. Ayoob, 627 F.2d at 672; Ross v. Horn, 598 F.2d at 1322; Nadeau v. Helgemoe, 581 F.2d at 281.
Relying on affidavits from the drafter of the statutory amendments and the Legal Counsel for the Judiciary Committee, and on several contemporaneous newspaper articles, defendant argues that the legislature's actions in May 1980 were a response to angry community outcry against the high incidence of prostitution in the West End of Providence. According to defendant, the amendments were designed to streamline the prosecution process, in the hope that speedier convictions would stem the increase in solicitation and pandering that outraged neighborhood residents. This explanation plausibly accounts for the new sections making loitering and solicitation petty misdemeanors that are tried to the court and subject to a truncated appeals procedure. It does not, however, shed any light on why phrases outlawing the commission of acts of prostitution and other indecent acts were deleted from § 11-34-5.
It is obvious to the Court that the subtle workings of causation in this case cannot be discerned through the media of legal memoranda and affidavits. An evidentiary hearing, with its opportunity for direct observation of witnesses and cross-examination, is required and will be ordered.
One final point must be addressed. Defendant Attorney General argues that, whatever the motivation for the statutory amendments, the actions of the legislature were independent of his control and should not be imputed to him. In other words, he contends that fees cannot be assessed against a defendant on the basis of actions taken by a third party, no matter how beneficial they may have been to the plaintiff. Although this contention appears unexceptionable as a principle of law, the Court does not agree that it is applicable here.
To obtain judicial review of the constitutionality of a state statute, plaintiffs used the appropriate device of suing a responsible state official in his official capacity.
Once it is recognized that the Attorney General's role in this case is to serve as a surrogate for the State of Rhode Island, the tenor of his position alters somewhat. In substance, he is arguing that it is improper to award fees against the Executive branch of the State on the basis of activity that was really within the bailiwick of the Legislative branch. This Court declines to adopt so rigidly compartmentalized an approach to state governmental action. It is, of course, one of the elementary principles of grade school civics that the Legislature makes the law and the Executive enforces it. However, to the individual subjected to coercive action because his or her behavior violates a statutory command, nice distinctions between establishing the law and executing the law disappear. Whether manifested through the enactment of a criminal statute or through its enforcement, the State's police power is unitary. The State in its role as law enforcer cannot disavow all connection with the State in its role as law maker.
This Court therefore concludes that there is no legal bar to plaintiffs' recovery of at least a portion of their attorney's fees from the State defendant in his official capacity if they establish the necessary factual basis —i. e., causation—at a subsequent hearing.
II. Propriety of a Fee Award Against the City Defendant
Plaintiffs' complaint charged the City of Providence Police Department with engaging in an intentional and purposeful practice of enforcing R.I.G.L. § 11-34-5 almost exclusively against women. The substance of this claim was not that the police were concentrating on female, as opposed to male, prostitutes. Rather, plaintiffs charged that enforcement efforts were geared towards the predominantly female sellers of sexual services while the predominantly male purchasers were ignored—even though under the statute the buyer was equally culpable. They further alleged that this enforcement strategy was rooted in sexist and stereotypic beliefs that the woman who engages in prostitution is "deviant" whereas the man who purchases her services is just a "normal" male. Plaintiffs' evidence was primarily statistical, detailing the numbers of males and females arrested and charged under § 11-34-5 between 1974 and 1977, as well as the number of male and female undercover officers assigned to make prostitution arrests during that period.
An equal protection claim of discriminatory enforcement requires some showing of intent or purpose to discriminate. Washington v. Davis, 426 U.S. 229, 241-42, 96 S.Ct. 2040, 2048, 48 L.Ed.2d 597 (1976). Plaintiffs offered a two-part argument that such intent was present in the Providence Police Department between 1974 and 1977. Noting that Washington v. Davis leaves open the possibility that a glaringly disparate impact may support an inference of intentional discrimination, see Arlington Heights v. Metropolitan Housing Corp., 429 U.S. 252, 264-68, 97 S.Ct. 555, 562, 50 L.Ed.2d 450 (1977), plaintiffs contended that such a disparity existed in this case. Defendant's answers to interrogatories revealed that, during those years, 846 women were arrested under either § 11-34-5 or § 11-45-1 (prohibiting "lewd, wanton or lascivious" behavior); all 846 were charged with prostitution. In the same period, 251 males were arrested. There is dispute as to whether more than 3 of these males were
Nothing in this precis of plaintiffs' evidence is meant to imply any opinion about the ultimate merit of their discriminatory enforcement claim. As prior discussion has emphasized, this Court need not determine whether plaintiffs were likely to have succeeded in this portion of their case. Plaintiffs must only establish that their claim was not "frivolous, unreasonable, or groundless." Considering the above evidence, and in light of the Police Department's failure to offer an explanation for its enforcement strategy refuting that advanced by plaintiffs, the Court believes that the requisite legal substantiality is present.
It was not unreasonable to assert that the Department's use of a predominantly male undercover force revealed a design to ferret out the women who violated § 11-34-5 while ignoring the equally guilty men. It was not frivolous to argue that discriminatory intent can be implied from the facts that four times as many women as men were arrested, and possibly eight times as many were charged with violating § 11-34-5 during the pertinent time period. This Court is not suggesting that there might not be equally plausible, nondiscriminatory reasons for the Department's practices
Defendant contends that subsequent changes in the Department's enforcement strategy—if any—are traceable to "changing patterns and types of crime" and the "growing awareness" of the West End neighborhood to prostitution, with "the attendant outcry." Plaintiffs contend that the Police Department began using female undercover officers and charging men with § 11-34-5 violations in response to the filing of their lawsuit. This dispute as to causation is properly the subject of a hearing, where the internal workings and policymaking of the Police Department can be probed.
Finally, defendant Chief of Police argues that a fee award is inappropriate because "it can hardly be claimed that the interest of the public is in protecting and legitimizing prostitution." Memorandum, p. 3. This argument ignores the fact that the gravamen of plaintiffs' complaint against the Police Department was sex discrimination. Without commenting on the implication that the substantial constitutional issues presented by plaintiffs' challenge to the original version of § 11-34-5 are less worthy of attention than are other constitutional issues, the Court assumes that defendant is not suggesting that a charge of genderbased discrimination is less meritorious when made by avowed prostitutes than by other women.
The Court concludes that there is no legal bar to plaintiffs' recovery of fees from defendant Chief of Police in his official capacity if evidence adduced at a subsequent hearing reveals a causal connection between the lawsuit and a change in the Providence Police Department's patterns of enforcing § 11-34-5.
It is hereby ordered that this case be added to the trial calendar and set down for hearing in due course.
As discussed infra in the text, the phrase "indecent acts" has been broadly construed by the Rhode Island Supreme Court.
The order dismissing the case as moot reads in its entirety:
New § 11 34 8 reads:
As indicated by the section of defendant's memorandum quoted in the preceding footnote, defendant also understood plaintiffs' primary concern to be the prohibition of adult consensual sexual activity per se. He agreed that the statutory amendments had satisfied that concern. This is not a situation, then, where a plaintiff, sensing imminent defeat on the merits, attempts to bail out of a case (recovering fees in the process) by pointing to some relatively insignificant change in the challenged behavior or policy.
Nor can the Supreme Court's dismissal of State v. Milne, 95 R.I. 315, 178 A.2d 136 (1962) for want of a substantial federal question be deemed controlling. In the first place, Milne occurred prior to the series of cases that recognized some form of constitutionally protected right to privacy in sexual matters. More important, Milne involved a vagueness challenge to the statutory phrase "independent acts." The Rhode Island Supreme Court held that that portion of § 11 34-5 was not so indefinite as to violate due process. Such a holding obviously does not foreclose consideration of a claim that the statute sweeps too broadly and invades protected privacy interests.
The Rhode Island Supreme Court has recently upheld the prior version of § 11-34-5 as against a constitutional attack much like that made here. See State v. Santos, R.I., 413 A.2d 58 (1980). Similarly, the Eighth Circuit, relying on Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973), has sustained the Missouri prostitution statute. See J.B.K. Inc. v. Caron, 600 F.2d 710 (1979), cert. denied, 444 U.S. 1016, 100 S.Ct. 667, 62 L.Ed.2d 645. Those cases, while deserving the careful consideration of this Court, are not, of course, binding on it.
The only evidence offered by defendants at trial was the affidavit of a keeper of the records at the State-wide Judicial Information System. This affidavit stated, inter alia, that 48 males had been indicted or had criminal informations returned against them in Providence County for § 11 34-5 violations. The affidavit did not indicate what time span this statistic represented. According to the Attorney General's memorandum, the figure covered the period from 1968 to February, 1979. Since the affidavit included no breakdown of these 48 prosecutions by year, it is impossible to determine how many occurred after plaintiffs' suit was filed or in the pertinent 1974-77 period.
Defendant Police Chief offered no evidence disputing the accuracy of this explanation of prostitution investigation procedures.
Even were Narpstek not factually distinguishable, this Court finds the approach of Judge Gordon in Harris v. Harvey, 453 F.Supp. 886, 888 (E.D.Wis.1978) more compatible with the purpose of § 1988.