HODGE II
 
STATE EX REL. HODGE v. TOWN OF TURTLE LAKE,
190 Wis.2d 181 (Ct.App. 1994)
526 N.W.2d 784
181  184  187
182  185 188
183  186 189

=======================================================
STATE of Wisconsin, EX REL. Warren E. HODGE,
Plaintiff-Appellant,
v.
TOWN OF TURTLE LAKE,
Richard Fick,
James Kasper,
Ray Ruff,

Defendants-Respondents.
Court of Appeals No. 94-1304
 
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Submitted on briefs October 24, 1994. Ä
Decided December 13, 1994.

Page 182
 
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APPEAL from a judgment of the circuit court
for Barron County: EDWARD R. BRUNNER, Judge.

Reversed and cause remanded.

On behalf of plaintiff-appellant, the cause was
submitted on the briefs of Daniel W. Hildebrand
of Ross & Stevens, S.C. of Madison.

On behalf of defendants-respondents, the cause was
submitted on the brief of Gwen Kuchevar of Rodli,
Beskar & Boles, S.C. of River Falls.

Before Cane, P.J., LaRocque and Myse, JJ.

LaROCQUE, J.

Our supreme court in State ex rel. Hodge v. Turtle
Lake, 180 Wis.2d 62, 508 N.W.2d 603 (1993) (Hodge I),
interpreted a Wisconsin open meetings law dispute in
favor of Hodge. That decision reversed the judgment of
the circuit court and the decision of this court
affirming that judgment, and remanded the matter to the
circuit court to determine whether Hodge should get
reasonable attorney fees pursuant to Section 19.97 (4),
STATS.[fn1] On remand, the circuit court awarded fees
but refused to apply the hourly rate of a private
lawyer, and applied a $60 rate applicable to
court-appointed counsel.

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Because we conclude that the open meetings law
contemplates reimbursement at the rate applicable to
private sector attorneys, we reverse the circuit
court's decision to the contrary. However, because the
circuit court retains the discretion to consider other
factors bearing upon the reasonableness of attorney
fees, we remand for the exercise of that discretion.

The historical details surrounding this appeal are
described in Hodge I and need not be repeated here.

It is sufficient to relate that Hodge I holds that the
town board conducted closed sessions in violation of
the open meetings law, and that because Hodge prevailed
in his private prosecution of the violation, he was
eligible to recover reasonable attorney fees and actual
costs, absent "special circumstances."

Id. at 77-78, 508 N.W.2d at 608-09.

The court stated that attorney fees should be awarded
if the award advanced the purpose of the open meetings
law: "to ensure that the public has the fullest and
most complete information possible regarding the
affairs of government."

Id. at 78-79, 508 N.W.2d at 609.

In determining whether the purpose of the open meetings
law would be advanced by the award of fees, the circuit
court was ordered to consider "such things as whether
an award of fees to Hodge would make him `whole', thus
providing him and others in similar positions with
economic incentive to privately enforce the Act under
Section 19.97 (4), Stats."

Id. at 79, 508 N.W.2d at 609.

It also directed the circuit court to determine whether
an award would deter future violations and encourage
governmental bodies to provide more openness in
government. Id.

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If the award would serve the foregoing purposes, fees
are to be awarded "unless special circumstances exist
which would render an award unjust."

Id. at 77-78, 508 N.W.2d at 609.

The court declared that the special circumstances
exception is to be strictly construed in favor of the
prevailing relator, Hodge.

Id. at 78, 508 N.W.2d at 609.

The court cited decisions from federal courts in
analogous situations holding that the placement
of the burden of the fees upon taxpayers did
not constitute special circumstances. Id.

The court also stated: "We do not address here the
special circumstances which might render an award
unjust. We caution, however, that the mere presence of
good faith on the part of the Board cannot alone be
such a circumstance." Id. at 79, 508 N.W.2d at 609.

Finally, the supreme court rejected Hodge's pursuit of
forfeitures against individual board members, holding
that "[t]he members of the Board clearly attempted to
abide by the Open Meetings Law by contacting two
attorneys before deliberating in closed session."

Id. 80, 508 N.W.2d at 609-10.

On remand, Hodge's attorney submitted an affidavit
incorporating his statement for fees and costs. [fn2]
The fees totaled $14,549.25. He averred that the rates
were those that his Madison, Wisconsin, firm
customarily charged its clients for legal
services at the time, and were reasonable.

Counsel stated that two attorneys worked on the case,
and the remaining services were performed either by
legal assistants or law clerks and "generally involved
shephardizing (sic) and cite-checking various briefs."
Counsel noted that the legal services involved appeals
to both the court of appeals and the supreme court, in
addition to proceedings in the trial court.

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The statement details each unit of work in terms of
date, fractional hours, hourly rate and purpose.

The town summarizes the billing in its appellate brief:
The hourly rate ranges from $40 to $45 for legal
assistants to $85 for a firm associate, totaling
65.9 hours, and from $165 to $185 for primary
counsel for 50.5 hours.

While we have not independently checked the arithmetic,
Hodge does not challenge the computation, and we
therefore accept the summary as essentially
accurate.[fn3]

The circuit court, expressing its pique, stated "that
the Supreme Court's decision regarding attorneys fees
in this particular action and the guidelines it has
set forth are extremely oppressive, unrealistic
and punitive."

The court expressed its belief that a municipality that
bases its decision to conduct a closed hearing upon
advice of municipal counsel "should [not] be asked
to pay legal fees from tax dollars."

Then, in reference to an affidavit from the clerk of
the Town of Turtle Lake stating that the town will
raise only $123,418 in direct property tax levy in
1994, the court stated that it did "not believe the
public should be penalized with attorneys fees that
exceed 13% of its annual tax base."

The court concluded:

The Circuit Court must follow the Supreme
Court's ruling and disregard the good faith
of the Board. This Court will award only a
fair and reasonable rate to reimburse the
petitioner at the rate applicable to publicly
appointed counsel, $60.00 an hour. Fees are
therefore awarded for 120.4 hours totaling
$7,224.00 plus costs of $1,633.61 for a
total award of expenses of $8,857.61.

Page 186
 
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We first hold that the trial court is required
to apply reasonable private sector rates.

This was the conclusion reached in an analogous
circumstance in Shands v. Castrovinci,
115 Wis.2d 352, 340 N.W.2d 506 (1983).

In that case, a legal services organization funded by
the government sought recovery of "reasonable attorney
fees" as authorized by Section 100.20 (5), STATS.,
following a successful claim against a landlord who
violated the security deposit regulations of the
Wisconsin Administrative Code.

Id. at 354, 340 N.W.2d at 507.

The court determined that the value of the services and
the benefits accruing both to the client and the public
by enforcing claims under Section 100.20 (5) are the
same regardless whether the attorney for the plaintiff
was private or public. Id. The court then held:

It stands to reason that the rate of compensation
should match the type of services provided, whether
the attorney is in private practice or works for a
legal services organization. We conclude that legal
services attorneys should be compensated at the
same rate as similarly situated private attorneys
engaging in the same type of representation.

Id. at 362, 340 N.W.2d at 510-11.

The application of private bar rates, however,
should begin and not end the analysis:

The most useful starting point for determining the
amount of a reasonable fee is the number of hours
reasonably expended on the litigation multiplied by
a reasonable hourly rate. This calculation provides
an objective basis on which to make an initial
estimate of the value of a lawyer's services.

Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).

Page 187
 
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A number of other factors may be considered in awarding
attorney fees, including the general ability of the
client to pay them.

Herro, McAndrews & Porter, S.C. v. Gerhardt,
62 Wis.2d 179, 184, 214 N.W.2d 401, 404 (1974).

Although the town is not the client in this case, its
ability to pay is still relevant. Herro described the
purpose of judicial review of attorney fees:

We must reiterate, the primary duty of the
courts as the judicial branch of our government
is the proper and efficient administration of
justice. Members of the legal profession by
their admission to the Bar become an
important part of that process. . .

Id. at 184, 214 N.W.2d at 403
(quoting In re Integration of Bar,
5 Wis.2d 618, 622, 93 N.W.2d 601, 603 (1958)).

We do not suggest that the hours or the hourly
rate charged in this case were unreasonable.

However, the trial court did not review the
reasonableness of the hours and the rate, and we
remand for the exercise of discretion to make that
determination under all of the circumstances.

In its review, the court may take into consideration
whether the rates were comparable for similar services
from attorneys in the area where the action was filed
and, if not, whether the nature or complexity of the
litigation justified the rates applied.

We also conclude that the circuit court misinterpreted
the mandate of Hodge I. Contrary to the circuit court's
statement, Hodge I does not require the circuit court
to disregard the good faith of the board.

Rather, the decision merely stated that the board's
good faith alone is not a grounds to find special
circumstances whereby no fees at all are awarded.

Id. at 79, 508 N.W.2d at 609.

While good faith alone is no basis to deny fees,
or the fact that taxpayers will foot the bill
is an inadequate grounds to deny them, it does
not follow that the unique facts presented
in this case are totally irrelevant.

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The town acted in good faith on the advice of municipal
counsel, and the tax base of this municipality is very
small, especially in relation to the fees sought.

Hodge I did not declare these facts entirely irrelevant
in setting reasonable fees.

To summarize, reasonable hours times reasonable hourly
rate is a starting point. The reasonable rate is that
of the private sector, but the court may consider
other factors in setting the final award, including
the peculiar facts surrounding the violation and
the ability of the responsible party to pay.

By the Court. Ä Judgment reversed and cause remanded.

[fn1] Section 19.97 (4), STATS., provides:

If the district attorney refuses or otherwise
fails to commence an action to enforce this
subchapter within 20 days after receiving a
verified complaint, the person making such
complaint may bring an action under 19.97(1)
to 19.97(3) on his or her relation in the name,
and on behalf, of the state.

In such actions, the court may award actual
and necessary costs of prosecution, including
reasonable attorney fees to the relator if he
or she prevails, but any forfeiture recovered
shall be
paid to the state.

[fn2] The costs included in the statement were
awarded and are not in dispute.

[fn3] Hodge does note that the town describes
the top hourly rate as $185 while the
statement shows that the top rate was $180.

Page 189
 
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RELATED CASE LAW:

Wisconsin Case Law: HODGE AND "TURTLE LAKE"
 

State ex rel. Auchinleck v. Town of LaGrange,
200 Wis.2d 585 (1996)
547 N.W.2d 587

Metropolitan Milwaukee Fair v. Hartford Times,
(Ct.App. 1996) - Unpublished Decision

Leverence v. Pfs Corp.,
193 Wis.2d 317 (1995)
532 N.W.2d 735

Seaquist v. Physicians Ins.,
192 Wis.2d 530 (Ct.App. 1995)
531 N.W.2d 437

In Interest of Christopher C.,
191 Wis.2d 680 (Ct.App. 1995)
530 N.W.2d 34

HODGE II
State ex rel. Hodge v. Town of Turtle Lake,
190 Wis.2d 181 (Ct.App. 1994)
526 N.W.2d 784

In Matter of Mental Condition of Virgil D.,
189 Wis.2d 1 (1994)
524 N.W.2d 894

Clark v. Milwaukee County,
188 Wis.2d 171 (1994)
524 N.W.2d 382

HODGE I
State ex rel. Hodge v. Turtle lake,
180 Wis.2d 62 (1993)
508 N.W.2d 301

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