Too Much by Half

In re Butler, No. A139411 (D1d2 May 15, 2015)

The court of appeal appointed some lawyers at Keker & Van Nest to represent a prisoner who was challenging parole eligibility regulations for prisoners on life sentences. The Keker lawyers were able to negotiate a settlement where the Board of Prison Terms agreed to amend the regs to resolve the problem. Keker now seeks to recover $440k in fees under Code of Civil Procedure § 1021.5, which permits a fee award to a party that obtains a significant public benefit and the interests of private enforcement make an award appropriate. The Board claims that no benefit was achieved and that the requested fees are unreasonable.

For complicated reasons involving state sentencing law, the court finds that the Keker lawyers did, in fact, secure a public benefit. As to the reasonableness of the fees, because this is an original proceeding in habeas, the court of appeal tries both fact and law here. The court just says, without explanation, that it believes the fees are “excessive and unreasonable” and orders the parties to try to work it out over twenty days. If that doesn’t work, the court will decide. The court then tips its hand a little, noting that “while the members of this panel are not currently in agreement as to the specific amount of a reasonable fee, all agree it is somewhat less than half the amount requested.”