ORDER ON REMAND IN RE ATTORNEY’S FEES (JANE L. V)
J. THOMAS GREENE, District Judge.
This matter is before the court on remand by the Tenth Circuit for recalculation of attorney’s fees in accordance with opinions issued by that court concerning error in the lower court’s substantive decisions as well as its award of attorney’s fees to defendants. As instructed by the Tenth Circuit, this requires reversal of reductions in the lodestar calculation on account of failure to prevail on alternative legal theories, and reconsideration of limited success as determined by the lower court. It also requires reversal of this [485]*485court’s award of attorney’s fees and expenses to defendants.
I.
LODESTAR CALCULATION
This court arrived at a lodestar calculation for plaintiffs’ attorneys fees after reducing claimed compensable hours by 35% and applying hourly rates to reflect prevailing rates in Salt Lake City rather than New York City as urged by plaintiffs. The Tenth Circuit did not disturb these determinations, so the lodestar as calculated by the district court remains at $293,741.55.
II.
REDUCTION OF LODESTAR FOR LIMITED SUCCESS
The trial court reduced the lodestar by seventy-five percent to reflect limited success because of failure to prevail on most of the claims which were presented, and unsuccessful presentation of alternative theories to invalidate Utah’s so-called abortion ban. Jane L., et al. v. Bangerter (Jane L. IV), 828 F.Supp. 1544 (D. Utah 1993). The Tenth Circuit reversed most of this court’s substantive determinations and rejected this court’s ruling that attorneys fees should not be awarded for presentation of the five unsuccessful alternative theories because they were separate and distinct from the core issue of alleged unconstitutionality of the Utah statute under the due process clause. Jane L., et al. v. Bangerter, 61 F.3d 1505 (10th Cir.1995).
A. Relative Importance of Claims
The Tenth Circuit has instructed this court to reassess the degree of plaintiffs’ success in light of the appellate court’s merits determinations, and to make a qualitative assessment regarding the relative importance of one claim versus another. The Tenth Circuit panel regarded the prior reductions by this court as presenting a suspiciously “coincidental correlation between the ratio of successful and unsuccessful claims,” and was concerned that this court “may have mechanically weighed each successful and unsuccessful claim equally.”1
Based upon a review of the very large and extensive written and oral presentations made to this court in what was protracted and massive litigation, the claims asserted were evaluated and assessed in relative percentages by this court and are now reiterated as follows:
Unconstitutionality of abortions under Utah Statute — 50%
1. Pre-viable (before 20 weeks) abortions on demand — under due process clause— 17.5%
2. Post-viable (after 20 weeks) abortions — under due process clause — 17.5%
3. Alternative constitutional theories to invalidate Utah statute — 15%
—Equal protection
—Establishment clause
—Free exercise clause
—Freedom of speech
—Involuntary servitude
Other claims — 50%
4. Spousal notification — 8%
5. Fetal experimentation — 9%
6. Choice of methods — 8%
7. Serious medical emergency including incorporation of statute requiring mens rea to invalidate criminal intent — 15%
8. Utah Constitutional claims — 10%
[486]*486The primary attack on Utah’s abortion laws was to invalidate statutory restrictions on pre-viable as well as post-viable abortions. A large part of the legal work and presentation focused on theories other than a woman’s liberty interest under the due process of law clause as ruled upon in Roe v. Wade. Both sides recognized that an imminent ruling by the Supreme Court in Casey likely would be definitive as to pre-viable abortions on demand. Accordingly, much of the effort was focused on the statutory restrictions imposed upon post-20 week abortions. Also, a great deal of emphasis was placed on other possible grounds and theories for invalidating the Utah statute. These challenges by plaintiffs taken together represented about 50% of the total legal matters presented to the court, both in importance and volume. In allocating percentages to the component parts of these challenges — which includes time spent, emphasis placed, briefing and oral argument — this court regarded plaintiffs’ success as to the pre-20 week abortion challenge as 17.5%, the unsuccessful challenge of restrictions upon post-20 week abortions as 17.5%, and the unsuccessful alternative theories which were extensively briefed and argued as 15%. On appeal, the success ratio of plaintiffs as to the aforesaid abortion restriction challenges rose from 17.5% to 50%.
The other issues presented challenges which also amounted to approximately 50% in the qualitative assessment analysis. The “serious medical emergency” issue not only involved a vagueness challenge, but also directly implicated a separate Utah statute which required mens rea in the assessment of possible criminal liability. These matters together were and are evaluated at 15%. Spousal notification, fetal experimentation and choice of methods involved about the same emphasis and relative significance, and each of these issues was assigned approximately 8% of relative importance. The challenges based upon state constitutional claims were assigned 10%. All of these matters netted plaintiffs only about 8% success, which reflected the lower court’s favorable ruling on spousal notification and rejection of the other claims. On appeal, two additional issues were ruled as successful by the Tenth Circuit — choice of methods and fetal experimentation — which increased plaintiffs’ percentage of success to 25% as to the aforesaid issues.
B. Reassessment of Level of Success
Based on this court’s previous analysis, the aggregate of the aforesaid qualitative assessments resulted in only a 25% success ratio in favor of plaintiffs. Based upon the Tenth Circuit’s determinations, the success ratio is raised to 75%. The level of success of plaintiffs in this litigation is therefore adjusted accordingly, reducing the lodestar by only 25%, which results in a legal fee award to plaintiffs of $220,306.
III.
LEGAL FEES AWARDED TO DEFENDANTS
This court awarded fees to defendants in two particulars. First, for what this court perceived to be the presentation of frivolous claims, i.e., that the Utah abortion statute violated provisions of the United States Constitution concerning involuntary servitude, equal protection of the laws and the Establishment Clause. Second, for assertion of state constitutional claims which were brought in bad faith.
Free access — add to your briefcase to read the full text and ask questions with AI
ORDER ON REMAND IN RE ATTORNEY’S FEES (JANE L. V)
J. THOMAS GREENE, District Judge.
This matter is before the court on remand by the Tenth Circuit for recalculation of attorney’s fees in accordance with opinions issued by that court concerning error in the lower court’s substantive decisions as well as its award of attorney’s fees to defendants. As instructed by the Tenth Circuit, this requires reversal of reductions in the lodestar calculation on account of failure to prevail on alternative legal theories, and reconsideration of limited success as determined by the lower court. It also requires reversal of this [485]*485court’s award of attorney’s fees and expenses to defendants.
I.
LODESTAR CALCULATION
This court arrived at a lodestar calculation for plaintiffs’ attorneys fees after reducing claimed compensable hours by 35% and applying hourly rates to reflect prevailing rates in Salt Lake City rather than New York City as urged by plaintiffs. The Tenth Circuit did not disturb these determinations, so the lodestar as calculated by the district court remains at $293,741.55.
II.
REDUCTION OF LODESTAR FOR LIMITED SUCCESS
The trial court reduced the lodestar by seventy-five percent to reflect limited success because of failure to prevail on most of the claims which were presented, and unsuccessful presentation of alternative theories to invalidate Utah’s so-called abortion ban. Jane L., et al. v. Bangerter (Jane L. IV), 828 F.Supp. 1544 (D. Utah 1993). The Tenth Circuit reversed most of this court’s substantive determinations and rejected this court’s ruling that attorneys fees should not be awarded for presentation of the five unsuccessful alternative theories because they were separate and distinct from the core issue of alleged unconstitutionality of the Utah statute under the due process clause. Jane L., et al. v. Bangerter, 61 F.3d 1505 (10th Cir.1995).
A. Relative Importance of Claims
The Tenth Circuit has instructed this court to reassess the degree of plaintiffs’ success in light of the appellate court’s merits determinations, and to make a qualitative assessment regarding the relative importance of one claim versus another. The Tenth Circuit panel regarded the prior reductions by this court as presenting a suspiciously “coincidental correlation between the ratio of successful and unsuccessful claims,” and was concerned that this court “may have mechanically weighed each successful and unsuccessful claim equally.”1
Based upon a review of the very large and extensive written and oral presentations made to this court in what was protracted and massive litigation, the claims asserted were evaluated and assessed in relative percentages by this court and are now reiterated as follows:
Unconstitutionality of abortions under Utah Statute — 50%
1. Pre-viable (before 20 weeks) abortions on demand — under due process clause— 17.5%
2. Post-viable (after 20 weeks) abortions — under due process clause — 17.5%
3. Alternative constitutional theories to invalidate Utah statute — 15%
—Equal protection
—Establishment clause
—Free exercise clause
—Freedom of speech
—Involuntary servitude
Other claims — 50%
4. Spousal notification — 8%
5. Fetal experimentation — 9%
6. Choice of methods — 8%
7. Serious medical emergency including incorporation of statute requiring mens rea to invalidate criminal intent — 15%
8. Utah Constitutional claims — 10%
[486]*486The primary attack on Utah’s abortion laws was to invalidate statutory restrictions on pre-viable as well as post-viable abortions. A large part of the legal work and presentation focused on theories other than a woman’s liberty interest under the due process of law clause as ruled upon in Roe v. Wade. Both sides recognized that an imminent ruling by the Supreme Court in Casey likely would be definitive as to pre-viable abortions on demand. Accordingly, much of the effort was focused on the statutory restrictions imposed upon post-20 week abortions. Also, a great deal of emphasis was placed on other possible grounds and theories for invalidating the Utah statute. These challenges by plaintiffs taken together represented about 50% of the total legal matters presented to the court, both in importance and volume. In allocating percentages to the component parts of these challenges — which includes time spent, emphasis placed, briefing and oral argument — this court regarded plaintiffs’ success as to the pre-20 week abortion challenge as 17.5%, the unsuccessful challenge of restrictions upon post-20 week abortions as 17.5%, and the unsuccessful alternative theories which were extensively briefed and argued as 15%. On appeal, the success ratio of plaintiffs as to the aforesaid abortion restriction challenges rose from 17.5% to 50%.
The other issues presented challenges which also amounted to approximately 50% in the qualitative assessment analysis. The “serious medical emergency” issue not only involved a vagueness challenge, but also directly implicated a separate Utah statute which required mens rea in the assessment of possible criminal liability. These matters together were and are evaluated at 15%. Spousal notification, fetal experimentation and choice of methods involved about the same emphasis and relative significance, and each of these issues was assigned approximately 8% of relative importance. The challenges based upon state constitutional claims were assigned 10%. All of these matters netted plaintiffs only about 8% success, which reflected the lower court’s favorable ruling on spousal notification and rejection of the other claims. On appeal, two additional issues were ruled as successful by the Tenth Circuit — choice of methods and fetal experimentation — which increased plaintiffs’ percentage of success to 25% as to the aforesaid issues.
B. Reassessment of Level of Success
Based on this court’s previous analysis, the aggregate of the aforesaid qualitative assessments resulted in only a 25% success ratio in favor of plaintiffs. Based upon the Tenth Circuit’s determinations, the success ratio is raised to 75%. The level of success of plaintiffs in this litigation is therefore adjusted accordingly, reducing the lodestar by only 25%, which results in a legal fee award to plaintiffs of $220,306.
III.
LEGAL FEES AWARDED TO DEFENDANTS
This court awarded fees to defendants in two particulars. First, for what this court perceived to be the presentation of frivolous claims, i.e., that the Utah abortion statute violated provisions of the United States Constitution concerning involuntary servitude, equal protection of the laws and the Establishment Clause. Second, for assertion of state constitutional claims which were brought in bad faith. This court awarded defendants the sum of $29,879.63 as to the claims found to be frivolous, and the sum of $15,847.47 to be paid by plaintiffs’ counsel as to the claims which the court found to have been brought in bad faith. The Tenth Circuit reversed in toto the district court’s award of attorney’s fees to defendants, finding that this court had abused its discretion by awarding defendants any attorney’s fees and expenses. The Tenth Circuit panel apparently did not reach or feel constrained to even discuss this court’s finding that the state constitutional claims had been brought in bad faith.
IV.
COSTS AND EXPENSES
Plaintiffs lumped costs and expenses together in a submission requesting recovery of $51,775.56. After separation out of ex[487]*487penses (which are more appropriately considered as part of attorney’s fees), this court identified $13,009.19 in costs. Those cost items were denied since they “washed” with an approximately equal amount awarded to defendants as prevailing parties on most of the claims. This court now eliminates the award of costs to defendants and reduces the costs awarded to plaintiffs by 25%, consistent with the re-computed percentage reduction of attorney’s fees. Accordingly, plaintiffs are awarded $9,756.29 in costs.
Expenses claimed by plaintiffs amounted to $38,766.37. This court denied claimed travel expenses in the amount of $22,709.57, and the Tenth Circuit said that it was “not persuaded that the district court abused its discretion” in that particular. Accordingly, this court awards plaintiffs the sum of $16,-068.68 in expenses to be added to the award of attorney’s fees. The award to defendants of expenses is vacated.
Based upon the foregoing, it is hereby
ORDERED, that plaintiffs whose claims were successfully prosecuted are awarded $236,374.68 for attorneys fees; it is
FURTHER ORDERED, that plaintiffs are awarded $9,756.89 for costs of court; it is
FURTHER ORDERED, that previous awards to defendants of attorney’s fees, expenses and costs are vacated.
IT IS SO ORDERED.