Christian Knights of the Ku Klux Klan Invisible Empire, Inc. v. Town of Pocahontas

690 F. Supp. 1507, 1988 U.S. Dist. LEXIS 8783, 1988 WL 83197
CourtDistrict Court, W.D. Virginia
DecidedJuly 27, 1988
DocketCiv. A. No. 86-0058-A
StatusPublished
Cited by1 cases

This text of 690 F. Supp. 1507 (Christian Knights of the Ku Klux Klan Invisible Empire, Inc. v. Town of Pocahontas) is published on Counsel Stack Legal Research, covering District Court, W.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Christian Knights of the Ku Klux Klan Invisible Empire, Inc. v. Town of Pocahontas, 690 F. Supp. 1507, 1988 U.S. Dist. LEXIS 8783, 1988 WL 83197 (W.D. Va. 1988).

Opinion

MEMORANDUM OPINION

GLEN M. WILLIAMS, District Judge.

This case is before the court for an award of attorney’s fees, pursuant to a directive of the United States Court of Appeals for the Fourth Circuit decided on January 11, 1988 in an unpublished opinion, 836 F.2d 1342 (4th Cir.). The court will divide this opinion in accordance with the directives of the Fourth Circuit, and issues that have emerged subsequently.

AWARD OF ATTORNEY’S FEES PRIOR TO APRIL 14, 1986

In its written opinion of January 11, 1988, the United States Court of Appeals for the Fourth Circuit stated as follows: “The Klan is entitled to recover attorney’s fees for the service its counsel rendered prior to April 14.” In their petition for counsel fees, filed on February 1, 1988, plaintiffs allege seven hours of work prior to April 14, 1986. In oral argument before this court, it was stated by George Daly that he was the only attorney for the Christian Knights of the Ku Klux Klan Invisible Empire, Inc. before April 14, 1986 which is the date upon which the Town Council of the Town of Pocahontas, Virginia agreed for them to have a permit to conduct a street walk. Included in the seven hours is three-tenths of an hour of talking to a newspaper which counsel has previously agreed to delete; therefore, the maximum amount stated to this court in oral argument and presented in the petition is 6.7 hours. The court notes that four hours of this was spent preparing the suit which was filed in this case. The court finds great difficulty in believing that counsel for plaintiffs spent four hours preparing this suit in this case. In a letter dated April 12, 1986 which Mr. Daly wrote to Mr. Arey, counsel for defendants, he stated that he had personally done a half a dozen of these similar cases recently and always succeeded. In this letter, he asked for $2,500 for reimbursement for out-of-pocket expenses. If it took four hours for counsel to prepare this complaint and he had recently filed six very similar to it, then it borders on incompetency. Nevertheless, the court will allow George Daly 6.7 hours for his legal services prior to April 14, 1986.

ATTORNEY’S FEES FOR THE ISSUE OF CONSTITUTIONALITY OF THE THREE-WEEK WAITING PERIOD FOR A STREET WALK

In his fee petition, George Daly, Esquire, claims that one hundred (100) percent of the time which he spent through the first opinion of the Court of Appeals was com[1509]*1509pensable time as the plaintiffs prevailed on every issue during that time. He further states that, as to the time after the first appeal and while the case was on remand, he is claiming one-third compensable and two-thirds non-compensable and on the second appeal, he is claiming that it should be half compensable and half non-compensable. Mr. Lesesne has prepared his fee petition somewhat differently. He has set forth in Exhibit A a list of services which he contends are one hundred (100) percent compensable which is all the time which he spent on the case until services began in preparation of the second appeal. He further states that Exhibit B reflects the services during July and August 1987 involving the plaintiffs’ appellate brief and that he estimated that one-half of this time was spent upon compensable items and one-half on non-compensable items.

When one takes the time to examine the two statements, they are obviously in conflict; however, it is also obvious that Mr. Daly and Mr. Lesesne are contending that they prevailed on the issue of the constitutionality of the waiting period for commencing the parade. An examination of the second Fourth Circuit opinion does not in any place state that the court is to award attorney’s fees on the constitutional issue. All the court has said is that the district court did not have to go into the constitutional issue because the plaintiffs had lost on the mootness issue. In other words, what the plaintiffs are arguing in this case is that they should be compensated for the time they spent on the constitutional issue which resulted in a non-decision. For them to contend that they prevailed on this issue is ridiculous and in doing so, they have muddied the water so that it is difficult for this court to determine and they do not do so themselves, the amount of time spent on the attorney fee issue. They have either refused, or do not want to, or cannot distinguish between the time spent on the matters which the Fourth Circuit has said are compensable. The court is of the opinion that it is necessary at this time to outline how the constitutional issue came into this case in the first place. There is no mention of such a complaint in the original complaint. The first time that this issue is raised is in the first appeal before the Fourth Circuit and it was raised as a means of getting around the mootness issue. The Fourth Circuit did not rule in favor of the plaintiffs on the mootness issue on the first appeal nor did it rule in their favor upon any constitutional issue. The case was remanded to this court and while this court held the same position in the second opinion as it did in the first, to-wit, that the issue involved in the suit was moot, nevertheless, this court proceeded to pass upon the constitutional issue because the case had been remanded and this court felt that it should proceed to pass on all issues. In the event that the Fourth Circuit disagreed with this court, then it could go ahead and rule upon the constitutional issue. Thus, it was the plaintiffs that raised the constitutional issue and not the defendant and not this court. The plaintiffs have not prevailed on this issue and they are not entitled to attorney’s fees and nowhere in the Fourth Circuit opinion does it state that they are entitled to attorney’s fees. Therefore, the court rules that neither Mr. Lesesne nor Mr. Daly is entitled to any attorney’s fees for their briefs in support of the constitutional issue.

ATTORNEY’S FEES FOR TIME SPENT ON LITIGATING THE ISSUE OF ATTORNEY’S FEES

The Fourth Circuit has clearly said to this court that it shall allow attorney’s fees for the time spent in litigating whether or not the plaintiffs were entitled to attorney’s fees for the period of time before this suit was settled. Defense counsel have failed and refused to attempt to break this down for the court, but instead has insisted upon the periods of services and the percentages as set out above. In other words, what the court has to do is to allow for the time spent in the Court of Appeals for briefing and arguing the issues of attorney’s fees. At no time have the attorneys in this case ever appeared before this court and argued for attorney’s fees, or submitted attorney’s fees to the court except since the final remand of this case [1510]*1510from the Fourth Circuit. Accordingly, this court has no other place to look other than the records which have been presented to show what was actually done before the Fourth Circuit. This court has ordered the plaintiffs to file with the court the briefs in this case so that it can ascertain the amount of time which has been spent on attorney’s fees as distinguished from the other issues in the case. The plaintiffs’ brief in the first appeal consists of thirteen (13) pages, of which less than one page is devoted to the attorney fee issue, and the defendants’ brief is four (4) pages long with less than one-half page being devoted to attorney’s fees. The first Order entered by the district court did not rule one way or the other on attorney’s fees; therefore, there was no appeal from a denial of attorney fees.

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Bluebook (online)
690 F. Supp. 1507, 1988 U.S. Dist. LEXIS 8783, 1988 WL 83197, Counsel Stack Legal Research, https://law.counselstack.com/opinion/christian-knights-of-the-ku-klux-klan-invisible-empire-inc-v-town-of-vawd-1988.