HomeMy WebLinkAbout119-11 RESOLUTIONRESOLUTION NO. 119-11
A RESOLUTION TO AUTHORIZE THE CITY ATTORNEY TO APPEAL
THE AWARD OF ATTORNEYS FEES AND COSTS IN THE ROGERS
GROUP, INC. v. CITY OF FAYETTEVILLE CASE
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section 1: That the City Council of the City of Fayetteville, Arkansas hereby authorizes
the City Attorney to appeal the award of attorneys fees and costs in the Rogers Group, Inc. v.
City of Fayetteville case.
PASSED and APPROVED this 5th day of July, 2011.
APPROVED: ATTEST:
B
By: fPUMSLY111c U Lc Cb k(L
0 LD J.� 1. i , Mayor SONDRA E. SMITH, City Ierk/.Treasurer
AGENDA REQUEST
FOR: COUNCIL MEETING OF JULY 5, 2011
FROM: KIT WILLIAMS, CITY ATTORNEY
ORDINANCE OR RESOLUTION TITLE AND SUBJECT:
A Resolution To Authorize The City Attorney To Appeal The Award Of Attorneys Fees And
Costs In The Rogers Group, Inc. v. City Of Fayetteville Case
APPROVED FOR AGENDA:
Kit illiams, City Attorney
,),,.e ?l(i 24-1
Date
06-29-11 A08:49 RCVD
cl •
rade
Departmental Correspondence
ARKANSAS
www.accessfayettertille.org
LEGAL
DEPARTMENT
TO: Mayor Jordan
City Council
CC: Don Marr, Chief of Staff
Paul Becker, Finance Director
Vicki Deaton, Internal Auditor
FROM: Kit Williams, City Attorne
DATE: June 20, 2011
RE: Reduced Attorneys fees awarded in Rock Quarry Case
Kit Williams
City Attorney
Jason B. Kelley
Assistant City Attorney
Late Friday afternoon, the United States District Court filed an Order in the
Rogers Group, Inc. v. City of Fayetteville case partially granting Rogers Group,
Inc.'s Motion For Attorneys Fees. The City of Fayetteville had opposed such
Motion and argued that no attorney fees should be awarded or, if any were
awarded, such fees should be substantially reduced (especially for those attorneys'
fees claimed for lobbying work done by Rogers Group, Inc.'s attorneys while the
ordinance was being considered by the Fayetteville City Council).
Although the District Court determined it had the legal authority to award
attorney fees in this case, it reduced Rogers Group, Inc.'s demand by over
$55,000.00. Because of our insurance coverage for 42 U.S.C. § 1983 litigation, the
City's cost should be about $20,000.00.
The City will now have to decide whether or not to appeal this award of
attorneys' fees and costs. 1 will discuss this issue with you during the June 28,
2011 City Council Agenda meeting.
RESOLUTION NO.
A RESOLUTION TO AUTHORIZE THE CITY ATTORNEY TO APPEAL
THE AWARD OF ATTORNEYS FEES AND COSTS IN THE ROGERS
GROUP, INC. v. CITY OF FAYETTEVILLE CASE
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section 1: That the City Council of the City of Fayetteville, Arkansas hereby
authorizes the City Attorney to appeal the award of attorneys fees and costs in the
Rogers Group, Inc. v. City of Fayetteville case.
PASSED and APPROVED this 51' day of July, 2011.
APPROVED: ATTEST:
By: By:
LIONELD JORDAN, Mayor SONDRA E. SMITH, City Clerk/Treasurer
v�e..evi�le
Departmental Correspondence
ARKANSAS
www.accessfayetteville.org
LEGAL
DEPARTMENT
TO: Mayor Jordan
City Council
FROM: Kit Williams, City Attorney
DATE: August 30, 2011
RE: City's Brief filed in 8th Circuit Court of Appeals
Kit Williams
City Attorney
Jason B. Kelley
Assistant City Attorney
Although I had to average eleven, hours days last week and worked until
after ten on Wednesday and until 11:24 p.m. on Thursday, we finally got the City's
Appellate Brief, Addendum and Appendix finished and filed at the Eighth Circuit
Court of Appeals in St. Louis yesterday. I want to thank Assistant City Attorney
Jason Kelley for preparing the Addendum (the most important portions of the
record) and for his proofreading and suggestions about editing of the Brief. I also
need to thank Joel Farthing of the Bassett Firm (hired by our insurance company)
for having to put together, print and deliver to St. Louis the over 900 page
Appendix which is the full record (except for briefs, supporting summaryjudgment
and other motions) in this case and for his comments and advice on the Brief.
I have attached this Brief for your review. It is 40 pages long which is
probably too long for non -lawyers to enjoy reading. You might review the
Summary of the Case and Request For Oral Argument (page 2); Statement of the
Case (pages 8-10); Statement of the Facts (pages 11-13) and Summary of the
Argument (pages 14-16) rather than the primary Argument section (pages 17-39).
I do hope the Circuit Court Judges will read it all.
IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
Case No. 11-2482
ROGERS GROUP, INC.
Plaintiff -Appellee
vs.
CITY OF FAYETTEVILLE, ARKANSAS
Defendant -Appellant
BRIEF OF APPELLANT
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF ARKANSAS
The Honorable Jimm L. Hendren, United States District Judge
CITY OF FAYETTEVILLE, ARKANSAS
Defendant -Appellant
Christopher B.T. Williams
Jason B. Kelley
CITY OF FAYETTEVILLE, ARKANSAS
113 W. Mountain St., Suite 302
Fayetteville, Arkansas 72701
Phone: (479) 575-8313
Fax: (479) 575-8315
Joel Isaac Farthing
BASSETT LAW FIRM LLP
221 N. College Avenue I P.O. Box 3618
Fayetteville, Arkansas 72702-3618
Phone: (479) 521-9996
Fax: (479) 521-9600
Annellatp Case: 11-2482 Pana: 1 Elate C}R/2PI21I11 Fntry In: 382357:
SUMMARY OF THE CASE AND REQUEST FOR ORAL ARGUMENT
Fayetteville citizens residing near Rogers Group's rock quarry who were
being adversely affected by the quarry petitioned the City Council for help. The
City Council had earlier helped stop a racetrack's adverse effects on Fayettevi Ile
_ citizens by regulating it as a nuisance. When the racetrack owner challenged the
constitutionality of that nuisance -abating ordinance because the racetrack was
slightly outside the city limits, the State Circuit Court upheld the legality and
constitutionality of the ordinance.
Based upon this judicial holding, the City Council began to draft an
ordinance to regulate nuisance activities of rock quarries close to the city limits.
After months of public hearings and modifications of the ordinance to
accommodate requests by Rogers Group, the City Council passed the ordinance.
Rogers Group sued the City asserting diversity jurisdiction for its federal
declaratory judgment action and sought a preliminary injunction. The District
Court granted a preliminary injunction based solely upon Rogers Group's federal
declaratory judgment claim, which was affirmed by the Eighth Circuit. The City
voluntarily amended its ordinance to remove its extraterritorial application. The
District Court then dismissed all of Rogers Group's claims as moot, and awarded
attorney's fees to Rogers Group. The City requests oral argument.
2
AnnAllata Casa: 11-2482 Paan: 2 mate Filart: (18/29/2f}11 Entry In: 3823573
TABLE OF CONTENTS
Sections �� < _ �,ra
r ,`4�1'Y r*: _4.y_ H� S
AI]xp..
:.1 µgy`.
Summary of the Case and Request for Oral Argument
2
Table of Contents
3
Table of Authorities
4
Jurisdictional Statement
6
Statement of the Issues
7
Statement of the Case --
8
Statement of the Facts
11
Summary of the Argument
14
Argument and Standard of Review
17
The District Court erred and abused its discretion in awarding
attorney's fees to Rogers Group, Inc. in that mere allegations in a
complaint of civil rights violations are insufficient to support an
award of attorney fees pursuant to 42 U.S.0 § 1988.
17
Conclusion
39
Certificates
41
Addendum
Add. 1 —
Add. 39
3
Annellate Case: 11-2487 Pane: 3 nate Fife is fR17412{111 Fntry If): 3823573
TABLE OF AUTHORITIES
Cases . ,, 4
Pages}
Advantage Media, L.L.C. v. City of Hopkins, Minn., 511 F.3d 833
(8th Cir. 2008)
27, 28
Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 113 S. Ct.
753, 122 L. Ed. 2d 34 (1993)
7,
15, 18,
19
Buckhannon Bd. & Care Home, Inc. v. W. Virginia Dept. of Health
& Human Res., 532 U.S. 598, 121 S. Ct. 1835, 149 L. Ed. 2d 855
(2001)
7,
22,
15, 21,
27-32,
39
Christina A. ex rel. Jennifer A. v. Bloomberg, 315 F.3d 990 (8'h Cir.
2003)
17
Coates v. Powell, 639 F.3d 471 (8th Cir. 2011)
16
Cormack v. Settle-Beshears, 474 F.3d 528 (8th Cir. 2007)
16, 37
Farrar v. Hobby, 506 U.S. 103, 113 S.Ct. 566, 121 L. Ed. 2d 494
(1992)
23, 39
Fuller v. Fiber Glass Systems, LP, 618 F.3d 858 (8th Cir. 2010)
17
John T. ex rel. Paul T. v. Delaware County Intermediate Unit, 318
F.3d 545 (3d Cir. 2003)
26
Kimbrough v. Arkansas Activities Association, 574, F.2d 423 (8th Cir.
1978)
20-24
Lowry v. Watson Chapel School District, 540 F.3d 752 (8`h Cir.
2008)
25
Nat'l Private Truck Council, Inc. v. Oklahoma Tax Comm `n, 515
U.S. 582, 115 S. Ct. 2351, 132 L. Ed. 2d 509 (1995)
15,
19, 38
N. Cheyenne Tribe v. Jackson, 433 F.3d 1083 (8th Cir. 2006)
27
Omni Behavior Health v. Miller, 285 F.3d 646 (8th Cir. 2002)
15, 35
Perdue v. Kenny A. ex rel. Winn, U.S. , 130 S. Ct. 1662, 176
14,
18, 39
4
Annellate CSR: 11-2482 Pne: 4 Data Filed: 11FI2g12Ci11 Fntry ID: 3823573
L. Ed. 2d 494 (2010)
r; 1'a e
Robles v. Prince George's County, Md, 302 F.3d 262 (4`h Cir. 2002)
25
Select Milk Producers, Inc. v. Johanns, 400 F3d 939 (D.C. Cir. 2005)
28 U.S.C. §§ 2201-02
25-26
Singleton v. Cecil, 176 F.3d 419 (8th Cir. 1999)
7,
16, 33-
34
Smyth ex rel. Smyth v. Rivero, 282 F.3d 268 (4th Cir. 2002)
6
26
Sole v. Wyner, 551 U.S. 74, 127S.Ct. 2188, 167 L.Ed. 2d 1069
(2007)
7,
14, 32
Williamson County Reg'1 Planning Comm'n v. Hamilton Bank of
Johnson City, 473 U.S. 172, 105 S. Ct. 3108, 87 L. Ed. 2d 126
(1985)
17,
38
Willis Smith and Co., Inc. v. Arkansas, 548 F.3d 638 (8th Cir. 2008)
38
Statutes =s �
r; 1'a e
28 U.S.C. § 1332
6,
18
28 U.S.C. §§ 2201-02
6,18
28 U.S.C. § 1331
6
42 U.S.C. § 1983
6, 8,
9,
15-
17,
19,
20
35,
38,
39
28 U.S.C. § 1367
6
28 U.S.C. § 1291 and 1294(1)
6
42 U.S.C. § 1988
6-7,
14-20,
22, 25, 28,
31-32, 38
Fed. R. App. P. 4(a)(1)(A)
6
5
Annellatp C;asp 11-2482 Panp5 DatA Fiipdd: 08I2g/2011 Fntry In- 1823573
JURISDICTIONAL STATEMENT
Rogers Group, Inc.'s complaint asserted jurisdiction pursuant to 28 U.S.C. §
1332 Diversity for its declaratory judgment claim based upon 28 U.S.C. §§ 2201-
02 Declaratory Judgments. Rogers Group, Inc.'s complaint also asserted
jurisdiction of 28 U.S.C. § 1331 Federal question for its 42 U.S.C. § 1983 claims.
Rogers Group's complaint never asserted that it was relying upon 28 U.S.C. §
1367 Supplemental jurisdiction.
28 U.S.C. §§ 1291 and 1294(1) vest this Court with jurisdiction over this
appeal from a final post -dismissal order dated June 17, 2011, by the United States
District Court for the Western District of Arkansas, Fayetteville Division,
Honorable Judge Jimm L. Hendren, presiding, granting attorney's fees and costs to
Rogers Group pursuant to 42 U.S.C. § 1988. Appellant timely filed its Notice of
Appeal on July 7, 2011, as required by Federal Rule of Appellate Procedure
4(a)(1)(A).
6
Annpllate Case: 11-2482 Pane: 6 nates FIIP.d: 08/29/2011 Entry lf.): 3823573
STATEMENT OF THE ISSUES
The District Court erred and abused its discretion in awarding attorney's fees to
Rogers Group, Inc. in that mere allegations in a complaint of civil rights violations
are insufficient to support an award of attorney fees pursuant to 42 US. C § 1988.
Buckhannon Bd. & Care Home, Inc. v. W. Virginia Dept. of Health &
Human Res., 532 U.S. 598, 121 S. Ct. 1835, 149 L. Ed. 2d 855 (2001)
Sole v. Wyner, 551 U.S. 74, 127 S. Ct. 2188, 167 L. Ed. 2d 1069 (2007)
Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 113 S. Ct. 753,
122 L. Ed. 2d 34 (1993)
Singleton v. Cecil, 176 F.3d 419 (8th Cir. 1999)
7
Annellate i:ase: 11-2482 Pang: 7 hate Filed: 0Ri2g/2011 Fntry 1n: 3823573
STATEMENT OF THE CASE
Citizens living near rock quarries operating within a mile of the city limits
petitioned the Fayetteville City Council for help in reducing the nuisance activities
of those quarries. Based upon a previous Arkansas Circuit Court decision finding
a Fayetteville ordinance to regulate the nuisance activities of a business whose
racetrack was outside the city limits to be legal and constitutional (Add. 31-33,
37-39, App. 537, 541-42, 534-36), the City Council held months of public
hearings, modified its ordinance to accommodate Rogers Group's suggestions, and
enacted a rock quarry ordinance to abate quarry nuisance activities within or near
the city limits. Add. 7-8, App. 877-78.
Prior to the Rock Quarry Ordinance going into effect, Rogers Group, Inc.
sued the City for a federal declaratory judgment based upon diversity, seeking a
preliminary and permanent injunction. Add. 1, App. 871. Rogers Group also sued
pursuant to 42 U.S.C. § 1983 for damages and attorneys fees claiming Due Process
violation. Add. 2, App. 872. Even though the ordinance had never taken effect,
Rogers Group also sued for inverse condemnation and (without exhausting its state
remedies) also sued for a Fifth Amendment Taking. Add. 1-2, App. 871-72.
The District Court quickly granted a Preliminary Injunction based solely
upon Rogers Group's federal declaratory judgment claim that the City of
Fayetteville misinterpreted and exceeded state law when enacting the ordinance.
8
AnneIlatp Case: 11-2482 Papp: 8 Date Filed: 08/29/2011 Fntry ID: 3823573
Add. 2, 4, 7, 27, App. 872, 874, 877, 669. The Court expressly found "it likely that
RGI will prevail on the merits of its claim, based on lack of jurisdiction on the part
of the City to legislate as to quarry activity outside its city limits...." Add. 29,
App. 418.
The Eighth Circuit Court of Appeals affirmed the granting of the
Preliminary Injunction, agreeing with the District Court that the federal declaratory
judgment claim would likely succeed on the merits based upon the City's
misinterpretation of state law when enacting the ordinance. Add. 3, App. 873.
The City of Fayetteville voluntarily amended its rock quarry ordinance to
remove its extraterritorial reach in order to preserve this ordinance's viability
throughout the City and to prevent additional legal expense. Add. 3-4, App. 873-
74. The District Court then determined that all of Rogers Group, Enc.'s claims
were moot, did not rule on the pending cross-motions for summary judgment, and
dismissed the complaint. Add. 6, App. 876.
Rogers Group moved for attorney's fees and costs claiming it was the
"prevailing party" and was entitled to fees because it had won the Preliminary
Injunction on its federal declaratory judgment claim (before the Court because of
diversity) and had alleged in its complaint a claim pursuant to 42 U.S.C. § 1983.
Add. 6-7, App. 876-77. Although the City opposed such motion, the District Court
9
AnniIlatP C:sP: 11-2482 Pane q Dnte Filprl° 08/29/2011 Entry ID: 3823573
granted attorney's fees of over $75,000.00 to Rogers Group. Add. 7-9, App. 877-
79. The City has appealed this judgment.
10
Anne!late Case: 11-2482 Pane: 10 Date Filer: 0R/2P/2011 Fntry ID: 3R2:1573
STATEMENT OF THE FACTS
In 2002, the City of Fayetteville enacted the Motor Vehicle Racing Facility
Ordinance in an attempt to abate the nuisance activities of such a facility even
though its actual racetrack was outside the city limits.. Add. 37-39, App. 534-36.
The legality and constitutionality of this ordinance was challenged by the
racetrack's owner in the Fourth Judicial District of the Arkansas Circuit Court. In
2003, Circuit Judge Storey held that Fayetteville could legally and constitutionally
regulate the nuisance activities of the racetrack even outside its city limits. Add.
31-33, App. 537, 541-42.
In early 2009, citizens living near Rogers Group's rock quarry petitioned the
City Council for help to abate nuisance activities of rock quarries operating near
the city limits. Add. 29, App. 418. The City of Fayetteville believed it had such
statutory power based not only upon its analysis of state law, but also upon the
Circuit Judge's ruling in 2003. Add. 31, App. 537.
The City of Fayetteville began the process of drafting and enacting an
ordinance to provide for licensing and regulation of quarries in early 2009 and
presented a draft outlining an ordinance on September 1, 2009, at the City Council
meeting. App. 64-82. Some of the Rogers Group's quarry is located within a half
mile of the north corporate limits of Fayetteville. App. 342. Under the ordinary
democratic process employed by the City of Fayetteville, opinions and suggestions
11
Annellate Case: 11-24R2 Pane_ 11 nate Filed: n8/2.912011 Fntry ID: 3823573
of citizens and interested parties, including Rogers Group, Inc., regarding the
proposed regulations were heard in regular public meetings from September 1 —
October 20, 2009. App. 64-272. In drafting the provisions of the Ordinance, the
City considered specific recommendations from appellee Rogers Group. Add. 30,
App. 419. The City gave due consideration of the necessities and hours of Rogers
Group's operations, and specifically considered Rogers Group's blasting schedule
for the previous 6 months, which indicated an average of 2 1/3 blast events per
month. App. 450.
In its final version, Ordinance 5280 provided for licensing and regulation of
quairies, including limitations of two blasting events per month, and ending dump
truck tailgate banging during early morning and after 4:30 p.m. App. 22-27. The
Ordinance limited quarry operations to 60 hours a week, which had been exactly as
requested by Rogers Group. App. 22-27, 334-35. Quarry operators were required
to obtain annual, no -fee licenses that could be suspended or revoked for violation
of the ordinance. App. 22-27. Operation without a license or any other violation
of this ordinance would have to be prosecuted in the Fayetteville District Court and
could result only in a small fine. App. 22-27. Rogers Group admitted that the
restrictions enacted by the ordinance would allow for their then -current profitable
operations, but believed that such restrictions would inhibit growth of the business.
App. 349-50.
12
Annellate Case: 11-2482 Pane: 12 Date Filed: 0R/2g/2011 Fntry I17: 3R23573
The Ordinance allowed blasting between the hours of 10:00 a.m. and 3:00
p.m. on the first and third Wednesday of each month (App. 22-27) so that
neighbors could better plan their activities (such as horse riding) for safety and so
both quarries would blast on the same days. The Ordinance provided for variances
on holidays or days when blasting may not be feasible, as requested by Rogers
Group. App. 22-27, 336. The twice -monthly blasting day limit was similar to
Rogers Group's previous blasting operations when not regulated by the ordinance.
App. 351. The Ordinance was enacted October 20, 2009. Add. 1, App. 871. The
Ordinance was enjoined by preliminary injunction of the District Court before
enforcement began. Add. 2, App. 872.
Prior to a decision on the merits, the Fayetteville City Council amended the
Rock Quarry Ordinance to remove its extra -territorial application. Add. 25, App.
664. The District Court held this had mooted all of Rogers Group, Inc.'s claims
and dismissed the complaint. Add. 27-28, App. 669-70.
13
Annellate Cap: 11-74R2 Pane: 13 bate Filed: 08/29/2011 Entry HT 3823573
•
SUMMARY. OF THE ARGUMENT
The District Court erred and abused its discretion in awarding attorney's fees to
Rogers Group, Inc. in that mere allegations in a complaint of civil rights violations
are insufficient to support an award of attorney fees pursuant to 42 .U.S.0 § 1988.
Rogers Group, Inc. obtained only a preliminary injunction based upon its
declaratory judgment claim (based upon diversity jurisdiction) involving only the
interpretation of a state statute. This preliminary injunction was "dissolved or
otherwise undone" when the District Court dismissed this claim as moot and thus
could not satisfy the United States Supreme Court's test to make Rogers Group,
Inc. a prevailing party. Sole v. Wyner, 551 U.S. 74, 83 (2007).
The District Court erred by awarding attorneys fees pursuant to 42 U.S.C. §
1988 for a claim not to protect federal or constitutional rights, but only on an issue
of state statutory interpretation. "Congress enacted 42 U.S.C. § 1988 in order to
ensure that federal rights are adequately enforced." Perdue v. Kenny A. ex rel..
Winn, U.S. 130 S. Ct. 1662, 1671, 176 L. Ed. 2d 494 (2010) (citation
omitted, emphasis added).
The District Court erred when awarding attorney fees "under § 1988 even
though the Court never reached the constitutional claims because the allegations in
the complaint raised a substantial constitutional claim...." Add. 16, App. 886.
The United State Supreme Court had expressly rejected the "catalyst" theory that
allegations in the complaint could be sufficient to justify attorney's fees under §
14
Annellate Case: 11-2482 Parse: 14 Date Filed: 08/2.912.011 Entry ID: 1823573
1988. Buckhannon Bd. & Care Home, Inc. v. W Virginia Dept. of Health &
Human Res., 532 U.S. 598, 605, 121 S. Ct. 1835, 149 L. Ed. 2d 855 (2001).
Although the declaratory judgment action was filed pursuant to diversity
jurisdiction, even if this state statutory interpretation claim had been pendent and if
a permanent injunction on the merits had been issued, unless Rogers Group, Inc.
had been entitled to relief under its § 1983 claims, it could not be entitled to relief
under § 1988. Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 285, 113
S. Ct. 753, 122 L. Ed. 2d 34 (1993). [W]hen no relief can be awarded pursuant to
§ 1983, no attorney's fees can be awarded under § 1988. Nat'l Private Truck
Council, Inc. v. Oklahoma Tax Comm'n, 515 U.S. 582, 592, 115 S. Ct. 2351, 2357,
132 L. Ed. 2d 509 (1995).
Rogers Group, Inc. could not have recovered under its Due Process claim
because the Court recognized "that the City Council did not act in haste, instead
considering the Ordinance over the course of several meetings, and that the
representatives of RG1 were able to have considerate input in the development of
the Ordinance. This is to be commended in the enactment of laws and
regulations...." Add. 29-30, App. 418-19. This Court has recognized that a due
process claim requires "egregious conduct" and "conduct intended to injure in
some way unjustifiable by any governmental interest...." Omni Behavior Health v.
Miller, 285 F.3d 646, 651-652 (8th Cir. 2002). The City of Fayetteville relied upon
15
Annellate CARP: 11-2487 Pane• 15 Date Filed: O8I2g12O11 Entry ID: 3823573