The County misstates the issue: "Did the district court correctly rely on Evans v. Jeff D. for the proposition that settlements that include attorney's fees are not unconstitutional." ⁽¹⁾

That is not the issue. The issue is whether enforcement of a governmental policy of entering into only "lump sum, including all attorney's fees" settlements violates the Supremacy Clause by repealing the Fees Act. This was not an issue decided by Evans v. Jeff D. ⁽²⁾; in fact, the Supreme Court expressly declined to decide that issue. ⁽³⁾ Thus, if the district court relied on Evans for the proposition that enforcement of a governmental policy of entering into only lump sum settlements was constitutional, the district court clearly erred as a matter of law.

Evans v. Jeff D. was a class action challenging deficiencies in educational programs and health care services provided to emotionally and mentally handicapped children by the state of Idaho. Prior to trial Gov. Evans' lawyers offered a settlement which provided that defendants would not bear any part of plaintiffs' attorney fees or costs. Lawyers for the class - who were also acting as "next friends" or legal guardians of the minors - accepted the offer conditioned upon court review of the condition obliterating fees. The district court approved the settlement, and appeal was taken. This Court invalidated the fee waiver and left standing remainder of settlement. ⁽⁴⁾ Certiorari was granted. The Supreme Court, Justice Stevens, held that the District Court had discretion to refuse to award fees and that considering extent of equitable relief provided for in settlement and absence of countervailing factors, there was no abuse of discretion in upholding fee waiver. The remainder of the Evans decision is dicta. Bernhardt does believe Evans was wrongly decided, but that is irrelevant here. Evans is simply not controlling precedent in this case. Contrary to the County's argument ⁽⁵⁾, Bernhardt does insist that Evans is "not on point."

The County sets up a straw man and knocks it down: "Plaintiff seeks a ruling that settlements which include attorney's fees are unconstitutional." ⁽⁶⁾ That is not what Bernhardt seeks. She seeks a ruling that a governmental policy that prevents her from obtaining an attorney is unconstitutional because it repeals a federal law, to wit, 42 USC Section 1988, in violation of the Supremacy Clause.

The County proceeds to quote Evans for the proposition that "Congress made clear its concern that civil rights plaintiffs not be penalized ⁽⁷⁾ for 'helping to lessen docket congestion' by settling their cases out of court." ⁽⁸⁾ Bernhardt certainly agrees with that proposition, but it misses the point. It assumes that Bernhardt can get a case into court and prosecute it to a point where it settles. She cannot do that without a competent lawyer. And Congress intended for her and other victims of civil rights abuse to be able to attract a competent lawyer by enacting the Fees Act.

The County completely ignores a significant issue: How is the purpose of the Fees Act served by a policy that repeals the Act? The County simply fails to argue that the policy does not repeal the Fees Act.

The County argues that Bernhardt does not satisfy the possible exception created by the Evans Court. ⁽⁹⁾ The County ignores that Evans enumerated not one but three specific situations in which the Fees Act might prohibit fee waivers, two of which Bernhardt presents in this case.

"First, Section 1988 might bar a governmental unit from implementing a 'statute, policy, or practice' precluding the payment of attorney fees in settlements of civil rights cases." ⁽¹⁰⁾

Bernhardt has presented credible, admissible evidence that the County has implemented and enforces a policy which precludes payment of attorney fees in settlement of civil rights cases. ⁽¹¹⁾ The County submitted no declarations, evidence, or even argument that this was not its policy. Thus, Bernhardt demonstrated an almost certainty of success: the Supremacy Clause does not allow counties to enforce policies that repeal a federal statute.

"Second, a district court might be required to disapprove a fee waiver that was part of 'a vindictive effort to deter attorneys from representing plaintiffs in civil rights suits." ⁽¹²⁾

Bernhardt admittedly has offered no proof of any such "vindictive effort." But Bernhardt has not been able, since she has no lawyer, to engage in discovery to search for such proof. If Bernhardt obtains a lawyer, the lawyer will know how to do that.

"[Third], an action might lie if it were shown that fee waivers have had the effect, 'in the aggregate and in the long run,' of shrinking 'the pool of lawyers willing to represent plaintiffs in such cases,' thereby 'constricting the effective access to the judicial process for persons with civil rights grievances which the Fees Act was intended to provide.'" ⁽¹³⁾

Initially the County misstates that "Plaintiff does not state, or in any manner indicate, that any of these 'civil rights attorneys' ⁽¹⁴⁾ would have accepted her case but for the County's alleged settlement policy." ⁽¹⁵⁾ In fact, the record shows that at least one civil rights lawyer would accept her case but for the County's policy. ⁽¹⁶⁾ And if Bernhardt gets a lawyer, discovery should disclose that the County's policy has quite naturally discouraged other civil rights lawyers from representing Bernhardt and other such victims. Civil rights lawyers know that most cases against the County settle, but that no statutory attorney's fees will be paid.
 

The County makes much of the fact that Bernhardt has thus far shown that only one lawyer ⁽¹⁷⁾ has declined to represent her because of the County's settlement policy. But Bernhardt only needs one lawyer, which a preliminary injunction will obtain for her. At that point, her attorney will or will not be able to develop the evidence necessary for her to obtain money damages and a permanent injunction.

In any event, even if Bernhardt does not adequately present her case under the third Evans exception, it was clear legal error for the district court to ignore that she has presented a substantial likelihood of success under the first Evans exception.

Again the County misses the point in reciting that a purpose of the Fees Act is to provide fee shifting to a plaintiff who has proven the validity of her claim by prevailing on the merits. That is one effect of the Fees Act. Another effect of the Fees Act is to provide the opportunity to apply for statutory attorney's fees upon settlement. But the purpose of the Fees Act, as the Congress and the Supreme Court have made perfectly clear, is to attract competent counsel to represent victims of civil rights abuse. ⁽¹⁸⁾ "Congress has recognized that civil rights legislation can be effective only if victims of civil rights abuse are able to attract attorney's to litigate their claims." ⁽¹⁹⁾

Pro per litigants who succeed in civil rights actions are not entitled ⁽²⁰⁾ to a Section 1988 attorney fee award because this would not serve the principal Congressional purpose underlying Section 1988: to encourage independent representation by competent counsel.

Whether a suit is "frivolous" or not "meritorious" is a decision to be made, in the first instance, by competent counsel. And the decision ought not to be made on the basis of whether substantial money damages may be awardable. Redress for violation of important constitutional rights should be available regardless of the size of the potential monetary recovery. And subsequently, a U.S. District Court is entitled to determine - and award attorney's fees, if any - whether a case is frivolous or non-meritorious. As shown in Bernhardt's opening brief, ⁽²¹⁾ the district court's conclusion that she had not shown that her case was meritorious was clear legal error.

First, the County ignores Bernhardt's argument that even if the County had submitted evidence - which it did not - that the injunction would restrict the County's ability to settle lawsuits, that would not be grounds for allowing the "lump sum" settlement policy to stand. ⁽²²⁾

Second, the County simply cites dicta from Evans regarding "probable" impact of such an injunction. The Evans court had no evidence upon which to base these assertions. But more importantly, why hasn't the County offered any evidence - or even argument - in this case about what the "limitation on the County's ability to settle" or "monumental impact" ⁽²³⁾ would be? Why has not the County submitted a competent declaration from defendant/appellee County Counsel Lloyd W. Pellman that says: "The requested injunction would limit the County's ability to settle in the following ways:_______________________" In Pellman's March 3, 1998 letter ⁽²⁴⁾ he cited the need to "evaluate" the proposed settlement and the need to advise about the "precise fiscal impact of the settlement." But he is apparently unwilling to recite these reasons under oath.

That's not surprising. 42 USC Section 1988 and its legislative history make no mention of exempting any governmental unit from its provisions so that County Counsel can evaluate or determine any "precise fiscal impact" of any settlement. In addition, the purported reasons are spurious. Civil rights defendants can settle merits claims while obtaining discovery of the amount of statutory fees, to date, that plaintiff's attorney intends to apply for. Attorney Pellman could say simply to his Board of Supervisors: "I can settle Bernhardt's case by paying her $X. Her attorney intends to apply for statutory attorney's fees in the amount of $Y to date. I may be able to settle the attorney fee claim for $Y or less. Otherwise, we will have to litigate the fees." There is a certain impreciseness to the fiscal impact of this situation, but does that mean that the County should be able to eliminate the small imprecision by simply obliterating statutory attorney's fees upon settlement?

There is no such evidence. Why has Pellman not declared: "There would be a monumental harmful impact on the County's ability to 'effectively handle' its legal representation because ________________________?" We have no clue about what the "monumental impact" would be. And the County nowhere submits any evidence, or even any argument, why it would be "harmful." The word "harmful" never appears in the County's evidence or its brief. All that the County has done is argue, absent evidence, is that the injunction would have a "tremendous impact . . . on the County's ability to handle its litigation." ⁽²⁵⁾ This case cries out for the missing evidence of what impact, and whether it would be "tremendous", and if so, why?

The County has completely failed to present easily obtainable evidence which would demonstrate any hardship to the County if the injunction were issued. Bernhardt has amply demonstrated her hardship absent an injunction.

The County alludes only to "strong public policy concerns in favor of 'lump sum' settlements," based presumably on Evans dicta. But that dicta repeatedly mentions simultaneous negotiation of merits settlement and fees. With "lump sum" settlements, there is no negotiation of fees; the fees disappear.

Bernhardt argued that

"[t]he district court invented 'The County has shown that the injunction sought by plaintiff would seriously hinder the County's ability to settle the numerous civil rights cases currently pending against it.' The court cites no evidence in support of this proposition. There is no such evidence; the County submitted none. ⁽²⁶⁾

The County, in its brief, makes no reply to this argument and cites no evidence in support of the district court's proposition, effectively conceding this issue.

The County never mentions the strong public policy - embodied in a federal statute, the Fees Act - to attract competent counsel to represent victims of civil rights abuse. The County cannot argue that its "lump sum" settlement policy is in harmony with the federal policy. Its policy is diametrically opposed to the federal policy.

In the class action context, this Court has increasingly recognized the perils attendant to simultaneous negotiation of attorney's fees and merits settlements. Most recently the Court stated: "One risk of [such] settlements is that class counsel may collude with defendants, tacitly reducing overall settlement in return for a higher attorney's fee. [citations omitted]" ⁽²⁷⁾ The problem is even more acute in Fees Act cases because - unlike class actions - no court approval of them is required. There is no judicial oversight to prevent attorneys from seeking a higher attorney's fees settlement in exchange for a reduced settlement for the client, who is likely to be unsophisticated or ignorant of problem. However, Bernhardt is not challenging simultaneous negotiation of merits and fees. Bernhardt challenges the "lump sum" settlement policy which prevents any negotiation regarding fees and prevents her from getting a lawyer. Presumably if she obtains an ethical lawyer, the lawyer will seek an agreed settlement of her merits action (or will prosecute the case to judgment) with no mention of statutory fees. ⁽²⁸⁾ Once Bernhardt is satisfied with her settlement, and only then, should her lawyer seek to negotiate fees.

Bernhardt pointed out that the district court simply invented: "The County has shown that granting the injunction would cause it significant hardship." ⁽²⁹⁾ The County has offered no reply to this; it points to no place in the record where any such showing was made.

Bernhardt pointed out that the district court invented that the injunction "undoubtedly would have a significant effect on the County's handling of [pending civil rights] suits." ⁽³⁰⁾ Bernhardt asks "But what effect? The County does not say and the court does not say." ⁽³¹⁾ The County has offered no answer in its reply and points to no place in the record where the significant effect is recited or explained.

A recent study by a distinguished commission of lawyers and judges confirms that there is a severe lack of access to justice in California. ⁽³²⁾ "[J]ust 28 percent of the legal needs of the state's poor and lower-income residents are being addressed . . . ." ⁽³³⁾ This includes legal problems involving civil rights. ⁽³⁴⁾

The Commission found that "[a]ccess to legal counsel is vital." ⁽³⁵⁾

The Ninth Circuit Judicial Conference has adopted a formal pro bono resolution ⁽³⁶⁾

• recognizing that "an increasing number of civil cases are filed each year by parties appearing in propria persona in each district court in this Circuit"
• "in many of these cases the matters presented for adjudication by the court are complex, either legally or factually"
• "many of these cases involve meritorious claims"
• "proceeding without assistance of counsel may result either in an inability to establish a case, or inefficient and ineffective use of the court's time, as well as that of the litigants, in prosecuting the matter"


The Board of Governors of the State Bar of California also recently adopted a pro bono resolution ⁽³⁷⁾ recognizing "there is an increasingly dire need for pro bono legal services for the needy and disadvantaged" and that "federal, state and local governments are not providing sufficient funds for the delivery of legal services to the poor and disadvantaged . . . ." ⁽³⁸⁾

Fee-shifting upon settlement is a significant means for delivering legal services to the poor and disadvantaged.

Accordingly, this Court should find that the balance of hardships, upon this evidence, tips sharply in favor of Bernhardt (and other victims of civil rights abuse).

III. THE NINTH CIRCUIT HAS NOT RULED THAT PLAINTIFF'S
PRAYER FOR INJUNCTIVE RELIEF IS MOOT

First, the County did not raise this mootness argument in the district court. See "Opposition to Plaintiff's Motion for Preliminary Injunction" ER 42. Accordingly, this Court should not consider it.

Second, the district court made no finding or conclusion on mootness but addressed Bernhardt's motion for preliminary injunction on the merits.

Finally, the only equitable issue considered by this Court in Bernhardt's appeal was whether her request for an injunction so she could get a lawyer in her underlying merits case was moot. This Court concluded: "Because the appeal in Bernhardt's underlying action has been dismissed and that case is no longer pending, we conclude that Bernhardt's claims for prospective relief are moot." ⁽³⁹⁾

This Court did not consider or address Bernhardt's alternate allegation that she "has no adequate remedy at law because [she] cannot obtain a lawyer to represent [her] in court, either in the underlying merits case or this case." ⁽⁴⁰⁾ (underlining added) Bernhardt no longer needs a lawyer for her underlying case but obviously needs one for the instant case. That need and issue are not moot, as the district court implicitly recognized. It is irrelevant that the operative complaint in this appeal is the same one that was before the Court in the first appeal. The parties did not brief and the Court did not address Bernhardt's need for a lawyer in this case. So the issue is not moot.

(The County stipulated ⁽⁴¹⁾ to the filing of a verified third amended complaint ⁽⁴²⁾ which clarified Bernhardt's damage and equitable claims of her need for a lawyer in this case, but for unknown reasons, the district court denied it. ⁽⁴³⁾ This may have been reversible error subject to a subsequent appeal unless this Court chooses to address it now to avoid multiple appeals.)

IV. COUNTY'S CONCESSIONS

On numerous issues Bernhardt raises, the County does not seek to defend the district court's findings and conclusions, effectively conceding the legitimacy of Bernhardt's arguments:

A. Bernhardt claims and offers evidence that the "lump sum, including all attorney's fees" settlement policy repeals the Fees Act in violation of the Supremacy Clause. The County offers nothing in reply, effectively conceding this argument.

B. Bernhardt argues that there is no evidence that prohibiting "lump sum including all attorney's fees" settlements will inhibit settlement. The County points to no evidence in reply, effectively conceding this argument.

C. Bernhardt offered evidence and argument about why the district court erred as a matter of law and fact in finding that her case was not "meritorious." The County offers nothing in reply, effectively conceding this argument.

D. Bernhardt offered evidence and argument that the district court made a clearly erroneous finding of fact when it found she had not established she would suffer irreparable harm. The County offers nothing in reply, effectively conceding this argument.

E. Bernhardt argued that the district court erred when it based its decision on the erroneous legal premise that Bernhardt's lawsuit does not present a serious question. The County offers nothing in reply, effectively conceding this argument.

V. CONCLUSION

This Court should reverse the district court's July 18, 2002 order denying Bernhardt's motion for preliminary injunction and itself should grant the injunction or remand to the district court with instructions to grant the injunction.

MICHAEL R. MITCHELL
Attorney for Plaintiff-Appellant
Angela Bernhardt

CERTIFICATE OF COMPLIANCE

I certify that pursuant to F.R.A.P. 32(a)(7)(C) and Ninth Circuit Rule 32-1, this reply brief is proportionally spaced, has a typeface of 14 points or more and contains 3977 words.
 

MICHAEL R. MITCHELL
Attorney for Appellant

                                                            CERTIFICATE OF SERVICE

I am a citizen of the United States; I am over the age of eighteen years and not a party to the above-entitled action; my business address is 20300 Ventura Boulevard, No. 317, Woodland Hills, CA 91364. On January 28, 2003 I served Appellant's Reply Brief on the interested parties in said action by placing a true copy thereof, fees prepaid, in Federal Express at Los Angeles, CA 91364 addressed to:

Lloyd W. Pellman, County Counsel
Kevin C. Brazile, Assistant County Counsel
Lauren M. Black, Deputy County Counsel
648 Hall of Administration
500 West Temple Street
Los Angeles, CA 90012-2713

I declare under penalty of perjury and the laws of the United States that the foregoing is true and correct and that this certificate of service was executed on January 28, 2003 at Los Angeles, CA.
 

MICHAEL R. MITCHELL


---


1. County Brief, p. 2

2. Evans v. Jeff D., 475 U.S. 717, 106 S.Ct. 1531, 89 L.Ed.2d 747 (1986)

3. 475 U.S. at 741, n. 34, 106 S.Ct. 1531, quoted in Bernhard v. County of Los Angeles, 279 F.3d 862, 870 (9^th Cir., 2002), ER 30, pp. 11-12.

4. 743 F.2d 648 (9^th Cir., 1984)

5. County Brief, p. 8

6. County Brief, p. 6

7. Obviously civil rights plaintiffs are not "penalized" when "lump sum" settlements occur. Their lawyers - who are prevented from applying for statuutory fees - are penalized.

8. County Brief, pp. 7-8, 475 U.S. at 732-733

9. County Brief, p. 8 et seq

10. Bernhardt, supra, at 866, quoting Evans at 739-740; ER 30, p. 7

11. ER 14, p. 8, paragraph 32 and Exhibit C-3 thereto (Pellman Letter); ER 39, p. 2 (Seeman Declaration); ER 47 (Mitchell Declaration)

12. Bernhardt, supra, at 866, quoting Evans at 740; ER 30, p. 7

13. Bernhardt, supra, at 866, quoting Evans at 741, n. 34; ER 30, p. 7

14. There is a typographical error in the County's brief at page 9: Bernhardt consulted "34," not "74" civil rights attorneys.

15. County Brief, p. 9

16. County Brief, p. 10

17. The County suggests that because Mitchell represents Bernhardt on this appeal, she might not suffer irreparable harm if the trial court's ruling is affirmed. County Brief, p. 10, fn. 1. But in his declarations, Mitchell has made it clear that he cannot afford to and will not represent Bernhardt in the district court because of the County's policy.

18. Evans v. Jeff D., supra, 475 U.S. at 731, Legislative History of the Fees Act set forth in Bernhardt's complaint, ER 14, pps. 4-7

19. Venegas v. Mitchell, 867 F.2d 527, 532 (9^th Cir., 1989), aff'd 495 U.S. 82, 109 L.Ed.2d 74, 110 S.Ct. 1679 (1990)

20. Kay v. Ehrler, 499 U.S. 432, 111 S.Ct. 1435, 113 L.Ed.2d 486 (1991)

21. Appellant's Opening Brief, pp. 37-38

22. See Appellant's Opening Brief, pp. 24-25

23. County Brief, p. 14

24. ER 14, Exhibit C-3

25. County Brief, p. 14

26. Bernhardt Opening Brief, p. 41

27. Knisley v. Vatuone (9^th Cir., 2002) (Docket No. 01-16540) ___F.3d___

28. A plaintiff's attorney may properly disclose his accrued lodestar fees upon request of the defendant - to help the defendant estimate exposure to fees upon settlement, but no negotiation about those fees should occur unless and until the plaintiff is satisfied with a merits settlement.

29. Bernhardt Opening Brief, p. 40; ER 63, p. 12, lines 15-16

30. Bernhardt Opening Brief, p. 40; ER 63, p. 12, lines 20-23

31. Bernhardt Opening Brief, p. 40.

32. The Path To Equal Justice: A Five-Year Status Report on Access to Justice in California, California Commission of Access to Justice, October 2002,http://www.calbar.ca.gov/calbar/pdfs/accessjustice/2002-Access-Justice-Report.pdf

33. Id., p. 3

34. Id., p. 5

35. Id., p. 36

36. Id., p. 67, Appendix E

37. Id., p. 69, Appendix F

38. Id.

39. ER 30, p. 12, 279 F.3d at 871

40. Verified Second Amended Complaint, ER 14, p. 14, lines 5-6

41. ER 41

42. ER V

43. ER 41, p. 1