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BOE v. COLELLO

February 3, 1978

B. BOE, C. COE, J. JOE, RALPH PALLADINO, JOHN DUFFY, MARIE SCHALL, ALLAN WERNICK and JOSE SOTO, Plaintiffs,
v.
JOSEPH COLELLO, EDMUND NELKE, JOHN J. FOX, JR., IRWIN BERNSTEIN, RAYMOND F. DELO, and RONALD LEE, Defendants



The opinion of the court was delivered by: WEINFELD

EDWARD WEINFELD, D.J.

 The attorney for the plaintiffs, who successfully challenged as unconstitutional the "Hawking and Peddling Ordinance" of Orangetown Township insofar as it required a prior license for the sale of newspapers or other periodicals on the public streets or other public areas, now moves for an award of counsel fees in the sum of $6,806.25. The allowance is sought from the supervisor, the chief of police and the attorney for the Township of Orangetown who were named as defendants in their official capacities and who were enjoined by the terms of the decree from acting under the voided ordinance.

 Familiarity is assumed with the Court's opinion. *fn1" The defendants, apart from challenging the requested fee as excessive, resist plaintiffs' application in part on the ground that since the town itself was not a defendant, *fn2" they will be called upon individually to pay any fees that may be allowed and urge that their conduct relative to plaintiffs' claim does not warrant personal liability.

 The plaintiffs' attorney, in pressing for the fee allowance, relies upon the Civil Rights Attorney's Fees Award Act of 1976 *fn3" (the "Act"), passed by Congress after the Supreme Court had decided Alyeska Pipeline Service Co. v. Wilderness Society,4 which in substance held that absent congressional authorization, fees to prevailing parties are not usually allowed under a longstanding American rule of law. The recently enacted statute, amending 42 U.S.C., section 1988, provides:

 
In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985 and 1986 of this title . . . the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs.

 The defendants' contention that plaintiffs were not the prevailing party because they withdrew their claim for damages is without substance. Plaintiffs obtained permanent injunctive relief and a judgment declaring the ordinance void. Damages were incidental to that major relief. The fact that plaintiffs abandoned their damage claim did not diminish the force of their successful attack upon the ordinance and does not deprive plaintiffs of their claim to fees if otherwise entitled thereto. *fn5"

 It does, however, substantially undercut defendants' protest in this case that any fee award would have to be paid by them personally. The withdrawn damage claim was against defendants personally; the declaratory and injunctive claim was addressed to the defendants in their official capacities and it was on that claim that plaintiffs prevailed. When a civil rights plaintiff prevails against a section 1983 defendant who is a "state or local official," the express legislative intent is that

 
the attorneys' fees, like other items of costs, will be collected either directly from the official, in his official capacity, from funds of his agency or under his control, or from the State or local government (whether or not the agency or government is a named party).6

 Defendants' further contention that an award under the Act is improper absent a showing of bad faith is similarly mistaken. Such an argument would be appropriate if plaintiffs were not proceeding under statute *fn7" or sought fees from the defendants in their personal capacities. *fn8" The Act, however, was passed in direct response to the Alyeska case and was intended to alleviate that decision's requirements -- among them, bad faith -- for a fee award absent statutory authorization. *fn9"

 Indeed, plaintiffs in effect urge that despite the Act's language that an award is within the Court's discretion, an award is mandated when First Amendment rights are vindicated. It is unnecessary to pass upon this contention in this case. The Senate Report, quoting the Supreme Court's construction of a similar provision in Title II of the Civil Rights Act of 1964, did make clear that a successful civil rights plaintiff "'should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust.'" *fn10" There being no such special circumstances involved herein, an award of fees is proper.

 The amount of the award, however, is a separate question. This Court has been of the view that the factor of hours in fee award situations has been given undue emphasis. *fn11" Nonetheless the Court is bound to follow the direction of our Court of Appeals. Under its rulings, the starting point is the "lodestar" figure -- the hours expended multiplied by the hourly rate. *fn12" Plaintiffs' attorney requests $ 6,806.25, representing 90-3/4 hours at $75 per hour. In light of various hourly rates which have been approved for fee awards in federal litigation in this Circuit *fn13" and the attorney's experience in constitutional litigation, the Court will not quarrel with the proposed rate. The number of hours expended, however, cannot be so readily accepted.

 Of the total hours submitted, 10-1/2 were devoted to preparation of this motion. As no benefit can possibly be said to redound to the plaintiffs from this effort, these hours will not be considered, *fn14" leaving 80-1/4 hours which plaintiffs' attorney claims were necessarily spent in work on the litigation's merits. The Court cannot accept that this case merited, much less necessitated, such a substantial expenditure of time -- especially by an attorney experienced in and familiar with the issues presented. Substantively, the questioned ordinance was so clearly unconstitutional that the Court found it to "run riot in violation of First Amendment rights of freedom of press and speech." *fn15" And although the procedural questions of abstention and comity presented more complex issues, the Court's own research was what permitted it to even reach the merits. *fn16"

 This Court's experience, both at the bench and bar over extended years, qualifies it to estimate the time reasonably required by plaintiffs' claims in terms of research, analysis and drafting of various documents. *fn17" Moreover, the Court's own research, study and analysis of the respective contentions of the parties further afford some yardstick by which to measure plaintiffs' attorney's allegations of the time factor. Any expenditure of time beyond that which is reasonably required suggests either inexperience and devotion of more time than warranted to fairly and properly present claims or, alternatively, that the attorneys, however experienced, engaged in dilettantism; a losing side is not required to pay for such indulgences. *fn18" The Court is satisfied that the hours claimed by plaintiffs' attorney, particularly those charged for drafting of documents (49-1/2 hours), are much beyond those reasonably necessitated to advance plaintiffs' constitutional claims. *fn19"

 Taking into account the basic issues involved, this Court is of the view that a fair and reasonable amount of time required for full, adequate and fair presentation of plaintiffs' position would have been 30 hours -- 6 hours a day for 5 days. In addition, plaintiffs are entitled to compensation for the 10 hours spent in connection with the hearings, or in all a total of 40 hours. Accepting the requested rate of $75 an hour, plaintiffs' attorney is entitled to a compensation of $3,000. It hardly seems necessary to add that neither the complexity of the ...


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