Attempt to Block Comment About Critical Race Theory at State Bd. of Ed. Meeting Yields $89K Attorney Fee Award

From Regenold v. Ohio State Bd. of Ed., decided Friday by Judge James Graham (S.D. Ohio.):

Plaintiff Daniel P. Regenold brought this lawsuit over a modest but important matter. He had requested to speak for no more than five minutes at a public meeting of the Ohio State Board of Education., but the Board denied his request. The Board said that it had already closed the book on the topic he wished to address – critical race theory in Ohio education. Board President Laura Kohler notified Regenold that the Board had addressed the topic at prior meetings and passed a final resolution on the matter at least nine months earlier.

Regenold filed suit …, seeking a preliminary injunction and asserting that the Board violated his rights under the First Amendment …. He alleged that the Board's decision to deny his request to speak was an overbroad, content-based restriction. Pointing to the language of the Board's applicable policy on conducting public meetings, Regenold argued that critical race theory remained an "issue of general interest" for which the Board's policy promised that the public would always have the right to speak.

Regenold's request for injunctive relief became moot about six months later when the Board allowed him and others to speak on critical race theory at public meetings. Later, defendants made an offer of judgment under Federal Rule of Civil Procedure 68, which Regenold accepted. The Court entered Judgment for plaintiff in the amount of $1,000….

Defendants concede that plaintiff is a prevailing party who is entitled to an award of attorneys' fees and costs. Judgment was entered in plaintiff's favor on his § 1983 claim, which entitles him to an award under 42 U.S.C. § 1988(b). Defendants' offer of judgment included "costs and attorneys' fees to be determined by the Court."

Defendants also do not contest the amount of costs. Plaintiff seeks costs of $2,033.27, which include the filing fee and transcript fees.

But defendants did argue, among other things, "that plaintiff should not be able to recover attorneys' fees for the [37.0] hours expended on plaintiff's motion for a preliminary injunction, which was unsuccessful in defendants' view." The court disagreed:

The motion for a preliminary injunction sought an order requiring defendants to allow plaintiff to speak for up to five minutes at a public meeting of the State Board of Education…. The Court disagrees with defendants' characterization of the motion as "unsuccessful." The motion raised significant First Amendment issues and was supported by a substantial body of case law. Plaintiff brought the motion in a thoughtful fashion, designed to vindicate his right to free speech in a public forum. Though the Court did not need to rule upon the motion, it may well have granted the motion, and ultimately plaintiff received precisely the relief he sought.

The Court also disagrees with defendants' statement that the action of "third parties" is what achieved relief for plaintiff. By "third parties," defendants seem to be referring to certain Board members who were not named as individual defendants in the complaint and who, after the lawsuit and motion were filed, voted in favor of allowing plaintiff and others to speak on critical race theory at the Board's public meetings. However, the Board itself was named as a defendant, and it was an action of the Board (through its voting members) which provided the relief plaintiff requested. See State Bd. Of Educ. Sept. 21, 2021 meeting, available at https://ohiochannel.org/video/state-board-of-education-9-21-21 at 1:12:35 to 1:15:07 (going into executive session for "the purpose of conferring with legal counsel about matters that are the subject of pending or imminent court action").

Defendants argue that the Court cannot, under binding case law, treat plaintiff's motion for a preliminary injunction as the catalyst for the Board's vote to allow plaintiff to speak. Defendants cite Buckhannon Bd. & Care Home, Inc. v. W. Virginia Dep't of Health & Hum. Resources (2001). In Buckhannon, the Supreme Court held that a "catalyst theory" cannot be used to establish that a party is the prevailing party for purposes of being entitled to a fee award under federal civil rights statutes. It takes more than the filing of an action and the defendant making concessions in order for a civil rights plaintiff to be the prevailing party. The Supreme Court required that the trial court must create an "alteration in the legal relationship of the parties" in order for the plaintiff to be a prevailing party. One way a trial court can accomplish that end is to enter judgment in plaintiff's favor, no matter how small the amount of damages.

Defendants' argument is of no avail here. Plaintiff is not asserting a catalyst theory to establish that he is the prevailing party. Indeed, the judgment entry in his favor, which awarded him $1,000 in damages, suffices under Buckhannon to establish plaintiff as the prevailing party.

Plaintiff instead is using a catalyst-type argument to support the reasonableness of expending hours in moving for a preliminary injunction. The Court agrees that it was reasonable for plaintiff to expend legal resources on pursuing preliminary injunctive relief, considering that an opportunity to speak was the primary relief he was seeking and that the Board had formally denied him of that opportunity before he filed suit. See Clark v. Sims (D. Md. 1995) ("[O]nce a party has been otherwise found to be a prevailing party, [a] catalyst theory remains available for consideration as a factor in arriving at the actual amount of the fee award, if any."); Lucas v. Guyton (D.S.C. 1995) ("agree[ing] entirely" with the analysis in Clark)….

Accordingly, … [p]laintiff is awarded $88,996.00 in attorneys' fee and $2,033.27 in costs, for a total award of $91,029.27.

Plaintiff is represented by Curt Hartman and Christopher Finney.

Comments

[Illocust]

Seems rightly decided. Once the money is spent you shouldn't be able to get out of paying by simply conceeding the other pay was right all along.

[Lee Moore]

Accordingly, … [p]laintiff is awarded $88,996.00 in attorneys' fee and $2,033.27 in costs, for a total award of $91,029.27

Would that include the fees and costs of this additional argument about the award for fees and costs ? Or is there another round ? How does the carousel eventually come to a halt ?

[ReaderY]

The right to petition government for a redress of grievances is the right to drop off a letter in a legislature’s inbox or hold a rally outside, not a right to seize their undivided attention to talk in person about whatever topic one wants.

This case is a lesson to legislatures everywhere to take care not to accommodate disgruntled constitutuents who insist on taking up your time. Once they sue, you have to hold up everything ot let them spiel or you’ll end up paying their attorneys’ fees. So you might as well put your foot down and spend the money on your lawyers rather than theirs.

Letting legislatures conduct their affaits in an orderly fashion, and letting them preserve the public peace by occasionally giving in to demands, with legislators deciding when and when not to, were both traditional judicial concerns. They to have vanished.

[The Margrave of Azilia]

John Quincy Adams wants a word with you...

"He was an old man, with the physical infirmities of age. His eyes were weak and streaming; his hands were trembling; his voice cracked in moments of excitement; yet in that age of oratory, in the days of Webster and Clay, he was known as the "old man eloquent." It was what he said, more than the way he said it, which told. His vigorous mind never worked more surely and clearly than when he stood alone in the midst of an angry House, the target of their hatred and abuse. His arguments were strong, and his large knowledge and wide experience supplied him with every weapon for defense and attack. Beneath the lash of his invective and his sarcasm the hottest of the slaveholders cowered away. He set his back against a great principle. He never retreated an inch, he never yielded, he never conciliated, he was always an assailant, and no man and no body of men had the power to turn him. He had his dark hours, he felt bitterly the isolation of his position, but he never swerved. He had good right to set down in his diary, when the gag rule was repealed, "Blessed, forever blessed, be the name of God.""

https://americanliterature.com/history/theodore-roosevelt/essay/john-quincy-adams-and-the-right-of-petition

[lucia_l]

Well.... your theory about the right for a redress is just dandy. But what mattered was the Boards actual published policy. This was

Section VII (I) of the Board's Policies and Procedures Manual allows members of the public:

who wish to address the State Board on issues of general interest or items not scheduled for a vote at the current meeting will be permitted to address the State Board following the voting on items of business at that meeting. In either instance, the individual may speak for a period not to exceed five minutes. The president may impose further limitations on public participation as deemed appropriate or necessary.

(Id. at ¶ 24.)

The president of the board did not allow him to speak at all, is hard to see as falling under the permission to "impose further limitations" . I think it's pretty obvious the "limitations" can't go so far as to actually not permit that which "will be permitted" .

https://casetext.com/case/regenold-v-ohio-state-board-of-education

[M L]

Hartmann and Finney sought hourly rates of 610 and 575. The court approved 500 each.