Sullivan v. City of Augusta, No. CV-04-32-B-W.
| Decision Date | 09 June 2009 |
| Docket Number | No. CV-04-32-B-W. |
| Parties | Timothy SULLIVAN, et al., Plaintiffs, v. CITY OF AUGUSTA, Defendant. |
| Court | U.S. District Court — District of Maine |
Lynne A. Williams, Law Office of Lynne A. Williams, Bar Harbor, ME, Zachary L. Heiden, Maine Civil Liberties Union, Portland, ME, David G. Webbert, Johnson & Webbert, LLP, Augusta, ME, for Plaintiffs.
Michael Kaplan, Sigmund D. Schutz, Preti, Flaherty, Beliveau, Pachios & Haley, LLP, Portland, ME, Stephen E.F. Langsdorf, Preti, Flaherty, Beliveau, Pachios & Haley, LLP, Augusta, ME, for Defendant.
ORDER ON MOTION FOR ATTORNEY FEES
Freedom has a price. The Plaintiffs were successful in a lawsuit against the city of Augusta, and the First Circuit declared unconstitutional several significant provisions of the City's parade ordinance. The Plaintiffs claim from the City a total of $121,751.44: $135,751.44 in attorney fees and expenses for their success on the merits, and an additional $6,000 for their pursuit of this award of attorney fees. Using historic instead of 2008 hourly rates, subtracting fees and expenses attributable to issues on which they did not prevail, and calculating fees and expenses attributable to issues on which they did, the Court awards Plaintiffs $83,264.78: $77,264.78 in fees and expenses for their success on the merits and $6,000 for their pursuit of fees.
Under federal law, if a plaintiff prevails in a lawsuit against the government that vindicates constitutional rights, the plaintiff is entitled to reasonable attorney fees as part of the costs. 42 U.S.C. § 1988(b). On March 15, 2004, Timothy Sullivan filed a lawsuit under 42 U.S.C. § 1983 against the city of Augusta, Maine, claiming that certain provisions of the City's ordinances violated his First Amendment rights.1 Compl. (Docket # 1). On December 14, 2007, the Court of Appeals for the First Circuit issued an opinion that affirmed some, but not all the Plaintiffs' constitutional claims. Sullivan v. City of Augusta, 511 F.3d 16 (1st Cir.2007). On November 26, 2008, the Plaintiffs moved for an award of attorney fees and expenses in the total amount of $115,751.44. Pls.' Mot. for Award of Att'y's Fees and Litigation Expenses (Docket # 83) Taking the position that "either no fee, or a drastically reduced fee, is appropriate," the City objected. Def.'s Opp'n to Pls.' Mot. for Award of Att'y's Fees and Litigation Expenses at 1 (Docket # 95) (City's Opp'n). The Plaintiffs replied and requested an additional $6,000 in fees attributable to their pursuit of fees. Pls.' Reply in Support of Mot. for Award of Att'y's Fees and Litigation Expenses (Docket # 98) . The City sur-replied.2 Def.'s Surreply to Pls.' Reply in Support of Mot. for Award of Att'y's Fees and Litigation Expenses (Docket # 104) (City's Sur-Reply).
Along with his March 15, 2004 Complaint, Timothy Sullivan filed a motion for temporary restraining order against the city of Augusta, alleging that the ordinances controlling parades and mass gatherings placed unconstitutional burdens on the exercise of First Amendment rights. Compl. ¶¶ 1-2; Pl.'s Mot. for TRO (Docket # 2). On March 17, 2004, the City responded and urged the Court to "deny the motion." City of Augusta's Mem. in Opp'n to Pl.'s Mot. for TRO at 1 (Docket # 7). On March 19, 2004, the Court issued an Order, granting in part and denying in part the motion for temporary restraining order. Order Regarding Pl.'s Mot. for TRO (Docket # 12).3 The Court granted the motion regarding the City's bond requirement on the ground that it delegated excessive discretion to the Chief of the Augusta Police Department. Id. at 2. In all other respects, however, the Court denied the motion. Id.
On January 20, 2005, the Plaintiffs moved for judgment on liability based on a stipulated record. Pls.' Mot. for J. on Liability Issues Based on a Stipulated R. (Docket # 43). In the motion, the Plaintiffs asked:
(1) That the Court hold that sub-sections (a) and (c) of the City's Parade Ordinance § 13-5 violate the First Amendment on their face and as applied and enjoin the City permanently from enforcing them;
(2) That the Court hold that sub-section (e) of the City's Parade Ordinance § 13-5 violates the First Amendment on its face and as applied to applicants for whom the fee requirements would create a substantial hardship because of their limited financial means;
(3) That the Court hold that the City's Mass Outdoor Gathering Ordinance (MOGO) violates the First Amendment on its face because of the content discrimination established by § 3-122 and the inflexible thirty-day advance notice requirement in § 3-116(b); and,
(4) That the Court hold that the permit fee in § 3-120 of the City's MOGO violates the First Amendment on its face and as applied to applicants for whom fee requirements would create a substantial hardship because of their limited financial means.
Id. at 38. The City responded, urging the Court to "deny to Plaintiffs any relief and enter a judgment in favor of Defendant." Def.'s Resp. to Mot. for J. on Liability, and Cross-Mot. for J. on Liability (Docket # 48). On December 22, 2005, the Court issued an Order, which granted the Plaintiffs' motion and denied the City's cross-motion. Order on Mots. for J. on Liability (Docket # 69).4 The Court concluded:
(1) That the City had charged Mr. Sullivan $478.55 more for traffic control than its actual overtime payments and that this charge was unconstitutional;
(2) That § 13-5(a) of the Parade Ordinance and § 3-116(b) of the MOGO violate the First Amendment and are unconstitutional to the extent that each requires thirty (30) days prior notice and a shorter time frame only for "good cause" shown;
(3) That § 13-5(c) of the Parade Ordinance, to the extent it requires an applicant to "meet with the Police Chief to discuss and attempt to agree on the details on the route and other logistics," violates the First Amendment and is unconstitutional;
(4) That § 13-5(e) of the Parade Ordinance and § 3-120 of the MOGO, to the extent that neither allows for a waiver of fees for indigents, violate the First Amendment and are unconstitutional. Also, the City's current method of calculating costs of traffic control and clean up to be paid by the applicant violates the First Amendment and is unconstitutional; and,
(5) That § 3-122 of the MOGO, providing an exemption for athletic events "conducted by the Board of Education, Little League or other organizations, provided alcohol is not available" violates the First Amendment and is unconstitutional.
The City appealed to the Court of Appeals for the First Circuit. On December 14, 2007, finding that the Plaintiffs did not have standing to challenge the MOGO, the First Circuit vacated all this Court's rulings on that ordinance. Sullivan v. City of Augusta (Sullivan III), 511 F.3d 16, 20 (1st Cir.2007). The Sullivan III Court affirmed the rulings "that the advance notice and in-person meeting requirements of the parade ordinance are constitutionally defective and ... that the $478.55 overcharge to Sullivan was unconstitutional." Id. However, the Court reversed the rulings "that the fee provision grants excessive discretion to the police and that the parade permit fee of $100 and associated charges for police traffic control are unconstitutional insofar as indigents must pay them without being given an opportunity to seek and secure a wavier on account of their indigency." Id.
Recognizing that the fee-shifting statute entitles only prevailing parties to attorney fees paid by the government, the Plaintiffs stress that they prevailed on "four very important First Amendment claims": (1) the bond requirement, which was the subject of their motion for temporary restraining order; (2) the thirty-day advance notice requirement; (3) the in-person meeting requirement; and, (4) the permit fee charged to and paid by Sullivan, which included "some profit" for the City. Pls.' Mot. at 2-5. The Plaintiffs go further and say that the vindication of these rights went beyond the city of Augusta and had the salutary effect of removing restrictions on the exercise of First Amendment rights from the ordinances of other Maine municipalities. Id. at 5-7. Finally, the Plaintiffs assert that they should be reimbursed for all the time and expenses in this lawsuit, even if spent on the unsuccessful claims, because the successful and unsuccessful claims were intertwined and because in any event, they vindicated important constitutional rights by pressing the claims on which they were successful. Id. at 7-10.
The City first contends that the Plaintiffs are entitled to no fee at all, since they lost on "their central claims." City's Opp'n at 2. The City observes that the Plaintiffs engaged in a wholesale assault on the constitutionality of significant provisions of the Augusta parade and MOGO ordinances, specifically the absence of an indigency exception to the parade permitting process and the discretion conferred on public officials to determine the amount chargeable for the parade permit. Id. The City points out that the Plaintiffs did not prevail on either of these groundbreaking theories. Further, the City argues that the one issue on which the Plaintiffs did prevail "was decided just four days into the case and not contested by the City thereafter." Id. (emphasis in original).5 Comparing what the Plaintiffs initially sought with what they finally achieved, the City characterizes their victories as being on "three minor points," which had received "at best, passing mention in the Complaint." Id. at 8....
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