ROBINSON v. ARIYOSHI Civ. No. 74-32.
703 F.Supp. 1412 (1989)
Selwyn A. ROBINSON, et al., Plaintiffs, v. George R. ARIYOSHI, et al., Defendants, and McBryde Sugar Co., Ltd., et al., Defendants.
United States District Court, D. Hawaii.
January 18, 1989.
Robert B. Bunn, Honolulu, Hawaii, for Small Owners Ida Albarado, et al.
ORDER ON McBRYDE'S MOTION FOR AWARD OF ATTORNEYS' FEES AND COSTS
PENCE, Senior District Judge.
Defendant and Cross-Claimant McBryde Sugar Co., Ltd. (McBryde), has again in 1988 moved this court for an award of attorneys' fees and costs actually paid by McBryde in and relevant to this present litigation, plus interest lost thereby. The motion is based upon the Civil Rights Attorneys' Fees Award Act of 1976, 42 U.S.C. § 1988 (1976). With the instant motion, of course, were additional exhibits, affidavits, and memoranda in support of the motion. The court will take judicial notice of the prior affidavits, exhibits, and records and files in this case as they may involve the problem of attorneys' fees and costs.
On October 29, 1985, McBryde filed a similar motion for attorneys' fees, etc., but before this court had ruled on that motion, the court of appeals vacated this court's 1977 decision in favor of McBryde and other plaintiffs. This court, therefore, was estopped from further consideration of that motion. On December 28, 1987, this court, on remand, re-entered judgment in favor of McBryde (and other plaintiffs), hence McBryde's re-filed motion for attorneys' fees, etc.
The attorneys' fees and costs sought by McBryde are the fees and costs McBryde actually paid prior to and including December 31, 1987 in connection with this litigation. The fees requested by McBryde were incurred for proceedings in:
The attorneys' fees sought by McBryde in the instant motion also included fees paid by McBryde on behalf of the Small
Second, as an alternative to the above method of compensating McBryde, McBryde requests this court to award fees based upon the current hourly rates for attorneys and sets forth the basis for that calculation in Exhibit C. The resulting requested fee award under this method would be $1,948,032.72. McBryde asked this court that the award based on current hourly rates be effective only if the appellate court determines that the State Officials have no obligation to pay interest.
Finally, in addition to the upward adjustment to the fees actually paid in order to compensate for delays in payment, McBryde requests a further upward adjustment for:
The initial reaction of anyone, not thoroughly familiar with the political background behind the above-referred-to opinion of the Supreme Court of the State of Hawaii, in 1973, in McBryde v. Robinson, as well as the history of the movements of this litigation up and down through the Hawaii Supreme Court, this United States District Court, the Circuit Court of Appeals, and The Supreme Court of the United States, when presented with a claim on the part of the attorneys for McBryde and the owners of small parcels of land and water rights that McBryde should be repaid over $2 million for attorneys' fees, costs, and losses it has paid and suffered, might well be that any such request is outrageous. The position of the Attorney General's Office of the State of Hawaii is that McBryde's claim for those fees, costs, and losses should, in part, be entirely denied and the remainder drastically cut. This position, on the part of the present Attorney General of the State of Hawaii, might, charitably, be excused because he inherited this case from his politicized predecessors in office. Nevertheless, it must be remembered that Hawaii's Governor Waihee, who appointed the present Attorney General, became Governor through the support of the political machine built up by former Governor Burns and preserved and continued by Governor Ariyoshi.
The casual observer would not know that on January 10, 1973, the "Richardson Court" (which, on December 20, 1973 became a 3-2 majority), headed by Chief Justice
All of those almost catastrophic evils should have been instantly apparent to the Attorney General of the State of Hawaii back in 1973. It should have been even more apparent to the successive Attorney Generals thereafter. However, the attitude of the Attorney General of the State of Hawaii on January 10, 1973, when, by the ukase and fiat of Justices Richardson and Abe, the water rights of Robinson, McBryde, Olokele, and the Small Owners were, without warning, expropriated, taken away from them and, forthwith, given to the State of Hawaii, was, in effect, one of instant glee and rejoicing. Greedily, the Attorney General of the Burns administration not only accepted this unconstitutionally expropriated (judicially "stolen") property, but thereafter, he and his successors have fought, relentlessly, through all courts to keep it.
As a result of the attitude of the Attorney Generals of Hawaii during the 15 years this case has been in litigation, McBryde, Robinson, Olokele, and the Small Owners have been forced to fight unceasingly for their very economic lives. The monies that McBryde, Robinson, Olokele, and the Small Owners have paid out for attorneys' fees, of necessity were paid out for the purpose of sheer survival. This court has no sympathy for the position taken by the present, as well as the prior Attorney Generals. The State's Attorney Generals could have, at any time over the years after 1973, refused to take the "judicially stolen" water, could have made it clear that they felt the taking of those water rights was constitutionally unlawful, could have openly and publicly rejected as unconstitutional the position taken by Richardson and Abe—as did two other Justices, Marumoto and Levinson —and avoided all of the 15 years of litigation that has followed.
The State itself has paid out untold hundreds of thousands of dollars in attorneys' fees, costs, and expenses.
I. DELAY IN FILING FEE APPLICATION
At the very outset, defendants claimed that McBryde has waived its right to seek fees and costs for any work done prior to the commencement of the Ninth Circuit proceedings in March 1978 by failing to apply for those fees in a timely manner. As the defendants point out, the Civil Rights Attorneys' Fees Award Act became law in 1976. It was made applicable to all cases that were pending on the date of its enactment, October 18, 1976. The instant case in this federal court was filed on February 14, 1974, with trial in April 1976, and a decision thereon on October 26, 1977,
McBryde has asked for all attorneys' fees, costs, etc., commencing with the issuance of the Supreme Court of Hawaii's decision in McBryde I in January 1973, and continuing up to December 31, 1987. The State first maintains that McBryde is entitled to nothing for the payments it made to its attorneys prior to this court's judgment of March 2, 1978, maintaining that McBryde's fee application has been filed so late that the passage of time constitutes laches and precludes them from seeking fees for any portion of the case prior to March 1978. In support of this contention, the State points out that this court's final decree came over 16 months after Civil Rights Attorneys Fees Awards Act became law, but at that time McBryde did nothing to assert any entitlement to fees and continued to do nothing relative to the same until seven and one-half years after this court's judgment of March 1978 had established their rights.
As the record shows, McBryde filed a previous Motion for Attorneys' Fees on October 29, 1985. In 1986, this court, after all parties had filed their various responses, was forced to conclude its consideration of that application when The Supreme Court granted certiorari and remanded the case to the Ninth Circuit for reconsideration in light of Williamson County Regional Planning Commission v. Hamilton Bank,
In support of its claim that McBryde's application for fees and costs prior to 1978 was untimely, the State has filed a multitude of cases in State's May 2, 1986 Memorandum in Opposition, at pp. 7-15, and State's May 30, 1986 Answering Memorandum in Opposition, at pp. 4-10 (1986). It primarily has based its contentions on Baird v. Bellotti,
In Baird, supra, the plaintiff filed a fee application in 1982 seeking fees for a case commenced in 1974 and finally decided in 1979, i.e., a fee application was filed 30 months after the Supreme Court had denied rehearing. In Baird, supra, Judge Aldrich held that a 30-month delay was "plainly unreasonable." However, there was a finality of judgment in Baird that has never been present in this case. Even as late as this court's 1987 hearing on remand, the State Officials argued that every issue in the case was again open for reconsideration. Thus, it is unlike Baird and other cases cited by the State, viz., Fulps v. City of Springfield,
As the plaintiffs point out, while other circuits may have considered the problem
Apart from the above, it would appear that McBryde's application was submitted within a reasonable time under the authority of White v. New Hampshire Dep't. of Employ. Sec.,
See also Perry v. O'Donnell,
As pointed out in White 455 U.S. at 454, 102 S.Ct. at 1167-68, "Section 1988 authorizes the award of attorney's fees `in [the] discretion' of the court. We believe that this discretion will support a denial of fees in cases in which a post-judgment motion unfairly surprises or prejudices the affected party."
While the defendants have not and could not express surprise at McBryde's motion for recovery of fees paid, they have maintained that they have been prejudiced by McBryde's delay in filing its motion. Defendants maintain "the delay here was so long that a finding of prejudice should follow from its length alone." State of Hawaii's Memorandum in Opposition filed May 2, 1986, p. 12, citing Baird, supra. The State maintains that it has been more than 13 years since the beginning of the dispute. The State maintains that because so much time has elapsed, "the State's ability accurately to reconstruct the events before and at trial has been prejudiced by the retirement of Andrew Lee, the deputy attorney general who was lead counsel for the State defendants throughout the case." The State also asserts that "the HSPA and Kauai Council for the Small Owners have all lost or discarded their 1973 and/or 1974 time records." The State's third claim of actual prejudice is that "the loss of the court's memory is likely to be particularly harmful to the defendant, again citing Baird, supra.
Andrew Lee, Deputy Attorney General, who initially was in charge of this litigation, has retired, but the court will take judicial notice that he is not dead, and nowhere in the record does it appear that the present counsel, in the evaluation of McBryde's claims, has found it necessary to ask for Mr. Lee's help. The State's claim of prejudice because of this factor appears to this court more verbal than real.
The fact that the Kauai attorney for the Small Owners has not kept his own records is minimal prejudice. McBryde has its own record of what it paid to that attorney for the services which were rendered.
As the district court in Baird v. Bellotti,
This court notes that the State's response falls into the category of "hyper-detailed."
In its May 9, 1988, Memorandum in Opposition, the State claims additional prejudice. After referring to the fact that its witnesses have retired or lost recollection and the court's memory may have faded, on page 6 the State blandly says: "This prejudice can only have been exacerbated by the additional two years that have passed since McBryde filed its original  memorandum". Tommyrot!
As the voluminous record in this case shows, in many ways it might be denominated as a "paper" case. Prior to every hearing before this court, reams of argument were filed by both the plaintiffs and the defendants. There were no depositions of very great import taken. There were relatively few court appearances. The trial itself only took two days. Practically everything that has occurred in this case was set down in writing and can be scrutinized today, as well as it was 15 years ago. This includes all of the filings with the Hawaii Supreme Court, the Ninth Circuit Court of Appeals, and the United States District Court.
The time records kept by Cades, Schutte, Fleming and Wright ("CSF & W"), McBryde's attorneys, were submitted monthly to McBryde and, therefore, were necessarily detailed. They were so well kept that, as Exhibits A through M of the State's opposition memorandum of May 2, 1986 well illustrate,
This court finds that the State's claim of prejudice is more hypothetical than real. This court will review and decide upon the reasonableness of McBryde's claim for fees, for services rendered, and costs incurred prior to March 1978, along with those incurred after that date.
II. ANALYSIS OF FEES CHARGED
In Kerr v. Screen Extras Guild, Inc.,
1. The time and labor required by McBryde's attorneys as well as costs and expenses are fully set forth in the plaintiffs' ten-inch-high 1985 Motion, with exhibits, for an award of fees, and augmented by its 1988 Motion.
2. As heretofore indicated, the opinion of the Hawaii Supreme Court, in McBryde I, completely upset and set aside established law regarding the ownership of water and water rights in Hawaii and, as the remand of this case from The Supreme Court in 1987 shows, the State has attempted to put legal roadblocks at never-ending intervals in order to defeat plaintiffs' claims of unconstitutional taking of their water and water rights.
3. As heretofore indicated, the Hawaii Supreme Court's decision in McBryde I, if not overturned, sounded the death knell for McBryde and other plaintiffs and foretold
4. While the water rights cases have not demanded exclusive use of counsels' time for the entire 15 years of this litigation, nevertheless, sporadically, as problems and issues came to an intense focus— e.g., immediately after McBryde I; suit in this court in 1974 and the 1976 hearing; the appellate briefs; the hearing on the questions submitted by the Ninth Circuit to the Hawaii Supreme Court and subsequent appellate briefing; the remand to this court; the subsequent appeal; the problems after granting of certiorari by The Supreme Court; then the remand thereafter to the court of appeals; the hearing on reconsideration in this court; and, last but not least in this court, the 1985 and 1988 motions for attorneys' fees paid by McBryde—McBryde's attorneys have had to give full time and energy to handling McBryde's problems.
5. The record shows that the fees charged by CSF & W were normally and regularly charged to McBryde as a large, old, and valued client.
6. Here, CSF & W's fees were not fixed or contingent. When CSF & W submitted its regular monthly billings to McBryde, after review and, at times, downward adjustment, McBryde paid for the services rendered. This, therefore, is not the situation where the attorney wants to get paid. Here, the client seeks reimbursement for all of its losses brought about by the State's insistence on keeping the "judicially stolen" water.
7. The only time limitations were those imposed by the rules of court. The only limiting circumstances were those acts on the part of the State practically from the beginning, which led the plaintiffs to believe the State would immediately take steps to enforce the ownership of the waters given to the State by the Hawaii Supreme Court. This demanded an almost immediate injunctive proceeding. If, in 1976, the State had taken the stand in this court that it subsequently did on appeal, viz., representing to the court of appeals that it had not (it could not without violating this court's injunction) and would not take any steps to enforce its claim of ownership of all the waters until after the final disposition of the case, it would not have been necessary for this court to have issued an injunction.
8. As a result of the action taken by McBryde's counsel, the State was restrained from implementing its claim of ownership of all the waters and, until The Supreme Court granted certiorari and then remanded the case, it was believed by the judges of the Ninth Circuit, as well as this judge, that the plaintiffs had won and were vindicated in their claim that the holding in McBryde I unconstitutionally violated McBryde's rights. As previously indicated, millions of dollars invested in land, machinery, mills, ditches, and equipment, as well as the employment of thousands of workers, were at stake in this case.
9. CSF & W is recognized as one of the finest law firms in Hawaii. Senior partner J. Russell Cades, who has practiced in Hawaii since 1929, always with the same firm, has long been recognized as the dean of the Hawaii Bar. This court, having had the lead and associate counsel in this case before it in this and other cases, recognizes that each is recognized as an attorney of sound judgment and outstanding ability.
10. The basic undesirableness of this case was that the Richardson Court, i.e., Justices Richardson and Abe, took any attack upon this case as a personal affront. This is illustrated by the fact that Chief Justice Richardson hired special counsel (paid for, of course, by the State, but, nevertheless, hired by Chief Justice Richardson) to appear specially for the Supreme
11. As the record shows, McBryde has employed the firm of CSF & W as its primary attorneys since 1960 and still continues to so employ the firm.
12. This court has never had a case before it that can be described as truly "similar". McBryde did not ask for damages; McBryde paid its attorneys regularly; all that McBryde wanted was to save its own life.
In this decision, as will appear, this court persistently and insistently has taken into consideration the preceding guidelines.
As The Court said in Hensley v. Eckerhart,
The Court continued,
The Court also said, on p. 447, 103 S.Ct. on p. 1947:
Ohio-Sealy Mattress Mfg. Co. v. Sealy, Inc.,
McBryde here has requested no more than the fees of CSF & W which McBryde's in-house counsel reviewed and either authorized payment in full, or made certain deductions and paid less than the billing, monthly. McBryde paid that firm full market value for the services rendered, as McBryde viewed that market value. CSF & W has a host of lawyers in its firm. Here, their charges were made in private practice to a valued client. The firm was ethically obligated to exclude any excessive, redundant, or otherwise unnecessary hours from the fee request they submitted to McBryde for payment. It fulfilled that obligation to McBryde, as is fully and completely set forth in the 650 pages of minutely detailed time records contained in the billing sheets for all of the hours claimed and filed as an exhibit in this application for fees.
The State has attacked the hourly rates of McBryde's chief attorneys as "unreasonable," "out of line," "unjustifiable," and "excessive."
Years in Years Worked Attorney Practice Performed Rates Requested ------------------------------------------------------- Cades 59 1973-87 $100-225 Bunn 26 1973-87 $ 75-160 Scearce 17 1973-85 $ 60-150 Leas 13 1974-87 $ 40-155 Gabrio 6 1982-87 $ 60-120
This judge, in his 27 years as a district judge, has reviewed scores of requests for attorneys' fees, and, as the State's present lead counsel, Alston, knows, has reviewed that firm's requests for fees in other cases,
The State, nevertheless, maintains that the 15% reduction in McBryde's claim should be made because of the "vague and incomplete descriptions in the records." It would appear that the State has made an exhaustive (and exhausting) analysis of almost every single item in McBryde's entire claim.
This court notes that in the Palila case, supra, Sherwood, one of the plaintiff's attorneys, had 62 entries, 22 of which would be "vague and indefinite", as those terms are here construed by the State. Likewise, Mr. Alston and his partner, Mr. Hunt, had 26 entries, 22 of which would have been stricken under the State's present standards. Nevertheless, Judge King awarded all of that time stating, "The evidence submitted by the plaintiffs adequately support their claims for 809.8 hours as reasonable." 118 F.R.D. at 127.
The State also requests that 25% of McBryde's claim be slashed because of duplication of effort, again counting the number of conferences and telephone calls.
In a case of this magnitude and importance to McBryde, McBryde's attorneys would have failed in their ethical obligation to their client if there had not been many and persistent conferences between lead counsel to make sure that every avenue of law and fact were searched, researched, and reviewed to make sure there was no hole, loophole, or pinhole through which the State might escape with its ill-gotten water. The State insistently overlooks what this court has repeated many times since 1976 —that the very existence of McBryde and many other plaintiffs depended upon the outcome of the instant litigation. For McBryde's attorneys not to have conferred often would have constituted a gross dereliction of their duty to their clients.
The State maintains that McBryde is not entitled to any recovery for any fees paid for which CSF & W identified only "vaguely and inadequately." The State maintains that timesheet entries, such as "research," "trial preparation," "conferences," and "correspondence," when entered alone or with only the names or initials of other persons, are too vague to provide any basis for determination that such hours were
As the Lindy court, in Lindy Bros. Builders, Inc. v. American Radiator, etc.,
citing Copeland, supra.
Neither this judge nor his staff have gone over each and every one of the some 20,000 time entries CSF & W had billed to McBryde over the last 15 years. From this court's view, review, and overview of the time records of CSF & W, as billed to and paid by McBryde, this court finds that the number of "vague and indefinite entries" and time entries with no description are relatively miniscule, and do not, in the least, inhibit this court's determination that CSF & W's billing records do not deserve a percentage reduction because of vaguesness, etc. Instead, this court finds that, overall, the time, as billed, reflects the necessary and reasonable work of McBryde's attorneys in this case.
III. SMALL OWNERS
McBryde seeks to recover attorneys' fees and costs it paid in providing representation to the Small Owners. The State's position is that no fees or costs should be awarded for the representation and costs provided to the Small Owners because "(1) they filed no application, (2) they had no counsel, and (3) the work done on their behalf was unnecessary and duplicative".
It appears that in the basic litigation before the Kauai Water Commissioner the Small Owners were not represented by Kauai attorney Clinton Shiraishi, who then was a sole practitioner on Kauai.
By McBryde I, the Small Owners were divested of any water rights whatsoever and the opportunity to exchange the water rights of one acre of land for two acres without such rights was taken away. Likewise, as indicated heretofore, some Small Owners farming dry land leased from the State would violate their leases and be forced out of business if they could not secure water diverted out of its watershed. Shiraishi's fee on appeal was $2,700 plus $162.81 in expenses, for a total of $2,862.81. This bill was subsequently paid by McBryde. (See Affidavit of R. Dougal Crowe, dated October 28, 1985, and Exhibit B attached in McBryde's 1985 Motion for Attorneys' Fees.)
In August of 1973, attorney Robert Bunn of the CSF & W firm offered to represent the Small Owners at no cost to them, all attorneys' fees to be paid by McBryde. This was satisfactory to the Small Owners. It was finally agreed that Shiraishi would continue to represent the interests of the Small Owners with Bunn, as co-counsel, actually doing such work as was necessary, with all fees and costs to Shiraishi's clients being paid by McBryde.
The State maintains that "The participation of the Small Owners contributed nothing substantive to the case."
The State insists that because McBryde could not pinpoint the exact number of hours that Bunn, as well as CSF & W, spent in representing the Small Owners, separate and apart from that time spent representing McBryde's own interests, McBryde's total fee claim should be reduced 25% (of the time devoted by CSF & W), plus the $2,990.81 paid to Shiraishi. The State pointed out that it found that Bunn had spent over 1500 hours on the case, and that out of the $57,200 billed by CSF & W in April 1974 for proceedings in the U.S. Supreme Court, 29% of that amount ($13,500) was allocated to the preparation of papers filed in the name of the Small Owners.
The general thrust of the State's position is that the Small Owners should never have had any representation, that even their presence in the post McBryde I hearings and litigation was unnecessary because, so says the State, their interests were the same as those of the plantations and it was not necessary for them to appear in the subsequent litigation. The State's position is preposterous. As indicated above, the Small Owners had not appealed and, therefore, their plight was not before the Supreme Court prior to McBryde I. All that the Supreme Court had then before it were
The small farmers, as well as the big farmers, were equally entitled to representation in this action. Each suffered the same danger of being put out of business by the McBryde I opinion.
The argument on the part of the State that the Small Owners' counsel contributed absolutely nothing to the litigation approaches the frivolous. Equally frivolous is the State's claim that it was unnecessary to have separate counsel looking out for the Small Owners' interests. Carried to its logical conclusion, it would have been equally unnecessary for either Robinson or Olokele to have had their own counsel and only one attorney would have been necessary to represent all parties.
To this court, this position on the part of the State fits squarely into the pattern heretofore referred to and noted by the court of appeals: "The State defendant apparently have endless time and energy." See note 1, supra.
That McBryde, knowing the cost of the anticipated litigation was far beyond the financial means of the Small Owners, yet recognizing the utmost importance that the true dimensions of the case be made manifest to everyone, decided that paying for all attorneys' fees and costs for the Small Owners was a sound business, as well as a legally sound tactical decision on its part.
One of the purposes of the Fees Award Act was to make it possible for those without funds to obtain representation in support of their rights. It is immaterial who pays for the litigation fees. There are a multitude of cases in the Federal Supplements and Reporters where civil rights organizations have funded the litigation from behind the scenes. See Cole v. Tuttle,
Here, McBryde paid for that representation and it is entitled to reimbursement. The records of Bunn's time are detailed, his fees were reasonable and necessary, and recovery of those fees must be awarded to McBryde.
The State argues that because attorney Shiraishi, a "country lawyer", kept no billing records, kept no time sheets, and billed his clients (the Small Owners) only nominal amounts, therefore, Shiraishi's bill should not be paid by the State. When Shiraishi, on September 26, 1973, charged $2,700 for his services and $162.81 for his expenses in traveling to Hanapepe to see the ditch and the lands of his clients, and traveled to Honolulu to appear before the Supreme Court after McBryde I, neither Johnson v. Georgia Highway Express, Inc.,
IV. PRE-ROBINSON I LITIGATION FEES AND COSTS
In its application, McBryde has asked for reimbursement of attorneys' fees for the work performed by its counsel after the initial decision in McBryde I, but before filing the instant complaint. As the record shows, since the Hawaii Supreme Court had blithely omitted any consideration of its unconstitutional taking of the property rights of McBryde, it was necessary for McBryde to attempt to raise that issue before the Hawaii Supreme Court. This was done.
The Hawaii Supreme Court, however, adamantly refused to consider the problem at all. It even refused to permit McBryde to argue the matter. In order to preserve the constitutional question, it was then necessary for McBryde to attempt to secure a review of the McBryde I and McBryde II 55 Haw. 260,
The State maintains that McBryde is not entitled to recover its fees and costs for work done in connection with those unsuccessful proceedings that preceded the filing of Robinson I. McBryde is seeking $150,882.61 in attorneys' fees then paid. This amount includes $8,997.57 incurred by McBryde as its "share of [Hawaiian Sugar Planters' Association]" expenses in 1973 and 1974. Those expenses arose out of the filing of an amicus brief by the Hawaiian Sugar Planters' Association ("HSPA") in the post-McBryde I proceedings.
As heretofore noted, almost every sugar plantation in Hawaii was, potentially, destructively injured by McBryde I. Almost all had acquired water rights; almost all diverted waters out of their watershed into the dry-land areas of their plantations. Not alone would Robinson, Olokele, McBryde, and the Small Owners be ruined, but, as indicated heretofore, the entire sugar industry of Hawaii would be practically destroyed if McBryde I were to remain unchallenged as the law of Hawaii.
The position of the State is that the Ninth Circuit held that McBryde's attempts to secure a rehearing before the Hawaii Supreme Court and review by The Court to correct the McBryde decisions were irrelevant to McBryde's efforts in the federal courts, and were not part of the prescribed procedural scheme for enforcement of rights under 42 U.S.C. § 1983. The State insists that "the law of the case, and the doctrine of judicial estoppel, bar [McBryde] from asserting now that § 1988 is applicable to those pre-filing proceedings." The State also argues that any work that McBryde did before filing this proceeding in the federal court is beyond the scope of § 1988. The State maintains that McBryde has not shown that any "discrete portions of the pre- and post-filing work done in the Hawaii Supreme Court and the United States Supreme Court were both (1) useful, and (2) necessary to the advancement" of McBryde's civil rights claim.
The State's argument that the pre-filing efforts of McBryde were neither useful nor necessary to advance the federal litigation is without merit. Persistently, in all the federal court proceedings, the State has
That issue was disposed of by the Ninth Circuit in Robinson III.
Nowhere does this court find that the Ninth Circuit held that the pre-filing proceedings were irrelevant to claimants' efforts in this, or any of the appeals courts. This matter is not res judicata.
As noted by McBryde in its Reply Memorandum of May 6, 1986, p. 16, it was not certain and clear until Patsy v. Florida Bd. of Regents,
If further evidence of the importance of McBryde's pre-filing proceedings is necessary, one need but refer to this court's decision in Robinson I, wherein is found a multitude of references to facts and acts developed in and taken from the earlier proceedings.
Contrary to the State's position, in this case McBryde should be reimbursed for all of its attorneys' pre-filing time.
As indicated above, it was reasonably felt by McBryde that it was necessary to exhaust all judicial remedies prior to filing its action in this court. As the record shows, certainly here, the McBryde's pre-filing actions served as a springboard for this federal proceeding.
This court concludes that all pre-filing attorneys' fees were reasonable and necessary, and McBryde should be reimbursed for not only its direct billings by Shiraishi and CSF & W, but also for its share of the Hawaiian Sugar Planters' Association's legal efforts on behalf of it as well as all other sugar plantations in Hawaii.
The State insists that
1. Educational Activity:
This objection relates to the time spent by attorneys Cades, Bunn, and Leas of the CSF & W firm in assisting in preparation of and attending forums and conferences on water rights. This court has checked the list of time so spent, set forth on pages 1 and 2 of Exhibit C of State's Memorandum in Opposition of May 2, 1986. From this court's review of the Exhibit, it appears that the State's estimated and allocated time spent by those attorneys is correct, except for the entry of 10/25/77 of Cades—2.50 hours. The billing records show that this entry was for "revised proposed findings" and therefore was not properly allocated by the State into the "Educational" category. In its Exhibit, the State left the subject blank as to Bunn's billing for 11/10/77. This billing was for "Conf call w/JRC [J. Russell Cades] & Cox re Water Forum, Corelated Problems re Possible Appeal of Decision". McBryde was billed $127.50 for this conference call. This court, following the State's example, will estimate that half of that time was spent on "possible appeal of decision".
This court has calculated the time so allocated to the forum at the billing rates of Cades, Bunn, and Leas during 1973-76 and finds a total of $2,760.75 was paid by McBryde for such activity.
CSF & W argues that since those forums occurred during the litigation and "could possibly have given insight into the State Officials' position concerning the water law and the litigation, the time is compensable".
Undoubtedly, McBryde felt the same. Nevertheless, this court does not see that the time so spent should be properly charged as necessary to, a part of, or flowing from the litigation. The $2,760.75 must be, and is, deducted from McBryde's claim.
2. Stifling Publication of Professor Chang's Writings:
The court is well aware of the fact that in this case, Professor Chang was more than an erudite professor of law at the University of Hawaii's School of Law. Chang was selected by and purportedly represented Chief Justice Richardson, and paid by the State in order to assist the State's Attorney General in the State's defense. This court can take judicial notice that some of the circuit judges of the Ninth Circuit on the bench during the pertinent years appeared to hold law review articles and conclusions therein in high esteem, since law review articles are normally written from an impartial scholar's standpoint. Anything written by Professor Chang during the time relevant here, however, could and would be only construed as written on a solidly partisan basis from the standpoint of an advocate representing his client. This court agrees with McBryde that the publication was intended to be, and was in effect, an additional brief for the State, after oral argument. The court of appeals even allowed McBryde to reply after the publication.
From what actually occurred after its publication, it appears that CSF & W soundly devoted a considerable amount of time in making every effort available at that time to stop the publication of Chang's article, and McBryde is entitled to be reimbursed for the charges.
3. Promoting Publicity:
On page 42 of the State's Memorandum in Opposition is set forth a list of 13 occasions in which CSF & W contacted newspapers, TV stations, and press conferences. The court agrees with the State that these could not be classified as hours expended on the litigation or in any way assisting the litigation process itself. We do not here have a class action in which publicity might aid in informing members and possible members of the class of the litigation.
This court recognizes that the injurious impact of McBryde I on all public and private owners and users of water in Hawaii would ultimately have to be rectified— either by litigation or by legislation. Any publicity favoring the State's position would have an effect, adverse to water
4. Time Devoted to Obtaining an Unofficial Transcript of the Proceedings Before in the Hawaii Supreme Court:
As noted in McBryde's Reply Memorandum of May 6, 1986, p. 18, in 1973 the Richardson Court had denied plaintiffs' request for a transcript of their hearings on their several post-McBryde I motions. As the record clearly shows, the absence of a transcript of these hearings showing the absolute refusal of the Richardson Court to listen to any argument on the question of the constitutionality of the Court's taking, was highly detrimental to McBryde. The basic issue which brought McBryde's case into this court was whether or not the Hawaii Supreme Court had afforded the plaintiffs due process. As indicated in # 5 hereunder, the conduct of Chief Justice Richardson was highly relevant. The cavalier treatment awarded the plaintiffs in the Hawaii Supreme Court immediately post McBryde I manifested the importance of a complete record of the proceedings in the Hawaii Supreme Court on the certified questions. Rejection of the request of the plaintiffs that there be an official reporter and transcript of these proceedings was further evidence of the Richardson Court's unreasonableness with respect to McBryde's claims. The time spent by McBryde's counsel in an attempt to secure both an official and an unofficial transcript of these proceedings definitely became a part of and a necessary process of the litigation.
All of CSF & W's time spent on this matter is compensable.
5. Time Devoted to Unsuccessful Efforts to Disqualify William Richardson from Participating in the Proceedings Relating to the Certified Questions and the Unsuccessful Claim that his Participation Denied the Claimants Due Process of Law:
As reflected in #4, supra, the State has urged that all time spent by CSF & W in attempting to get an unofficial transcript out of the Richardson Court should be disregarded. Although Justice Abe wrote the opinion in McBryde I, this court could almost take judicial notice that the opinion was in line with the philosophy of Chief Justice Richardson, and could just as well have been his opinion. From the record, it is patently obvious that it was Chief Justice Richardson who, from the moment McBryde I was filed on January 10, 1973, persistently and insistently used every means available to him to preserve his court's expropriation ukase. CSF & W would have been derelict in their duty to McBryde if they had not attempted to disqualify Chief Justice Richardson from participating in the Hawaii Supreme Court proceedings relating to the certified questions.
There is no merit to the position taken by the State's maintaining that Hensley v. Eckerhart,
McBryde won. It is entitled to recover these fees.
6. Unsuccessful Legislative Reform Efforts:
The State maintains that any time spent by CSF & W in connection with possible legislative action to nullify the destructive impact of McBryde I upon the plaintiffs is not compensable. McBryde correctly points out that fundamentally McBryde I was a politically motivated opinion. This court could take judicial notice of the close personal relationship of Chief Justice Richardson with Governor Burns, and the political basis for the appointment of both Richardson and Abe to the Hawaii Supreme Court, as well as the fundamental political philosophy of the Burns administration and the Hawaii Supreme Court, as evidenced by a plethora of its decisions. It was obvious to the plaintiffs that if they did not win the federal action, then they, perforce, would be compelled to turn to the legislature for salvation. There was, therefore, a sound economic basis for McBryde's counsel to explore the legislative approach for their clients.
Nevertheless, the time spent by McBryde's counsel in the legislative activities set forth in detail on page 48 of Hawaii's Memorandum of May 2, 1986, was not necessitated by nor a part of this federal action. This court has calculated the time spent on such legislative efforts, as reflected on page 48, supra, at the rates then charged by CSF & W using the State's own estimated time,
V. FEES FOR PRESCRIPTIVE RIGHTS AND STORM AND FRESHET WATER CLAIMS
The State maintains that McBryde is not entitled to recover any fees and costs during 1974-78 for work done in connection with the counterclaim filed by McBryde relating to prescriptive rights and storm and freshet water. Upon filing their suit in the federal court, all of the parties, perforce, had to bring before this court all of the issues that arose out of the Hawaii Supreme Court decision in McBryde I. As the State itself points out, on page 51 of its May 2, 1986 Memorandum, McBryde sought to have this court decide the proper allocation of prescriptive rights and the allocation of so-called storm and freshet water. A non-adversarial review of this court's analysis in Robinson v. Ariyoshi,
If McBryde had not been successful in overturning McBryde I, then this court would have had nothing to refer back to the Water Commissioner. While McBryde did not get what it sought out of this court, it was successful in getting an opportunity for a review of its claims, albeit subsequently.
Those problems were definitely a part and parcel of this federal action, and Hensley v. Eckerhart, supra, supports this court in denying the State's objection.
VI. STATE'S OBJECTION FOR DUPLICATIVE OR EXCESSIVE WORK
The State objects that because some 19 different attorneys of the CSF & W firm worked on McBryde's problems, 9 attorneys worked for Olokele, and 4 or more represented Robinson, that, perforce, there was overstaffing and over-duplication of work. The State deliberately bypasses the fact that CSF & W and its attorneys represented not only McBryde but also the Small Owners. It also bypasses the fact that Olokele and Robinson are separate and distinct corporate entities from McBryde. Each of the plantations were entitled to have their lawyers. Inasmuch as this case has occupied the attention of all parties (including this court) since 1973—now over 15 years—it is to be expected that a considerable number of attorneys would appear to have worked from time to time on varying aspects of the case.
The record is clear, and the State must admit, that CSF & W, throughout the case, was lead counsel and McBryde bore the greatest financial burden of any of the plaintiffs.
In a case of this magnitude, it was necessary that the most experienced attorneys in CSF & W should devote the most attention to McBryde's problems. A review of the attorneys and their fees shows that there were many matters which were referred to attorneys on a lower pay scale than the three lead counsel for McBryde—Cades, Bunn, and Leas.
In a case of this importance, much cross consultation was demanded of all of the attorneys—McBryde's attorneys with those of Olokele and Robinson, and McBryde's attorneys with mainland counsel and both water and Constitutional law experts who were acknowledged as outstanding in the particular legal fields involved in this case.
The plaintiff McBryde itself would have been the first to complain if it felt that its attorneys were "churning" with each other in order to create more chargeable time. As shown by the affidavit of Michael Marks, attached to McBryde's Memorandum in Support, of May 6, 1986, McBryde carefully scrutinized the bills of CSF & W.
This court finds absolutely no merit in this objection of the State. This court could discern no "overstaffing" or "over-duplication" of any services, or that multiplicity of counsel gave rise to an inefficient use of any attorney's time.
This court has reviewed the billing records outlined by the State on the subject of inter-firm conferences, telephone calls, and duplicative work and, contrary to the State's conclusion, finds that all of the work engaged in by McBryde's counsel, as well as that of Olokele, Robinson, and the Small Owners, was reasonably necessary in order to make sure that all of the plaintiffs' several interests were properly and, where at all possible, jointly presented. A case of such vital importance to McBryde demanded that counsel call in outside consultants, professors, and attorneys in order that every possible area of attack should be fully explored and checked and rechecked in the preparation and presentation of briefs on appeal. To repeat: this court could find no unreasonable duplication of effort and excessive time spent in conferences, as charged by the State.
The court finds McBryde's claim to be substantially and reasonably correct.
VII. FEES FOR EX PARTE CONFERENCES WITH THE COURT
The State has pointed out that Cades had some 5 ex parte meetings and telephone conferences with this judge in 1976, 1979, 1981, and 1983. On three of those conferences, Cades indicated in his billing that the meeting with this judge was "re status" or "discussing hearing on memorandum with the court" or "discussing supplemental filings". On two occasions, the billing was for telephone conferences with this judge. This judge stated in open court when the matter was being argued in 1986 and 1987 that it had no independent memory at that time of what was discussed with Mr. Cades. It is not unusual for this judge to discuss matters of the nature referred to above with counsel—ex parte—if the court feels that such discussions shorten the time and efforts of everyone involved in the case. This court finds it both acceptable and reasonable, and approves McBryde's claim for these charges.
VIII. TAX ADVICE
The State objects to McBryde's request for approximately $5,000 billed in the late 1984 for advice to McBryde as to whether its attorneys' fees should be amortized or capitalized for tax purposes. This court agrees with the State that such advice was not related to the substantive or procedural aspects of the case, and McBryde's claim for this $5,000 must be denied.
IX. COMPENSATION FOR CONSULTANTS
The State maintains that all the consultant fees must be disallowed, basically arguing that CSF & W is such a prestigious firm that it should never need to consult with anyone else on matters of law and procedure. The State cites Ramos v. Lamm,
The State objects to the payment of $1,000 to a consultant, Les Watson, on May 16, 1973, and payment of $625 to Sho Sato on June 9, 1973. The record shows that Les Watson is a consulting engineer and an appraiser, and an expert in the field of water rights and had acted as a Master in the Kauai litigation. Sato was a professor on water rights at Boalt Hall, and he was being consulted as a possible use as an
Between January and August 1974, CSF & W, for McBryde, hired Erwin Griswold of the Washington, D.C. firm of Jones, Day, Reavis and Pogue, who personally spent 162.75 hours and, with an associate, Friedman, an additional 288.50 hours on behalf of McBryde's case, and charged $33,819. Griswold's work took place in 1974, during the time that McBryde was carrying on its appeal from McBryde I and II. As part of his work, Griswold and his assistant came to Hawaii and inspected the Hanapepe area on Kauai. The State maintains that the research done by Griswold and Friedman centered on federal jurisdiction issues, and that all of the cost, therefore, of their time and efforts cannot be claimed by McBryde.
This court is aware that CSF & W has represented clients before the Supreme Court of the United States. No one in the firm, however, has had any but sporadic appearances before The Court. The firm itself admits that Griswold's firm filled the gaps of CSF & W's knowledge of and experience before The Court. This court finds Griswold and Friedman's work and charges necessary and reasonable. McBryde's claims for them is approved.
Between September and November 1978, Herbert Wechsler, Professor of Law at Columbia University, spent 145 hours and charged $16,000. Telford Taylor, Professor at Law at Columbia University, between September-November 1978, spent 109 hours and charged $18,300. In 1978, both Doctors Wechsler and Taylor were recognized as among the most eminent constitutional scholars in the United States. This court's decision in McBryde 1 was, at that time, on appeal to the Ninth Circuit. The State had Professor Chang of the University of Hawaii School of Law actively assisting it (and Chief Justice Richardson) in resisting every constitutional aspect of McBryde's case. With the resolution of the constitutional question by the court of appeals so imminent, it was reasonable for CSF & W to secure the assistance of these experts in the field to develop every aspect of McBryde's constitutional claim. The importance of the case demanded that CSF & W and McBryde avail themselves of such experts in the preparation of their briefs to the court of appeals. It was more than reasonable for CSF & W to augment their own legal "muscle" with additional "muscle", such as that possessed by the two professors. This court finds the hours and work of Wechsler and Taylor to be sufficiently identified, as well as reasonable, and approves McBryde's claim for payment for their services.
In March 1986, the Washington, D.C. law firm of Sidley and Austin billed McBryde $3,000 for the services of one of its partners, former Solicitor General Rex Lee, for work he performed in connection with the State's 1985 Petition for Certiorari from the Ninth Circuit's opinion in favor of McBryde. The State called Attorney Lee's work "plainly duplicative" because Lee completely reviewed the State's Petition for Certiorari and other briefs, analyzed the Ninth Circuit's opinion, consulted with the Justice Department officials, researched relevant cases, met to plan strategy, etc. The State maintains that "McBryde needed no help in reading the Petition for Certiorari and the Ninth Circuit's opinion, and in determining strategy."
Not only McBryde, but this court, too, was surprised that The Supreme Court should request the Solicitor General to brief this case, after the State filed its Petition for Certiorari. This court is only too well aware of the effect that the Solicitor General's brief had on the case.
X. McBRYDE'S COSTS
The State itself says:
This problem was fully analyzed by the Thornberry panel (676 F.2d at 1244) and, citing Northcross v. Board of Education,
611 F.2d at 639.
McBryde's claim is allowed.
A. Secretarial Expenses:
On page 91 of the State's Memorandum in Opposition of May 2, 1986, the State listed nine different billings between 1973 and 1985 as encompassing secretarial work. McBryde's response is that all of the identified billings to McBryde for such secretarial services were "the de minimus charges for secretarial overtime and services". CSF & W insists that these charges were for extraordinary services, not overhead, forced to be incurred as a direct result of the particularized demands made upon the firm at the specific times identified because of the state of the litigation on those occasions, and its time restraints.
The general rule is that a prevailing party is entitled to all costs which are not routine office overhead, and expenses normally billed to fee-paying clients are allowable as taxable costs. See Dowdell v. City of Apopka,
B. Computer-Related Research Costs:
This court recognizes that various courts in various cases involving various facts
This court agrees with the analysis set forth in United Nuclear Corp. v. Cannon,
and, with Gorelangton v. City of Reno,
C. Compensation for Travel Time:
The State maintains that since the travel time spent by McBryde's attorneys show little or no work done on the litigation, McBryde cannot recover the same, "or at the very least, the hourly-rate should be reduced to reflect the lesser efficiency that necessarily accompany such efforts."
As the cases cited by the State
It is thus practically impossible for any attorney to do any business on the west cost on the same day that he flies. If the flight is to Washington, D.C., any same-day work is impossible. Moreover, the normal scheduled flying hours mandate an overnight stay in the destination city anywhere on the mainland. Added thereto is the matter of jet lag and the necessary curtailment of work after arrival, because of that factor. Unless an attorney is willing to take a "red-eye special" leaving 10—12 p.m., Hawaii time, it is normally impossible to conduct any work anywhere on the mainland on the same day the flight occurs.
In any event, the traveling attorney will normally lose at least two working days each time he takes a mainland trip. For these reasons, this court has normally allowed all reasonably necessary travel time to be charged as costs in fee applications in bankruptcy, as well as civil actions for both local attorneys going to the mainland, and mainland attorneys coming to Hawaii. This case presents to this court no different problem. This court will allow as reasonable and necessary costs the travel time charges and concurrent expenses billed by CSF & W to McBryde and paid, as proper billing, by McBryde.
D. Telephone Charges:
The State has objected to certain long distance calls to Oregon, San Diego, Arizona, and Los Angeles on July 9 and 10, 1986, and a telephone call by Cades on July 9, 1986, "TC Al Capeda in Ed Ing's Absence". McBryde has not responded to this objection. This court notes, however, that on 3/27/86 Cades telephoned to "Ed Ing of DC office", and in another entry on 6/10/86 Leas telephoned to "A. Capeda re finalizing briefs".
From the above, it appears to this court that both Ing and Capeda were attorneys associated with former Solicitor General Rex Lee. McBryde's claim for reimbursement is proper.
Although the calls to Oregon, San Diego, Arizona and Los Angeles are not specifically identified, the timing thereof, however, coincides with the intense activity of CSF & W in connection with the State's Petition for Certiorari, and this court will approve the same.
E. Fees for Printing and Photocopying:
The State objects to McBryde's charges for the cost of printing materials filed with the United States Supreme Court in connection with McBryde's unsuccessful efforts to obtain a review of McBryde I, as well as the cost of photocopying documents in connection with McBryde's proceedings in this case. The State also objects to the charges made by CSF & W for photocopying.
As instructed by the Ninth Circuit in Thornberry v. Delta Air Lines, Inc., supra, at page 1244-5, "incidental and necessary expenses incurred in furnishing effective and competent representation" are authorized by § 1988 and should be awarded if the expenses are those reasonable out-of-pocket expenses which are normally charged to a fee-paying client
F. Miscellaneous Costs:
In its Memorandum in OPposition of May 2, 1986, on page 95, the State has objected to certain miscellaneous costs, viz:
YEAR EXPENSE AMOUNT1974 "Business Entertainment" $156.96 3/11/74 Long Distance Telephone Call 25.92 to South Africa 04/26/76 Lunch for Mr. Bunn (and 13.00 guest?) 04/27/76 Lunch for Mr. Bunn (and 14.20 guest?) 10/30/81 Lunch for Mr. Leas (and 9.24 guest?) 06/12/85 Courier to deliver memorandum 119.50 re attorneys' fees to the Ninth Circuit [necessitated only by tardy preparation of memorandum]
McBryde could well understand why certain business entertainment lunches, etc., would be properly charged to it in connection with the use of other attorneys and experts that were working with CSF & W on the case. Nevertheless, the State's objections to such charges are basically correct, and those entertainment and luncheon charges are not approved by this court.
The State's objection to the telephone call to South Africa in 1974, like a multitude of other objections of the State, are basically "de minimus", but the State, having sifted this call out, and McBryde, not having explained the same, this court will deny McBryde's claim for that call.
The State's objection to courier delivery of documents to the Ninth Circuit on June 12, 1985 must be denied. This court takes judicial notice that there is a regular commercial service for personal delivery of important documents to the mainland. This courier service is necessitated by the time differential, above referred to, between Hawaii and the mainland United States. The business day starts in New York while Hawaii is soundly sleeping, and the daylight savings time which makes the differential 3 hours between Hawaii and the west coast is in full effect from April through October. This court allows McBryde's claim for courier service.
G. Time Spent on Preparation of Fee Application:
The State maintains that the more than 600 hours spent by CSF & W in the preparation of its application for fees and costs should be substantially reduced. The
When this court notes the microscopic scrutinization of apparently each and every item of McBryde's fee application indulged in by the State, it appears to this court that McBryde's approximately 600 hours must have been surpassed by the State's attorneys and staff in preparing its objections and opposition. Apart from that non-critical inference on the part of this court, from the intense litigious attack adopted by the State from the moment that McBryde I gave the expropriated (stolen) water to the State, McBryde's attorneys could but expect continued intense litigious opposition to McBryde's claim for fees.
Upon reviewing the 15-year-history of this case with its multitude of hearings before the several courts, it appears to this court that the time spent by McBryde's attorneys in preparation of the fee claim was clearly reasonable, and McBryde should be compensated for it.
As another example of the microscoptically detailed analysis and criticism of CSF & W's billing, the State criticizes an associate, Donna Leong, in CSF & W for spending 30.5 hours shepardizing, reviewing, and analyzing cases citing Williamson County Regional Planning Commission v. Hamilton Bank,
The State's position borders on the frivolous. As this court's decision of November 25, 1987, indicates, Williamson County, together with several successor cases thereto
XI. THE ATTORNEYS' FEE LODESTAR
The State maintains that the fees charged by CSF & W are excessive and should be reduced.
This is not the ordinary section 1988 case. This is no general public interest suit. This is no class action. McBryde's attorneys did not assume any risk of winning or losing, but McBryde's and the Small Owners' very life and livelihood were at risk. If, at any time prior to May 29, 1987, when the State's Water Code became effective, the plaintiffs had lost, their industrial and corporate life would have ended, and the Small Owners would have been in dire straits. McBryde was forced to get lawyers of the highest quality in the community, lawyers in whom they had full confidence as to their ability and integrity, lawyers whom they believed would do everything within their legal power to save the plaintiffs from absolute ruin. The risk was entirely McBryde's. Their lawyers were regularly paid.
The State attacks the hourly rates charged by the members of the CSF & W firm, and because the rates have steadily gone higher over the years, the inference the State would have this court draw is
Any such inference is entirely without merit. Though, as reflected in this court's decision in Robinson I this court then felt (and still feels) that the State's position was factually, equitably, and legally unsupportable, nevertheless, as the remand of the Supreme Court illustrates, any such belief or prognostication of success is not infallible. No attorney of the experience and reputation of Cades or his associates would ever continue to "over-bill" a regular fee-paying client on the basis that the opposing party would ultimately have to repay the client.
As the preceding analysis in the case, except as specifically found to the contrary by this court, the attorneys' fees and costs and expenses billed through December 31, 1987, and paid by McBryde are reasonable, and McBryde is entitled to be reimbursed in the amount of $1,198,301.29
XII. COMPENSATION FOR DELAY IN PAYMENT OF FEES, COSTS, AND EXPENSES
McBryde maintains that it is entitled to compensation for delay in payment of the attorneys' fees, costs, and expenses that it has incurred from 1973 through December 31, 1987. McBryde made a similar request in its 1986 application. In 1986, in its Memorandum in Opposition, filed May 2, 1986, the State stated, "[A]ll of the claimants seek an upward adjustment to compensate for delay. The State acknowledges that some inflationary adjustment is within the court's discretion; however, it disagrees with the formulae offered by the claimants."
In the State's Memorandum in Opposition, filed May 9, 1988, the State takes a 180 degree turn from its 1986 position:
State's Memorandum in Opposition filed May 9, 1988, at p. 24-25.
This new position on the part of the State, with its accompanying reasons for change, can only be condemned as a deliberate obfuscation. One is led to infer therefrom that the State did not discover that CSF & W were regularly paid by McBryde during all the years of the litigation until 1988. With certainty, the State knew from McBryde's October 29, 1985 Memorandum for Award of Attorneys' Fees that McBryde was asking for repayment to it, McBryde, of the attorneys' fees, costs, and expenses it had incurred over the (then) preceding 12 years of litigation. In their 1986 response to McBryde's Motion, the State prepared an extensive table
This court has been unable to find any case which says that plaintiffs who pay for their attorneys get lesser protection under 42 U.S.C. § 1988 than indigent or pro se plaintiffs. If the State's argument were taken to its logical conclusion, then plaintiffs who, like McBryde, paid their attorneys
Plaintiffs who pay their own attorneys' fees are entitled to the same rights as those who cannot pay. The purpose of the Fees Act was to eliminate the barrier of expensive litigation costs to the assertation of civil rights. The Fees Act was not passed solely for the purpose of benefitting the attorneys, to make sure that if they represented the successful plaintiff their fees would be paid. The purpose was to encourage filing of civil rights acts.
Pekarsky v. Ariyoshi,
As noted above, the State now infers that "intervening Supreme Court" precedent caused it to change its position that some inflationary adjustment should be used to compensate McBryde for delay in payment. Not surprisingly, the State cited no such case!
As indicated, it is now the position of the State that it is only an attorney who was not paid during the litigation who is entitled to any enhancement of fees because of delay in payment. The State maintains that since the plaintiff, McBryde, paid its attorneys' fees during the litigation, it is entitled to recover nothing for the loss of use of its money over the years the State has viciously fought every attempt of the plaintiffs to recover their judicially expropriated water rights. McBryde is entitled to recover recompense for the loss of use of the money it has necessarily spent (and will spend) over these years of litigation. Pennsylvania v. Delaware Valley Citizens' Council,
McBryde maintains that during all the years of this litigation its parent corporation, Alexander & Baldwin, Ltd., was a financially solvent, net investing corporation that would have been able to use the money paid by McBryde to its attorneys for investment purposes. McBryde asks that it be paid interest at the prevailing market rates over the past 15 years on the attorneys' fees as they were paid, i.e., from the times of payment. An adjustment based upon the actual interest rate that McBryde lost is capable of accurate calculation. As stated by Judge Waters in Chalmers v. City of Los Angeles,
If the State's claim that McBryde is entitled to nothing for delay in payment were to be followed, then, judging from the persistently intensive attempts on the part of the State to forestall any recovery of their water rights by the plaintiffs, this court can only conclude that the last remaining deterrent to the State's apparent attempt to carry on this litigation forever would be taken away. The State would have no disincentive to bring either the substantive litigation or the fee petition to a, hopefully, speedy conclusion.
This court was prepared to order the payment of interest due McBryde as of May 31, 1988. Because, as reflected above, the State has forced this court into a detailed examination into the law and facts on the multitude of issues raised by the State, the conclusion of this decision has been delayed. On January 9, 1989, McBryde filed with this court a "Supplemental Memorandum Regarding Compensation to McBryde Sugar Company, Ltd., for Delay from January 1, 1988 Through December 31, 1988." This court agrees with McBryde's suggestion that the interest be computed through December 31, 1988. Therefore, for delay in payment, this court awards McBryde $1,156,477.90 as lost interest through December 31, 1988, as calculated by McBrydes method on the $1,179,467.80 which this court has determined above to be the reasonable attorneys' fees, costs, and expenses McBryde has incurred and paid over the years 1973 to and including December 31, 1987.
XIII. THE ELEVENTH AMENDMENT AND AWARDS FOR DELAY IN PAYMENT
The State maintains that the Eleventh Amendment precludes compensating McBryde for delays in payment whether by way of awarding interest or by any other method. In its Memorandum in Opposition, filed May 9, 1988, the State maintains that Supreme Court cases "and the absence of any override of the State's Eleventh Amendment immunity from interest awards" precludes any adjustment for delay.
The 8th circuit, however, in Jenkins v. Missouri,
The Jenkins court concluded:
citing, see generally Hutto v. Finney,
This court has reviewed the two district court cases in the 9th circuit, cited by McBryde
In Hobbs v. Director, Office of Wkrs. Comp. Programs,
This court believes that both the Supreme Court and the 9th circuit have consistently not only allowed awards of attorneys' fees against a state, but have also given approval of awards for delay in payment in addition to plaintiffs' basic right to a "reasonable" fee.
As stated in the beginning of this decision, this court reiterates that it can only condemn the actions of the Attorney General of the State of Hawaii from the moment that the Supreme Court expropriated the property of the plaintiffs and gave it, gratis, to the State. Almost to repeat myself, the Attorney General could have, and should have, no later than when this action was filed in this court in 1974, acknowledged error on the part of the Hawaii Supreme Court in its attempt to take, without due process, the property of all of the plaintiffs. Such action by the Attorney General would have properly and with justice ended the litigation 14 years ago. As I have said, the State, nevertheless, in implementing its greed as well as following the political objectives of its Governors, has done everything possible to keep the plaintiffs' unconstitutionally expropriated property. The State has extended this litigation far, far beyond reasonable limits. The extraordinary delay in ending this litigation, persistently and insistently fostered by the State, calls for the maximum reimbursement to McBryde which is allowable under the law.
From the preceding, it can be seen that this court intends to give McBryde as full repayment as the law will allow for the financial losses it has directly incurred because of this litigation.
Since the Eleventh Amendment question has not been "finally" determined by a court "that is paid to be right," McBryde has asked that this court take an alternative method of compensating McBryde for delay in payment of the attorneys' fees it has paid, in the event that this court's analysis of the Eleventh Amendment issue is not affirmed.
McBryde has requested, as an alternative to the award of interest, that this court use the method of awarding McBryde payment of attorneys' fees at current hourly rates in order to secure its objective.
This court would actually prefer not to use the alternative method of current hourly rates for that purpose. McBryde was not charged current billing rates. Also, the court recognizes that the cases using this method seemed to be those in which the attorneys themselves had carried the financial burden of delay in payment. This court notes that in Pennsylvania v. Delaware Valley Citizens' Council, supra, although the issue of compensation for delay in payment of attorneys' fees was not involved, The Court nevertheless acknowledged that courts regularly recognized the delay factor "either by basing the award on current rates or adjusting the fee based on historical rates to reflect its present value." 483 U.S. at ___, 107 S.Ct. at 3081, 97 L.Ed.2d at 592. (Emphasis added.)
The Court did not set forth the method by which this "adjustment" should be made. This court notes that in Greater L.A. Coun. on Deafness v. Comm. TV of So. Cal.,
It appears to this court that Pennsylvania v. Delaware Valley Citizens' Council, supra, inferentially overruled the 9th circuit's conclusion in Greater L.A. Coun. on Deafness v. Comm. TV of So. Cal., supra. It likewise appears to this court that the only way in which a fee based on historical rates could be "adjusted" to reflect its present value would be by way of a multiplier of the original lodestar fee.
In the event that the appellate court should not approve either the award of
As indicated above, in designing a method for compensating the successful plaintiff for delay in payment, some courts have awarded fees at current market rates against a State. In Lightfoot v. Walker,
The court has reviewed McBryde's Exhibit C and finds that the current hourly rate for each attorney now in the CSF & W firm was that attorney's normal billing rate made effective for the firm as of February 1, 1988. For the attorneys who left the firm in 1987, the rate shown is their lowest billing rate, as shown in McBryde's Exhibit B, at the time they left the firm. For attorneys Stivers and Yoshida, the rate is the estimated current rate those attorneys would have had at the time of McBryde's 1985 fee application.
The court is only too familiar with the current billing rates of Honolulu firms. This court has a steady flow of applications for fees coming before it in the several big bankruptcy cases that it has had, and still has, before it over the last several years. The "current" fees, as set forth in McBryde's Exhibit C, are "reasonable" attorneys' fees in the Honolulu legal market for services and expertise of attorneys of the quality accredited to CSF & W. From its own observation in the cases before it, this court finds that the current hourly rates allotted to the mainland experts likewise must be considered reasonable.
Therefore, as indicated above, as a second alternate method of compensating McBryde for its losses, this court awards McBryde, as an adjustment based on current hourly rates, after deduction of those hours heretofore specified in pp. 1430-1431 and 1432, the sum of $1,948,032.72, for the period 1973 through December 31, 1987,
As noted on page 1417, supra, in addition to McBryde's request for an upward adjustment to compensate for delay in payment, McBryde has requested (1) a further upward adjustment for the amount of time spent by McBryde's attorneys on the litigation and not billed to McBryde, and (2) an upward adjustment because of the effect of the litigious posture of the State officials.
This court is satisfied, from the affidavits of McBryde's attorneys Cades and Bunn, that they, as well as other of McBryde's attorneys in the case, have not billed McBryde for all of the time, effort, and expertise they have committed to overturning the State's claim of the judicially expropriated water and water rights.
As heretofore noted and decried by this court, the State "has contested this case to the nth degree."
If McBryde's attorneys in this case had not been paid as billed, then fairness and equity would impel this court to grant a further upward adjustment to compensate McBryde's attorneys for their unbilled time, and penalize the State for its unwarranted litigiousness. However, McBryde's attorneys were paid substantially as billed by them to their clients. The instant Motion is to repay McBryde, not to pay its attorneys. This court, therefore, must, reluctantly, refuse to add the requested addendum for either unbilled time, or the State Attorney General's litigiousness.
IT IS ORDERED that the State pay to McBryde $1,179,467.80, as reasonable attorneys' fees and costs incurred and paid, plus $1,156,477.90 interest thereon through December 31, 1988 for delay in payment, for a total award of $2,335.945.70 or in the alternative, in lieu of adding interest, (A) based on the multiplier, the total sum of $2,335,936.10, or (B) based on the current hourly rates of McBryde's attorneys the total sum of $1,948,032.72.
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