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Horina v. City of Granite City

June 18, 2007

DONALD N. HORINA, PLAINTIFF,
v.
CITY OF GRANITE CITY, ILLINOIS, DEFENDANT.



The opinion of the court was delivered by: Reagan, District Judge

ORDER AND MEMORANDUM

Before this Court are two motions*fn1 for attorney's fees: Plaintiff's Interim Petition for Fees and Costs through December 27, 2006 (Doc. 86) and Motion for Attorney's Fees Pursuant to 42 U.S.C. § 1988 (Doc. 88).

I. Background and Introduction

Horina is a Christian who feels obligated to tell others about their need to be "born again." He accomplishes his purpose primarily through public distribution of free religious literature, also known as gospel tracts. Horina offers the tracts on public sidewalks and places them on automobile windshields in a manner that does not impede pedestrian traffic.

On July 26, 2003, while on a public sidewalk in Granite City, Illinois, Horina placed a gospel tract through the open window of a vehicle, resulting in a Granite City police officer issuing a ticket to Horina for violating Granite City Ordinance Chapter 5.78.010,*fn2 the "Handbill Distribution Ordinance" (hereinafter "Ordinance 5.78.010").

On April 19, 2004, Horina appeared at an administrative hearing regarding the ticket. At the hearing, the citation was amended to a charge of trespass to vehicle under a different city ordinance, and Horina was fined $100.00.

On February 4, 2005, Horina initiated this case by filing a complaint for declaratory judgment, preliminary and permanent injunctive relief and compensatory damages (Doc. 1). He sought to enjoin Granite City from enforcing Ordinance 5.78.010 on the grounds that it unconstitutionally prohibited Horina and similarly-situated third persons from exercising their rights to freedom of speech and religion, and violated their equal protection rights under the First and Fourteenth Amendments (See Doc. 1). In furtherance of this objective, on April 27, 2005, Horina filed a motion for a temporary and preliminary injunction (Doc. 7) seeking, among other things, preliminary and permanent injunctions restraining Granite City from enforcing Ordinance 5.78.010. On May 20, 2005, this Court held a hearing on that motion and, following that hearing, granted Horina's request for a preliminary injunction prohibiting Granite City from enforcing Ordinance 5.78.010 (See Doc. 35).

In response, on November 15, 2005, Granite City repealed Ordinance 5.78.010 and established Granite City Ordinance 7861, entitled "An Ordinance Repealing the Existing Handbill and Leafleting Ordinance and Prohibiting Certain Leafleting" (hereinafter "Ordinance 7861")(See Doc. 56, Ex. 1). According to the preamble of Ordinance 7861, the purpose of the ordinance is to protect Granite City residents' "right to free speech, and the desire to be free of unwanted intrusion, trespass, harassment, and litter ...." Id. Apparently to further this objective, Ordinance 7861 enumerates several restrictions on the depositing, distributing, or selling of "handbills," which the ordinance defines as "any leaflet, pamphlet, brochure, notice, handout, circular, card, photograph, drawing, or advertisement, printed on paper or on cardboard." Id.

On February 6, 2006, dissatisfied with Granite City's revisions to its handbilling restrictions, Horina filed an amended motion for preliminary injunction (Doc. 53). In that motion, Horina asserted that Ordinance 7861, like its predecessor, is unconstitutional. Specifically, Horina asserted that Ordinance 7861 is vague and overbroad, and curtails more speech than necessary to achieve any compelling, significant, or substantial governmental interest. Horina further argued that Granite City's enforcement of Ordinance 7861 causes him to be irreparably harmed by chilling his exercise of First Amendment rights to freedom of speech and religion.

On March 24, 2006, this Court held a hearing on that motion, and, on May 19, 2006, granted that motion (see Doc. 66).

On April 21, 2006, Horina filed an amended motion for judgment on the pleadings (Doc. 65). After carefully reviewing the evidence and arguments presented by both parties, this Court found that Granite City Ordinance 7861 was unconstitutional on its face and granted Horina's amended motion for judgment on the pleadings (Doc. 65). Consequently, the only issue remaining in this case was the amount of damages, if any, owed by Granite City to Horina for having violated his constitutional rights.

On October 30, 2006, this case proceeded to bench trial on the issue of damages. Following that trial, on December 27, 2006, this Court ordered the Clerk of the Court to enter judgment in favor of Horina and against Granite City in the sum of $2772.00 (see Doc. 83). Subsequently, Horina's attorneys filed two motions for attorney's fees pursuant to FEDERAL RULE OF CIVIL PROCEDURE 54(d) (Docs. 86, 88 (as amended by Doc. 90)). Granite City has filed objections (Docs. 91, 113). This matter being fully briefed, the Court now rules as follows.

II. Analysis

Section 1988(b) of Title 42 states that in an action to enforce the provisions of § 1981 or § 1983, "the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee as part of the costs." The Seventh Circuit has remarked: "[D]istrict courts entertain a 'modest presumption' that prevailing parties are entitled to a reasonable attorney's fee," but this presumption is rebuttable. Bowerman v. Wal-Mart Stores, Inc., 226 F.3d 574, 585 (7th Cir. 2000), citing Harris Trust & Savings Bank v. Provident Life & Acc. Ins. Co., 57 F.3d 608, 617 (7th Cir. 1995).

While the prevailing party in a federal civil rights case is entitled to an award of attorney's fees, 42 U.S.C. § 1988, the fees must be reasonable, and the reasonable fee is sometimes zero. Farrar v. Hobby, 506 U.S. 103, 115 (1992); Briggs v. Marshall, 93 F.3d 355, 361 (7th Cir. 1996); Maul v. Constan, 23 F.3d 143, 147 (7th Cir. 1994); Cartwright v. Stamper, 7 F.3d 106, 110 (7th Cir. 1993); Willis v. City of Chicago, 999 F.2d 284, 290 (7th Cir. 1993).

In this matter, using the lodestar*fn3 method of calculating fees (reasonable hourly rate multiplied by time reasonably necessary for proper representation), Horina's attorneys request $17,328.75 in their interim petition for fees and costs (Doc. 86), $51,615.00 in their second motion for fees (Doc. 88) and $587.02 in costs and expenses (see Doc. 86) for a grand total of $69,530.77.

Granite City does not dispute that Horina is entitled to attorney's fees (Doc. 91, p. 2). However, Granite City does object to Horina's interim petition for fees in three respects. Specifically, Granite City asserts that: (1) certain items in Horina's interim petition were not necessarily related to the prosecution of the claims in this matter; (2) Horina is seeking recovery of fees for duplicate entries submitted by both the law firm of Mauck & Baker, LLC and Jason Craddock; and (3) the hourly rate of $500.00 listed in Horina's petition for work completed by John Mauck is excessive (see Doc. 91, p. 2). As to the second motion for attorney's fees (Doc. 88, amended by Doc. 90), Granite City objects that certain items in that motion were not necessary or related to the prosecution of the claims in this matter (see Doc. 113, p. 2) but does not take issue with Craddock's claimed hourly rate of $225.00.

Once the lodestar amount is calculated, the Court may adjust the amount up or down to take into account various factors regarding the litigation. These factors include: the time and labor required; the novelty and difficulty of the questions; the skill requisite to perform the legal services properly; the preclusion of employment by the attorney due to acceptance of the case; the customary fee; whether the fee is fixed or contingent; time limitations imposed by the client or the circumstances; the amount involved and the results obtained; the experience, reputation, and ability of the attorneys; the "undesirability" of the case; the nature and length of the professional relationship with the client; and awards in similar cases. Spellan v. Bd. of Educ. for Dist. 111, 59 F.3d 642, 645 (7th Cir. 1995). See also Hensley, 461 U.S. at 430 n. 3; Mathur v. Board of Trustees of Southern Illinois University,317 F.3d 738, 742 (7th Cir. 2003).

However, when dealing with a situation such as this, where the prevailing party receives only nominal or minimal damages, Briggs v. Marshall, 93 F. 3d 355, 361 (7th Cir. 1996), teaches that applying the three-part test from Justice O'Connor's concurrence in Farrar, 506 U.S. at 120-21,is appropriate. The three factors are: (1) the difference between the judgment recovered and the recovery sought; (2) the significance of the legal issue on which plaintiff prevailed; and (3) the public purpose of the litigation. Only if these Farrar factors weigh in favor of awarding fees does the Court need to consider the lodestar factors. Although Granite City concedes that Horina is entitled to attorney's fees in the present matter (see Doc. 91, p. 2; Doc. 113, p. 2), the Court will look briefly at each factor.

(1) Difference Between Judgment Recovered and Recovery Sought

This is the most significant of the three factors. Briggs, 93 F. 3d at 360. The Court must determine whether, as in Farrar, Horina was aiming high and fell far short,see also Pino v. Locascio, 101 F.3d 235, 238 (2d Cir. 1996); Romberg v. Nichols, 48 F.3d 453, 455 (9th Cir. 1995), in the process inflicting heavy costs on his opponent and wasting the court's time, or whether the case was simply a small claim and was tried accordingly. In the former, fees are not awarded or are minimized. In the latter, when the civil rights plaintiff aims small and obtains an amount that is significant in relation to that aim (he need not reach the target), he is prima facie entitled to an award of fees, even if the case sets no precedent. Hyde v. Small,123 F. 3d 583 (7th Cir. 1997).

This factor clearly weighs in favor of awarding fees. Horina did not necessarily "aim high" in this matter. Horina commenced this suit for the sole purpose of having Granite City's hand-billing ordinances declared unconstitutional and sought only compensatory damages and reasonable costs and expenses in addition to that goal. After convincing this Court to declare Ordinance 7861 unconstitutional, Horina only requested compensatory damages in the amount of $5,000. After reviewing the record of this matter, this Court awarded him $2772.00, or 55% of his requested compensatory relief. This matter certainly is not similar to that in Farrar, where the plaintiff "asked for a bundle and got a pittance." Farrar, 506 U.S. at 120. It was clear to the Court as Horina testified that he was strident in his beliefs and desire to leaflet and that money was of secondary, if any, importance to him. The Court finds that this factor weighs in favor of awarding attorney's fees.

(2) Significance of Legal Issue on which Plaintiff Prevailed

This factor, which evaluates the extent to which Horina succeeded on his claims, is the least significant of the three. In the instant case, Horina was entirely successful in his suit. Horina set out to have the Granite City ordinances prohibiting hand-billing declared unconstitutional and succeeded. This factor weighs in favor of an award of fees.

(3) Public Purpose Served by Plaintiff's Suit

Since all successful ยง1983 claims necessarily involve a violation of a right, attorney's fees are appropriate after Farrar only when a plaintiff's victory entails something more than the conclusion that a constitutional right has been infringed. Maul, 23 F. 3d at 146. That is not to say, however, that there are petty constitutional violations that are per se unworthy of redress. As stated in Hyde, 123 F. 3d at 585: ". . . the cumulative effect of petty violations of the Constitution arising out of the interactions between the police (and other public officers) and the citizenry on the values protected by the Constitution may not be petty, and if this is right then the ...


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