                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-6-2001

County of Morris v. Nationalist Movement
Precedential or Non-Precedential:

Docket 00-2621




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Filed November 16, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 00-2621 & 00-3569

COUNTY OF MORRIS

v.

NATIONALIST MOVEMENT, Appellant

On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civ. No. 00-cv-02480)
District Judge: Honorable John W. Bissell

Argued: April 17, 2001

Before: BECKER, Chief Judge, MCKEE, Circuit Judge, and
POLLAK, District Judge.*

(Filed: November 16, 2001)

       RICHARD BARRETT, ESQUIRE
        (ARGUED)
       P.O. Box 2050
       Learned, MS 39154

Counsel for Appellant



_________________________________________________________________
* The Honorable Louis H. Pollak, United States District Judge for the
Eastern District of Pennsylvania, sitting by designation.
       RONALD KEVITZ, ESQUIRE
        (ARGUED)
       Office of County Prosecutor
       Morris County, P.O. Box 900
       Court and Washington Streets
       Morristown, New Jersey 07963

       Counsel for Appellee

OPINION OF THE COURT

POLLAK, District Judge.

On May 10, 2000, appellee, the County of Morris, New
Jersey ("the County"), brought this declaratory judgment
action in state court to establish the constitutionality of its
policies regulating the private use of county facilities in the
face of threatened litigation by the Nationalist Movement, a
Mississippi-based private non-profit organization that
sought to hold (and, in the event, did hold) a parade and
rally in Morristown, the county seat, on July 4, 2000. After
the case was removed to federal court, the District Court
determined that the steps and lawn of the Morris County
Courthouse were not a public forum and, thus, the County
could reasonably preclude the Nationalist Movement from
using the courthouse steps for their rally. Additionally, the
District Court held that some portions of the County's
policies did, and some did not, pass constitutional muster.
On appeal, the Nationalist Movement contends that the
District Court erred when it decided that the Nationalist
Movement did not have a First Amendment right to
demonstrate on the steps and lawn of the courthouse. The
Nationalist Movement also contests the District Court's
decision to deny its application for attorney's fees.

We conclude that events which occurred subsequent to
the contested orders render this appeal moot as to the
Nationalist Movement's claim of right to use the courthouse
steps and lawn, though not as to the question of attorney's
fees.

I. Background

The scenario giving rise to the present action began with
a request by the Nationalist Movement for permission to

                               2
hold a parade and rally in Morristown on July 4, 2000.
From the correspondence between the Nationalist
Movement and the County that followed, areas of

disagreement became apparent as to the exact location of
the planned event and the parties' respective financial
responsibility for costs related to the demonstration.

In a letter dated March 21, 2000, Richard Barrett, as
First Officer of the Nationalist Movement, informed the
Morris County Board of Freeholders that the group
intended to hold an "Independence from Affirmative-Action
Day" parade and rally in Morristown on July 4. The letter
stated that the purpose of the event was to "celebrate the
Fourth of July, call for abolition of Affirmative-Action and
voice support for former State Police Chief, Carl Williams."
As envisioned by the Nationalist Movement, the parade
would take place on a public street and culminate in a rally
on the steps and lawn of the County Courthouse.
Specifically, the Nationalist Movement requested the
following accommodations:

       Kindly reserve area from 9:00 AM (at which time
       decorating will take place, followed by assembly at the
       Green for paraders at 11:00 AM) until 4:00 PM. The
       parade will step off at Noon from the Green, proceed to
       and around the Courthouse. The rally -- including
       ceremonies, petitions and speeches -- will begin at
       12:30 PM at the Courthouse steps at Washington
       Street and last until approximately 3:00 PM, followed
       by disassembly of the equipment and signing of
       petitions. The event will be open to the pro-majority
       public, who we decide to admit.

Further, Mr. Barrett's letter stated that the Nationalist
Movement expected approximately 50 paraders and 100
spectators, requested adequate security to deal with
anticipated violent counter-demonstrators, and sought
assurance that it would have access to an electrical outlet,
restroom facilities, and parking.

In a letter dated April 26, 2000, the County
Administrator, James J. Rosenberg, sent Mr. Barrett a copy
of the then-Policy and Procedure Guidelines No. 4:1.01
("policy 4:1.01"), which governed the use of public facilities,

                               3
together with related forms for completion. County
Administrator Rosenberg added:

       In view of the potential damages, that you have
       brought to my attention, which may occur during your
       anticipated rally on County property here in
       Morristown, you will be required to provide insurance
       in the amount of $3,000,000 for liability insurance for
       bodily injury and $5,000,000 aggregate for property
       damage liability. Said insurance shall conform and
       comply with all aspects of Section IV, Insurance
       Requirements of the above stated Policy and Procedure.

The County Administrator also stated that, because July
4 was a holiday, the courthouse would be closed and
that -- due to a concern regarding the volume of holiday
traffic -- Washington Street (the street at the front of the
courthouse) would not be closed. As an alternative to the
Nationalist Movement's proposed plans, the County
Administrator suggested that the Nationalist Movement
assemble at the rear of the courthouse on the Ann Street
Parking Deck. Moreover, the letter provided that:

       All parades, assemblies, rallies, and the like must
       assume the responsibility and pay for the costs of
       additional police, fire and public works support above
       the normal daily levels of staffing. Additional support
       agreed to prior to the event shall be used as a guide.
       However, costs assessed to the event will be actual,
       based on the number of personnel required and
       utilized.

Mr. Barrett, on behalf of the Nationalist Movement,
responded with a May 4, 2000 letter, in which he (a)
undertook to "appeal" the County Administrator's letter to
the Board of Freeholders, and (b) questioned the
constitutionality of policy 4:1.01 on First Amendment
grounds. At the same time, the Nationalist Movement
completed and returned the application forms, noting that
by doing so the group was not waiving its objections to the
fee and rental provisions. Moreover, the Nationalist
Movement indicated that it would not agree to relinquish
use of the front of the courthouse or Washington Street and
warned that it "intend[ed] to hold the County and any and

                               4
all individuals individually liable" under 42 U.S.C. S 1983
for violations of the group's First Amendment rights.

The County then filed a declaratory judgment action in
state court seeking judicial confirmation -- prior to the
anticipated event -- of the constitutionality of the actions
the County intended to take pursuant to policy 4:1.01. The
Nationalist Movement removed the case to the United
States District Court for the District of New Jersey and filed
a counterclaim under 42 U.S.C. SS 1983 and 1985, alleging
violation of its First Amendment rights, along with an
application for preliminary and permanent injunctions,
compensatory and punitive damages, attorney's fees, and
declaratory relief.

II. The District Court's Rulings

After denying a motion by the County to remand the case
to state court, the District Court conducted an evidentiary
hearing over the course of four days and issued an oral
opinion from the bench on June 22, 2000. The opinion
announced orally was reflected in a written order dated
June 27, 2000. Prior to the ruling, the parties had agreed
to a parade route and had agreed that the Nationalist
Movement would be allowed to admit only supporters to its
rally. The District Court noted these areas of agreement,
concluding: "Condensed to its essence, this case requires a
determination of what areas involved are public forums and
what conditions which the County would or could impose
upon the Nationalist Movement are permissible." Finding
ample alternative venues for the rally, the District Court
held that the steps and lawn of the courthouse did not
constitute a public forum either by tradition or by
designation. Rather, the District Court found that the steps
were "merely a means of ingress and egress" to the
courthouse, and that the lawn was not a park but an
"aesthetic enhancement" to the building. Thus, the District
Court held that the County might place reasonable
restrictions on the use of those areas if those restrictions
did not constitute "an effort to suppress expression merely
because public officials oppose the speaker's view." The
District Court concluded that previous use of the
courthouse steps and front lawn for an annual county-
sponsored Memorial Day observance "does not transform

                               5
that area into a public forum for other persons or entities;
nor does the occasional, impromptu press conference or
announcement by a political candidate from the
Courthouse steps." The District Court stated:"This Court
cannot and will not dictate where [the rally] will take place."
However, the District Court suggested that the County close
all or part of Court Street for the holiday, specifically the
portion of Court Street abutting Washington Street near the
front of the courthouse.

The District Court also examined the County's policy
4:1.01 which, the District Court noted, represented the sole
written authority upon which the County relied when it
responded to the Nationalist Movement's request. Despite a
finding that the County's decision-making had not in fact
been influenced by personal or institutional opposition to
the content of the Nationalist Movement's message, the
District Court determined that portions of policy 4:1.01
were invalid and unenforceable. In particular, the District
Court found (a) that the County's hold-harmless provision
was overly broad;1 (b) that a provision subjecting all
applications to approval by the County Administrator
constituted, on its face, "a totally discretionary realm for
the County Administrator, with no expressed standards and
one, frankly, which at least has a potential for abuse"; and
(c) that a provision allowing the County to charge a fee for
the use of its facilities without providing any schedule of
fees, a cap, or provisions for waivers amounted to"the very
type of indefinite, imprecise and potentially arbitrary
provision which the Forsyth County decision[Forsyth
County v. Nationalist Movement, 505 U.S. 123 (1992)]
determined to be unconstitutional." Likewise, the District
Court found the insurance provision to be unenforceable.
Additionally, the District Court determined that it was
unreasonable for the County to assess against the
Nationalist Movement the anticipated costs of police, fire,
and other emergency services. Finally, the District Court
denied the Nationalist Movement's S 1983 counterclaim as
premature based on the finding that the County -- which
had filed its declaratory judgment action to ensure that it
_________________________________________________________________

1. The District Court encouraged the parties to negotiate a more limited
hold-harmless provision.

                               6
conformed its behavior to the requirements of the First
Amendment -- had not yet violated any of the Nationalist
Movement's constitutional rights. Thus, the District Court
concluded that the Nationalist Movement was not a
prevailing party under its counterclaim but did not rule out
an award of attorney's fees with respect to the County's
declaratory judgment action.

On July 4, 2000, the Nationalist Movement held its
parade and rally in Morristown. Although the record does
not contain a full description of the event, it appears that
members of the Nationalist Movement marched on
Washington Street in the vicinity of the County Courthouse
but did not enter onto the courthouse lawn or conduct their
rally from the courthouse steps.2
_________________________________________________________________

2. By letter to Ronald Kevitz, Morris County Counsel, dated July 21,
2000, the Nationalist Movement requested permission to use the front
steps and lawn of the Morris County Courthouse during an
Independence Day parade and rally to be held on July 4, 2001.
Approximately six months later, on December 12, 2000, the County
revised policy 4:1.01, perhaps in an effort to remove those elements that
had been held unconstitutional by the District Court in its June 22,
2000 bench opinion. Revisions, some minor and some more substantial,
were made to a number of provisions, including those dealing with the
application procedures, the level of discretion vested in the County
Administrator, the fee provision, and the insurance requirements.

In a June 23, 2001 letter, the Nationalist Movement informed this
court that it had information that the County had changed its policy
regarding use of the courthouse steps and lawn. The County responded
on June 28, 2001 by submitting a certified copy of the minutes of the
June 19, 2001 meeting of the County Board, which included the
following statement: "The safety of all parties is of paramount concern to
the Board of Chosen Freeholders; therefore, we have decided to open the
front lawn of the courthouse for public purpose[sic]. This decision was
based on further consideration and deliberation of last year's experience,
and input from law enforcement." In the accompanying letter of June 28,
2001, the County asserted that the change in policy was not relevant to
this litigation.

According to media reports, the Nationalist Movement -- in the person
of Richard Barrett -- did indeed return to Morristown on July 4, 2001 for
a second march and rally during which "Barrett spoke from the
courthouse steps." Scott Fallon & Yung Kim, 350 Cops Guard Racist
Speaker, The Record, July 5, 2001, at A1.

                               7
On June 29, 2000, the Nationalist Movement filed a
motion for attorney's fees in the amount of $48,750.15. The
motion was supported by an affidavit from Mr.
Barrett -- this time as counsel for the Nationalist

Movement -- in which he included a list of the hours he
spent preparing and litigating the case along with a catalog
of expenses related to copies, a per diem rate, an
"allotment" for time away from his office and home, auto
rental, airfare, and filing fees. On July 28, 2000, Mr.
Barrett filed a supplemental affidavit in support of the
Nationalist Movement's application for attorney's fees.

On August 8, 2000, the District Court denied the
Nationalist Movement's application for an award of
attorney's fees for its role as defendant in the County's
declaratory judgment action. The District Court reasoned
that, because the Nationalist Movement could not establish
a violation of its rights under S 1983, the provision allowing
for a grant of attorney's fees under S 1988 was not
triggered. Alternatively, assuming arguendo that S 1988 did
authorize consideration of the Nationalist Movement's
application for attorney's fees, the District Court
determined that it was nonetheless proper to deny such an
award. The District Court reasoned that, notwithstanding
the Nationalist Movement's success in challenging certain
provisions of policy 4:1.01, the Nationalist Movement did
not prevail on the central issue of access to the courthouse
steps and lawn, several issues were resolved by consent,
counsel made "no effort to distinguish between time spent"
on successful rather than on unsuccessful claims, and
"[t]he Nationalist Movement's application for attorney's fees
and expenses . . . is so flawed, unsupported and inflated as
to draw into question the good faith of that submission. At
the very least the Court could not properly quantify
amounts allegedly due." On October 2, 2000, the District
Court denied the Nationalist Movement's motions for
reconsideration of the June 22, 2000 bench opinion, the
June 27, 2000 order reflecting the June 22 opinion, and
the August 8, 2000 order.

III. Discussion

A. Mootness

We first address the issue whether this declaratory
judgment action -- brought to determine the respective

                               8
rights of the parties with respect to the July 4, 2000
event -- is now moot. Article III of the Constitution provides
that the "judicial Power shall extend to . . . Cases . . . [and]
to Controversies." U.S. Const. art. III, S 2. This grant of
authority embodies a fundamental limitation restricting the
federal courts to the adjudication of "actual, ongoing cases
or controversies." Khodara Envtl., Inc. v. Beckman, 237 F.3d
186, 192-93 (3d Cir. 2001). The mootness doctrine is
centrally concerned with the court's ability to grant effective
relief: "If developments occur during the course of
adjudication that eliminate a plaintiff's personal stake in
the outcome of a suit or prevent a court from being able to
grant the requested relief, the case must be dismissed as
moot." Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690,
698-99 (3d Cir. 1996). Moreover, the requirement that an
action involve a live case or controversy extends through all
phases of litigation, including appellate review. See Khodara
Envtl., Inc., 237 F.3d at 193 (citing Lewis v. Continental
Bank Corp., 494 U.S. 477 (1990)).

Both parties urge this court to reach the merits. The
Nationalist Movement contends that -- notwithstanding the
fact that July 4, 2000 has come and gone -- this case
survives a mootness inquiry because it is "capable of
repetition, yet evading review." S. Pac. Terminal Co. v. ICC,
219 U.S. 498, 515 (1911); DeFunis v. Odegaard , 416 U.S.
312, 318-19 (1974). Similarly, the County contends that
this case is not moot because the Nationalist Movement
"apparently intends to pursue [holding an Independence
Day rally on the courthouse steps and lawn] until such
future time as the County agrees to it or a court orders it."3
We are not persuaded by either variation of what is
essentially the same argument. The exception from the
mootness doctrine for cases that are technically moot but
"capable of repetition, yet evading review" is narrow and
available "only in exceptional situations." City of Los
Angeles v. Lyons, 461 U.S. 95, 109 (1983); Weinstein v.
Bradford, 423 U.S. 147, 148-49 (1975). This is not such a
_________________________________________________________________

3. The County also invites us to decide the mootness question according
to New Jersey law on the ground that it initially filed its declaratory
judgment action under state law. However, we are bound by the
justiciability threshold established by the United States Constitution.

                               9
situation. The instant declaratory judgment action was
instituted in order to resolve specific questions regarding
what was then an upcoming parade and rally scheduled for
July 4, 2000. The District Court conducted hearings on an
expedited basis and rendered an opinion in time to guide
the parties' conduct during that event. With respect to any
dispute that might arise in connection with future
Independence Day activities, the parties, if unable to
resolve their differences, would have ample opportunity to
bring a new lawsuit and to develop a record reflective of the
particular circumstances attendant on that dispute. Thus,
we will dismiss as moot that aspect of the Nationalist
Movement's appeal that addresses whether the courthouse
steps and lawn constitute a public forum.4

B. Attorney's Fees

We now turn to the question of attorney's fees. As a
preliminary matter, we note that an award of attorney's fees
with respect to the trial phases of a case is not precluded
when a case becomes moot during the pendency of an
appeal. See Jersey Cent. Power & Light Co. v. New Jersey,
772 F.2d 35, 41 (3d Cir. 1985); LaRouche v. Kezer, 20 F.3d
68, 75 (2d Cir. 1994). The Nationalist Movement contends
that the District Court erred when it denied its application
_________________________________________________________________

4. Our mootness determination is fortified by the fact that, on December
13, 2000, the County revised portions of policy 4:1.01 which the District
Court had held unconstitutional in its June 22, 2000 opinion.
Additionally, on June 19, 2001, the County revised its policy with
respect to the substantive issue appellant Nationalist Movement presses
on this appeal -- that is, private use of the courthouse steps and lawn.
See supra note 2. Other courts that have addressed comparable
situations have also found mootness. See Diffenderfer v. Cent. Baptist
Church of Miami, Fla., Inc., 404 U.S. 412, 414-15 (1972) (determination
of constitutionality of specific application of repealed statute is
inappropriate); Khodara Envtl. Inc., 237 F.3d at 193 (passage of an
amendment to federal statute mooted litigation challenging prior version
of statute); Citizens for Responsible Gov't State Political Action Comm.
v.
Davidson, 236 F.3d 1174, 1182 (10th Cir. 2000). Thus, evidence that
appellant has expressed its intent to hold Independence Day events at
the courthouse in 2002 and 2003 cannot breathe life back into the
controversy considered by the District Court with respect to the events
of July 4, 2000.

                               10
for attorney's fees in toto. Specifically, the Nationalist
Movement asserts that its success in defending against the
declaratory judgment action brought by the County
established it as a prevailing party entitled to attorney's
fees under 42 U.S.C. S 1988. The County argues that the
Nationalist Movement is not entitled to an award of
attorney's fees because the County initiated this declaratory
judgment action and, thus, no incentive was needed to
spur the private bar to handle this case. In the alternative,
the County adopts the District Court's argument that,
assuming arguendo that the Nationalist Movement was a
prevailing party, the District Court did not abuse its
discretion when it denied an award of attorney's fees on the
grounds that (a) the issues on which the Nationalist
Movement prevailed did not constitute the central issues in
dispute and (b) the fee application was highly irregular and
exaggerated.

While we exercise plenary review over the legal issues
relating to the appropriate standard under which to
evaluate an application for attorney's fees, see Washington
v. Philadelphia County Ct. Com. Pl., 89 F.3d 1031, 1034-35
(3d Cir. 1996), we review the reasonableness of a district
court's award of attorney's fees for an abuse of discretion,
see Krueger Assocs., Inc. v. Am. Dist. Tel. Co. of Pa., 247
F.3d 61, 69 (3d Cir. 2001); Washington, 89 F.3d at 1034.

In this case, we are asked to review three aspects of the
District Court's ruling on attorney's fees: (1) whether S 1988
supports an award of attorney's fees in light of the
dismissal of the Nationalist Movement's S 1983
counterclaim; (2) whether the Nationalist Movement was a
"prevailing party"; and, in the alternative, (3) whether the
Nationalist Movement's application was so inadequate as to
justify a complete denial. The first two questions raise legal
issues and, thus, warrant plenary review. The remaining
question directed at the adequacy of the fee application
implicates both the legal standard for evaluating the
specificity of an application (over which we exercise plenary
review), see Washington, 89 F.3d at 1038, and the factual
finding that certain expenses billed were excessive and
unreasonable (which we review for clear error), id. at 1039.

                               11
Under the general rule, each party bears its own costs
and attorney's fees. See Alyeska Pipeline Serv. Co. v.
Wilderness Soc'y, 421 U.S. 240, 247 (1975). Here, the
Nationalist Movement relies on 42 U.S.C. S 1988(b) to
authorize an award of attorney's fees. Section 1988(b)
states in pertinent part: "In any action or proceeding to
enforce a provision of section[ ] . . . 1983 . . . of this title
. . . , the court, in its discretion, may allow the prevailing
party . . . a reasonable attorney's fee as part of the costs."
Although the statute expressly refers to a district court's
discretion, it is well settled that a prevailing plaintiff should
recover an award of attorney's fees absent special
circumstances. See Newman v. Piggie Park Enters., Inc.,
390 U.S. 400, 402 (1968).

We first consider whether the dismissal of appellant's
S 1983 counterclaim justified denial of an award of
attorney's fees in this case. The District Court stated:

       [A]lthough the issues tried included several which
       implicated the "rights [of the Nationalist Movement]
       secured by the Constitution," [quoting 42 U.S.C.
       S 1983] there was never a "deprivation" of such rights
       at any time through to and including July 4, 2000. To
       reiterate, before making any decisions which could
       have trod upon such rights, Morris County sought,
       received and followed the rulings of a court of
       competent jurisdiction in order that there be no
       "deprivation" of the Nationalist Movement's rights.
       Having failed to establish a violation of S 1983 (or any
       other statute referred to in S 1988) the Nationalist
       Movement is not entitled to an award of attorney's fees.

The District Court was correct in ruling that S 1988(b)
does not provide for attorney's fees independent of a
violation of one of the statutes enumerated in that
provision, here S 1983. See Tunstall v. Office of Judicial
Support of the Ct. Com. Pl., 820 F.2d 631, 633 (3d Cir.
1987). However, we disagree with the District Court's
conclusion that appellant did not prevail on a S 1983 claim.
We need not revisit the dismissal of appellant's
counterclaim in order to ascertain that the County's
declaratory judgment action is the mirror image of aS 1983
suit. The District Court acknowledged that the issues

                               12
underlying the Nationalist Movement's S 1983 counterclaim
were identical to the issues at stake in the County's
declaratory judgment action. Thus, to conclude that
appellant did not prevail on any issues under S 1983 would
grant unwarranted significance to the fact that the
Nationalist Movement was nominally the defendant rather
than the plaintiff in this case. See Ams. United for
Separation of Church & State v. Sch. Dist., 835 F.2d 627,
631 (6th Cir. 1987) (S 1988 concerned with substance, not
form).

Because the Nationalist Movement indisputably prevailed
on significant issues in the present action to the extent that
portions of policy 4:1.01 were held unconstitutional, we
conclude that the Nationalist Movement is a prevailing
party under S 1988. See Buckhannon Bd. & Care Home v.
W. Va. Dep't of Health & Human Servs., 532 U.S. 598, ___,
121 S. Ct. 1835, 1839 (2001) (a prevailing party"is one
who has been awarded some relief by the court"); Farrar v.
Hobby, 506 U.S. 103 (1992) (holding that a plaintiff who
wins only nominal damages is a prevailing party under
S 1988). Thus, we will remand this case to the District
Court for further proceedings to establish the proper award
of attorney's fees.5

IV. Conclusion

For the reasons stated above, we (1) dismiss as moot the
Nationalist Movement's appeal from the District Court's
rejection of the Nationalist Movement's claim of a right to
use the courthouse steps and lawn for a rally, and (2)
_________________________________________________________________

5. The District Court stated that the Nationalist Movement's fee
application was deficient because Mr. Barrett made"no effort to
distinguish between time spent" on successful rather than on
unsuccessful claims. It is, of course, within the District Court's
authority
to demand clear information upon which to base an award of attorney's
fees.

The District Court also criticized appellant's application for the
inclusion of numerous "phantom" transportation expenses and for
including an unsubstantiated "allotment" for time counsel spent away
from his office to handle the present case which amounted to "more than
40% of the total legal fees sought." There would appear to be substantial
legitimacy in these criticisms.

                                13
remand the case to the District Court for further
proceedings consistent with this opinion as to the

Nationalist Movement's application for attorney's fees.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               14
