Bell v. Baltimore County, Md
| Decision Date | 31 March 2008 |
| Docket Number | Civil No. CCB-07-305. |
| Citation | 550 F.Supp.2d 590 |
| Parties | Clarence BELL, et al. v. BALTIMORE COUNTY, MARYLAND. |
| Court | U.S. District Court — District of Maryland |
James J. Nolan, Jr., Baltimore County Office of Law, Towson, MD, for Baltimore County, Maryland.
Now pending is the plaintiffs' motion for attorneys' fees and costs in this case involving a challenge to a Baltimore County zoning ordinance restricting the posting of certain political lawn signs. For the reasons that follow, fees in the amount of $67,789.50 and expenses in the amount of $1,742.17 will be awarded.
Preliminarily, it appears the parties agree on the standards for determining a reasonable fee award to a prevailing party under 42 U.S.C. § 1988. As summarized by this court:
The Supreme Court has held that "the proper first step in determining a reasonable attorney's fee is to multiply `the number of hours reasonably expended on the litigation times a reasonable hourly rate.'" The resulting product is commonly known as the lodestar award. The Supreme Court has noted that most of the factors articulated by the United States Court of Appeals for the Fifth Circuit in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974), are subsumed in the initial calculation of the "lodestar" award. See Hensley v. Eckerhart, 461 U.S. at 424, 434 n. 9, 103 S.Ct. 1933, 1940 n. 9, 76 L.Ed.2d 40 (1983). Those factors have been adopted by the United States Court of Appeals for the Fourth Circuit. Consideration of those factors in arriving at the reasonable rate and reasonable number of hours expended ordinarily will produce a lodestar figure that results in fair compensation without further adjustment.
McCollum v. McDaniel, 136 F.Supp.2d 472, 478-79 (D.Md.2001).
Before applying the factors, it is appropriate to describe briefly the events and issues involved in this case. After efforts to forestall passage of the ordinance were unsuccessful, the plaintiffs filed suit on February 2, 2007 seeking a declaration that Zoning Regulation 450.7.F as amended by the County Council in December 2006 violated the First Amendment by providing that a political campaign sign required to carry an authority line on behalf of a candidate or a political issue could be displayed on private property no earlier than 45 days before any primary and must be removed 7 days after the primary for an unsuccessful candidate. Cross-motions for summary judgment were filed and oral argument was heard July 20, 2007. For reasons more fully explained in the transcript of the oral ruling, I found the regulation to be an unconstitutional durational limit on political residential signs, noting the significant protection provided such speech in City of Ladue v. Gilleo, 512 U.S. 43, 54-57, 114 S.Ct. 2038, 129 L.Ed.2d 36 (1994).
At oral argument and in their papers, both sides acknowledged that the regulation potentially burdens the First Amendment rights of citizens — those homeowners or residents who wished to display the signs — and also of political candidates, see Arlington County Republican Comm. v. Arlington County, 983 F.2d 587, 595 (4th Cir.1993), and that political speech is entitled to the highest degree of protection under the First Amendment, id. at 593. Also there was no dispute that, if the regulation is content-based, it must be narrowly tailored to promote a compelling governmental interest, and if there is a less restrictive alternative that would serve that purpose, the alternative must be used. Burson v. Freeman, 504 U.S. 191, 197-98, 112 S.Ct. 1846, 119 L.Ed.2d 5 (1992); Curry v. Prince George's County, 33 F.Supp.2d 447, 452 (D.Md.1999). The County conceded that its asserted justification of traffic safety and aesthetics would not survive a content-based standard, but argued the regulation was content-neutral.1
It appeared to me that the regulation was content-based, as it applied only to certain types of political signs, and indeed most courts considering the issue have reached this conclusion. See McFadden v. City of Bridgeport, 422 F.Supp.2d 659, 671-74 (N.D.W.Va.2006) (discussing cases); Curry, 33 F.Supp.2d at 452 (collecting cases).2 Recognizing that Baltimore County did not direct the regulation at any particular political party or viewpoint, however, see Covenant Media v. City of North Charleston, 493 F.3d 421, 432-34 (4th Cir.2007), I acknowledged the question was at least debatable and proceeded to rule on the assumption the regulation was content-neutral, as did the Court in City, of Ladue and the Fourth Circuit in Arlington County. If the regulation is content-neutral, it still must be narrowly tailored to serve a significant governmental interest and has to leave open ample alternatives for communication. Burson, 504 U.S. at 197, 112 S.Ct. 1846, Arlington County, 983 F.2d at 593. While traffic safety and visual clutter are significant governmental concerns, Regulation 450.7.F was not narrowly tailored to accomplish those objectives. For example, it left many signs unregulated rather than applying setbacks or size restrictions to all signs, or simply requiring any sign that had fallen into disrepair to be removed. See, e.g., McFadden, 422 F.Supp.2d at 675 (applying strict scrutiny). Most significantly, the importance of official campaign signs and the message they provide both visually and as a direct form of speech has been recognized by many courts. It is difficult to identify a sufficient alternative. The County cited no case after the Court's ruling in City of Ladue that has upheld durational limits on political yard signs, while several courts have found such limits unconstitutional. See, e.g., Whitton v. City of Gladstone, 54 F.3d 1400, 1408 (8th Cir. 1995); McFadden, 422 F.Supp.2d at 675; Curry, 33 F.Supp.2d at 455; Dimas v. City of Warren, 939 F.Supp. 554, 558 (E.D.Mich.1996).
Accordingly, on July 31, 2007, I entered an Order denying the County's motion for summary judgment, declaring the regulation unconstitutional, and enjoining its enforcement. No appeal was taken and this petition for attorneys' fees followed.
I will first address the reasonableness of the hourly rates requested by plaintiffs' counsel. The plaintiffs request $400 per hour for Russell Duncan, a partner at Orrick, Herrington & Sutcliffe LLP, with over 20 years' experience in general litigation; $350 per hour for Deborah Jeon, ACLU Legal Director with over 20 years' experience in civil rights litigation; and amounts from $155 to $225 per hour for the three associates whose time is claimed on the case.3 The County challenges only the rates for Ms. Jeon and Mr. Duncan, and does so only by reference to the presumptive rates set in this court's Rules and Guidelines for Determining Attorney's Fees before their upward adjustment became effective in January 2008. See Local Rules, App. B (D.Md.). Considering the affidavits submitted in support of the plaintiffs' counsel's hourly rates, however, and the opinion of Judge J. Frederick Motz in Williams v. Maryland Office Relocators, No. 05-3030 (D.Md. June...
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Kolbe v. Baltimore County, Md.
...whether the [size] limit leaves open ample alternative means for communicating the desired message." Id.; see also Bell v. Baltimore Cnty., 550 F.Supp.2d 590, 592 (D.Md.2008) (applying analysis to durational limits and political campaign signs). As noted, the first key issue dividing the pa......