73 A.D.2d 118 | N.Y. App. Div. | 1980
OPINION OF THE COURT
This is an appeal by the defendant, the Board of Supervisors of Orleans County (Board), from an award requiring it to pay
This action, which is no stranger to this court,
To retrogress, on December 8, 1978 Special Term granted plaintiff’s application for an award of $21,325 in attorney’s fees for services rendered after March, 1977, upon a finding that the action was properly commenced as a class action in March, 1971 under the then applicable statute, CPLR 1005. In making the award Special Term focused on the "unexplained four and one-half year delay on the part of the Board”, and described "this inaction” as "oppressive” and "a willful and persistent defiance of the law”, manifesting "bad faith” and necessitating plaintiff’s recommencement of the proceeding.
On this appeal, the Board points out that to the contrary the court had commended the actions of the current Board and that no bad faith had been charged to it since 1977. It further notes that the record is silent as to the reason for the four and one-half year delay, and that no delay could have occurred without the inaction of all parties, including the court. The Board charges that Special Term erred in awarding fees to plaintiff’s attorneys and submits that established law precludes the award of legal fees. Plaintiff counterargues that the long history of the Board’s failure to act and its repeated recalcitrant behaviour is tantamount to bad faith and that Special Term did not abuse its discretion. Plaintiff claims that the award is permissible under either the statutes governing class actions or a bad faith doctrine and notes that counsel fees historically have been awarded in reapportionment cases.
In New York the general rule is that each litigant is required to absorb the cost of his own attorney’s fees and a defendant may not be required to pay plaintiff’s attorney’s fee in the absence of a contractual or statutory liability with certain limited exceptions (Mighty Midgets v Centennial Ins. Co., 47 NY2d 12; Equitable Lbr. Corp. v IPA Land Dev. Corp., 38 NY2d 516; Neri v Retail Mar. Corp., 30 NY2d 393; City of Buffalo v Clement Co., 28 NY2d 241; Young v Toia, 66 AD2d 377; 1 Speiser, Attorneys’ Fees, § 13.1).
It is clear that there was no agreement by the Board to pay plaintiff’s attorney’s fees and that when the judgment
As noted above, New York courts have recognized certain exceptions to the general rule that attorney’s fees are not recoverable absent a contractual or statutory liability, e.g., (1) when the litigation creates a benefit to others, and (2) when the opposing party’s malicious acts cause a person to incur legal fees. For example, in Fittipaldi v Legassie (18 AD2d 331, 338), where union members brought a class action against their union, this court permitted the recovery of attorneys’ fees, holding that counsel for the plaintiffs "materially benefited the general membership of the unions by pointing out and aiding to correct * * * abuses” of the union (see, also, Murray v Kelly, 14 AD2d 528, affd 11 NY2d 810). Here, only those voters whose voting power had been diluted by the malapportionment would benefit through a reapportionment; presumably the injury to those voters was substantially mini
None of these exceptions have application here and indeed Special Term did not attempt to justify the allowance on these theories. It is evident that Special Term in awarding fees to plaintiff found that the Board’s alleged dilatory conduct constituted "bad faith” and the court utilized the "private attorney general” doctrine developed by Federal case law (Fairley v Patterson, 493 F2d 598; Kahan v Rosenstiel, 424 F2d 161, cert den sub nom. Glen Alden Corp. v Kahan, 398 US 950; Sims v Amos, 340 F Supp 691, affd 409 US 942; Dyer v Love, 307 F Supp 974) to bolster its conclusions. The cases relied on by the court, however, predated the rejection of the "private attorney general” doctrine by the Supreme Court of the United States in Alyeska Pipeline Co. v Wilderness Soc. (421 US 240).
Even if the court’s theory applied, the record does not support a finding that the Board was guilty of bad faith. True, four and one-half years elapsed between the court’s order in 1972 and the substitution of parties in 1977. However, it is not disputed that the Supreme Court Justice, who issued the judgment and order in 1971 and 1972, retired at some time before 1977. Also, the original plaintiff who instituted this class action was elected to the Board and both he and his attorney evidently lost interest in the case at some time subsequent to 1972. The only apparent fault of the Board was its failure to proceed with dispatch (cf. Fairley v Patterson, supra; Sims v Amos, supra; see, also, Reynolds v Sims, 377 US 533). Indeed, in August, 1978 Special Term commended this Board for its work by stating that " 'this Legislature has worked hard, diligently under my direction’ ” and noted that
For the first time plaintiff contends on this appeal that this lawsuit is essentially a civil rights action brought pursuant to section 1983 of title 42 of the United States Code and that he is entitled to attorney’s fees under section 1988. Congress enacted the Civil Rights Attorney’s Fees Awards Act of 1976 (US Code, tit 42, § 1988) in response to the United States Supreme Court decision in Alyeska (supra).
Thus, we are presented with the following question: Should plaintiff be permitted to recover attorney’s fees under the Civil Rights Attorney’s Fees Awards Act of 1976 if he is a prevailing party in a State court suit which does not allege a violation of section 1983, but seeks to enforce Federal civil rights? Plaintiff alleges here that his rights under the equal protection clause of the Fourteenth Amendment of the United States Constitution and sections 1 and 11 of article I of the New York State Constitution were violated and that he was deprived of “the equal protection of the law by the present and existing apportionment of members of the [Board] and the districting of the County, whereby one member of such Board is elected from each town without regard to the population of such towns”.
Section 1 of article I (Bill of Rights) of the New York State Constitution provides in part: “No member of this state shall be disenfranchised, or deprived of any of the rights or privileges secured to any citizen thereof, unless by law of the land, or the judgment of his peers”. The provisions of section 1 and section 1983 are noticeably similar.
Moreover, several actions for reapportionment have been brought under section 1983 in the Federal courts to redress the alleged deprivation of Federal constitutional rights (see, e.g., Baker v Carr, 369 US 186; Ellis v Mayor & City Council of Baltimore, 352 F2d 123; Burton v Whittier Vocational Regional School Dist., 449 F Supp 37, affd 587 F2d 66; Brown
Arguably, plaintiffs cause of action is based on a "deprivation of [his] rights * * * secured by the Constitution” (US Code, tit 42, § 1983) and falls within the ambit of section 1983. "A citizen’s right to a vote free of arbitrary impairment by state action has been judicially recognized as a right secured by the Constitution” (Baker v Carr, supra, p 208).
We recently recognized the applicability of section 1988 in actions brought to enforce section 1983 in New York State courts (Young v Toia, 66 AD2d 377, supra; see, also, Shapiro, The Enforceability and Proper Implementation of § 1983 and the Attorney’s Fees Awards Act in State Courts, 20 Ariz L Rev 743).
. In view of the number of apportionment cases brought in Federal court pursuant to section 1983, the similarity in language of section 1983 and section 1 of article I of the New York State Constitution, the policy behind section 1988 which is to encourage the private citizen to take action as a "private attorney general”, and the fact this action is premised upon a constitutional claim, we conclude that attorney’s fees may be recovered in this context pursuant to section 1988 in a State court. Plaintiffs cause of action is embraced within the spirit of section 1983 and Special Term implicitly found a violation of this section (see La Raza Unida of So. Alameda County v Volpe, 440 F Supp 904).
We point out that the 1976 amendment to section 1988 applies retroactively to cases pending at the time of its enactment (Oct. 19, 1976) (Gore v Turner, 563 F2d 159; Wharton v Knefel, 562 F2d 550; Bond v Stanton, 555 F2d 172, cert den 438 US 916, supra; King v Greenblatt, 560 F2d 1024, cert den 438 US 916) and extends to cases alleging statutory violations
Although plaintiff’s claim may have merit, the question as to whether section 1988 applied to the instant case was neither argued before, presented to, nor considered by Special Term which erred in making the award of attorney’s fees on the grounds noted in its decision. The court was not called on to determine whether plaintiff was in fact a "prevailing party” in a section 1983 case (Buckton v National Collegiate Athletic Assn., 436 F Supp 1258; Parker v Matthews, 411 F Supp 1059, affd sub nom. Parker v Califano, 561 F2d 320), a prerequisite to awarding attorney’s fees pursuant to section 1988.
Accordingly, we reverse and vacate the award of attorneys’ fees without prejudice to plaintiff’s application for such an allowance under section 1988, if plaintiff is so advised, in which case a determination may be made on the appropriateness of the application to grant counsel fees and, if so, for the application of the proper discretionary rule.
Cardamons, J. P., Hancock, Jr., Callahan and Moule, JJ., concur.
Order unanimously reversed, without costs, and motion denied, in accordance with opinion by Schnepp, J.
. See Baker v Carr, 369 US 186; Avery v Midland County, 390 US 474.
. See Harradine v Board of Supervisors of Orleans County, 68 AD2d 298; Harradine v Board of Supervisors of Orleans County, 71 AD2d 1045.
. CPLR 909 provides that "[i]f a judgment in an action maintained as a class action is rendered in favor of the class, the court in its discretion may award attorneys’ fees to the representatives of the class * * * and if justice requires, allow recovery of the amount awarded from the opponent of the class”.
. Congress apparently felt that Alyeska left an anomalous gap in the Federal civil rights laws. Courts were authorized to award attorneys’ fees under several other civil rights statutes; however, under section 1983, which was meant to protect fundamental civil rights, attorneys’ fees were suddenly unavailable (US Code, Cong & Admin News, 1976, vol 5, pp 5908, 5911). With the passage of the Attorney’s Fees Awards Act of 1976, Congress sought to achieve consistency in the Federal civil rights law. (Note, The Civil Rights Attorney’s Fees Awards Act of 1976, 52 St John’s L Rev 562.)
. The relevant criteria in arriving at a reasonable fee award are amply defined by the courts (see Christiansburg Garment Co. v EEOC, 434 US 412; Johnson v Georgia Highway Express, 488 F2d 714; see, also, Code of Professional Responsibility, DR 2-106).
. Section 1983 provides: "Every person who * * * subjects * * * any citizen of the United States * * * to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured”. Section 1 of article I provides: "No member of this state shall be disenfranchised, or deprived of any of the rights or privileges secured to any citizen thereof’.
. Both State and Federal courts have concurrent jurisdiction over civil rights actions and cases alleging violations of section 1983 (see, e.g., Di Antonio v Pennsylvania State Univ., 455 F Supp 510; Young v Board of Educ., 416 F Supp 1139; Young v Toia, supra; Cooper v Morin, 50 AD2d 32; Clark v Bond Stores, 41 AD2d 620).