CIULLA v. RIGNY

89 F. Supp.2d 97 (2000) | Cited 0 times | D. Massachusetts | March 8, 2000

MEMORANDUM AND ORDER

I. INTRODUCTION

This rather anomalous case would have little significancebeyond the litigants and the people of Gloucester, Massachusetts,were it not for the fact that the Court is here compelled toanalyze the profound contribution made by the American jury tothe very structure and fabric of American law. In this case, theplaintiff, exaggerating the indignity of a search of her personincident to her arrest, sued, claiming that both the scope andlocation of the search violated her civil rights. Her compellingtale of having been "strip-searched" following a traffic stopearned her a trial by jury. The jury saw through her fabricationswith relative ease,1 but while they were at it, condemned the"location" of the search pursuant to a proper legal charge andawarded the plaintiff $1.00 in nominal damages. The Court thenpromptly took the dollar away from the plaintiff on the groundthat her constitutional right to be free of a search in thatlocation had not been "clearly established" prior to the jury'sverdict.

Despite her deceit, the plaintiff now argues that the"provocative role of the lawsuit" in enhancing and establishingthe civil rights of the people of Gloucester entitles her toattorneys' fees and costs as the "prevailing" party.

II. BACKGROUND AND PROCEDURAL POSTURE

In August 1996, Jennifer Ciulla ("Ciulla") was pulled overwhile driving in Gloucester, Massachusetts, by an off-duty policeofficer, Lieutenant Miles Rigny ("Rigny"). Rigny arrested Ciullafor reckless driving and operating a vehicle after her licensehad been revoked. Ciulla was transported to the Gloucester PoliceDepartment, placed in a holding cell, and searched by a femaleemployee of the Gloucester Police, Gen Linsky ("Linsky"), who wasthe matron-on-call. In her complaint, during pre-trialproceedings, and at trial, Ciulla took the position that she wasordered by Linsky to "submit to a strip search, against herwill." Am. Compl. ¶ 12. Specifically, Ciulla claimed that Linskyrequired her "to lift and/or remove her clothing, therebyexposing her breasts and genital area to Linsky." Id. ¶ 13. Incontrast, Linsky rather diffidentlytestified that she only asked Ciulla to pull her top away fromher body and roll down the top of her shorts a few inches, bothwith minimum exposure, so that she could be sure Ciulla was notconcealing anything in her bra or the waistband of herundergarment2 (for the purposes of this opinion, a "minimumexposure search"). Linsky then at once backed off.

During a view3 of the Gloucester police station, the juryobserved that there was a glass window that looked in on theholding cell where Ciulla had been searched. On the other side ofthe window lies a small observation room which, as revealedduring trial, is accessible by police officers and neverlocked.4 At trial, Ciulla testified that Rignysurreptitiously watched Linsky conduct the purported strip-searchthrough the window. Arguing that the strip-search wasunreasonable and Rigny's alleged peeping-Tom act was a furtherinvasion of her liberty, Ciulla asserted claims against Rigny,Linsky, and the City of Gloucester for (i) violations of42 U.S.C. § 1983, 42 U.S.C. § 1986, and Mass. Gen. Laws ch. 12, §11I (collectively, the "civil rights claim"); (ii) intentionalinfliction of emotional distress, and (iii) negligent inflictionof emotional distress. See Am. Compl. ¶ 1. Ciulla's husband,Lawrence Ciulla, asserted a claim for loss of consortium. Seeid.

At the conclusion of a five-day trial, a jury found for Ciullaagainst Linsky on the civil rights claim. As a basis for theirverdict, in response to a special interrogatory, the jury statedthat "while we do not credit the testimony of Jennifer Ciulla,the search that was conducted was unreasonable as respects itsnecessity, manner, or location." Jury Verdict ¶ 1. The juryunderlined the word "location." See id. The jury assessed nocompensatory damages and only one dollar in punitive damages.See id. The jury rejected all of the other claims. See id. ¶¶2-4.

After trial, Linsky filed a motion for judgment notwithstandingthe verdict. Determining that prior to the trial it was notclearly established that conducting a minimum exposure search ina location resembling the holding cell in question wasconstitutionally unreasonable, this Court granted Linsky's motionon the basis of qualified immunity. Despite this Court's ruling,Ciulla here presses her motion for attorneys' fees and costsseeking a total of $87,650.77.

III. WHO PREVAILED?

Both 42 U.S.C. § 1988(b) and Mass. Gen. Laws ch. 12, § 11Iauthorize the Court to award attorneys' fees and costs to aprevailing party in a civil rights action. A determination ofqualified immunity does not prevent a party who otherwiseprevailed from obtaining a fee award. See Pulliam v. Allen,466 U.S. 522, 543-44, 104 S.Ct. 1970, 80 L.Ed.2d 565 (1984); Handyv. Penal Insts. Comm'r of Boston, 412 Mass. 759, 763 n. 4,592 N.E.2d 1303 (1992). Decisions in the First Circuit haverecognized that a plaintiff may through litigation winsignificant practical relief favorable to her position, and thus"deserve attorneys' fees, even without a formal victory; forexample, the so-called `catalyst' theory might justify an awardwhere the defendant abandoned an unlawful practice after the casewas brought, as a direct result of the lawsuit. . . ." Stantonv. Southern Berkshire Reg'l Sch. Dist., 197 F.3d 574, 577 (1stCir. 1999) (Boudin, J.) (citing Pearson v. Fair, 980 F.2d 37,43-45 [1st Cir. 1992]).5 Moreover, at least in Massachusetts,courts have determined that a prevailing party may be one whosimply prevailed on a "question of law . . . of `substantialpublic interest'" although obtaining no monetary relief.Batchelder v. Allied Stores Corp., 393 Mass. 819, 822,473 N.E.2d 1128 (1985) (quoting Batchelder v. Allied Stores Int'l,Inc., 388 Mass. 83, 86, 445 N.E.2d 590 [1983]); see alsoZurakowski v. D'Oyley, 46 F. Supp.2d 87, 88 (D.Mass. 1999)(applying Batchelder as the controlling decision as toMassachusetts law but denying attorneys' fees since the plaintiffprevailed only on a matter of law of no substantial publicinterest). "Again, the inquiry is a practical one." Stanton,197 F.3d at 577.

Based on the verdict slip, the Court concludes that the juryhere did not believe Ciulla's claim that she was "strip-searched"and found the minimum exposure search unreasonable only becauseof its location. At its broadest reach, the jury verdict may beread as finding that it is constitutionally unreasonable forpolice to conduct a minimum exposure search in a "room with aview." At the very least, Ciulla established to the jury'ssatisfaction that it is constitutionally unreasonable for theGloucester Police Department to continue conducting such searchesin that particular location without at least hanging a shade onthe window to the holding cell. Either way, the verdict'ssignificance lies in the fact that the jury deemed an obtrusivesearch that falls short of a strip search constitutionallyunreasonable because of location, a verdict which extends FourthAmendment protections further than prior federal decisions. SeeLogan v. Shealy, 660 F.2d 1007, 1014 (4th Cir. 1981) (holdingunreasonable "a strip search [conducted] in an area exposed tothe general view of persons known to be in the vicinity")(emphasis added).

`So what?' argues defense counsel. A jury's decision does notestablish "the law" and a jury verdict in itself has noprecedential authority. See Howard v. Wal-Mart Stores, Inc.,160 F.3d 358, 359 (7th Cir. 1998); Summers v. Watkins MotorLines, 323 F.2d 120, 123 (4th Cir. 1963). It is only thejudgment that enters after the jury verdict that carries claimpreclusive effect. See Restatement (Second) of Judgments §13 (1982) ("The rules of res judicata are applicable only when afinal judgment is rendered."). And here, as defense counselpoints out, the ultimate judgment awards nothing to Ciulla.

In the interesting circumstances of this case, however, defensecounsel is quite wrong. "Every legal decision depends upon amelding of the generalized standard with the particular facts athand. [If i]t is the judge who teaches how the melding is to takeplace in each individualized instance," 1 William G. Young, JohnR. Pollets & Christopher Poreda, Massachusetts Evidence §102.1, at 15 (2d ed. 1998) ("Massachusetts Evidence"), then it isemphatically the jury that gives practical meaning and substanceto the generalized standard by "inject[ing] community values intojudicial decisions," Note, The Right to a Jury Trial in ComplexCivil Litigation, 92 Harv. L.Rev. 898, 898 (1979) and by"`constantly bringing the rules of law to the touchstone ofcontemporary common sense.'" Commonwealth v. Canon,373 Mass. 494, 516, 368 N.E.2d 1181 (1977) (Abrams, J., dissenting)(quoting 1 W. Holdsworth, A History of English Law 348-49 [3ded. 1922]).

"`The American jury must rank as a daring effort in humanarrangement to work out a solution to the tensions between lawand equity and anarchy.'" H. Ziesel, The American Jury, in FinalReport: The American Jury System 72 (Roscoe Pound & AmericanTrial Lawyers Foundation eds. 1977) (quoting the lastparagraph in H. Kalvens & H. Zeisel, The American Jury [1966]).

No other legal institution sheds greater insight into the character of American justice.

[Indeed a]s an instrument of justice, the civil jury is quite simply the best we have. `[T]he greatest value of the jury is its ability to decide cases correctly.' Joiner, From the Bench, in The Jury System in America 146 (R. Simon ed. 1975). We place upon juries no less a task than discovering and declaring the truth in each case. In virtually every instance these twelve men and women, good and true, rise to the task, finding the facts and applying the law as they in their collective vision see fit. In a very real sense, therefore, a jury verdict actually embodies our concept of `justice.'

Jurors bring their good sense and practical knowledge into our courts. Reciprocally, judicial standards and a respect for justice flow out to the community. See Patrick Higginbotham, Continuing the Dialogue: Civil Juries and the Allocation of Judicial Power, 56 Tex.L.Rev. 47, 59 (1977). The acceptability and moral authority of the justice provided in these courts rests in large part on the presence of the jury. . . . It is through this process, where rules formulated in light of common experience are applied by the jury itself to the facts of each case, that we deliver the very best justice we as a society know how to provide.

The jury system proves the wisdom of the Founders in their utilization of direct democracy to temper the potential excesses of the only unelected branch of government. `[T]he jury achieves symbolically what cannot be achieved practically — the presence of the entire populace at every trial.' P. D'Perna, Juries on Trial 21 (1984). Through the jury we place the decisions of justice where they rightly belong in a democratic society: in the hands of the governed. One could scarcely imagine that the Founders would have created a system of courts with appointed judges were it not for the assurance that the jury system would remain. In a government `of the people' the justice of the many cannot be left to the judgment of the few. Nothing is more inimical to the essence of democracy than the notion that government can be left to elected politicians and appointed judges. As Tocqueville so elegantly put it, `[t]he jury system . . . [is] as direct and as extreme a consequence of the sovereignty of the people as universal suffrage.' 1 A. de Tocqueville, Democracy in America 29 (H. Reeve text 1945). Like all government institutions, our courts draw their authority from the will of the people to be governed. The law that emerges from these courts provides the threads from which all our freedoms are woven. It is through the rule of law that liberty flourishes. Yet, `there can be no universal respect for law unless all Americans feel that it is their law.' Kaufman, A Fair Jury — The Essence of Justice, 51 Judicature 88, 91 (1967) (emphasis in original). Through the jury, the citizenry takes part in the execution of the nation's laws, and in that way each can rightly claim that the law belongs partly to her.

Only because juries may decide most cases is it tolerable that judges decide some. However highly we view the integrity and quality of our judges, it is the judges' colleague in the administration of justice — the jury — which is the true source of the courts' glory and influence. The involvement of ordinary citizens in a majority of a court's tasks provides legitimacy to all that is decreed. When judges decide cases alone they `are still surrounded by the recollection of the jury.' Tocqueville, supra at 297. Their voices, although not directly those of the community itself, echo the values and the judgments learned from observing juries at work. In reality, ours is not a system where the judges cede some of their sovereignty to juries, but rather where the judges borrow their fact-finding authority from the jury of the people.

In re Acushnet River & New Bedford Harbor: Proceedings reAlleged PCB Pollution, 712 F. Supp. 994, 1004-06 (D.Mass. 1989).

In short, once properly charged, the American jury may boldlygo where no judge would dare to tread. In this case, therefore,how better to "clearly establish" the unconstitutionality of thelocation of this minimum exposure search than by the unanimousverdict of a twelve person6 American jury, that "most vitalday-to-day expression of direct democracy [, that unique but]routine aspect of our civic existence today where citizens arethemselves the government"? Massachusetts Evidence, supra at11. Now that this jury has spoken, the qualified immunity thatproperly shields Linsky evaporates and the Gloucester PoliceDepartment dare not in the future continue minimum exposuresearches in this location without some additional privacysafeguards for the prisoner. Thus, in the most intenselypractical fashion, Ciulla has secured for the people ofGloucester and others who come in contact with the GloucesterPolice Department a greater degree of protection under the FourthAmendment than has heretofore existed. An American jury has saidso.7

IV. ASSESSMENT OF ATTORNEYS' FEES AND COSTS

Since the jury verdict advances a matter of "substantial publicinterest" in the manner sought by Ciulla, she may theoreticallybe entitled to attorneys' fees and costs. By her motion, Ciullaseeks $71,215.00 in attorneys' fees and $16,435.77 in costs. ThisCourt is, however, "obligated to make an independent assessmentof what constitutes a `reasonable' award. . . ." Connolly v.Harrelson, 33 F. Supp.2d 92, 95 (D.Mass. 1999). Although theCourt does not doubt the total number of hours billed in thismatter, the hourly rates claimed by Ciulla, $250.00 per hour forlead counsel and $100.00 per hour for associates, cannot bemaintained for two reasons. First, this Court's recent analysisof attorneys' fee petitions illustrates that lead counsel's $250per hour rate, claimed for both in and out-of-court time, is toosteep and should be reduced to $200 per hour. See Zurakowski,46 F. Supp.2d at 89 n. 2 (approving in-court hourly rate of$240.00 for one of the "foremost [civil rights] practitioners" inMassachusetts and noting that rate "ought not be taken as someemerging Massachusetts standard"); Connolly, 33 F. Supp.2d at 96(approving $200.00 per hour rate in civil rights case); UnitedCos. Lending Corp. v. Sargeant, 32 F. Supp.2d 21, 23-24 (D.Mass.1999) (approving hourly rates up to $300 per hour only in contextof class action).8 Second, Ciulla's petitiondoes not distinguish between "core" and "noncore" work.9 SeeConnolly, 33 F. Supp.2d at 96 ("Typically, noncore work iscompensated at two-thirds of the hourly rate for core work.").With these adjustments in mind, the Court determines a reasonablefee award would be, at the most, $56,272.88. The Court does notdispute the calculations that place Ciulla's maximum costs at$16,435.77.

V. BUT SHE LIED . . .

This is a case abounding in ironies. Ciulla's trial testimonyabout the strip search was a deliberate, straight-out, bald-facedlie.10 Yet, had she told the truth, this Court would havegranted Linsky qualified immunity pre-trial, and entered judgmentfor the defendants. Thus, it is only because of Ciulla's lyingthat her case ever reached the jury where the verdict developedan important aspect of Fourth Amendment law for the people ofGloucester, certainly a matter of substantial public interest.Absent her lies, this Court would award her attorneys' fees of$56,272.88 and costs of $16,435.77.

Because Ciulla lied, the Court denies her petition and awardsher nothing. There are two reasons.

No judicial system can reward legal advances — even "good" lawof substantial public interest — founded on lies. Since this isan equitable matter Ciulla, in seeking equity, must herself doequity. See Texaco Puerto Rico, Inc. v. Department of ConsumerAffairs, 60 F.3d 867, 880 (1st Cir. 1995) ("It is old hat that acourt called upon to do equity should always consider whether thepetitioning party has acted in bad faith or with uncleanhands."); K-Mart Corp. v. Oriental Plaza, Inc., 875 F.2d 907,910-12 (1st Cir. 1989) (discussing "venerable maxim" that "he whoseeks equity must do equity"). She has not done so. She mustlose.

Moreover, the Court denies her petition as an appropriatesanction for her lies. Jury trials are this society's mostmagnificent expression of direct democracy. Any litigant who canstate a claim may have one for a modest filing fee of $150, andeven this will be waived for those who cannot afford to pay. SeeDenton v. Hernandez, 504 U.S. 25, 27, 112 S.Ct. 1728, 118L.Ed.2d 340 (1992) ("The federal in forma pauperis statute,codified at 28 U.S.C. § 1915, allows an indigent litigant tocommence a civil or criminal action in federal court withoutpaying the administrative costs of proceeding with thelawsuit."); see also 28 U.S.C. § 1914 (establishing $150 fee).Trials are not, however, otherwise free. Ciulla's five-day trialcost the American taxpayer $87,500,11 exclusiveof the legal costs of the City of Gloucester which must be borneby its taxpayers. Mendacity in the course of legal proceedings istherefore an appropriate matter for monetary sanctions. SeeJones v. Clinton, 36 F. Supp.2d 1118, 1125, 1127 (E.D.Ark. 1999).In this case, denial of this otherwise interesting petition isfully justified on this ground alone.

1. The British author Jerome K. Jerome, who once wrote, "It isalways the best policy to speak the truth, unless, of course, youare an exceptionally good liar," must not have contemplated theAmerican jury's knack for detecting even the most talented ofliars. Jerome K. Jerome, The Idler's Club, in The Idler, Feb.,1892.

2. At the time of the search, Ciulla was wearing a bikinibathing suit under a sports outfit consisting of a top andshorts.

3. The evidentiary status of a jury view is thoroughlydiscussed in United States v. Gray, 199 F.3d 547, 548-50 (1stCir. 1999) (Coffin, J.).

4. Ironically, when the jury arrived at the Gloucester PoliceDepartment for its view, the door to the holding cell was, forthe first time in anyone's memory, actually locked. From theapparent befuddlement of the Police Chief who had to search out akey, however, and the candid admission of counsel, the jurygleaned that the door is normally unlocked.

5. Some other federal courts have made similar statements.See, e.g., Cartwright v. Stamper, 7 F.3d 106, 109-10 (7th Cir.1993).

6. Despite the rule permitting six person juries, it wouldappear that federal civil juries today average from seven to ninepersons. See The Judiciary: Budget Estimates for Fiscal Year2001 (Penultimate Draft) 7.6 (2000). At the recommendation of mycolleague, Douglas Woodlock, this Court seats twelve personjuries in every case to assure greater diversity and to improvesmall group decision making. See Richard A. Posner, AnEconomic Approach to the Law of Evidence, 51 Stan. L.Rev. 1477,1498 (1999).

[Unfortunately], on this issue the federal judiciary itself appears to have faded from dynamism into stasis in its willingness to accept a diminished, less representative, and thus sharply less effective civil jury, see Judith Resnik, Changing Practices, Changing Rules: Judicial and Congressional Rule-making on Civil Juries, Civil Justice and Civil Judging, 49 Ala. L.Rev. 133, 137-52 (1997) (decrying the failure of the Judicial Conference to restore twelve-person juries in civil cases); Development in the Law — The Civil Jury, 110 Harv. L.Rev. 1408, 1466-89 (1997) (same); see also Michael J. Saks, Small-Group Decision Making and Complex Information Tasks, 26, 30 (Federal Judicial Center 1981), along with curbs on the number of judges devoted to jury trials. Leonidas Ralph Mecham, Optimal Utilization of Judicial Resources (1996) 14 (For the first time in the entire history of the Republic, Congress was notified in 1996 that "[t]he Judicial Conference is considering whether it should . . . recommend that [district court judgeships] be eliminated or left vacant.").

Lirette v. Shiva Corp., 27 F. Supp.2d 268, 271-72 n. 3 (D.Mass.1998).

Sadly, the fear expressed above regarding judicial curbs on thenumber of judges available for jury trials is coming to pass —and with a vengeance.

[In 1999], the Judiciary recommended to the President and congressional leaders not filling a single existing or future district judgeship vacancy in each of the following courts: District of Columbia, Southern District of West Virginia, District of Delaware, and District of Wyoming.

Leonidas Ralph Mecham, Optimal Utilization of JudicialResources 22 (2000). This year it appears that judgeships in theWestern District of Pennsylvania and the Eastern District ofWashington are targeted as well. Letter from Chief Judge MarilynL. Huff to William G. Young, enclosure 1 (Feb. 25, 2000) (on filewith this Court).

7. It is altogether fitting and proper for this Court to extolthe role of the American jury. Indeed, it is vitally necessary todo so because today the American jury — guaranteed to ourcitizens in the Sixth and Seventh Amendments to the Bill ofRights of the United States Constitution — is on the wane,perhaps irretrievably so.

The Twilight of the American Jury?

For some time now circumstantial and anecdotal evidence hasbeen mounting that jury trials are, with surprising rapidity,becoming a thing of the past. Judge Patricia Wald started herrecent tribute to Professor Charles Alan Wright with thisstriking sentence: "Federal jurisprudence is largely the productof summary judgment. . . ." Patricia M. Wald, Summary Judgmentat Sixty, 76 Tex. L.Rev. 1897, 1899 (1998). Judge Wald is right— and note the compelling inference — that we are today moreintellectually concerned with the procedural mechanism thatblocks jury trials than we are with the trials themselves.Anecdotally, I recently received a letter from one of Boston'sforemost trial attorneys which contained this passage:

When I came to the Bar, there were half as many judges on the [Massachusetts] Superior Court as there are now and [today] there aren't a fraction of the cases being tried as then.

At one time we had over 50 lawyers in this office trying cases practically all the time. Now a jury trial is an event, and that isn't just in this office. . . . The life I lived is a thing of the past and it is very sad.

Letter from Thomas D. Burns, Esq. to William G. Young (Dec. 16,1999) (on file with this Court).

This lawyer's lament would be slightly ludicrous if itreflected a society that was turning away from litigation orwhich, once embroiled in a lawsuit, increasingly utilizedalternative dispute resolution to reach settlement short oftrial. Yet neither is true. Levels of civil and criminallitigation in the federal courts continue to rise, see WilliamH. Rehnquist, The 1999 Year-End Report on the Federal Judiciary,The Third Branch (Admin. Office of U.S. Courts, Washington,D.C.), Jan. 2000, at 4, and on the civil side the ratio of trialsto settlements and pre-trial adjudications remains roughlyconstant. See Judith Resnik, Trial as Error, Jurisdiction asInjury: Transforming the Meaning of Article III, 113 Harv.L.Rev. 924, 928 (2000) ("Trial as Error").

The simple fact is that, with ever more work to do in thefederal courts, jury trials today are marginalized in bothsignificance and frequency.

Hard evidence confirms this observation. Over the ten yearsconcluding in 1999, the number of civil jury trials has declined26% and the number of criminal trials is down 21%. During thefive most recent years in this same period, overall jury trialdays went down 12%. See David Williams, Decline In Petit JurorDays, tbl.2. (Sept. 2, 1999) (unpublished Dist. Ct. Admin. Div.document, Admin. Office of the U.S. Courts, Washington, D.C.)("Decline in Petit Juror Days"). Furthermore, funds budgeted forjurors in the federal system in FY 2000 are expected to declineby nearly 6% for FY 2001 in order to adjust to the decliningnumber of jury trial days. See The Judiciary: CongressionalBudget Summary Fiscal Year 2000 at 50 (Feb. 2000).

If this is the national picture, overall jury usage in theDistrict of Massachusetts is in virtual free fall, dropping astunning 30.6% from FY 1996 to FY 1998 (the eighth steepest dropin the nation out of 94 districts considered). Decline in PetitJuror Days, tbl.1.

I know this much is true.

In Berthoff v. United States, No. 97-10883 (D. Mass. filedApr. 23, 1997), opinion pending, this Court will necessarilyaddress some of the reasons for this precipitous decline.Nevertheless, it bears repeating here that:

Our willingness as a society to drift away from the use of civil juries reflects a failure in understanding of the jury's essential function in our American democracy. The jury system is direct democracy at work. It is, in fact, the most vital expression of direct democracy in America. Today, it is the New England town meeting writ large, the people themselves governing. In fact, the very processes of our judicial system themselves vindicate and strengthen democracy by involving litigants with standing in the application of our laws. See Christopher J. Peters, Adjudication as Representation, 97 Colum. L.Rev. 312 (1997). Our juries are the ultimate realization of our people working together, under law, to do justice. De Tocqueville recognized with masterful clarity that, in our jury system, Americans had embarked on a stunning experiment in direct popular rule. See Alexis de Tocqueville, Democracy in America, 337-39 (Schocken 1st ed. 1961). Studies show that where people have recourse to a jury trial, inequalities in economic resources are minimized, most potential litigants avoid staking out patently unreasonable positions, and the great bulk of cases ultimately settle. Marc Galanter, Viewpoint — How To Improve Civil Justice Policy, 77 Judicature 185 (1994).

`Whenever Congress extinguishes a right which heretofore has been vindicated in the courts through citizen juries, there is a cost. It is not a monetary cost. It is a cost paid in rarer coin — the treasure of democracy itself.' Andrews-Clarke v. Travelers Ins. Co., 984 F. Supp. 49, 63 n. 74 (D.Mass. 1997).

When people recognize that they have been cut off from their opportunity to govern directly through citizen juries, the sense of government as community, as a shared commonwealth, is severely diminished. Jury service is the citizen's only direct experience of government at the federal level. Severing that shared bond, of course, leaves citizens with their right to vote but, inevitably, as the government draws away from its citizenry, that right seems less valuable. It is not too much to say that, as our government is the ultimate teacher, Louis Brandeis, True Americanism, Brandeis on Democracy, 25, 27 (Philippa Strum ed., 1995), its devaluation of direct citizen participation carries the implicit message that communitarian efforts are simply not worth very much in an age of individual self seeking. See Sam Roberts, Alone in the Vast Wasteland, N.Y. Times, Dec. 24, 1995, at D3.

Nor is this all. As those institutions that empower and reinforce community efforts fray at the edges and fall into desuetude, economic powers to which the law grants an advantage, naturally tend to use that advantage unchecked by the jury's common sense. See Parklane Hosiery Co. v. Shore, 439 U.S. 322, 355, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979) (Rehnquist, J., dissenting).

Lirette, 27 F. Supp.2d at 271-72 n. 3; see Stephen N. Subrin,On Thinking About a Description of a Country's Civil Procedure,7 Tul. J. Int'l & Comp. L. 139, 150-52 (1999). See generallyAndrews-Clarke v. Travelers Ins. Co., 984 F. Supp. 49, 63 n. 74(D.Mass. 1997).

Without juries, the pursuit of justice becomes increasingly archaic, with elite professionals talking to others, equally elite, in jargon the elegance of which is in direct proportion to its unreality. Juries are the great leveling and democratizing element in the law. They give it its authority and generalized acceptance in ways that imposing buildings and sonorous openings cannot hope to match. Every step away from juries is a step which ultimately weakens the judiciary as the third branch of government. See Edward F. Hennessey, Henry Clay & T. Marvell, Complex and Protracted Cases in State Courts (National Center for State Courts 1981). Indeed it may be argued that the moral force of judicial decisions — and the inherent strength of the third branch of government itself — depends in no small measure on the shared perception that democratically selected juries have the final say over actual fact finding.

In re Acushnet River, 712 F. Supp. at 1006 & n. 23.

It is not too much to say that the greatest threat to America'svaunted judicial independence comes — not from any external force— but internally, from the judiciary's willingness to allow ourjury system to melt away. See Trial as Error supra at 1003.

8. It is fairly clear that there is a disturbing lack ofuniformity in this district in the awarding of attorneys' fees incivil rights cases. One judge simply accepts the hourly ratesclaimed by counsel, while others consider a melange of factorsand ascribe varying weights to each of them. See Remarks of thedistrict judges at the Federal Judicial Forum (Nov. 9, 1999).

Published opinions over the past several years reveal thefollowing data:

Hourly Case Name Judge Rate Alfonso v. Aufiero, 66 Saris $250 F. Supp.2d 183, 197 (D.Mass. 1999) Stanton v. Southern Berkshire Ponsor $250 shire Reg'l Sch. Dist., 28 F. Supp.2d 37, 42 (D.Mass. 1998) Guckenberger v. Boston Saris $325 Univ., 8 F. Supp.2d 91, 105 (D.Mass. 1998) McLaughlin v. Boston Garrity $200 Sch. Comm., 976 F. Supp. 53, 62 (D.Mass. 1997) Morgan v. Gittens, 915 Garrity $300 F. Supp. 457, 461, 470 (D.Mass. 1996) Visiting Nurse Ass'n v. Gertner $345 Bullen, No. 94-10123-NG, slip op. at 10 (D.Mass. Oct. 2, 1995)

Since attorney fee awards are rarely published, however, thisis but a limited review. As predictability and reasonableuniformity are hallmarks of any justice system, a reliablereporter of Massachusetts attorneys' fee awards is a compellingnecessity. This is an important challenge to legal publicationsin this District.

9. "[C]ore work includes legal research, writing of legaldocuments, court appearances, negotiations with opposing counsel,monitoring, and implementation of court orders. Non-core workconsists of less demanding tasks, including letter writing andtelephone conversations." Brewster v. Dukakis, 3 F.3d 488, 492n. 4 (1st Cir. 1993).

10. This is not an inference drawn from the jury verdict. Itis the Court's own finding drawn from presiding over the trial.Attorneys' fee petitions are equitable matters, tried to thecourt in civil rights cases, see King v. Greenblatt,560 F.2d 1024, 1027 (1st Cir.), cert, denied 438 U.S. 916, 98 S.Ct.3146, 57 L.Ed.2d 1161 (1978), so it is both necessary andappropriate to make an explicit finding, see id. ("[I]t wouldbe helpful for the court to set out in the record the basis forthe award and any pertinent findings of fact.").

This finding in no way impugns the properly zealous advocacy ofCiulla's attorney, who throughout has acted with commendableprofessionalism and high ethics. He is, it ought be remembered,her advocate, not her judge. I am — at least with respect to thispetition.

11. The average fully-distributed cost of a trial day in aUnited States District Court today exceeds $17,500. Five trialdays at $17,500 per day equals $87,500. The budgetary support forthis estimate is set out and fully discussed in In re Prevett,975 F. Supp. 397, 398-401 (D.Mass. 1997).

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