897, 899. On remand, Petitioner moves for an award of attorney's fees in the amount of
$57,717.75. 2
I Petitioner's 80C appeal (Count I) was essentially withdrawn by the time the case reached the Law Court. The Law Court did not address Petitioner's "as applied" claim (Count III), but certainly the Law Court's hold ing that section 10 14-A is unconstitutional on its face encompasses this "as applied" claim. 2 This amount includes the attorneys' fees and expenses incurred by Zachary Heiden and David Lourie on both the merits of the case and the fee application. The litigation expenses are a small fraction ($430,25) of this request. DISCUSSION
The Civil Rights Attorney's Fees Awards Act of 1976, 42 U.s.c. § 1988 provides,
in relevant part: "In any action or proceeding to enforce a provision of [42 U.s.c. §
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).
There is no dispute that Petitioner is the "prevailing party" in this matter.
Accordingly, the Court must determine the "reasonable attorney's fee" to be paid by the
Commission. Both parties agree that the Court must employ the "lodestar" approach in
making this determination. Simply put, the lodestar method is a calculation whereby
"the number of hours reasonably expended on the litigation [are] multiplied by a
reasonable hourly rate." Hensley v. Eckerhart, 461 U.s. 424, 433 (1983). Although this
amount can be adjusted, there is a "strong presumption" that the lodestar figure is the
amount that should be awarded to the prevailing party. Blanchard v. Bergeron, 489 U.s.
87, 95 (1989).
Thus, this is a two-step analysis for the Court. First, the Court must determine
how many hours the Petitioner's attorneys reasonably spent on the litigation. Second,
the Court must determine the reasonable hourly rate for Petitioner's two attorneys.
II. Reasonable Hours Expended
"Hours that are not properly billed to one's client also are not properly billed to
one's adversary pursuant to statutory authority." Hensley, 461 U.s. at 434 (quoting
Copeland v. Marshall, 205 U. S. App. D. C. 390,401,641 F.2d 880, 891 (1980) (en banc)
(emphasis in original)). Hence, "there is a distinction between hours actually spent on
the litigation, and hours reasonably spent." Court Awarded Attorney Fees, Court
Awarded Attorney Fees § 16.02[1] (Matthew Bender and Company, Inc. 2008) (emphasis
2 in original) (hereinafter "Court Awarded Attorney Fees"). Courts consider twelve factors
in determining the number of compensable hours. The factors are:
(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the "undesirability" of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.
Johnson v. Georgia Hwy. Exp. Inc., 488 F.2d 714, 717-19 (5th Cir. 1974); see also Poussard v.
Commercial Credit Plan, 479 A.2d 881 (Me. 1984).3 Moreover, "the fee applicant bears the
burden of establishing entitlement to an award and documenting the appropriate hours
expended and hourly rates." Hensley, 461 U.s. at 437. "If fee applicants do not exercise
billing judgment, courts are obligated to do it for them, to cut the amount of hours for
which payment is sought, pruning out those that are excessive, redundant, or otherwise
unnecessary." ACLU v. Barnes, 168 F.3d 423,428 (11th Cir. 1999) (internal quotation
omitted). However, the "exercise of billing judgment does not inevitably require the
elimination of hours. In short, counsel, may recover for every hour actually expended
so long as every hour was 'expended reasonably.'" Court Awarded Attorney Fees §
16.02[5][a] (citing cases).
Courts can engage in a line-by-line analysis of the attorneys' timesheets
submitted with the fee application or they can reduce the number of hours awarded in
gross. See Gates v. Deukmejian, 987 F.2d 1392, 1400 (9th Cir. 1992) (holding that for
3These twelve factors were set forth to determine fee awards under section 706(k) of Title VII of the Civil Rights Act of 1964, 42 U.S.c. § 2000e-5(k), but are also applied to section 1988 fee awards. Blanchard, 489 U.S. at 91.
3 voluminous fee applications percentage reductions "are acceptable, and perhaps
necessary, tools for district courts fashioning reasonable fee awards.").
The Commission challenges Petitioner's request for fees the attorneys incurred in
four different types of activities: 1) the administrative hearing; 2) briefing; 3) oral
argument; and 4) the motion practice. Each activity is addressed below. Finally, the
Court separately addresses the attorney fees incurred in the course of the fee
application.
A. Administrative Proceeding Prior to Section 1983 Litigation
The Commission argues that Attorney Lourie's time spent before the
Commission (18 hours) is not compensable because the "asserted injury to Mowles'
First and Fourteenth Amendment rights that formed the basis of his section 1983 claims
did not occur until the Commission took that final agency action." Resp. Br. at 6-7.
By the plain-language of section 1988, attorney's fees are only awarded for "any
action or proceeding to enforce" a section 1983 claim. Further, the u.s. Supreme Court
in Hensley interpreted this to mean attorney's fees incurred "on the litigation." 461 U.s.
at 433. Under section 1988, a court may award attorney fees for time "spent on
administrative proceedings to enforce the civil rights claim prior to the litigation."
Lambert v. Fulton County, 151 F. Supp. 2d 1364, 1371 (N.D. Ga. 2000) (quoting North
Carolina Dept. ofTransp. v. Crest Street Community Council, Inc., 479 U.s. 6, 15 (1986)).
Quite clearly, mandatory administrative remedies fall within this category. E.g., New
York Gaslight Club, Inc. v. Carey, 447 U.s. 54,71, (1980) (Title VII action). The Court may,
however, refuse to award attorney's fees for optional administrative proceedings. For
example, in Webb v. County Board of Education, the u.s. Supreme Court upheld the trial
court's denial of fees for time spent at an administrative hearing challenging that a
teacher's termination was racially motivated. 471 U.s. 234,241 (1985). The u.s.
4 Supreme Court did, however, state, "some of the services performed before a lawsuit is
formally commenced by the filing of a complaint are performed 'on the litigation.'" Id.
at 243. Regarding administrative proceedings in particular, the u.s. Supreme Court
noted that such fees may be compensable if they are "both useful and of a type
ordinarily necessary to advance the civil rights litigation." Id. In a more recent case, a
federal district court held that "although not statutorily mandated, the [administrative]
proceedings were an essential precursor to plaintiffs' claim against the City for its
failure to provide a reasonable accommodation." Tsombanidis v. City ofW. Haven, 208 F.
Supp. 2d 263, 283 (D.C. Conn. 2002). In Tsombanidis, the court compensated attorneys
for their time spent at the administrative proceedings where the zoning board appeals
were essential precursors to a group home's claim against the city for failure to
reasonably accommodate because they had to attempt to obtain variances before the
claim ripened. Id.
In this case, Petitioner is entitled to the attorney's fees incurred at the
administrative hearing. The Commission attempts to paint the administrative
proceeding at the Commission as optional, similar to the termination hearing in Webb.
However, this argument is without merit. Had Mowles challenged the constitutionality
of section 1014-A without the Commission's decision he surely would have faced
insurmountable barriers for his inability, at that point, to demonstrate standing,
ripeness, and even a controversy before the Court. In fact, the Commission all but
acknowledges this when it states that before the Commission took that final action
Mowles "had no basis to 'enforce' section 1983 of the Civil Rights Act." Resp. Br. at 7.
Therefore, the Commission hearing was a necessary step in Petitioner's claim to enforce
his constitutional rights under section 1983.
5 Apart from the procedural barriers that would have precluded Petitioner's
enforcement of his civil rights without the Commission's final agency action, Attorney
Lourie's time spent at the administrative hearing surely allowed both parties to avoid
billable time later in the litigation. Indeed, in the absence of Attorney Lourie's early
work before the Commission, he would have had to engage in a greater factual
investigation during the litigation. Such an investigation was not necessary; in fact, the
parties adjudicated this case upon the agency record plus stipulated facts.
Accordingly, the Court holds that Attorney Lourie's 18 hours spent preparing for
and representing Mowles at the Commission hearing were "on the litigation" in
Petitioner's section 1983 action. As an alternative ground, the Court also finds that the
time saved due to Attorney Lourie's involvement was both useful and ordinarily
necessary for Mowles to pursue his civil rights claim under section 1983. For either or
both of these reasons, the 18 hours are compensable under section 1988.
N ext, the Court must determine if the hours expended from the time after the
Commission hearing to the time when Petitioner amended his complaint to assert a
section 1983 claim were spent "on the litigation." The Court holds that they are
reasonable and therefore compensable. The total hours spent during this time period
equal 14.8 hours.
Time spent before the filing of a civil rights action is compensable. As the u.s.
Supreme Court stated in Webb regarding compensable pre-complaint hours, the "[m]ost
obvious examples are the drafting of the initial pleadings and the work associated with
the development of the theory of the case." Webb, 471 U.s. at 243. From the Court's
independent review of Attorney Lourie's contemporaneously created timesheet, he
spent approximately 2 hours conferring with members of the MCLU, presumably
regarding the later-taken constitutional challenge. The Court also notes that Attorney
6 Lourie eliminated 1.4 hours spent with the MCLU in his billing judgment. Attorney
Lourie spent the remaining time conferring wi th his client and the Commission's
counsel regarding the next steps in the case. For example, during this time Attorney
Lourie conferenced with the Commission's attorney regarding the Agreed Upon Order
and Stipulation of Facts. Because Attorney Lourie's efforts at this time clearly
demonstrate an effort on his part to streamline the case and minimize the need for later
investigation, the Court finds that his hours expended during this time were"on the
litigation," are also reasonable, and are therefore compensable.
In sum, the Court holds that the 32.8 hours spent by Attorney Lourie at the
Commission hearing and before he filed an amended complaint that included a section
1983 claim are all reasonable and compensable under section 1988.
B. Briefing
The Commission next argues that Peti tioner's attorneys' hours spent preparing
briefs at both the Superior Court and at the Law Court were unproductive, duplicative,
unnecessary, and/ or excessive. In applying the twelve factors outlined above, the
Court finds the following facts important in its analysis. The affidavits of both
Attorneys Heiden and Lourie accurately reflect the amount of time that they actually
spent on the litigation; the Court has before it no evidence to infer otherwise. The
challenge to the Endorsements of Political Candidates statute was an issue of first
impression in the State of Maine. In that challenge, Petitioner succeeded in having the
statute struck down because it violated the First Amendment of the U.s. Constitution,
on its face. The affidavits of other attorneys practicing in the State attest to the skill and
competency of both attorneys. Additionally, the result at the Law Court (i.e. a
7 declaration that a statute enacted by democratically elected officials was
unconstitutional) is also an attestation to the skill and competence of these attorneys.4
Regarding duplication of efforts, the Court find that Attorneys Heiden and
Lourie worked as a team when they researched and prepared the briefs. Although the
Commission attempts to frame their collaboration as excessive, the Court finds nothing
excessive about the back-and-forth between the attorneys during the drafting process. s
See Gay Officers Action League v. Puerto Rico, 247 F.3d 288, 297-298 (lst Gr. 2001)
(affirming the trial court's compensation for four attorneys in a First Amendment case
when the fee movants adequately described their division of responsibility and need for
teamwork).
4 In hindsight, the Commission attempts to minimize the complexity and novelty of this case by noting that it was a
"single issue case" that was purely a question of law. Resp. Br. at 8. This Court, however, is unwilling to accept such ad hoc rationalizations given the differing outcomes of this case at the trial court and on appeal. At least one court has held that where the issue appealed is briefed both at the trial court and on appeal that the time spent at the appeal is not fully compensable. R.1. Med. Soc'y v. Whitehouse, 323 F. Supp. 2d 283 (D. R.I. 2003) (reducing requested hours by more than fifty percent (50%) when issue that was raised, briefed, argued, and decided in the trial court, nevertheless awarding more than 181 hours in attorneys fees for the appeal). But, courts more generally hold that "if the fee movant is unsuccessful at some earlier stage of the action, but that stage was nevertheless a necessary step in ultimately prevailing in the action, the fee movant is generally entitled to attorney fees even for the unsuccessful stage." Court Awarded Attorney Fees § 16.02[ 6][a] (citing cases). Given this, the Court is not persuaded by the Commission's argument that it should deduct, in toto, the Petitioner's attorneys' fees in the Superior Court. The purposes of the fee shifting statutes are to make the person whose rights were violated whole and to ensure that competent counsel take on this important work. Venegas v. Mitchell, 495 U.S. 82,86 (1990) (observing that statutory fees enable "plaintiffs to employ reasonably competent lawyers without cost to themselves if they prevail"). This Court takes the broader view that all of Petitioner's attorneys' fees are compensable for the work at the trial court, which, of course, was a necessary step to achieving their ultimate success at the Law Court. 5Courts consider the time and effort expended by the opponent in considering the amount of reasonable hours expended by the prevailing party. E.g., Pennsylvania v. Delaware Valley Citizen's Councilfor Clean Air, 483 U.S. 711,716, (1987) (considering the "difficult or obstreperous" opponent in the lodestar calculation); Cairns v. Franklin Mint Co., 292 F.3d 1139, 1159 (9th Cir. 2002) (stating that it was not an abuse of discretion for the court to consider the amount of time spent by the losing party when considering the amount of reasonable hours for prevailing party); McGinnis v. Kentucky Fried Chicken of Calif., 5] F.3d 805, 809 (9th Cir. 1994) (in considering the amount of hours claimed by plaintiff, the court remarked that defendant's argument might have more weight if it had not found it necessary to spend considerably more money losing than its adversary spent winning.). Here, notably, the Commission did not present the Court with any opposing evidence, in the form of affidavits, its own attorney's timesheets, or otherwise, to dispute the reasonableness of the hours spent. Rather, the Commission's contentions are often bare assertions that the time Petitioner's attorneys spent on this litigation was unreasonable.
8 For the foregoing reasons, the Court holds that the 125.6 hours spent by
Attorneys Heiden and Lourie for research, drafting, and editing the briefs submitted to
the Superior Court and the Law Court are reasonable.
C. Oral Argument
Next, the Commission asks the Court to exclude all of Attorney Lourie's time
spent attending and preparing for oral argument at the Law Court (6.7 hours). In
addition, the Commission contends that Attorney Heiden's 26.5 hours should be
reduced by at least fifteen percent. Attorney Heiden presented the oral argument for
Mowles both in the Superior Court and in the Law Court. The only hours the Court
finds unnecessary, unproductive, or duplicative are the 2 hours Attorney Lourie spent
attending oral argument at the Superior Court and the 1.5 hours that he spent attending
oral argument at the Law Court. There is no need for two attorneys to attend oral
argument when only one attorney has the opportunity to present.
Accordingly, the 29.7 hours spent preparing for oral argument are reasonable,
and therefore, are compensable.
D. Motion Practice
Ten days after the Law Court's decision, the Petitioner's attorneys filed a Motion
to Modify Entry and Mandate, asking the Law Court to amend its mandate to
specifically enjoin the Commission from enforcing section 1014-A. The Law Court
promptly denied this motion. The Commission asks the Court to exclude the 3.15
hours 6 spent on this motion because "Petitioner's attorneys should have been aware
that the Law Court historically has declined, as a matter of comity, to enjoin a
coordinate branch of government." Resp. Br. at 11. The Court agrees. Absent an
6 Attorney Lourie spent 1.4 hours on this motion. Lourie record entries dated 10/21/08, 10/31/08, 11/8/08, 11/14/08, and 12/6/08. Attorney Heiden spent 1.75 hours on this motion. Heiden record entries dated 12/6/08, 10/31/08, 10/30/08, and 10/21/08.
9 indication from the Commission that it would not comply with the Law Court's
directive, this motion was excessive. This is so despite the fact that Mowles attested to
his intent to run for office again. Hence, the Court holds that the 3.15 hours spent were
unnecessary and are therefore not compensable.
E. Fee Application
In order to effectuate the purposes of section 1988, attorney fees for the fee
application, the so-called "fees on fees," are generally compensable. However, they are
nevertheless subject to an adjustment for excessive, duplicative, or unproductive hours.
A review of Attorney Heiden's contemporaneous timesheet attached to his first
filed affidavit reflects that he spent 2 hours preparing the fee application.? Attorney
Heiden's supplemental affidavit states that he spent an additional 40.25 hours on the fee
application. Attorney Heiden exercised a certain degree of billing judgment in that he
deducted 15.25 hours from his fee request, lowering the requested amount to 27 hours. 8
Attorney Lourie's contemporaneous timesheet reflects that he spent 11.4 hours on the
fee application. 9 In his billing judgment, Attorney Lourie deducted one hour from this
amount. Attorney Lourie's supplemental affidavit states that he spent an additional 8
hours on the fee application, from which he deducted .6 hours. This deduction lowers
Attorney Lourie's fee request for the fee application to 17.8 hours. In sum, the
Petitioner's attorneys request 44.8 hours for the their time spent solely on the fee
application. Together, the attorneys request compensation for 263.25 hours for the
entire litigation (i.e. the merits plus the fee application).l0
7 Heiden record entry dated 12/7/08. S Note that the 2 hours initially spent on the fee application was not included in Attorney Heiden's supplemental affidavit. 9 Lourie record entries dated 12/8/08, 12/17/08, 1/23/09, 1/27/09, 1/28/09, and 2/1/09. 10 This 263.25 hours is the sum of the following: 105.75 hours (Heiden Aff.); 125.1 hours (Lourie Aff); 25 hours (Heiden Supp. Aff); 7.4 hours (Lourie Supp. Aff).
10 As the U.S. Supreme Court stated, "[i]deally ... litigants will settle the amount of
a fee." Hensley, 461 U.s. at 437. The parties have been unable to do so in this case. It is
appropriate for trial courts to "consider the relationship between the amount of the fee
awarded and the results obtained." Comm'r, INS v. Jean, 496 U.S. 154, 163 n.lO (1990).
There is no doubt that the Petitioner in this case obtained "excellent" results from
the Law Court. Hensley, 461 U.S. at 435 ("Where a plaintiff has obtained excellent
results, his attorney should recover a fully compensatory fee."). The Mowles opinion
contains strong language regarding the u.s. Constitution's prohibition on government
infringement upon free speech, especially core political speech, in this State.
Nevertheless, courts commonly reduce the amount of hours actually spent on the fee
application to the amount reasonably spent on the application.
While the Court views the attorneys' time spent on the merits of this case as
reasonable, the same is not true for the fee application. Here, the Petitioner's attorneys
spent nearly as much time briefing the fee application as they did the constitutional
violations before the Superior Court. Compare 44.8 hours with 52.5 hours. Combined,
the two attorneys spent nearly 16 hours preparing the affidavits attached to the fee
application. They spent the remaining requested time largely on legal research,
drafting, editing, and discussions with each other.
Both Attorney Heiden and Attorney Lourie attest to their experience and skill in
civil rights litigation generally and in First Amendment litigation in particular.
Additionally, Attorney Heiden stated in his affidavit that his "legal work is partially
funded through fee awards under § 1988." Heiden Aff. err 9. Clearly, these attorneys are
well versed in not only the substantive component of civil rights litigation but also in
the endeavor of obtaining legal fees for their work. The relevant issues and law for a fee
application are nearly indistinguishable from case to case. This is especially true here
11 where the attorneys did not requested a multiplier or other adjustment to the lodestar
amount. The more than 25 hours spent conducting research and more that 16 hours
preparing simple affidavits is clearly excessive in the Court's view. Hence, the Court is
convinced that it must "trim the fat from the fee application," as many courts
colloquially put it. See Home Placement Service, Inc. v. Providence Journal Co., 819 F.2d
1199, 1211 (lst Cir. 1987). Based on the foregoing, the Court holds that the Petitioner's
attorneys reasonably spent 15 hours researching, drafting, and compiling the necessary
documents for the fee application. The Court apportions this 66.5% reduction to each of
the two attorneys. In other words, Attorney Heiden is awarded 9.04 hours for his time
reasonably spent on the fee application, whereas Attorney Lourie is awarded 5.96 hours
for his time reasonably spent on this same task.
In sum, of the 263.25 hours requested by the Petitioner's attorneys for their fees
the Court deducts 3.5 hours for excessive time spent during oral argument, 3.15 hours
for unnecessary time spent on a motion at the Law Court, and 29.8 hours for time spent
preparing the fee application. Therefore, the Court holds that the Petitioner's attorneys
reasonably expended a total of 226.8 hours on the section 1983 litigation. Having
reached the total hours reasonably expended, the Court next addresses the question of
the rate at which these hours are compensable.
III. Hourly Rate
A fee movant not only bears the burden of proof for the amount of hours
reasonably expended but it also bears the burden of producing evidence to establish the
reasonable hourly attorney fee. Hensley, 461 U.s. at 437. The section 1988 directive for
"reasonable attorney's fees" is essentially equated with current prevailing market rate. l l
11 The Court dism isses the Commission's contentions that the Court should discount Attorney Lourie's rate by the fact that he initially charged Mowles less than he would charge other clients. "Reasonable attorney's fees" is a
12 Missouri v. Jenkins, 491 U.S. 274, 283 (1989) ("Clearly, compensation received several
years after the services were rendered -- as it frequently is in complex civil rights
litigation -- is not equivalent to the same dollar amount received reasonably promptly
as the legal services are performed, as would normally be the case with private billings.
We agree, therefore, that an appropriate adjustment for delay in payment -- whether by
the application of current rather than historic hourly rates or otherwise -- is within the
contemplation of the statute."). Accordingly, courts generally award the current market
rate for the prevailing parties attorney's fees, Lightfoot v. Walker, 826 F.2d 516, 523 (7th
Cir. 1987), but they may also "increase the lodestar to counterbalance the effect of
inflation and foregone interest on the value of the fee." Daly v. Hill, 790 F.2d 1071, 1081
(4th Cir. 1986). "The particular method of accounting for delay in payment is within the
discretion of the district court." [d.
In this case, Petitioner's attorneys submitted not only their own affidavits but
also several affidavits of members of the local legal community. Attorney Lourie's
affidavi t does not state his typical billing rate; rather, he relies on his survey of other
attorneys in the area for the proposition that the prevailing market rate for an attorney
of his experience, skill, and competence is at least $235.00/hour. Attorney Heiden
stated in his affidavit that his customary rate is currently $200/hour. Three attorneys
community-based standard, and the amount billed to a client is not dispositive. See Does v. District of Columbia, 448 F. Supp. 2d 137,141 (D. D.C. 2006) (granting attorney fee award at the current market rate despite the fact that the attorney charged the clients below the market rate). Likewise, the fact that Attorney Heiden's billable rate changed from $175 to $200 is largely irrelevant. Similarly situated attorneys (i.e. other attorneys who do not ordinarily bill clients) are nevertheless entitled to receive the current market rate for their time. Blum v. Stenson, 465 U.S. 886, 895 (1984) (holding that reasonable attorney fees under section 1988 are "to be calculated according to the prevai ling market rates in the relevant community, regardless of whether plaintiff is represented by private or non-profit counsel").
13 in the Portland, Maine community attested to both Attorney Lourie and Attorney
Heiden's experience, skill, and competence. 12
The Commission did not submit any evidence in rebuttal, e.g. affidavits
suggesting a lower prevailing market rate in the community or similar cases where the
fees were lower than those requested by the prevailing party. See e.g., Spegon v. Catholic
Bishop of Chicago, 175 F.3d 544, 555-557 (7th Cir. 1999) (fee opponent was not required to
come forward with affidavits justifying lower rate, but could instead point to awards at
lower rates in previous recent cases). The Commission argues for a reduced rate simply
because Attorney Lourie did not serve as lead counsel at the Law Court, or because he
charged Mowles some undisclosed hourly rate early on in the litigation. Neither of
these contentions merits a detailed discussion. The Court is satisfied that the Petitioner
has met his burden in demonstrating that the requested fees, that is $200/ hour for
Attorney Heiden and $235/hour for Attorney Lourie, are within the current prevailing
market rate in Portland, Maine for attorneys of their caliber.
N ext, the Commission asks the Court to distinguish between time spent on
"core" versus "non-core" work, thereby attributing a lower hourly rate to the latter
category. Although the Commission is correct that an attorney's particular activity may
affect the rate which he or she is compensated, see Court Awarded Attorney Fee § 16.03[11]
(citing cases), the Commission has not put forward any rebuttal evidence that this
12 The three attorneys are Richard L. O'Meara, John M.R. Paterson, and Howard T. Reben. Attorney Richard L. O'Meara stated that his customary hourly rate for hourly fee clients, including civil rights and civil liberties matters, currently ranges between $240 and $290 per hour depending on the nature of the matter. Attorney O'Meara opines that the hourly rates sought for both Attorney Lourie and Attorney Heiden, $200/hour and $235/hour respectively, are consistent with the prevailing market rate for legal work of comparable attorneys in the area of civil rights litigation in Maine. He based that opinion on his familiarity with the quality of their work and skills, their experience and reputation, and the results each has obtained in Maine civil rights cases. Attorney John M.R. Paterson opined that Attorney Heiden's customary hourly rate of$200 is within the prevailing market rate for legal work of comparable attorneys in the area of constitutional rights litigation in Maine. Likewise, Attorney Howard T. Reben opined that Attorney Lourie's hourly rate of$235 was reasonable and fair by comparison with attorneys practicing in the Portland area who are of comparable experience, qualifications, and reputation.
14 practice is common in the Maine legal community. Moreover, the Commission
acknowledges, the combination of certain tasks "mak[es] it difficult to isolate the time to
perform just [non-core] functions." Resp. Br. at 15. Absent any evidence to the
contrary, the Court is unwilling to make such a distinction.
IV. Litigation Expenses
Pursuant to 42 U.s.c. § 1988 and Maine Rule of Civil Procedure 54(d), Petitioner
requests costs in the amount of $430.25. The Commission contends that the costs should
be reduced to $337.25 because $93 of the requested amount is simply overhead that is
absorbed in the attorneys' hourly rates or because the expenses were not incurred on
the section 1983 litigation.
Courts may include an attorney's reasonable expenses when awarding fees
under section 1988. See e.g., Grendel's Den, Inc. v. Larkin, 749 F.2d 945, 950 (1st Cir. 1984).
These expenses need not likewise be compensable under M.R. Civ. P. 54(d). The Court
holds that the meager expenses requested by the Petitioner are reasonable. The
Commission presented no rebuttal evidence that attorneys in the Portland, Maine
community typically do not bill clients for the costs for postage, telephone, faxes,
copies, or travel expenses. Moreover, these costs are not excessive. Theno v. Tonganoxie
Unified Sch. Dist. No. 464,404 F. Supp. 2d 1281, 1291 (D.C. Kan. 2005) (reducing
petitioners request for photocopying expenses because she did not establish the
reasonableness of making 14,000 copies, especially considering that the cases was
assigned to the court's electronic filing system, and that 20 cents per page was
excessive). Therefore, the Court awards the Petitioner's attorneys the full amount of the
expenses requested, $430.25.
15 CONCLUSION
The Court holds that the Petitioner's two attorneys expended a total of 226.8
hours on the section 19831itigation. Attorney Zachary Heiden reasonably expended a
total of 111.05 hours on the litigation of Petitioner Michael Mowles, Jr.'s section 1983
claim. 13 He shall be compensated at the hourly rate of $200, making his fee award total
$22,210. As for Attorney David Lourie, he reasonably expended a total of 115.76 hours
on the litigation of Petitioner Michael Mowles, Jr,'s section 1983 claim. He shall be
compensated at the hourly rate of $235, making his fee award total $27,203.60. The
Petitioner is also awarded $430.25 in litigation expenses. In sum, the Court awards
Petitioner a total of $49,843.85.
Therefore, the entry is:
Petitioner Michael D. Mowles, Jr.'s Motion for an Award of Attorney's Fees and Litigation Expenses is GRANTED in the amount of $49,843.85.
The clerk shall incorporate this Order into the docket by reference pursuant to M.R. Civ. P. 79(a).
Dated at Portland, Maine this 7~9. Robert E. Crowley Justice, Superior Court
13 Attorney Heiden requested a total of 130.75 hours. From this amount, the Court deducted 1.75 hours for the motion to modify entry and mandate at the Law Court and 17.95 hours for the fee application. Attorney Lourie requested a total of 132.50 hours. From this amount, the Court deducted 3.5 hours for his time at the oral arguments, 1.4 hours for the motion to modify entry and mandate at the Law Court, and 11.84 hours for the fee application.
16 Date Filed 7_-_1_0_-_0_6 _ CUMBERLAND AP06-35 • Doce k tN0 . _ _ County
Action _-----.l8:l.10..LlC.............A~Pt::..Pt:.JE!:oJA~I~, _
MICHAEL D. MOWLES, JR. STATE OF MAINE COMMISSION ON GOVERNMENTAL ETHICS AND ELECTION PRACTICES JENNIFER DUDDY
Ys. Plaintiff's Attorney Defendant's Attorney David Lourie, Esq. Phyllis Gardiner AAG (Maine Commission) 189 Spurwink Avenue 6 State House Station Cape Elizabeth, ME 04107 799-4922 Augusta, ME 04333-0006 Zachary Heiden, Esq. 626-8830 401 Cumberland Ave., Suite 105 Michael A. Duddy, ESQ. (PII-J. Duddy) Portland, ME 04101 774-5444 PO Box 597 Portland, ME 04112-0597 775-1020
Date of Entry