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.

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