2020 IL App (1st) 190782
Ill. App. Ct.2020Background
- Three transgender individuals (Kirk, Rothkopf, Johnson) applied to the State Registrar for new birth certificates changing gender designations under the Vital Records Act; applications were denied based on Registrar practices (physician licensing or scope of surgery).
- Plaintiffs sued the State Registrar alleging violations of equal protection, due process, and privacy under the Illinois Constitution; after filing suit the Registrar issued the new certificates and ceased the challenged practices, and the trial court dismissed the case as moot.
- Plaintiffs, represented pro bono by the Roger Baldwin Foundation (ACLU) and Jenner & Block, petitioned for attorney fees and costs under the Illinois Civil Rights Act §5(c)(2) as prevailing parties whose suit catalyzed the Registrar’s change.
- The trial court awarded costs but denied any attorney fees, reasoning that fees could not be recovered when none were "incurred" (counsel had provided pro bono representation) and expressing concern that awarding fees that counsel intended to donate would amount to a taxpayer-funded gift.
- On appeal, the Appellate Court reversed: it held §5(c)’s use of "shall" makes fee-shifting mandatory for prevailing plaintiffs, the statute contains no "incurred" limitation, and counsel’s pro bono status or intent to donate fees is not a permissible basis to deny or reduce fees.
- The case was remanded for the trial court to determine the exact reasonable fee award (the trial court had already made some adjustments but the record was incomplete).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §5(c) of the Illinois Civil Rights Act mandates awarding reasonable attorney fees to a prevailing plaintiff | "Shall" in §5(c) makes fee awards mandatory to prevailing plaintiffs | (State Registrar took no position on appeal; trial court treated fee award as discretionary in practice) | Court: "shall" is mandatory; trial courts must award reasonable fees to prevailing plaintiffs under §5(c) |
| Whether prevailing plaintiffs may recover statutory "reasonable attorneys' fees" when counsel provided representation pro bono (i.e., no fees were "incurred") | §5(c) contains no requirement that fees be "incurred"; prevailing-market-rate fees are recoverable even if counsel volunteered services; federal civil-rights precedent supports awarding fees where representation was pro bono | Trial court: plaintiffs "cannot recover fees they did not incur"; awarding fees would be a windfall | Court: statute does not limit fees to those "incurred"; pro bono representation is not a basis to deny statutory fee awards |
| Whether counsel’s stated intention to donate any awarded fees to a nonprofit precludes or justifies reducing the award | Donation intent does not bar or reduce an award; permissible for counsel or assignee to receive fee award | Trial court: awarding fees that will be donated would amount to charging taxpayers for a gift chosen by plaintiffs’ counsel | Court: donation intent is not a permissible reason to deny or limit fees; fee awards may go to counsel and are not a windfall to individual plaintiffs |
Key Cases Cited
- Citizens Organizing Project v. Department of Natural Resources, 189 Ill. 2d 593 (interpreting mandatory nature of "shall" in fee-shifting statutes)
- Hamer v. Lentz, 132 Ill. 2d 49 (rule barring attorneys who proceed pro se from recovering fees)
- Blanchard v. Bergeron, 489 U.S. 87 (Federal precedent: pro bono representation does not bar fee awards under §1988)
- Blum v. Stenson, 465 U.S. 886 (courts must not reduce fee awards because representation was pro bono)
- Johnson v. Lafayette Fire Fighters Ass’n Local 472, 51 F.3d 726 (7th Cir.: recoverable fees measured by prevailing market rate even if representation was free)
- Label Printers, Inc. v. Pflug, 246 Ill. App. 3d 435 (distinguishing fee-shifting awards from damages recoverable when fees are paid by third parties)
- Merchandise Nat’l Bank of Chicago v. Scanlon, 86 Ill. App. 3d 719 (fees should not be reduced because counsel is funded by a civil-rights organization)