CONNIE ZESCH-LUENSE, Complainant,

and

IOWA CIVIL RIGHTS COMMISSION,

vs.

THE CHICKEN HOUSE and ROBERT PLILEY, Respondents,

I. Procedure:

1A. In this case, the parties were given the opportunity to have an evidentiary hearing on the attorney's fee issue, but the Respondents chose not to participate. Therefore, this award is based on a review of the attorney's fee affidavit and other information in the record. See Findings of Fact Nos. 1A-2A. An award of attorneys fees may be made in the absence of a separate evidentiary hearing where, as here, the opportunity for an attorneys fees hearing has been provided and all parties have elected to not take advantage of the opportunity. See Rouse v. Iowa Department of Transportation, 408 N.W.2d 767, 768 (Iowa 1987).

II. Official Notice:

A. Official Notice in General:

2A. Official notice was taken of certain facts in this case. See Findings of Fact Nos. 10A, 12A, 13A. Official notice may be taken of all facts of which judicial notice may be taken and of other facts within the specialized knowledge of the agency. Iowa Code S 17A.14(4) (1991). Judicial notice may be taken of matters which are "common knowledge or capable of certain verification." In Re Tresnak, 297 N.W.2d 109, 112 (Iowa 1980). Judicial notice does not depend on actual knowledge of the judge. He may investigate and refresh his recollection of facts by any means he deems to be safe and proper. Haaren v. Mould, 144 Iowa 296, 303, 122 N.W. 921 (Iowa 1909).

B. Official Notice and Statistics:

3A. Judicial notice may also be taken of other impartial compilations of statistical data, such as census statistics, Iron Workers Local No. 67 v. Hart, 191 N.W.2d 758, 769 (Iowa 1971), case processing statistics set forth in annual reports of the Iowa Civil Rights Commission, Estabrook v. Iowa Civil Rights Commission, 283 N.W.2d 306, 311 (Iowa 1979), or industry data. 29 AM. JUR. 2d Evidence S 112 & n.8 (1967).

C. Official Notice and Attorney's Fees:

4A. Judicial notice may also be taken of facts generally known in the legal profession. In Re Tresnak, 297 N.W.2d 109, 112 (Iowa 1980); see State v. Kaufman, 202 Iowa 157, 161, 209 N.W. 417 (Iowa 1926). Similarly, an adjudicator who is an attorney, as the Commission's Administrative Law Judge is, may determine the value of a lawyer's services based on the judge's own knowledge. 29 AM. JUR. 2d Evidence S 82 (1967)(citing In Re Gudde's Will, 260 Wis. 79, 49 N.W.2d 906). A court is presumed to have some knowledge of the value of an attorney's services, particularly when the services were rendered in the court's own jurisdiction and presence. See Kratz v. Heins, 169 N.W. 33 (Iowa 1918); Gates v. McClenahan, 103 N.W. 969 (Iowa 1905). It is reasonable to conclude that an administrative tribunal with the authority to award attorney's fees and experience in doing so also has such expertise as part of the "specialized knowledge of the agency." Iowa Code S 17A.14(4). Cf. Lynch v. City of Des Moines, 464 N.W.2d 236, 240 (Iowa 1990)(court is an expert on attorney fees and need not adopt fees suggested by expert witnesses); Landals v. Rolfes, 454 N.W.2d 891, 897 (Iowa 1990)(court an expert on attorney fees); Parrish v. Denato, 262 N.W.2d 281, 285 (Iowa 1978)(court an expert on fees, but cannot exclude other relevant evidence). See e.g. Mike DeVolder, 11 Iowa Civil Rights Commission Case Reports 135, 135-36, 150-51 (1992)(award of fees to complainant); Frank Robinson, 11 Iowa Civil Rights Commission Case Reports 67, 69 (1991)(same); Ruth Miller, 11 Iowa Civil Rights Commission Case Reports 44 (1990)(fees for employer on motion for sanctions); Diane Humburd, 10 Iowa Civil Rights Commission Case Reports 13 (1989)(award of fees to complainant).

III. Legal Authority and Standards for Awarding Attorney's Fees:

5A. In the Mike DeVolder case, the Commission set forth the following principles concerning the legal authority for the award of attorney's fees, the underlying purpose of such an award, and the legal standards for such an award:

Reasonable Attorney's Fees Remedy:

5A. The Iowa Civil Rights Act allows the award of "reasonable attorneys fees" as part of the remedial action which the Commission may take in response to the Respondents' discriminatory practices. Iowa Code S 601A.15(8)(a)(8) (1991). Attorneys fees can only be awarded to complainants when discrimination has been proven. See Id. The burden of persuasion is upon the Complainant to prove "both that the services were reasonably necessary and that the charges were reasonable in amount." Landals v. George A. Rolfes, Co., 454 N.W.2d 891, 897 (Iowa 1990).
6A. The reason for awarding attorneys fees to prevailing complainants in contested cases under the Iowa Civil Rights Act is the same as that for awarding attorneys fees to prevailing plaintiffs in civil actions brought under the Act, i.e. "to ensure that private citizens can afford to pursue the legal actions necessary to advance the public interest vindicated by the policies of the civil rights acts." Ayala v. Center Line, Inc., 415 N.W.2d 603, 605 (Iowa 1987)(citing Newman v. Piggie Park Enterprises, 390 U.S. 400, 401-02, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263, 1265-66 (1968)). Therefore, a prevailing complainant "should ordinarily recover an attorneys fee." Newman v. Piggie Park Enterprises, 390 U.S. 400, 402, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968)(emphasis added).

Standards for Awarding Attorney's Fees:

7A. It is the policy and practice of this "Commission to award reasonable attorneys fees to successful complainants for services performed at all stages of the administrative complaint process." Diane Humburd, 10 Iowa Civil Rights Commission Case Reports 13, 15 (1990)(Supplemental Decision).

8A. The amount of the attorneys fee to be awarded depends on the facts of each case. Hensley v. Eckerhart, 461 U.S. 424, 429, 103 S. Ct. 1933, 76 L.Ed. 2d 40, 48 (1983). Where, as here, agreement on the attorneys fees issue has not been reached, the successful complainant bears the burden of establishing the amount of her attorneys fees by "documenting the appropriate hours expended and hourly rates." Id., 461 U.S. at 437, 76 L.Ed. 2d at 53. The complainant's attorney is not required to document each minute of his time in great detail, but should identify the general subject matter of his time expenditures. Id. & n.12.

Mike DeVolder, 11 Iowa Civil Rights Commission Case Reports 135, 143 (1992). The burden of proof described above has been met here. See Finding of Fact No. 20A.

IV: Attorney's Fees: The "Lodestar" Calculation and Factors Used In Determining Reasonable Attorney's Fees:

6A. The Commission's decision in the DeVolder case also set forth the following legal principles, which were applied in this case, concerning the "lodestar" calculation and factors used in determining what is a reasonable attorney's fee in a civil rights case:

The Lodestar Calculation (Hours Reasonably Expended Multiplied by a Reasonable Hourly Rate):

9A. "The initial estimate of a reasonable attorney's fee is properly calculated by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate." Blum v. Stenson, 465 U.S. 886, 888, 104 S.Ct. 1541, 79 L.Ed. 2d 891, 895 (1984). The product of this calculation is known as the "lodestar." Landals v. George A. Rolfes Co., 454 N.W.2d 891, 898 (Iowa 1990).

Determination of Hours Reasonably Expended:

10A.

Cases may be overstaffed, and the skill and experience of lawyers vary widely. Counsel for the prevailing party should make a good-faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission. "In the private sector, 'billing judgment' is an important factor in fee setting. It is no less important here. Hours that are not properly billed to one's client also are not properly billed to one's adversary."

Hensley v. Eckerhart, 461 U.S. at 434, 76 L.Ed. 2d at 50-51 (Quoting Copeland v. Marshall, 205 U.S. App. D.C. 390, 401, 641 F.2d 880, 891 (1980)(en banc)(emphasis in original)). "Hensley requires a fee applicant to exercise "billing judgment" not because he should necessarily be compensated for less than the actual number of hours spent litigating a case, but because the hours he does seek compensation for must be reasonable." Riverside v. Rivera, 477 U.S. 561, 569, 106 S.Ct. 2686, 91 L. Ed. 2d 466, 476 at n.4. In light of the complexity of this case, and other appropriate factors, the number of hours expended has been found to be reasonable. . . ."Thus, counsel did, in fact, exercise the 'billing judgment' recommended in Hensley." Id.

11A. Although hours may be excluded after examination of the claims in light of appropriate factors, Lynch v. City of Des Moines, 464 N.W.2d 236, 240 (Iowa 1990), the tribunal is not required to reduce hours claimed and may award all hours claimed if it believes such hours were reasonably expended after viewing the case as a whole. Landals v. George A. Rolfes, Co., 454 N.W.2d 891, 897 (Iowa 1990).

. . .

Factors Considered in Determining a Reasonable Hourly Rate and Reasonable Hours Expended:

14A. The courts have relied on two sets of factors which should be taken into account in determining "whether services were reasonably necessary and that the charges were reasonable in amount." Landals v. George A. Rolfes Co., 454 N.W.2d 891, 897 (Iowa 1990). These lists are somewhat duplicative. . . .In Iowa, the controlling authority provides:

Appropriate factors to consider in allowing attorney fees include the time necessarily spent, the nature and extent of the service, the amount involved, the difficulty of handling and importance of the issues, the responsibility assumed and results obtained, the standing and experience of the attorney in the profession, and the customary charges for similar service.

Id.

15A. A case frequently relied upon in the Federal courts, and other state courts, is Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974), which lists twelve factors derived from the American Bar Association Code of Professional Responsibility, Disciplinary Rule 2-106. Hensley v. Eckerhart, 461 U.S. at 430, 76 L.Ed. 2d at 48 & n.3. These same factors are set forth, although organized as eight and not twelve factors, in the Iowa Code of Professional Responsibility for Lawyers. DR 2-106(B).

16A.

The 12 [Johnson] factors are (1) the time and labor required; (2) the novelty and difficulty of the case; (3) the skill requisite to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the "undesirability" of a case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.

Hensley v. Eckerhart, 461 U.S. at 430, 76 L.Ed. 2d at 48 n.3.

17A. Where, as here, the case presents related claims, all of which were successful, the Commission "should focus on the overall relief obtained by the [complainant] in relation to the hours reasonably expended on the litigation." Id., 461 U.S. at 435, 76 L.Ed. 2d at 51-52. An award of a fully compensatory fee, including compensation for all hours reasonably expended during the litigation, should be made when the complainant has obtained excellent results, as this complainant has. Id., 461 U.S. at 435, 76 L.Ed. 2d at 52. . . . .

Adjustment of the Lodestar:

18A. Although there is a rebuttable presumption that the lodestar amount represents a reasonable hourly rate, Blum v. Stenson, 465 U.S. 886, 897, 104 S.Ct. 1541, 79 L. Ed. 2d 891, 901 (1984), the "lodestar" may be further adjusted either upward or downward based on the important factor of "results obtained", Hensley v. Eckerhart, 461 U.S. at 434, 76 L.Ed. 2d at 51; Schlei & Grossman, Employment Discrimination Law: Five Year Cumulative Supplement 554 (1989), or on the other factors set forth above if they are not fully accounted for in the lodestar. Blum v. Stenson, 465 U.S. at 897, 79 L. Ed. 2d 91, 901 n.14 (1984); Hensley v. Eckerhart, 461 U.S. at 434, 76 L. Ed. 2d at 51 & n.9.

Mike DeVolder, 11 Iowa Civil Rights Commission Case Reports 135, 143-145 (1992).

7A. In accordance with the above principles, the lodestar figure (hours reasonably expended multiplied by a reasonable hourly rate) results in a reasonable attorney's fee of $1507.50. There is no need for further adjustment of the attorney's fee amount. See Finding of Fact No. 20A.