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SD Voice v. Noem

United States District Court, D. South Dakota, Northern Division

January 9, 2020

SD VOICE and CORY HEIDELBERGER, Plaintiffs,
v.
KRISTI G. NOEM, SOUTH DAKOTA GOVERNOR IN HER OFFICIAL CAPACITY; JASON RAVNSBORG, SOUTH DAKOTA ATTORNEY GENERAL IN HIS OFFICIAL CAPACITY; AND STEVE BARNETT, SOUTH DAKOTA SECRETARY OF STATE IN HIS OFFICIAL CAPACITY; Defendants. SOUTH DAKOTA NEWSPAPER ASSOCIATION, SOUTH DAKOTA RETAILERS ASSOCIATION, SOUTH DAKOTA BROADCASTERS ASSOCIATION, SOUTH DAKOTA CHAMBER BALLOT ACTION COMMITTEE, THOMAS BARNETT JR., and AMERICANS FOR PROSPERITY, Plaintiffs,
v.
STEVE BARNETT, IN HIS OFFICIAL CAPACITY AS SOUTH DAKOTA SECRETARY OF STATE, and JASON RAVNSBORG, IN HIS OFFICIAL CAPACITY AS SOUTH DAKOTA ATTORNEY GENERAL, Defendants.

         UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA CENTRAL DIVISION

          OPINION AND ORDER

          CHARLES B. KORNMANN United States District Judge.

         Plaintiffs in these two cases filed complaints seeking a preliminary and permanent injunction preventing the State of South Dakota from enforcing IM 24, a 2018 initiated measure which banned out-of-state contributions to South Dakota ballot question committees. Following a court trial, I issued a memorandum opinion and order finding that IM 24 is unconstitutional because it violates First Amendment rights to engage in political speech and to associate with others to fund political speech and because it violates the Commerce Clause by interfering with the free flow of money between persons or entities from another state and ballot questions committees in South Dakota. I enjoined enforcement of IM 24 and awarded attorney fees and costs in an amount to be determined later by the Court.

         The plaintiffs have filed their motions and affidavits in support of an award of attorney fees and the parties have fully briefed the issue. Plaintiffs S.D. Voice and Cory Heidelberger were represented by James D. Leach. Plaintiffs seek reimbursement for Mr. Leach's fees in the amount of $30, 090, expenses and costs in the amount of $1, 589.30, and additional fees for responding to the defendants' objection to the fee request in the amount of $2, 010.00.

         Plaintiffs South Dakota Newspaper Association, et al., were represented by Marty J. Jackley and Sara Frankenstein of Gunderson, Palmer, Nelson & Ashmore, LLP and by Ryan Morrison of Institute for Free Speech. Plaintiffs seek reimbursement for the Gunderson Law Firm's fees in the amount $63, 050.00, expenses and costs in the amount of $780.80, and additional fees for responding to the defendants' objections to the fee request in the amount of $6, 125.00. Plaintiffs seek reimbursement for the Institute for Free Speech attorney's fees in the amount of $23, 075.00.

         DECISION

         In an action filed pursuant to, inter alia, 42 U.S.C, 1983, the district court has the discretion to allow the prevailing party a reasonable attorney's fee. 42 U.S.C. § 1988. Hensley v. Eckerhart, 461 U.S. 424, 429, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). A prevailing party is "one who has been awarded some relief by the court which has created a material alteration of the legal relationship of the parties." Libertarian Party of Arkansas v. Martin, 876 F.3d 948, 952 (8th Cir. 2017), (quoting Buckhannon Bd. & Care Home, Inc. v. W.Va. Dent, of Health and Human Res., 532 U.S. 598, 603, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001)) (cleaned up).

         Defendants do not argue that plaintiffs are not prevailing parties. Instead, defendants urge the Court to deny attorney fees based upon the argument that special circumstances render an award unjust. Defendants cite the decision in Thorsted v. Gregoire, 841 F.Supp. 1068 (W.D. Wash. 1994) and urge that the following special circumstances exist which justify denial of an award of attorney's fees:

1. No award is needed to serve the purpose of Section 1988, which is to assure "effective access to the judicial process." This is not a typical civil rights case. The mere filing of suit by anyone with standing would have assured a full court test.
2. No relief has been won under the Section 1983 claims beyond that already awarded under the constitutional claims.
3. The legislation that prompted the suit was adopted by a voters' initiative, not by State officials. The deterrence purpose of Section 1983 is inapplicable.
4. The defendant officials have not yet enforced Initiative [24]. Their willingness to do so if it is upheld reflects only the minimum their oaths of office require.
5. The State officials have acted in good faith. "The Ninth Circuit has ruled that a defendant's good faith is one factor of several that a court may consider in applying the Attorney's Fees Act."
6. This is a case of first impression in federal court, and the public interest requires that it be adjudicated through a full adversary process. The State defendants have done nothing to increase the litigation costs beyond what would have been necessary in any event.
7. There was no way for the State officials to settle the case by agreement. Even if a stipulation of unconstitutionality had been entered (a most unlikely event), the court would have rejected it. State legislation is presumed constitutional until the contrary is shown.

Thorsted v. Gregoire, 841 F.Supp. 1068, 1084 (W.D. Wash. 19941 aff'd sub nom. Thorsted v. Munro, 75 F.3d 454 (9th Cir. 1996) (internal citations omitted).[1] Defendants have failed in their ethical obligation to advise the Court that the Ninth Circuit in Thorsted v. Gregoire held that "several of the circumstances identified by the district court would be insufficient, standing alone, to warrant a denial of fees." Thorsted v. Munro, 75 F.3d 454, 456 (9th Cir. 1996). Further, the Ninth Circuit has since rejected Thorsted, noting that many of the factors cited therein "are largely unique to that case ... as well as being, in part, inadequate grounds for denial of fees." Democratic Party of Wash. State v. Reed, 388 F.3d 1281, 1285 (9th Cir. 2004).

         I reject the contention that the State of South Dakota should not have to pay attorney's fees to defend an initiated law. Any attorney's fee award will be paid for by the taxpayers. Those same taxpayers voted for the initiated law that I ultimately held was unconstitutional. Remarkably, then South Dakota Attorney General Jackley warned the voters that the initiated measure would likely be challenged on constitutional grounds, https://sdsos.gov/elections-voting/upcoming-elections/general-information/2018-ballot-questions.aspx. Neither the state legislature nor the majority of voters are allowed to pass laws that violate the Constitution without risking the possibility that those oppressed by the measure will expend attorney's fees challenging it, and, upon success, be entitled to reimbursement.

         In addition, defendants urge the Court to deny fees to the South Dakota Newspaper plaintiffs because that case was filed after the S.D. Voice case, sought the same relief, and was, in effect, a tag-along case. Defendants further argue against their fee request based upon the defendants' requested stay - which would have negated many of the requested hours expended by counsel. Defendants' assertions are rejected.

         The South Dakota Newspaper Association Plaintiffs claimed IM 24 interfered with their First Amendment rights and prevented them from making or receiving contributions in violation of the Commerce Clause. While those issues were raised by the S.D. Voice plaintiffs, the defendants had filed a brief in resistance to the S.D. Voice plaintiffs' motion for an injunction wherein the defendants raised issues of standing as well as whether the S.D. Voice plaintiffs could show irreparable injury. The South Dakota Newspaper Association plaintiffs filed their complaint shortly thereafter. The second law suit was not a tag-along case. To the contrary, the plaintiffs in that case supplied different legal theories for finding IM 24 unconstitutional.

         Plaintiffs are prevailing parties who are entitled to attorney's fees. The next step is to determine whether the requested fees are reasonable. "The starting point in determining an attorneys' fee award under § 1988 is the lodestar, which is calculated by multiplying the number of hours reasonably expended by reasonable hourly rates." North Dakota v. Lange, 900 F.3d 565, 570 (8th Cir. 2018).

         I. Hours Reasonably Expended.

         The party seeking an attorney fee award must submit adequate documentation of hours expended or the district court may reduce the award. Hensley v. Eckerhart, 461 U.S. 433, 103 S.Ct. at 1939.

The district court also should exclude from this initial fee calculation hours that were not "reasonably expended." S.Rep. No. 94-1011, p. 6 (1976). Cases may be overstaffed, and the skill and experience of lawyers vary widely. Counsel for the prevailing party should make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission. "In the private sector, 'billing judgment' is an important component in fee setting. It is no less important here. Hours that ...

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