PUBLISHED OPINION
Case No.: 96-0596
†Petition for
Review Filed
Complete Title
of Case:
JUDY HARTMAN and RONALD DELAP,
individually
and on behalf of all others similarly
situated,
Plaintiffs-Appellants,
v.
WINNEBAGO COUNTY, a municipal corporation,
WINNEBAGO COUNTY BOARD OF SUPERVISORS,
WINNEBAGO COUNTY SOCIAL SERVICES BOARD,
and
the WINNEBAGO COUNTY DEPARTMENT OF SOCIAL
SERVICES,
Defendants-Respondents.†
Submitted on Briefs: December 16, 1996
Oral Argument:
COURT COURT OF APPEALS OF WISCONSIN
Opinion Released: February 5, 1997
Opinion Filed: February
5, 1997
Source of APPEAL Appeal from an order
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Winnebago
(If
"Special", JUDGE: WILLIAM E. CRANE
so indicate)
JUDGES: Snyder, P.J., Brown and Anderson, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn behalf of the plaintiffs-appellants, the cause was
submitted on the briefs of Jeff Scott Olson of Madison.
Respondent
ATTORNEYSOn behalf of the defendants-respondents, the cause was
submitted on the brief of John E. Thiel and Rebecca L. Kent of Godfrey
& Kahn, S.C. of Oshkosh.
COURT OF
APPEALS DECISION DATED AND
RELEASED FEBRUARY
5, 1997 |
NOTICE |
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 96-0596
STATE OF WISCONSIN IN
COURT OF APPEALS
JUDY
HARTMAN and RONALD DELAP, individually
and on
behalf of all others similarly situated,
Plaintiffs-Appellants,
v.
WINNEBAGO
COUNTY, a municipal corporation,
WINNEBAGO
COUNTY BOARD OF SUPERVISORS,
WINNEBAGO
COUNTY SOCIAL SERVICES BOARD, and
the
WINNEBAGO COUNTY DEPARTMENT OF SOCIAL
SERVICES,
Defendants-Respondents.
APPEAL
from an order of the circuit court for Winnebago County: WILLIAM E. CRANE, Judge. Reversed and cause remanded with
directions.
Before
Snyder, P.J., Brown and Anderson, JJ.
ANDERSON,
J. Judy
Hartman and others (collectively, Hartman) in this class action suit appeal
from an order denying their motion for an award of attorney’s fees under 42
U.S.C. § 1988. The circuit court
determined that Hartman was not entitled to attorney’s fees because they had
not demonstrated that they were “prevailing parties” in this suit and because
their motion for attorney’s fees was untimely.
We conclude that Winnebago County and others (collectively, the County)
were not unfairly surprised or prejudiced by Hartman’s motion for attorney’s
fees, thereby rendering the motion timely.
We further conclude that Hartman met their burden of establishing a
causal link between this litigation and the remedial changes made by the County
and proving that the remedial changes were required by law. We therefore reverse the circuit court’s
order and remand for a determination of reasonable attorney’s fees.
The
facts leading up to this third appeal are undisputed and shall be compiled from
the two previous unpublished decisions by this court.[1] General relief in Wisconsin is administered
through the counties pursuant to ch. 49, Stats.[2] In September 1990, the Winnebago County
Social Services Board adopted a reduction in the amount of general relief
available for Winnebago county recipients.
The changes were scheduled to go into effect on October 1, 1991. The reduction in benefits was not based on a
determination of the actual cost of the standard of living in Winnebago county;
rather, the minutes of the meeting state that the benefits would be reduced to
“whatever the State minimum is as stated in SS 49.032(1)(c) and (d).” Hartman v. Winnebago County,
No. 91-2414, unpublished slip op. at 2-3 (Wis. Ct. App. April 22, 1992) (Hartman
I).
On
October 4, 1990, Hartman commenced this action and sought injunctive and
declaratory relief. Hartman made the
following six claims:
(1) The county’s action in reducing the amount of
general relief and its failure to furnish relief in a reasonable amount
violates sec. 49.01(5m), Stats.
(2)
The county’s failure to establish written standards of need violates sec.
49.02(1m), Stats.
(3)
The county’s failure to engage in a procedure which is designed to determine a
reasonable standard of need violates the due process requirements of the
federal and state constitutions.
(4)
The county violated the minimum standards of sec. 49.032, Stats.
(5)
The county’s failure to provide adequate notice required by sec. 49.037(6),
Stats., prior to the implementation of the reduction in relief violated the due
process rights guaranteed by the federal and state constitutions.
(6)
The county’s adoption of a policy creating a ten-day limit on the right to
appeal violates sec. 49.037, Stats.; due process rights under the federal and
state constitutions; and creates a cause of action under 42 U.S.C. sec. 1983.
Id., unpublished slip op. at 3-4.
The trial court issued a temporary injunction enjoining the county from
implementing the relief reduction.
On
May 6, 1991, the board rescinded the September 10 reduction and restored the
benefits to the original levels. The
minutes indicate that the rescission was in response to the Hartman
litigation. The minutes of the May 6,
1991 meeting state:
John
Bodnar discussed the possibility of revoking the General Relief rent levels
which were set in 9/90, back to their original amount of $260. He indicated that we are involved in
litigation right now, and it will probably continue if we don’t lower the rent
levels. We are under an injunction
because we didn’t have adequate criteria for lowering the levels last
September.
Id., unpublished slip op. at 5 n.1 (emphasis added). The circuit court subsequently granted the
County’s motion to dismiss the class action as moot. Hartman appealed. See
id., unpublished slip op. at 5.
In
Hartman I, we held that despite the rescission, a question
remained as to whether the County had proper standards of need in place and, if
so, whether they were adequate under the applicable law. See id., unpublished slip op.
at 7. Because the matter was not moot
in this respect, we remanded to the circuit court for this determination. See id. On remand, the circuit court ruled that the
County had enacted valid standards.
Hartman appealed for a second time.
During
the pendency of the second appeal, Hartman v. Winnebago County,
No. 94-0022, unpublished slip op. (Wis. Ct. App. April 19, 1995) (Hartman
II), the supreme court decided Clark v. Milwaukee County,
188 Wis.2d 171, 524 N.W.2d 382 (1994).
Thereafter, the County moved this court to reopen the record or remand
to the circuit court for a determination as to whether the written standards of
need which were the subject of the second appeal complied with Clark. Hartman opposed the motion. See Hartman II, unpublished
slip op. at 3. We then received an
amended motion from the County advising that it had revised its written
standards of need to comply with Clark and that the revisions
made the issues on appeal moot. See Hartman
II, unpublished slip op. at 3.
The County asked that we either remand to the circuit court for a
determination or declare the appeal moot while Hartman sought a decision addressing
the adequacy of the new standards. See
id. Because the appeal
involved new law and facts which had not been considered by the circuit court,
we dismissed the appeal as moot. See
id., unpublished slip op. at 4-5.
Seven
months later, on November 16, 1995, Hartman filed their motion for an award of
attorney's fees under 42 U.S.C. § 1988 for work done on Hartman I
and II. The circuit court
found that Hartman was not a prevailing party; rather, whatever positive
results inured to Hartman came about because of the Clark
case. In the alternative, the circuit
court determined that Hartman’s motion was untimely and dismissed the
motion. Hartman appeals.
Hartman
first argues that their motion for attorney’s fees was timely. A plaintiff may not recover attorney’s fees
in his or her claim against the defendant unless such liability arises from a
specific statute or the contract of the parties. See Production Credit Ass’n v. Laufenberg, 143
Wis.2d 200, 203, 420 N.W.2d 778, 779 (Ct. App. 1988). Hartman claims attorney’s fees under 42 U.S.C. § 1988(b). In any action or proceeding to enforce a
provision of 42 U.S.C. § 1983, “[T]he court, in its discretion, may allow the
prevailing party, other than the United States, a reasonable attorney’s fee as
part of the costs.” Section 1988(b).[3] The determination of the amount of
reasonable attorney’s fees is discretionary with the trial court. See Thompson v. Village of Hales
Corners, 115 Wis.2d 289, 305, 340 N.W.2d 704, 712 (1983). A trial court’s award of attorney's fees
under § 1988 will only be reversed if the trial court misused its
discretion. See id.
Hartman
asserts that “[t]he only timeliness bar on attorneys’ fees applications
recognized in the White opinion [White v. New Hampshire
Dep’t of Employment Sec., 455 U.S. 445 (1982)], was a suggestion that
courts retained the discretion to deny fees ‘in cases in which a post-judgment
motion unfairly surprises or prejudices the affected party.’” Hartman maintains that their fee application
was filed within a reasonable time after the termination of the litigation
because the County was not unfairly surprised or prejudiced by the application.
The
County counters that an application for attorney’s fees is governed by §
806.06(4), Stats., which contains
a thirty-day deadline for the entry of a judgment. The County further argues that Hartman’s application “is not only
untimely under state law, but it is also untimely under Rule 54(d) of the
Federal Rules of Civil Procedure.” In
the alternative, the County maintains that Hartman’s application was not filed
within a reasonable time.
The
circuit court held in favor of the County.
The circuit court specifically found that (1) Hartman’s motion was
untimely because it was not filed within thirty days of the plaintiffs’ receipt
of notice of entry of the judgment under § 806.06(4), Stats.; (2) if federal law is applicable, the motion was
still “untimely because it was not filed within the 14-day limitation of Rule
54(d);” and (3) the motion “was not filed within a reasonable period of time as
a matter of law because it was filed more than six (6) months after entry of
the judgment.” We disagree.
There
are neither procedural rules nor Wisconsin cases discussing the timeliness of
attorney’s fees under 42 U.S.C. § 1988.
See, e.g., Gorton v. American Cyanamid Co., 194
Wis.2d 203, 230, 533 N.W.2d 746, 757 (1995) (holding § 805.16, Stats., time limits inapplicable to a
petition for attorney's fees, cert. denied, 116 S. Ct. 753 (1996)); Northwest
Wholesale Lumber, Inc. v. Anderson, Inc., 191 Wis.2d 278, 292, 528
N.W.2d 502, 508 (Ct. App. 1995) (requiring both §§ 814.025 and 802.05, Stats., frivolous-costs motions
be filed prior to the entry of judgment in the case). Accordingly, we adopt that rule set forth in White
regarding the timeliness of attorney’s fees.
The Supreme Court in White concluded that “[s]ection 1988
authorizes the award of attorney’s fees ‘in [the] discretion’ of the
court. We believe that this discretion
will support a denial of fees in cases in which a postjudgment motion unfairly
surprises or prejudices the affected party.”
White, 455 U.S. at 454.
Moreover, the concept of laches is that a party is to be forgiven his or
her unreasonable delay, provided it has had no prejudicial consequences. See Baird v. Bellotti,
724 F.2d 1032, 1033-34 (1st Cir. 1984).
Because there was no showing by the County, or a finding by the circuit
court, of unfair surprise or prejudice, we conclude that the trial court
misused its discretion in denying Hartman’s motion for § 1988 attorney’s fees
as untimely.
Our
conclusion is in keeping with the purposes of 42 U.S.C. § 1988(b) attorney’s
fees awards. The Civil Rights
Attorney’s Fees Awards Act of 1976, § 1988, was designed to allow private
individuals a meaningful opportunity to vindicate civil rights violations. See Ortiz v. Regan, 980 F.2d
138, 140 (2d Cir. 1992). Section 1988
instructs a lawyer to critically evaluate the prospects
for success in each potential civil rights claim, and it encourages the lawyer
to proceed only with those claims that are indeed meritorious. The lawyer can go forward with difficult
arguments, confident that the client’s fee award will reflect the obstacles
that the attorney overcomes. The lawyer
can go forward with nonmonetary claims, secure in the knowledge that the fee
award will not be diminished on account of the absence of damages.
Thompson, 115 Wis.2d at 312, 340 N.W.2d at 715 (quoting Cooper v. Singer,
719 F.2d 1496, 1502 (10th Cir. 1983)).
The litigant acts as a private attorney general “vindicating a policy
that Congress considered of the highest priority.” State ex rel. Hodge v. Town of Turtle Lake, 180
Wis.2d 62, 78, 508 N.W.2d 603, 609 (1993) (quoted source omitted); cf. Carlson
& Erickson Builders, Inc. v. Lampert Yards, Inc., 190 Wis.2d 650,
663-64, 529 N.W.2d 905, 910 (1995).
We
further conclude that § 806.06(4), Stats.,
does not govern the time limits for an application for attorney’s fees. Section 806.06(4) provides in relevant part,
“A judgment may be rendered and entered at the instance of any party either
before or after perfection. If the
party in whose favor the judgment is rendered causes it to be entered, the
party shall perfect the judgment within 30 days of entry or forfeit the right
to recover costs.” This presents a
question of statutory construction, which we review as a question of law
independently of the trial court. See
State v. Timmerman, 198 Wis.2d 309, 316, 542 N.W.2d 221, 224 (Ct.
App. 1995). When construing a statute,
our purpose is to determine and give effect to the intent of the
legislature. See id. We give the language of an unambiguous
statute its ordinary meaning. See id.
We
conclude that § 806.06(4), Stats.,
is not ambiguous. Judgment, as referred
to in § 806.06(4), is a final or interlocutory determination of the action. See §806.01(1)(a), Stats.
However, we have previously explained that an attorney’s fee issue under
42 U.S.C. § 1988 is related to but separate from the underlying action. See ACLU v. Thompson, 155
Wis.2d 442, 446-47, 455 N.W.2d 268, 270 (Ct. App. 1990). “A petition for attorney fees ¼ is not trial-related;
rather, it is verdict-related as it is predicated on a party’s prevailing party
status.” Gorton, 194
Wis.2d at 230, 533 N.W.2d at 757. In
particular, attorney’s fees awardable in a civil rights action under § 1988
“are not compensation for the injury giving rise to an action. Their award is uniquely separable from the
cause of action to be proved at trial.”
Thompson, 155 Wis.2d at 447, 455 N.W.2d at 270 (quoting White,
455 U.S. at 452). Since petitions for §
1988 attorney’s fees are separate from the judgment underlying the suit, we
decline the County’s invitation to base the time limit for filing a petition
for attorney’s fees upon the statute governing the underlying judgment.
Moreover,
a strong policy disfavors interlocutory, multiple or piecemeal appeals. See Thompson, 155 Wis.2d at
448, 455 N.W.2d at 271. Even though
multiple appeals may occur under 42 U.S.C. § 1988, the Thompson
holding suggests that in order to economize time, circuit courts should
postpone a fee issue until after appeal.
See Thompson, 155 Wis.2d at 448, 455 N.W.2d at 271. Contrary to the County’s position, we do not
take this to mean that petitions for attorney’s fees must be filed prior to the
entry of judgment. Rather, we interpret
Thompson as proposing just the opposite procedure—if plaintiff
prevails at trial and defendant prevails on appeal, the fee issue becomes moot;
if, however, plaintiff prevails on appeal, the trial court can dispose of
plaintiff’s trial and appellate fees in a single hearing. See id.
Lastly,
we note that the circuit court’s order alternatively applied Rule 54(d) of the Federal Rules of
Civil Procedure to this case. This
position is untenable. The Federal
Rules of Civil Procedure are only applicable to proceedings in the “Courts of
the United States, and can not be applied to the practice or procedure in State
Courts.” See Rader v.
Baltimore & O.R. Co., 108 F.2d 980, 986 (7th Cir. 1940).[4]
Next,
Hartman contends that they are “prevailing parties” within the meaning of 42
U.S.C. § 1988 and are therefore entitled to an award of attorney’s fees. The circuit court disagreed and denied their
motion. “The standard of review of an
award of attorneys' fees to the prevailing party under § 1988 is whether the
trial court [misused] its discretion in making or denying the award.” Stewart v. McGinnis, 5 F.3d
1031, 1039 (7th Cir. 1993) (quoted source omitted). We only find a misuse of discretion if “no reasonable person could
take the view adopted by the trial court.”
Id.
A
plaintiff must be a “prevailing party” to recover attorney’s fees under 42
U.S.C. § 1988. See Maher v. Gagne,
448 U.S. 122, 129 (1980). A plaintiff
may be a prevailing party for purposes of § 1988 even if the defendant
voluntarily provides the relief sought rather than litigating the suit to
judgment. See Zinn v. Shalala,
35 F.3d 273, 274 (7th Cir. 1994).
Indeed, attorney’s fees can be appropriately awarded when a suit has
been mooted due to the defendant’s voluntary action. See Hewitt v. Helms, 482 U.S. 755, 760-61 (1987)
(when a lawsuit produces voluntary action by the defendant that affords the
plaintiff all or some of the relief he or she sought through a judgment, the
plaintiff is nevertheless deemed to have prevailed); see also J.S.
v. DHSS, 144 Wis.2d 670, 680-81, 425 N.W.2d 15, 20 (Ct. App. 1988).
In
such a case, the two-part catalyst test is applied. See Zinn, 35 F.3d at 274. The catalyst test requires the plaintiff to first show that his
or her lawsuit is causally linked to the relief obtained, “i.e. the suit must
be a ‘substantial factor or a significant catalyst’ in prompting the defendants
to act or cease their behavior.” Kansas
Health Care Ass'n v. Kansas Dep’t of Soc. and Rehabilitation Servs., 31
F.3d 1052, 1053 (10th Cir. 1994). The
plaintiff must also establish that the defendant’s conduct was required by the
Constitution or federal law, “i.e. the defendant’s actions [in response to the
lawsuit] must be legally required.”[5] Id.
A
different standard of review applies to each step of this test. The first element involves a factual
inquiry—whether the lawsuit caused the defendant to act. Thus, “[i]f the ‘prevailing party’ issue
turns on the first element, then the appellate court should apply the clearly
erroneous standard of review.” Id. The second element primarily requires legal
analysis; accordingly, “[i]f the ‘prevailing party’ issue is resolved by
whether a defendants’ actions are legally required, then de novo review
is appropriate.” Id.
Hartman
contends that they have satisfied both elements. They first point out that this court found that a causal
connection existed in Hartman I.
They further argue that the County’s eventual establishment of standards
“was not only caused by the litigation, but was required by not only state law
but federal constitutional due process as well.” As alleged in their complaint, “[T]he county’s failure to engage
in a procedure which is designed to determine a reasonable standard of need
violates the due process requirements of the federal and state constitutions.”
The
circuit court found that “[p]laintiffs have failed to meet their burden of
proving and the record fails to show that defendants’ actions were the result
of any determination on the merits of their litigation ¼.” The circuit court also found that the
plaintiffs had not demonstrated that they were prevailing parties in this
action—they “did not prevail on any issue relating to their claims for civil
rights violations” or “on any of the other claims that they made.”
We
disagree. First, the record clearly
establishes that the County rescinded the reduction in benefits in response to
the Hartman suit. The minutes indicate
that John Bodnar, corporate counsel, “discussed the possibility of revoking the
General Relief rent levels which were set in 9/90, back to their original
amount of $260. He indicated that we
are involved in litigation right now, and it will probably continue if we don’t
lower the rent levels.” This court has
previously determined that “the rescission was in response to the litigation
rather than in response to its statutory duty to issue written standards of
need.” Hartman I,
unpublished slip op. at 6. We therefore
conclude that Hartman has met the causal element; the circuit court’s finding to
the contrary is clearly erroneous.
As
to the second prong, we conclude that the County was legally required to
establish written standards of need to be used to determine the type and
amount of general relief to be furnished under § 49.02(1m), Stats., and therefore, Hartman’s claim
was not groundless or unreasonable. As
pointed out by the circuit court, the County maintained throughout the
litigation, at least until the post-Clark revisions, that “the
general relief benefits and the schedule established by the county are their
determination in writing of the standards of need ¼.” The circuit court found that the schedule
satisfied the statutory requirements.
The
circuit court misused its discretion in making this finding. As the supreme court made clear in Clark,
“[w]ritten benefit levels are not the equivalent of written standards of
need.” Clark, 188 Wis.2d
at 181, 524 N.W.2d at 386. “[W]ritten
standards of need must focus upon the quality and quantity of rental units
available to those in need of the general relief shelter allowance.” Id. Under § 49.02(1m), Stats.,
the County must set minimum standards for adequate and decent housing and then
use those standards to objectively establish the shelter allowance which is
then paid to eligible recipients. See
Clark, 188 Wis.2d at 181-82, 524 N.W.2d at 386. As Hartman alleged, the County was required
by law to establish written standards of need, i.e., more than the basic
schedule.
We
also disagree with the circuit court’s statement that “[t]he reason for any
results that came about was because of the Clark case which is pointed
out.” Hartman unequivocally challenged
the statutory and due process violations by the County’s failure to have
written standards as required by § 49.02(1m), Stats.,
and sought declaratory and injunctive relief to prevent its enforcement. However, the County’s revisions eliminated
the possibility of using only the schedule to distribute shelter allowances,
thus assuring that any future distributions would be based on written standards
of need. The fact that the 1995
revision effectively resolved the key issue of Hartman’s case does not mean
that Hartman somehow failed in their effort to cure a constitutionally and
statutorily defective general relief schedule of benefits. The County recognized that the schedule was
inadequate and required revisions. The
fact that amendments were necessary, combined with the fact that the County did
not act until sued, illustrates the “cause and effect” that enables Hartman to
claim success. See Richard
v. City of Pasadena, 889 F. Supp. 384, 390 (C.D. Cal. 1995) (The
chronology of events and defendants’ own statements “demonstrate the ‘cause and
effect’ that enables plaintiffs to claim success—defendants acquiesced, and
quickly at that.”). We conclude that
Hartman prevailed in obtaining an important part of the relief they
sought—written standards of need for use in setting the shelter allowance.
Moreover,
the County has failed to show “the worthlessness of plaintiff’s claims and
explain why [defendant] nonetheless voluntarily gave the plaintiffs the
requested relief.” See id.
at 388-89 (quoted source omitted). In
the County’s motion to amend to this court, dated January 27, 1995, it
acknowledged that revisions to the general relief policy were required to
comply with “the mandates of the Clark decision.” This argument necessarily concedes that
Hartman’s challenge to the County’s original benefit schedule was well taken in
the first instance. Furthermore, there
is absolutely no evidence that the County would have adopted the 1995 revisions
but for Hartman’s lawsuit. At the time
Hartman sued (in 1990), the County’s original benefit schedule was statutorily
(and constitutionally) deficient and it took separate revisions (in 1995) to
rescue it. Under these circumstances,
Hartman’s claims were far from groundless.
In
sum, we conclude that because there was no showing by the County of unfair
surprise or prejudice, the trial court misused its discretion in denying, as
untimely, appellants' motion for attorney’s fees under 42 U.S.C.
§ 1988. We further conclude that
the appellants were the prevailing parties in this suit within the meaning of §
1988 and are therefore entitled to an award of attorney’s fees. Accordingly, we reverse the trial court’s
order to the contrary and we remand for a determination of reasonable
attorney’s fees utilizing the “lodestar”—the number of hours reasonably
expended on the litigation multiplied by a reasonable hourly rate—as its starting
point. See Bialk v.
Milwaukee County, 180 Wis.2d 374, 381-82, 509 N.W.2d 334, 338 (Ct. App.
1993).
By
the Court.—Order reversed and
cause remanded with directions.
[1] The two unpublished decisions are: Hartman v. Winnebago County,
No. 91-2414, unpublished slip op. (Wis. Ct. App. April 22, 1992) (Hartman
I), and Hartman v. Winnebago County, No. 94-0022,
unpublished slip op. (Wis. Ct. App. April 19, 1995) (Hartman II).
[2] The general relief program at issue in this
case was amended by 1995 Wis. Act 27, §§ 2638 through 3220. However, the changes do not affect our
analysis on appeal.
[3] Fees may be awarded under 42 U.S.C. § 1988
to a prevailing party who is represented by a nonprofit counsel. Blum v. Stenson, 465 U.S. 886,
895 (1984). In such circumstances, the
award belongs to the organization which provided counsel. Shands v. Castrovinci, 115
Wis.2d 352, 361, 340 N.W.2d 506, 510 (1983).
[4] We acknowledge the County's argument that
because the federal rules have changed, we should not apply White. The flaw in this argument is that the
Wisconsin Rules of Civil Procedure have not changed in accordance with the
Federal Rules of Civil Procedure.
Accordingly, we conclude that the standards enunciated in White
are applicable.
[5] The catalyst test was first enunciated in Nadeau
v. Helgemoe, 581 F.2d 275 (1st Cir. 1978), and was adopted by the
Seventh Circuit in Harrington v. DeVito, 656 F.2d 264 (7th Cir.
1981). The circuits however have
emphasized different language from Nadeau in determining the
second prong. Some emphasize “required
by law;” whereas the Seventh Circuit considers whether the plaintiff’s claim,
if pressed, would have been “frivolous, unreasonable, or groundless.” Zinn v. Shalala, 35 F.3d 273,
274 (7th Cir. 1994). The latter
language is considered by some circuits as only one example of the type of
conduct referred to by the court, i.e., required by law. See Kansas Health Care Ass'n v.
Kansas Dep’t of Soc. and Rehabilitation Servs., 31 F.3d 1052, 1055
(10th Cir. 1994). Both analyses look to
the provocative role of the plaintiff’s lawsuit and not the motivations of the
defendant. See Nadeau,
581 F.2d at 280. We will address both
variations, in terms of “required by law” and “frivolous, unreasonable, or
groundless.”