Friends of Cong. Square Park v. City of Portland

FRIENDS OF CONGRESS SQUARE PARK, et al. Plaintiffs v. CITY OF PORTLAND, Defendant

SUPERIOR COURT CIVIL ACTION DOCKET NO. AP-13-055

Superior Court of Maine

ENTERED: August 29, 2014

August 18, 2014

STATE OF MAINE

CUMBERLAND, ss

ORDER ON MOTION FOR AWARD OF ATTORNEYS' FEES

Before the court is plaintiffs' motion for an award of attorneys' fees and costs. On May 6, 2014, the Law Court affirmed this court's decision finding in plaintiffs' favor on counts I and II of their complaint regarding the City's refusal to issue citizens' initiative petition forms. Friends of Cong. Square Park v. City of Portland, 2014 ME 63, ¶ 19, 91 A.3d 601. The parties stipulated that, if plaintiffs prevailed on appeal, the City is liable on count III of plaintiffs' complaint under 42 U.S.C. § 1983. Id. ¶ 5 n. 5. Under 42 U.S.C. § 1988, the court may award reasonable attorneys' fees to the prevailing party on a section 1983 claim. 42 U.S.C. § 1988 (2012); Doe I v. Williams, 2013 ME 24, ¶ 80, 61 A.3d 718. "Unless special circumstances would render such an award unjust, the general rule is that the prevailing party is entitled to an award of attorneys' fees." IMS Health Corp. v. Schneider, 901 F. Supp. 2d 172, 187 (D. Me. 2012) (quotation marks omitted).

The City argues that special circumstances make an award of attorneys' fees unjust in this case. "The special circumstances warranting the complete denial of attorneys' fees are narrowly circumscribed." Cushing v. McKee, 853 F. Supp. 2d 163, 171 (D. Me. 2012) (quotation marks omitted). Special circumstancesthat permit the denial of a fee award "are few and far between." De Jesus Nazario v. Morris Rodriguez, 554 F.3d 196, 200 (1st Cir. 2009).

The City relies on Schock v. United States, which involved a claim for attorneys' fees under the Equal Access to Justice Act ("EAJA"), 42 U.S.C. § 2412. Schock v. United States, 254 F.3d 1 (1st Cir. 2001). The City argues that its position in this case was justified even though the City ultimately lost the case because the law in Maine was unclear on the distinction between legislative and administrative matters. Unlike § 1988, the EAJA requires a court to award fees "unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust." 42 U.S.C. § 2412(d)(1)(A) (emphasis added). The "substantially justified" language is absent from 42 U.S.C. § 1988. Schock is therefore not relevant to this case.

Federal courts have held that "mere uncertainty in the law is not a 'special circumstance' justifying rejection of a statutory award of attorney fees in a civil rights action." Northcross v. Bd. of Ed. of Memphis City Schs., 611 F.2d 624, 635 (6th Cir. 1979); see also J & J Anderson, Inc. v. Town of Erie, 767 F.2d 1469, 1474 (10th Cir. 1985) (stating that "good faith" and "uncertainty in the law" do not amount to special circumstances under § 1988). As the Northcross court explained, "[a] major purpose of the Fees Awards Act was to encourage the bringing of suits in new and undeveloped areas of civil rights law, and it would be anomalous indeed . . . to deny fees for the very reason the statute was passed." Northcross, 611 F.2d at 635. The City has failed to articulate a valid special circumstance to justify denying plaintiffs' fee award.

Furthermore, although the City contends that it acted in good faith to protect its rights in this case, the Court notes that the City withheld the citizens'initiative petition forms without any legal justification.¹ See Friends of Cong. Square Park, 2014 ME 63, ¶ 4 n.3, 91 A.3d 601 ("The City Clerk does not have express authority to reject citizens' initiative proposals submitted in compliance with the petition procedure in the City Code on the grounds that they are not legislative.") The City forced plaintiffs to file suit and litigate on an expedited schedule just to obtain the requested petition forms. As the City concedes, municipalities must proceed with caution when constitutional rights are involved and should err on the side of ensuring the free exercise of political speech.

The City does not contest the reasonableness of plaintiffs' fee request, which is supported by affidavits from counsel. Accordingly, plaintiffs' motion is granted in full.

The entry is:

Plaintiffs' motion for award of attorneys' fees is GRANTED.

Plaintiffs are awarded their attorneys' fees and costs in the amount of $50,834.50, plus post-judgment interest at 6.16% calculated from the October 31, 2013 judgment.

Dated: August 18, 2014

/s/_________

Joyce A. Wheeler

Justice, Superior Court

Plaintiffs-Sarah McDaniel Esq

Robert Levin Esq

Defendant-Danielle West-Chuhta Esq

Jennifer Thompson Esq

FRIENDS OF CONGRESS SQUARE PARK, FRANK R. TUREK, DAVID R. LaCASSE, HERBERT C. ADAMS, and PATRICIA M. O'DONNELL Plaintiffs

v.

CITY OF PORTLAND Defendant

ORDER ON 80B APPEAL AND MOTION FOR SUMMARY JUDGMENT

Plaintiffs challenge the City of Portland's refusal to provide them the required petition forms to gather signatures for a ballot initiative under the Portland City Code.

Factual and Procedural Background

Friends of Congress Square Park ("Friends") is a Maine nonprofit corporation incorporated on July 15, 2013. (Pls.' S.M.F. ¶ 2.) The individual plaintiffs are all Portland citizens, registered voters, and board directors or officers of Friends. (Pls.' S.M.F. ¶¶ 1, 3.) Friends was formed in response to a proposal in 2013 to sell a portion of Congress Square Park to a private developer. (Compl. ¶ 10.) The organization ultimately adopted a strategy of petitioning for a ballot initiative that would strengthen the current Land Bank ordinance to protect Congress Square and other city parks. (Compl. ¶ 11.)

The Land Bank Commission was established by the City Council in 1999. The Commission manages the Land Bank properties and recommends properties for potential Land Bank dedication. Under current law, the City Council alone has the authority to approve any new acquisitions or dispositions of Land Bank properties.

On September 6, 2013, plaintiffs submitted a citizen petition ("Park Initiative") to the Clerk of the City of Portland. (Pls.' S.M.F. ¶ 7.) The Park Initiative would accomplish three things: 1) establish a new category of land for Land Bank eligibility called "urban open public spaces," 2) designate 35 city-owned properties, including Congress Square Park, as Land Bank properties, and 3) strengthen the protections for all new and existing Land Bank properties. (Pls.' S.M.F. ¶ 7; Exhibit D.) On September 13, 2013, counsel for the City informed the plaintiffs that the City would not issue the petitions requested by plaintiffs because the initiative would affect administrative matters and because it related to "appropriations." (Pls.' S.M.F. ¶; Exhibit F.) On September 16, 2013, City Council voted 6-3 to approve the sale of Congress Square Park. (Pls.' S.M.F. ¶ 12.) The City entered into a purchase and sale agreement for the park on October 4, 2013. (Def.'s S.M.F. ¶ 34.)

Plaintiffs commenced this action on September 25, 2013 by filing an emergency motion for preliminary injunction asking the Court to order the City to issue the petitions. Plaintiffs alleged three counts. Count I is a Rule 80B appeal of government action, count II is an action for declaratory judgment and injunctive relief, and count III is a § 1983 claim. After a conference with counsel, the Court issued an order specifying the course of proceedings on September 30, 2013. The order stayed consideration of count III pending resolution of the first two counts. The Court accelerated the briefing deadlines for counts I and II and ordered the parties to submit their filings on the 80B appeal and declaratory judgment action in the form of a single motion for summary judgment.

Discussion

1. Standard of Review

The Court reviews interpretations of local ordinances de novo as a question of law. Aydellot v. City of Portland, 2010 ME 25, ¶ 10, 990 A.2d 1024. In construing local ordinances, courts "look first to 'the plain meaning [of the ordinance] to give effect to the legislative intent.'" Lewis v. Town of Rockport, 2005 ME 44, ¶ 11, 870 A.2d 107 (quoting Griffin v. Town of Dedham, 2002 ME 105, ¶ 7, 799 A.2d 1239). "Any undefined or ambiguous terms in the Ordinance 'must be construed reasonably with regard to both the objects sought to be obtained and to the general structure of the ordinance as a whole.'" Adams v. Town of Brunswick, 2010 ME 7, ¶ 11, 987 A.2d 502 (quoting Davis v. SBA Towers II, LLC, 2009 ME 82, ¶ 10, 979 A.2d 86).

2. Ministerial Duty

Plaintiffs argue that the Code imposes a ministerial duty on the City Clerk to issue the petitions. Section 9-36 of the Portland Code outlines the procedure for invoking the initiative process. It requires petitioners to file an affidavit of registered voters who will circulate the petition, and then states:

Upon filing of such affidavit by ten (10) such voters, the city clerk shall have seven (7) calendar days to prepare the proper petition forms pursuant to section 9-37 below with a copy of the submitted ordinance either printed on the petition or attached thereto and shall provide such petition to members of the petitioners' committee and to any other registered city voter who wishes to circulate it.

Code of Ordinances, City of Portland, Me ("Code") § 9-36(c) (eff. July 17, 2007). The plaintiffs point to the Code's own rules of construction, which instruct that "[t]he word 'shall' is mandatory." Code § 1-2; see also Casco N. Bank, N.A. v. Bd. of Trs. of VanBuren Hosp. Dist., 601 A.2d 1085, 1087 (Me. 1992) ("[T]he word 'shall' is to be construed as 'must' for the purpose of sustaining or enforcing an existing right.").

The City argues that the application of Code § 9-3 6(c) is constrained by the limitations found in the preceding Code subsections. Section 9-36(a) provides that the initiative process extends to "any proposed ordinance dealing with legislative matters on municipal affairs." Section...