Ackerley Communications, Inc. v. City of Salem

752 F.2d 1394
CourtCourt of Appeals for the Ninth Circuit
DecidedJanuary 30, 1985
DocketNo. 83-3548
StatusPublished
Cited by13 cases

This text of 752 F.2d 1394 (Ackerley Communications, Inc. v. City of Salem) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ackerley Communications, Inc. v. City of Salem, 752 F.2d 1394 (9th Cir. 1985).

Opinions

NORRIS, Circuit Judge:

The issue presented by this appeal is whether the district court abused its discretion under the Civil Rights Attorney’s Fee Awards Act of 1976, 42 U.S.C. § 1988, by refusing to award attorney’s fees to appellant, Ackerley Communications, Inc. (hereinafter “appellant”). We hold that the district court did abuse its discretion and reverse and remand to fix the amount of fees to be awarded.

I

Appellant is an outdoor advertising company which owns advertising signs and structures in Oregon. Its billboards are [1396]*1396used for both commercial and non-commercial messages.

Appellant brought this action to challenge the validity of ordinances of the cities of Salem and Portland and the county of Multnomah, which regulated outdoor advertising signs. Appellant charged that the ordinances violated its rights to freedom of speech, due process, and equal protection and constituted a taking of property without just compensation. The ordinances were also challenged under certain provisions of state law.

The district court granted summary judgment to appellant on the ground that the ordinances violated the First Amendment. Appellant then moved for attorney’s fees under 42 U.S.C. § 1988. The district court denied the motion finding that “special circumstances exist that render such an award unjust.” Ackerley Communications, Inc. v. City of Salem, Oregon, No. 75-733-FR, slip op. at 3 (C.D.Or. Dec. 21, 1982) (hereinafter “Dist.Ct.Op.”).

We review the district court’s denial of attorney’s fees under the abuse of discretion standard. Sethy v. Alameda County Water District, 602 F.2d 894, 897 (9th Cir.1979), cert. denied, 444 U.S. 1046, 100 S.Ct. 734, 62 L.Ed.2d 731 (1980). A determination by the district court will be reversed “where the district court misperceives the law or does not consider relevant factors and thereby misapplies the law.” In re Coordinated Pretrial Proceedings in Petroleum Products Antitrust Litigation, 658 F.2d 1355, 1358 (9th Cir.1981), cert. denied, 455 U.S. 990, 102 S.Ct. 1615, 71 L.Ed.2d 850 (1982).

II

Section 1988 states, in pertinent part, that “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 court’s discretion under section 1988 has been interpreted very narrowly. To act as an effective incentive for injured parties to seek judicial relief for civil rights violations, “fee awards should be the rule rather than the exception.” Teitelbaum v. Sorenson, 648 F.2d 1248, 1251 (9th Cir.1981). Thus, a prevailing party “should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.” Newman v. Piggie Park Enterprises Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968), cited in S:Rep. No. 94-1011, 94th Cong., 2d Sess at 4, reprinted in 1976 U.S.Code Cong. & Ad.News 5908 at 5910.

Here, the district court held that “special circumstances” justifying denial of a fee award did exist, based on four considerations. We will consider each in turn.

A. Motivation

The district court determined that appellant’s primary motivation in bringing suit was financial gain, rather than an attempt to vindicate First Amendment rights. “The First Amendment claim was a means for the plaintiff, not an end.” Dist.Ct.Op. at 4. The fact that a party has a financial interest in the outcome of litigation, however, is not a valid reason for denying attorney’s fees under section 1988. Universal Amusement Co. v. Hofheinz, 616 F.2d 202 (5th Cir.1980) is directly on point. There the plaintiffs were engaged in the business of either exhibiting, selling, distributing or leasing adult commercial films, books, magazines, newspapers or novelty items. Id. at 203-04. They successfully challenged under the First and Fourteenth Amendments the constitutionality of ordinances which prohibited the operation of their businesses within two thousand feet of any church, school or other educational or charitable institution. Id. at 204. Notwithstanding the plaintiffs’ obvious financial interest in the result, the Fifth Circuit reversed the district court’s denial of a fee award under section 1988. Id. at 205; see also Sethy v. Alameda County Water District, 602 F.2d at 896 (plaintiff who received a personal damage award and reinstatement to employment entitled to fee award under section 1988); Universal Amusement Co., Inc. v. Vance, 587 F.2d 159, 172-73 (5th Cir.1978) (en banc), aff'd [1397]*1397445 U.S. 308, 100 S.Ct. 1156, 63 L.Ed.2d 413 (1981) (adult movie theater owners who successfully challenged constitutionality of Texas nuisance statute as applied to obscenity entitled to attorney’s fee under section 1988).

The district court attempted to distinguish such cases as Vance on the ground that the constitutional issues in those cases “were central to the case and crucial to the survival of the plaintiffs.” Dist.Ct.Op. at 4. This distinction is not valid. As the Supreme Court has said, “Litigants in good faith may raise alternative legal grounds for a desired outcome, and the court’s rejection of or failure to reach certain grounds is not sufficient reason for reducing a fee. The result is what matters.” Hensley v. Eckerhart, 461 U.S. 424, 435, 103 S.Ct. 1933, 1940, 76 L.Ed.2d 40 (1983).

B. . The Purposes of Section 1988

The district court reasoned that because appellant would have retained competent counsel and initiated this action without the prospect of an attorney’s fee, a fee award in this case would not further the statutory purpose of section 1988 “to enable private citizens who could otherwise not afford to vindicate their civil rights to do so,” Dist.Ct.Op. at 4. Whether or not the action would have been brought in the absence of section 1988 is irrelevant. Thus, in Seattle School District No. 1 v. Washington, 633 F.2d 1338 (9th Cir.1980), a fee was awarded despite the district court’s conclusion that an award was “not necessary” because the appellant was publicly funded. Id. at 1348. Moreover, a prevailing party who initiated an action before section 1988 was even enacted is nonetheless entitled to a fee award if the case was pending on the date of enactment. Hutto v. Finney,

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752 F.2d 1394, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ackerley-communications-inc-v-city-of-salem-ca9-1985.