Full opinion text
PENCE, Senior District Judge. Defendant and Cross-Claimant McBryde Sugar Co., Ltd. (McBryde), has again in 1988 moved this court for an award of attorneys’ fees and costs actually paid by McBryde in and relevant to this present litigation, plus interest lost thereby. The motion is based upon the Civil Rights Attorneys’ Fees Award Act of 1976, 42 U.S.C. § 1988 (1976). With the instant motion, of course, were additional exhibits, affidavits, and memoranda in support of the motion. The court will take judicial notice of the prior affidavits, exhibits, and records and files in this case as they may involve the problem of attorneys’ fees and costs. On October 29, 1985, McBryde filed a similar motion for attorneys’ fees, etc., but before this court had ruled on that motion, the court of appeals vacated this court’s 1977 decision in favor of McBryde and other plaintiffs. This court, therefore, was estopped from further consideration of that motion. On December 28, 1987, this court, on remand, re-entered judgment in favor of McBryde (and other plaintiffs), hence McBryde’s re-filed motion for attorneys’ fees, etc. The attorneys’ fees and costs sought by McBryde are the fees and costs McBryde actually paid prior to and including December 31, 1987 in connection with this litigation. The fees requested by McBryde were incurred for proceedings in: 1. The Supreme Court of the State of Hawaii in McBryde’s attempt, in 1973, to obtain a re-hearing and an evidentiary hearing on its constitutional claims evolving from that court’s ruling in January 1973 in McBryde Sugar Company v. Robinson, 54 Haw. 174, 504 P.2d 1330 (McBryde I) that the “State is the owner of all the water” in the Hanapepe River, that the English commonlaw doctrine of riparian rights governs the use of Hawaii’s stream waters, and that neither McBryde, the Small Owners, nor any of the other plaintiffs could transport water out of the watershed. 2. The United States Supreme Court on the Petition for Certiorari in 1974. 3. This court, in proceedings from 1974 through 1977. 4. The Ninth Circuit Court of Appeals, in appellate proceedings from 1977 through 1985. 5. The Supreme Court of Hawaii, in proceedings on the certified questions from the Ninth Circuit Court of Appeals from 1981 through 1983. 6. This court, in proceedings on its first remand from 1985 through 1986. 7. The Ninth Circuit Court of Appeals, in proceedings on appeal of this court’s judgment after remand. 8. The United States Supreme Court, in the proceedings on State Officials’ Petition for Certiorari. 9. The Ninth Circuit Court of Appeals in proceedings on remand from The Court. 10. This court, in proceedings on remand from the Ninth Circuit Court of Appeals, and 11. This court, in proceedings on the original application for attorneys’ fees in 1985. The attorneys’ fees sought by McBryde in the instant motion also included fees paid by McBryde on behalf of the Small Owners, Ida Albarado, et al., as well as McBryde’s portion of the fees paid by the Hawaiian Sugar Planters’ Association in support of all plaintiffs involved in this litigation. The total fees that McBryde has actually paid and set forth in Exhibit B of its Motion for Award of Attorneys’ Fees of April 14, 1988 are $1,198,301.29. In addition, McBryde requests an upward adjustment of those fees to compensate McBryde for delay in repayment thereof by the State. McBryde asked this court to award compensation for delay in payment by either of two alternate methods. First, McBryde asked that it be awarded $1,051,-805.09 as lost interest on fees and costs actually paid by McBryde (as calculated in Exhibit A of McBryde’s Supplemental Exhibit of June 3, 1988) and based upon McBryde’s parent corporation’s actual average investment rate of return for the years that fees were paid. The total award requested (June 3,1988), adjusted for delay of payment by this method, totals $2,250,-106.38. McBryde sets forth that this represents the actual cost and lost income as of December 31, 1988 experienced by McBryde as a result of payment of attorneys’ fees and costs over the years since 1973 and through December 31, 1987. Second, as an alternative to the above method of compensating McBryde, McBryde requests this court to award fees based upon the current hourly rates for attorneys and sets forth the basis for that calculation in Exhibit C. The resulting requested fee award under this method would be $1,948,032.72. McBryde asked this court that the award based on current hourly rates be effective only if the appellate court determines that the State Officials have no obligation to pay interest. Finally, in addition to the upward adjustment to the fees actually paid in order to compensate for delays in payment, McBryde requests a further upward adjustment for: 1. The amount of time spent by McBryde’s attorneys on the litigation and not billed to McBryde, and 2. The relentless litigious actions of the State Officials in their unremitting attempt to sustain the ruling of the Supreme Court and keep, for the State, the virtually absolute and almost untrammelled control over all of the flowing waters in the State of Hawaii. The initial reaction of anyone, not thoroughly familiar with the political background behind the above-referred-to opinion of the Supreme Court of the State of Hawaii, in 1973, in McBryde v. Robinson, as well as the history of the movements of this litigation up and down through the Hawaii Supreme Court, this United States District Court, the Circuit Court of Appeals, and The Supreme Court of the United States, when presented with a claim on the part of the attorneys for McBryde and the owners of small parcels of land and water rights that McBryde should be repaid over $2 million for attorneys’ fees, costs, and losses it has paid and suffered, might well be that any such request is outrageous. The position of the Attorney General’s Office of the State of Hawaii is that McBryde’s claim for those fees, costs, and losses should, in part, be entirely denied and the remainder drastically cut. This position, on the part of the present Attorney General of the State of Hawaii, might, charitably, be excused because he inherited this case from his politicized predecessors in office. Nevertheless, it must be remembered that Hawaii’s Governor Waihee, who appointed the present Attorney General, became Governor through the support of the political machine built up by former Governor Burns and preserved and continued by Governor Ariyoshi. The casual observer would not know that on January 10, 1973, the “Richardson Court” (which, on December 20, 1973 became a 3-2 majority), headed by Chief Justice Richardson and Justice Abe, and without any warning to any of the parties in the water rights case, Robinson, McBryde, Olokele, the Small Owners, and the State, in the appeal before it, had decided, sua sponte, that it was going to change all of the laws regarding flowing waters in the State of Hawaii and take away from the plaintiffs all claims to water from the mountain streams, give ownership of the waters to the State, and give to any owner of riparian soil along a stream the absolute right to see that fresh water stream flow, undiminished by any diversion of the waters thereof, past his land, his kuleana, down to the sea and become salted. By also holding that there could be no diversion of waters out of the watershed, Justices Richardson and Abe, in implementing their own political philosophy — some have likened it to that of Robin Hood — of taking the property of big business entities and giving it to the people of the State, without paying them for that property, completely overlooked the impact of that decision upon not only the sugar plantation plaintiffs, but also the Small Owners in this case, some of whom had leases from the State which mandated that they use water diverted out of the watershed to irrigate their vegetable market crops or lose the leases. Those Justices also overlooked the impact of their decision on the Board of Water Supply of this county of Honolulu, which had purchased, some by way of condemnation, water rights, and was diverting water out of various watersheds in order to supply water to all the inhabitants of Honolulu. Those Justices apparently were oblivious to the obvious fact that the implementation of their opinion would mean that all of the sugar plantations on Kauai, on Oahu, on Maui, and some on the Big Island, would be forced instantly to close down and go out of business — throwing thousands of workers out of jobs. All of those almost catastrophic evils should have been instantly apparent to the Attorney General of the State of Hawaii back in 1973. It should have been even more apparent to the successive Attorney Generals thereafter. However, the attitude of the Attorney General of the State of Hawaii on January 10, 1973, when, by the ukase and fiat of Justices Richardson and Abe, the water rights of Robinson, McBryde, Olokele, and the Small Owners were, without warning, expropriated, taken away from them and, forthwith, given to the State of Hawaii, was, in effect, one of instant glee and rejoicing. Greedily, the Attorney General of the Burns administration not only accepted this unconstitutionally expropriated (judicially “stolen”) property, but thereafter, he and his successors have fought, relentlessly, through all courts to keep it. As a result of the attitude of the Attorney Generals of Hawaii during the 15 years this case has been in litigation, McBryde, Robinson, Olokele, and the Small Owners have been forced to fight unceasingly for their very economic lives. The monies that McBryde, Robinson, Olokele, and the Small Owners have paid out for attorneys’ fees, of necessity were paid out for the purpose of sheer survival. This court has no sympathy for the position taken by the present, as well as the prior Attorney Generals. The State’s Attorney Generals could have, at any time over the years after 1973, refused to take the “judicially stolen” water, could have made it clear that they felt the taking of those water rights was constitutionally unlawful, could have openly and publicly rejected as unconstitutional the position taken by Richardson and Abe — as did two other Justices, Marumoto and Levinson —and avoided all of the 15 years of litigation that has followed. The State itself has paid out untold hundreds of thousands of dollars in attorneys’ fees, costs, and expenses. While ' this court has no underlying sympathy for the State’s actions in this case, this court will, nevertheless, analyze carefully all the objections that have been made by the State to McBryde’s claims, and will rule as this court views the facts and law applicable to plaintiffs’ motion. I. DELAY IN FILING FEE APPLICATION At the very outset, defendants claimed that McBryde has waived its right to seek fees and costs for any work done prior to the commencement of the Ninth Circuit proceedings in March 1978 by failing to apply for those fees in a timely manner. As the defendants point out, the Civil Rights Attorneys’ Fees Award Act became law in 1976. It was made applicable to all cases that were pending on the date of its enactment, October 18, 1976. The instant case in this federal court was filed on February 14, 1974, with trial in April 1976, and a decision thereon on October 26, 1977, 441 F.Supp. 559, with final judgment entered on March 2, 1978. McBryde has asked for all attorneys’ fees, costs, etc., commencing with the issuance of the Supreme Court of Hawaii’s decision in McBryde I in January 1973, and continuing up to December 31, 1987. The State first maintains that McBryde is entitled to nothing for the payments it made to its attorneys prior to this court’s judgment of March 2, 1978, maintaining that McBryde’s fee application has been filed so late that the passage of time constitutes laches and precludes them from seeking fees for any portion of the case prior to March 1978. In support of this contention, the State points out that this court’s final decree came over 16 months after Civil Rights Attorneys Fees Awards Act became law, but at that time McBryde did nothing to assert any entitlement to fees and continued to do nothing relative to the same until seven and one-half years after this court’s judgment of March 1978 had established their rights. As the record shows, McBryde filed a previous Motion for Attorneys’ Fees on October 29,1985. In 1986, this court, after all parties had filed their various responses, was forced to conclude its consideration of that application when The Supreme Court granted certiorari and remanded the case to the Ninth Circuit for reconsideration in light of Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985), and, thereafter, the court of appeals vacated this court’s 1977 decision and remanded the case to this court to “reconsider” its judgment as per The Supreme Court’s remand. It was after this court, on remand, re-entered judgment in McBryde’s favor on December 28, 1987, that McBryde re-filed its Motion for Attorneys’ Fees. In support of its claim that McBryde’s application for fees and costs prior to 1978 was untimely, the State has filed a multitude of cases in State’s May 2, 1986 Memorandum in Opposition, at pp. 7-15, and State’s May 30, 1986 Answering Memorandum in Opposition, at pp. 4-10 (1986). It primarily has based its contentions on Baird v. Bellotti, 12A F.2d 1032 (First Circuit), cert. denied, 467 U.S. 1227, 104 S.Ct. 2680, 81 L.Ed.2d 875 (1984), maintaining that a fee application made after unreasonable delay after entry of judgment with resulting prejudice to the defendants cannot be allowed. The State maintains that the unreasonable delay had resulted in demonstrable prejudice to the State. In Baird, supra, the plaintiff filed a fee application in 1982 seeking fees for a case commenced in 1974 and finally decided in 1979, i.e., a fee application was filed 30 months after the Supreme Court had denied rehearing. In Baird, supra, Judge Aldrich held that a 30-month delay was “plainly unreasonable.” However, there was a finality of judgment in Baird that has never been present in this case. Even as late as this court’s 1987 hearing on remand, the State Officials argued that every issue in the case was again open for reconsideration. Thus, it is unlike Baird and other cases cited by the State, viz., Fulps v. City of Springfield, 715 F.2d 1088 (6th Cir.1983) and Sellars v. Local 1598, 638 F.Supp. 507 (E.D.Pa.1986), aff'd 810 F.2d 1164 (3rd Cir.1987), where the fee applications were filed after the entire litigation had terminated. As the plaintiffs point out, while other circuits may have considered the problem and ruled thereon, until the Ninth Circuit, in 1983, decided Masalosalo v. Stonewall Ins. Inc., 718 F.2d 955 (9th Cir.1983), this court had no jurisdiction over fee applications during the pendency of an appeal. That rule of the Ninth Circuit was indicated in G & M Inc. v. Newbern, 488 F.2d 742 (9th Cir.1973). Thus, since the State immediately appealed this court’s 1978 judgment, this court would then have had no jurisdiction over any application by McBryde for allowance of attorneys’ fees. See Bionic Auto Parts and Sales, Inc. v. Fahner, 588 F.Supp. 84, 86, and pt. 5 (N.D.Ill.1984). Apart from the above, it would appear that McBryde’s application was submitted within a reasonable time under the authority of White v. New Hampshire Dep’t. of Employ. Sec., 455 U.S. 445, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982). Here, the plaintiffs and defendants have been in intensive and persistent ongoing litigation since the Hawaii Supreme Court’s opinion in McBryde I, supra, in 1973, and that litigation is still ongoing. Not dissimilar is the holding of Brewster v. Dukakis, 544 F.Supp. 1069, 1073 (D.Mass.1982) where that court rejected a claim of laches: This argument might carry weight if the litigation had indeed ended on December 7, 1978. However, the plaintiffs and defendants have had an intimate and unbroken relationship since 1976. Despite the Consent Decree, in essential respects, the negotiations, monitoring and litigation have unfolded continuously from the initiation of the suit to the present ... The Court finds that the defendants have not suffered any significant prejudice as a result of the timing of filing the attorney’s application. See also Perry v. O’Donnell, 759 F.2d 702 (9th Cir.1985). As pointed out in White 455 U.S. at 454, 102 S.Ct. at 1167-68, “Section 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 post-judgment motion unfairly surprises or prejudices the affected party.” While the defendants have not and could not express surprise at McBryde’s motion for recovery of fees paid, they have maintained that they have been prejudiced by McBryde’s delay in filing its motion. Defendants maintain “the delay here was so long that a finding of prejudice should follow from its length alone.” State of Hawaii’s Memorandum in Opposition filed May 2, 1986, p. 12, citing Baird, supra. The State maintains that it has been more than 13 years since the beginning of the dispute. The State maintains that because so much time has elapsed, “the State’s ability accurately to reconstruct the events before and at trial has been prejudiced by the retirement of Andrew Lee, the deputy attorney general who was lead counsel for the State defendants throughout the case.” The State also asserts that “the HSPA and Kauai Council for the Small Owners have all lost or discarded their 1973 and/or 1974 time records.” The State’s third claim of actual prejudice is that “the loss of the court’s memory is likely to be particularly harmful to the defendant, again citing Baird, supra. Andrew Lee, Deputy Attorney General, who initially was in charge of this litigation, has retired, but the court will take judicial notice that he is not dead, and nowhere in the record does it appear that the present counsel, in the evaluation of McBryde’s claims, has found it necessary to ask for Mr. Lee’s help. The State’s claim of prejudice because of this factor appears to this court more verbal than real. The mere exhortation of prejudice is not sufficient. The review of the fee application, no matter what judge is reviewing it, is based upon the application itself. The fact that the Kauai attorney for the Small Owners has not kept his own records is minimal prejudice. McBryde has its own record of what it paid to that attorney for the services which were rendered. As the district court in Baird v. Bellotti, 616 F.Supp. 6, 9 (D.Mass.1984) said, While defendants claim prejudice because of PPLM’s delay they point to no specifics to support their assertion. Moreover, the detailed response they ultimately filed belies their allegation. This court notes that the State’s response falls into the category of “hyper-detailed.” In its May 9, 1988, Memorandum in Opposition, the State claims additional prejudice. After referring to the fact that its witnesses have retired or lost recollection and the court’s memory may have faded, on page 6 the State blandly says: “This prejudice can only have been exacerbated by the additional two years that have passed since McBryde filed its original [1986] memorandum”. Tommyrot! As the voluminous record in this case shows, in many ways it might be denominated as a “paper” case. Prior to every hearing before this court, reams of argument were filed by both the plaintiffs and the defendants. There were no depositions of very great import taken. There were relatively few court appearances. The trial itself only took two days. Practically everything that has occurred in this case was set down in writing and can be scrutinized today, as well as it was 15 years ago. This includes all of the filings with the Hawaii Supreme Court, the Ninth Circuit Court of Appeals, and the United States District Court. The time records kept by Cades, Schutte, Fleming and Wright (“CSF & W”), McBryde’s attorneys, were submitted monthly to McBryde and, therefore, were necessarily detailed. They were so well kept that, as Exhibits A through M of the State’s opposition memorandum of May 2, 1986 well illustrate, the State was able to cull from the time records what the State claimed were illustrations of the multitude of reasons why McBryde should be allowed only a fraction of what it actually paid out in fees. If, as the State argued, counsel and court’s memory has “faded”, nevertheless, this court is able to make a full and complete review of McBryde’s claim. This court finds that the State’s claim of prejudice is more hypothetical than real. This court will review and decide upon the reasonableness of McBryde’s claim for fees, for services rendered, and costs incurred prior to March 1978, along with those incurred after that date. II. ANALYSIS OF FEES CHARGED In Kerr v. Screen Extras Guild, Inc., 526 F.2d 67 (1975), the Ninth Circuit adopted the guidelines set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974) “as appropriate factors to be considered in the balancing process required in a determination of reasonable attorneys’ fees.” This court, in its evaluation of the fees paid by McBryde, finds that: 1. The time and labor required by McBryde’s attorneys as well as costs and expenses are fully set forth in the plaintiffs’ ten-inch-high 1985 Motion, with exhibits, for an award of fees, and augmented by its 1988 Motion. 2. As heretofore indicated, the opinion of the Hawaii Supreme Court, in McBryde I, completely upset and set aside established law regarding the ownership of water and water rights in Hawaii and, as the remand of this case from The Supreme Court in 1987 shows, the State has attempted to put legal roadblocks at never-ending intervals in order to defeat plaintiffs’ claims of unconstitutional taking of their water and water rights. 3. As heretofore indicated, the Hawaii Supreme Court’s decision in McBryde I, if not overturned, sounded the death knell for McBryde and other plaintiffs and foretold bankruptcy for many of the Small Owners. It was imperative that McBryde have attorneys who, from its own observation and experience, were what McBryde considered as the highest and best qualified persons to save the company from extinction. This demanded employment of the most experienced lead counsel and highly experienced associate counsel to be found in Hawaii, as well as experts in the field, in order to save McBryde from total destruction. 4. While the water rights eases have not demanded exclusive use of counsels’ time for the entire 15 years of this litigation, nevertheless, sporadically, as problems and issues came to an intense focus— e.g., immediately after McBryde I; suit in this court in 1974 and the 1976 hearing; the appellate briefs; the hearing on the questions submitted by the Ninth Circuit to the Hawaii Supreme Court and subsequent appellate briefing; the remand to this court; the subsequent appeal; the problems after granting of certiorari by The Supreme Court; then the remand thereafter to the court of appeals; the hearing on reconsideration in this court; and, last but not least in this court, the 1985 and 1988 motions for attorneys’ fees paid by McBryde — McBryde’s attorneys have had to give full time and energy to handling McBryde’s problems. 5. The record shows that the fees charged by CSF & W were normally and regularly charged to McBryde as a large, old, and valued client. 6. Here, CSF & W’s fees were not fixed or contingent. When CSF & W submitted its regular monthly billings to McBryde, after review and, at times, downward adjustment, McBryde paid for the services rendered. This, therefore, is not the situation where the attorney wants to get paid. Here, the client seeks reimbursement for all of its losses brought about by the State’s insistence on keeping the “judicially stolen” water. 7. The only time limitations were those imposed by the rules of court. The only limiting circumstances were those acts on the part of the State practically from the beginning, which led the plaintiffs to believe the State would immediately take steps to enforce the ownership of the waters given to the State by the Hawaii Supreme Court. This demanded an almost immediate injunctive proceeding. If, in 1976, the State had taken the stand in this court that it subsequently did on appeal, viz., representing to the court of appeals that it had not (it could not without violating this court’s injunction) and would not take any steps to enforce its claim of ownership of all the waters until after the final disposition of the case, it would not have been necessary for this court to have issued an injunction. 8. As a result of the action taken by McBryde’s counsel, the State was restrained from implementing its claim of ownership of all the waters and, until The Supreme Court granted certiorari and then remanded the ease, it was believed by the judges of the Ninth Circuit, as well as this judge, that the plaintiffs had won and were vindicated in their claim that the holding in McBryde I unconstitutionally violated McBryde’s rights. As previously indicated, millions of dollars invested in land, machinery, mills, ditches, and equipment, as well as the employment of thousands of workers, were at stake in this case. 9. CSF & W is recognized as one of the finest law firms in Hawaii. Senior partner J. Russell Cades, who has practiced in Hawaii since 1929, always with the same firm, has long been recognized as the dean of the Hawaii Bar. This court, having had the lead and associate counsel in this case before it in this and other cases, recognizes that each is recognized as an attorney of sound judgment and outstanding ability. 10. The basic undesirableness of this case was that the Richardson Court, 'i.e., Justices Richardson and Abe, took any attack upon this case as a personal affront. This is illustrated by the fact that Chief Justice Richardson hired special counsel (paid for, of course, by the State, but, nevertheless, hired by Chief Justice Richardson) to appear specially for the Supreme Court before the court of appeals in this case. 11. As the record shows, McBryde has employed the firm of CSF & W as its primary attorneys since 1960 and still continues to so employ the firm. 12. This court has never had a case before it that can be described as truly “similar”. McBryde did not ask for damages; McBryde paid its attorneys regularly; all that McBryde wanted was to save its own life. In this decision, as will appear, this court persistently and insistently has taken into consideration the preceding guidelines. As The Court said in Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983), in discussing attorneys’ fees under 42 U.S.C. § 1988, “[T]he most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. This calculation provides an objective basis on which to make an initial estimate of the value of a lawyer’s services. The party seeking an award of fees should submit evidence supporting the hours worked and rates claimed. Where the documentation of hours is inadequate, the district court may reduce the award accordingly.” The Court continued, The district court also should exclude from this initial fee calculation hours that were not “reasonably expended.” 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 component 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____ [emphasis in original]” The Court also said, on p. 447, 103 S.Ct. on p. 1947: [J]udges awarding fees must make certain that attorneys are paid the full value that their efforts would receive on the open market____ Ohio-Sealy Mattress Mfg. Co. v. Sealy, Inc., 776 F.2d 646, 664, n. 18 (7th Cir.1985), “Statement of annual fees paid by OhioSealy to its lawyers in 1971 would reflect not only the then-prevailing market rates but also the lawyer’s billing judgment. See Hensley 461 U.S. at 434 [103 S.Ct. at 1939].” McBryde here has requested no more than the fees of CSF & W which McBryde’s in-house counsel reviewed and either authorized payment in full, or made certain deductions and paid less than the billing, monthly. McBryde paid that firm full market value for the services rendered, as McBryde viewed that market value. CSF & W has a host of lawyers in its firm. Here, their charges were made in private practice to a valued client. The firm was ethically obligated to exclude any excessive, redundant, or otherwise unnecessary hours from the fee request they submitted to McBryde for payment. It fulfilled that obligation to McBryde, as is fully and completely set forth in the 650 pages of minutely detailed time records contained in the billing sheets for all of the hours claimed and filed as an exhibit in this application for fees. The State has attacked the hourly rates of McBryde’s chief attorneys as “unreasonable,” “out of line,” “unjustifiable,” and “excessive.” Years in Years Worked Attorney Practice Performed Rates Requested Cades 59 1973-87 $100-225 Bunn 26 1978-87 $ 75-160 Scearce 17 1973-85 $ 60-150 Leas 13 1974-87 $ 40-155 Gabrio 6 1982-87 $ 60-120 This judge, in his 27 years as a district judge, has reviewed scores of requests for attorneys’ fees, and, as the State’s present lead counsel, Alston, knows, has reviewed that firm’s requests for fees in other cases, some as recently as July 18, 1988, and has not hesitated to lower or raise the requested fees. This court also notes that in 1984, 1985, and 1986 attorney Alston was charging $150 an hour; in 1987-87, $175.00 an hour. In All Hawaii Tours v. Polynesian Cultural Center, 116 F.R.D. 645 (D.Hawaii 1987), this court awarded $150 per hour to two attorneys with the same range of experience as attorneys Leas and Gabrio. In Palila v. Dept. of Land and Natural Resources, 118 F.R.D. 125 (D.Hawaii 1987), Judge King awarded all fees requested by members of Alston’s firm. . On pp. 13 and 14 of the Palila memorandum filed by Alston’s firm is a list of other Civil Rights cases in the Ninth Circuit and other circuits where the awarded hourly rates ranged from $150 per hour for work performed in 1983, and $230 an hour for work performed in 1985. With the Palila memo was also an affidavit by Hawaii attorney John Edmunds to the effect that attorneys with 20 years’ experience in Hawaii were charging $150-$250 per hour. Another Hawaii attorney, Robert Thum, stated that Hawaii attorneys with 18-20 years’ experience were charging $125-$150 an hour. This court finds no merit in the State’s objections to the rates charged by the attorneys of the CSF & W firm. This court also finds that the fees charged McBryde were at all times reasonable. The State, nevertheless, maintains that the 15% reduction in McBryde’s claim should be made because of the “vague and incomplete descriptions in the records.” It would appear that the State has made an exhaustive (and exhausting) analysis of almost every single item in McBryde’s entire claim. As shown in Exhibit I of the State’s May 2, 1986 Memorandum in Opposition, the State has made a detailed analysis of 738 telephone calls between counsel for the various plaintiffs (i.e., including Olokele and Robinson), and in Exhibit J has listed 1,053 intra-office conferences and telephone calls of CSF & W’s firm and noted that 1,085.75 hours were billed, but because many of the entries did not state the subject or the time consumed on the calls, insists that McBryde should be paid only 674.4 hours for the same. This court notes that in the Palila case, supra, Sherwood, one of the plaintiff’s attorneys, had 62 entries, 22 of which would be “vague and indefinite”, as those terms are here construed by the State. Likewise, Mr. Alston and his partner, Mr. Hunt, had 26 entries, 22 of which would have been stricken under the State’s present standards. Nevertheless, Judge King awarded all of that time stating, “The evidence submitted by the plaintiffs adequately support their claims for 809.8 hours as reasonable.” 118 F.R.D. at 127. The State also requests that 25% of McBryde’s claim be slashed because of duplication of effort, again counting the number of conferences and telephone calls. In a case of this magnitude and importance to McBryde, McBryde’s attorneys would have failed in their ethical obligation to their client if there had not been many and persistent conferences between lead counsel to make sure that every avenue of law and fact were searched, researched, and reviewed to make sure there was no hole, loophole, or pinhole through which the State might escape with its ill-gotten water. The State insistently overlooks what this court has repeated many times since 1976 —that the very existence of McBryde and many other plaintiffs depended upon the outcome of the instant litigation. For McBryde’s attorneys not to have conferred often would have constituted a gross dereliction of their duty to their clients. The State maintains that McBryde is not entitled to any recovery for any fees paid for which CSF & W identified only “vaguely and inadequately.” The State maintains that timesheet entries, such as “research,” “trial preparation,” “conferences,” and “correspondence,” when entered alone or with only the names or initials of other persons, are too vague to provide any basis for determination that such hours were reasonably expended. On p. 19(a) and (b) of State’s May 2, 1986 Memorandum in Opposition, the State well illustrates the hours it has spent in searching for minutiae in the 650 pages of billing records filed by McBryde. Those two pages overlook the quotation from Spell v. McDaniel, 616 F.Supp. 1069, 1086 (E.D.N.C.1985) set out by the defendant on its preceding page 18: “Although it is not necessary to know “the exact number of minutes spent nor the precise activity to which each hour was devoted,” the fee application must contain sufficient detail to permit the court and opposing counsel to conduct an informed appraisal of the merits of the application [emphasis added].” As the Lindy court, in Lindy Bros. Builders, Inc. v. American Radiator, etc., 540 F.2d 102 (3d Cir.1976) observed, p. 106, it is not intended “that a district court, in setting an attorney’s fee, become enmeshed in a meticulous analysis of every detailed facet of the professional representation.” It is not intended “that the inquiry into the adequacy of the fee assume massive proportions, perhaps dwarfing the case in chief. Once the district court determines the reasonable hourly rates to be applied, for example, it need not conduct a minute evaluation of each phase or category of counsel’s work.” See also Copeland v. Marshall, 641 F.2d 880 (D.C.Cir.1980), p. 903, and Ohio-Sealy Mattress Mfg. Co. v. Sealy, Inc., 776 F.2d 646 (7th Cir.1985), p. 657-58: “The record in this case contains pages and pages of computer printouts describing how attorneys and paralegals spent their time — down to the quarter hour. In the district court, Sealy identified 978.-25 hours of Mr. Brace’s time that Sealy thought was either unrelated to the litigation or had too vague an entry. These 978.25 hours came from 475 different entries, some accounting for only fifteen or thirty minutes. Assuming that fifteen percent of the time was inadequately described, identifying each value or undecipherable entry would take hours and hours of the court’s time and require an order nearly as voluminous as the evidence. For a case of this size, we agree with the District of Columbia Circuit that an item-by-item accounting would be neither practical nor desirable”, citing Copeland, supra. Neither this judge nor his staff have gone over each and every one of the some 20,000 time entries CSF & W had billed to McBryde over the last 15 years. From this court’s view, review, and overview of the time records of CSF & W, as billed to and paid by McBryde, this court finds that the number of “vague and indefinite entries” and time entries with no description are relatively miniscule, and do not, in the least, inhibit this court’s determination that CSF & W’s billing records do not deserve a percentage reduction because of vaguesness, etc. Instead, this court finds that, overall, the time, as billed, reflects the necessary and reasonable work of McBryde’s attorneys in this case. III. SMALL OWNERS McBryde seeks to recover attorneys’ fees and costs it paid in providing representation to the Small Owners. The State’s position is that no fees or costs should be awarded for the representation and costs provided to the Small Owners because “(1) they filed no application, (2) they had no counsel, and (3) the work done on their behalf was unnecessary and duplicative”. It appears that in the basic litigation before the Kauai Water Commissioner the Small Owners were not represented by Kauai attorney Clinton Shiraishi, who then was a sole practitioner on Kauai. The Small Owners were satisfied with the volume of water per acre allotted to them in the decision of Circuit Judge Tashiro (Water Commissioner), and, like Olokele, did not note an appeal therefrom. It was not until the Supreme Court rendered its opinion in McBryde I that it became necessary for the Small Owners to join with McBryde, Robinson, and Olokele to attempt to reverse the new law of waters set out therein. Then they hired Shiraishi to represent them, post McBryde I, in their forced appeal to the Hawaii Supreme Court. By McBryde I, the Small Owners were divested of any water rights whatsoever and the opportunity to exchange the water rights of one acre of land for two acres without such rights was taken away. Likewise, as indicated heretofore, some Small Owners farming dry land leased from the State would violate their leases and be forced out of business if they could not secure water diverted out of its watershed. Shiraishi’s fee on appeal was $2,700 plus $162.81 in expenses, for a total of $2,862.81. This bill was subsequently paid by McBryde. (See Affidavit of R. Dougal Crowe, dated October 28, 1985, and Exhibit B attached in McBryde’s 1985 Motion for Attorneys’ Fees.) In August of 1973, attorney Robert Bunn of the CSF & W firm offered to represent the Small Owners at no cost to them, all attorneys’ fees to be paid by McBryde. This was satisfactory to the Small Owners. It was finally agreed that Shiraishi would continue to represent the interests of the Small Owners with Bunn, as co-counsel, actually doing such work as was necessary, with all fees and costs to Shiraishi’s clients being paid by McBryde. The State maintains that “The participation of the Small Owners contributed nothing substantive to the case.” The State maintains that the rights of the Small Owners “may have been affected in theory but they were indistinguishable from, and they were amply protected by, the primary litigants.” The State also maintains that McBryde should not be repaid because any claim for fees would belong to the Small Owners, and the Small Owners are not asking for any compensation, therefore McBryde cannot recover anything for the money it paid out on behalf of representation of the Small Owners. The State’s third objection is that the result of the representation of Shiraishi and Bunn on behalf of the Small Owners “was only to increase unreasonably the fees incurred.” It is the State’s position that there was no reason why McBryde and the Small Owners needed separate counsel, briefing, and argument inasmuch as “their interests were so closely aligned.” The State urges that the Small Owners “could have participated less actively or watched from the sidelines without risk.” The State insists that because McBryde could not pinpoint the exact number of hours that Bunn, as well as CSF & W, spent in representing the Small Owners, separate and apart from that time spent representing McBryde’s own interests, McBryde’s total fee claim should be reduced 25% (of the time devoted by CSF & W), plus the $2,990.81 paid to Shiraishi. The State pointed out that it found that Bunn had spent over 1500 hours on the case, and that out of the $57,200 billed by CSF & W in April 1974 for proceedings in the U.S. Supreme Court, 29% of that amount ($13,500) was allocated to the preparation of. papers filed in the name of the Small Owners. The general thrust of the State’s position is that the Small Owners should never have had any representation, that even their presence in the post McBryde I hearings and litigation was unnecessary because, so says the State, their interests were the same as those of the plantations and it was not necessary for them to appear in the subsequent litigation. The State’s position is preposterous. As indicated above, the Small Owners had not appealed and, therefore, their plight was not before the Supreme Court prior to McBryde I. All that the Supreme Court had then before it were the BIG plantations, i.e., McBryde and Robinson. It would appear that the underlying desire of the Richardson Court was to take from the large plantations and give to the people of the State. If the Small Owners had appealed, perforce, it should have been apparent even to the Richardson Court that the Small Owners, the little farmers too, were going to be smashed by the court’s opinion. If the Small Owners had been before that court, it might have been able to appreciate that its opinion injured not just the big and rich, but also the small and poor. Without the presence of the Small Owners in this litigation, the overall perspectives, dimensions, and ramifications of the McBryde I opinion could not be made apparent to all — including this court, the court of appeals, and The Court. The small farmers, as well as the big farmers, were equally entitled to representation in this action. Each suffered the same danger of being put out of business by the McBryde I opinion. The argument on the part of the State that the Small Owners’ counsel contributed absolutely nothing to the litigation approaches the frivolous. Equally frivolous is the State’s claim that it was unnecessary to have separate counsel looking out for the Small Owners’ interests. Carried to its logical conclusion, it would have been equally unnecessary for either Robinson or Olokele to have had their own counsel and only one attorney would have been necessary to represent all parties. To this court, this position on the part of the State fits squarely into the pattern heretofore referred to and noted by the court of appeals: “The State defendant apparently have endless time and energy.” See note 1, supra. That McBryde, knowing the cost of the anticipated litigation was far beyond the financial means of the Small Owners, yet recognizing the utmost importance that the true dimensions of the case be made manifest to everyone, decided that paying for all attorneys’ fees and costs for the Small Owners was a sound business, as well as a legally sound tactical decision on its part. One of the purposes of the Fees Award Act was to make it possible for those without funds to obtain representation in support of their rights. It is immaterial who pays for the litigation fees. There are a multitude of cases in the Federal Supplements and Reporters where civil rights organizations have funded the litigation from behind the scenes. See Cole v. Tuttle, 462 F.Supp. 1016, 1019 (N.D.Miss.1978), Dennis v. Chang, 611 F.2d 1302, 1306 (9th Cir.1980) (“____[ajppellants concede that attorney’s fees may be awarded under the Fees Award Act even though plaintiffs have been represented without charge by a legal services organization.”) Here, McBryde paid for that representation and it is entitled to reimbursement. The records of Bunn’s time are detailed, his fees were reasonable and necessary, and recovery of those fees must be awarded to McBryde. The State argues that because attorney Shiraishi, a “country lawyer”, kept no billing records, kept no time sheets, and billed his clients (the Small Owners) only nominal amounts, therefore, Shiraishi’s bill should not be paid by the State. When Shiraishi, on September 26, 1973, charged $2,700 for his services and $162.81 for his expenses in traveling to Hanapepe to see the ditch and the lands of his clients, and traveled to Honolulu to appear before the Supreme Court after McBryde I, neither Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974) or Kerr v. Screen Extras Guild, Inc., 526 F.2d 67 (9th Cir.1975) had been written. This court could almost take judicial notice that solo “country” practitioners at that time kept no time records. Their charges were based upon what they thought their time and services were worth, considering the nature of the case and the financial standing of the client. This court cannot fault Shiraishi for conducting his solo practice in the “good old way”, nor can it deny repayment to McBryde for the bill he submitted. McBryde found it reasonable, and so does this court. As was shown by Shiraishi’s response to the Affidavit of Paul Alston of May 2, 1986, Exhibit 2, Shiraishi continued to be involved in the case as co-counsel with Bunn; that he did so act is shown by a subsequent billing to McBryde. The payment of Shiraishi’s bill is approved. IV. PRE-ROBINSON I LITIGATION FEES AND COSTS In its application, McBryde has asked for reimbursement of attorneys’ fees for the work performed by its counsel after the initial decision in McBryde I, but before filing the instant complaint. As the record shows, since the Hawaii Supreme Court had blithely omitted any consideration of its unconstitutional taking of the property rights of McBryde, it was necessary for McBryde to attempt to raise that issue before the Hawaii Supreme Court. This was done. The Hawaii Supreme Court, however, adamantly refused to consider the problem at all. It even refused to permit McBryde to argue the matter. In order to preserve the constitutional question, it was then necessary for McBryde to attempt to secure a review of the McBryde I and McBryde II 55 Haw. 260, 517 P.2d 26, decisions by a petition for certiorari to the United States Supreme Court. This failed because the constitutional question had been completely excised by the Hawaii court. The State maintains that McBryde is not entitled to recover its fees and costs for work done in connection with those unsuccessful proceedings that preceded the filing of Robinson I. McBryde is seeking $150,-882.61 in attorneys’ fees then paid. This amount includes $8,997.57 incurred by McBryde as its “share of [Hawaiian Sugar Planters’ Association]” expenses in 1973 and 1974. Those expenses arose out of the filing of an amicus brief by the Hawaiian Sugar Planters’ Association (“HSPA”) in the post-McBryde / proceedings. The Hawaiian Sugar Planters’ Association necessarily appeared as amicus in attempting, on behalf of all of the sugar plantations in Hawaii, to change the McBryde I decision. As heretofore noted, almost every sugar plantation in Hawaii was, potentially, destructively injured by McBryde /. Almost all had acquired water rights; almost all diverted waters out of their watershed into the dry-land areas of their plantations. Not alone would Robinson, Olokele, McBryde, and the Small Owners be ruined, but, as indicated heretofore, the entire sugar industry of Hawaii would be practically destroyed if McBryde I were to remain unchallenged as the law of Hawaii. The position of the State is that the Ninth Circuit held that McBryde’s attempts to secure a rehearing before the Hawaii Supreme Court and review by The Court to correct the McBryde decisions were irrelevant to McBryde’s efforts in the federal courts, and were not part of the prescribed procedural scheme for enforcement of rights under 42 U.S.C. § 1983. The State insists that “the law of the case, and the doctrine of judicial estoppel, bar [McBryde] from asserting now that § 1988 is applicable to those pre-filing proceedings.” The State also argues that any work that McBryde did before filing this proceeding in the federal court is beyond the scope of § 1988. The State maintains that McBryde has not shown that any “discrete portions of the pre- and post-filing work done in the Hawaii Supreme Court and the United States Supreme Court were both (1) useful, and (2) necessary to the advancement” of McBryde’s civil rights claim. The State’s argument that the pre-filing efforts of McBryde were neither useful nor necessary to advance the federal litigation is without merit. Persistently, in all the federal court proceedings, the State has claimed that McBryde had had its “day” in the Hawaii Supreme Court on the constitutional question, and that the denial of certiorari by The Court precluded further federal review in this court. That issue was disposed of by the Ninth Circuit in Robinson III. The Ninth Circuit found “that Robinson’s due process claims were not, and could not have been, litigated in the McBryde State proceedings because the Hawaii Supreme Court refused to consider Robinson’s federal claims:” Where a state court has refused to entertain federal constitutional claims, a federal court violates the precepts of neither subject matter jurisdiction nor res judicata hearing those claims. Nowhere does this court find that the Ninth Circuit held that the pre-filing proceedings were irrelevant to claimants’ efforts in this, or any of the appeals courts. This matter is not res judicata. As noted by McBryde in its Reply Memorandum of May 6, 1986, p. 16, it was not certain and clear until Patsy v. Florida Bd. of Regents, 457 U.S. 496, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982) that it was unnecessary to exhaust judicial and administrative remedies prior to filing a civil rights action. It was thus reasonable for McBryde to have assumed that its pre-filing motions were necessary groundwork for its subsequent civil rights action in this court. If further evidence of the importance of McBryde’s pre-filing proceedings is necessary, one need but refer to this court’s decision in Robinson I, wherein is found a multitude of references to facts and acts developed in and taken from the earlier proceedings. Contrary to the State’s position, in this case McBryde should be reimbursed for all of its attorneys’ pre-filing time. Webb held, “There is certainly nothing in section 1988 that limits fee awards to work performed after the complaint is filed in [federal] court.” As indicated above, it was reasonably felt by McBryde that it was necessary to exhaust all judicial remedies prior to filing its action in this court. As the record shows, certainly here, the McBryde’s prefiling actions served as a springboard for this federal proceeding. As in Bennett, here, too, the pre-filing work was directly usable in this case. It appeared to this court that one of the basis for the relatively short trial in this court was the intense preparation that had been made by McBryde’s attorneys in its pre-filing efforts. This court concludes that all pre-filing attorneys’ fees were reasonable and necessary, and McBryde should be reimbursed for not only its direct billings by Shiraishi and CSF & W, but also for its share of the Hawaiian Sugar Planters’ Association’s legal efforts on behalf of it as well as all other sugar plantations in Hawaii. The State insists that No Fees Should be Paid to any Claimant for Time Related to (1) Educational Activity; (2) Stifling Publication of Professor Chang’s Writings; (3) Promoting Publicity; (4) Time Devoted to Obtaining an Unofficial Transcript of Proceedings Before in the Hawaii Supreme Court; (5) Time Devoted to Unsuccessful Efforts to Disqualify William Richardson from Participating in the Proceedings Relating to the Certified Questions and the Unsuccessful Claim that his Participation Denied the Claimants Due Process of Law; or (6) Unsuccessful Legislative Reform Efforts. 1. Educational Activity: This objection relates to the time spent by attorneys Cades, Bunn, and Leas of the CSF & W firm in assisting in preparation of and attending forums and conferences on water rights. This court has checked the list of time so spent, set forth on pages 1 and 2 of Exhibit C of State’s Memorandum in Opposition of May 2, 1986. From this court’s review of the Exhibit, it appears that the State’s estimated and allocated time spent by those attorneys is correct, except for the entry of 10/25/77 of Cades—2.50 hours. The billing records show that this entry was for “revised proposed findings” and therefore was not properly allocated by the State into the “Educational” category. In its Exhibit, the State left the subject blank as to Bunn’s billing for 11/10/77. This billing was for “Conf call w/JRC [J. Russell Cades] & Cox re Water Forum, Corelated Problems re Possible Appeal of Decision”. McBryde was billed $127.50 for this conference call. This court, following the State’s example, will estimate that half of that time was spent on “possible appeal of decision”. This court has calculated the time so allocated to the forum at the billing rates of Cades, Bunn, and Leas during 1973-76 and finds a total of $2,760.75 was paid by McBryde for such activity. CSF & W argues that since those forums occurred during the litigation and “could possibly have given insight into the State Officials’ position concerning the water law and the litigation, the time is compensable”. Undoubtedly, McBryde felt the same. Nevertheless, this court does not see that the time so spent should be properly charged as necessary to, a part of, or flowing from the litigation. The $2,760.75 must be, and is, deducted from McBryde’s claim. 2. Stifling Publication of Professor Chang’s Writings: The court is well aware of the fact that in this case, Professor Chang was more than an erudite professor of law at the University of Hawaii’s School of Law. Chang was selected by and purportedly represented Chief Justice Richardson, and paid by the State in order to assist the State’s Attorney General in the State’s defense. This court can take judicial notice that some of the circuit judges of the Ninth Circuit on the bench during the pertinent years appeared to hold law review articles and conclusions therein in high esteem, since law review articles are normally written from an impartial scholar’s standpoint. Anything written by Professor Chang during the time relevant here, however, could and would be only construed as written on a solidly partisan basis from the standpoint of an advocate representing his client. This court agrees with McBryde that the publication was intended to be, and was in effect, an additional brief for the State, after oral argument. The court of appeals even allowed McBryde to reply after the publication. From what actually occurred after its publication, it appears that CSF & W soundly devoted a considerable amount of time in making every effort available at that time to stop the publication of Chang’s article, and McBryde is entitled to be reimbursed for the charges. 3.Promoting Publicity: On page 42 of the State’s Memorandum in Opposition is set forth a list of 13 occasions in which CSF & W contacted newspapers, TV stations, and press conferences. The court agrees with the State that these could not be classified as hours expended on the litigation or in any way assisting the litigation process itself. We do not here have a class action in which publicity might aid in informing members and possible members of the class of the litigation. This court recognizes that the injurious impact of McBryde I on all public and private owners and users of water in Hawaii would ultimately have to be rectified— either by litigation or by legislation. Any publicity favoring the State’s position would have an effect, adverse to water users, upon the public and its elected legislators. It was to the best interest not only of McBryde, but all injured parties to get the most favorable publicity possible. The State, however, cannot properly be charged in this litigation for such action, even though clearly felt necessitated on the part of McBryde. This court has calculated the time spent on publicity, as reflected on page 1, item 1, and pages 3 and 4 and item 3 on page 5 on Exhibit C of the State’s Memorandum in Opposition, at the rates then charged by CSF & W, using the State’s own estimated time, and finds that the amount charged for that time totals $665.60. McBryde’s application for that sum is denied. 4. Time Devoted to Obtaining an Unofficial Transcript of the Proceedings Before in the Hawaii Supreme Court: As noted in McBryde’s Reply Memorandum of May 6, 1986, p. 18, in 1973 the Richardson Court had denied plaintiffs’ request for a transcript of their hearings on their several post-McBryde I motions. As the record clearly shows, the absence of a transcript of these hearings showing the absolute refusal of the Richardson Court to listen to any argument on the question of the constitutionality of the Court’s taking, was highly detrimental to McBryde. The basic issue which brought McBryde’s case into this court was whether or not the Hawaii Supreme Court had afforded the plaintiffs due process. As indicated in # 5 hereunder, the conduct of Chief Justice Richardson was highly relevant. The cavalier treatment awarded the plaintiffs in the Hawaii Supreme Court immediately post McBryde I manifested the importance of a complete record of the proceedings in the Hawaii Supreme Court on the certified questions. Rejection of the request of the plaintiffs that there be an official reporter and transcript of these proceedings was further evidence of the Richardson Court’s unreasonableness with respect to McBryde’s claims. The time spent by McBryde’s counsel in an attempt to secure both an official and an unofficial transcript of these proceedings definitely became a part of and a necessary process of the litigation. All of CSF & W’s time spent on this matter is compensable. 5. Time Devoted to Unsuccessful Efforts to Disqualify William Richardson from Participating in the Proceedings Relating to the Certified Questions and the Unsuccessful Claim that his Participation Denied the Claimants Due Process of Law: As reflected in # 4, supra, the State has urged that all time spent by CSF & W in attempting to get an unofficial transcript out of the Richardson Court should be disregarded. Although Justice Abe wrote the opinion in McBryde I, this court could almost take judicial notice that the opinion was in line with the philosophy of Chief Justice Richardson, and could just as well have been his opinion. From the record, it is patently obvious that it was Chief Justice Richardson who, from the moment McBryde I was filed on January 10, 1973, persistently and insistently used every means available to him to preserve his court’s expropriation ukase. CSF & W would have been derelict in their duty to McBryde if they had not attempted to disqualify Chief Justice Richardson from participating in the Hawaii Supreme Court proceedings relating to the certified questions. There is no merit to the position taken by the State’s maintaining that Hensley v. Eckerhart, 461 U.S. 424, 435-36, 103 S.Ct. 1933, 1940-41, 76 L.Ed.2d 40 (1983) demands that the work of CSF & W on Chief Justice Richardson’s disqualification be deleted from the fee applications. Hensley v. Eckerhart concerned itself with a