Warren E. Burger: We will hear arguments next in Hensley against Eckerhart. Mr. Boicourt, I think you may proceed when you are ready.
Michael L. Boicourt: Thank you. Mr. Chief Justice, may it please the Court, as oral argument is presented in this case today, the litigation is in its tenth year. The only issue remaining for resolution before this Court is one involving the attorneys' fees awarded by the district court and affirmed by the court of appeals. The case will require an interpretation and application of the Civil Rights Attorneys' Fees Awards Act of 1976, Title 42, Section 1988. On behalf of Petitioners, I urge the Court to adopt the principle that award of attorneys' fees under the statute should fairly and accurately reflect the extent to which a plaintiff has prevailed on the substantial claims in his case. I ask the Court to accept the principle that the Attorneys' Fees Award Act does not compensate a plaintiff in a civil rights case for his failures, and it does not penalize a defendant in a civil rights case for his substantial successes. On the facts, the district court approved in this case an attorneys' fee award of over $133,000. That represented 2,557 principal hours as found by the trial court. Again, that award was affirmed per curium by the court of appeals. No attempt was made by the district court to proportion the fee to reflect the extent to which the plaintiff succeeded on claims and the extent to which the defendants successfully defended, in effect, demonstrating that no constitutional deprivation had occurred with respect to certain claims in the lawsuit. The district court itself found in its opinion relating to fees that the defendants did prevail on some of the issues. Nevertheless, it awarded in practical effect fees for every hour spent by plaintiff's attorneys on the case without respect to whether they prevailed or lost on specific issues. This case involved a comprehensive--
Warren E. Burger: Would that cover frivolous claims made if they showed they spent the time on them?
Michael L. Boicourt: --Yes, Your Honor. I think there were a few claims in this case that because they were not abandoned prior to trial had become close to being frivolous by being presented in the courtroom. There were other claims in the case which were unsuccessful which I do not claim to you were frivolous. Nevertheless, they were unsuccessful. And Congress provided fees for prevailing civil rights litigants, not fees for merely asserting a civil rights claim.
Harry A. Blackmun: Would you give me an example of those you regarded as frivolous?
Michael L. Boicourt: Yes, Your Honor. I think by the time they got to the point in the lawsuit where they were trying to prove that defendants over-relied upon medication in controlling the patients in the forensic unit, that had become frivolous, because their own experts, all of whom had been contacted, employed some years in advance of the case, did not support the claim. They all came to the courtroom and testified there was no evidence of overmedication of patients. I think their failure to abandon that was frivolous.
Harry A. Blackmun: Any other claims besides that one?
Michael L. Boicourt: I think with respect to the mail policy, the fact that the mail policy of the forensic unit was amended in 1977... That was during the duration of the lawsuit. There was also some contemporary Eighth Circuit precedent which dealt with mail issues in the prison context. I think their failure to have abandoned that claim and to have presented it at trial when it was clearly... the mail policy was consistent with what was being done--
Harry A. Blackmun: I take it you are conceding at this point, however, that frivolity had not been attained up to trial.
Michael L. Boicourt: --Well, with respect to a couple of those issues, I think they become frivolous by the time the trial occurred. I am not taking the position that--
Byron R. White: They must have known what their experts were going to testify to.
Michael L. Boicourt: --That is my position. I would think they would, because many of these experts, again, had been retained some years in advance of trial.
William H. Rehnquist: How about the dismissal of Count 2 of the original complaint? The one that claimed that the forced performance of work if it had no therapeutic value violated the Thirteenth Amendment prohibition against involuntary servitude. It is my understanding that they accepted a voluntary dismissal on that.
Michael L. Boicourt: The district court accepted a voluntary dismissal after a substantial number of hours had been spent by both sides. Plaintiffs, I think, have suggested in their brief that their lawsuit had something to do with some voluntary action on the part of the defendants, but in real point of the fact, that motion for voluntary dismissal came very close after this Court's decision in National League of Cities versus Yuser. The Fair Labor Standards Act didn't apply to states. Again, this lawsuit involved a multi-claim attack on the Forensic Unit, Fulton State Hospital. Now, as that name implies, the Forensic Unit is a mental institution designed to provide care and treatment to dangerous mental patients, patients who for the most part have been involuntarily committed--
Thurgood Marshall: Excuse me, counsel. One point before that. Would you have the lawyer... wouldn't he have to keep books saying that today at ten minutes after 2:00 I am working on Point 3 of this case?
Michael L. Boicourt: --I think because--
Thurgood Marshall: Wouldn't he have to?
Michael L. Boicourt: --I think he should. He has the burden of proof, just like any--
Thurgood Marshall: That's what I thought. Well, wouldn't he spend all of his time bookkeeping?
Michael L. Boicourt: --I don't think so.
Thurgood Marshall: Suppose while he's working on Point 2 he finds an answer to Point 3?
Michael L. Boicourt: That will often occur, and I think--
Thurgood Marshall: And you have to keep books on that. Have you ever seen any books like that?
Michael L. Boicourt: --I have not seen any books like that in the Eighth Circuit, because he's going to get compensated no matter what he spent his time on.
Thurgood Marshall: My question was, have you seen any books that lawyers keep that they are working on Point 1 of Section C of Point 3 in the brief?
Michael L. Boicourt: I think they should be required as a general matter to indicate what specific area of their lawsuit time is being expended on as they keep their records. It is pretty easy to devote a sentence or a short clause to saying, preparing an expert for testimony on staff matters, and saying, researching the matter of the mail policy. I don't think that's an unreasonable burden.
John Paul Stevens: But the district judge did find... I don't know just what he did, but he said, "After a close review of the detailed time records of these two attorneys and an opportunity to review the work of both attorneys, the court concluded that the amount of time spent by Mr. Berkowitz and Mr. Bastian both in trial and in non-trial activities is reasonable and their efforts are not duplicative of others. " Doesn't that kind of... I don't know what the judge did, but doesn't it indicate he did look pretty closely at what their time had been spent on?
Michael L. Boicourt: I think he looked pretty closely to the records, Your Honor, but it was in the context of his attempting to follow a previous Eighth Circuit precedent which he believed foreclosed him from reducing the fee because of unsuccessful claims. I think that was more addressed to the matter of duplication of effort among counsel.
John Paul Stevens: Does he say that he didn't think he had the authority to reduce it? He didn't give any enhancement, and he did chop off about 300 hours of the youngest lawyer in the group. Is there anything in his opinion that says he thought he didn't have the power to chop off a pert of the fees if he thought... you know, it was basically unsuccessful?
Michael L. Boicourt: Well, I think when he addressed that issue he cited directly language from opinions out of the Eighth Circuit, and somewhat dissimilar cases, but the language clearly indicated a position of the Eighth Circuit that all hours were to be compensated, and I believe that the opinion read as a whole indicates that he was following that precedent.
John Paul Stevens: I have read its, and I just didn't get that out of it, to be honest with you, that he was under the impression the Eighth Circuit required compensation for all hours regardless of how useless the lawyer's time might have been. I don't think that's a fair reading of the opinion.
Michael L. Boicourt: I think it's a fair reading in this regard, Your Honor. What the judge did, it is very clear from the entire record of this case that there were failures, substantial failures on behalf of plaintiff's attorneys, but once that one reduction was made for one attorney who was inexperienced, all hours claimed, every hour claimed that was requested was compensated, and he made no attempt to demonstrate that in any way the extent to which successful claims on behalf of defendants should have been taken into account. He in effect rejected the theory which I presented to him, I think, because of the Eighth Circuit precedent which he followed.
John Paul Stevens: Is there any... What is the Eighth Circuit precedent that most clearly states what you say their view of the law is on this?
Michael L. Boicourt: The most clear Eighth Circuit precedent is Brown versus Bathke, which involves what I think creates a distinction which should be made. Brown versus Bathke has language of apparently very adverse character to our position, but it involved an alternative legal theory case as opposed to a multiple claim case. That is, several different legal theories of recovery all in support of a common form of relief.
John Paul Stevens: Right. I think you'd have a stronger... I would understand that as a stronger... but does he cite that case, the district judge?
Michael L. Boicourt: Yes, sir.
John Paul Stevens: Yes, he does, I see, on Page A-11.
Michael L. Boicourt: Again with respect to the issues which were litigated in the case, pursuant to local rules, counsel on the morning the trial of this case began agreed there were 24 issues, substantial claims which remained to be litigated in the case. I will freely admit with respect to some of those 24 claims that they were related, cannot be substantially distinguished.
Sandra Day O'Connor: Mr. Boicourt--
Michael L. Boicourt: Yes, Your Honor.
Sandra Day O'Connor: --should we really look, though, at the ultimate relief sought in the broad terms of the complaint, or at a pretrial order list of issues in seeing if the attorneys' fees allowed were reasonable?
Michael L. Boicourt: What I was attempting to do, Your Honor, is demonstrate... I think on the face of the opinion of the court on the merits, the district court, it is clear that there were some substantial failures. It is made even more clear by the pretrial order filed on the day before the case began, because in many instances the court did not take up or consider its opinion on the merits. Certain claims which were made and proof were offered on those claims at trial, and the court just ignored them in its opinion. I think that demonstrates the plaintiffs failed to prevail on those particular claims and that their time should be discounted. Now, with respect to these 24 claims, and again, some of them were related, most of them, I submit, were not, the court ordered relief on six. I believe that each of these claims or the vast majority of these claims were truly separable, fractionable, that they would have served as an independent basis for a one-issue lawsuit. For the claims that lost, that would have been an unsuccessful one-issue lawsuit, and no attorneys' fees under any interpretation of the statute can be awarded to a party who does not prevail at all. The principle which I am trying to get the Court to adopt I think is consistent with sound public policy. Fee shifting makes sense only where there has been a violation of civil rights. Only when it is found that a defendant has deprived another person of a civil right should he be required to pay his opponent's counsel for substantiating that claim. There is no question that the Civil Rights Attorneys' Fees Award Act was intended as an inducement to civil rights litigation. I assume that my opponent will argue at great length this afternoon that the theory that the Petitioners espouse would deter civil rights litigation, but the Awards Act, the Fees Act will encourage exactly that kind of litigation which it rewards. If the merit of a claim is not going to be the key factor in a judicial determination as to whether fees should be rewarded... awarded for time spent establishing that claim, then I submit to you that the merit of the claim will not be the key factor in the decision of counsel whether to include that claim in his original litigation or whether to abandon that claim in an attempt to narrow the scope of his lawsuit before it comes to trial. As a result--
Sandra Day O'Connor: Do you think that the statute prohibits giving attorneys' fees for the so-called catalytic results if the lawsuit is filed and relates to several claims, and before it comes to trial the defendants change the practice, and it isn't necessary to go to trial on it? Under the statute, can attorneys' fees be secured for those results?
Michael L. Boicourt: --Yes, I believe they can, Your Honor. If the burden of proof is carried by plaintiff's counsel and his lawsuit that has served as a catalyst to voluntary action by defendants, I think the time reasonably expended to accomplish that voluntary action should be compensated, but only that time reasonably expended up until the voluntary action took place. If he continues to litigate that claim after the voluntary action and up through the end of trial, the end of the litigation, the time after that voluntary action takes place should not be compensated. I submit that the rule in the Eighth Circuit which in effect results in all hours being compensated regardless of the relative success of the parties in the various claims at issue would and does create an imposition on the courts. It must encourage frivolous pleading and congested court dockets. One of the most important functions of a district court judge is to narrow the scope of litigation in front of him, to get the parties to agree to make the case as workable and as presentable in the courtroom as is possible. There is no incentive for a civil rights litigant in the Eighth Circuit to narrow the scope of his issues, because he will be rewarded for all time expended on the case, regardless of how many unmeritorious, unsuccessful issues are included in his case. I think that frustrates the ability of the trial judge to effect a narrowing of the issues, to make case workable... make cases workable, and--
Thurgood Marshall: Is there anything in this judge's opinion that said he paid him for working on frivolous matters?
Michael L. Boicourt: --No, there is nothing in the decision of the judge that says that.
Thurgood Marshall: Well, where do you get your basis for your argument?
Michael L. Boicourt: I suggest to the Court that there were some issues that at the time of trial had become frivolous. I don't take the position that because issues are not frivolous, are of substance, that that would change my position, that the Act requires or provides for compensation for prevailing, for winning. Even if the issues were not frivolous, were substantial, but he lost, he still should not be paid for his time spent on it.
Thurgood Marshall: Did the judge say he paid them for the lost ones?
Michael L. Boicourt: Yes, sir. The judge said that some issues were won by plaintiffs and some issues were won by defendants, and he paid them for all their hours.
Thurgood Marshall: My question was, did the judge say, I am paying you for the lost ones?
Michael L. Boicourt: No, Your Honor. I wouldn't expect the trial judge to say that. He doesn't intend to be reversed.
Warren E. Burger: Can anyone looking at the record of the time identify accurately the items for which you say no fee should be allowed?
Michael L. Boicourt: I think in this particular case because time records were not kept which were in any way related to various claims of the course of the lawsuit, it would be difficult for anyone to do that except the trial judge. That is why I don't ask this Court to find what a reasonable fee should be in the case, or determine how many issues I won and how many issues my opponents won. I ask that the case be remanded so the district court can do that, that he had control of the case throughout the entire years of this litigation--
Byron R. White: Has the issue come up in other circuits?
Michael L. Boicourt: --Yes, Your Honor, there has. That is one reason why I think it is very important that some position be taken by this Court.
Byron R. White: What have other circuits said?
Michael L. Boicourt: Well, that's interesting. Including the Eighth Circuit, the Fifth and Sixth Circuits have a line of cases with language very similar to the Eighth Circuit, contrary to my position. With respect to four circuits, different panels within the circuit have disagreed on the issue on their face, but within the circuit there are conflicts. With respect to the District of Columbia Circuit and four others, the cases support my position. This is a classic example of a true split in the circuits.
Byron R. White: So there are express examples of courts paring down, sorting the case out as between what is won and what has been lost.
Michael L. Boicourt: Yes, Your Honor. The preponderance of the total number of cases support my position, that attorneys' fees are not to be awarded for unsuccessful claims, and it is the duty of the trial court to determine how successful the litigants were and to fashion an award which fairly reflects that success.
Byron R. White: So that if there has been part won and part lost and the district court doesn't go through that process in the circuits that agree with you they set it aside and tell him to do it.
Michael L. Boicourt: Yes, Your Honor. I think that is the case.
Warren E. Burger: I understand you to say you are not limiting this to frivolous claims, that your emphasis is on successful claims.
Michael L. Boicourt: Successful--
Warren E. Burger: The claims on which relief was granted.
Michael L. Boicourt: --Yes, Your Honor. I don't think that my... I don't want to give the impression my argument rises or falls with respect to whether a particular claim was frivolous. That is not my point at all. It is whether or not it was successful, because the Fees Act rewards prevailing civil rights litigants. It does not reward someone merely for asserting a civil rights claim.
Thurgood Marshall: What would you say the position is that if somebody claims they denied their civil rights, and they bring a lawsuit, and the other side gives in immediately? Would that be a successful lawsuit?
Michael L. Boicourt: Yes, Your Honor.
Thurgood Marshall: Completely so?
Michael L. Boicourt: If he gives up completely with respect to all claims, yes.
Thurgood Marshall: Well, then, if he goes to trial, then you have to prorate it. But if he gives up up front, you don't prorate.
Michael L. Boicourt: If the--
Thurgood Marshall: Because I am warning you, my next question is, if you give up halfway through, will you split it in half?
Michael L. Boicourt: --Any time remedial action, whether ordered by the court or voluntary on behalf of defendant is the direct result of the lawsuit, the hours expended in establishing that relief should be compensated. I don't argue that position.
Thurgood Marshall: Well, how do you know it is brought on by the lawsuit or not?
Michael L. Boicourt: Well, that is--
Thurgood Marshall: I have seen cases settled on the day of trial that have been in preparation for six years. You would allow them to receive fees for their preparation even if you didn't go to trial, would you?
Michael L. Boicourt: --Yes, if the preparation was reasonably related to the matter of their successes, I would allow the compensation.
Thurgood Marshall: But you wouldn't after trial.
Michael L. Boicourt: Not if they lost, no. In this case, they substantially lost. They lost a lot more than they won, and I don't see why my client should pay their attorneys for unsuccessfully suing them.
John Paul Stevens: May I ask you, I have got the Brown opinion in front of me. I notice the Eighth Circuit does say that the issues which are clearly frivolous, that are manufactured, do not represent time which has been reasonably expended on a matter, and thus any time claimed for them can be properly disregarded by the court. So that is the rule of the Eighth Circuit. You disregard time spent on frivolous claims.
Michael L. Boicourt: That is correct, Your Honor.
John Paul Stevens: And you don't question that. But than I gather this is the sentence that you take issue with. "Attorneys' fees for a claim which is reasonably calculated to advance a client's interest should not, however, be denied solely because that claim did not provide the precise basis for the relief granted. " That is what you want us to change.
Michael L. Boicourt: Yes, as it is implied for a multiple claim case. Yes, Your Honor. And again--
John Paul Stevens: Even though it was a reasonable... the reasonable work of a lawyer who was conscientiously trying to represent his client, for which he would normally be paid by a private client. You would say he should not be paid in the civil rights context.
Michael L. Boicourt: --That is correct in the multiple claim case. Conscientiousness is not to be rewarded.
John Paul Stevens: Well, the test is reasonably calculated to advance a client's interests.
Michael L. Boicourt: And again, that case involves the alternative legal theory situation. That is, more than one theory or cause of action in support of common relief. So I think it is very important that the distinction be made between that and this multiple claim lawsuit, in which the relief depends on the nature of the issue itself and the nature of the claim.
John Paul Stevens: Well, but the court says it should not be denied solely because that claim did not provide the precise basis for the relief granted. And your view is that it should be denied solely because it did not provide the precise basis for the relief granted. Is that right?
Michael L. Boicourt: That would not be the case only if the plaintiff could demonstrate his burden of proof that the time spent was reasonably related to securing the actual relief awarded.
John Paul Stevens: Well, I'm not sure you've answered my question. Is it your view that the compensation should be denied solely because the claim did not provide the precise basis for the relief granted?
Michael L. Boicourt: In the multiple claim situation, yes, Your Honor. Again, that was an alternative legal theory case, and it has nothing to do with the type of circumstances we have here. Not only is the Eighth Circuit rule an imposition on the courts that will lead to more court congestion. It is an imposition on the resources of defendants. If there is no incentive for the plaintiff's attorney to narrow the scope of his litigation when pled or when prepared for trial, the defendant in civil rights litigation, the institutions, the programs, the statutes that get sued in this type of litigation, have to expend vast amounts of resources to defend these cases in the courtroom. It is very hard to negotiate claims when the plaintiff's attorney knows that all hours he expends on his total case are going to be compensated, regardless of his success on individual claims. The shotgun approach to lawsuit is a drain on the resources of states and other types of people that have to defend these types of lawsuits. The parameters of civil rights litigation must not be contained solely within the imagination of a plaintiff's attorney. There must be some other control over that litigation, and if these are going to be awarded for all hours, who is going to exercise the control? It would be very difficult for the trial judge to narrow that case because there is no incentive for the plaintiff's attorney to do so. In addition, attorneys' fees do cause a penalty to be levied against defendants. I think that was the purpose of Congress in enacting the Attorneys' Fees Award Act, and in the context of other attorneys' fees provisions this Court has found that Congress intended to penalize defendants who deprive others of their civil rights. But when a claim is successfully defended, when there is found to have been no deprivation of anyone's civil rights, why should the defendant be required to accept the burden of his adversary's fees? That is not consistent with that purpose. Otherwise, the prevailing party language of the statute means nothing. Now, again in this case there were truly fractionable claims, claims that could have been one-issue lawsuits which were unsuccessful. For example, a one-claim lawsuit on the validity of the defendant's mail policy would have been unsuccessful. No fees. A one-issue lawsuit on the claim that defendants overmedicated their patients would have been unsuccessful. No fee. An unsuccessful lawsuit on the claim that defendant's staff was constitutionally inadequate would have been unsuccessful. Why should a fee attach to these totally unsuccessful constitutional claims merely because they were under the umbrella of a lawsuit which included some other claims which resulted in limited relief being afforded? It is an inequitable result. In addition, the statute requires the exercise of discretion. It says a court may in its discretion award to the prevailing party a reasonable attorney's fee. Under the Eighth Circuit rule, there is no discretion. If all that must be shown is that one claim was successful, then all hours will be compensated at the prevailing hourly rate. Where is there room for the trial judge to use his discretion? Where is there authority for him to fashion an award which is fair to all parties, and reflects the extent to which a plaintiff actually demonstrated--
Byron R. White: Well, I take it your position is that the trial judge has no discretion to pay... to award fees on a single issue claim that could have been a separate lawsuit on which there is a loss.
Michael L. Boicourt: --I think it would be an abuse of discretion for him to award a claim--
Byron R. White: Yes, so I have no discretion.
Michael L. Boicourt: --Excuse me.
Byron R. White: His discretion is just to award a reasonable fee on issues that... on which the plaintiff prevails.
Michael L. Boicourt: But that is where he can actually exercise his discretion to make that determination.
Byron R. White: I understand. I understand, but your position is, there is no discretion to award fees for... on issues that the plaintiff does not prevail on.
Michael L. Boicourt: Unless he can show that the hours spent--
Byron R. White: Yes.
Michael L. Boicourt: --were reasonably related to the actual relief ultimately granted--
Byron R. White: That is impossible in the examples you gave us, these single-issue claims, these claims that could have been single-issue lawsuits.
Michael L. Boicourt: --I don't think it would be possible for them to claim, yes, that their proof or that their time expended on the mail policy had anything to do with whether or not there was sufficient privacy--
Byron R. White: So your position is that the judge had absolutely no discretion to award any fees with respect to that claim.
Michael L. Boicourt: --That is correct. I would like to reserve the rest of my time for rebuttal, please.
Warren E. Burger: Mr. Eichner, let me see if I can clarify some of these things for myself with a hypothetical. This extends the question Justice White was just putting. Suppose you have a hypothetical case with three claims, and two of them are successful and one isn't, and the time records which most lawyers keep and all lawyers should keep if they want to get paid show that the time was spent about equally on the three, just to make the arithmetic simple here. In your view, are the lawyers entitled to recover on the ones on which they did not prevail?
Stanley J. Eichner: The answer to that question, Mr. Chief Justice, depends on whether we are talking about a situation such as we had here, where there was one overall broad claim, that is, a constitutional right to treatment, and the specific aspects under that broad claim, and those subparts being related to each other in part and parcel of the same claim, or were they perhaps three totally separate claims which didn't necessarily relate to each other.
Warren E. Burger: Well, let's assume at least, whether they are totally separate or not, that they are readily identifiable, or not readily, but reasonably identifiable.
Stanley J. Eichner: Well, I... I have to repeat that it comes back to what extent those claims relate to each other or not. If they were three separate actions that could have been brought as three totally separate lawsuits, and the work involved in Claims 1 and 2 wouldn't necessarily relate to the preparation and preparing of Claim 3, then--
Warren E. Burger: Let's help it out by saying the complaint has Count 1, Count 2, Count 3, and that their interrelationship is limited to the fact that they involve the same people and the same institutions.
Stanley J. Eichner: --Well, again, it is going to be a factual determination by the district court to what extent do those varying claims relate to each other.
William H. Rehnquist: How about Count 2 of the original complaint, the involuntary servitude count? Would you say that that was in the severable category with respect to the other counts of the complaint, or do you think that was part of your overall umbrella?
Stanley J. Eichner: That was... I believe you are referring to Count 3, which was the uncompensated labor, Your Honor.
William H. Rehnquist: It says... at least where I am looking at the Joint Appendix on Page 4, it says Count 2. Perhaps there is a--
Stanley J. Eichner: In any case, the uncompensated labor claim was a separate claim. It is unlike what went to trial in this lawsuit. What went to trial in this lawsuit was Count 3, which was the claim that plaintiff's constitutional right to treatment was being violated, and then within that claim there are various specific subparts and aspects, but the uncompensated labor, which, by the way, was in a time period prior to when we are seeking fees for, would be considered in that case a separate claim. The mere fact that it had as its subject the same institution doesn't necessarily mean that you get time for all of it. It really ties again, coming back to the question presented by the Chief Justice, what is the extent of interrelatedness and interconnectedness between the various claims.
William H. Rehnquist: --But here you received some compensation for work on Count 2, did you not? I am referring to Page 228 of the Joint Appendix. There is an entry for May 29th, '75, research and drafting of plaintiff's memorandum of law on the applicability of the Eleventh Amendment to plaintiff's claim for damages in Count 2. I merely raise the question, there are several complaints in the Joint Appendix. At least three.
Stanley J. Eichner: That is correct.
Byron R. White: Maybe that's where the confusion is on Counts 2 and 3.
Stanley J. Eichner: Well, the specific answer to Justice Rehnquist's question is yes, there was time on the uncompensated labor claim which was after 1975. We didn't ask for fees prior to '75, but the work after January, '75, we sought fees for, and the example that you just cited was work which we sought and obtained.
William H. Rehnquist: But if you agree that was severable, and you took a voluntary dismissal of it, how under your own theory of how the fee statute should be administered were you entitled to be paid for that particular item of work?
Stanley J. Eichner: Because it is an incorrect understanding that we were wholly unsuccessful on that. We obtained minimally catalytic relief on that claim. There were two parts to it. One was the injunctive claim which sought that the defendants compensate the residents of Fulton State Hospital for labor, and that was effectuated by the lawsuit. There was a second part which was the back wages claim. That is the part which was dismissed, Your Honor. There are two parts to it.
Lewis F. Powell, Jr.: Counsel?
Stanley J. Eichner: Yes.
Lewis F. Powell, Jr.: I will put an easy question to you that may clarify your position. Assume you had a 1983 suit against prison officials, and the complaints alleged were that there was double bunking and that the law library was inefficient. You won on one of those issues. You submitted a bill based on 1,000 hours. Should there be any apportionment or not?
Stanley J. Eichner: I don't wish to or intend to duck the question, but quite honestly, I am unfamiliar enough with prison litigation to know which... how much those... the preparation, trying, and litigating of those claims would necessarily relate to each other, and I... I would have to come back to, that's the real issue, how much do those two interrelate. For example, in this lawsuit, time spent on the overmedication claim, on which there was not relief, was related both from a theoretical point of view as well as the actual trying of the lawsuit to the physical environment, where we obtained significant relief.
Lewis F. Powell, Jr.: Have you read our opinion on Romeo last term?
Stanley J. Eichner: Yes, Your Honor.
Lewis F. Powell, Jr.: Do you think the lawyers in that case should win 100 percent on everything they claimed? They lost on their major contention in this Court. I think you could assume they did. We reversed the court below on right to treatment. They won on some issues. If you are not familiar with it, you can pass that up. What I really would like to ask you--
Stanley J. Eichner: Your Honor--
Lewis F. Powell, Jr.: --Do you want to answer that?
Stanley J. Eichner: --Yes and no. I want to answer it in that the analysis, that is, the answer to the question... Congress intended a two-part analysis determining whether or not a person is entitled to a fee. The first part is a determination whether or not they are prevailing parties within the meaning of the Act. Once you find that the party is a prevailing party, there is a separate second analysis, so in the Romeo case, I can't answer specifics because I'm not familiar with it enough, but the first threshold test is whether or not there are prevailing parties within the meaning of the statute. The prevailing party issue is not presented in this case. It was not appealed, and the issue is whether... what time is reasonably expended in this lawsuits, and whether the district court awarded the all time... in conformity with all time reasonably expended standard. And so the answer to the question in Romeo would be, you would have to go through that two-step process. One, are there prevailing parties, and two, assuming that they were, you would exclude compensation for time which was in bad faith, clearly meritless, or three, wholly separable or distinguishable that they in no way contributed to the ultimate result achieved.
Byron R. White: Do you think the court, the district court in this case went through this catechism that you just--
Stanley J. Eichner: Yes, Justice White.
Byron R. White: --Where do you find that in its opinion?
Stanley J. Eichner: The district court began with an analysis of whether or not plaintiffs were a prevailing party within the meaning of the statute.
Byron R. White: Well, sure they did, and then I take it that they said as long as the party receives some of the relief requested, the status as a prevailing party will not be jeopardized, and then they just... and rejects the suggestion that he should put aside any of these claims. Was there any finding that they were interrelated?
Stanley J. Eichner: Yes, implicitly, Your Honor, because--
Byron R. White: Implicitly? Where is it even--
Stanley J. Eichner: --I would like to explain the answer to you, which is that in the portion of the fee decision where the district court examined the amount of the fee after finding the prevailing party issue, the district court said, defendants have argued for a mathematical mechanical approach, which fails to take into account the interrelatedness and interconnection of the various claims. Presumably--
Byron R. White: --That may well be true, but--
Stanley J. Eichner: --by--
Byron R. White: --the court didn't go on and say that these are interrelated claims.
Stanley J. Eichner: --By rejecting an approach which doesn't take into account the fact that the claims are interrelated and interdependent, I would submit that it is clear that the court was doing... was finding that they did interrelate and interconnect. The issue in this case, presented in this case is whether the district court complied with Section 1980(a) in its fee award; specifically, whether the court was correct when it analyzed the case as a whole and looked to the ultimate results achieved, thus rejecting the mechanical and mathematical approach urged by defendants. Resolution of that question involves a narrow question or issue of statutory construction. That undertaking begins with the statute itself. The Fees Act is a broad Congressional charter authorizing courts to award a prevailing party a reasonable attorneys' fee as part of costs. Congress accompanied this statute with a substantial legislative history consisting of both the Senate and House report, both of which have been authoritatively cited by this Court. In the context of attorneys' fee awards, the legislative history is especially instructive in light of this Court's holding in Alyeska that the circumstances under which attorneys' fee awards are to be awarded and the range of discretion of courts in making those awards are matters for Congress to determine. Congress... In the legislative history, Congress anticipated a number of issues which would accompany a fee shifting statute, and provided specific guidance for resolution of those issues. In a section of the legislative history which addresses the method of computing the amount of the fee, Congress explicitly stated what the proper standard was to be. "In computing the fee, counsel for the prevailing party should be compensated, as is traditional with attorneys for fee-paying clients, for all time reasonably expended on a matter. " Congress provided further direction on this issue by stating that proper fee computation had taken place in two specific cases, the Davis versus County of Los Angeles case and the Stanford Daily versus Zirker case. Those cases established that the all time reasonably expended standard does not permit apportioning the fee award to only winning claims. In the Davis case, which was a Title 7 suit, defendants had argued for a proportional fee reduction. The court specifically held it was not legally relevant that a certain amount of limited time and effort was devoted to issues which were either not litigated or upon which they were not successful. Instead, the court looked to the ultimate results achieved, and found that plaintiff was entitled to fees for all time reasonably expended. In the Stanford Daily case, the court similarly disapproved of a proportionality analysis and rejected defendant's argument that there should be a reduction in fees for the hours expended on unsuccessful work. The court held that although fees were to be denied for clearly meritless claims, they were to be granted for legal work reasonably calculated to advance their client's interest.
Byron R. White: That is certainly a different test than you suggest to us.
Stanley J. Eichner: I think it is the same test, Your Honor. We are saying that the proper test is looking at the case as a whole and awarding fees for all time reasonably expended, and in this case--
Byron R. White: Well, that isn't what... I thought you said you were only supposed to award fees for time spent on successful claims and on other claims that are interconnected or interrelated.
Stanley J. Eichner: --What I said is that--
Byron R. White: That's quite a different test than awarding time spent that is reasonably calculated to advance a client's interests.
Stanley J. Eichner: --Once somebody is found to be a prevailing party, they are entitled for all time reasonably expended, and that three-part explanation that I did in answer to your question was what goes into a finding of what time is reasonably expended.
Lewis F. Powell, Jr.: Counsel?
Stanley J. Eichner: Yes.
Lewis F. Powell, Jr.: In this case, you requested an enhancement fee over and above the multiplication results that hourly rates would provide. The district judge did not allow it. Would you view that as a two-way street so that hourly charges that arguably were expended reasonably by counsel but nevertheless produced a poor result should be discounted?
Stanley J. Eichner: No, Your Honor. I believe that--
Lewis F. Powell, Jr.: Do you think it ought to go only up, but not down?
Stanley J. Eichner: --I believe the district court found that the reason for not awarding an enhancement factor was that the same factors and considerations as the Johnson factors which go to enhancement were already taken into account in the reasonable fees, so that there was no reason to repeat those same factors and award upwards.
Lewis F. Powell, Jr.: Suppose--
Stanley J. Eichner: This case, I don't believe presents the issue of enhancement of fees.
Lewis F. Powell, Jr.: --You would never discount. While you are thinking about that, let me ask you this. Suppose after you brought this lawsuit, you had so impressed counsel for the hospital that they agreed to everything you requested before you had even taken discovery depositions, and you had only recorded 50 hours of time. Would you be entitled to... Suppose you charged $200 an hour. That is $10,000, I think. Was that the limit... Would that be the limit of your fee?
Stanley J. Eichner: The limit of the fee would be whatever hourly rate you were asking for for those number of hours.
Lewis F. Powell, Jr.: Right, that would be $10,000 in this case, and you've won a victory that was probably worth millions of dollars, perhaps?
Stanley J. Eichner: Yes, because it relates to... the method of awarding fees relates to the number of hours, and I don't think--
Lewis F. Powell, Jr.: You are saying results are of no importance.
Stanley J. Eichner: --The results are important. They are one of the Johnson factors. But the determination of reasonable fee is tied to the number of hours.
William H. Rehnquist: Well, Mr. Eichner, what was it you were awarded in this case, something like $130,000?
Stanley J. Eichner: $133,000, Your Honor.
William H. Rehnquist: Well, what if, as Justice Powell has hypothesized, the defendant agreed to do, right after you had filed the complaint and the memorandum of authorities in opposition to a summary judgment, because the counsel for the state was so impressed by your arguments, he said, well, I'll give you A, B, C, and D, which turns out to be exactly what you ultimately got after years of litigation? Wouldn't you be entitled to something more than just hours spent, if, kind of in a rather dramatic legal move, you get a whole lot without spending a lot of time?
Stanley J. Eichner: Well, I come back to the same point. I think that the results obtained are one of the Johnson factors, and the district court considered that, but I think the fee is generally tied to the number of hours. Congress's citation of the fee computation in the Davis case and Stanford Daily case endorses a two-step process for determining reasonable attorneys' fees. As I said before, first is whether or not the person is a prevailing party or not, and once they are found to be a prevailing party, the second portion of that two-step process is a look at the case as a whole to see what time was reasonably expended. Now, legal sources are considered reasonably expended unless they are brought in bad faith, spent on clearly meritless claims, or devoted to claims so wholly unrelated, so distinguishable and separable, that they in no way contributed to the ultimate result achieved. The district court's fee analysis in this case is fully consistent with the standard provided by the Act and the legislative history. The court analyzed whether plaintiffs were a prevailing party, and found that based... looking just at the court order of relief, there was substantial enough relief to find that plaintiffs were the prevailing party, so much so that the court did not feel it necessary to look at those issues which were mooted prior to trial. Secondly--
John Paul Stevens: Mr. Eichner, can I interrupt you with a question? Do you think the standard that the district judge followed in this case or one who follows the 12 Johnson factors is any different from the standard followed in fixing fees, say, in an antitrust case, or in a trust case, all sorts of cases where courts fix fees? Do you think this is a special standards, or is this just the regular standard?
Stanley J. Eichner: --I think the process is generally the same. I think that the civil rights area is special to some extent, because Congress has singled that out as a particularly important place for vigorous enforcement of civil rights, and found that the award of attorneys' fees was particularly tied to the enforcement of civil rights, and therefore directed the courts to use the broadest and most flexible standards to ensure the enforcement of the civil rights.
John Paul Stevens: But do you think that the award given in this case was more liberal than would have been appropriate in any other kind of litigation?
Stanley J. Eichner: No, I don't believe that the award in this case was more liberal at all. I thought you were asking whether it is generally the same.
John Paul Stevens: I frankly don't see much difference between the Johnson factors and factors I run into in countless other situations.
Stanley J. Eichner: No, there is... there is a difference of views within the circuits between the so-called Johnson factors and the Loadstar analysis, and various courts have been critical of the Johnson factors because they find them not that precise and hard to work with, and they have gone to a Loadstar analysis. That issue is not presented in this case, and regardless of which approach you use, that is, whether you use Johnson or Loadstar, an issue which needs to be determined prior to deciding which approach is going to be the determination of what constitutes compensable hours, and that is what the issue is in this case, and that needs to be... that's an issue which must be decided prior to employing either one of those standards. We aren't necessarily arguing for the Johnson factors per se. We would suggest that that is one permissible approach. It is the factors which were specifically endorsed in the legislative history, and the district court's employment of the Johnson factors was correct. It was not incorrect. After the district court had resolved the prevailing party issue, it then turned to the amount of the fee. Defendants had argued for an automatic across the board reduction in fees, suggesting that the amount of the fee should be tied to the amount of court-ordered relief. The district court properly rejected those suggestions, finding that such an approach was improper for a number of reasons, that it was... that is, it was incapable of giving consideration to the relative importance of issues. It doesn't address the interrelation of issues, the difficulty of identifying issues, nor the extent of prevailing on various issues. Instead, the court looked to the Johnson factors to analyze the case and specifically the results obtained factor of Johnson to analyze the ultimate accomplishments of the case as a whole. The district court realized that in the seamless fabric of those accomplishments, that is, vindication of plaintiff's constitutional rights, and substantial changes in the treatment environment, no time was spent on clearly meritless or unrelated claims. By looking at the case as a whole and evaluating the claims within the context of the ultimate results achieved, the district court exercised discretion in the manner intended by Congress. With that as a background, let's examine what the results were of this lawsuit. First of all, plaintiffs had to establish that there was a constitutional right to treatment. Defendants had vigorously fought against it, arguing that, one, there was no such a right, and two, to the extent that such a right existed, it would be inapplicable to this class of plaintiffs. The court found the existence of such a right, and then proceeded to analyze the six aspects of the treatment environment policies and conditions. The court awarded court order relief on five out of six aspects: physical environment; individual treatment plans; least restrictive environment; visitation and telephone; and seclusion and restraint. In view of the substantial relief that plaintiffs really did accomplish in this lawsuit, it is easy to understand why the district court as a... found that, "The significance of this case cannot be measured in dollars and cents. " "It involves constitutional and civil rights of the plaintiff class, and resulted in a number of changes regarding their conditions and treatment at the state hospitals. " "Not only should plaintiffs be considered prevailing parties within the meaning of the statute, they are parties who have obtained relief of significant import. " "Plaintiff's relief affects not only them, but numerous other institutionalized patients similarly situated. " It is also important to point out that not only is the proportionality formula unsupported by the applicable law, but it discourages precisely the zealous representation which the Fees Act seeks and the Code of Professional Responsibility requires. As pointed out and argued in some detail in the amicus brief filed by the American Bar Association, under the Code of Professional Responsibility, attorneys are required to represent clients zealously within the law. If the case is novel or complex, it is difficult to predict which of several good faith arguments plaintiffs would ultimately prevail upon, and therefore to represent a client zealously and ethically, counsel must explore various aspects of the case, develop all the evidence, and present supportable issues to the court. To reward only those successful claims undercompensates the necessary early explanatory stages of the lawsuit, invites overly conservative tactics, and would prohibit high risk but deserving actions entirely. Petitioner's narrow construction penalizes counsel for acting in conformity with the canons and zealously pursuing the client's interests. Not only has the state argued for an unsupportable standard, they have also, we believe, mischaracterized some of the facts in this lawsuit. Over and over again, they have made statements that plaintiffs prevailed... lost on more things than they won. Without reciting the long list of the accomplishments, I would simply refer the court to the chart which begins on Page 25 of our brief, which analyzes in some detail the claims of constitutional violations that were in the complaint, and then compares those claims with the relief actually ordered by the court. Coming back to the ethical issue involved, as some courts have noted, it hardly furthers the mandate to use the broadest and most flexible remedies available to us to enforce the civil rights law if we so directly discourage innovative and vigorous delving in a changing area of the law. That mandate is best served by encouraging attorneys to take the most advantageous position they can that is possible in good faith with respect to their clients. Defendants have urged adoption of what they call a standard principle to guide the lower courts in fashioning fees under Section 1988. The appropriate standard and method for applying the Fees Act has already been articulated and delineated by Congress in the Act and its legislative history. In making the fee award in this case, the district court acted in consonance with the standard and method of analysis intended by Congress. Unless there are any further questions, that is the presentation.
Warren E. Burger: Thank you, Mr. Eichner. Do you have anything further, Mr. Boicourt?
Thurgood Marshall: I have a question that is tangential. I don't think it matters to the case. Did you find out in the regular equity cases in state or federal courts any instance where counsel fees were questioned on appeal? Not in a civil rights case.
Michael L. Boicourt: I'm not sure I really researched that subject. I have been looking at counsel fees in civil rights cases.
Thurgood Marshall: That's all right. I was just wondering. It doesn't matter at all to me.
Michael L. Boicourt: I want to briefly discuss the matter of legislative history which has been discussed by my opponent this morning. Congress established or set forth, said it was passing Section 1988 for two purposes, to attract competent counsel to civil rights litigation and to avoid windfalls to attorneys. Now, competent counsel hopefully will competently plead and competently narrow the scope of their litigation before it gets into the courtroom. The Act has secured that purpose. Counsel are being attracted. Before 1976, there was no provision for shifting of fees. More importantly is the matter of windfalls to attorneys. I submit that an attorney who tries to establish a civil rights claim and fails does not succeed, loses. The result is the court... or the defendant is vindicated with respect to that claim. If he is compensated for his hours spent on that claim, he is receiving a windfall, and Congress said that was one of the purposes of the Act to avoid. We also discussed the language in the legislative history that says counsel for a prevailing party should be paid is traditional with attorneys compensated by a fee-paying client. Now, in the first place, it says for a prevailing party, and my position obviously is that first you have to prevail on the claim to be a prevailing party for attorneys' fees purposes, but the same argument was presented to the District of Columbia Circuit in Copeland versus Marshall, and their response was, and I quote, "It does not follow that the amount of time actually expended is the amount of time reasonably expended. " "In the private sector billing judgment is an important component in fee setting. " That court concluded that time spent on non-prevailing claims should not be compensated.
Warren E. Burger: Thank you, gentlemen. The case is submitted.
Speaker: The Honorable Court is now adjourned until Monday next at 10 a.m..


Warren E. Burger: We’ll hear arguments next in Number 548, Ely against Klahr. Mr. Shea, you may say precede whenever you are ready.
Philip J. Shea: Thank you. Mr. Chief Justice and may it please the Court. The issue raised by this appeal that a three-judge District Court sitting in Phoenix, Arizona by its decree of May 19, 1970, abused its discretion and committed error by refusing to assure a preliminary injunction to enjoin the operation of the admittedly unconstitutional reapportionment plan and the reapportionment was before the court enacted by a special session of a state legislature and signed into law on January 22, 1970. As in all prior apportionment statues before it, it stubbornly clung to the idea that reapportionment should be brought about on the basis of voter registration and not on the basis of people. Now, the use of voter registration as distinguished from the use of population, of people in Arizona has a particularly invidious discriminatory effect. It probably would in any place because of poor people and certain minorities don’t register as much other people, as much as effluent. It is particularly so in Arizona. The northeastern part of the State of Arizona which is one-sixth of a very large state, contains the highest concentration of Indians of any area in the United States. There are about 70,000 American Indians, Navajos and Hopis and some Apaches. The average sized district, the legislative district in Arizona is 54,000 people. The 70,000 people in the northeastern part, 70,000 Indians in northeastern Arizona are still under this reapportionment plan dominated by their white neighbors to the south. In South Phoenix of this, a very poor area, it is mostly poor black, poor Mexican-American, poor white. In the legislative district in South Phoenix and it’s just one, there are 70,000 people in an area in northeastern Phoenix, an area which all white, an area which is affluent. There are 27,000 people, more than twice as many people in South Phoenix in a district as in northeastern Phoenix. Now, this discrimination of course is invidious, of course it’s horrible and so we complain that Court committed error, it clearly abused its discretion by refusing to enjoin it. The voter registration as the basis of the apportionment of Arizona has along history. As matter of fact, it’s the only way we got the reapportion of legislature, at least the lower house, beginning with the adoption of the Arizona Constitution in 1913 which is the basis of -- which was the original statement of the apportionment arrangement. The lower house, the House of Representatives is a portion with a basis of a voter registration. The upper house, the State Senate was then apportioned on the basis of county representation, two members from each county. Now, this suit was failed by Gary Peter Klahr, then a third year law student, in April 1964. The law at that time seems quite clear. This Court had seem to -- made it simple and flat and direct statement, “there should be one man, one vote.” Nevertheless, the Court did not act on the complaint and did not hold hearings on it until about a-year-and-a-half, more than a-year-and-a-half later. It was waiting patiently, the legislation to the job for the reason that I’m sure the Attorney General is going to say here today that the legislative should be given an opportunity to do to remedy the wrong. Now, legislature more than a year after the suit was filed, enacted something called Senate Bill 11 which provided for a terribly malapportioned State Senate and it didn’t deal whatever with terribly malapportioned House of Representatives. The -- after a hearing on that Bill, the Court by its decree and it was first decree issued in this case, the decree of February 22, 1966, held that the constitutional arrangement of both houses was unconstitution -- that is the Arizona Constitution arrangement was unconstitutional under U.S. Fourteenth Amendment. And also that Senate Bill 11 was unconstitutional and went on to impose a Court plan what it in its decree called a temporary plan, temporary provisional plan, that was based on voter registration. At least, it was based on voter registration in the urban areas of Phoenix and Tucson and outside of the counties including Phoenix and Tucson, the rural counties, a portion was based on county, 1966 counties, census of following respecting county lines. Now, the malapportionment resulting from the use of this system, that is to say voter registration in the cities and respecting county lines in rural areas was gross. They were -- the deviation was plus 16% to cent I believe to minus 6% and that’s just in the county areas. There’s no way of computing how gross much more gross the malapportionment was under that plan in the urban areas where voter registration was used. Nonetheless, this temporary provisional plan, so-called was used in 1966 and again in 1968, the legislature still having failed to act in a valid way. The legislator did enact, try its hand then again in 1967 and it was declared unconstitutional and then it came back in 1969. Now, the arguments, physical arguments on part of the respondent is not that the plan is in effect, the new temporary provisional plan, not that it’s constitutional. It’s grossly malapportionment. It’s a gross case of malapportionment. The argument is that well the Court ordered that this plan be used in the elections of the November 1970, and therefore, it loses its affect, loses its sting after that. And the reason that we came here to complain was the history does not show that the malapportionment plan loses its sting the day after the election and that it goes away. The decree of February 22, 1966, set up a plan which was used not only in ‘66 but in ‘68 and why isn’t something done. The fact is the Court can insist on sitting back and waiting for the legislature to act which is very nice and they should give them a reasonable a chance, but seven years is a far too long.
Speaker: (Inaudible)
Philip J. Shea: Yes, it is.
Speaker: Does this have a temporal data as such?
Philip J. Shea: No I think they set until they finish their work and I believed Mr. McGowan is close to the situation. I think they have in mind a special session later on.
Speaker: Does the Court say that the legislature didn’t act by November 1971?
Philip J. Shea: Yes.
Speaker: What does that mean? Do you think that means anything to the (Inaudible)?
Philip J. Shea: That means that they’ll open the doors to us after November 1, 1971.
Speaker: In the Court?
Philip J. Shea: Yes, until then the doors are close to us.
Speaker: Would the ’70 figures, they won’t have to be a new plan anyway?
Philip J. Shea: Well, that’s a lot --
Byron R. White: You have the part of legislature in the reapportionment.
Philip J. Shea: There has to be a new plan anyway, right.
Byron R. White: So what is still left aside here?
Philip J. Shea: What’s left aside here is whether this Court --
Byron R. White: You bring them to the District Court and we know that on the issue of (Inaudible).
Philip J. Shea: Well, it’s a nice opinion but I don’t agree with what it did.
Byron R. White: Do I understand it on voter registration that you made accommodation, made it in view of --
Philip J. Shea: Yes.
Byron R. White: And on the other subsequent issue, you agree with it?
Philip J. Shea: Yes I do.
Byron R. White: And the only thing is that you would rather have something else happened for purposes of the election that is now (Inaudible).
Philip J. Shea: Never have something else happen now.
Byron R. White: With what?
Philip J. Shea: A reapportionment plan, right away.
Byron R. White: By the court?
Philip J. Shea: By the Court, that’s the only way were going to get it.
Potter Stewart: In this court?
Philip J. Shea: No, by three-judge court sitting in the Phoenix.
Potter Stewart: If it’s going to, it said it’s going to do that if the legislature doesn’t act by November 1st of this year on the basis on the 1970 census figures?
Philip J. Shea: It’s says that -- what it said, I believe was that if the legislature fails to act, validly by November 1, 1971, any party may petition for further relief and that’s not to say I don’t believe but if the Court is going to impose itself on a constitutional plan and again --
William J. Brennan, Jr.: The start of the planning, (Inaudible)
Philip J. Shea: Yes.
William J. Brennan, Jr.: (Inaudible) by 1970?
Philip J. Shea: No, but if they open door to us we’ll have one in jiffy. Of course, we had one last year in April of 1970. We had a plan based on population.
William J. Brennan, Jr.: Well, haven’t yet on the 1970 figure?
Philip J. Shea: No, we haven’t.
William J. Brennan, Jr.: If you did then will you go to the Court and say look into the plan and not wait for the 1970 figure, give us a hearing and we’re going to implement that?
Philip J. Shea: Well, we take --
William J. Brennan, Jr.: What is the --
Philip J. Shea: We take it from the opinion of the Court, we take the Court as it were that it won’t hear us before November 1, 1971. That’s what we really we want to do. We want to get the figures and put on a census map and get a fair apportionment plan and have the Court order it and have that become a law of the state until such time as the legislature does as good or a better job.
Byron R. White: Well, the state didn’t prosecute it?
Philip J. Shea: No.
Byron R. White: So that if it is apparently satisfied with the way the District Court decided things on the substantive --
Philip J. Shea: Yes, I take it, Mr. Justice White that they agree with that.
Byron R. White: So, the legislature follows that decision as about to a court based on legislation --
Philip J. Shea: Well, the legislature had again history, I guess there’s no basis for being (Inaudible) about what the legislature is going to do.
Byron R. White: Here you have an outstanding judgment that says -- that the opinion says that the (Inaudible) on accurate basis for --
Philip J. Shea: Well, we had Baker against Carr. We even had Wells and Rockefeller and all the rest. We know what the truth is. We know the law is. We’ve always known it, but yet the legislature time and time again exhibits this stubborn refusal to follow the law.
Byron R. White: Well, I suppose the -- they do attack that plan but right now there’s no issue between you and the state on voters registration --
Philip J. Shea: No, there is no issue to what should be done. We all know what the law is.
Byron R. White: And no issue on any of the substantive issue?
Philip J. Shea: That’s right which you call substantive, yes. The question is --
William J. Brennan, Jr.: Then what really the issue you were telling was that the Courts waited long enough for the legislature to act. They didn’t do it and the Court didn’t act. Do you want now to tell the Court, you fashion the plan out and make it effective, that’s what you want?
Philip J. Shea: I wish I could have said it as well. That’s exactly what I want, yes.
Warren E. Burger: You press that notwithstanding the Court’s explicit statement that will act on November 1st if the legislature has not acted?
Philip J. Shea: Again Mr. Chief Justice, the Court said that we may then petition to say, but the reason that we’re upset is that the Court had in April of 1970, had all the population figure, the best population figures around, had a plan before it. We could have had population in the 1970’s elections. We could have had a fair plan by the 1970’s and we’re not so confident now, but first of all, we’re very doubtful that malapportioned legislature is going to reapportion itself. So, it is very leadership is decimated. We can’t really expect that. It hasn’t happen in the past and we can’t expect it again. We can’t expect the court, we're not terribly optimistic about the Court fashioning proper relief. When we come to our hearing in 1972, after filling a petition on November 1 and November 2, we can’t be so optimistic that the Court would then presented with another population plan is going to do anything different than it did in April of 1970.
Thurgood Marshall: Your position is that you’re unhappy with the legislature and you are unhappy with three-judge court and want us to do it?
Philip J. Shea: No, Mr. Justice Marshall. I don’t want you to reapportion the state. I want you to tell the court below to hear us right away on a population plan and to order it in effect.
Thurgood Marshall: Now, we’re down to whether you get a hearing before the Court next week or November?
Philip J. Shea: Exactly.
Thurgood Marshall: Is that where we are?
Philip J. Shea: Exactly.
Thurgood Marshall: What’s your magic in that?
Philip J. Shea: Well --
William J. Brennan, Jr.: When do you elect your legislature?
Philip J. Shea: In November, of even numbered years.
William J. Brennan, Jr.: Even numbered years, so your next election is 1972?
Philip J. Shea: Well, coinciding with the presidential election.
William J. Brennan, Jr.: And your theory is that there should be a plan which could be applicable to 1972 legislative elections?
Philip J. Shea: The indications are that they will not.
William J. Brennan, Jr.: And waiting until November for the Court to do something (Inaudible)
Philip J. Shea: Well first of all – well, there’s a double-edged question. First of all, there’s the time and secondly there’s the fact that the Court has not said that it would impose a plan. So what we'd like is to -- for this Court to say open your doors right away and when you open the doors, if a constitutional plan is submitted to you based on population, impose it. And if no one can do it (Inaudible) and everyone will do it, everyone will get together then, nobody wants that.
Hugo L. Black: How long have you been trying to get that done?
Philip J. Shea: Well, as I say the complaint was filed in -- what done particularly Mr. Justice Black? To get a constitutional plan?
Hugo L. Black: Yeah, how long have you been waiting?
Philip J. Shea: Well the complaint was filed in April 1964.
Hugo L. Black: 1964?
Philip J. Shea: Yes, so it’s a seven-year case now. That’s again one of the reasons why we’re not terribly optimistic about what’s going to happen next few months because we don’t feel that people have shown the will to go ahead and to do what -- they are just reluctant to do.
Thurgood Marshall: You mean the court is showing the --
Philip J. Shea: The Courts and the legislature. The courts have been too indulgent and too patient we believe with legislature. We have no reason to think that the legislature is going to all of a sudden has some inner resurrection and get religion. It hasn't in the past and it’s -- the legislature is malapportioned as ever. It seems amazing since I have been in this, the sense of territory that legislators have, it’s like animals. They belong to a sense of territory, I mean territory is the area from which they are reluctant. And they’ll go kicking and screaming before they change it and that’s particularly true when you have legislatures we now have with a control by the majority party from these people that are from Northeast Phoenix, where they have 27,000 people. And when they start reapportioning, half of them have to go or a good number of them have to go. We can’t really quite say that legislatures -- it has been my experience in the past, they don’t just do that. So we are very -- have no optimism whatever that the legislature is going to do the right thing and we don’t have any optimism that the -- that the court is going to say we’ll do it or run at large or bring us a plan so that we can do something and we’ll order it in effect. So for this reason we’re seeking the order of this Court to order the three-judge court to open its doors to us right way, or to any party right away and to impose a plan in this Constitution.
Hugo L. Black: Who were the judges, who were the judges?
Philip J. Shea: The judges were Ninth Circuit Judge Gilbert Jertberg, Tucson District Court Judge James A. Walsh, and Phoenix District Court Judge Walter Craig.
Thurgood Marshall: Was there a time limit on the (Inaudible)
Philip J. Shea: No Mr. Justice Marshall I don’t think that we need to have a time limit. I think if --
Thurgood Marshall: So it would be alright if we say that (Inaudible) November 1?
Philip J. Shea: Well, if the Court is required to open its doors to us, we will be done well before then.
Thurgood Marshall: Well, you say the court can wait for 7 years, it doesn't look like it is ever going to move, what makes you things don't move quick now? What you really want to do is us to lay down guidelines and tell the Court how to handle its business?
Philip J. Shea: Well, the Court --
Thurgood Marshall: Right?
Philip J. Shea: To an extent. The term guidelines Mr. Justice Marshall is kind of confusing, because you see the District Court by its decree of May 19, 1970 filed an opinion in the thing which set guidelines which are very enlightened, set them for the legislature, but refused to order, to make any specific order as to what would happen, as to what should happen.
Hugo L. Black: As I understand it, really what you want is to have a Court change its platitude into an order?
Philip J. Shea: Exactly, Mr. Justice Black, exactly.
Byron R. White: Mr. Shea, if the Court adopted a plan now based on the 1970 census figures, the Court heard you and the Court adopted your plan and put it into effect and then the legislature had a special session and adopted its own plan. Now I suppose it would supersede the District Court’s plan?
Philip J. Shea: Yes, I think that --
Byron R. White: So what if you really gain? You wouldn’t think the legislature would just not attempt its own plan that the Court made one?
Philip J. Shea: If the court made one, then the legislature could only get its plan approved if it enacted one just as good or better and it would do so.
Byron R. White: I know but there, there maybe also sorts of choices to be made about how to construct constitutional plans?
Philip J. Shea: I don’t -- yes, I think Mr. Justice White.
Byron R. White: They all did that anyway?
Philip J. Shea: I think that Mr. Justice White really on the basis of experience again that these nice decisions are going to be made by the legislature when the next legislature -- right after a properly, a legislature is elected on the basis of a properly apportioned plan. You’re not going to have a nice constitutional plan come out of a terribly malapportioned legislature. I don’t think it’s going to be before -- until after the election of 1972, that we get a legislative plan that cuts the mustard, and then only if we have reapportionment before 1972, that’s all Your Honor.
Warren E. Burger: Thank you Mr. Shea. Mr. McGowan?
John M. McGowan, II: Mr. Chief Justice, may it please the Court. I would like to briefly review for the Court some of the history of this case. As Mr. Shea properly stated, it was filed in April 1964 at -- no action was taken in the legislature because at that time this legislature was in adjournment. It said we’ll not meet again until 1965 and at that time, it made some passing attempts at legislation. Then, in a special session,in October 1965, it passed that -- one house passed a Bill, the Senate passed a Bill. That was then before the Court in the hearings we had in November of 1965, and lest there be a feeling that the present majority was the majority then, the Senate was elected in 1964, had two republicans and 26 democrats, had 35 republicans and 45 democrats in the House. That was under the old Senate before reapportionment. In 1965 we had a three-day hearing before then Circuit Judge Pope, the judge Welsh and I can’t recall other justices –judge was there. Then in February 1966, the decree was issued and the parties were told to agree on the two populous counties for the division of Maricopa and Pima County, an agreement was is in effect reached and the Court changed a few precincts and the agreement was reached between the major in effect the parties, I mean the political parties. At that time, the plaintiff intervener was not in the action, it was between Mr. Klahr and the Governor, that time there was a democratic governor and the legislature. The hearing, the decree was established the fact that we had 30 districts in the states and each senatorial district had two House Members. The counties were kept together as units except in the two major counties and there they were subdivided by a formula that the Court approved. That the Court in effect suggested and that was bringing the 1960 census figures up to date by ratio of the voter registration in the county to the precinct involved because in Arizona, the rapid growth patterns, if we use census tracks which if you've ever read the census tracks, they say up to a telephone poll in effect over a creek and down to an old minings --there’s no legal descriptions in the sense that we use in any other legal works and avoiding the census tracks. So we used precincts in the 1966 division. In the election of 1966 in the Senate, there were 16 republicans elected and 14 democrats, 33 republicans in the House and 27 democrats. For the first time in history, Republican Party had a majority in ether House or both houses. So I say that to you for this one reason that the present leadership of the House in Senate are the beneficiaries of reapportionment. If it was not for reapportionment, they would still be in the minority, and not only do they act in good faith in an attempt to reapportion, it is to their own enlightened self-interest because they would not be there without reapportionment. In 1967, there was a special session in which another attempt was made to have a legislated enacted reapportionment to replace the court decree. That special session was in the Spring of -- in May of 1967. At that time, the matter was referred to the people and our Constitution says that 5% of the voters may refer to the people any Bill. No Bill becomes a law for 90 days. So prior to its effective date, this was referred to the people by 5% of the electorate which meant it went to the ballot in 1968. The people approved it in 1968, and we had a hearing in January of 1969 in which the Court struck down House Bill 1 it was called, because it did not follow -- it did use registration figures only because in the meantime, the Kirkpatrick and the Rockefeller case had come down. At the time of the first decree in 1966, the Court was laboring under the thought as Mr. Frank reminded them in our hearing last Spring of a so-called Seller Amendment which was then pending in the Congress that we could have a 15% variation in figures. That as -- following this Court’s decision in Kirkpatrick no longer of course is the case. In the hearing we had in last April on the present plan in which they were elected, the plaintiff intervener's witness, a Mr. Cohen Pelt (ph) who were testified before the ad hoc House and Senate Committee, testified that the Senate -- that the census tracks would not be available until August of 1971, that is on page 168 of the transcript.
William J. Brennan, Jr.: Well, I gather the legislature is not principally doing anything.
John M. McGowan, II: No Your Honor. No sir, no Mr. Justice.
William J. Brennan, Jr.: And Arizona’s position of this situation of having no apportionment, no constitutional apportionment by the law.
John M. McGowan, II: That’s correct Mr. Justice Brennan.
William J. Brennan, Jr.: Isn’t that right?
John M. McGowan, II: That’s correct.
William O. Douglas: You stated in your brief that the legislature is under some judicial compulsion?
John M. McGowan, II: Yes sir, by November 1 Sir.
William O. Douglas: Where did you find that?
John M. McGowan, II: In the decree of the Court.
William O. Douglas: I read on page 113 that the Court assumes that the legislator will by November 1, 1970 enact McGowan plan.
John M. McGowan, II: The Court haven’t been advised a detailed population figures for the State of Arizona will be available from the official 1970 census by the summer of 1971, assumed that there is the legislation -- will by November 1.
William O. Douglas: Do you call that judicial compulsion?
John M. McGowan, II: We think it is Your Honor.
William O. Douglas: It says, (Inaudible) the legislature to do so, any party may apply to the Court, that just leaves it open for the continuation, does it not?
John M. McGowan, II: Well sir, the state’s position is that we have a deadline and we have so instructed legislature that they have a deadline of having a Bill ready for us to offer to the Court by November 1. We have told the leadership of the House and Senate that and that is the theory on which the state is operating.
William J. Brennan, Jr.: Do you get anymore optimistic prediction or one (Inaudible)?
John M. McGowan, II: Well, no sir, Mr. Justice Brennan, the figures are still -- they say now that possibly in June, but Mr. Cohen Pelt's (ph) figures in the trial, August of 1971 because they have to break them down by census tracks and in census tracks in populous areas means by blocks. So we cannot get them on tape, that’s the word that everything operates now on by until August of 1971.
William J. Brennan, Jr.: But, there is some suggestion that may in fact be available by --
John M. McGowan, II: Early, yes sir.
William J. Brennan, Jr.: June.
John M. McGowan, II: But only a suggestion but the witness --
William J. Brennan, Jr.: But, the legislature now, will it be a continuous session between now and November?
John M. McGowan, II: No Mr. Justice Brennan, it will not. It will anticipate as being over by the Eastertide this year --
William J. Brennan, Jr.: By over you mean --
John M. McGowan, II: For the regular session and it will be called – I am sorry?
William J. Brennan, Jr.: This would have to be -- it would it be a special session?
John M. McGowan, II: Yes sir. It will be called into special session for this, for the Governor, yes sir.
William J. Brennan, Jr.: And can it be unless the Government calls for a special session?
John M. McGowan, II: Well, there’s a procedure that House and Senate -- the Governor will call immediately. There’s going to be another special session on taxes. So special sessions do not totally interfere. They – it's --
Byron R. White: Mr. McGowan, following the census figures peculiar for Arizona or is it nationwide?
John M. McGowan, II: It is nationwide Mr. Justice White, but it’s peculiar to Arizona in this effect that they really only go by blocks in -- as Mr. Cohen Pelt (ph) testified in two populous counties. Our smaller counties do not have them except in great in effect mining districts. So they will not be too helpful even then.
Speaker: (Voice Overlap) the census figures were available in some areas.
John M. McGowan, II: They are by counties now, yes sir but not by census tracks which --
William J. Brennan, Jr.: Was there any reason as per the information, why do you have to base the reapportionment plan on figures by census tracks, there are a lot of figures available by counties?
John M. McGowan, II: Because Mr. Justice Brennan, the 76 -- almost 80% of our population resided in two big counties and if we don’t know that’s Mr. Shea’s principal complaint what the present system is he says that we have used the wrong formula for the allocation internally in the big counties. We use what the Court used in 1966. We put the 1968 registrations on a formula and put them to the actual 1960 census.
William J. Brennan, Jr.: Do I understand that one of the opinions you can no longer start with a reappointment plan on the basis of registered voters, you have to do on population?
John M. McGowan, II: That’s correct Your Honor.
William J. Brennan, Jr.: And you can’t do it on population by larger areas than such as that?
John M. McGowan, II: No sir. We have no way knowing where the people are. It’s difficult in the last decade.
Byron R. White: Even though you have the figures for each county?
John M. McGowan, II: Yes sir.
Byron R. White: The population of each county?
John M. McGowan, II: Yes, sir.
Byron R. White: But you have single member districts in the rest of the counties, I think?
John M. McGowan, II: We have -- yes sir 52% of Arizona reside in the large counties which is 15 -- which is one half of the senator's districts.
Byron R. White: Do you have a multi-member district right here?
John M. McGowan, II: No sir, we have multi-member for the House, single for the Senate.
Byron R. White: So you do need the single-member districts, even if you have county wide multi-member districts you would still need it for the House – single-member districts?
John M. McGowan, II: Yes sir, we have to have. In 1960, one of the areas of our county that has now 30,000 people didn’t even exist at Sun city. I mean, it was (Inaudible). So that’s why we have had to use, the Court itself in 1966 used, the projection registration to 1960 census. The Court, the legislature and the Governor, we sought direction because the leadership of the House and Senate, they were not attorneys and they asked us to -- asked full advisory opinion which of course the Court cannot give us. They have made every effort to blindly follow the direction of the Court and they stand now willing to do, but they are now appealing on the theory that they cannot do anything until the census tracks come out this summer. As the court in its -- we had 200 runs of the computer to affect this present system. Every district was less than 1% deviation which no other state in the union can brag about. We had every district, all of our 30 districts had less than 1%, maximum of 8.7 deviation. We have done our best to comply with the court's direction and now we wait for the coming of the census tracks to go forward and further comply. Thank you.
Hugo L. Black: What reason have you to think that the legislature is being what they are? They were doing things differently hereafter and they’ve done now.
John M. McGowan, II: Because Mr. Justice Black, the present legislature with the beneficiaries of the reapportionment plan, before the reapportionment plan, the present majority would never have been there, because then we had two from each county and Maricopa County with 700,000 people had two senators. Now, we have 15. So it’s to their own self-interest to maintain a fair, equitable, lawful reapportionment.
Speaker: Is that a new set of vested political interest, that’s what you’re saying?
John M. McGowan, II: Yes, Mr. Justice Harlan, yes sir.
Philip J. Shea: I’d like to respond briefly if I may to a couple of points. The first one is critically important and that is the availability of the figures because that has so much to do with the timing and say that we now have the population 70 -- population figures by county. Well, that is to say that the 1970 population figures by county is published in a little pamphlet that you buy for 35 cents, it doesn’t mean it's the only figures available. It said that this summer, and possibly in June the other figures, the more complete figures which we all agree are necessary, the census track figures are available in tapes. Well, you can call this number here of the U.S Census Bureau in Washington, D.C and they’ll say well, we don’t have them on tapes and we don’t have them on a brochure that costs 35 cents. But, they are there, you see, they are there if anybody has the will to find them, to dig them out to do these things.
William J. Brennan, Jr.: Well, I know but (Inaudible), if you were to go today and ask one and I said, go ahead, read the books, take them off, and they certify those officially on 1970 figures?
Philip J. Shea: I don’t know if there is any process of informatory certification at any stage. All I am saying is they’re available.
William J. Brennan, Jr.: (Inaudible) basis some officially certified, take the population figures. Isn’t that the basis of reapportionment plan?
Philip J. Shea: I don’t know. I frankly don’t know Mr. Justice Brennan.
William J. Brennan, Jr.: That's what (Inaudible) that's what the case (Inaudible) have referred to census figures which (Inaudible)
Philip J. Shea: Well, I don’t know if they’re officially certified, and then between perhaps now and if they have not been but --
William J. Brennan, Jr.: What happens if you have to go -- the District Court will require to open the door, you want to bring in a plan based on 1970 figures (Inaudible) where would you get the basis of figures?
Philip J. Shea: I’d get them from the United States Department, the Bureau, the Census in Washington, D.C.
Thurgood Marshall: You get attendant figures then in August, they put out a new set of figures without the reapportionment again. There are only one set of figures that have any bearing on this Court to the Census Bureau that they are certified, to go and to see along, am I right?
Philip J. Shea: I am frankly not familiar with the process of the certification of figures.
Warren E. Burger: What you say Mr. Shea, I gather yo do not share Mr. McGowan’s optimism at all on the changes that have occurred in the legislature up to now and their likelihood to accomplish this objective in the special session which he assures us will be held. You don’t share that feeling.
Philip J. Shea: Mr. McGowan and I are in complete disagreement on that.
Hugo L. Black: Why?
Philip J. Shea: Because my experience is that a legislature does not reapportion itself, so as to disseminate its leadership and that’s what's going to have to happen.
Warren E. Burger: But the last reapportionment created a new leadership as Justice Harlan suggested, a new set of interest has come into being. Do you agree with that?
Philip J. Shea: Yes, they did. Now that those new set of figures are going to have to disappear, because they all can’t get returned if the right thing is done. That’s the problem with going -- of temperizing with unconstitutional plans.
Warren E. Burger: You don’t think the polite but rather clear suggestion on the three-judge court is going to have any impact on the legislature?
Philip J. Shea: No.
Warren E. Burger: It’s true that the Court did not order that the states obviously, according to Mr. McGowan’s representation, has treated the Court’s polite suggestion as though it had done an order, a mandate?
Philip J. Shea: Yes.
Hugo L. Black: Have they?
Philip J. Shea: Although I take his word for, in other words, their leaders set around in a room and they say well, you know the Court said by November 1 --
Hugo L. Black: Have they acted?
Philip J. Shea: No, he says that they intend to act before November 1, 1971 because they regarded it some kind of a moral time limit.[Attempt to Laughter]
Warren E. Burger: But he also ties that time under the availability of the figures, does he not.
Philip J. Shea: Right, and that’s what I dispute too.
Warren E. Burger: This was certainly, I do not read this as a dilatory action, but as a representation made to this Court by responsible counsel, that these figures will be available by June perhaps, but within 60 days thereafter and that the legislature will be in a special session. Do you challenge that?
Philip J. Shea: No, I don’t sir. No.
Hugo L. Black: You agree that he can make such thing, as to what the legislature will do?
Philip J. Shea: Well, he makes the statement in all good faith and he’s a man who is close to the leadership and I am sure he is accurately reporting what he advices them what they say they will do. I have no doubt that they’ll get some figures and go into a special session though I have every doubt in the world that they are going to, as I said, decimate their leadership.
Hugo L. Black: Do you think then that it just have to be tried out again in the Court?
Philip J. Shea: We’re going to go back to Court, I have no doubt about that. We go back to Court, it will be 1972, and then they’ll say it’s too late to appeal again and then nine years ill pass. So I think that what we'd like to do is have it straighten out now.
Warren E. Burger: Thank you Mr. Shea, thank you Mr. McGowan. The case is submitted.