Damages Only $1, But Lawyers Prevail and Get $34,772

, New York Law Journal

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Rebuffing the state's argument that a conservative Christian group was not entitled to fees in a case where its client received only $1 in damages, a federal judge has awarded the group $34,772 for prevailing in its efforts to uphold the constitutional rights of an evangelist on the SUNY Albany campus.

Northern District Judge Glenn Suddaby (See Profile) reduced the requested award of $56,057 that attorneys for the Scottsdale, Ariz.-based Alliance Defending Freedom sought, but granted significantly more than the zero the state attorney general's office would have offered.

The group filed Deferio v. Bd. of Tr. of the State Univ. of New York, 5:11-cv-0563, on behalf of evangelist James Deferio after he was prevented from proselytizing on the Albany campus on Oct. 13, 2008, and April 21, 2009.

On the first date, Deferio said he was cut short by campus security. On the second, he was told he had to pay a fee and apply for a permit in order to preach in public, or else face violation of campus rules prohibiting all "expressive" activities in public forum at SUNY Albany.

The suit claiming a violation of Deferio's rights was filed on May 19, 2011.

On Aug. 9, 2011, the day before Suddaby was to hold a hearing on a preliminary injunction against the SUNY campus sought by Deferio and Alliance Defending Freedom, the college said it had changed its policy, effective immediately, to allow speakers to freely present constitutionally protected views.

In August 2012, the parties reached a consent order providing for the judgment of $1 against the state, which disavowed any liability to the state. The consent order contained no explicit provision in which the state agreed to pay the fees and costs of Deferio's attorneys.

Suddaby, ruling from Syracuse, said the settlement, though providing for a nominal $1 damages award by the university, still meant that the group prevailed in its litigation under 42 U.S.C. §1988(b).

Quoting Farrar v. Hobby, 506 U.S. 103 (1992), Suddaby wrote that "nominal relief does not necessarily a nominal victory make."

The state had argued against any attorney award, saying that "even though Plaintiff has formally prevailed in this action, his overall degree of success has been very limited," according to Suddaby's ruling.

The $1 aside, however, Suddaby said the ADF sought and gained a change in SUNY Albany's policy on speakers with a religiously based message.

"Plaintiff in this case prompted Defendants to adopt a new policy for SUNY Albany," the judge concluded.

Suddaby dismissed arguments by the college that policy changes had been in the works since late 2009, declaring that Deferio's suit "prompted the adoption of a new policy."

The new policy eliminated a fee for third parties wishing to use the public space on the SUNY campus, only requiring users to fill out forms informing campus officials of their intent to use the spaces.

Suddaby also rejected the state's argument that since a significant portion of the alliance lawyers' time was taken up in their work on the preliminary injunction, they shouldn't be allowed to bill their adversaries for fees and costs.

The state, through Assistant Attorney General Adrienne Kerwin, argued that the Southern District's ruling in a 2001 case, Espada v. Rosado, 2001 WL 1020549, blocks recovery for attorney fees by the plaintiff for time spent on an unsuccessful preliminary injunction argued in a case where the plaintiff ultimately prevails.

Suddaby, however, said 42 U.S.C. §1988 is clear that a party is entitled to time spent on an unsuccessful motion as long as that motion was related to the case's successful outcome and was not frivolous.

In Deferio, Suddaby said, the motion for the preliminary injunction only failed because it was rendered moot by the state's declaration that it had just changed the policy that prompted the motion in the first place.

"Plaintiff's victorious constitutional claims and his unsuccessful motion for a preliminary injunction arose out of a 'common core of facts:' Defendants' campus policy and actions violating Plaintiff's First Amendment rights," the judge wrote in his Jan. 27 ruling. "As a result, the Court finds it appropriate to award attorneys' fees relating to his unsuccessful motion for preliminary injunction."

Suddaby revised downward the fees request by the alliance attorneys in other regards, however.

He reduced from 32 hours to 21.4 hours the time lead attorney Jonathan Scruggs sought for making the accounting of legal fees, for instance. The judge said the fee application was not "particularly novel" or contain "complex issues" to justify the higher amount.

The judge similarly reduced the hourly billings for Scruggs and the other attorneys in other aspects of the litigation as excessive.

Scruggs and two other ADF staff attorneys, Nathan Kellum and Philip Vecchio, won fees awards as did paralegal Michael Kane.

The judge's award also included $2,258 in costs sought by ADF.

The Alliance Defending Freedom was founded in 1994 by members of conservative Christian groups. The group, formerly known as the Alliance Defense Fund, states as its mission to "keep the door open for the spread of the Gospel by transforming the legal system and advocating for religious liberty, the sanctity of life and marriage and family" (NYLJ, Feb. 3, 2009).

In New York, the group successfully defended the plaintiffs in Good News Club v. Milford Central School District, 533 U.S. 98 (2001), a case that struck down a New York school district's denial of the use of a public school facility by a Christian group based on its religious message.

Scruggs said in an interview Tuesday that the fee awards will go to the group and not the employees personally.

But he said money was not the point of the litigation.

"It was about applying an unconstitutional policy to prevent someone from exercising their free-speech rights," Scruggs said "That was our major goal, to restore the rights of our plaintiff."

Scruggs said he had no doubt that the college changed its policy in 2011 in response to its pending suit.

"We thought the policy was unconstitutional and we thought it was going to be changed, either by court order or by some other means," Scruggs said.

The state did not respond to a request for comment.

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