Petition for Writ of Certiorari — City of Revere, Massachusetts v. T&D Video, Inc. (No. 06-887)

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_. Supreme U.S.

(1) mF | as :

~ 96-887 DEC 96 2008

mn OFFICE OF THE CLERK

IN THE

Supreme Court of the Gnited States

CITY OF REVERE, ET AL.,

Petitioners,

{ T&D VIDEO, INC., D/B/A MOONLITE READER,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME JUDICIAL COURT FOR

THE COMMONWEALTH OF MASSACHUSETTS

PETITION FOR A WRIT OF CERTIORARI

amine

—we

IRA H. ZALEZNIK

LAWSON & WEI!ITZEN, LLP

88 Black Faicon Avenue

Suite 345

Boston, MA 02210

(617) 439-4990

Dated: December 27, 2006

QUESTIONS PRESENTED FOR REVIEW

I. Whether a manifestly excessive and exorbitant

fee petition filed pursuant to 42 U.S.C. Section 1988

can only be denied in its entirety if it “shocks the

conscience” of the Court?”

II. Whether a municipal zoning ordinance may,

consistent with the First Amendment, effectively

prohibit all adult video stores where conventional

video stores that have the same adult videos in stock

are permitted, resulting in no diminution or

suppression of speech?

PARTIES TO THE PROCEEDINGS

In addition to the parties named in the caption,

the following entities and individuals are parties to

the action:

The members of the Zoning Board of Appeals of

the City of Revere, Edward Elfman, Alfred Buccilli,

Anthony Giannino, Peter Lattanzi, and John J.

Verrengia, were named in their official capacity.

Joseph Ferruzzi, Building Inspector of the City of

Revere, was also named in his official capacity.

Thaddeus Drabkowski and Del Paone are the

shareholders of T&D Video, Inc. d/b/a Moonlite

Reader. T&D Video, Inc. is a _ privately held

Massachusetts Corporation.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ........::c0:e+0000 i

PARTIES TO THE PROCEEDINGS .......cccscsesseseseeeseeees ii

TANT OP RUSCH soo icscicad Ss cicescheaoncasoncie iv

CPINION BELOW ooo ais ssiceesee nics. eas l

TASTE sais isetnia cb cae es l

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ......ccccccssseseesseeseseeees: 2

STATEMENT OF THE CASE ........cs0s0es000: APONTE 2

REASONS FOR GRANTING THE WRIT ........cccccesesesees 7

I. THE “SHOCK THE CONSCIENCE”

STANDARD CONFLICTS WITH OPINIONS

OF MOST OF THE CIRCUIT COURTS............... 8

II. THE DECISION OF THE APPEALS COURT

FAILS TO FOLLOW THE TEACHINGS OF

FERNS GRIESE hei guereervsstsntsvssesueniosdevibinkbieyetecuein 12

CSA FEY aveviresnretissappsabininenes . offs dkulipleasaee cereals’ 15

PPP vit tnesiecstinticseadierscborcenquctees follows Conclusion

TABLE OF AUTHORITIES

FEDERAL CASES:

Breithaupt v. Abram, 352 U.S. 432,

77 S.Ct.408, 1 L.Ed.2d 448 (1957)......... Lasacas ll

Brown v. Stackler,

G12 F.2d 1057 (70 Cir, LOG icc cccccsvesenicsces 9,10

Case v. Unified School District No. 233,

157 F.3d 1243 (10th Cir. 1998)................0008- 10

Chavez v. Martinez, !

538 U.S. 760, 123 S.Ct. 1994,

ee Se CE iivevnsatnwccvenscnesdccconsocex ll

Copeland v. Marshall,

205 U.S.App.D.C. 390,

641 F.2d 880 (1980)(en banc) ..........cceeeeeee scene 9

Environmental Defense Fund, Inc. v. Reilly,

L P.S6 1254 (D.C. Ci. TODS) ivccsssssvcsccisvsessess 10

Fair Housing Council of Greater Washington v.

Landow, 999 F.2d 92 (4th Cir. 1993) ............ 11

FTC v. Minneapolis-Honeywell Regulator Co.,

344 U.S. 206, 73 S.Ct. 245,

FT Fi BAS LI ik es bica sensed cicdincssesvedacvosciavts 2

Globe Newspaper Co. v. Beacon Hill Architectural

Commission, 100 F.3d 175 (1st Cir. 1995)

Hensley v. Eckerhart,

461 U.S. 424, 103 S.Ct. 1933,

Fr Ke BO ES hi vnc viccaeh mes need e stares sntcene 8,9

Jordan v. United States Department of Justice,

GOl F208 S14 (D.C. Cir, 1GGZ) ve siscinescs cevecessne. 10

Lewis v. Kendrick,

OG4 FAG O45 118 Cir. LOGY) vvciccincdcchcdassceccses 10

Loranger v. Stierheim,

10 F.3d 776 (Lith Cir. 1994)........:sc.000000. errr 10

Renton v. Playtime Theatres, Inc.,

475 U.S. 41, 106 S.Ct. 925,

BS LB 20 ZO (IDSG) osc ccsevevecsesssonsvesects 8, 12, 14

Rochin v. California,

342 U.S. 165, 72 S.Ct.205,

Oe Ba eds Nee Cr isdiivanavcccceecavisniesieeeeviswesens ll

T&D Video, Inc. v. City of Revere,

BID WMG B77 CLOG) bo oicisccecicccrccosevavevdcevsaacaoene 4

Ward v. Rock Against Racism,

MOE US. FOS CE) viscid csitscscccicssivatecanseissepes 14

Young v. American Mini Theatres,

BEF Us CS CET i sisiicssrrcic poses dicasncvedtvasscsetss 13

CODES AND RULES:

SE SAG Aes PEMA 8ikec cccicynqncisivanastadbenmblypeatestevcadseanuees l

EE AF Bk es hen ens evecare veka assncdiaptas tonnddintaupesiuaepenaen) 2

HER US ARAL. BE PEs ccskei seni condectndasviccsnnsacemengins i, 8, 10, 11

BEC .. AE wevcievakacisilersssehincenkesidamenghceitiaastetes 2

Supreme Court ile POS i ]

PETITION FOR A WRIT OF CERTIORARI

Petitioners City of Revere, et al. (“Revere”) petition

for a writ of certiorari to review the decision of the

Appeals Court for the Commonwealth of

Massachusetts, entered on June 8, 2006. The

Supreme Judicial Court of the Commonwealth

declined to review the matter further by denying

Revere’s application for further appellate review

without opinion on September 28, 2006.

OPINION BELOW

The Opinion of the Appeals Court for the

Commonwealth of Massachusetts, dated June 8,

_2006, Appendix (“App.”) C, is reported at 66

Mass.App.Ct. 461, 848 N.E.2d 1221 (2006). The

denial of the request for further appellate review was

entered without a written opinion and is noted at 447

Mass. 1111, 854 N.E.2d 441 (2006).

JURISDICTION

The Appeals Court issued its decision on June 8,

2006 and Revere timely filed its request for further

appellate review with the Supreme Judicial Court on

June 28, 2006. The Supreme Judicial Court denied

the request for further appellate review on September

28, 2006. This petition is being mailed, by express

mail from the United States Postal Service, within

ninety days of September 28, 2006 in accordance with

Supreme Court Rule 29.2. This Court's jurisdiction is

invoked under 28 U.S.C. Section 1257{a).!

1On December 15, 2006, the Supreme Judicial Court granted

an application for further appellate review filed by Respondent

T&D Video, Inc. on September 28, 2006. App. F. The grant of

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Free Upcech Clause of the First Amendment to

. the Constitution of the United States provides, in

pertinent part, that “Congress shall make no law...

abridging the freedom of speech... .”

42 U.S.C. Section 1988(b) provides, in pertinent

part, that “In any action or proceeding to enforce a

provision of [42 U.S.C. Section 1983] 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... .”

STATEMENT OF THE CASE

In October of 1993, the Revere City Council

considered and passed an amendment to the Revere

Zoning Ordinance that became Sections 17.08.065

through 17.08.069 and Section 17.16.045 of the

Ordinance (hereafter to be referred to as the "Adult

Use Ordinance"). App. 27a-28a. The Adult Use

Ordinance provided, inter alia, that adult uses,

including an adult video store like the Moonlite

Reader, could only be located by special permit in

industrial areas of the city, and could not be located

within 1000 feet of other adult uses, churches,

further appellate review was a limited one, however, restricted

expressly to the issue raised by T&D Video as to whether its

request for fees for the earlier, interlocutory appeal to the Supreme

Judicial Court should be allowed in its current fee application.

(The Appeals Court had ruled that T&D Video was not entitled to

include these fees in its fee application). App. E. The Order for

further review is limited, will not affect the final decision of the

court in a substantive manner and does not extend the time to file

this petition. See FTC v. Minneapolis-Honeywell Regulator Co., 344

U.S. 206, 211, 73 S.Ct. 245, 248, 97 L.Ed. 245 (1952).

playgrounds, schools, residences and certain other

uses within Revere. App.28a. The Adult Use

Ordinance also contained other restrictions pertaining

to lot size, setback requirements and similar land use

restrictions. App.28a-29a. The Adult Use Ordinance

was enacted to combat the perceived adverse

secondary effects of adult uses, such as increased

crime, neighborhood deterioration, and the like.

App.2a. The purpose of the ordinance was to ensure

that, if adult uses were to locate in Revere, that they

would be located in non-residential, industrial areas

of the city. App.28a.

After construction of its store at 55 American

Legion Highway was complete in August of 1994,

Respondent T&D Video, Inc. d/b/a Moonlite Reader

(“T&D”) came forward to reveal its plans to operate an

adult video store by applying to the Building

Inspector for a sign permit. App. 14a. When told of

the use planned for the store, the Building Inspector

denied T&D's application for a sign permit, and told

T&D that it could not operate an adult use at the

premises in conformity with the requirements of the

zoning ordinance. App. 14a. T & D then filed an

appeal from the decision of the Building Inspector to

the Revere Board of Appeals. App. 14a. The Board of

Appeal held a hearing on the appeal on October 26,

1994, but before it could release its decision, T&D

commenced this action in the Superior Court for the

Commonwealth, Suffolk County seeking injunctive

relief against Revere, the Zoning Board of Appeals of

the City of Revere, Edward Elfman, Alfred Buccilli,

Anthony Giannino, Peter Lattanzi, and John J.

Verrengia, as members of the Board of Appeals and

Joseph Ferruzzi, as Building Inspector of the City of

Revere. App. 4a-5a. The Superior Court conducted a

hearing on T&D's request for injunctive relief, and,

after hearing, released a written opinion granting

T&D's request for an injunction against Revere from

enforcing its new ordinance against T&D. Appeals

Court Record Appendix (“Rec.”) 38-54. In her

Memorandum of Decision, the Motion Judge ruled

that the Revere Zoning Ordinance appeared to be

unduly restrictive and therefore likely violated the

First Amendment to the United States Constitution.

Rec. 46. Accordingly, she enjoined Revere from

enforcing its ordinance during the pendency of this

action. Rec. 53-54. Revere promptly filed its notice of

appeal from this decision and sought appellate review

of the decision of the Superior Court. Rec. 4.

After allowance of Revere’s application for direct

appellate review, the Supreme Judicial Court heard

Revere’s appeal from the Order of the Superior Court.

See T&D Video, Inc. v. City of Revere, 423 Mass. 577 ~

(1996). Concluding that the Trial Judge did not abuse

her discretion in granting T&D’s request for a

preliminary injunction against the enforcement of the

zoning ordinance, this Court affirmed the preliminary

injunction and dismissed Revere’s appeal. App. 13a.

While the appeal was pending, Revere amended its

Adult Use Ordinance to make it less restrictive. App.

6a. It reduced the lot size restriction to sixteen

thousand to sixty-six thousand square feet. App. 6a.

It also redefined an adult video store as having at

least twenty percent of its gross sales or inventory

consist of adult videos. Trial Exhibits (“Exh.”) 251.

Under the amended ordinance, conventional video .

stores could maintain an adult inventory, and so long

as it consisted of twenty percent or less of its total

inventory, the restrictive provisions of the zoning

ordinance would not apply. Exh. 251.

After the conclusion of the appellate proceedings

concerning the preliminary injunction, the parties

engaged in some pre-trial discovery, consisting of a

few depositions and a document production. This

discovery phase lasted from approximately October 1,

1996 through November 4, 1999, although there were

large periods of inactivity during this time. App. 46a.

- On or about May 24, 2001, T&D filed a motion for

summary judgment in Superior Court on the merits of

its claims. App. 47a. This motion was duly opposed

by Revere, using, for the most part, the same

materials that it had used in its opposition to the

preliminary injunction. App. 47a. After hearing, the

Superior Court concluded that the motion must be

denied because there were genuine issues of fact left

for trial. App. 47a. This phase of the case lasted

roughly from November 12, 1999 through January 4,

2002.

The matter was reached for trial on August 6,

2002. Rec. 7. App. 48a. After one day of trial, the

case was continued, and after further hearings on

August 22, August 23, and August 29, the evidentiary

portion of the case concluded. Rec. 7. App. 48a.

As part of the trial evidence, T&D Video offered the

testimony of its principal that there were at least four

other video stores in Revere that stocked the same

adult videos as T&D. Trial Transcript (“Tr.”) 43. One

conventional video store, Video Craze, had

approximately twice the inventory of adult videos as

T&D because it was a much larger store, with a very

large inventory of videos overall. Tr. 48. The videos

offered at the conventional video stores were the same

ones as the videos sold by T&D and were purchased

from the same distributors. Tr. 43. Based on this

testimony, and other evidence, Revere argued at trial

that the Adult Use Ordinance did not result in the

suppression of speech, and only had an incidental

restriction on speech because it restricted only adult

video stores like T&D, and not conventional video

stores. App. 10a. When the Trial Judge released his

decision on October 23, 2002, he rejected this

argument and Revere’s other claims in support of the

ordinance.

In his ruling, the Trial Judge concluded that the

Revere Adult Entertainment Zoning Ordinance

precluded the operation of an adult video store at any

location in Revere and, therefore, the ordinance

violated the First Amendment. App. Qa-10a.

Accordingly, he entered a declaration that the

ordinance was unconstitutional, and issued an

injunction against the enforcement of the ordinance.

App. 10a. He also invited T&D to schedule a further

hearing before him to assess damages, including

reasonable attorneys fees. App. 10a-1la.

Counsel for T&D submitted a request for attorneys

fees and costs, in the amount of $1,209,585.33 and

the Court conducted an evidentiary hearing on the

claim on November 23, 2003. App. 13a.

After hearing, on or about February 9, 2004, the

Trial Judge released his decision awarding T&D costs

and attorneys fees. App. 12a-25a. As his ultimate

conclusion, the Trial Judge awarded T&D attorneys

fees in the amount of $868,000, with expert witness

fees in the amount of $47,027, for a total award of

$915,027. App. 24a-25a. Judgment duly entered on

the decisions of the Court on the docket on March 2,

2004 and Revere duly filed its notice of appeal to the

Appeals Court from the final judgment.

After full hearing and consideration in the Appeals

Court, the Appeals Court released its decision on

June 8, 2006. The decision is attached to this

application as part of Appendix C and was published

at 66 Mass.App.Ct. 461. As its ultimate holding, the

Appeals Court concluded that the Adult

Entertainment Ordinance’ violated the First

Amendment because the effect of the Ordinance was

“to deprive the plaintiff of all locations within Revere

in which it may operate both legally and practicably.”

App. 40a-41la.

As for the lower court's award of attorneys fees and

costs in the amount of $915,027, the Appeals Court

vacated this portion of the judgment. Although

Revere maintained that the size of the fee requested

by T&D was grossly excessive and improperly

inflated, the Appeals Court declined to deny the fee

request in its entirety. The Court refused to disallow

the application because the Court ruled that to do so,

the request for fees must “shock the conscience” of

the court. App. 43a. The Appeals Court did note,

however, that “we are constrained to say that this fee

request certainly approaches the outermost parameter

that separates an acceptable application from one

that ‘shocks the conscience.” App. 43a.

After the release of the decision of the Appeals

Court, Revere duly sought further appellate review

from the Supreme Judicial Court for the

Commonwealth. The Supreme Judicial Court denied

Revere’s application for further review on September

28, 2006. App. E.

REASONS FOR GRANTING THE WRIT

This petition raises two important issues for

resolution. The first issue is whether an exorbitant

fee petition must be considered and pared down by

the Court rather than disallowed in its entirety. The

decision of the Appeals Court, in line with the Fourth

Circuit, but contrary to the First, Seventh, and

District of Columbia Circuits, requires that a fee

petition “shock the conscience” of the court before it

could be disallowed. This standard sets the bar too

high, and would deprive the courts of a useful remedy

when dealing with unduly excessive fee requests.

The second issue is whether a municipal zoning

ordinance may effectively bar all adult video stores in

the community where there is no net impact on

speech because the adult videos are readily available

from other sources in the community. The resolution

of the Massachusetts courts, denying the community

the right to so restrict adult video stores, is contrary

to the teachings of Renton . Playtime Theatres, Inc.,

475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986) and

its progeny. If permitted to stand, it will have the

effect of requiring communities to create space for

adult video stores in their communities. To

demonstrate that the holding of the Appeals Court is a

distortion of Renton, this Court should grant

certiorari.

I, THE “SHOCK THE CONSCIENCE” STANDARD

CONFLICTS WITH OPINIONS OF MOST OF THE

CIRCUIT COURTS

In its decision, the Appeals Court recognized that

T&D had filed an “excessive” and “overreaching” fee

application with the lower court. Yet it declined to

deny all fees to T&D because it concluded that T&D’s

application did not rise to the level of a petition that

would “shock the conscience” of the Court. This

standard is too onerous, does not conform with the

spirit of prior decisions of this Court, and conflicts

with decisions of other federal courts of appeal

considering this issue.

This Court’s opinion in Hensley v. Eckerhart, 461

U.S. 424, 103 S.Ct. 1933, 76 L.E.2d 40 (1983),

established the essential principles with which to

evaluate fee applications under 42 U.S.C. Section

1988. Under Hensley, a “prevailing plaintiff ‘should

ordinarily recover an attorney’s fee unless special

circumstances would render such an award unjust.”

Id., 461 U.S. at 429. The amount of the fee should be

initially calculated based upon the number of hours

reasonably expended multiplied by a _ reasonable

hourly rate. “Counsel for the prevailing party should

make a good-faith effort to exclude from a fee request

hours that are excessive, redundant, or otherwise

unnecessary, just as a lawyer in private practice

ethically is obligated to exclude such hours from his

fee submission.” The critical element in any fee

application is the exercise of “billing judgment,” as

“hours that are not properly billed to one’s client also

are not properly billed to one’s adversary pursuant to

statutory authority.” Id. at 434, quoting from

Copeland v. Marshall, 205 U.S.App.D.C. 390, 401, 641

F.2d 880, 891 (1980)(en banc)(emphasis in original).

Hensley did not specify what the remedy would be

if a fee petition were to be submitted that

demonstrated a total lack of billing judgment. In this

case, although the Appeals Court acknowledged that

T&D Video’s application was outrageously inflated, it

refused to deny the application altogether because it

did not “shock the conscience” of the court. This

resolution is in conflict with the spirit of Hensley and

with the holdings of various circuits that have

considered the question.

No other circuit, aside from the Fourth Circuit, has

held to this stringent standard. For example, in

Brown v. Stackler, 612 F.2d 1057 (7 Cir. 1980), the

Seventh Circuit held that it was appropriate for a

District Court to deny all fees to an applicant that had

submitted an “intolerably inflated” fee application. Id.

at 1057. The Seventh Circuit explained its reasoning

as follows:

Where, as here, the claim is obviously inflated

to an intolerable degree, the remedy is plain,

and the District Court properly pursued it. If,

as appellant argues, the Court were required

to award a reasonable fee when an

outrageously unreasonable one has been

asked for, claimants would be encouraged to

make unreasonable demands, knowirig that

the only unfavorable consequence of such

misconduct would be reduction of their fee to

what they should have asked for in the first

place.

Accord, Lewis v. Kendrick, 944 F.2d 949, 959 (1st Cir.

1991)(“A request for attorneys fees is required to be in

good faith and in reasonable compliance with judicial

pronouncements, and not an opening gambit in

negotiations to reach an ultimate result. The statute

gives us discretion, 42 U.S.C. §1988, and the

departure here was too extreme to be tolerated”).

Jordan v. United States Department of Justice, 691

F.2d 514 (D.C. Cir. 1982)(Fee application may be

denied in its entirety if manifestly inadequate, “grossly

and intolerably exaggerated, or manifestly filed in bad

faith”). Environmental Defense Fund, Inc. v. Reilly, 1

F.3d 1254, 1258-1260 (D.C.Cir. 1993)(“Outrageously

unreasonable” fee request may be denied in its

entirety).

Even where the decisions of the circuit courts have

permitted a fee recovery, the courts have generally

articulated the legal standard in the same manner as

in Brown, Lewis, Jordan, and Environmental Defense

Fund, supra. For example, in Case v. Unified School

District No. 233, 157 F.3d 1243 (10 Cir. 1998), the

Tenth Circuit Court of Appeals noted that a court had

the authority to deny an “outrageously excessive” fee

request in its entirety. Accord, Loranger v. Stierheim,

10 F.3d 776, 782 n.8 (11 Cir. 1994)(Other circuits

have denied “a request for attorney's fees in its

entirety when” the request is “outrageously

unreasonable”). In each instance, the court, while

noting the punitive effect of such a ruling, expressed

approval for the rule in order to deter the filing of

outrageous fee requests. In those particular cases,

the fees requested, while excessive, did not rise to the

level required to warrant denial of all fees.

Only the Fourth Circuit has adhered to the “shock

the conscience” standard as a basis for denying all

fees. In Fair Housing Council of Greater Washington v.

Landow, 999 F.2d 92, 96-97 (4 Cir. 1993), the Court

expressly held that the “shock the conscience”

standard was the basis for a decision to deny all fees.

As the Landow court stated, “[Wle hold that a district

court may, in its discretion, deny a request for

attorneys’ fees in its entirety when the request,

submitted pursuant to 42 U.S.C. §1988 is so

outrageously excessive it ‘shocks the conscience of

the court.”

Although the decision to deny all fees is

undoubtedly limited to special circumstances, to

restrict the exercise of discretion to situations in

which the conscience of the court is “shocked” unduly

limits an appropriate sanction.? In cases such as this

one, courts must exercise the power to deny grossly

inflated fee petitions. Particularly where the ultimate

fee award is rendered against a public authority (and

the taxpaying public), courts must take particular

care to ensure that counsel for prevailing parties do

not overreach. The most effective deterrent to prevent

2 The “shock the conscience standard is the one used to

determine violations of substantive due process. See e.g. Rochin v.

California, 342 U.S. 165, 72 S.Ct.205, 96 L.Ed.183 (1952);

Breithaupt v. Abram, 352 U.S. 432, 77 S.Ct.408, 1 L.Ed.2d 448

(1957); Chavez v. Martinez, 538 U.S. 760, 123 S.Ct. 1994, 155

L.Ed.2d 984 (2003). This standard is an extremely high one,

appropriate for application to substantive due process claims, but

ill-fitting when applied to attorneys fee petitions. As in this case, a

fee application may be exorbitant and grossly excessive but simply

does not “shock the conscience” of the court.

unreasonable requests is the ability to deny all fees.

This Court should therefore grant certiorari to resolve

the conflict among the circuits and ensure that the

ability to deny all fees, although perhaps used

sparingly, is in fact available to defeat an exorbitant

fee application.

Il. THE DECISION OF THE APPEALS COURT FAILS

TO FOLLOW THE TEACHINGS OF THIS COURT

T&D was only a prevailing party, and therefore

entitled to file an application for attorneys fees, by

virtue of the decision of the Court holding that the

Revere Adult Use Ordinance was unconstitutional as

an unlawful suppression of speech. This conclusion

fails to follow the applicable First Amendment

jurisprudence of this Court.

The undisputed evidence in the record shows that

the adult videos like the ones sold by T&D were

readily available at conventional video store outlets.

Tr. 43. The record evidence also shows that the

videos were readily available from other sources,

including the _ internet. Exh. 112-114. This

availability demonstrates that there are reasonable

alternative avenues of communication sufficient to

satisfy the prevailing rule of law contained in Renton

v. Playtime Theatres, Inc., 475 U.S. 41 (1986).

The evidence in the record, all of which was

adduced by T&D, was that there were at least four

other outlets in Revere that stocked the same adult

videos as T&D. Tr. 43. One such store, Video Craze,

had approximately twice the inventory of adult videos

as T&D. Tr. 48. These videos were essentially the

same as the ones sold by T&D, and were purchased

from the same distributors. The difference was that

these other outlets featured adult videos as a small

portion of their overall inventory, as opposed to T&D,

which only sold adult videos. Tr. 42-52.

Since the adult videos were available through

conventional video stores, the ordinance has the effect

of eliminating unwanted secondary effects of adult

video stores, without diminishing the availability of

speech. :

For First Amendment purposes, it is immaterial if

the video is available for purchase from a conventional

video store, as opposed to an “adult” video store. So

long as the speech is available, the First Amendment

interests are satisfied. Viewed in this light, the Revere

Ordinance is simply a form of business regulation,

similar in effect to the one in Young v. American Mini

Theatres, 427 U.S. 50 (1976). In Young, the City

sought to separate adult theaters rather than have

them concentrated. In this case, the ordinance

sought to have adult videos sold, if at all, in the

context of a conventional video store, as opposed to

an all adult video store. This solution is a rational

one directed at the very problem illustrated in this

case by T&D’s business neighbor. After T&D moved

in, the adjoining business, a customs broker,

breached its lease for the space next to T&D and

moved rather than have to do business next to T&D.

Tr. 615-619. The all adult video store brings with it

these type of secondary effects, such as driving away

other businesses that do not want to locate near such

a use. The conventional video store suffers no such

difficulties. There is no suppression of speech, as the

videos are readily available elsewhere in the city.

There is also no net effect on speech, as the volume of

videos available does not suffer by confining them to

conventional video stores. There is no First

Amendment guarantee that adult video stores must

be permitted to exist, where the videos are readily

available from other sources.

This principle was demonstrated by the Court of

Appeals for the First Circuit in Globe Newspaper Co. v.

Beacon Hill Architectural Commission, 100 F.3d 175

(1st Cir. 1996). In Globe, the Commission issued

regulations that barred the newspaper company from

selling papers from street coin operated news racks.

While noting that the news racks were an efficient and

cost-effective method of distributing the papers, the

Court held that the regulation was constitutionally

valid. Even though the regulation banned the street

news rack form of distribution in its entirety, there

were ample other methods available to the paper to

have its product distributed.

This rule has direct application to this case,

notwithstanding the decision of the Appeals Court.

This is not a case, as suggested by the Appeals Court

in footnote 8, App. 39a, that Revere is infringing on

“the constitutional right of the plaintiff to speak in a

particular way on the theory that others are delivering

similar speech in a manner more to the government's

liking.” It is the essence of every time, place and

manner restriction that government restricts speech.

See e.g. Ward v. Rock Against Racism, 491 U.S. 781,

802 (1989). With its ordinance, Revere was enacting a

time, place and manner restriction to further its

substantial governmental interests in limiting the

severe adverse secondary effects of adult

entertainments. Renton gives Revere the right to do

so, even if the ultimate effect is some restriction on

speech. Although the ordinance would curtail T&D's

operation, the same adult videos are readily available

for sale, consistent with the provisions of the zoning

ordinance, at numerous locations throughout Revere.

Accordingly, there is no net adverse effect on speech.

In these circumstances, the requirement that there be

reasonable alternative avenues of communication is

satisfied, and the ordinance should be upheld under

Renton principles.

If permitted to stand, the decision of the Appeals

Court will mandate that every community make land

available for an adult video use. This Court’s cases

require no such result. To establish the principle that

municipalities do not have to make special allowances

for adult video stores, where the videos are otherwise

readily available in the community, this Court should

grant certiorari to review the decision of the Appeals

Court.

CONCLUSION

For each of these reasons, the Petition for Writ of

Certiorari should be granted.

Respectfully submitted,

Ira H. Zaleznik

Lawson & Weitzen, LLP

88 Black Falcon Avenue

Suite 345

Boston, MA 02210

(617) 439-4990

Dated: December 27, 2006

ate ie

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APPENDIX TABLE OF CONTENTS

APPENDIX A

Findings of Fact, Rulings of Law, and

Judgement of the Suffolk Superior

Court, dated October 23, 2002 ........... la

APPENDIX B

Memorandum of Decision and Order on

Plaintiffs Petition for Attorney's

Fees and Costs of the Suffolk

Superior Court, dated February 9,

|| EISEN MERON gE Oe ee Ma ET LY MN Te feds Ce 12a

APPENDIX C

Opinion in T & D Video, Inc. v. City of

Revere & others, 66 Mass. App.

Cy, IIE SE seciriineesttnscrecstasinrensnsnese 26a

APPENDIX D

Notice of Docket Entry and Order of the

Appeals Court, dated September

is AEE. idadesitbnnaciinaadanminnsansionginaeeseiile 54a

APPENDIX E

Notice of Denial of F.A.R. Application of

the Supreme Judicial Court, dated

September 28, 2006 .............. Sree 08a

APPENDIX F

Notice of Limited Allowance of

Application for Further Appellate

Review and Order of the Supreme

Judicial Court, dated December

BK, NEE cidisvacatinaertediss aathdooss caovasiaes 59a

APPENDIX A

COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, ss. SUPERIOR COURT DEPARTMENT

CIVIL ACTION NO. 94-6216A

T & D VIDEO, INC.

d/b/a MOONLITE READER

. a

THE CITY OF REVERE, MASSACHUSETTS,

THE ZONING BOARD OF APPEALS OF

THE CITY OF REVERE, MASSACHUSETTS,

EDWARD ELFMAN, as Chairman of the

Zoning Board of Appeals of Revere,

ALFRED BUCCILLI, as Member of the

Zoning Board of Appeals of Revere,

ANTHONY GIANNINO, as Member of the

Zoning Board of Appeals of Revere,

PETER LATTANZI, as Member of the

Zoning Board of Appeals of Revere,

JOHN J. VERRENGIA, as Member of the

Zoning Board of Appeals of Revere, and

JOSEPH FERRUZZI, as Building Inspector

of Revere

FINDINGS OF FACT, RULINGS OF LAW, AND

JUDGEMENT

FINDINGS OF RELEVANT FACTS

B In September, 1993, T&D Video, Inc., d/b/a

Moonlite Reader (T&D") signed a lease and

began preparations to open an adult video store

at 55 American Legion Highway, Revere.

NEE Ne eT

On September 14, 1993, Thaddeus Drabkowski

and Mr. Del Paone, the principals and sole

shareholders of T&D, went to the Office of the

City Clerk of Defendant City of Revere to

complete a business certificate for T&D.

The person then working the permitting desk in

the City Clerk’s Office informed Messrs.

Drabkowski and Paone that, before any

certificate could issue, they needed to go to the

City Solicitor’s office to complete a form

pertaining to the operation of video stores in

Revere.

Particularly, Mr. Dabrowski was thereupon told

by representatives of Revere that the business

certificate would not be granted unless he

signed an “agreement” stating that no adult

videos or related materials would be sold at the

store.

Mr. Drabkowski refused to sign the proffered

“agreement”, but Mr. Dabrowski was ultimately

issued a Business Certificate.

On September 16, 1993, the Mayor of Revere,

Robert J. Haas, Jr., sent to the Revere City

Council a proposed “Adult Entertainment”

amendment to the Revere Zoning Ordinance

which ultimately was enacted as Sections

17.08.065 through 17.08.069 and Section

17.16.045 of the Ordinance.

The Adult Entertainment Ordinance was

drafted by the City Planner, Mr. Frank Stringi,

in response to community concerns about adult

entertainment uses gravitating to Revere with

the demise of the adult entertainment district --

“the Combat Zone”-- in Boston.

-_—

In drafting the 1993 Revere adult use zoning

ordinance, Mr. Stringi considered Revere’s prior

experience with adult uses, and the adverse

impact upon the City and its residential

neighborhoods. The 1993 Ordinance imposed

regulations on various types of adult

entertainment, including “Adult Entertainment

Establishments, adult bookstore[{s], adult

videostore[s], adult motion picture theater(s],

and advertisement signs or devices.”

In purporting to regulate the various types of

adult entertainment, including “Adult

Entertainment Establishments, adult

bookstore[s], adult videostore[s], adult motion

picture theater|s], and advertisement signs or

devices,” the 1993 ordinance provided operation

of these establishments would be allowed by

special permit in the General Industrial District

only, and only if all of the following minimum

criteria were met:

“A. [The establishments] may not be

located less than 1000 (one

thousand) feet from the nearest lot

line of: each other; public or

private nursery schools; public or

private day care centers; public or

private kindergartens; public or

private elementary schools; public

or private secondary _ schools;

playgrounds; parks; conservation

areas; churches; residential uses;

and residential districts.

B. A 30-foot landscaped strip shall

be provided along the property

line fronting a public or private

way.

10.

11.

12.

oe [The establishments] are to be

limited to lots greater than 25,000

and not more than 40,000 square

feet.

D. [The establishments] may not be

allowed in a multi-use building or

building containing other retail or

consumer uses.

E. [The establishments] shall not be

located within 100 ft. of a public

or private way and must be set

back a minimum of 100 ft. from

all property lines.

F. No adult use advertising sign shall

contain any moving, flashing or

animated lights, or visible moving

or movable parts.”

Through the geometric interplay of the lot size

restrictions and set-back restrictions under the

1993 Ordinance, no adult use whatsoever could

lawfully be located anywhere in Revere,

[Assuming the maximum lot size of 40,000

square feet in a 200 feet by 200 feet

configuration, the required set back of 100 feet

from all property lines would leave no area on

which to locate a _ structure housing the

business. ]

After renovation of the premises at 55 American

Legion Highway was largely complete, in August

of 1994, T&D came forward to reveal its plans

to operate an adult video, book, and

paraphernalia retail store:

On September 1, 1994, when told of the use

planned for the store, Mr. Joseph Ferruzzi, the

13.

14.

15.

16.

17.

Building Inspector, denied T&D's application for

a sign permit, and told T&D it could not operate

an adult use at the premises in conformity with

the requirements of the zoning ordinance.

Among other “violations”, T&D's location was

within 1000 feet of the Revere High School and

residential areas, as well as being outside of the

industrial district.

After Mr. Ferruzzi, the Building Inspector,

denied its application, T & D filed an appeal

from the decision to the Revere Board of

Appeals in: accordance’ with statutory

procedure.

The Board of Appeal held hearings on the

appeal on October 26 and November 30, 1994,

and filed its decision with the City Clerk on

December 6, 1994.

In its decision, the Board of Appeal noted, inter

alia, that T&D could not operate a store in

compliance with the zoning ordinance in that it

was located in the wrong zone, within 1000 feet

of the High School and surrounding residential

areas, and in a “multi-use” district.

During the course of the proceedings before the

Board of Appeal, T & D commenced this action

in Superior Court to exempt itself from the

application of the Adult Use Ordinance.

On January 30, 1995, Councillor Stephen

Colarossi circulated a draft ordinance which

had the effect of substantially revising the

provisions of the 1993 Ordinance.

On March 6, 1995 the Revere City Council

deleted the 100-foot set-back provision.

19.

20.

21.

22.

On May 1, 1995, The City Council repealed the

original, (1993), Adult Entertainment

Ordinance and substituted in its place Mr

Colarossi's draft ordinance.

The 1995 Ordinance, currently in effect, limits

all adult uses to the General Industrial District

(now called the Technology Enterprise District),

and requires the granting of a special permit for

an adult use. The 1995 Ordinance lowered the

set-back requirement to the 50 and 35 feet

standards in the so-called “GI District,” and

revised the lot size restriction to 16,000-66,000

square feet. As did the 1993 Ordinance, the

1995 Ordinance requires all adult uses to be

1,000 feet or more from each other, as well as

all churches, schools, parks, playgrounds,

conservation areas, residential uses, and

residential districts.

All but one of the potential sites for adult use in

the GI District either do not meet the lot size

requirements of the 1995 Ordinance, are

otherwise eliminated by the 1,000 foot

dispersion requirements and the _ set-back

requirements of the district, or by

environmental regulation. The only location

that conceptually meets all requirements, 41

Lee Burbank Highway is the subject of past and

present petroleum contamination, and is part of

a larger parcel owned by Gibbs Oil Company,

presently not-subdivided, and which contains

large petroleum tanks. The Court finds this

location patently unsuitable for the operation of

a retail, non-petroleum product-related

business.

23.

24.

25.

26.

The court specifically credits the testimonies of

Mr. Jonathan Witten and Mr. R. Bruce

Mclaughlin, both qualified as experts in zoning

matters and urban planning, to the penultimate

effect that the 1995 Ordinance effectively

excluded T&D Video from operation within the

C District.

Specifically, the court credits the testimony of

Mr. Witten, accepted as an expert in zoning

matters, who stated the adult use restriction to

the general industrial zone and the prohibitions

provided in the sub-parts of the ordinances

foreclosed the possibility of locating an adult

use anywhere in the city, with the exception of

41 Lee Burbank Highway, which Mr. Witten

found to be in all likelihood oil-contaminated.

Specifically, as dispositive of the issue, the

court credits Mr. Whitten’s affirmative response

to the court’s question; “So what you're saying

is that under the [old and new] zoning laws

there is nothing in the northerly or southerly

districts that is suitable with the potential

exception theoretically of4l1 Lee Burbank

Highway, which you find to be deficient for

other reasons?”

The court further credits the uncontroverted

testimony of Mr. R. Bruce Mclaughlin to the

effect that, never in his review of hundreds of

city and town zoning laws had he encountered

such minimum and maximum lot size

requirements as those contained in the Revere

ordinance.

RULINGS OF LAW

“Regulations enacted for the purpose of

restraining speech on the basis of its content

presumptively violate the First Amendment.”

City of Renton v. Playtime Theatres, Inc., 475

U.S. 41, 47 (1986). In the present case, a

Revere city employee told Drabkowski that,

before the city would issue a_ business

certificate, he would have to fill out a form

stating that no adult videos or related materials

would be sold at his store. Such a form is a

prior restraint on speech and violates the First

Amendment. Id.

Revere's revision of the 1993 zoning ordinance

has not rendered the controversy concerning

the enforcement of that ordinance against T&D

video moot. See City of Richmond v. J.A.

Croson, 488 U.S. 469, 478 N.1 (1989) (holding

expiration of ordinance does not render

controversy moot where ordinance’s legality

that city enforced against appellee was in

question). Revere's reliance on DHL associates

Inc. v. O'Gorman, 199 F.3d 50 (1st circuit 1999)

to bolster its mootness argument is misplaced.

In DHL, the plaintiff could never allege damages

from the expired ordinances because the City

never enforced the ordinances against the

plaintiff. Id. at 54. In the instant case, Revere

did attempt enforcement of the 1993 Ordinance

when, on September 1, 1994, the city refused

T&D's sign permit application and notified T&D

that the 1993 Ordinance forbade the proposed

adult use of its store. Therefore, because a live

controversy then existed between the parties

over whether Revere's refusal to grant a permit

pursuant to the ordinance was unlawful and

thus entitled T&D to injunctive relief and

damages, the action is not moot. See City of

Richmond v. J.A. Croson, supra at 478.

T&D Video has a constitutionally protected

right to engage in the sale of non-obscene

“adult” video tapes. T&D Video. Inc. v. City of

Revere, 423 Mass. 577, 580 (1996). Counsel for

both sides forcefully and ably presented at trial

detailed and focused evidence on the issue of

the City’s “intent” in enacting the Ordinances in

question - i.e. whether this court should view

the Ordinances as patent prior restraint on

speech or merely content-neutral time, place

and manner regulation of adult entertainment.

. . . enactment of the 1993 Ordinance, on

September 16, 1993, two days after T&D

sought a business certificate, evidences

Revere’s intention to single out T&D. See 754

Orange Ave., Inc v. City of West Haven, 761

F.2d 105,113 (294 Cir. 1985).

. . although concededly “content-neutral” [see,

e.g., City of Los Angeles v. Alameda Books, Inc.,

122 S. Ct. 1728 (2002) alternative avenues of

communication of adult-based content

unavailable, and not as a reasonable so-called

“time, place, and manner restriction.” See

Schad v. Borough of Mt. Ephraim, 452 U.S. 61,

76 (1981). See also City of Los Angeles v.

Alemeda Books Inc., supra, at 1737.

Because the Revere Ordinances left no such

reasonable alternative avenues of

communication available, the court does not

address the issue, ably contested by both

counsel, of whether the secondary effects upon

the community of T&D Video's adult video (and

associated use) store was primary in the

motivation of the City of Revere in passing the

Ordinances in question. See Renton v. Playtime

10a

Theatres, Inc., supra at 50 (holding that

content-neutral adult theater zoning ordinance

must allow for reasonable alternative avenues

of communication).

5. Additionally, the site of 41 Lee Burbank

Highway is not a reasonable alternative for T&D

Video’s operations. See Topanga Press, Inc. v.

City of Los Angeles, 989 F.2d 1524, 1532 (9th

Cir. 1993) (finding area of oil refinery and area

occupied by gas_ storage tanks_ properly

excluded under Renton as__ reasonable

alternative site); see also Basiardanes v. City of

Galvaston, 682 F.2d 1203, 1214 (5th Cir. 1982)

(ordinance an effective ban where theaters

restricted to most unattractive, inaccessible

and inconvenient areas of city).

6. Lastly, evidence that the public may be able to

obtain adult videos in conventional video stores

does not abrogate T&D Video's rights to

compete in the so-called “adult video” business

in Revere. “One is not to have the exercise of his

liberty of expression in appropriate places

abridged on the plea that it maybe exercised in

some other place.” Schad v. Borough of Mt.

Ephraim, 452 U.S. 61, 76-77 (1981); quoting

Schneider v. State, 308 U.S. 147, 163 (1939).

JUDGMENT

It is therefore ORDERED that Judgment enter

for the Plaintiff in this action, and that Defendants be

and they hereby are permanently enjoined from

enforcement of the existing Sections 17.08.065

through 17.08.069 (or as the same may have been

amended) of the 1995 Zoning Ordinance of the City of

Revere against the Plaintiff. A hearing on an

Assessment of Damages, including attorneys’ fees and

lla

costs in the necessary prosecution of this action, may

be scheduled by the Plaintiff before the undersigned.

/s/ Ernest B. Murphy, J.

Ernest B. Murphy, J.

Associate Justice

DATED: October 23, 2002

12a

APPENDIX B

COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, ss. SUPERIOR COURT

CIVIL ACTION

C.A. No. 94-6216A

T & D VIDEO, INC.

d/b/a MOONLITE READER,

vs.

THE CITY OF REVERE, MASSACHUSETTS &

OTHERS!

MEMORANDUM OF DECISION AND ORDER ON

PLAINTIFF'S PETITION FOR ATTORNEYS’ FEES

AND COSTS

On September 14, 1993, plaintiff T&D Video

(“T&D”) applied to defendant City of Revere to build

out and operate an adult video store in Revere.

Consequently, the City of Revere implemented zoning

ordinances restricting adult entertainment to a certain

district and requiring conformity with set-back, space

and location provisions. Citing the zoning ordinance

as a violation of T&D’s First Amendment rights,

pursuant to 42 U.S.C. § 1983 and G. Lec. 12, §11H,

T&D filed for injunctive relief against the City of

Revere seeking to enjoin it from enforcing the

' The Zoning Board of Appeals of the City of Revere,

Massachusetts, Edward Elfman, as Chairman of the Zoning Board

of Appeals of Revere; Alfred Buccilli, Anthony Giannino, Peter

Lattanzi, John J. Verrengia, as members of the Zoning Board of

Appeals of Revere; and Joseph Ferruzzi, as Building Inspector of

Revere.

13a

ordinance.2 On Oct. 23, 2002, the court entered

judgment for T&D, thereby permanently enjoining the

City of Revere from enforcing the adult use zoning

ordinance because it constituted an unconstitutional

prior restraint on speech.

T&D now files this petition seeking an award,

as provided by 42 U.S.C. § 1988 and G. L. c. 12, § 111,

for attorneys’ fees and costs associated with the

prosecution of its complaint against the City of Revere.

T&D contends that the City of Revere owes it

$1,209,585.33 in attorneys’ fees and costs.3 The City

of Revere opposes the petition, arguing that the

amount T&D seeks is either so egregiously

disproportionate to the reasonable fees and costs

required for the prosecution of the matter that the

court should deny the petition in its entirety, or,

alternatively, that the Court reduce the amount

sought substantially, suggesting an award of

$50,000.00 to be appropriate.

BACKGROUND

In September 1993, T&D signed a lease and

prepared to open an adult video store at 55 American

Legion Highway, Revere, Massachusetts. T&D's

principals sought a business certificate from the Office

of the City Clerk of Revere (“Clerk”). A Clerk employee

informed T&D's principals that they would first need

to go to the City Solicitors Office to complete a video

store business form. Upon T&D’s return, the Clerk's

office requested that T&D’s principals sign an

agreement stating that they would not sell adult

2 T & D Video, Inc. v. City of Revere & others, 423 Mass.

577 (1996) (affirming that the Superior Court judge did not abuse

her discretion when she issued a preliminary injunction).

3 Attorneys fees total $1,093,626.00; out of pocket

expenses total $67,037.77; and expert fees total $48,921.56.

14a

videos or other adult related material. T&D refused to

sign the agreement but the Clerk nonetheless issued

the business certificate. On September 16, 1993, the

Mayor of Revere, Robert J. Haas, Jr., proposed an

Adult Entertainment amendment to the Revere Zoning

Ordinance. The 1993 Ordinance imposed regulations

on various types of adult entertainment.

Once T&D completed renovation, T&D revealed

its intention to operate an adult video. book and

paraphernalia retail store. Upon review, the Building

Inspector denied T&D’s application for a sign permit

and informed T&D that its proposed business use

failed to conform with the new zoning ordinance

requirements. After denial of its application, T&D filed

an appeal to the Revere Board of Appeals. On October

26 and November 30, 1994 the Board held hearings

and subsequently found that T&D’s adult video store

failed to comply with zoning ordinance requirements.5

On January 30, 1995, Revere City Councilor

Stephen Colarossi circulated a draft ordinance, which

revised the 1993 Ordinance by eliminating certain

restrictions. The City Council repealed the 1993

Ordinance and adopted the revised 1995 Ordinance.

The 1995 Ordinance lowered’ the set-back

requirements and revised the lot size restrictions.

Other restrictions, however, remained in force.

Expert testimony indicated that the 1995

Ordinance essentially restricted adult entertainment

venues to a single location, which was unsuitable for a

4 The regulations required that adult entertainment

establishments could operate only by special permit in the General

Industrial District and only if it satisfied certain size and location

conditions.

5 During the proceedings, T&D commenced an action in

Superior Court to exempt itself from the application of the Adult

Use Ordinance.

15a

variety of reasons. T&D filed for injunctive relief

claiming that the zoning ordinance violated 42 U.S.C.

§ 1983 and G. L. c. 12, § 11H because it did not leave

any alternative outlet for its speech. The court

(Murphy, J.) permanently enjoined the City of Revere

from enforcing its provisions, finding that the zoning

ordinance was unconstitutional. In accordance with

42 U.S.C. § 1988 and G. L. c. 12, 111, T&D filed this

petition seeking attorneys’ fees and costs associated

with the prosecution of its complaint against the City

of Revere.

DISCUSSION

Section 1988 of 42 U.S.C., authorizes judges in

their discretion to award reasonable attorneys’ fees to

a prevailing party to any action to enforce a provision

of § 1983.6 42 U.S.C. § 1988; Perini Corp. v. Comm’r

of Revenue, 419 Mass, 763, 772, cert denied, 516 U.S.

822 (1995). This statutory provision endeavors to

promote civil rights enforcement and to deter

violations of civil rights by encouraging private

lawsuits against civil rights abuses. Lincoln St. Realty

Co. v. Green, 374 Mass. 630 (1978). The statute

entitles the petitioner to an award for attorneys’ fees

when the court finds that the petitioner is the

prevailing party and the court exercises its

discretionary authority to award fees in_ the

6 In cases brought under 42 U.S.C. § 1983, though the fee

award language of § 1988 states “the court, in its discretion, may

allow the prevailing party . . . a reasonable attorney's fee as part of

the costs” awards in favor of prevailing civil rights plaintiffs are

essentially obligatory. Gay Officers Action League v. Puerto Rico,

247 F.3d 288, 293 (Ist Cir. 2001). Federal and state civil rights

statutes both include parallel provisions for an award of attorneys

fecs and costs. 42 U.S.C. § 1988; G. L. c. 12, § 111. Unlike the

discretionary language of 42 U.S.C. § 1988, the language in the

Massachusetts Civil Rights Act, G. L. c. 12, § 111, mandates that

the prevailing party receive an award for reasonable attorneys’ fees

and costs. Davignon v. Clemmey, 176 F. Supp. 2d 77, 94 (D.

Mass. 2001).

16a

petitioner's favor. Draper v. Town Clerk of Greenfield,

384 Mass. 444 (1981), cert. denied, sub. nom. Draper

v. Prescott, 456 U.S. 947 (1982). For the purposes of

1988, the court deems the party a “prevailing party”

when it “succeeds on any significant issue in litigation

which achieves some of the benefit the [party] sought

in bringing suit.” Nadeau v. Helgemoe, 581 F.2d 275,

278-279 (1st Cir. 1978).

The party applying for attorneys’ fees must first

establish its status as the prevailing party.” Draper,

384 Mass. at 452. The court considers the applicant

the “prevailing party” if it “succeeds on any significant

issue in litigation which achieves some of the benefit

the [party] sought in bringing suit.” Id. at 453. Here,

T&D satisfies its status as the prevailing party

because this court permanently enjoined the City of

Revere from enforcing its Adult Zoning Ordinance,

which effectively enabled T&D to open its adult video

store.

Denying the Petition Due To Its Outrageous and

Unreasonable Claim

Once the plaintiff establishes its status as the

prevailing party, as T&D does here, the court's

discretion to deny attorneys’ fees and costs is

“extremely narrow.” Espino v. Besteiro, 708 F.2d

1002, 1005 (5th Cir. 1983). The court should award

attorneys’ fees and costs, pursuant to § 1988, as a

matter of course unless special circumstances exist

that would render the award unjust. Johnson v.

Comm 'r_of Pub. Welfare, 419 Mass. 185, 191 (1994)

(stating that a judge's discretion to deny fees is limited

and the prevailing party should ordinarily recover

attorneys’ fees unless special circumstances render

such award unjust).

17a

The City of Revere argues that the court should

use its discretion to deny T&D's petition in its entirety

because it reflects a total lack of billing judgment and

is grossly excessive. In applying 42 U.S.C. § 1988 for

an award of attorneys’ fees and costs, the court has

the discretion to deny an entire fee request if the fee

request is “so exorbitant as to shock the conscience of

the court... .” Sun Publ’g Co., Inc. v. Mecklenburg

News, Inc., 823 F.2d 818, 819 (4th Cir. 1987). This

extreme remedy seeks to curtail a prevailing party's

unethical practice of knowingly submitting an

outrageously excessive fee petition as a negotiating

strategem “in the hope that the court would award at

least some, preferably high, percentage of the

requested fee.” Fair Hous. Council of Greater Wash. v.

Landow, 999 F.2d 92, 98 (4th Cir. 1993).

Federal courts have denied attorneys’ fee

awards when the court deemed the prevailing party’s

petition as excessive or egregious. See, e.g., Scham v.

Dist. Courts Trying Criminal Cases, 148 F.3d 554 (5th

Cir. 1998); Fair Hous. Council of Greater Wash., 999

F.2d at 92: Lewis v. Kendrick, 944 F.2d 949, 958 (lst

Cir. 1991); Brown v. Stackler, 612 F.2d 1057, 1059

(7th Cir. 1980). In these cases, the court was able to

articulate special circumstances, which rendered the

award unjust. The facts in the present case, however,

do not warrant the court using its discretionary

authority to deny attorneys’ fees because _ the

application of the petitioners falls far short of a

“special circumstance” contemplated by the “striking”

cases.

The court distinguishes the case at bar from

the proffered cases by highlighting important

differences. In Scham, the court found that the

prevailing party's counsels status as a_ solo

practitioner with one year experience neither justified

his $350 per hour billing rate, nor explain his

enhanced $750 per hour rate. Scham, 148 F.3d at

18a

557. In contrast, T&D’s lead counsel Attorney Glenn

Alberich’s billing rate, ranging over the course of ten

years from $250 to $400 per hour, is not an

inordinate rate for a large Boston law firm employing

attorneys who have twenty-five years of legal

experience. Similarly, in Fair Hous. Council of Greater

Wash., the court found that the prevailing party's

counsel failed to exclude fees attributable to

unsuccessful claims and that counsel's submitted

time records were “woefully inadequate.” 999 F.2d at

97. Conversely, T&D'’s counsel received a favorable

disposition on its only claim. Additionally, T&D's

computer-generated time records, if anything, were

overly replete with the minutes description of services

rendered.

Considering that T&D hired experienced First

Amendment counsel from large Boston law firm and

who participated in nearly ten years of prolonged

administrative proceedings and litigation, the court

finds that the content of the petition for attorneys fees

and costs neither rises to the level of a “special

circumstance” requiring total disallowance, nor does it

shock the conscience of the court.” Sun Publ’g Co.,

Inc., 823 F.2d at 819.

The City of Revere alternatively argues that if

the court opts not to use its discretion to deny T&D's

petition, this court should at least reduce the award.

The court now analyzes the reasonableness of T&D's

petition to determine if it is a fair and just award.

Reducing the Amount Sought in the Petition

The City of Revere (“Revere”) first argues that

this court should reduce the award because T&D's

attorneys failed adequately to justify their billable

rates. To support its assertion Revere cites Attorney

Glenn Alberich's alleged failure to explain his

19a

justification for increasing his hourly billing rate from

$250 per hour to $400 per hour. Similarly, Revere

contends that T&D failed to explain or justify hourly

billing rates for other attorneys who worked on this

case.

The fee applicant bears the burden of

documenting the applicable hourly rate. Guckenberger

v. Boston Univ., 8 F. Supp. 2d 91, 107 (D. Mass.

1998) (citing Missouri v. Jenkins, 491 U.S. 274, 286-

287 (1989). Counsel requesting attorneys’ fees must

establish that their billable rates are in conformity

with community market rates. Student Pub. Interest

Researce Group v. AT&T Bell Lab., 842 F.2d 1436,

1450 (3d Cir. 1988). An attorney may establish the

community market rate by simply submitting

affidavits from a number of attorneys who live in the

community and possess comparable qualifications

and skill.” Id.

In the present case, T&D’s counsel submitted

affidavits from Attorneys Anthony M. Doniger and

Kenneth H. Tatarian establishing the community rate

standard for civil rights and constitutional rights

attorneys. Attorney Doniger stated that the prevailing

rate in complex civil litigation cases for attorneys who

have Attorney Alberich’s legal experience ranged from

$375 to $500 per hour, while Attorney Tatarian stated

that the prevailing rate, in 1994, ranged from $200 to

$400 per hour. Countering, Revere cites case law

indicating that $200 per hour is a reasonable rate.

Martino v. Mass. Bay Transp. Auth., 230 F. Supp. 2d

195, 205 (D. Mass. 2002).

Revere also argues that the billing record

indicates that billable hours were both excessive and

duplicative. Specifically, Revere contends that T&D

attorneys billed for research hours in the preliminary

injunction phase, summary judgment phase and trial

phase which went far beyond what was necessary and

20a

appropriate for proper preparation of this case.

Similarly, Revere contends that various counsel for

T&D billed for the same services without explaining

the necessity for its duplicity. Mindful of the need to

revisit prior work after the long periods of dormancy of

any complicated piece of civil litigation, and after an

extensive review of the voluminous time records

submitted by petitioners, the court nonetheless finds

merit in Revere’s assertions that T&D unnecessarily

billed for duplicative services. In making this finding,

the court does not cast aspersion on the ethics of

petitioners’ counsel, merely that there is a

considerable element of unnecessary duplication in

these time records, and that a substantial portion of

such duplicative billing must be laid to the inefficiency

of petitioners’ counsel.

The court extensively reviewed the billing

records to determine when and where T&D’s counsel

“double-billed” its services. Though the court's

document review identified many duplicative records,

it is virtually impossible to reconcile every single

disparity because ten years of litigation produced a

voluminous record consisting of thousands of separate

entries. The resources available to this court do not

permit an examination and reconciliation, with

absolute precision of every single disparate entry. It

suffices to say that the court did its best.

The court’s methodology employed the so-called

“lodestar” basis of fee calculation’, however, and

weighed a number of judicially-indicated appropriate

factors to determine a fair and just award for T&D’s

counsel's time and expense in litigating this action. In

7 The lodestar approach contemplates judicial

ascertainment of the “number of hours reasonably expended on

the litigation multiplied by a reasonable hourly rate” as the

starting point in constructing fee awards. Hensley v. Eckerhart.

461 U.S. 424, 433 (1983).

2la

this regard, it is worthy of mention that the

undersigned Associate Justice had _ substantial

experience in the trial of civil matters as a partner ina

major Boston law firm, practiced trial law in the City

of Boston for some thirty years before his appointment

to the bench, and thus has significant practical

experience in the complexities of so-called “big firm”

billing practices.

Lodestar Calculation

The amount of a fee award rests largely within

the discretion of the trial judge. Fontaine v.

EbtechCorp., 415 Mass. 309, 324 (1993) (finding that

the amount of a reasonable attorneys fee, awarded on

the basis of statutory authority, “is largely

discretionary with the judge”); Linthicum sv.

Archambault, 379 Mass. 381, 398 (1979). The award

amount should, however, be “reasonable” and

represent the fair market value of counsel's time

reasonably spent on the case. Torres v. Attorney Gen.,

391 Mass. 1, 16 (1984). Courts sometimes refer to this

measure of the fee award as the “lodestar calculation.”

See, e.g., Connolly v. Harrelson, 33 F. Supp. 2d 92,

95-96 (D. Mass. 1999) (discussing the “lode-star”

calculation process). The court also has discretion to

adjust the lodestar up or down, but must justify such

only under compelling circumstances. Fontaine, 415

Mass. at 324; Draper, 384 Mass. at 456-457. Courts

consider a combination of factors when determining

the reasonable fair market value of services.® See,

8 Among the other factors, the court considers 1) the time

and labor required, the novelty and difficulty involved and the skill

required to properly perform legal services; 2) the fee customarily

charged in the locality for similar legal services; 3) the amount

involved and results obtained; 4) time limitations; and 5) the

experience, skill and reputation of the attorney. See, e.g., Scham,

148 F.3d at 559 (citing Johnson v. Georgia Highway Express, Inc.,

488 F.2d 714 (5 Cir. 1974)).

22a

e.g., Linthicum v. 379 Mass. at 390; Heller v.

Silverbranch Constr. Corp., 376 Mass. 621 (1978).

Calculating reasonable attorneys fees in this

fashion requires the court to identify the number of

hours billed in the contemporaneous billing records

for each attorney and paraprofessional entering time

spent working on the case and then to apply a

reasonable discount for any time deemed excessive or

duplicative. Once the court determines the reasonable

number of hours expended, the court simply

multiplies those hours by a reasonable hourly rate to

achieve the lodestar figure. Determining the

reasonable hourly rate requires the court to find the

prevailing hourly rate in Boston for persons with

comparable skill, experience and reputation as the

persons who worked on the case. Blum v. Stenson,

465 U.S. 886, 895 (1984). The court’s goal is to

fashion an award equal to what the services were

objectively worth in the so-called “legal marketplace”,

as opposed to what other amount the prevailing

party’s counsel may have billed. Heller, 376 Mass. at

629.

In applying the lodestar calculation, the court

also considers the effect of Revere’s obstructionist

conduct, which the court finds substantially

contributed to T&D’s alleged accumulation of

$1,209,585.33 in attorneys’ fees and costs. The court

finds that Revere unduly prolonged this litigation by

causing delays at various stages during litigation. It

was patently obvious to the court that Revere was

never interested in resolving this case through

settlement or alternative dispute resolution, and that

this attitude, politically engendered, obtained long

after it was apparent that its actions in framing and

attempting to enforce unconstitutional zoning

regulations enacted for the sole purpose of “zoning

out” T&D Videos proposed use of its premises as an

23a

adult entertainment video and bookstore, were

patently illegal.

Additionally, the nature oof Revere's

constitutional violations contributed to T&D's

counsel's difficult and prolonged involvement in the

matter. Issues involving First Amendment civil rights

are often complex and difficult to resolve against

entrenched governmental opposition without the

expenditure of prodigious amounts of legal services.

Often, as a practical matter, the resources and

expertise required to battle for constitutionally-based

civil rights reside solely in the capacities, however

inefficient, of large law firms, whose cost structures

necessarily require premium billing rates.

Expert Fees

Revere argues that 42 U.S.C. § 1988 and G. L.

c. 12, § 111 do not allow the prevailing party an award

for expert fees. In relevant part, 42 U.S.C. § 1988

permits an award for expert witness fees in excess of

statutory limits in “any action or proceeding to enforce

a provision of § 1981 or § 198la....” As T&D brings

this action pursuant to 42 U.S.C. § 1983, the

statutory provision allowing expert fees is not

applicable to T&D's federal claim.

As to T&D's “state” claim, the provisions of the

so-called Massachusetts Civil Rights Act do not

explicitly permit an award of expert fees. When a

Massachusetts statute grants explicit cost-shifting

authority, however, it raises a presumption that this

court may award expert witness fees upon a

9 In relevant part, G. L. c. 12, § 11! states, “(any person

whose exercise ... of rights ... has been interfered with ... as

described in section 11H may institute and prosecute in his own

name ... (and the prevailing party] ... shall be entitled to award of

the costs of the litigation and reasonable attorneys’ fees in an

amount to be fixed by the court.”

24a

successful Massachusetts Civil Rights Act action.

Krewson v. City of Quincy, 74 F.3d 15, 19 (Ist Cir.

1996) (citing Linthicum, 379 Mass. at 389). The court

adopts this presumption.

Revere argues, pursuant to G. L. c. 12, § 11H,

that T&D's state claim is not applicable because a

violation of the Massachusetts Civil Rights Act occurs

only when the plaintiff presents evidence of “threats,

intimidation, or coercion.” G. L. c. 12, § 11H.

Attempting to enforce the zoning ordinance, Revere

asserts, does not constitute a “threat, intimidation or

coercion.”

Case law establishes, however, that G. L. c. 12,

§ 11H does not require actual or threatened force;

economic coercion is sufficient, Buster v. George W.

Moore, Inc., et al., 438 Mass. 635, 648 (2003) (holding

that a public university's denial of student

organizations use of its facilities constituted a threat,

intimidation or coercion). Here, Revere participated in

pure economic coercion when it denied T&D the

opportunity to operate a lawful business and forced it

to enter a “scorched earth” campaign of legal

vindication. Accordingly, G. L. c. 12. 111 entitles T&D

to an award for expert fees, which this court

incorporates in its final lodestar figure listed below.

In consideration of the time expended to resolve

this matter, and after careful and exhaustive review of

all the billing records and parties’ arguments, the

court finds that a lodestar calculation of 3100 hours

at the average hourly rate $280, equaling a lodestar

figure of $868,000 represents reasonable attorneys’

fees and costs for litigating this matter. The court has

calculated the reasonable “expert fees” incurred in this

matter to be in the sum of $47,027. Thus, the total

award to petitioners’ counsel in the matter is

$915,027.

25a

ORDER

For the reasons stated herein, it is hereby

ORDERED that defendant City of Revere forthwith pay

plaintiff T&D'’s attorneys’ fees and costs in the amount

of $915,027 as reasonably and necessarily incurred in

the successful prosecution of this matter.

February 9, 2004

/s/ Ernest B. Murphy

Ernest B. Murphy

Associate Justice of the Superior Court

Dated February 9, 2004

26a

APPENDIX C

462 66 Mass. App. Ct. 461 (2006)

T & D VIDEO, INC.! vs. CITY OF REVERE & others.?

No. 05-P-109.

Suffolk. December 14, 2005. - June 8, 2006.

Present: LAURENCE, KANTROWITZ, & COWIN, JJ.

Constitutional Law, Zoning, Freedom of speech and

press. Zoning, Validity of by-law or ordinance.

Evidence, Relevancy and materiality. Civil

Rights, Attorney’s fees. Practice, Civil, Attorney's

fees, Costs. Witness, Expert, Fee.

CIVIL ACTION commenced in the Superior Court

Department on November 16, 1994.

The case was heard by Emest B. Murphy, J..,

and a motion for attorney’s fees and costs was also

heard by him.

Ira H. Zaleznik, for the defendants.

Allen C.B. Horsley, for the plaintiff.

COWIN, J. The defendants appeal from a

judgment of the Superior Court declaring that

defendant city of Revere’s adult entertainment zoning

ordinances effect unconstitutional restrictions of

expression under the First Amendment to the United

States Constitution and art. 16 of the Massachusetts

Declaration of Rights, and enjoining enforcement of

! Doing business as Moonlite Reader.

2 Zoning board of appeals of Revere and the building

inspector of Revere.

27a

those ordinances against the plaintiff, T & D Video,

Inc. The defendants appeal also from the Superior

Court order awarding attorney’s fees and costs to the

plaintiff.

1. Background. We set forth certain underlying

facts based on unchallenged findings by the trial

judge, supplemented where appropriate by undisputed

evidence in the record. We reserve for later discussion

in connection with certain issues those facts that the

parties do dispute. On September 2, 1993, Thaddeus

Drabkowski, a shareholder of the plaintiff corporation,

signed a lease on behalf of the corporation as tenant

to occupy property at 55 American Legion Highway in

Revere. Drabkowski and his fellow shareholder, Del

Paone, intended to open at that location an adult

video store to be called “Moonlite Reader IV.”

Drabkowski and Paone began renovating the premises

to prepare the space for use as a video store, and

visited the Revere city clerk in order to complete a

business certificate.

When they requested the appropriate

paperwork at the city clerk's office, Drabkowski and

Paone were informed that in order to obtain a

business certificate for a video store, they first would

have to complete additional paperwork from the city

solicitor’s office. The additional paperwork was an

“agreement” stating that no adult videos or related

materials would be sold at the store. Drabkowski and

Paone refused to sign the agreement, but

notwithstanding their refusal, a business certificate

dated September 14, 1993, was issued by the city

clerk.

On September 16, 1993, the mayor of Revere

submitted to *463 the city council a proposed “adult

entertainment” amendment to the Revere zoning

ordinance. This amendment was adopted by the city

council on November 8, 1993, as §§ 17.08.065

28a

through 17.08.069, and § 17.16.045, of the Revere

zoning ordinance.? Section 17.16.045 provided:

“Adult entertainment establishments,

adult bookstore[s], adult videostore[s], adult

motion picture theatre[s] and advertising signs

or devices erected, constructed, placed, altered,

converted or otherwise changed may be allowed

by special permit in the I [general industrial]

District in conformance with the following

minimum criteria:

“A. Adult Entertainment Establishments,

adult bookstore[s], adult videostore [s], adult

motion picture theatre[s] and advertising signs

or devices may not be located less than 1000

(one thousand) feet from the nearest lot line of:

each other; public or private nursery schools;

public or private day care centers; public or

private kindergartens; public or private

elementary schools; public or private secondary

schools; playgrounds; parks; conservation

areas; churches; residential uses; and

residential districts.

“B. A 30 ft. wide landscaped strip shall

be provided along the property line fronting a

public or private way.

“C. Adult Entertainment Establishments,

Adult Bookstores, Adult Videostores, Adult

Motion Picture Theatres and advertising signs

or devices are to be limited to lots greater than

25,000 square feet but not more than 40,000

square feet.

“D. Adult Entertainment Establishments,

Adult Bookstores, Adult Videostores, Adult

> Sections 17.08.065 through 17.08.069, and § 17.16.045,

will hereinafter be referred to as the “adult entertainment

ordinances” or the “ordinances.” Where necessary, distinctions

may be made between the ordinances as adopted in 1993 and as

amended in 1995 by referring to them as the “1993 ordinances”

and the “1995 ordinances” respectively.

29a

Motion Picture Theatres and advertising signs

or devices may not be allowed within a multi-

use building or building containing other retail

or consumer uses.

*464 “E. All advertising signs and adult

entertainment uses, adult bookstores, adult

videostores, and adult motion picture theatres

shall not be located within 100 ft. of a public or

private way and must be set back a minimum

of 100 ft. from all property lines.

“F. No adult use advertising sign shall

contain any moving, flashing or animated

lights, or visible moving or movable parts.”4

These provisions effectively prohibited any adult

establishments from operating in Revere because the

combination of lot size restrictions and setback

requirements rendered it virtually impossible for a

structure to be built that did not violate the

ordinances. See T & D Video, Inc. v. Revere, 423 Mass.

577, 582 (1996).

After renovations on the plaintiffs store had

been completed, the store’s landlord obtained a retail

occupancy permit for the premises. On August 31,

1994, the plaintiff sought a sign permit for the store.

The defendant building inspector of Revere denied the

plaintiffs application for a sign permit because the

store did not comply with the requirements of the

adult entertainment ordinances. The denial for the

sign permit also notified the plaintiff that its intended

use was not permitted at its location. After this denial,

the plaintiff appealed to the defendant zoning board of

appeals of Revere, which affirmed the decision of the

building inspector.

While that appeal was pending, the plaintiff

instituted this action against the de“ndants pursuant

to 42 U.S.C. § 1983; G.L. c. 12, §§ :. 1, 11l: and G.L.

* Sections 17.08.065 through 17.08.069 define terms used

in § 17.16.045.

30a

c. 40A. In this proceeding, the plaintiff seeks a

judgment declaring that the adult entertainment

ordinances violate its rights under the First

Amendment to the United States Constitution and art.

16 of the Massachusetts Declaration of Rights, as

amended by art. 77 of the Amendments to the

Massachusetts Constitution, by infringing

impermissibly on its freedom of expression, together

with an injunction prohibiting the enforcement of the

ordinances with respect to the plaintiffs proposed

adult video store. A judge of the Superior Court

entered a preliminary injunction barring *465

enforcement of the ordinances against the plaintiff's

operation; the order granting the preliminary

injunction subsequently was affirmed by the Supreme

Judicial Court. See T & D Video, Inc. v. Revere, supra

at 583.

Shortly after commencement of this action, but

prior to entry of the preliminary injunction, the city

administration submitted to the city council proposed

amendments to the adult entertainment ordinances.

The proposed amendments were adopted on May 1,

1995 (following entry of the preliminary injunction).

The 1995 ordinances lowered the setback requirement

for adult establishments from one hundred feet to

thirty or fifty feet, depending on the type of

establishment,5 and revised the lot size requirements

for adult video stores from 25,000 to 40,000 square

feet to 16,000 to 66,000 square feet. Otherwise, the

adult entertainment ordinances largely remained

unchanged from the 1993 version. More specifically,

* Under the 1995 ordinances, “adult entertainment

establishments” and adult motion picture theaters are required to

be set back fifty feet from any public or private way and all

property lines; adult bookstores and adult video stores are

required to be set back thirty feet from any public or private way

and all property lines.

®° Under the 1995 ordinances, “adult entertainment

establishments” and adult motion picture theaters are required to

be situated on lots from 22,000 to 66.000 square feet.

3la

under the 1995 ordinances, adult uses remained

limited to the I district (later renamed the technology

enterprise district); still were required to be 1,000 feet

or more from each other as well as from schools,

churches, parks, playgrounds, conservation areas,

residential uses, and residential districts; and still

required a special permit in order to operate.

A jury-waived trial was conducted with respect

to the 1995 adult entertainment ordinances. A

different judge determined that the plaintiff had a

constitutionally protected right to sell adult videotapes

that were not obscene, and concluded that the

ordinances infringed on this right. Crediting the

plaintiffs expert witnesses, the judge found that the

combination of the 1995 ordinances and applicable

environmental regulations left only one site in Revere

where the adult entertainment activity contemplated

by the plaintiff would be permitted to take place. This

site was 41 Lee Burbank Highway, which the judge

found *466 to be patently unsuitable for the operation

of a retail business because it was part of a larger

parcel, owned by Gibbs Oil Company, that was not

subdivided and that was contaminated by petroleum.

The judge found in addition that both the 1993 and

1995 ordinances specifically were directed against the

plaintiff. Finding that the ordinances effectively

banned the plaintiffs protected speech completely,

leaving no _ reasonable alternative avenue of

communication for the adult-based content at issue,

the judge ruied that the ordinances’ were

unconstitutional both as an impermissible prior

restraint on speech and as an impermissible time,

place, and manner regulation. He _ accordingly

permanently enjoined the defendants from enforcing

the adult entertainment ordinances against the

plaintiff. Relying on 42 U.S.C. § 1988 and G.L. c. 12, §

111, he ordered further that the defendants pay

attorney's fees and costs in the amount of $915,027.

The defendants appeal on the merits and on the

fee award. At the outset, they attack the decision of

32a

the trial judge to exclude from evidence eleven

allegedly obscene adult videos drawn from _ the

plaintiffs inventory, challenging his determination

that obscenity was not an issue in the case. Next, the

defendants assert that various findings made by the

judge are not supported by the evidence, and that the

legal conclusions regarding the constitutional validity

of the ordinances that he based on such findings are

erroneous. Finally, the defendants assert that the

plaintiffs request for attorney's fees was so excessive

that it should have been disregarded altogether or, in

the alternative, that the award should be reduced. We

affirm the judgment, which declared the ordinances

unconstitutional as applied to the plaintiff and

permanently enjoined their enforcement. We agree

with the defendants that the award of attorney’s fees

and costs is excessive and thus vacate the order on

the plaintiffs petition.

2. Exclusion of videotapes. The defendants

offered in evidence a selection of eleven videotapes

purchased at the plaintiffs store, arguing that the

tapes were evidence that the plaintiffs speech was

constitutionally obscene and therefore not entitled to

protection under the First Amendment or art. 16. See

Miller v. California, 413 U.S. 15, 25 (19793);

Commonwealth v. Trainor, 374 Mass. 796, 798-799

(1978). The judge excluded *467 the tapes as

irrelevant. The defendants claim that this was error,

contending that the obscenity of the material

determined the level of protection to which the plaintiff

was entitled under the First Amendment and art. 16,

and thus the level of scrutiny that should have been

applied to the ordinances.

The question whether evidence is relevant is

addressed to the sound discretion of the trial judge,

and his decision will be reversed only for palpable

error. See McLaughlin v. Vinios, 39 Mass.App.Ct. 5, 8

(1995). Because the regulatory effort at issue here

applies to speech that is not obscene as well as to

speech that is, we agree with the judge that the status

33a

of the individual items that are regulated is irrelevant.

There was therefore no error.

While obscenity, as defined for constitutional

purposes, is beyond the pale of First Amendment

protection, adult entertainment that is not obscene is

entitled to protection under both the First Amendment

and art. 16. See Schad v. Mt Ephraim, 452 U.S. 61,

65, (1981); Barnes v. Glen Theatre, Inc., 501 U.S. 560,

565-566 (1991); Commonwealth v. Sees, 374 Mass.

532, 537 (1978); Cabaret Enterprises, Inc. v. Alcoholic

Bevs. Control Commn., 393: Mass. 13, 16-17 (1984);

T & D Video, Inc. v. Revere, 423 Mass. at 580. Adult

entertainment entitled to such protection includes the

showing of adult motion pictures that are not obscene,

nude dancing that is not obscene, and the sale of

adult videotapes that are not obscene. See Schad v.

Mt. Ephraim, supra; Barnes v. Glen Theatre, Inc.,

supra; Commonwealth v. Sees, supra; Cabaret

Enterprises, Inc. v. Alcoholic Bevs. Control Commn.,

supra; T & D Video, Inc. v. Revere, supra. Because the

regulation of speech that is not obscene affects

fundamental rights protected by the First Amendment

and art. 16, the constitutionality of such regulation is

assessed under a standard of either strict or

intermediate scrutiny. See Commonwealth v. 707 Main

Corp., 371 Mass. 374, 380, 357 N.E.2d 753 (1976);

Mendoza v. Licensing Bd. of Fall River, 444 Mass. 188,

197 (2005). In contrast, by virtue of its unprotected

status, the regulation of- obscenity requires no

scrutiny of the statute or ordinance under which such

regulation takes place. That obscenity may be

proscribed by the government is a given. Judicial

inquiry is directed not at the government's

constitutional power *468 to regulate, which is

established, but rather at the question (often a

difficult one) whether the material that the

government seeks to regulate is in fact obscene in the

constitutional sense.

Here, there seems to be little doubt that the

plaintiffs inventory includes material that is not

34a

obscene. Were it to include obscene material as well,

such a fact would, as the judge concluded, be

irrelevant to an examination of the ordinances. Where

the provisions of a regulation could affect both

protected and unprotected speech, the regulation is

evaluated under the standard applied to protected

speech. See Miller v. California, 413 U.S. at 23-24;

Reno v. American Civil Liberties Union, 521 U.S. 844,

874-875 (1997). This elevated standard is applied

regardless of whether the challenged speech is

actually protected; the pertinent question is whether

the regulation potentially could infringe on

constitutionally protected speech, not whether it

actually does so. See Schad v. Mt. Ephraim, 452 U.S.

at 66; Mendoza v. Licensing Bd. of Fall River, 444

Mass. at 199-201 & n. 14.

In this case, the ordinances in question applied

to all adult entertainment, including that portion of

the plaintiffs offerings that is plainly not obscene.

Because the ordinances affected speech that is not

obscene, and therefore is constitutionally protected,

the trial judge properly applied heightened scrutiny. If

indeed there is obscenity within the plaintiffs

inventory, the defendants may, if they deem it

necessary, seek criminal or civil relief. See G.L. c. 272,

§§ 28-31. They cannot, however, insulate these

ordinances from judicial review, and the judge

correctly excluded the allegedly obscene videotapes as

irrelevant.

3. Constitutionality. “[Rlegulations enacted for

the purpose of restraining speech on the basis of its

content presumptively violate the First Amendment.”

Renton v. Playtime Theatres, Inc., 475 U.S. 41, 46-47

(1986). As had the judge who presided at the

preliminary injunction hearing, the trial judge

assumed that the ordinances were “content neutral” in

that they were not adopted for the purpose of

restraining speech on the basis of its content. See T &

D Video, Inc. v. Revere, 423 Mass. at 581. While it is

not altogether clear to us on this record that the

35a

defendants’ response was not motivated by distaste for

the *469 plaintiffs activities, we are content to

proceed on the same assumption. If so, the defendants

permissibly could adopt so-called “time, place, and

manner regulations «« so long as they are designed to

serve a substantial governmental interest and do not

unreasonably limit alternative avenues of

communication.” Renton v. Playtime Theatres, Inc.,

supra at 47. The government thus may take steps to

regulate reasonably anticipated secondary effects of

the plaintiffs activities, such as increased traffic,

reduced property values, or impact on the character of

a neighborhood. See id. at 47-50. However, a valid

exercise of such authority presupposes that. these

reasons genuinely formed the basis for _ the

government’s action, see T & D Video, Inc. v. Revere,

supra at 581, and that such exercise does not limit

unreasonably alternative avenues of communication,

see Renton v. Playtime Theatres, Inc., supra at 50, 53-

54.

In the present case, the judge did not pause at

the question whether the defendants had established

the presence of a legitimate governmental interest in

regulating secondary effects, commenting only that

the parties contested “whether the secondary effects

upon the community of [the plaintiffs] adult video

(and associated use) store was primary in the

motivation of the [clity of Revere in passing the

[o]Jrdinances in question.” Instead, he moved directly

to consideration of whether the ordinances effectively

removed all possibility that the plaintiff could operate

within the municipality. In concluding that they did,

he found that application of the ordinances, in

conjunction with existing environmental regulation,

precluded the plaintiffs activities in all but a single

location, with that location otherwise being “patently

unsuitable for the operation of a retail, non-petroleum

product-related business.” Thus, the ordinances could

not be justified as a permissible time, place, and

manner restriction. In addition, the judge determined

36a

“that the totality of the evidence demonstrates

conclusively that Revere directed the ordinance

specifically at [the plaintiff].” He accordingly ruled that

because the ordinances effectively banned protected

speech, they operated as an impermissible prior

restraint.

The essence of the defendants’ argument on

appeal is that the judge's findings in these respects

are not supported by the evidence, and that the

unwarranted findings in turn led to erroneous*470

application of constitutional principles. The

defendants challenge particularly the findings that the

plaintiff was the target of the ordinances and that the

ordinances as applied left no area of the city in which

the plaintiff legally could locate, thus unreasonably

limiting alternative avenues of communication. If, the

defendants’ argument continues, these findings were

wrong, then the ordinances qualified as reasonable

time, place, and manner restrictions and did not effect

an impermissible prior restraint.

The defendants attack the judge’s finding that

the adult entertainment ordinances were directed

against the plaintiff. The finding seems well supported

in the record, given evidence that the ordinances, in

their proposed form, were submitted by the mayor to

the city council two days after Drabkowski and Paone

applied for a business certificate. There was in

addition evidence provided by the building inspector

that two councillors, after they learned of the

plaintiffs proposed operation, stated that the

ordinances would be adopted. However, even were the

finding permissible, we are not persuaded that it is

meaningful. If the plaintiff were the only entity seeking

to operate an adult video store in Revere, ordinances

regulating such operations could be said to target the

plaintiff, but such a characterization would not render

otherwise valid restrictions unlawful. Indeed, the

motivation for a legislative enactment is generally

irrelevant in assessing its constitutionality. See Renton

v. Playtune Theatres, Inc., 475 U.S. at 47-48, quoting

EE EE

37a

from United States v. O’Brien, 391 U.S. 367, 383-384

(1968) (“It is a familiar principle of constitutional law

that this Court will not strike down an otherwise

constitutional statute on the basis of an alleged illicit

legislative motive”). While a political animus against

an individual or his speech may have a bearing on

whether resulting regulation is in fact content neutral,

that is not an issue in this case, and unspoken

legislative motivations do not appear to us to be

relevant in assessing whether an ultimate legislative

product is a permissible time, place, and manner

restriction.

Deciding that the ordinances effectively banned

the plaintiffs communications in Revere altogether,

the judge determined that the ordinances effected an

impermissible prior restraint on protected speech.

Such a characterization follows inevitably *471 from a

recognition that the plaintiff lawfully could not carry

on its communicative activities at all and was thus

subject to the most complete prior restraint of which a

government is capable. The defendants challenge the

finding that the ordinances precluded alternative

avenues of communication as not supported by the

evidence.

In this regard, the defendants argue that we

should conduct an independent review of the judge's

finding that the ordinances left no alternative sites on

which an adult video store legally could operate

because it is a “mixed finding of law and fact” which

implicates constitutional rights. See Bose Corp. v.

Consumers Union of U.S., Inc., 466 U.S. 485, 498-511

(1984). The plaintiff contends that independent review

is not required because it is necessary only when the

decision below limits a plaintiffs constitutional

protection and not when the lower court confirms

constitutional rights. See Planned Parenthood Assn./

Chicago Area v. Chicago Transit Authy., 767 F.2d

1225, 1228-1229 (7th Cir.1985); Daily Herald Co. v.

Munro, 838 F.2d 380, 383 (9th Cir.1988): Multimedia

Publishing Co. v. Greenvile-Spartanburg Airport Dist.,

38a

991 F.2d 154, 160 (4th Cir.1993).7 The Supreme

Judicial Court has not addressed the issue, and we

are not disposed to make the attempt to resolve it. We

conclude that, even applying the more rigorous

standard of *472 independent review, the judge was

justified in finding that the ordinances precluded

adult video stores from operating anywhere in Revere.

Independent review requires that we examine

the record to determine “whether a given course of

conduct falls on the near or far side of the line of

constitutional protection.” Hurley v. Irish-Am Gay,

Lesbian & Bisexual Group of Boston, Inc., 515 U.S.

557, 567 (1995). Here, we ask whether the ordinances

left any reasonable alternative sites available where

adult expression of the type engaged in by the plaintiff

could be carried on in Revere. We conclude that they

did not. It was reasonable for the judge to credit the

testimony of the plaintiffs land use experts: certified

land use planner R. Bruce McLaughlin, and Jonathan

"It is clear that the independent review standard applies

where the lower court's decision upheld a limit on expressive

activity. See Hurley v. Irish-Am Gay, Lesbian & Bisexual Group of

Boston, Inc., 515 U.S. 557, 567-568 (1995); Planned Parenthood

League of Mass., Inc. v. Bell, 424 Mass. 573, 579-580, cert. denied,

522 U.S. 819 (1997). The Federal circuit courts of appeals

currently disagree, however, on whether independent review

should be applied to decisions affirming constitutional expressive

rights. Compare Planned Parenthood Assn./ Chicago Area v.

Chicago Transit Authy., 767 F.2d at 1228-1229 (Seventh Circuit

holds that clear error standard and not independent review applies

to lower court’s decision restricting government's ability to exclude

advertisements based on message); Daily Herald Co. v. Munro, 838

F.2d at 383 (Ninth Circuit applies clear error standard to

determination that government unconstitutionally has restricted

free speech); Multimedia Publishing Co. v. Greenville-Spartanburg

Airport Dist, 991 F.2d at 160 (Fourth Circuit applies clear error

standard, not independent review, to decision declaring restriction

on speech unconstitutional), with Jones v. Heyman, 888 F.2d

1328, 1330-1331 (11th Cir.1989) (applying independent review to

District Court judgment that restriction on speech was

unconstitutional); Brown v. Palmer, 915 F.2d 1435, 1441 (10th

Cir.1990) {applying independent review where lower court declared

restriction on speech unconstitutional).

39a

Witten, also a certified land use planner as well as an

environmental engineer, an attorney, and a law

professor. Both experts agreed that the adult

entertainment ordinances, when combined with

existing environmental restrictions, left only one land

area in Revere available for adult entertainment, with

that location likely contaminated with petroleum. In

addition, the location is a portion of an otherwise

undifferentiated, larger parcel that has not been

subdivided. Furthermore, Frank Stringi, Revere’s city

planner, conceded at trial that there was no single lot

in Revere, other than the aforementioned

contaminated land area, on which an adult video store

could open under the zoning ordinances without

having to obtain either a variance or permission to

subdivide from the Revere zoning board. There being

no place in Revere that reasonably was available for

the use contemplated by the plaintiff, it is clear that

the ordinances operated so as to leave the plaintiff no

alternative avenues of communication.®

In addition, regulations that require permits or

licenses before *473 there can be lawful expression

are prior restraints. See Shuttlesworth v. Birmingham,

394 U.S. 147, 150-151 (1969); FW/PBS, Inc. v. Dallas,

493 U.S. 215, 223 (1990); Forsyth County v.

Nationalist Movement, 505 U.S. 123, 130 (1992). Prior

restraints are presumptively invalid and are subject to

facial challenges, but may be upheld if they meet

constitutional requirements. See FW/PBS, Inc. v.

Dallas, supra; Forsyth County v. Nationalist Movement,

* It is not an answer that adult videos are found in the

inventories of video stores in Revere that feature material other

than adult material. The government may not infringe on the

constitutional right of the plaintiff to speak in a particular way on

the theory that others are delivering similar speech in a manner

more to the government's liking. There is a “general rule - that the

speaker has the right to tailor the speech: Its point is simply the

point of all speech protection, which is to shield just those choices

of content that in someone's eyes are misguided, or even hurtful.”

Hurley v. Irish-Am. Gay, Lesbian & Bisexual Group of Boston, Inc.,

supra at 573-574.

40a

supra. Under the First Amendment, licensing

requirements for adult entertainment are invalid prior

restraints if they vest in a government official overly

broad discretion to grant the license, if they fail to

place a limit on the time within which the decision

maker must decide whether a license shall issue, or if

they are not subject to ordinary judicial review. See

FW/PBS, Inc. v. Dallas, supra at 225-226; Littleton v.

Z.J. Gifts D-4, LLC, 541 U.S. 774, 779, 781-82 (2004)

(overruling FW/PBS, Inc. v. Dallas, supra, in part, by

holding that ordinary judicial review procedures are

adequate and expedited judicial review is not required

for adult entertainment permitting requirements).

Even had we concluded that the Revere adult

entertainment ordinances qualified as permissible

time, place, and manner restrictions, the ordinances

still may effect an unlawful prior restraint because

they are susceptible to a construction that would

permit a ban of even authorized adult uses unless a

special permit is granted, while vesting unlimited

discretion in the city council to grant or deny such a

permit. Subsections (C) and (D) of § 17.16.045 of the

1995 ordinances list conditions that must be met

before an adult use permit can be granted. Once those

conditions are met, however, pursuant to § 17.48.080

of the Revere zoning ordinance, the city council still

has discretion to grant or deny the permit by a two-

thirds vote of its members. It is not at all clear that

the city council must grant a permit request where the

applicant has complied with the ordinances; rather,

the city council appears to be free to withhold a

special permit for an adult use for any reason. If so,

the ordinances invite “illegitimate abuse of censorial

power,” and would impose impermissible prior

restraints even if they were otherwise valid. See

Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750,

758 (1988).

*474 In summary, we have assumed without

deciding that the Revere adult entertainment

ordinances are content neutral, and that they

4la

represent an effort by the municipality to combat

anticipated secondary effects. We are satisfied on this

record that the effect of such regulation, however, is to

deprive the plaintiff of all locations within Revere in

which it may operate both legally and practicably. As

such, the ordinances fail a requirement of permissible

time, place, and manner regulation, and effect an

unlawful prior restraint upon protected expression.

We accordingly conclude that the Superior Court

judge properly permanently enjoined their

enforcement against the plaintiff.

4. Attorney's fees and expenses. Pursuant to 42

U.S.C. § 1988 and G.L. c. 12, § 11I, the plaintiff

applied for an award of attorney's fees and expenses

totaling $1,209,585.33 ($1,093,626 in attorney's fees,

$67,037.77 in expenses, and $48,921.56 in expert

witness fees). That portion of the application that

relates to attorney's fees seeks an award based on

4,082.8 hours of the time of various attorneys

expended on the case from its inception through the

Superior Court trial on the merits, including the

preliminary injunction proceeding, the defendants’

appeal to the Supreme Judicial Court of the

preliminary injunction order, discovery, the summary

judgment proceeding, and the eventual trial. These

events took place over a span of approximately eight

years, although there obviously were periods of

inactivity throughout.

The trial judge reduced the number of

compensable hours to 3,100, finding “that there is a

considerable element of unnecessary duplication in

these time records, and that a substantial portion of

such duplicative billing must be laid to the inefficiency

of [the plaintiffs] counsel.” He concluded that a

reasonable rate was $280 per hour, which he derived

by applying a weighted average of the rates charged by

* The plaintiff seeks additional attorney's fees and costs in

connection with the present appeal. See Fabre v. Walton, 441

Mass. 9, 10 (2004).

42a

the plaintiffs lead counsel (which rates ranged from

$250 per hour at the inception of the case to $400 per

hour by the end of the Superior Court phase). The

judge accordingly awarded attorney’s fees of $868,000

(3,100 hours multiplied by $280 per hour), a figure

that apparently absorbs out-of-pocket expenses other

than expert *475 witness fees. He allowed an

additional $47,027 for expert witness fees,!° resulting

in an overall award of $915,027.

The defendants appeal from the fee award on

multiple grounds. They argue first that the fee petition

should have been denied outright because it was

unconscionably excessive. In the alternative, they

contend that the plaintiff failed to satisfy its burden of

establishing a reasonable hourly rate for the various

attorneys who worked on the case, and that the hours

billed to the matter were unreasonable even after the

judge eliminated close to 1,000 of them. The

defendants argue further that expert witness fees

should not have been awarded because they are not

authorized under 42 U.S.C. § 1988 in 42 U.S.C. §

1983 cases, and that such fees could not be awarded

under G.L. c. 12, § 111, because the defendants’

actions did not constitute “threats, intimidation or

coercion” as required for application of that statute.

G.L. c. 12, § 11H, inserted by St.1979, c. 801, § 1. The

plaintiff counters that the fees and costs awarded by

the trial judge were within his discretion, particularly

given the adamant refusal of the defendants to

compromise their position, even in the face of an

adverse Supreme Judicial Court decision, and the

resulting prolongation of the proceedings.

Section 1988 of 42 U.S.C. provides that the

prevailing party in a civil rights action brought under

42 U.S.C. § 1983 may recover reasonable attorney’s

fees, subject to the discretion of the trial judge. That

the plaintiff is the prevailing party here is not

10 His decision does not disclose why the amount sought

($48,921.56) was reduced.

43a

disputed. While the language of § 1988 is permissive,

case law has established that awards of fees to

prevailing civil rights plaintiffs are “virtually

obligatory,” Gay Officers Action League v. Puerto Rico,

247 F.3d 288, 293 (lst Cir.2001), absent “special

circumstances,” Hensley v. Eckerhart, 461 U.S. 424,

429 (1983). A judge may deny in its entirety a request

for an award of fees only if the amount that the

prevailing party requests is so “unreasonable” and

exorbitant that it “shocks the conscience,” or if

counsel makes no good faith effort to exclude from a

fee request hours that are excessive, redundant, or

otherwise unnecessary. See Brown v. Stackler, 612

F.2d 1057, 1059 (7th Cir.1980); *476 Lewis v.

Kendrick, 944 F.2d 949, 958 (Ist Cir.1991); Fair Hous.

Council v, Landow, 999 F.2d 92, 96 (4th Cir.1993);

Scham v. District Cts. Trying Criminal Cases, 148 F.3d

554, 558 (Sth Cir. 1998).

We reject the defendants’ contention that an

award of attorney's fees should be denied altogether.

In so concluding, we nevertheless are constrained to

say that this fee request certainly approaches the

outermost parameter that separates an acceptable

application from one that “shocks the conscience.”

Nevertheless, having in mind the objectives of fee-

shifting statutes in general and § 1988 in particular,

which include the legislative interest in inspiring legal

actions directed to the identification and elimination of

civil rights abuses, we believe that it would be

inconsistent with those legislative concerns to refuse

to allow any attorney's fees at all on this record.

We turn, therefore, to an evaluation of the

specifics of the application. In our view, the number of

hours for which compensation is sought (4,082.8) is

excessive by any rational standard, and the reduction

by the trial judge to 3,100 hours is inadequate to

correct the overreaching. We question as well the

employment of an imbedded rate of $280 per hour as

a reasonable rate without reference to the skills or

44a

experience of the attorneys who contributed 1,810.8 of

the hours in question.!!

Where the trial judge allows a fee petition to a

prevailing party, the amount allowed must be

reasonable. To determine what amount is reasonable,

the court generally engages in a “lodestar” analysis,

see Hensley v. Eckerhart, 461 U.S. at 433-437; Gay

Officers Action League v. Puerto Rico, 247 F.3d at 295,

the essence of which is the multiplication of the

“number of hours reasonably expended on the

litigation” by “a reasonable hourly rate.” Hensley v.

Eckerhart, supra at 433. In making this calculation,

the court should consider the time counsel spent on

the case exclusive of hours that are excessive,

redundant, duplicative, or unproductive. See id. at

434; Gay Officers Action League v. Puerto Rico, supra.

The rate applied to the reasonable hours expended

should be the prevailing rate in the community, taking

into account the experience and qualifications*477 of

the attorneys involved. See Gay Officers Action League

v. Puerto Rico, supra. The fee applicant bears the

burden of documenting in detail the hours expended

and of establishing the market rate. See Blum v.

Stenson, 465 U.S. 886, 898 (1984); Grendel’s Den, Inc.

v. Larkin, 749 F.2d 945, 952 (lst Cir.1984). After

making its initial calculation, the court then may

adjust the fee upward or downward based on other

considerations, including the results obtained. See

Hensley v. Eckerhart, supra at 434-435.

Massachusetts cases governing attorney's fees awards

reflect similar considerations. See Linthicum ov.

Archambault, 379 Mass. 381, 388-389 (1979);

Fontaine v. Ebtec Corp., 415 Mass. 309, 325-326

(1993).

With these criteria in mind, we consider the

nature of the case and the legal services reasonably

11 The figure of 1,810.8 hours is derived by subtracting

the hours attributed to lead counsel (2,272) from the total hours

for which compensation is sought (4,082.8).

45a

required. Lead counsel for the plaintiff, H. Glenn

Alberich, is a well-known, experienced practitioner

with respect to the First Amendment and _ its

application to government action that may have an

impact on protected expression. His hourly rates

presumably reflect the demand for his services and

the amount clients are willing to pay for his

representation. Furthermore, it is reasonable to

assume that both he and his law firm market

themselves as a place to go on First Amendment

questions because of Mr. Alberich’s expertise and

reputation.

The counterpart to such _ skills, and the

increased compensation that they command, is that a

client (and by extension, an opposing party subject to

a fee award) should receive the benefit of the

attorney's expertise in the form of at least some

reduction in the amount of time that an attorney of

lesser experience with the subject matter would have

to expend. This is particularly so in this case. Insofar

as the governing law is concerned, nothing decided in

the Supreme Judicial Court, in this court, or in the

Superior Court is new. Principles governing adult

entertainment zoning and its First Amendment

implications effectively were established well before

this case was commenced. See Renton v. Playtime

Theatres, Inc., 475 U.S. at 47-48. While the subject

certainly is not simple, and application of the relevant

law can be complicated, attorneys who hold

themselves out as experts in the field presumably

already have overcome the difficulties that would

require considerable study and preparation by less

experienced counsel.

"478 It is for these reasons that we are

mystified by the number of hours for which

compensation is sought. While the trial judge made a

real effort to remove various redundancies, we think

that that kind of fine probing of individual entries in

the time records may, as it often does with large fee

applications, have missed the forest for the trees. We

46a

believe that, at least in this case, the application is

evaluated more effectively by examining the various

component parts.

The plaintiff seeks approximately $100,000 for

the preliminary injunction phase of the case in

Superior Court, an amount that, while perhaps not

intolerable, is high for the effort reasonably required.

Furthermore, we are not inclined to award any fees for

the appeal to the Supreme Judicial Court of the

preliminary injunction order. That court awards

attorney's fees where appropriate in its own cases, and

has procedures for doing so. See Fabre v. Walton, 441

Mass. 9, 10-11 (2004). There is no mention of a fee

award in the Supreme Judicial Court's decision, see T

& D Video, Inc. v. Revere, 423 Mass. at 583, and any

request for fees in connection with that appeal should

have been submitted there. Thus, the amount sought

for the appeal of the preliminary injunction order (an

additional $100,000) should have been rejected. !?

Following the entry of the preliminary

injunction and the affirmance thereof, there was an

extended period of discovery. For discovery conducted

between October, 1996, and November, 1999, the

plaintiff seeks reimbursement for approximately 365

hours, generating bills of more than $100,000. By

October, 1996, the hearing on the preliminary

injunction prayer had been conducted in the Superior

Court and that court's order had been affirmed by the

Supreme Judicial Court. That means that there

already had been considerable development of the

factual positions and the supporting evidence of the

parties, particularly on the plaintiff's part, to establish

the likelihood of success on the merits, a critical

element in a request for preliminary injunctive relief.

The plaintiff has not satisfied its burden of

demonstrating that the extent of discovery for which it

‘2 We make no comment on the merits regarding a charge

of almost $100,000 to defend an appeal of an order granting a

preliminary injunction.

47a

was responsible during *479 the subsequent three-

year period was justified by the reasonable

requirements of litigating this case.

Subsequently, between November, 1999, and

January, 2002, the plaintiffs attorneys billed over

$300,000 for which they seek reimbursement in

connection with the prosecution of a motion for

summary judgment. While the plaintiff may have been

encouraged to seek summary judgment by virtue of its

success in obtaining a preliminary injunction and in

the appeal therefrom, it is also a fact that the

defendants already had amended the _ adult

entertainment ordinances in an effort to meet some of

the deficiencies on which the earlier version had

failed. Cases of this nature are often fact-specific

because the ways in which a given zoning ordinance

affects the rights of given property owners or users will

vary with circumstances and frequently will be the

subject of good faith disputes. Summary judgment for

the plaintiff, while perhaps not impossible, see

Kourouvacilis v. General Motors Corp., 410 Mass. 706,

716 (1991), was a longshot, and eventually was

denied. We are not prepared to award fees exceeding

$300,000 for a summary judgment motion that

involved legal principles well known by the plaintiff's

attorneys, as well as facts that already had been tried

in large part in the preliminary injunction proceeding,

where that motion had a questionable likelihood of

success from the beginning.

Over apd above the amount sought for the

preliminary injwnction phase of the case, together with

the amounts seught for defense of the defendants’

appeal of the injunction order, discovery, and the

summary judgment proceeding, the plaintiff seeks

more than £500,000 for the preparation for, and the

conduct of, a jury-waived trial that consumed less

than four full trial days and that traversed much of

the ground already covered during the preliminary

injunction hearing. We have not been shown anything

that comes close to an explanation why professional

48a

services reasonably required in connection with the

trial called for an expenditure of one-half of $1 million.

The plaintiff defends the fee application in part

on the basis of the judge's finding that the defendants’

conduct was “obstructionist,” and that the defendants

unduly prolonged the litigation. If that is so, such

tactics will result in an increase in *480 the number

of hours that the adverse party reasonably must

expend in order to prevail, and accordingly will bring

about an increase in the amount of fees awarded.

Contumacious behavior by a defendant does not call

automatically for a premium over and above the

number of additional hours that such behavior has

made reasonably necessary. Furthermore, had the

defendants’ conduct been truly obstructionist, the

plaintiff had an available remedy under G.L. c. 231,

§ 6F, which it could have pursued in the Superior

Court but did not. The plaintiff justifies its position

also by assigning weight to the fact that it has not

sought compensation for an additional 452.5 hours,

valued at $150,626.50, that it voluntarily removed

from its application. The simple answer to that is that

the forgoing of an opportunity to make an excessive

fee request even more excessive is hardly a defense to

an overreaching application. Finally, the plaintiff

points to the eight-year life of the case from its

inception to the trial on the merits. As we have

indicated, the length of the case is reflected in the

number of hours reasonably devoted by counsel, and

does not require the addition of a premium.

Addressing the subject of an appropriate hourly

rate, the record shows that the plaintiffs lead counsel,

responsible for 2,272 of the 4,082.8 hours for which

fees are sought, charged between $250 and $400 per

hour at various stages of the proceeding. Affidavits of

attorneys knowledgeable with respect to the local

culture regarding fees charged in civil rights cases

supported these rates, the judge implicitly accepted

them, and that finding is warranted. By contrast, the

plaintiff offered nothing regarding the levels of skill or

49a

experience of the remaining attorneys responsible for

1,810.8 of the hours set forth in the application. We

know nothing of their years in practice, the kind of

practice in which they have been engaged, their

experience in this kind of litigation, or anything else

that might guide us in determining appropriate hourly

rates for their services. If inexperienced with regard to

the subject matter, they were not entitled to educate

themselves at the expense of the client (or, as in this

case, the adversary). See Matter of Fordham, 423

Mass. 481, 490 (1996), cert. denied, 519 U.S. 1149

(1997). The judge dealt with the problem by deriving

an over-all average hourly rate of $280 and applying it

across the board to everything, including both *481

the work of lead counsel and the work of all other

attorneys. While this has the virtue of a rough-and-

ready simplicity that fortuitously may do justice, we

prefer an approach, at least in a case of this nature

where lead counsel is such a significant figure in the

process, that separates the rate awarded to lead

counsel from the rate or rates awarded to others. '%

We consider the problem of applying these

considerations to the actual fee application. There is

some precedent for making the determinations

ourselves based on our familiarity with the record and

our awareness of prevailing standards in the relevant

legal community. This practice is often followed in the

Federal courts. See Lipsett v. Blanco, 975 F.2d 934,

943-944 (lst Cir.1992); Gay Officers Action League v.

Puerto Rico, 247 F.3d at 299. However, we believe it to

be the better practice in normal circumstances to

remand so that the matter can be reconsidered by the

trial judge. That judge, having presided at the trial

'. In arriving at his fee award, the trial tudge folded the

plaintiffs expenses (apart from expert witness fees) into the total.

We believe that the plaintiff is entitled to separate reimbursement

for expenses reasonably incurred. Its application sets forth a total

of out-of-pocket expenses apart from those associated with expert

witnesses of $67,037.77. On remand, the trial judge should

determine which of these expenses should be reimbursed.

50a

and related proceedings, is in a superior position to

undertake the evaluation of legal services rendered

and to make the specific findings. The judge shall be

free to act on the present record or to seek

amplification of it as he sees fit.

5. Expert witness fees. We are left with the

question of how to treat the expert witness fees for

which the plaintiff seeks reimbursement of an

additional $48,921.56. The judge recognized that

expert witness fees in cases under 42 U.S.C. § 1983

are not allowable costs under 42 U.S.C. § 1988

beyond the level set forth in 28 U.S.C. § 1821(b). See

Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S.

437, 444-445 (1987). Such fees may be reimbursed

under the Massachusetts Civil Rights Act (Act), and

the judge did so (allowing $47,027). See G.L. c. 12,

§ 111. The defendants contend that this award was

impermissible because the plaintiff did not make

claims under the Act, the case was not tried on that

theory, and the judge erred in any event in

determining that the defendants had violated the Act.

We pass the first two grounds because we *482

conclude that the evidence did not warrant a finding

in the plaintiffs favor under the Act, and thus expert

witness fees could not be awarded.

To recover under the Act, the plaintiff had to

prove “that (1)[its] exercise or enjoyment of rights

secured by the Constitution or laws of either the

United States or of the Commonwealth, (2) have been

interfered with, or attempted to be interfered with, and

(3) that the interference or attempted interference was

by ‘threats, intimidation or coercion.’ ” Swanset Dev.

Corp. v. Taunton, 423 Mass. 390, 395 (1996), citing

G.L. c. 12, § 111. Economic pressure employed to

“coerce individuals to forgo the exercise of their

secured rights” constitutes coercion for purposes of

the statute. See Buster v. George W. Moore, Inc., 438

Mass. 635, 647 (2003). Whether a municipality is

susceptible to suit under the Act has not been decided

definitively. We have held that a municipality is not a

5la

“person” for purposes of the Act. See Howcroft v.

Peabody, 51 Mass.App.Ct. 573, 591-592 (2001).

Earlier cases in the Supreme Judicial Court and in

this court, while concluding on the records presented

that there was insufficient proof of threats,

intimidation, or coercion to justify findings for the

plaintiffs, implied that, were the evidence otherwise,

liability might lie against the municipality or

municipal agency. See Freeman v. Planning Bd. of W.

Boylston, 419 Mass. 548, 564-566, cert. denied, 516

U.S. 931 (1995); Murphy v. Duxbury, 40 Mass.App.cCt.

513, 518-519 (1996). In Swanset Dev. Corp. v.

Taunton, supra at 396, the Supreme Judicial Court

left the question open.

We need not attempt to resolve the issue for

present purposes. Even assuming that there can be

liability on the part of the defendants under the Act,

such a finding could not be made on this record.

There was no evidence that the defendants indulged in

“threats” or “intimidation” with respect to the plaintiff

ox its proposed activities. Thus, the question is

whether there was evidence of “coercion,” and we

conclude that there was not.

The matter appears to be controlled by

Pheasant Ridge Assocs. Ltd. Partnership v. Burlington,

399 Mass. 771, 781 (1987), where, in connection with

an unlawful taking of the plaintiffs property, the court

ruled that the Act did not apply. *483 “[Tjhe taking

did not itself interfere or attempt to interfere with the

plaintiffs’ rights by coercion. The taking was an

attempted direct, preemptive act and did not seek to

coerce any plaintiff to do or not to do anything.

Legislation, even unlawful legislation, lacks any

quality of coercion when that legislation seeks to

eliminate the rights of a person and does not seek to

force that person unwillingly to do or not to do

something otherwise lawful.” Ibid. See Longval uv.

Commissioner of Correction, 404 Mass. 325, 333

(1989) (“A direct violation of a person's rights does not

by itself involve threats, intimidation, o1 coercion and

52a

thus does not implicate the Act”). Here, the record

lacks sufficient evidence of an “animus against the

plaintiffl ] or [its] project .. . umrelated to [the

defendants’] legitimate concerns.” See Murphy v.

Duxbury, supra at 518. There being no liability in this

case pursuant to the Act, it follows that there can be

no award of expert witness fees thereunder.

We add a final observation on the subject of

awards of attorney's fees and costs. The economics of

the practice of law are complex. The increasing levels

of revenues required to sustain the operations of

lawyers and law firms, some unavoidable, some

perhaps self-inflicted, directly influence hourly rates

and the services performed. If attorneys are able to

command those revenues by means of arm’s-length

contractual arrangements entered into with their own

clients, so be it. They cannot, however, expect

routinely to receive them in fee awards entered against

opposing parties. The case of Lewis v. National

Shawmut Bank, 303 Mass. 187, 191 (1939), is old, but

its words are timely:

“The power of a court. . . to require payments

out of the property of litigants to or for the

benefit of counsel who may not have been

employed by those whose estates are thus

diminished and who may have opposed the

latter's interests is a power of great delicacy to

be exercised with extreme caution. It is difficult

to conceive of anything more likely to

undermine public respect for the

administration of justice than a wide spread

suspicion that the courts are aligned in aiding

the distribution among counsel of excessive

proportions of the funds of those who are

unfortunate enough to become involved in

controversy.”

*484 As the prevailing party on the substantive

issues involved in this appeal, the plaintiff also is

53a

entitled to an award of reasonable appellate attorney’s

fees and costs. In accordance with the procedure in

Fabre v. Walton, 441 Mass. at 10-11, the plaintiff may

file an application therefor within fourteen days of the

rescript of this opinion. The defendants will have

fourteen days to respond to the application.

6. Conclusion. The judgment that permanently

enjoins enforcement of the ordinances at issue against

the plaintiff is affirmed. We vacate the order on the

plaintiffs petition for attorney's fees and costs and

remand for further proceedings consistent with this

opinion.

So ordered.

54a

APPENDIX D

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT CLERK'S OFFICE

John Adams Courthouse

One Pemberton Square, Suite 1200

BOSTON, MASSACHUSETTS 02108-1705

(617) 725-8106

September 8, 2006

Ira H. Zaleznik, Esquire

Lawson & Weitzen

88 Black Falcon Ave., Suite 345

Boston, MA 02210

RE: No. 2005-P-0109

T & D VIDEO, INC.

vs.

CITY OF REVERE & another

NOTICE OF DOCKET ENTRY

Please take note that on September 8, 2006,

the following entry was made on the docket of the

above-referenced case:

ORDER; “.... plaintiff .. has petitioned for

rehearing on a single aspect of ... fee-award section ...

We are not persuaded ... it is ...business ... of ...

Appeals Court ...to pass upon fee requests pertaining

to proceedings in the Supreme Judicial Court. Petition

for rehearing denied. (L KN CW, JJ.) Notice/Image

(copy given in hand to Neal Quenzer)

55a

Very truly yours,

The Clerk’s Office

Dated; September 8, 2006

To: Allen C. B. Horsley, Esquire

Mark A. Walsh, Esquire

Ira H. Zaleznik, Esquire

56a

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

05-P-109

T&D VIDEO, INC.!4

vs.

CITY OF REVERE & others.!5

ORDER

The plaintiff, T&D Video, Inc., has petitioned for

rehearing on a single aspect of the fee-award section

of the decision, see T&D Video, Inc v. Revere, 66 Mass.

App. Ct. 461, 478 (2006), wherein we reversed that

portion of an attorney's fee award that related to the

defendants appeal of the preliminary injunction in the

Supreme Judicial Court. The essence of the plaintiff's

position appears to be that, because only an

interlocutory appeal was involved, the plaintiff had not

yet achieved the status of a “prevailing party” for fee

application purposes.

We disagree. We believe that the plaintiff

prevailed in that case before the Supreme Judicial

Court, and its status as the prevailing party in that

appeal became fixed when the court returned its

decision regardless of what might happen in

subsequent proceedings regarding a permanent

injunction. Of greater importance is our view that the

question is not one of timing, but rather of location.

We are not persuaded that it is the business either of

'4 Doing business as Moonlite Reader.

'S Zoning board of appeals of Revere and the building

inspector of Revere.

57a

the Appeals Court or of a trial court to pass upon fee

requests pertaining to proceedings in the Supreme

Judicial Court.

Petition for rehearing denied.

By the Court (Laurence, Kantrowitz

& Cowin, JJ.),

/s/ Lena M. Wong

Asst. Clerk

Entered: September 8, 2006

58a

APPENDIX E

Supreme Judicial Court for the

Commonwealth of Massachusetts

John Adams Courthouse

One Pemberton Square, Suite 1400, Boston,

Massachusetts 02108-1724

Telephone 617-557-1020, Fax 617-557-1145

Ira H. Zaleznik, Esquire

Lawson & Weitzen

88 Black Falcon Ave., Suite 345

Boston, MA 02210

RE: Docket No. FAR-15584

T & D VIDEO, INC.

vs.

CITY OF REVERE & others

Suffolk Superior Court No. SUCV1994-06216

A.C. No. 2005-P-0109

NOTICE OF DENIAL OF F.A.R. APPLICATION

Please take note that on 09/28/06, the above-

captioned Application for Further Appellate Review

was denied. (Cowin, J., recused)

Susan Mellen, Clerk

Dated: September 28, 2006

To: Allen C. B. Horsley, Esquire

Ira H. Zaleznik, Esquire

59a

APPENDIX F

Supreme Judicial Court for the

Commonwealth of Massachusetts

John Adams Courthouse

One Pemberton Square, Suite 1400, Boston,

Massachusetts 02108-1724

Telephone 617-557-1020, Fax 617-557-1145

Dated: December 15, 2006

Ira H. Zaleznik, Esquire

Lawson & Weitzen

88 Black Falcon Ave., Suite 345

Boston, MA 02210

RE: No. FAR-15750

T&D VIDEO, INC.

vs.

CITY OF REVERE & others

Suffolk Superior Court No. SUCV1994-06216

A.C. No. 2005-P-0109

NOTICE OF LIMITED ALLOWANCE OF

APPLICATION FOR FURTHER APPELLATE REVIEW

Please take note that on December 15, 2006,

the above-captioned Application for Further Appellate

Review was allowed, limited to the issues in the

plaintiffs application regarding its request for

appellate attorney's fees related to the appeal of the

preliminary injunction (T_& D Video, Inc. v. Revere,

423 Mass. 577 (1996)). (Cowin, J., recused)

Upon receipt of the case papers from the

Appeals Court, notice will be sent to counsel

60a

indicating the new S.J.C. docket number, the number

of briefs/appendices transferred, and the Sitting to

which the case is assigned for argument before the full

bench.

Susan Mellen, Clerk

To: Allen C. B. Horsley, Esquire

Mark A. Walsh, Esquire

Ira H. Zaleznik, Esquire

6la

COMMONWEALTH OF MASSACHUSETTS

SUPREME JUDICIAL COURT FOR THE COMMONWEALTH

In the case No. FAR-15750

T&D VIDEO, INC.

vs.

CITY OF REVERE & others

ORDER

It is hereby ORDERED that the above-captioned

application for further appellate review be, and hereby

is ALLOWED, limited to the issues in the plaintiffs

application regarding its request for appellate

attorney's fees related to the appeal of the preliminary

injunction (T_& D Video, Inc. v. Revere, 423 Mass. 577

(1996)). Notice to counsel.

By the Court (Cowin, Jr. recused),

/s/ Susan Mellen

Susan Mellen, Clerk

ENTERED: December 15, 2006

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.