United States District Court, C.D. Illinois, Springfield Division
DON NORTON and KAREN OTTERSON, Individually and on behalf of others similarly situated, Plaintiffs,
CITY OF SPRINGFIELD, et al., Defendants.
RICHARD MILLS, U.S. District Judge
case is about the First Amendment and attorney's fees.
start at the beginning.
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
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.
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.
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
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
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.
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,
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).
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.
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.
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.
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'
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.
LODESTAR METHOD AND HOURLY RATES
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.
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).
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 ...