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Norton v. City of Springfield

United States District Court, C.D. Illinois, Springfield Division

December 15, 2017

DON NORTON and KAREN OTTERSON, Individually and on behalf of others similarly situated, Plaintiffs,
v.
CITY OF SPRINGFIELD, et al., Defendants.

          OPINION

          RICHARD MILLS, U.S. District Judge

         This case is about the First Amendment and attorney's fees.

         Let us start at the beginning.

         I. INTRODUCTION

         The Plaintiffs-Don Norton and Karen Otterson-challenged the constitutionality of § 131.06(e) of the City of Springfield Municipal Code, an ordinance that made it “unlawful to engage in an act of panhandling in the downtown historic district” of Springfield. The Plaintiffs asserted the ordinance was a content-based regulation of speech in violation of their First Amendment rights.

         The primary constitutional issue concerned the standard for determining whether a particular regulation is properly treated as “content-based” or “content- neutral” under the First Amendment. The Defendant, City of Springfield, defended the constitutionality of the ordinance, eventually seeking review in the United States Supreme Court. After nearly four years of litigation, the Plaintiffs obtained all of the relief they sought: (1) a determination by the Seventh Circuit that the challenged ordinance is a content-based regulation that violates the First Amendment; (2) complete repeal of the ordinance; and (3) an award of compensatory damages to the Plaintiffs.

         The Parties attempted to resolve the issue of attorney's fees without the Court's involvement. Because those efforts were unsuccessful, the Plaintiffs now seek an award of attorney's fees and costs under the Civil Rights Attorney's Fee Awards Act of 1976, 42 U.S.C. § 1988. Section 1988 authorizes the Court to allow a “reasonable attorney's fee” to prevailing civil rights plaintiffs.

         II. BACKGROUND

         The Defendant, City of Springfield, claims that when it sought to enact a panhandling ordinance in 2007, it intended to comply with applicable law as articulated in Gresham v. Peterson, 225 F.3d 899 (7th Cir. 2000), wherein the Seventh Circuit upheld an Indianapolis panhandling ordinance as constitutional.

         Six years later the Plaintiffs, represented by Mark G. Weinberg and Adele Nicholas, on September 3, 2013 filed this case. The claim was that the prohibition in § 131.06(e) of the Springfield Municipal Code on “vocal requests” for “immediate donation[s]” on the public walkways in the downtown historic district violated the First Amendment. The following day, the Plaintiffs filed a motion for a preliminary injunction, seeking an order preventing the City from enforcing the ordinance on the ground that the ban on panhandling was a content-based regulation of speech that was not narrowly tailored to serve a compelling government interest.

         The City opposed the Plaintiffs' motion and filed a motion to dismiss on the basis that the complaint failed to state a claim for violation of the First Amendment.

         The Court denied the motion for a preliminary injunction on October 25, 2013, finding that the ordinance was a reasonable, content-neutral regulation of the “time, place and manner” of speech. The Plaintiffs appealed the denial of the preliminary injunction to the Seventh Circuit. During the pendency of the appeal, the Supreme Court issued its decision in McMullen v. Coakley, 134 S.Ct. 2518 (2014), clarifying the extent to which municipalities may regulate speech occurring on public sidewalks. The Plaintiffs submitted supplemental briefing to the Seventh Circuit addressing McMullen on June 27, 2014.

         Following oral argument, the Seventh Circuit on September 25, 2014 affirmed this Court's decision denying the Plaintiffs' motion for a preliminary injunction, finding the City's ordinance to be a content-neutral regulation which imposed a reasonable time, place or manner restriction on speech. See Norton v. City of Springfield, 768 F.3d 713 (7th Cir. 2014).

         The Plaintiffs petitioned for rehearing en banc in the Seventh Circuit on October 9, 2014. Attorneys from Latham & Watkins filed additional appearances on the Plaintiffs' behalf in the Seventh Circuit. While the en banc petition was pending, the U.S. Supreme Court issued its decision in Reed v. Town of Gilbert, 135 S.Ct. 2218 (2015). In Reed, the Supreme Court held that “a speech regulation targeted at specific subject matter is content based even if it does not discriminate among viewpoints within that subject matter.” Id. at 2230. Subsequently, the Supreme Court remanded Thayer v. Worcester, 755 F.3d 60 (1st Cir. 2014), No. 14-428 (U.S. June 29, 2015)-a case wherein the First Circuit had upheld a municipal panhandling law as a content-neutral regulation of the “time, place and manner” of speech-for reconsideration in light of Reed. The Seventh Circuit requested supplemental briefing from the parties on the effect of Reed and Thayer on its consideration of the constitutionality of Springfield's panhandling ordinance. The Plaintiffs filed their supplemental brief on July 13, 2015.

         The Seventh Circuit panel issued a unanimous decision granting the Plaintiffs' petition for rehearing on August 7, 2015, finding that Springfield's panhandling ban was a form of impermissible “content discrimination” under Reed and the Plaintiffs, therefore, were entitled to a preliminary injunction. See Norton v. City of Springfield, 806 F.3d 411, 413 (7th Cir. 2015). The case was remanded to this Court.

         On December 1, 2015, the City filed a petition for a writ of certiorari to the U.S. Supreme Court, asserting that the Seventh Circuit misapplied Reed. The Plaintiffs responded on January 4, 2016, and the Defendants replied. The Supreme Court denied the petition for a writ of certiorari on March 1, 2016.

         On remand, this Court entered an order granting a preliminary injunction on September 17, 2015. The City sought to defend the ordinance under a strict scrutiny standard. While the injunction was in place, the parties conducted discovery. At the conclusion of discovery, the parties agreed to mediation. Following two settlement conferences with United States Magistrate Judge Tom Schanzle-Haskins, on November 4, 2016, and January 13, 2017, the parties reached an agreement concerning repeal of the ordinance and the Plaintiffs' damages.

         The City repealed the ordinance on February 23, 2017. On March 24, 2017, the parties entered into a stipulation wherein the City agreed to pay each Plaintiff compensatory damages of $2, 500 and agreed that the Plaintiffs shall be deemed “prevailing parties” for purposes of determining the attorney's fees Plaintiffs are entitled to recover.

         III. LODESTAR METHOD AND HOURLY RATES

         The Stipulation of Dismissal identifies the Plaintiffs as the “prevailing party in the lawsuit for the purpose of determining the amount of reasonable attorneys' fees.” See Doc. No. 48. Under § 1988, therefore, the Plaintiffs are entitled to “reasonable” attorney's fees as the “prevailing party” in a § 1983 action.

         In determining an award of attorney's fees, courts typically employ the “lodestar method, ” which is “the product of the hours reasonably expended on the case multiplied by a reasonable hourly rate.” Montanez v. Simon, 755 F.3d 547, 553 (7th Cir. 2014). “Although the lodestar yields a presumptively reasonable fee, the court may nevertheless adjust the fee based on factors not included in the computation.” Id. (internal citation omitted).

         The Seventh Circuit noted that “[a] reasonable hourly rate is based on the local market rate for the attorney's services.” Id. The best indicator of the market rate is the amount actually billed by the attorney for similar work. See id. If that rate cannot be determined, a court may consider “evidence of rates charged by similarly experienced attorneys in the community and evidence of rates set for the attorney in similar cases.” Id. The prevailing party has the burden of establishing the market ...


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