Mcqueary v. Conway

614 F.3d 591

Bart McQUEARY, Plaintiff-Appellant,

v.Jack CONWAY, Attorney General of the Commonwealth of Kentucky, Defendant-Appellee.

No. 09-5807.

United States Court of Appeals,Sixth Circuit.

Argued: April 22, 2010.

Decided and Filed: July 29, 2010.

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ARGUED: William E. Sharp, American Civil Liberties Union of Kentucky, Louisville, Kentucky, for Appellant. Tad Thomas, Office of the Kentucky Attorney General, Frankfort, Kentucky, for Appellee. ON BRIEF: William E. Sharp, David A. Friedman, American Civil Liberties Union of Kentucky, Louisville, Kentucky, for Appellant. Tad Thomas, Lisa K. Lang, Office of the Kentucky Attorney General, Frankfort, Kentucky, for Appellee.

Before: GUY, BOGGS and SUTTON, Circuit Judges.

OPINION

SUTTON, Circuit Judge.

In 2006, Bart McQueary challenged the validity of a Kentucky law placing limits on protests at military funerals, claiming that the law violated his free-speech rights under the First and Fourteenth Amendments. The district court granted McQueary's motion to enjoin enforcement of the law on a preliminary basis, soon after which Kentucky repealed the relevant provisions of the statute. The Commonwealth's voluntary repeal of the law, the parties now agree, mooted McQueary's § 1983 action. Yet the parties take sides over whether, in the aftermath of the Commonwealth's repeal of the law, McQueary is a “prevailing party” eligible for attorney's fees under § 1988.

I.

In March 2006, the Kentucky legislature added three misdemeanors to its criminal code, all designed to discourage protests by the Westboro Baptist Church, whose members have become known for staging anti-homosexual protests at military funerals-a practice that McQueary's attorney acknowledges is “controversial (and offensive to many),” R.43 at 7. See 2006 Ky. Laws Ch. 50-51; Snyder v. Phelps, 580 F.3d 206, 211-12 (4th Cir.2009), cert. granted, --- U.S. ----, 130 S.Ct. 1737, 176 L.Ed.2d 211 (2010). In full, the three new misdemeanors read as follows:

A person is guilty of disorderly conduct in the first degree when he or she:

(a) In a public place and with intent to cause public inconvenience, annoyance, or alarm, or wantonly creating a risk thereof:

1. Engages in fighting or in violent, tumultuous, or threatening behavior;

2. Makes unreasonable noise; or

3. Creates a hazardous or physically offensive condition by any act that serves no legitimate purpose; and

(b) Acts in a way described in paragraph (a) of this subsection within three hundred (300) feet of a:

1. Cemetery during a funeral or burial;

2. Funeral home during the viewing of a deceased person;

3. Funeral procession;

4. Funeral or memorial service; and

(c) Knows that he or she is within three hundred (300) feet of an occasion described in paragraph (b) of this subsection.

2006 Ky. Laws Ch. 50 § 1(1), codified as amended at Ky.Rev.Stat. § 525.055(1).

A person is guilty of disrupting meetings and processions in the first degree when, with intent to prevent or disrupt a funeral or burial, funeral home viewing of a deceased person, funeral procession, or funeral or memorial service for a deceased person, he or she does any act tending to obstruct or interfere with it physically or makes any utterance, gesture, or display designed to outrage the sensibilities of the group attending the occasion.

2006 Ky. Laws Ch. 50 § 3, codified at Ky.Rev.Stat. § 525.145(1).

A person is guilty of interference with a funeral when he or she at any time on any day:

(a) Blocks, impedes, inhibits, or in any other manner obstructs or interferes with access into or from any building or parking lot of a building in which a funeral, wake, memorial service, or burial is being conducted, or any burial plot or the parking lot of the cemetery in which a funeral, wake, memorial service, or burial is being conducted;

(b) Congregates, pickets, patrols, demonstrates, or enters on that portion of a public right-of-way or private property that is within three hundred (300) feet of an event specified in paragraph (a) of this subsection; or

(c) Without authorization from the family of the deceased or person conducting the service, during a funeral, wake, memorial service, or burial:

1. Sings, chants, whistles, shouts, yells, or uses a bullhorn, auto horn, sound amplification equipment, or other sounds or images observable to or within earshot of participants in the funeral, wake, memorial service, or burial; or

2. Distributes literature or any other item.

2006 Ky. Laws Ch. 50 § 5.

Roughly one month after the passage of these laws, Bart McQueary, a Kentucky resident who had joined these protests in the past and wanted to do so again, filed a lawsuit against Kentucky's Attorney General in federal court. See R.1. McQueary claimed that §§ 5(b) and 5(c) of the March 2006 Act, located in the third of the new laws, violated his First and Fourteenth Amendment rights in several ways. He wanted to “congregate[ ], picket[ ]” and “demonstrate[ ]” in a non-disruptive way on public rights-of-way within 300 feet of funerals, yet the 2006 Act appeared to prevent him from doing so. 2006 Ky. Laws Ch. 50 § 5(b). He wanted to make sounds and display images “observable to or within earshot of” funerals without permission from the family of the deceased and without disrupting the funeral, yet the 2006 Act appeared to prevent him from doing so. 2006 Ky. Laws Ch. 50 § 5(c). And he wished to “distribute [ ] literature” during his funeral protests, yet the 2006 Act appeared to prohibit him from doing so. 2006 Ky. Laws Ch. 50 § 5(c). McQueary asked the district court to declare §§ 5(b) and 5(c) unconstitutional on their face and to enjoin their enforcement.

In September 2006, the district court preliminarily enjoined enforcement of §§ 5(b) and 5(c), finding it likely that the provisions were unconstitutionally overbroad. See McQueary v. Stumbo (McQueary I), 453 F.Supp.2d 975, 997 (E.D.Ky.2006). Six months later, in March 2007, the Kentucky legislature repealed these two subsections of the 2006 Act. See 2007 Ky. Laws Ch. 107 § 3.

After Kentucky repealed the challenged provisions, the district court dismissed the lawsuit as moot. See McQueary v. Conway (McQueary II), 634 F.Supp.2d 821, 830 (E.D.Ky.2009). In the same order, the court denied McQueary's request for attorney's fees. The court reasoned that McQueary did not directly benefit from the preliminary injunction because the central premise of its likelihood-of-success conclusion-overbreadth-did not necessarily establish that McQueary could picket the way he wanted to. See id. at 832-33. And because McQueary did not challenge other provisions of the 2006 Act prohibiting “violent, tumultuous, or threatening behavior” near funerals, Ky.Rev.Stat. Ann. § 525.055, the court thought it likely that, even after the court's preliminary injunction and the legislature's repeal of the challenged statutes, McQueary would not be able to engage in the funeral protests, McQueary II, 634 F.Supp.2d at 833. McQueary appeals the court's rejection of his request for fees.

II.

In trying to resolve the thorny questions raised by McQueary's appeal-whether or when the winner of a preliminary injunction may be treated as a “prevailing party” entitled to attorney's fees-a few basics are in order. There is no common law right to attorney's fees. Under the “American Rule,” the “general practice” is not to award fees to prevailing parties “absent explicit statutory authority.” Buckhannon Bd. & Care Home v. W. Va. Dep't of Health and Human Res., 532 U.S. 598, 602, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001). Under § 1988, as under several other fee-shifting statutes, Congress has explicitly empowered the courts to grant fees to parties who win § 1983 actions, among other civil rights actions:

In any action or proceeding to enforce a provision of ... [§ ] 1983 ..., 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....

42 U.S.C. § 1988(b); see, e.g., id. § 3613(c)(2) (authorizing fee awards to the “prevailing party” in Fair Housing Amendments Act cases); id. § 12205 (same in Americans with Disabilities Act cases); id. § 2000e-5(k) (same in Civil Rights Act cases); id. § 1973l(e) (same in Voting Rights Act cases).

“[P]revailing party” is a “legal term of art,” Buckhannon, 532 U.S. at 603, 121 S.Ct. 1835, one that two recent decisions of the Supreme Court help to define. In Buckhannon, the plaintiff sought an injunction barring enforcement of a West Virginia statute and obtained a court-ordered preliminary injunction, though one to which West Virginia consented. See id. at 601, 121 S.Ct. 1835. Two months after the district court rejected the State's sovereign immunity defense and one month after it denied the State's motion for summary judgment, the State repealed the statute, after which the district court dismissed the case as moot and denied the plaintiff's request for attorney's fees. See id. The Supreme Court affirmed the denial of fees, rejecting the “catalyst theory” for awarding fees, under which a plaintiff “prevailed” if he “achieve[d] the desired result because the lawsuit brought about a voluntary change in the defendant's conduct,” such as a legislative repeal of a challenged statutory provision. Id. at 601-02, 121 S.Ct. 1835. That theory, the Court reasoned, overlooks the legal reality that “prevailing party” covers only parties “in whose favor a judgment is rendered.” Id. at 603, 121 S.Ct. 1835 (internal quotation marks omitted). A defendant's voluntary change, even one precipitated by litigation, does not amount to “a court-ordered change in the legal relationship” between the plaintiff and defendant, as required to establish prevailing-party status. Id. at 604, 121 S.Ct. 1835.

In Sole v. Wyner, 551 U.S. 74, 86, 127 S.Ct. 2188, 167 L.Ed.2d 1069 (2007), the Court established that the “court-ordered change in the legal...