Opposition Brief — City of Clearwater v. Church of Scientology Flag Service Organization, Inc.

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Text

No. 93-1603 Cs r US.

ZBiLsED

IN THE JUL 11 1894

Supreme Court of the Hnited witerbese cuzs

OCTOBER TERM, 1994

CITY OF CLEARWATER, FLORIDA, et al.,

Petitioners,

—_—VvV.—

CHURCH OF SCIENTOLOGY FLAG SERVICE ORGANIZATION,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

BRIEF IN OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI

ERIC M. LIEBERMAN

Counsel of Record

THOMAS C. VILES

RABINOWITZ, BOUDIN, STANDARD,

KRINSKY & LIEBERMAN, P.C.

740 Broadway—Fifth Floor

New York, New York 10003-9518

(212) 254-1111

JOHNSON & JOHNSON

100 South Ashley Drive

Suite 1450

Tampa, Florida 33602

(813) 223-5321

Date: July 11, 1994 Attorneys for Respondent

RULE 29.1 STATEMENT

Respondent Church of Scientology Flag Service Organi-

zation, Inc. has no parent companies or subsidiaries to list

pursuant to Rule 29.1 of the Rules of the Supreme Court.

TABLE OF CONTENTS

PAGE

Me SD.) STNG 5 rccncs ca Ok i

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picts ntcacsm x ead eR cl ]

EMI 0s 0k ishndncesssdsdhaicssc ip enue ]

POM BNW. i sicoss soe ]

WUD asionos aks aninvetdieumiaien uke eine. 7

REASONS WHY THE PETITION SHOULD BE

sbhmnenan ORT TT TT eS 9

I. Petitioner Has Not Raised A Substantial Quer? OF

Law Or Shown A Conflict Among The Circun 4» To

The Proper Standard To Be Applied In Determiniag

Whether A Party Is A Prevailing Party Entitled To A

Fee Award Under 42 Vain CIR 9

A. Certiorari Is Not Appropriate To Review A

Circuit Court’s Application Of The Correct

Legal Standards To The Facts and Circum-

stances Of A Particular Case ...>........._. 9

B. The Court Of Appeals Applied The Proper

Legal Standard And Correctly Found That

The Church Was A Prevailing Party And

Was Entitled To A Fee Award Of Some

RING sors ecvccensebeturesine ier eh. 11

tthieshtteme aie eT Se ee eae

IT.

PAGE

Section 1988 Makes Attorney’s Fees Awards Avail-

able To Prevailing Parties Regardless Of Their

Financial Condition Or Need ..................... 17

A. Certiorari Should Be Denied Because The

Opinion Of The Court Of Appeals Is Consistent

With The Decisions Of This Court And Of

Every Circuit Court That Has Addressed The

B. Congress Did Not And Did Not Intend To Limit

Fee Awards To “Impecunious” Parties ...... 19

1. If The Statute Were Intended To Award

Fees Only To The Impecunious, It Would

RR) en a 19

2. To Construe § 1988 As Imposing A

Requirement Of “Impecuniousness”

Would Pose Serious And Difficult

Questions Of Line-Drawing Best Left To

Congress, Would Expand Litigation Over

Fees To An Unmanageable Level, And,

As Applied To Churches And Other

Charitable Organizations, Would Threaten

Unwarranted Intrusion Into The Affairs

Of Prevailing Plaintiffs................. 23

C. This Court Has Consistently Refused To Base

Entitlement To Civil Rights Fee Awards On

The Plaintiff’s Ability To Pay For Counsel . 25

PAGE

D. Congress Enacted § 1988 To Make Fee Awards

Broadly Available To All Prevailing Parties,

Regardless Of Identity Or Wealth ........__. 27

COA IT a seas cuiseurs ollceittad, terse 30

APPENDIX

TABLE OF AUTHORITIES

Cases PAGE

Ackerly Communications v. City of Salem, 752 F.2d

1394 (9th Cir.), cert. denied, 472 U.S. 1028

GSPN DP ode dcddniknketh bn haas bbs daladaceAeets eke. 18

Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963)... 14

Blanchard v. Bergeron, 489 U.S. 87 Se £420 cbdein passim

Blum v. Stenson, 465 U.S. 886 NEES tides abies au 25

Bunn v. Central Realty of Louisiana, 592 F.2d 891 (Sth

AEs. OUR NTR alga eb nk ik cesta 18

Cantwell v. Connecticut, 310 U.S. 296 ea 14,15

Church of Scientology Flag Service Organization, Inc.

v. City of Clearwater, 777 F.2d 598 (11th Cir.

1985), cert. denied, 476 U.S. 1116 $. Bee 1,5, 13

Church of Scientology Flag Service Organization, Inc.

v. City of Clearwater, 2 F.3d 1514 (11th Cir.

ot eT EE Sy PN RCO) eR 6

Cooper v. Singer, 689 F.2d 929 (10th Cir. 1982), on

rehearing, 719 F.2d 1496 (10th Cir. ares 19

Daniel v. Paul, 395 U.S. 298 NS i 14

Duncan v. Poythress, 777 F.2d 1508 (11th Cir. 1985),

cert. denied, 475 U.S. 1129 TSCA reser ae 18

Entertainment Concepts, Inc. v. Maciejewski, 631 F.2d

497 (7th Cir. 1980), cert. denied, 450 U.S. 919

2+ MERESAIRI ENE Se een OLN ER a ea 18

Everson v. Board of Education, 330 U.S. 1 (1947).... 13

PAGE

Fields v. City of Tarpon Springs, 721 F.2d 318 (11th

Sis Sciheos tigen ie 6

Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368

MATS titirattpdonnsarcesanvesacaceonic cnn c 10

Freedman vy. Maryland, 380 U.S. 5] fo, ee ae a 14

Hall v. Cole, 412 sent Sin 4 Tee I em 28

Hall v. Hall, 738 F.2d 718 (6th Cir. 1984)... 17

Hammer v. Rios, 769 F.2d 1404 (9th Cir. Pe 19

Hanrahan vy. Hampton, 446 U.S. 754 | ae 16

Hensley v. Eckerhart, 46] U.S. 424 | ae Passim

Hewitt v. Helms, 482 U.S. as, arr 11, 16

International Oceanic Enterprises v. Menton, 614 F.2d

502 (Sth Cir, HOMO E(t ooh tiv Belawhoekiuteeasecdd: 18

Johnson vy. Georgia Highway Express, Inc., 488 F.2d

Mit PERE tr 056 tale sdeanrenéeeh ec. 27

Jones vy. Wilkinson, 800 F.2d 989 (10th Cir. 1986),

aff'd, 480 U.S. 926 PTE Oi dikes sieee 18

Kunz v. New York, 340 U.S. PTE oceccets... 14

Larson vy. Valente, 456 U.S. eat ete 13, 14

Magnum Import Co. v. Coty, 262 U.S. 159 (1923) .... 10

Maher vy. Gagne, 448 U.S. i. Sana 6, 15

Marks v. United States, 430 U.S. a ff 3 CNR 10

Martin v. Heckler, 773 F.2d 1145 (11th Cir. ae 19

McElroy v. United States, 455 U.S. 642 (1982) ....... 10

Vii

PAGE

McLean v. Arkansas Board of Education, 723 F.2d 45

a I ca as a ons 8 ot 18

Mendoza v. Blum, 560 F. Supp. 284 (S.D.N.Y. 1983) . 17

Milwe v. Cavuoto, 653 F.2d 80 (2d Cir. | eT 18

Mitten v. Muscogee County School District, 877 F.2d

932 (11th Cir. 1989), cert. denied, 493 U.S. 1072

EUMEN adesiereliddasdceteccuscdriocank, eats 18

NLRB v. Catholic Bishop of Chicago, 440 U.S. 490

SE etantruidecid isin en oak cet eee tf 24, 25

National Socialist Party v. Skokie, 432 U.S. 43

SUE el didatwrmabmrandededdecasrtterdetsccacecu... 14

Near v. Minnesota, 283 U.S. 697 BEER oie a ceaca Gt 14

Nebraska Press Association v. Stuart, 427 U.S. 539

SRP Avevrenseresdeaataccnicciche 14

GRO Miinbk 5 dine Wid dig éSdaie th ibed dies dddwécdeedcd, 19, 28

Northwestern Florida Chapter of the Associated

General Contractors v. City of Jacksonville, pea

ik veep SP ee OF). 5

Presbyterian Church in the United States v. Mary

Elizabeth Blue Hull Presbyterian Church, 393

OE II is Cit SN 25

Rhodes v. Stewart, 488 U.S. 1 (1988).................. 11

Riverside v. Rivera, 477 U.S. 561 SEE odeucdess 27, 28, 29

Ross v. Moffitt, 417 U.S. 600 (1974) ................-. 10

Serbian Eastern Orthodox Diocese v. Milivojevich,

Oe a 25

Viii

PAGE

Shuttlesworth v. Birmingham, 394 U.S. 147 (1969)... 14

Smith v. Robinson, 468 Mew. Sea (1904)...,........... 16

Staub v. Baxley, 355 U.S. 313 DG ndbthekerna cc 14

Taylor v. City of Fort Lauderdale, 810 F.2d 1551 (11th

CORI) Saisciaits cates abate nckaviaece, x 6

Texas State Teachers Association v. Garland

Independent School District,

489 U.S. 782 (1989) .......50cececececess..., 9, 11, 12, 16

Texas v. Mead, 465 U.S. a. SRST SER aan 10

United States v. Jchnston, 268 U.S. 220 >) ae 10

Walz v. Tax Commission, 397 U.S. 664 a 14

Williams v. Tri-County Growers, Inc., 747 F.2d 121

ay PE sinivcssicaciceccecrsic 17

Zorach v. Clauson, 343 U.S. 306 I aa i aS TE 13

Constitutional Provisions

Ws ys, TI et ee RRS passim

Statutes and Rules

5 U.S.C. § 504(b)(1)(B), Pub. L. 96-481, Title II, § 203,

94 Stat. 2325 (1980), amended by Pub. L. 99-80,

§ 1, 99 Stat. 183 (1985) (Equal Access to Justice

RAG seniigvariustentiatc cata oe, 20, 21, 23, 24, 25

acct eo PT ee ee 21, 22

15 U.S.C. DPOEOC) one svesseneiceciecsesevessoosaceeets 21

OF FRG Ob bs Ki divecsscrten sD Kress 21

MF MINE bachicivccusetiieldectien ann 21

eer ie ee Se eee

PAGE

PP ae TOES 0500s os bi RECEDES vada imdave. 21

ae Ue i ii oo, os oeradek oubcee Koons Z21, 22

| ana a ne aera am 7

er es ND i i 8, 20, 24, 25

28 U.S.C. § 2412(d)(2)(B), Pub. L. 96-481, Title II.

§ 204, 94 Stat. 2327 (1980), amended by Pub L.

99-80, §§ 1 & 2, 99 Stat. 183 (1985) (Equal

Access to Justice Act) .......ccccccccccces 20, 21, 23, 25

ee IIE ds as cccchsccccccdcceteeceeciciccc. 21, 22

ay Me 80 do bo i donc ccc ccecdccecenecec,, 1]

Ae 4

42 U.S.C. § 1988, Pub. L. 94-559, § 2, 90 Stat. 2641

(1976), amended by 42 U.S.C. § 1988(b), Pub. L.

102-166, Title I, §§ 103 & 113, 105 Stat. 1074

(1991), amended by Pub. L. 103-141, § 4, 107 Stat.

1489 (1993) (Civil Rights Attorneys Fees Awards

Se ENG Cab ulendikciaes ts senéecacevaccaces passim

Te Ws PIO os tek vcdveiccccese teccceccleccs 21, 22

po nn, . i.

42 U.S.C. §§ 3601 et seg. ....... il alia id ae 19

42 U.S.C.A. § 3612(c) (West 1977), Pub. L. 90-284.

Title VIII, § 812, 92 Stat. 88 (1968), amended by

42 U.S.C. 3613(c)(2), Pub. L. 100- 430, § 8, 102

Stat. 1633 (1988) (Fair Housing Act, Title VIII

of Civil Rights Act of 1968)..................20, 21, 22

42 U.S.C. § 3613(c)(2) (1994), Pub. L. 100-430, § 8,

102 Stat. 1633 (1988) (Fair Housing Amendments

i a! 21,

PAGE

Religious Freedom Restoration Act of 1993, Pub. L.

103-141, § 4, 107 Stat. 1489...................... 11, 21

Rule 10.1, Rules of the Supreme Court of the United

PMI oe sceversuccciivavicuiecsnsiie ceed ee 10

Rule 14.5, Rules of the Supreme Court of the United

TONNE s 5.00 spsoseen tenes toumbiiebehesdc Bate: 8

Rules 15.1, Rules of the Supreme Court of the United

GUNN, sconcecviventiversuntear cue ee 8

Miscellaneous

S. Rep. No. 1011, 94th Cong., 2d Sess. (1976),

reprinted in 1976 U.S.C.C.A.N. 5908........ 15, 28, 29

H.R. Rep. No. 1418, 96th Cong., 2d Sess. (1980),

reprinted in 1980 U.S.C.C.A.N. 4984........ 21, 22

H.R. Rep. No. 711, 100th Cong., 2d Sess. (1988),

reprinted in 1988 U.S.C.C.A.N. 2173............ 22

United States Internal Revenue Service, Cumulative

List of Organizations Described in Section

170(c) of the Internal Revenue Code of 1986,

Publication 78 (rev. 2-94), Supp. No. 1994-1 __.. 8

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

Respondent Church of Scientology Flag Service Organiza-

tion (the “Church”) files this brief in opposition to the petition

of the City of Clearwater and several City officials (collec-

tively the “City”) for a writ of certiorari. The opinion of the

court of appeals is consistent with the decisions of this Court

and of other circuits, and with the statute and legislative his-

tory. The City’s petition presents no conflict among the circuits

or with the decisions of this Court, and no new issue of law; it

is merely an attempt to relitigate facts that already are clearly

established in the record. Because, as the court of appeals held,

the facts sufficiently establish the Church’s entitlement to attor-

neys’ fees, certiorari should be denied.

OPINIONS BELOW

The petition fails to mention or append the unreported

decision of the district court, dated March 28, 1984, holding

Clearwater Ordinance 3091-83 (the “1983 ordinance”) uncon-

stitutional (A-1).' The earlier decision of the United States

Court of Appeals for the Eleventh Circuit, dated November 13,

1985, vacating the district court’s decision of March 28, 1984

as moot, is reported at 777 F.2d 598.

STATEMENT

Proceedings Below

1. On October 6, 1983, the City enacted the 1983 ordinance

(R1-1-29). The ordinance regulated charitable solicitations,

even by churches and even on their own property, gave broad

investigative powers to City officials, and imposed extensive

recordkeeping and disclosure requirements. The 1983 ordi-

nance exempted organizations that solicit from “members,”

defined as “any person regularly attending or participating in

a charitable organization.” Section 100.01(5). To be eligible for

We have appended the missing decision. References to “A-__”

are to pages in the appendix to this Brief in Opposition. References to

“2” are to pages in the appendix to the petition. Record references are

made to the record in the court of appeals as follows: “R[volume]-[doc-

ument number]-[page],” unless otherwise noted.

exemption, the 1983 ordinance required organizations, includ-

ing churches, to record and disclose the names of members.

The 1983 ordinance required churches and charitable groups

to obtain a city permit to solicit funds, imposed criminal and

civil penalties for solicitation without a permit, and authorized

post—denial judicial review of a decision denying a permit

application. It also established a series of prohibited acts, for

which criminal penalties were provided, and granted discretion

to the City Attorney to investigate a charitable organization

upon receipt of ten citizen complaints.

2. On January 23, 1984, the Church commenced this action

to enjoin enforcement of the 1983 ordinance. The Church

alleged that the ordinance violated the First Amendment reli-

gion clauses in a variety of ways, including, inter alia, (1) that

it was enacted for an invidious sectarian purpose, to subject the

Church to discriminatory regulation and to drive it from Clear-

water; (2) that it improperly required churches and other orga-

nizations to disclose all their financial records and thus all their

activities on a continuing basis; (3) that the permit requirement

effected a prior restraint on speech, including religious speech,

by forbidding churches to solicit funds even on their premises

without first obtaining a permit; and (4) that it vested broad

enforcement discretion in City officials without sufficient stan-

dards to cabin their actions. Finally, and most prominently, the

Church alleged that the limited membership exemption effected

a facial sectarian discrimination or denominational preference

by extending the exemption only to those denominations whose

members “regularly attend” services at which donations are

solicited; churches, such as the Church of Scientology (and

probably no other church in Clearwater) which provide reli-

gious services on an individual basis to members on an irreg-

ular or episodic schedule could not qualify for the exemption.

The Church moved for injunctive relief, placing particular

emphasis on the discriminatory and intrusive nature of the

membership exemption and on the broad discretion of the City

Attorney to carry out a prior restraint against solicitation.

Indeed, the Church characterized the membership definition as

the “most important” facially discriminatory feature of the

1983 ordinance (R1-17-6) and cecried the utter lack of stan-

ii ie i i at eee

dards to govern the actions of the City Attorney (R1-17-28

to 31).?

3. Six days after the oral argument, on March 15, 1984, the

City repealed the 1983 ordinance and enacted Ordinance No.

3479-84 (the “1984 ordinance”), an amended version of the

1983 ordinance. While the 1984 ordinance contained numerous

constitutional infirmities (as held by the court of appeals in a

decision which is the subject of the petition in No. 93-1604), it

did eliminate or ameliorate four of the critical defects raised by

the Church. First, it eliminated the limited membership exemp-

tion, which facially discriminated against the Church. Second,

it corrected the prior restraint of the 1983 ordinance by pro-

viding that an organization could continue to engage in solic-

itation even if it were denied a permit, unless and until the city

obtained a court order enforcing its denial of a permit. Third,

it restricted the unbridled discretion of the City Attorney,

thereby making it more difficult for him to single out the

Church for harsh enforcement. Fourth, it corrected certain of

the vague provisions of the ordinance.

The City announced the change in a post-hearing memo-

randum submitted to the district court on March 16, 1984, in

which the City conceded the unconstitutionality of the 1983

ordinance—a fact the City omits to mention anywhere in its

present Petition. The City explained the repeal of the 1983

ordinance in terms substantially at variance with the City’s cur-

rent explanation:

[The City] amended the subject ordinance in response to

many of the objections asserted by the plaintiffs in their

complaints and their pretrial memoranda of law. City rec-

ognizes a responsibility to draft the ordinance narrowly to

achieve its purpose, and the City believes that the

amended ordinance better satisfies this requirement.

_ Thus, petitioners’ argument (Pet. at 12-14) that the Church, in

its brief to the Eleventh Circuit, mischaracterized its initial constitutional

attack on the 1983 ordinance—indeed, that it engaged in a “remarkable

volte face” (id. at 13)—is false. While the Church indeed did complain

about the intrusive and entangling nature of the 1983 ordinance, its focus

was the very features of the ordinance that the City amended, in the face

of that attack. See text, post.

(R1-20-2). The City’s counsel repeated this concession in a sta-

tus conference on March 23, 1984:

Well, Your Honor, you know we passed an ordinance that

these plaintiffs didn’t like and they told us and they told

the Court why they didn’t like it. . . . Okay, and we took

a look at why they didn’t like it and we said, well, maybe

they have got some valid objections to it, both in terms of

how the Court might react to it and in terms of how the

City legislatively would want to react to the objections we

consider to be valid, we retrofied. . . . In other words,

they wanted the Court to strike down those provisions. We

have given them what they asked for. . . . [W]e felt we

were doing the plaintiffs a favor and was not inconve-

niencing the Court by yielding to their objections and by

adopting a new and different Ordinance to which, appar-

ently and hopefully, they will have no objections.

(R2-46-3 to 4).

4. Shortly after the repeal of the 1983 ordinance, the district

court held that the 1983 ordinance was unconstitutional on its

face (A-1). With respect to the limited membership exemption,

the district court stated that the 1983 ordinance:

exempts those churches which limit their solicitations to

those who regularly attend or participate in religious ser-

vices (Section 100.01(5)). Churches which obtain con-

tributions from members who participate in church

services on a non-regular or episodic basis, as well as

churches which do not offer, encourage, or require regu-

lar attendance or regular participation of their members

are not exempt. Thus, a stable church membership requir-

ing regular attendance need not be affected by this ordi-

nance; however, a church whose membership is growing

and actively engaged in proselytizing and fund raising

falls under the regulatory scheme of the ordinance.

(A-16, A-17). The court found:

There is absolutely no showing of any compelling state

interest being furthered by the parameters of the limited

membership exemption of this ordinance. This ordinance

not only implies a religious preference, its mere presence

could foster a stagnation of religious practice in Clear-

water by impacting on growing congregations and fore-

stalling larger, more organized churches from continuing

to seek new members as well.

(A-17, A-18).

The district court also specifically addressed the issue of

prior restraint, and the constitutional imperative to have ade-

quate judicial review procedures available “to insure that deci-

sions made by administrators do not effectively forestall First

Amendment activities which should be allowed” (A-14). And,

directing its attention to the discretionary powers to investigate

possible violations and enforce the ordinance, the district court

found these provisions constitutionally defective as well:

The enforcement provisions of the ordinance do not con-

tain articulated standards indicating when the City Attor-

ney should or will investigate an organization against

which ten complaints have been filed. This vagueness in

determining when the City Attorney will conduct an

investigation when ten complaints have been filed against

an organization creates an opportunity for arbitrary and

subjective enforcement of a law infringing on constitu-

tional rights, and accordingly, is unconstitutional.

(A-20).

On appeal, the United States Court of Appeals for the

Eleventh Circuit vacated the district court’s ruling as moot,

since at the time it was entered the City had repealed the chal-

lenged 1983 ordinance by enactment of the 1984 ordinance.

The court of appeals further found that theré was no possibil-

ity that the repealed 1983 ordinance would regain vitality.

Church of Scientology Flag Service Org., Inc. v. City of Clear-

water, 777 F.2d 598, 605 & n.21 (11th Cir. 1985), cert. denied,

476 U.S. 1116 (1986).

The court of appeals’ decision vacating the district court’s deci-

sion as to the 1983 ordinance as moot was, in turn, effectively overruled

by this Court’s decision in Northwestern Florida Chapter of Assoc. Gen’ |

Contractors v. City of Jacksonville, ___ U.S. ___ , 113 S. Ct. 2297, 2301

5. The Church then filed a petition for attorneys’ fees under

42 U.S.C. § 1988. The Church contended that the elimination

of the limited membership exemption, which had exempted vir-

tually all other organized religions except the Church of Sci-

entology, the correction of the prior restraint aspects of the

1983 ordinance, and the modification of the provision that had

given the City unbridled discretion in initiating investigation

and prosecution, made it the prevailing party on significant

issues in the case (R5-108, R-109, R-117).

The district court denied the petition on the basis that the

Church was not the prevailing party. The district court based

this finding in part on the fact that the court of appeals had

found the district court’s decision invalidating the ordinance to

be moot when entered (18a, 20a-21a).* It also focused on what

it termed the “similarity” between the Church’s legal arguments

against the new and different provision in the 1984 ordinance

requiring disclosure to members of financial information, and

the argument the Church had made against the now-repealed

limited membership exception (30a). Quoting a mischaracter-

ization of the Church’s argument by the City, the district court

incorrectly suggested that the Church had contended “that in

dispositive respects the new Ordinance was the same or even

worse than the old one” (23a).° Notwithstanding the fact that

(1993). See Church of Scientology Flag Services Org. v. City of Clear-

water, 2 F.3d 1514, 1520 (11th Cir. 1993).

* The district court’s reliance on the court of appeal’s vacation of

the district court’s earlier order as moot was contrary to well-established

law that “for purposes of the award of counsel fees, parties may be con-

sidered to have prevailed when they vindicate rights through a consent

judgment or without formally obtaining relief.” Maher v. Gagne, 448

U.S. 122, 129 (1980). It is enough that the plaintiff is the “catalyst” for

remedial modification of the state actions challenged. Fields v. City of

Tarpon Springs, 721 F.2d 318, 321 (11th Cir. 1983); Taylor v. City of Fort

Lauderdale, 810 F.2d 1551, 1560 (11th Cir. 1987). Petitioners, in appar-

ent recognition of the catalyst theory, made no attempt in the court of

appeals to justify the district court’s decision denying fees on the grounds

of the mootness decision, and have not sought certiorari on that basis.

The quoted passage is not the Church’s statement at all, but,

rather, was a mischaracterization of the Church’s argument by the City.

The City continues to mischaracterize and misquote the Church’s argu-

ment in this Court (Pet. at 2).

the district court formerly had declared the 1983 ordinance

facially invalid on the basis of the very defects that the City

remedied by amending the ordinance, the court now concluded

that the elimination of the limited membership exemption and

the limitation of the City Attorney’s broad investigative and

prosecutorial discretion were legally insignificant.

6. The court of appeals reversed and remanded for deter-

mination of the fee award. It held that the Church was the pre-

vailing party because it had caused the City to amend the 1983

ordinance to eliminate the constitutionally objectionable lim-

ited membership exemption, the prior restraint of solicitation,

and the City Attorney’s unfettered investigative and prosecu-

torial discretion (1a). It ruled that the Church had prevailed on

“its asserted right not to be treated differently from other reli-

gious organizations” (6a). The court of appeals said that the

“gravamen of [the Church’s] challenge” was that the ordinance

regulated “in a discriminatory manner that favors one religion

over another” (id.); the Church’s rights were “plainly vindi-

cated by the repeal of the challenged limited membership

exemption, an action which Clearwater conceded at the time

was caused by Scientology’s articulation of alleged constitu-

tional infirmities” (7a). The court of appeals also found that the

Church successfully had prevailed in its challenge to the ordi-

nance’s vagueness. It concluded that the Church materially had

altered the legal relationship between itself and the City in a

manner that conferred legal benefit on the Church (id.). It also

rejected the district court’s reasoning that the similarity in the

grounds advanced in the challenges to the 1983 and 1984 ordi-

nances disentitled the Church to a fee award: “Scientology did

not fail when Clearwater ceased some of its challenged dis-

criminatory conduct merely because the city persisted in other

challenged conduct” (7a).

Facts

Respondent is a church of the Scientology religion that pro-

vides religious training and services in Clearwater, Florida. The

Internal Revenue Service has recognized respondent as a

church, within the meaning of 26 U.S.C. § 170, exempt from

taxation under 26 U.S.C. § 501(c)(3). See Internal Revenue

Service, Cumulative List of Organizations Described in Section

170(c) of the Internal Revenue Code of 1986, Publication 78

(rev. 2-94), Supp. No. 1994-1. All of its religious activities in

the City of Clearwater are directed towards its members. It

makes no attempt to solicit contributions from the public, but

it does advertise and sell religious books and pamphlets about

the religion of Scientology to the public (R1-1-2 to 3).§

Petitioner has made a series of highly inflammatory, mis-

leading, false—and ultimately irrelevant—statements of “fact,”

which it is respondent’s obligation to clarify. Rule 15.1, Rules

of the Supreme Court; see also Rule 14.5.

Thus, petitioners’ statement that respondent “solicits from

the public in Clearwater” (Pet. at 6-7) is false, except to the

extent that the Church sells religious books and pamphlets.

Similarly, petitioners’ statement that “Scientology’s claim to

religiosity is questionable” (id.) is absurd, given the IRS’

recognition of the respondent as a tax-exempt church, and the

opinions of both courts below.

Petitioners’ characterization of the Church’s “use of expen-

sive, harassing litigation” is based upon Clearwater’s own self-

justifying reports and accounts, and is false. Its references to

amounts allegedly spent on lawyers, blast-resistant vaults, and

other matters appear nowhere in the record of this case, and are

misleading in the extreme, as well as being irrelevant.

Petitioners’ statement that the Church made “huge pretrial

litigation expenditures” requiring the City “to bring the case to

a head by a summary judgment motion” (Pet. at 12) is made of

. Petitioners thus distort the record in arguing that “Scientology

solicits from the public in Clearwater” (Pet. at 7), and in arguing that the

Church’s challenge to the limited membership exemption was based upon

a theory that the City could not distinguish between a church’s solici-

tations of its own members and a church’s solicitations from the general

public (id.). Rather, as set forth ante, the Church’s challenge to the lim-

ited membership exemption of the 1983 ordinance was premised on the

facial discrimination between kinds of church members, i.e., those who

regularly attend and participate in church services and those who do not.

As noted, Scientology religious services are typically not congregational

in nature, and do not occur on a “regular” basis, a fact well-known to the

drafters of the 1983 ordinance.

whole cloth. The only proceedings in this case were the

Church’s motion for preliminary and permanent injunction,

made at the very outset of the case, the City’s appeal from the

district court’s order granting that motion, and the attorney’s

fee motion and appeal. Petitioners’ references to “litigation a

outrance” (Pet. at 12) are without basis.

REASONS WHY THE PETITION SHOULD BE DENIED

I. Petitioner Has Not Raised A Substantial Question Of

Law Or Shown A Conflict Among the Circuits As To

The Proper Standard To Be Applied In Determining

Whether A Party Is A Prevailing Party Entitled To A

Fee Award Under 42 U.S.C. § 1988.

A. Certiorari Is Not Appropriate To Review A Cir-

cuit Court’s Application Of The Correct Legal

Standards To The Facts And Circumstances Of A

Particular Case

The legal standards governing the award of attorney fees to

a prevailing party in cases arising under 42 U.S.C. § 1983 are

well-settled. Texas State Teachers Ass’n v. Garland Indepen-

dent School District, 489 U.S. 782, 789 (1 989); Hensley v. Eck-

erhart, 461 U.S. 424, 433 (1983). Indeed, petitioners have

raised no question about the standard applicable to determi-

nation of whether a party has prevailed within the meaning of

the statute. Nor do petitioners argue that the court of appeals

articulated an improper legal standard at variance with that

established by this Court or applied by the other circuits. The

only question petitioners raise is whether the court of appeals

properly applied the agreed upon legal standard to the facts and

circumstances of this case.

While we submit, and show below, that the court of appeals

unquestionably reached the correct result in holding that the

Church was the prevailing party and is entitled to some fee

award, whether it did or did not is not an appropriate subject

for review by this Court. The purpose of certiorari is not to

review the various and sundry decisions of the courts of

appeals to determine whether they correctly weighed the record

in each case; rather, it is to ensure that they apply the correct

legal principles on questions of substantial importance, and to

resolve conflicts among the circuits on substantial legal issues.

Rule 10.1, Rules of the Supreme Court. E.g., Ross v. Moffitt,

417 U.S. 600, 616-17 (1974) (Rehnquist, J.) (“This Court’s

review. . . is discretionary and depends on numerous factors

other than the perceived correctness of the judgment we are

asked to review”); cf., McElroy v. United States, 455 U.S. 642,

643 (1982) (O'Connor, J.) (certiorari granted due to “a conflict

among the Circuits on this issue of statutory construction”);

Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 373

(1981) (Marshall, J.) (certiorari granted “to resolve a conflict

among the Circuits”); Marks v. United States, 430 U.S. 188,

189 (1977) (Powell, J.) (certiorari granted “to resolve a conflict

in the Circuits”). If the courts of appeals articulate and apply

the correct legal standard, as the court of appeals indisputably

did in this case, then there can be no reason for this Court to

undertake review, at least absent an extraordinary misappli-

cation of the legal standard the effect of which is virtually to

create a new legal standard at variance with established law.

See, e.g., Texas v. Mead, 465 U.S. 1041, 1043 (1984) (Stevens,

J.); Magnum Import Co. v. Coty, 262 U.S. 159, 163 (1923)

(Taft, C.J.) (certiorari jurisdiction “was not conferred on this

Court merely to give the defeated party in the Circuit Court of

Appeals another hearing”); cf., United States v. Johuston, 268

U.S. 220, 227 (1925) (Holmes, J.) (“We do not grant a certio-

rari to review evidence and discuss specific facts”). No such

showing has been or could be made here.

The above principles apply with special force in the context

of this case. Applications for attorneys’ fees in civil rights and

other litigation are fairly common. Litigation over such ques-

tions in effect amounts to litigation about the prior litigation.

The docket of the Court would soon be swamped if the Court

were to consider, let along undertake to review, whether the

lower federal courts correctly applied the undisputed legal stan-

dards to the facts and circumstances of each case. The petition

should be denied.

eed

B. The Court Of Appeals Applied The Proper Legal

Standard And Correctly Found That The Church

Was A Prevailing Party And Was Entitled To A

Fee Award of Some Kind

The Civil Rights Attorneys Fees Awards Act of 1976, 42

U.S.C. § 1988, 90 Stat. 2641, provides:

In any action or proceeding to enforce a provision of sec-

tions 1981, 1982, 1983, 1985, and 1986 of this title, title

IX of Public Law 92-318, or Title VI of the Civil Rights

Act of 1964, 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.’

The threshold question in the determination of whether a lit-

igant is entitled to attorneys’ fees under § 1988 is whether the

applicant is the prevailing party. As the Court unanimously has

held, the test is whether plaintiffs “succeed on any significant

issue in the litigation which achieves some of the benefit [that

they] sought in bringing the suit.” Texas State Teachers Ass'n.

489 U.S. at 789 (quoting Hensley, 461 U.S. at 433). What is

required is that the party requesting fees be able to show “some

benefit,” in other words, the plaintiff “at a minimum. . . must

be able to point to a resolution of the dispute which changes

the legal relationship between itself and the defendant.” Texas

Teachers Ass'n, 489 U.S. at 792 (citing Rhodes v. Stewart, 488

U.S. 1, 3-4 (1988); Hewitt v. Helms, 482 U.S. 755, 760-61

(1987)). Where the plaintiff has met this minimal success, it

“has crossed the threshold to a fee award of some kind.” Texas

State Teachers, 489 U.S. at 792.

- The quoted passage contains the relevant language of the statute

in force when the Church made its attorneys’ fee request. Subsequently,

in 1991, Congress recast the existing portions of § 1988 into subsections

(a), (b), and (c), with the effect that subsection (b) now contains the

attorney's fee provision. Pub. L. 102-166, § 113(a). It also added autho-

rization for attorneys’ fees under 42 U.S.C. § 1981a to the list of actions

in the new subsection (b). Id. § 103. In 1993, proceedings under the Reli-

gious Freedom Restoration Act were added to the list in subsection (b).

Pub. L. 103-141, § 4(a), 107 Stat. 1488.

A plaintiff is deemed a prevailing party and ordinarily is

entitled to “some kind” of attorneys’ fees award if the plaintiff

has succeeded on “any significant issue in litigation which

achieves some of the benefit the parties sought in bringing the

suit.” Hensley, 461 U.S. at 433. In the Court’s words, it is suf-

ficient for the plaintiff to “be able to point to a resolution of the

dispute which changes the legal relationship between itself and

the defendant. . . . The touchstone of the prevailing party

inquiry must be the material alteration of the legal relationship

of the parties in a manner which Ggngress sought to promote in

the fee statute.” Texas State Teachers, 489 U.S. at 792-93.

There can be no question but that the court of appeals explic-

itly applied the standard of Hensley and Texas State Teachers

in holding that the Church was a prevailing party in this liti-

gation (Sa-7a). Petitioners do not claim to the contrary.

Moreover, the court of appeals was indubitably correct in

reaching its conclusion. It cannot be controverted that the City

repealed the 1983 ordinance in the face of the Church’s legal

challenge to its constitutionality. As discussed above, the City

acknowledged in writing that the amendments were made “in

response to many of the objections asserted by the plaintiffs in

their pretrial memoranda of law” and in recognition of the

City’s “responsibility to draft the ordinance narrowly to achieve

its purpose” (R1-20-2). A week after the repeal, the City’s

counsel explained to the district court why it changed the ordi-

nance after litigation: “[W]e took a look at why [the Church]

didn’t like it and we said, well, maybe they have got some

valid objections to it. . . . In other words, they wanted the

Court to strike down those provisions. We have given them

what they asked for” (R2-46-3 to 4).

In the present Petition, the City seems to have forgotten what

it told the district court. The City allows only that it had

“amended certain provisions of the law” in order “to accom-

modate points made by Scientology” in the litigation (Pet. at

6).* But even this concession demonstrates lack of dispute over

. Tt City further claims that it “accommodated” the Church “just

as the City accommodated other groups in other ways when doing so

would not harm the law’s ability to accomplish its purposes” (Pet. at 7).

This ignores the obvious difference between the Church and “other

eer

the fact that the limited membership exemption was eliminated,

the prior restraint of all solicitation without a permit was abol-

ished, the unbridled discretion of the City Attorney to inves-

tigate and prosecute was limited, and other corrective changes

were made in the ordinance, all in response to the Church’s

lawsuit. Moreover, the provisions that the City eliminated were

precisely those that the Church claimed had unconstitutionally

singled out Scientology for worse treatment than other orga-

nized religions in Clearwater. As the court of appeals noted in

an earlier appeal of this case, the City’s amendment “ma[de]

substantial modification to Ordinance No. 3091-83.” Church of

Scientology Flag Service Org. Inc. v. City of Clearwater, 777

F.2d 598, 601 (11th Cir. 1985).

By eliminating the limited membership exemption, and mak-

ing the ordinance more applicable to all religious and chari-

table organizations operating in Clearwater, the Church

achieved a significant victory that is neither technical nor de

minimis, but is at the heart of the First Amendment. No prin-

ciple is more well-established under the religion clauses of the

First Amendment than that the state may not “pass laws which

aid one religion” or that “prefer one religion over another.”

Everson v. 8oard of Education, 330 U.S. 1, 15 ( 1947): see also

Larson v. Valente, 456 U.S. 228, 244 (1982); Zorach v. Clau-

son, 343 U.S. 306, 314 (1952).

Larson is particularly instructive. In that case, the Court

reviewed a solicitation ordinance containing a membership

exemption which had the effect of imposing regulatory author-

ity upon smaller and less well-established churches, exempting

the more established churches. The Court found that the ordi-

nance “impose(s] the registration and reporting requirements

- . - OM some religious organizations but not on others” and

“does not operate even-handedly,” 456 U.S. at 253, thereby

“set(ting] up” a type of “official denominational preference,”

id. at 255. The Court struck down the ordinance, Stating that

groups”—the others were “accommodated” before enactment of the ordi-

nance, since the ordinance was designed to regulate the Church of Sci-

entology. The City’s so-called “accommodation” of the Church did not

take place until after the filing of a lawsuit, and the briefing and argu-

ment of the issue of the ordinance’s validity.

the “constitutional prohibition of denominational preference is

inextricably connected with the continuing vitality of the Free

Exercise Clause.” /d. at 245. Such laws, in the Court’s words,

“ ‘engender a risk of politicizing religion’—a risk, indeed, that

has already been substantially realized.” /d. at 253 (quoting

Walz v. Tax Commission, 397 U.S. 664 (1970)). The Court

found that the burden of complying with the charitable solic-

itation ordinance “is certainly not de minimis.” 456 U.S. at 253.

Thus, the elimination of a similar provision in the present case,

catalyzed by the Church’s lawsuit, must also be viewed as a

significant legal victory. Not only did the Church void an

invidious “badge of second-class citizenship” inherent in any

such discriminatory scheme, Daniel v. Paul, 395 U.S. 298, 308

(1969) (Douglas, J., concurring), which “engender[ed] a risk of

politicizing religion,” Larson, 456 U.S. at 253, but it also elim-

inated a facial basis upon which enforcement officials could

seek to justify harsher enforcement action against the Church

than against other traditional churches. No longer could the

City Attorney support investigations of the Church’s solicita-

tions of its members, but not of the local Catholic, Baptist, or

Presbyterian Church, on the grounds of the statute itself.

The elimination of the prior restraint provisions of the ordi-

nance was also of fundamental significance. Prior restraints are

the most highly disfavored tools of government regulation of

speech. E.g., National Socialist Party v. Skokie, 432 U.S. 43,

44 (1977) (per curiam); Nebraska Press Ass'n v. Stuart, 427

U.S. 539, 561 (1976); Shuttlesworth v. Birmingham, 394 U.S.

147 (1969); Freedman v. Maryland, 380 U.S. 51, 57 (1965);

Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963); Staub

v. Baxley, 355 U.S. 313, 325 (1958); Kunz v. New York, 340

U.S. 290, 294 (1948); Cantwell v. Connecticut, 310 U.S. 296,

307 (1940); Near v. Minnesota, 283 U.S. 697, 713-20 (1931).

Under the 1983 ordinance, a church or other organization was

forbidden to engage in solicitation of any kind unless and until

it obtained a permit to do so. If a permit were administratively

denied, the organization would be prohibited from solicitation

unless and until it obtained judicial relief from the city clerk’s

permit denial (R1-1-45 to 46). Under the amended 1984 ordi-

nance, solicitation may continue without a permit unless and

until the permit is denied and the City obtains a court order

upholding the denial. The Church thus obtained a critical and

fundamental modification in the ordinance.

Similarly, the imposition of limits on the City Attorney’s for-

merly unbridled investigative and prosecutorial powers also

was a significant legal victory. Explicit legal standards which

limit state discretion are an indispensable deterrent to religious

discrimination. E.g., Cantwell, 310 U.S. at 307 (“[T]o condi-

tion the solicitation of aid for the perpetuation of religious

views or systems upon a license the grant of which rests in

the exercise of a determination by a state authority. . . is to

lay a forbidden burden upon the exercise of liberty protected by

the constitution”).

Where litigation has forced an adversary to make conces-

sions favorable to the plaintiff, that plaintiff has prevailed for

purposes of the § 1988 fee award. When § 1988 was enacted,

Congress expressly stated that “for purposes of the award of

counsel fees, parties may be considered to have prevailed when

they vindicate rights . . . without formally obtaining relief.”

S. Rep. No. 1011, 94th Cong., 2d Sess., at 5 (1976), reprinted

in 1976 U.S.C.C.A.N. 5908, 5912. As the Court has observed,

“Nothing in the language of § 1988 conditions the. . . power

to award fees on full litigation of the issues or on a judicial

determination that the plaintiff’s rights have been violated.”

Maher v. Gagne, 448 U.S. 122, 129 (1980).

The City cannot find support in the fact that the district

court's finding of the 1983 ordinance’s unconstitutionality had

been vacated as moot. The court of appeals vacated that find-

ing only because cf the City’s repeal of the ordinance—and the

City, in turn, repealed the ordinance “in response to many of

the objections asserted hy the plaintiffs in their complaints and

pretrial memoranda of law” (R1-20-2). In short, the court of

appeals’ finding of formal mootness resulted from the City’s

concession of the validity of many of the Church’s contentions,

and from the repeal of significant portions of the ordinance that

the Church claimed were constitutionally objectionable.

Nor is one any less a prevailing party because success was

secured on some claims and legal theories advanced, but not

all. The degree of success is an issue in determining the amount

of the attorneys’ fees to be awarded, e.g., Texas Teachers

Ass'n, 489 U.S. 782; Hensley, 461 U.S. 424, not whether attor-

neys’ fees should be awarded in the first place. As the Court

repeatedly has noted, complex civil rights litigation typically

grows out of a common core of facts involving many different

legal theories. A party prevails when there is success on a sig-

nificant issue; typically, all theories and issues do not get

decided in a party's favor—if only because some issues do not

get decided at all. E.g., Texas Teachers Ass'n, 489 U.S. at 789;

Hensley, 461 U.S. at 435-36. It is “clear that the fact that a

plaintiff has prevailed on one of two or more alternative bases

for relief does not prevent an award of attorneys’ fees for the

unaddressed claims, as long as those claims are reasonably

related to the plaintiff's ultimate success.” Smith v. Robinson,

468 U.S. 992, 1007 n.10 (1984). All that is required is that “a

plaintiff receive at least some relief on the merits of his claim

before he can be said to prevail.” Texas State Teachers, 489

U.S. at 792 (quoting Hewitt v. Helms, 482 U.S. 755, 760

(1987)). In no circumstances can the prevailing party be penal-

ized for failing to achieve a perfect score.

Nor does the pendency of related litigation attacking other

aspects of the City of Clearwater’s efforts to regulate the activ-

ities of the Church of Scientology—including the Church’s

challenge to what it claims are constitutional defects in the

ordinance after the amendments spurred by the Church’s ini-

tiation of the present suit—remove the Church’s entitlement for

the relief it has obtained so far. The relevant inquiry is the

relief obtained, not the claims advanced in subsequent litiga-

tion. The law is clear that attorneys’ fees are warranted under

§ 1988 at the point when a party has established entitlement to

relief; the award of interim attorneys’ fees in a civil rights case

is entirely appropriate even when the same case is still under-

way. E.g., Hanrahan v. Hampton, 446 U.S. 754 (1980). The

case for the receipt of attorneys’ fees while related or collateral

litigation is pending is at least as strong.

In sum, although the City now quarrels over the extent of the

benefits that the Church enjoyed due to these litigation—moti-

vated “amendments” to the 1983 ordinance, it does not, and

cannot, contest that it eliminated from the 1983 ordinance pro-

visions respecting the limited membership exemption, the prior

restraint of religious speech, and the discretion of the City

Attorney to investigate, issues over which the Church had gone

to court, in response to the Church’s litigation. Pet. at 6-7.° As

the court of appeals correctly held, these successes “are neither

technical nor de minimis” (6a). These were significant victories

both for the Church and for the Constitution, rendering the

Church a prevailing party under § 1988.

II. Section 1988 Makes Attorneys’ Fees Awards Available

to Prevailing Parties Regardless Of Their Financial

Condition Or Need.

The City also seeks certiorari on the question whether

§ 1988 should be construed to award fees only to successful lit-

igants who are “non-wealthy” or “impecunious.” The City can

point to no conflict in the circuits or with this Court on the

question; indeed, the case law uniformly rejects the City’s posi-

tien. Moreover, an examination of the statute’s language, its

° The City also casts aspersions on the manner in which the

Church has litigated this case, hyperbolically analogizing the present

lawsuit to the Allies’ assault on the Normandy coast and repeatedly mak-

ing shrill references to so-called Church “gospel” to litigate “a outrance.”

E.g., Pet. at 6, 10, 12, 24. It speaks in feverish terms of the Church's

“goal” being to “decimate the law.” Pet. at 12. Bled of the venom, these

assertions say little more than that the case was litigated zealously. The

City’s reference to litigation in other states, at other times, involving

other parties, to support the notion that the Church's supposed character

defects somehow render it undeserving of attorneys’ fees, is also irrel-

evant. As a matter of law, even if every bit of this rhetoric were abso-

lutely true, such conduct would not constitute “special circumstances”

rendering an award of counsel fees unjust. See, ¢.g., Williams v. Tri-

County Growers, Inc., 747 F.2d 121, 138 n.38 (3d Cir. 1984) (attorney's

misconduct not a special circumstance justifying reduction of attorney's

fees); Hall v. Hall, 738 F.2d 718 (6th Cir. 1984) (plaintiff’s misconduct

not a special circumstance); Mendoza v. Blum, 560 F. Supp. 284, 288 n.3

(S.D.N.Y. 1983) (failure to appear for deposition not a special circum-

stance). Here, however, notwithstanding the petition’s rancorous tone, the

record is devoid of any supportable allegation or finding of misconduct.

Quite simply, the Church litigated its challenge to the ordinance appro-

priately and vigorously, and brought it to an expeditious conclusion. The

ordinance was repealed, and the case was effectively over within three

months.

legislative history, and sound Principles of statutory con-

struction compels rejection of the City’s argument. Congress

intended that the Act encourage vigorous litigation in pursuit

of important constitutional rights and federal policies, and that

attorneys’ fee awards should be available to all parties, regard-

less of identity or solvency.

A. Certiorari Should Be Denied Because The Opin-

ion Of The Court Of Appeals Is Consistent With

The Decisions Of This Court And Of Every Cir-

cuit Court That Has Addressed The Issue

Petitioners do not even attempt to show that the opinion of

the court of appeals conflicts with decisions of other circuits

and of this Court. The reason for this failure is obvious: every

court to have addressed the issue has found that § 1988 does

not limit fee awards to only “impecunious” plaintiffs. Thus, in

Blanchard v. Bergeron, 489 U.S. 87 (1989), the Court stated

that “a plaintiff's recovery will not be reduced by what he must

pay counsel. Plaintiffs who can afford to hire their own

lawyers, as well as impecunious litigants, may take advantage

of this provision [§ 1988].” Jd. at 94.

At least seven circuits, some on several occasions, have held

that a plaintiff’s wealth or ability to pay for a lawyer is not bar

to an award of fees under § 1988. See, e.g., Milwe v. Cavuoto,

653 F.2d 80, 83 (2d Cir. 1981); Int’l Oceanic Enterprises v.

Menton, 614 F.2d 502, 503 (Sth Cir. 1980); Bunn v. Central

Realty of Louisiana, 592 F.2d 891, 892 (Sth Cir. 1979); Enter-

tainment Concepts, Inc. v. Maciejewski, 631 F.2d 497, 507 (7th

Cir. 1980), cert. denied, 450 U.S. 919 (1981); McLean v.

Arkansas Bd. of Educ., 723 F.2d 45 (8th Cir. 1983) (per

curiam); Ackerly Communications v. City of Salem, 752 F.2d

1394, 1397 (9th Cir. 1985), cert. denied, 472 U.S. 1028 (1986);

Jones v. Wilkinson, 800 F.2d 989, 991 (10th Cir. 1986), aff’ d,

480 U.S. 926 (1987); Duncan v. Poythress, 777 F.2d 1508,

1511 (11th Cir. 1985) (en banc) (dicta), cert. denied, 475 U.S.

1129 (1986); Mitten v. Muscogee County School District, 877

F.2d 932 (11th Cir. 1989), cert. denied, 493 U.S. 1072 (1990).

No circuit has held to the contrary.

Several other court of appeals panels, and of course this

Court, have analogously held that the existence of a contin-

gency fee arrangement likewise is no bar to the award of fees

under § 1988. Blanchard v. Bergeron, 489 U.S. 87 (1989):

Hammer v. Rios, 769 F.2d 1404, 1408 (9th Cir. 1985); Cooper

v. Singer, 689 F.2d 929, 932 (10th Cir. 1982), on rehearing,

719 F.2d 1496 (10th Cir. 1983); Martin v. Heckler, 773 F.2d

1145, 1152 (11th Cir. 1985) (en banc).

The decision of the court of appeals thus is consistent with

every pronouncement and holding in this Court and in the cir-

cuit courts. No conflict appears. Certiorari should be denied.

B. Congress Did Not And Did Not Intend To Limit

Fee Awards To “Impecunious” Parties

Section 1988 plainly directs the district court “in its dis-

cretion” to award the prevailing party “a reasonable attorney’s

fee.” The court’s discretion, however, is in fact quite con-

strained; a prevailing plaintiff “should ordinarily recover an

attorney’s fee unless special circumstances would render such

an award unjust.” Blanchard, 489 U.S. at 89 n.1 (quoting Hens-

ley, 461 U.S. at 429; Newman v. Piggie Park Enterprises, Inc.,

390 U.S. 400, 402 (1968)). Nowhere in the language of the

Attorneys Fees Act of 1976 is there any indication that the

statute is intended to condition authorization of attorneys’ fees

awards upon the prevailing party’s financial status or ability to

afford or pay for counsel.

1. If The Statute Were Intended To Award Fees

Only To The Impecunious, It Would Have

Said So

The City’s invitation to engraft onto § 1988 terms which

Congress did not enact would be entirely inappropriate. An

examination of congressional enactments both before and after

the 1976 Attorneys Fees Act leaves no doubt that, if Congress

had intended to make § 1988 fee awards contingent on finan-

cial need, it would have so stated.

For example, less than a decade earlier, Congress enacted a

fee-shifting provision as part of the Fair Housing Act of 1968

(Title VIII to the Civil Rights Act of 1968), which prohibited

discrimination in housing. 42 U.S.C. §§ 3601 er seq. The Fair

Housing Act created a private right of action for enforcement.

See 42 U.S.C.A. § 3612 (West 1977).

Under Title VIII, Congress provided for the award of attor-

neys’ fees—but explicitly conditioned the award on the pre-

vailing party’s inability otherwise to pay:

The court may grant as relief, as it deems appropriate, any

permanent or temporary injunction, temporary restraining

order, or other order, and may award to the plaintiff actual

damages and not more than $1000 punitive damages,

together with court costs and reasonable attorney fees in

the case of prevailing plaintiff: Provided, that the said

plaintiff in the opinion of the court is not financially able

fo assume said attorney's fees.

42 U.S.C.A. § 3612(c) (West 1977) (emphasis in last clause

added). Clearly, Congress is capable of enacting fee-shifting

legislation so that attorneys’ fees are awarded only when the

prevailing party is (in the City’s words) “impecunious” or

“non—wealthy,” when it chooses to. Eight years before the

enactment of § 1988, Congress did precisely that.

Furthermore, four years after the 1976 Attorneys Fees Act,

Congress again enacted a fee-shifting statute that tied entitle-

ment to attorneys’ fees to the prevailing plaintiff’s financial

status. In the Equal Access to Justice Act of 1980 (the

“EAJA”), Congress established detailed provisions explicitly

Stating that an individual prevailing party would not be entitled

to fees and costs if his or her net worth is more than

$1,000,000, nor would a corporation be able to recover fees if

its assets totalled more than $5,000,000 and it employed more

than 500 people. See 5 U.S.C. § 504(b)(1)(B); 28 U.S.C.

§ 2412(d)(2)(B)."

The private enforcement provision originally was codified at

§ 3612. As discussed below, subsequent recodification redesignated the

relevant section as § 3613.

In 1985, Congress raised the net-worth ceilings to $2,000,000

and $7,000,000, respectively. Pub. L. 99-80, $§ 1 & 2, 99 Stat. 183. It is

also worth noting that Congress gave charitable and religious organi-

zations a preferred position in the EAJA. The EAJA exempts from the

$7,000,000 limitation all tax-exempt organizations under 26 U.S.C.

a cas aia rere

Thus, within twelve years, Congress enacted three significant

statutes governing fee-shifting in cases that in /olve civil rights

violations. The 1976 Act, which has no language making the

award of attorneys’ fees a matter of financial means, is brack-

eted historically by the other two congressional enactments,

which specifically state that fee awards are contingent on the

prevailing party’s finances.'? It is reasonable to infer from the

presence of means tests in the 1968 and 1980 enactments, and

from the absence of such language in the 1976 Act, that, had

Congress intended to tie § 1988 fee awards to the plaintiff’s

financial circumstances, it would have done so, and, further,

that if Congress did not attach such a stipulation to the lan-

guage of § 1988, it is because it did not intend it to be there.

Any remaining doubt about this dissolves when one exam-

ines what Congress did to the Fair Housing Act’s fee-shifting

provision after the enactment of the 1976 Attorneys Fees Act.

In 1988, Congress enacted the Fair Housing Amendments Act,

Pub. L. 100-430. Congress eliminated the financial need test,

§ 501(c)(3), and it now specifically brings under its coverage adjudica-

tions under the Religious Freedom Restoration Act of 1993. (Congress

also amended § 1988 specifically to authorize attorneys’ fees in pro-

ceedings under the Religious Freedom Restoration Act. See Pub. L. 103-

141, § 4(a), 107 Stat. 1488.)

" Congress enacted the EAJA with the 1976 Attorneys Fees Act

clearly in mind. Congress surveyed the standards governing the opera-

tion of fee-shifting statutes. It specifically referred to the civil rights fee-

shifting provisions of § 1988, 42 U.S.C § 2000a-3 (Title II), 42 U.S.C.

§ 2000e-S(k) (Title VII), 18 U.S.C. $2520 (Title IID, 5 U.S.C.

§ 552(a)(4)(E) (Freedom of Information Act), and 42 U.S.C. § 1973\(e)

(Voting Rights Act), and also the attorneys’ fees sections of the Con-

sumer Product Safety Act, ¢.g., 15 U.S.C. §§ 2060(c) & (e), 2072(a), and

2073. Of the civil rights statutes, on/y Title VIII conditioned the award

of attorneys’ fees on the plaintiff's ability to afford legal assistance. See

H.R. Rep. No. 1418, 96th Cong., 2d Sess., at 8 (1980), reprinted in 1980

U.S.C.C.A.N. 4984, 4987. (The Consumer Product Safety Act did impose

jurisdictional minima on the amount in controversy, but did not specif-

ically peg the attorney's fee award to the plaintiff's financial status.) As

discussed below, Congress later amended Title VIII specifically to

remove its financial need test and bring it into line with other civil rights

fee-shifting provisions.

and modelled the relevant amendment upon the language of

§ 1988, nearly verbatim:

In a civil action under subsection (a) of this section, the

court, in its discretion, may allow the prevailing party,

other than the United States, a reasonable attorney’s fee

and costs.

42 U.S.C. § 3613(c)(2). Compare § 1988.

The language of § 1988 was used to signal that attorneys’

fees awards no longer depend on the plaintiff’s finances.

Congress explicitly said that one of the purposes in enacting

the 1988 Fair Housing Amendments Act was to “bring[ } attor-

ney’s fee language in Title VIII closer to the model used in

other civil rights laws.”"? H.R. Rep. 711, 100th Cong., 2d Sess.,

at 13 (1988), reprinted in 1988 U.S.C.C.A.N. 2173, 2174.

When Congress criticized the 1968 Fair Housing Act’s restric-

tion of awards to only those plaintiffs who could not afford to

pay, it did so by contrasting the language of the old provision

with the language of § 1988:

Unlike other civil rights laws, attorneys fees [under Title

VIII) are available to a prevailing plaintiff only if the

plaintiff cannot afford to pay. “Compare” Civil Rights

Altorney’s Fees Act, 42 U.S.C. 1988.

H.R. Rep. No. 711 at 16 n.20, 1988 U.S.C.C.A.N. at 2177 n.20

(quotation marks in original; emphasis added). Congress

explained that the abandonment of the needs test “[p]rovides a

definition of a prevailing party to be used under [The Fair

Housing] Act. The term makes clear that the same definition of

prevailing party as is used in [§ 1988] is to be used in this Act.”

Id. at 23, 1988 U.S.C.C.A.N. at 2184.

13 As noted above in connection with Congress’ consideration of

other attorneys’ fees statutes in 1980, the Fair Housing Act was the only

civil rights-related fee-shifting provision to make the fee award con-

tingent on the prevailing party’s financial ability to pay counsel. See H.R.

Rep. 1418 at 8, 1980 U.S.C.C.A.N. at 4986; compare 42 U.S.C.A.

§ 3612(c) (West 1977) with 42 U.S.C. § 1988: 42 U.S.C. § 2000a-3; 42

U.S.C. § 2000e-5(k); 18 U.S.C. § 2520: 5 U.S.C. § 552(a)(4)(E); 42

U.S.C. § 19731(e).

a ae

From this it is clear beyond peradventure that the language

of § 1988 would have stipulated that attorneys’ fees awards go

only to the impecunious, if that was its intended purpose.

Congress did not insert a financial means qualification into the

language of § 1988 precisely because it did not intend

§ 1988 to have such a qualification.

2. To Construe § 1988 As Imposing A Require-

ment Of “Impecuniousness” Would Pose

Serious And Difficult Questions Of Line-

Drawing Best Left To Congress, Would

Expand Litigation Over Fees To An Unman-

ageable Level, And, As Applied To Churches

And Other Charitable Organizations, Would

Threaten Unwerranted Intrusion Into The

Affairs Of Prevailing Plaintiffs

Petitioners’ request that this Court engraft an “impecu-

niousness” requirement onto § 1988 would throw the federal

courts into a mare’s nest of litigation wholly collateral to the

underlying questions of the initial lawsuits.

In the first instance, the courts would have to determine on

their own what level of “impecuniousness” was required for a

plaintiff to qualify for a fee award. Such line-drawing is

quintessentially a legislative function best left to Congress. As

we have seen, Congress did draw such lines in enacting the

Equal Access to Justice Act; it determined not to do so with

§ 1988 precisely because no “impecuniousness” requirement

was created for the latter statute.

Second, even if it were appropriate for the judiciary to leg-

islate a definition of impecuniousness, application of that def-

inition would be highly burdensome to the federal courts. Were

the courts to embark upon wide-ranging inquisitions into the

financial affairs of prevailing plaintiffs, they would be drawn

into a thicket of endless fact-finding that would dwarf the

determination of the amount of a reasonable counsel’s fee.

Indeed, the attorney’s fee phase of the civil rights case would

become the main event—an inquiry into the finances, income,

expenditures, and spending habits of the prevailing party. It

would demand the court’s assessment of the reasonableness and

necessity of the party’s purchases, and a scrutiny of the party’s

relationship with donors and vendors to determine whether its

balance sheet reflects the true state of affairs,o. listorted by

collusive transfers of money or assets. The courts would find

themselves spending more time on ancillary attorney’s fee pro-

ceedings than on deciding the merits.

Third, application of an “impecuniousness” requirement

would pose serious questions of improper intrusion into the

internal and financial affairs of those churches, charitable orga-

nizations, and political associations which may be civil rights

plaintiffs. Not only would the courts be required to determine

the financial status of such entities, but presumably losing

defendants would be permitted to conduct discovery into such

matters. At least with respect to churches, “it is not only the

conclusions that may reached . . . which may impinge on

rights guaranteed by the Religion Clauses, but also the very

process of inquiry leading to findings and conclusions.” NLRB

v. Catholic Bishop of Chicago, 440 U.S. 490, 502 (1979).'4

It presumably was for these reasons that Congress, in estab-

lishing financial criteria for a plaintiff to recover a fee award

under EAJA, specifically excluded organizations that are tax-

exempt under § 501(c)(3) of the Internal Revenue Code from

the limitation. See 5 U.S.C. § 504(b)(1)(B). Congress made the

conscious decision to shield charitable and religious organi-

zations from judicial inquiry into their finances, even when

attorneys’ fees are otherwise conditioned on the prevailing

plaintiff’s financial health.

This congressional policy is both practically and constitu-

tionally sound, and it independently demonstrates why the

imposition and definition of any “impecuniousness” require-

'4 Indeed, Catholic Bishop is quite instructive. In that case, the

court construed the National Labor Relations Act as not applying to the

employment relationship between church-run schools and their lay

employees, despite the absence of any specific language in the statute

providing for such an exemption. The court so construed the statute pre-

cisely to avoid the serious constitutional question that would have been

posed if the statute were deemed to apply. Here, petitioners seek to

engraft, from whole cloth, a limitation upon § 1988 which, if accepted,

would impose the same constitutional problems as those lurking in

Catholic Bishop.

a Ta ee EET

ment upon § 1988 should be left to Congress. To deal with the

meddlesome inquiries that a financial means test entails would

severely invade the operations of churches and charities, and

detract from their missions. Of course, when directed toward to

religious groups, such inquiries into internal affairs would

offend the well-established principle of separation of church

and state, as well. E.g., NLRB v. Catholic Bishop of Chicago,

440 U.S. 490 (1979); Serbian Eastern Orthodox Diocese v.

Milivojevich, 426 U.S. 696 (1976); Presbyterian Church in the

United States v. Mary Elizabeth Blue Hull Presbyterian

Church, 393 U.S. 440 (1969). Congress wisely sought to avoid

these problems when it exempted § 501(c)(3) organizations

from the net-worth ceiling test of the EAJA.

The financial means test proposed by the petitioners here

also should be rejected. As discussed above, it would be an

inappropriate usurpation of the legislative function for the

Court to attach terms and conditions to § 1988 that Congress

did not intend. Moreover, the course proposed by the City

would thrust the courts into an area which Congress has an

unmistakable and specific policy of avoiding. The courts

should abide by that policy, which is consistent with well-set-

tled constitutional principles, and decline the City’s invitation

to hold that § 1988 should be based on the prevailing party’s

finances or net worth.

C. This Court Has Consistently Refused To Base

Entitlement To Civil Rights Fee Awards On The

Plaintiff’s Ability To Pay For Counsel

It is well-settled that the identity of the private litigant or the

litigant’s attorney simply makes no difference when it comes

to awarding attorneys’ fees to civil rights plaintiffs. For exam-

ple, the Court has held that a § 1988 fee award should be made

according to the prevailing market rates, regardless of whether

the plaintiff was represented by a private attorney or by the

Legal Aid Society. Blum v. Stenson, 465 U.S. 886, 895 (1984).

“[W]e draw no distinction between profit and nonprofit law

offices.” Jd. at 901, n.18.

More recently, in Blanchard v. Bergeron, 489 U.S. 87 (1989),

this Court unanimously held that a prevailing plaintiff's

arrangement to pay for legal services by a contingent-fee agree-

ment should not be used to limit a court’s estimate of the rea-

sonable counsel fees that can be awarded under § 1988.

Reversing a district court disposition that had reduced a $7,500

award under § 1988 to $4,000 based on the terms of the attor-

ney’s forty percent contingent-fee arrangement, the Court held

that a private fee arrangement, standing alone, cannot impose

an automatic limitation on the exercise of the judge’s discretion

to award a fee. If the contingent agreement provides less than

what the court calculated to be the reasonable fee, “[t}he plain-

tiff should be required to pay the higher amount.” 489 U.S.

at 93.

As we understood § 1988's provision for allowing a “rea-

sonable attorney’s fee,” it contemplates reasonable com-

pensation, in light of all the circumstances, for the time

and effort expended by the attorney for the prevailing

plaintiff, no more and no less.

489 U.S. at 93.

Thus, the prevailing plaintiff’s ability to provide for some or

all of the legal services rendered should not disentitle the plain-

tiff to the full award of the attorneys’ fees that the district court

should find reasonable. In unambiguous language that applies

with equal force to the present Petition, the Court explained:

Thus it is that a plaintiff's recovery will not be reduced by

what he must pay counsel. Plaintiffs who can afford to

hire their own lawyers, as well as impecunious litigants,

may take advantage of this provision [§ 1988]. And where

there are lawyers or organizations that will take a plain-

tiff’s case without compensation, that fact does not bar the

award of a reasonable fee. All of this is consistent with

and reflects our decisions in cases involving court-

awarded attorney’s fees.

489 U.S. at 94 (emphasis added).

Thus, like Congress, the Court'’ has declared in the clearest

language that fees under § 1988 are available to the solvent as

well as the impecunious. As the Court put it succinctly, “we

have not accepted the contention that fee awards in § 1988

damages cases should be modeled upon the contingent-fee

arrangements used in personal injury cases.” /d. at 96.

D. Congress Enacted § 1988 To Make Fee Awards

Broadly Available To All Prevailing Parties,

Regardless Of Identity Or Wealth

It would be anomalous indeed now to construe § 1988 as

benefitting only the destitute, cutting off all other litigants.

Applying a financial means test to prevailing parties would vio-

late the spirit of § 1988, which is to make it easier for litigants

in all walks of life to file civil rights claims.

Congress enacted § 1988 to encourage the initiation of suits

that vindicate public rights. It had “determined that ‘the pub-

lic as a whole has an interest in the vindication of the rights

conferred the statutes enumerated in § 1988, over and above the

civil rights remedy to a particular plaintiff.’” Riverside v.

Rivera, 477 U.S. 561, 574 (1986) (quoting Hensley, 461 U.S

424 at 444) (Brennan, J., concurring in part and dissenting in

part)). Since Congress recognized that the public good that

results from such cases goes far beyond the immediate material

relief that the individual litigant may recover, it made the deci-

sion that attorneys’ fee awards should be provided. “Congress

has elected to encourage meritorious civil rights claims because

of the benefits of such litigation for the named plaintiff and for

society at large, irrespective of whether the action seeks mon-

etary damages.” Blanchard, 489 U.S. at 96.

The attorneys’ fees provision was to serve two functions: to

encourage private litigants to initiate suits against unconsti-

'S The Blanchard decision was written by Justice White and joined

by seven other justices. Justice Scalia concurred in all respects but one—

he took exception to the extent to which the Court relied for its analysis

on Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (1978), and

on other lower court decisions that had been cited in the legislative his-

tory of § 1988. It would seem that all nine justices in Blanchard unani-

mously agreed with the portions of the decision quoted here.

tutional conduct, and to serve as deterrent to government enti-

ties and officials engaging in such unlawful conduct. Congress

declared that “fees are an integral part of the remedy necessary

to achieve compliance with our Statutory policies.” S. Rep. No.

1011 at 3, 1976 U.S.C.C.A.N. at 5910; see also id. at 5, 1976

U.S.C.C.A.N. at 5913 (“fee awards are an integral part of the

remedies necessary to obtain .. . compliance”). It was

Congress’ view that without the provision of attorneys fees

awards in civil rights litigation, “the grant of Federal juris-

diction is but an empty gesture.” /d. at 3, 1976 U.S.C.C_AN.

at 5910 (quoting Hall v. Cole, 412 U.S. 1 (1973)). The leg-

islative history of § 1988 makes it plain that Congress intended

the remedy to be ordinarily awarded to prevailing plaintiffs.

The fee award is the rule, not the exception. The award of fees

to the private civil rights plaintiff is indispensable to the abil-

ity to function fully “not for himself alone but also as a ‘private

attorney general’ vindicating a policy that Congress considered

on the highest priority.” S. Rep. No. 1011 at 3, 1976

U.S.C.C.A.N. at 5910 (quoting Newman v. Piggie Park Enter-

prises, Inc., 309 U.S. 400, 402 (1968)).

“Section 1988 makes no distinction between actions for dam-

ages and suits for equitable relief.” Blanchard, 489 U.S. at 95.

It is not the purpose of § 1988 to reward only those private

plaintiffs who have reaped a financially munificent recovery.

“The intention of Congress was to encourage successful civil

rights litigation, not to create a special incentive to prove dam-

ages and shortchange efforts to seek effective injunctive or

declaratory relief.” Jd. The quantum of relief, measured in

pecuniary or material terms, is not determinative of entitlement

to attorneys’ fees. Congress designed § 1988 fully recognizing

that constitutional relief normally cannot be measured in pecu-

niary terms. Frequently, even resounding victories bring no

financial relief, or just token relief. In many cases in which

§ 1988 fees are available, the law “severely limit[s] the damage

remedy.” Riverside, 477 U.S. at 577.

Because damage awards do not reflect fully the public

benefit advanced by civil rights litigation, Congress did

not intend for fees in civil rights cases, unlike most

private law cases, to depend on obtaining substantial

So aa——————

monetary relief... . Thus, Congress recognized that rea-

sonable attorney’s fees under § 1988 are not conditioned

upon and need not be proportionate to an award of money

damages.

Id., 477 U.S. at 576.

Just as it would be inappropriate to view § 1988 as a system

of financial commissions tied to the purely economic value of

a civil rights victory, it also would be entirely inconsistent with

the statute’s language or purpose to view it merely as need-

based program of financial aid, distributing attorneys’ fees to

indigent litigants while leaving solvent litigants to shift for

themselves. Congress designed § 1988 to close loopholes and

“gaps” that had remained in the federal scheme of civil rights

Statutes; the goal was to make it more likely, rather than less

likely, for an aggrieved plaintiff to bring a meritorious con-

stitutional challenge. S. Rep. No. 1011 at 4, 1976 U.S.C.C.A.N.

at 5910. The purpose of § 1988 was not limited to subsidizing

the poor; it was to make the availability of relief and attorneys’

fees as comprehensive as possible. Nothing in the legislative

history suggests that attorneys’ fee awards should be based on

whether an attorney has been litigating on a pro bono basis.

Instead, they were intended to be based on the open market:

“In computing the fee, counsel for prevailing parties should

be paid, as is traditional with attorneys compensated by a fee-

paying client, ‘for all the time reasonably expended on a mat-

ter.’” S. Rep. No. 1011 at 6, 1976 U.S.C.C.A.N. at 5913.

Since Congress did not intend to limit the availability of §

1988 attorneys’ fees to indigent or impecunious plaintiffs, the

Court should reject the petitioners’ suggestion to amend the

Statute by judicially grafting on a means test. Section 1988

attorneys’ fees are available to all litigants—including

churches of all ages, sizes, rites, and conditions of solvency.

CONCLUSION

For the foregoing reasons, the petition for certiorari should

be denied.

Dated: July 11, 1994

Respectfully submitted,

ERIC M. LIEBERMAN

Counsel of Record

THOMAS C. VILEs

RABINOWITZ, BOUDIN, STANDARD,

KRINKSY & LIEBERMAN, PC.

JOHNSON & JOHNSON

APPENDIX

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A-1l

Opinion and Order of the United States District Court

for the Middle District of Florida on Application

for A Preliminary Injunction Enjoining Enforcement

of Ordinance No. 3091-83

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

CHURCH OF SCIENTOLOGY FLAG

SERVICE ORG., INC.

Plaintiff(s),

vs. CASE NO, 84-96-CIV-T-17

CITY OF CLEARWATER, et. al.,

Defendant(s).

and

AMERICANS UNITED FOR SEPARATION

OF CHURCH AND STATE, et. al.,

Plaintiff(s),

CASE NO. 84-97-CIV-T-17

vs.

CITY OF CLEARWATER, FLORIDA,

Gt. Gles

Defendant(s). /

MEMORANDUM OPINION AND ORDER

This cause is before the Court on

complaints seeking declaratory and

injunctive relief challenging the

enforcement of Clearwater Ordinance

A-2

Number 3091-83 (see Appendix 1), enacted

by the Clearwater City Commission on

October 6, 1983,

The City of Clearwater is a

municipality of the State of Florida.

Ordinance 3091-83 was passed on October

6, 1983, and did not go into force until

January 31, 1984, On January 27, 1984,

the parties entered into a Stipulation by

which they agreed the ordinance would not

be enforced during the pendency of the

instant litigation.

One should always be careful when

attempting to summarize an ordinance or

statute. In brief, the Clearwater

ordinance seeks to regulate the

solicitation practices of charitable

Organizations within Clearwater by

requiring a registration statement be’

filed with the City Clerk by the

A-3

charitable organization seeking to

solicit funds. The ordinance also

requires the charitable organizations

which solicit funds to maintain records

and documents necessary to complete a

registration Statement § and the City

Attorney is given the authority to

investigate charitable organizations

which solicit funds if complaints are

received from ten or more individuals.

On January 20, 1984, Americans

United for Separation of Church and

State; National Council of the Churches

of Christ in the U.S.A.; The American

Jewish Committee; Suncoast Amer ican

Baptist Church; Joyce Parr, individually

and as Moderator of the Suncoast American

Baptist Church; and James A. Christison,

individually, and as Treasurer of the

Suncoast American Baptist Church, filed a

Ll ee he, ate Be NE Nl Sa

A-4

complaint seeking injuncitive (sic)

relief against the City of Clearwater;

Mayor of the City of Clearwater; City

Manager of the City of Clearwater; City

Clerk of the City of Clearwater; and City

Attorney of the City of Clearwater (case

84-97-CIV-T-17).

On January 23, 1984, the Church of

Scientology Flag Service Organization,

Inc. filed a complaint seeking injunctive

relief against the City of Clearwater;

the City Attorney of the City of

Clearwater; and the City Clerk of the

City of Clearwater (Case 84-96-CIV-T17).

For the purpose of reviewing the

facial validity of the city ordinance,

these cases were joined, and on March 9,

1984, the Court heard oral arguments. At

the end of their presentations, the Court

instructed counsel that they were to

A-5

provide any post-hearing memorandum of

law to the Court by March 16, 1984, as

the Court intended to rule on the facial

validity of the ordinance by the end of

March 1984, On March 15, 1984, the

Clearwater City Commission passed _ an

amended ordinance which incorporated some

of the arguments Plaintiffs’ counsel

presented to the Court on March 9, 1984.

Despite the fact that the City of

Clearwater has amended their ordinance,

the Court feels that it has jurisdiction

to consider the facial validity of

Ordinance Number 3091-83 as presented in

the complaints and argued by counsel

March 9, 1984, The reason is quite

simple: to decide otherwise would

encourage a municipality to enact laws

which apparently affect the constitu-

tional rights of its citizens and upon

A-6

those laws being legally challenged, to

then amend them and effectively prolong

the period of time during which citizens

are unsure of their constitutional

rights.

Another reason the Court feels that

it should rule on this question is

because of the large number of cases

pending, and needing, the Court's time,

This Court must let parties have their

day in court but will not permit them to

have someone else's day. In short, the

Court does not intend for cases to go on

forever. There reaches a point of

decision in all cases, and for Ordinance

Number 3091-83, that point of decision is

here.

The Court has jurisdiction of this

action pursuant to 28 U.S.C. § 1331 and

4.7

§ 1343(a)(3) and the Doctrine of Pendent

Jurisdiction, Venue is proper pursuant

to 28 U.S.C. § 1391(b).

A cursory reading of Ordinance

3091-83 should indicate even to a layman

that the ordinance impacts upon Pirst

Amendment freedoms. We read a great deal

about the First Amendment and often one

wonders if we fully consider the

simplicity, yet majesty of the phrases

our forefathers put together to establish

the freedoms which make the United States

the most unique country on earth.

The First Amendment of the United

States Constitution states:

Congress shall make no law re-

specting an establishment of

religion, or prohibiting the

free exercise thereof; or

abridging the freedom of speech,

or of the press; or the right of

the people peacebly to assemble,

and to petition the government

for a redress of grievances.

A-8

There are a few fundamental

principles regarding the establishment

and free exercise of religion clauses of

the First Amendment:

All persons must be free to practice

their faith without governmental intru-

sion or regulation. If government does

seek to regulate, and the regulation im-

pacts on religious practice, the govern-

mental regulation must be in the further-

ance of a compelling state interest and

the government regulation must be the

least restrictive means necessary to

further that compelling state interest.

Sherbert v. Verner, 374 U.S. 398 (1963);

Wisconsin v. Yoder, 406 U.S. 205 (1972).

The government, in pursuing its

legitimate, secular purposes, must avoid

administrative entanglement with reli-

gious institutions. Walz Vv. Tax

A-9

Commission of the City of New York, 397

U.S. 664 (1970); Lemon v, Kurtzman, 403

U.S. 602 (1971).

The government must avoid associa-

tions favoring or opposing religion in

general or specific religions in partic-

ular whether such discrimination is

intentional or de facto. Abington School

District v. Schempp, 374 U.S. 203 (1963)

Larson v. Valente, 456 U.S. 228 (1982).

The government may not evaluate the

benefits of religious practice including

the truth or falsity of statements about

the benefits of religious practices under

any circumstances. United States v.

Ballard, 322 U.S. 78 (1944); Pounding

Church of Scientology v. United States,

409 F.2d 1146 (D.C. Cir. 1969).

A-10

Laws enacted to regulate public

solicitations by religious, political,

and social organizations often impact on

the religious guarantees of the First

Amendment together with the freedom of

speech and association protections in

that amendment. Several principles have

been developed to judge such laws.

Public solicitation is a protected

activity under the First Amendment

because, as a practical matter, fund

raising is necessary for a church or

association to survive and because it is

an effective method of reaching the

audience or membership to “get the word

out". Cantwell v. Connecticut, 310 U.S.

296 (1940); Fernandes v. Limmer, 663 F.2d

619 (5 Cir. 1981).

A-11

There are areas in which the state

may have an important interest in

regulating solicitation activities of the

public. The state or municipality has a

legitimate interest in seeking to avoid

disturbances of the peace and insuring

public safety, and therefore, certain

time, place, and method restraints can be

placed on solicitation activities,

Courts have also recognized that a state

Or municipality has an interest’ in

prohibiting “fraud” in solicitations. In

this regard, a municipality may

regulate to insure that funds’ raised

actually find their way to the organiza-

tion for which the. solicitation was

gQiven. Cantwell v. Connecticut, 310 U.S.

296, 306 (1940).

A-12

The regulatory authority (ie.

government) may not attempt to regulate

the content of the representations made

to induce contributions on the basis that

the representations falsely state

spiritual, emotional, or other benefits

which may accrue to the contributor in

this world or the next. United States v.

Ballard, 322 U.S. 78 (1944).

As is-the case with most statutes

which impact upon First Amendment

freedoms, any regulation of public

solicitation must be by the least

restrictive means necessary to further

the compelling state interests.

Fernandes v. Limmer, 663 F.2d 619 (5 Cir.

1981). No discretion must be left to the

administrative and enforcement officials

as to the scope or breath [sic] of the

regulation Hynes v. Mayor and Council of

A-13

the Borough or Oradell, 425 U.S. 610

(1976); Village of Schaumberg (sic) v.

Citizens for a Better Environment, 444

U.S. 620 (1980).

Regulations concerning solicitations

must be limited to those solicitations of

the public in public places, Interna-

tional Society of Kirshna (sic)

Consciousness of Houston, Inc. v. City of

Houston, Texas, 689 F.2d 541 ‘(3 Cie.

1982). Regulation of solicitations on

the premises of a church or political

association is not necessary because that

activity could not disturb the public;

there is not a danger of misrepresenta-

tion in this solicitations, by the

Organization for which contributins were

sought. See City of Houston supra, at

562.

A-14

Any regulation of public. solici-

tations must not effect a prior restraint

upon such activities. Prompt and

adequate judicial review procedures

including appeal must be available to

insure that decisions made by adminis-

trators do not effectively forestall

First Amendment activities which should

be allowed. Pernandes v. Limmer, supra

at 628.

The state may not pass laws which

aid one religion or which prefer one

religion over another. This principle of

neutrality among religions requires the

court to examine this ordinance on its

face to determine whether it will have a

discriminatory or unequal effect upon

different religious groups or practices

by exempting some churches or religious

Organizations, and, subjecting others to

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regulations or burdens. Epperson v,

Arkansas, 393 U.S. 97 (1968); and Larson

v. Valente, 456 U.S. 228 (1982).

If the Court finds such a result,

i.e., discrimination, the legislation

must be struck down unless the discrimi-

natory features are necessary to further

a compelling state interest and unless

there exists no less restrictive means to

accomplish the state interest without

imposing disparate burdens upon religious

groups Larson v, Valente, supra, at 244-

255.

In Larson the Supreme Court found

that an ordinance which created a

disparate impact upon smaller religious

groups and exempted more established

churches, could not be justified by a

compelling interest. The court went on

to find that the ordinance imposed

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registration and reporting requirements

on some religious organizations, but not

on others; this non-evenhanded operation

created an indication of official

denominational preference.

Clearwater Ordinance 3091-83 exempts

those churches which limit their

solicitations to those who regularly

attend or participate in religious

services (Section 100.01(5)). Churches

which obtain contributions from members

who participate in church services on a

non-regular or episodic basis, as well as

churches which do not offer, encourage,

or require regular attendance or regular

participation of their members are not

exempt. Thus, a stable church membership

requiring regular attendance need not be

affected by this ordinance; however, a

church whose membership is growing and

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actively engaged in proselytizing and

fund raising falls under the regulatory

scheme of this ordinance.

How can a church whose congregation

or group of members is growing, ever, at

any given time, indicate to civil

authority the number of “members” it has

in regular attendance or as participants

in the organization?

If a drunk were to stagger into a

church and “be saved" and then indicate

an intention to dedicate his life to its

purposes through regular attendance at

that church, would he be a "member"?

There is absolutely no showing of

any compelling’ state interest being

furthered by the parameters of the

limited membership exemption of this

ordinance, This ordinance not only

impies a religious preference, its mere

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presence could foster a stagnation of

religious practice in Clearwater by

impacting on growing congregations and

forestalling larger, more organized

churches from continuing to seek new

members as well.

The Defendant has indicated, during

oral argument, that the Clearwater

ordinance was modeled after a recent

ordinance in the City of Houston and

therefore this ordinance should be upheld

upon the authority of International

Society for Krishna Consciusness of

Ouston, Inc. v. City of Houston, Texas,

689 F.2d 541 (5 Cir. 1982). The Court

finds there is no safe harbor for

Clearwater in the City of Houston as the

Houston ordinance did not license the

discriminatory power in administrative

officials plus the investigatory and

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enforcing powers which the Clearwater

ordinance encompasses. In fact, the

Houston ordinance did not grant the power

to officials charged with enforcing the

solicitation ordinance to conduct

investigations, compel disclosure, and

prosecute Organizations who must

and emphasized Houston's amendment of

their ordinance was critical in that

Court's decision upholding the ordinance,

as the amended ordinance eliminated

language allowing enforcing officials in

Houston to “make such investigation as he

may deem necessary to ascertain the truth

of the facts and information set out" in

the registration statement.

In Clearwater'’s ordinance, the City

Attorney is granted broad investigatory

powers to investigate violations of the

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prohibited acts section of the ordinance

(see Section 100.06, 100.05(a)(b),

100.05(1)(a), 100.05(1)(c), 100.05(1)(g).

The Clearwater ordinance does precisely

what the Fifth Circuit emphasized the

Houston ordinance did not.

The enforcement provisions of the

ordinance do not contain articulated

standards indicating when the City

Attorney should or will investigate an

organization against which ten complaints

have been filed. This vagueness. in

determining when the City Attorney will

conduct an investigation when ten

complaints have been filed against an

Organization creates an opportunity for

arbitrary and subjective enforcement of a

law infringing on constitutional rights

and accordingly, it is unconstitutioral.

Grayned v. City of Rockford, 408 U.S. 104

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(1972); Baggett v. Bullitt, 377 u.s. 360

(1964); Kolender Vv. Lawson, U.S. ,

7S L.Ed.2d 903 (1983) (involving a

Criminal statute),

At oral argument counsel for

Americans United described the ordinance

as one in which "a shot gun was used to

shoot a mouse", This Court would not

State that analogy as a test for

constitutionality; however, the Court is

compelled, upon review of Clearwater

Ordinance 3091-83 to declare the

Ordinance unconstitutional as it will

impact upon smaller churches with growing

or changing congregations, requiring

smaller churches to be subjected to

regulation while exempting more

established congregations, thereby

violating the Principle of neutrality

without a compelling state interset.

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Further, the Court finds that the instant

ordinance is quite different than that

addressed by the Fifth Circuit in the

City of Houston.

Accordingly, the Court declares

Clearwater City Ordinance Number 3091-83

unconstitutional and permanently enjoins

its application or enforcement.

Case 84-97 is hereby dismissed and

Case 84-96 is hereby dismissed as to

Counts Two through Twelve of the

complaint; the Clerk is directed to enter

judgments for the respective Plaintiffs

against Defendants. Jurisdiction is

retained for the enforcement of the

executory provisions herein.

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DONE AND ORDERED in Chambers, in

Tampa, Florida, this 28th day of March,

1984,

ELIZABETH A. KOVACHEVICH

United States District Judge

Copies furnished to:

All Counsel of Record

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.