United States District Court, D. South Dakota, Northern Division
STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA CENTRAL
OPINION AND ORDER
CHARLES B. KORNMANN United States District Judge.
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.
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.
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.
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).
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
. 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). 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).
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
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.
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.
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.
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.
Hours Reasonably Expended.
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 ...