James Fitzgerald Smith
James Fitzgerald Smith

Just because a litigant doesn’t incur fees when his or her lawyers work pro bono doesn’t mean a court shouldn’t award them, an appellate panel has ruled.

The 1st District Appellate Court ruled a Cook County judge was wrong to deny reasonable attorney fees to winning plaintiffs because their lawyers vowed to work for free and to donate any proceeds.

In an unpublished order this week, Justice James Fitzgerald Smith wrote that fee-shifting is mandatory under the state’s Civil Rights Act, a law at the center of the underlying dispute. He and the panel noted the statute is modeled after Title 6 of the federal Civil Rights Act, which is “well-established” to allow for an award of reasonable attorneys’ fees in pro bono situations.

The panel also wrote that the cases relied upon by the trial judge mostly concerned fees when lawyers represent themselves for free, not others.

“As the discussion above indicates, we find that the case law relied upon by the trial court does not support its determination that any tendency exists among courts to disallow statutory attorney fees in cases where no such fees are actually incurred,” Smith wrote in the 15-page ruling.

“Rather, the availability of statutory attorney fees in a given case is controlled by the language of the statute at issue. But the general rule is one that this court has set forth on several occasions: ‘Whether the attorney charges a fee or has an agreement that the organization that employs him will receive any awarded attorneys’ fees are not bases on which to deny or limit attorneys’ fees or expenses.’”

The decision stemmed from a dispute between three plaintiffs who challenged the State Registrar of Vital Records over its denial of new birth certificates to coincide with new gender designations.

The Vital Records Act and the office’s implementation of it used to call for certain details in physician affidavits to prove a new gender on a new certificate was warranted. The plaintiffs here, Victoria Kirk, Karissa Rothkopf and Riley Johnson were denied their request for certificates over the extent of such operations and because a doctor involved was not licensed in the United States.

The state registrar dropped the challenge after they filed suit citing due process, equal protection and privacy rights in the Illinois Constitution, and gave them updated certificates. They subsequently filed a petition for fees, costs and expenses, citing the Illinois Civil Rights Act, which authorizes such awards to the “prevailing party” in actions brought to enforce rights under the state constitution.

The plaintiffs were represented by Jenner & Block LLP, which agreed to donate fees to the Roger Baldwin Foundation of the American Civil Liberties Union.

Former Cook County circuit judge Peter A. Flynn issued an order allowing for recovery of $6,168 in costs and expenses but denied the attorney fee award, stating such an award would be a windfall to the plaintiffs.

Since Jenner agreed to donate any fees, what the plaintiffs were actually seeking was a “gift” from state taxpayers, Flynn ruled.

On appeal, however, Smith and Justices Aurelia Pucinski and Mary Ellen Coghlan looked to the fee-shifting provision in the Civil Rights Act, Section 5(c)(2). It states that a court “shall award reasonable attorneys’ fees and costs” to a plaintiff who prevails in any action brought “to enforce a right under the Illinois Constitution.”

It also states that “[i]n awarding reasonable attorneys’ fees, the court shall consider the degree to which the relief obtained relates to the relief sought.”

There is no qualifying language that states the fees must be incurred, the court noted.

“Here, the use of the word ‘shall’ in section 5(c) of the Illinois Civil Rights Act indicates a legislative intent that an award of fees is mandatory under that statute also,” the panel wrote.

“Nothing in the language or context of the statute indicates that the legislature intended anything other than that a circuit court is required to award reasonable attorney fees to a plaintiff who qualifies as a prevailing party under the Illinois Civil Rights Act. Any other interpretation would disregard the plain and unambiguous meaning of the statutory language.”

Although that logic is definitive, the court wrote, it added that when the state civil rights law was enacted in 2003, it was well-known that it was patterned after a federal counterpart which also allowed attorney fee awards in pro bono cases.

“We find no indication that the General Assembly intended the fee-shifting provision of the Illinois Civil Rights Act to be interpreted differently from the established approach of federal courts on this question,” the panel wrote.

Finally, the justices wrote that most of the cases cited by the trial court involved fee awards for attorneys who represent themselves, not others. The rationale for fee-shifting includes incentivizing legitimate claims and preventing lawyers from starting “abusive fee generation practices,” Smith wrote.

“We perceive no similar concern that attorneys who represent clients pro [bono] in civil rights litigation will engage in ‘abusive fee generation practices’ if fee-shifting is allowed if they prevail,” the panel wrote.

The court concluded by noting that the trial judge made an alternative determination that any fee award “should be reduced by 50% across the board,” but did not specify a number of hours or dollar amount provisionally allowed.

“Therefore, we remand this cause to the trial court for the entry of an order on the exact amount of attorney fees allowed to plaintiffs’ counsel,” the appellate court wrote.

John A. Knight, Harvey M. Grossman and James D. Esseks of the ACLU, as well as Robert R. Stauffer, Clifford W. Berlow and Reanne Zheng of Jenner & Block, represented the plaintiffs in the case.

Knight said in a statement this afternoon that the team of lawyers who worked on the case, as well as the Chicago Bar Foundation and Association of Pro Bono Counsel who filed as amici in support, are "extremely pleased" by the outcome.

"The decision definitively confirms that lawyers who agree to represent people whose civil rights have been violated pro bono are able to seek compensation from the state or local branch of government that violated those rights," he said.

Knight added that the Civil Rights Act was specifically written to encourage lawyers to represent those who would not normally be able to afford legal help. He added that the decision on fees, as well as the underlying issues about gender and birth certificates, will have benefits for years to come.

"The ACLU and Jenner & Block brought this case to secure crucial changes in Illinois law that made it possible for our clients to correct the gender marker on their Illinois birth certificates so that they could live their authentic lives without facing the challenges that inaccurate identity documents can often present," Knight said. "These changes would not have occurred without the courage and persistence of our clients and our ability to pursue this change for them."

The Illinois Attorney General’s office represented Damon T. Arnold, the state registrar of vital records, in the case. A spokeswoman for the AG’s office did not immediately respond to a request for comment.

The case is Victoria Kirk, et al., v. Damon T. Arnold, 2020 IL App (1st) 190782-U.