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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII

Hawaii Defense Foundation, Christopher Baker, and Derek Scammon

) CASE NO. CV 12-00469JMS-RLP ) ) ) MEMORANDUM IN SUPPORT OF Plaintiffs, ) MOTION FOR ATTORNEYS’ FEES vs. ) ) City and County of Honolulu; ) Andrew Lum, in his personal and ) official capacity; ) John Does 1-10 in their personal and ) official capacities. ) ) Defendants. ) ________________________________ )

MEMORANDUM IN SUPPORT OF MOTION FOR ATTORNEYS’ FEES

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TABLE OF CONTENTS I. II. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . STATEMENT OF FACTS AND PROCEDURAL HISTORY . . . . . . . . . . . . . . . . . . . . 1

.... 2 7

III.

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A. Plaintiffs are entitled to Attorneys’ Fees and Costs. . . . . . . . . . . . . . . . . . . . . . B. The Lodestar Method justifies the requested fee. . . . . . . . . . . . . . . . . . . . . . .

7

9

C. Counsel deserves at least the hourly Rate contemplated by the “Laffey Matrix.” . . . . . . . . . 13 D. Johnson/Kerr Factors . . . . . . . . . . . . . . . . . . . . . . . . . . IV. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TABLE OF AUTHORITIES Reported Cases: Bland v. Roberts, 730 F.3d 368 (4th Cir. 2013) . . . . . . . . . . . . . . . . . Blum v. Stenson, 465 U.S. 886 (1984) . . . . . . . . . . . . . . . . . . . . . . . Buckhammon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598 (2001) . . . . . . 34 13 34 35

8

Chalmers v. City of Los Angeles, 796 F.2d 1205 (9th Cir. 1986) . . . . 9, 10, 31 Church of Scientology Flag Service Organization, Inc. v. City of Clearwater, 2 F.3d 1514 (11th Cir.1993) . . . . . . . . . . . . . . . .

8

i

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City of Burlington v. Dague, 505 U.S. 557 (1992) . . . . . . . . . . . . . .

10

City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283 (1982) . . . . . 8 City of Riverside v. Rivera, 477 U.S. 561 (1986) . . . . . . . . . . . . . . . . Davis v. City & Cnty. of San Francisco, 976 F.2d 1536 (9th Cir.1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Dennis v. Chang, 611 F.2d 1302 (9th Cir. 1980) . . . . . . . . . . . . . . . . 9, 10-11

10, 17 11-12

Doe v. Keala, 361 F.Supp.2d 1171 (D. Haw. 2005) . . . . . . . . . . . . . . 24 Farrar v. Hobby, 506 U.S. 103 (1992) . . . . . . . . . . . . . . . . . . . . . . . 7-8

F.T.C. v. Affordable Media, 179 F.3d 1228 (9th Cir. 1999) . . . . . . . . 8 Gates v. Deukmijian, 987 F.2d 1392 (9th Cir. 1992) . . . . . . . . . . . . . Hensley v. Eckerhart, 461 U.S. 424 (1983) . . . . . . . . . . . . . . . . . . . . 23-24 7, 10

Interfaith Community Organization v. Honeywell International, Inc., 426 F.3d 694 (3rd Cir. 2005) . . . . . . . . 32 Jordan v. Multnomah County, 815 F.2d 1258 (9th Cir. 1987) . . . . . . 13 Kay v. Ehrier, 499 U.S. 432 (1991) . . . . . . . . . . . . . . . . . . . . . . . . 12

Kerr v. Quinn, 692 F.2d 875 (2nd Cir. 1982) . . . . . . . . . . . . . . . . . . . 11 Kerr v. Screen Actors Guild, Inc., 526 F.2d 67 (9th Cir. 1975) . . . . . . 10 McGrath v. Cty. Of Nevada, 67 F.3d 248 (9th Cir. 1995) . . . . . . . . . . 10 Missouri v. Jenkins, 491 U.S. 274 (1989) . . . . . . . . . . . . . . . . . . . . . . 13 Moreno v. City of Sacramento, 534 F.3d 1106 (9th Cir. 2008) . . . . . . 12, 26, 27 Page v. Lexington County School District, 531 F.3d 275 (4th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
ii

34

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Philips v. Pennsylvania Higher Education Assistance Agency, 657 F.2d 554 (3rd Cir.1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Prison Legal News v. Schwartznegger, 608 F.3d 446 (9th Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

8

32

Robinson v. Plourde, 717 F.Supp.2d 1092 (D.Haw. 2010) . . . . . . . . . 15 Solomon v. City of Gainesville, 763 F.2d 1212 (11th Cir.1985) . . . . . . 8 Sutliffe v. Epping School District, 584 F.3d 314 (1st Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . United States v. W. T. Grant Co., 345 U.S. 629 (1953) . . . . . . . . . . . World Triathalon Corp. v. Dunbar, 539 F. Supp. 2d 1270 (D. Haw. 2008) . . . . . . . . . . . . . . . . . . . . . . . . Unreported Cases: (Attached in Appendix) Aloha Airlines, Inc. v. Mesa Air Grp., Inc., 07-00007 DAEKSC, 2007 WL 2320672 (D. Haw. Aug. 10, 2007) . . . 15 Angel v. Capital Research Grp., Inc., CIV 10-00364 HG/KSC, 2012 wl 2563168 (D. Haw. June 28, 2012) . . . . . . . . . . . . . . . . . . . . Au v. The Funding Group, Inc., No. CV 11–00541 SOM–KSC, 2013 WL 1187919 (D.Haw. Mar. 21, 2013) . . . . . . . . . . . . . . . . . . .

34 8

20, 23

21

22

B.T. ex rel. M.T. v. Dep't of Educ., Hawaii, CIV. 10-00754 JMS, 2011 WL 3022042 (D. Haw. July 21, 2011) . . . 23 Bandalan v. Castle & Cooke Resorts, LLC, CIV 07-00591 DAE-LEK, 2009 WL 1955328 (D. Haw. June 30, 2009) . . . . . . . . . . . . . . . . . . .

22

iii

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Barnes v. AT $ T Pension Benefit Plan – Nonbargained Program, C-08-4508 EMC, 2013 WL 3870291 (N.D.Cal. July 26, 2013) . . . . . . 7 Berry v. Hawiian Exp. Serv., Inc., 03-00385 SOMLEK, 2006 WL 4102120 (D. Haw. Oct. 25, 2006) . . . . . . . . . . . . . . . . . . . Black v. City, Cnty. Of Honolulu, CV 07-00299 DAE-LEK, 2010 wl 653026 (D.Haw. Feb. 22, 2010) . . . . . . . . . . . . . . . . . . . . . . Blake v. Nishimura, CIV 08-00281 LEK, 2008 wl 4754858 (D. Haw.) . . . . . . . . . . . . . . . . . . . . . . . . . . .

20-21

17

. . . . 18, 22, 23

Boles v. Engle, CIV 08-00438 ACK-KSC, 2009 WL 1035065 (D. Haw. Mar. 12, 2009) . . . . . . . . . . . . . . . . . . .

18, 23

C.Y. ex rel. Cheryl Y. v. Dep't of Educ., Hawai'i, CIV. 11-00335 JMS, 2011 WL 7102572 (D. Haw. Dec. 29, 2011) . . . 23 D.C. v. Dep't of Educ., CIV.07-00362 ACK-KSC, 2008 WL 2884657 (D. Haw. May 28, 2008) . . . . . . . . . . . . . . . . . . .

19-20, 23

Dep't of Educ. Hawai"i v. C.B. ex rel. Donna B., CIV. 11-00576 SOM, 2012 WL 7475406 (D. Haw. Sept. 28, 2012) . . 16-17, 21-22, 23, 29 Donkerbrook v. Title Guar. Escrow Servs., Inc., Civ No. 10–00616 LEK–RLP, 2011 WL 3649539, (D.Hawai'i Aug.18, 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Frankl v. HGH Corp., CIV. 10-00014 JMS, 2012 WL 1755423 (D. Haw. Apr. 23, 2012) . . . . . . . . . . . . . . . . . . . Goray v. Unifund CCR Partners, CIV. 06-00214 HG-LEK, 2008 WL 2404551 (D. Haw. June 13, 2008) . . . . . . . . . . . . . . . . . . .

35

27, 32, 33

19, 23

iv

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Harris v. Trash Man, LLC, CIV. 12-00169 HG-KSC, 2013 WL 1932715 (D. Haw. Apr. 16, 2013) . . . . . . . . . . . . . . . . . . . Hawaii Disability Rights Center, et. al. v. State of Hawaii, Civ. No. 03-00524 HG-KSC (D.Haw. 2005) . . . . . . . . . . . . . . . . . . .

14, 26, 29

24

I.T. ex rel. Renee T. v. Dep't of Educ., Hawaii, CIV. 11-00676 LEK, 2012 WL 6969333 (D. Haw. Nov. 30, 2012) . . .16, 23 Mullen v. United States Army Crim. Investigation Command, No. 1:10-cv-262 (JCC/TCB), 2012 wl 2681300 (E.D. Va. July 6, 2012) . . . . . . . . . . . . . . . . . . . . .

7

Ireijo v. Agnew, CIV. 07-00290JMS/LEK, 2007 WL 4633328 (D. Haw. Sept. 26, 2007) . . . . . . . . . . . . . . . . . . . 20 Ko Olina Dev., LLC v. Centex Homes, CIV. 09-00272DAE-LEK, 2010 WL 447451 (D. Haw. Feb. 9, 2010) . . . . . . . . . . . . . . . . . . . . .

17, 23

Kuroiwa v. Lingle, CIV 08-00153 JMS-KSC, 2008 wl 4483772 (D. Haw. Sept. 29, 2009) . . . . . . . . . . . . . . . . . . . . 18-19, 23 Mabson v. Ass'n of Apartment Owners of Maui Kamaole, CV 06-00235 DAELEK, 2008 WL 2061529 (D. Haw. Feb. 26, 2008) . . . . . . . . . . . . . . . . . . . Nat'l Comm'n for Certification of Crane Operators v. Ventula, CIV.09-00104SOM-LEK, 2010 WL 2179505 (D. Haw. Apr. 30, 2010) . . . . . . . . . . . . . . . . . . .

20, 23

14, 17, 23

Onishi v. Redline Recovery Servs., LLC, CIV. 10-00259, 2010 WL 5128723 (D. Haw. Nov. 12, 2010) . . . . . . . 14 Paramount Pictures Corp. v. Carroll, CV 05-00260 ACKLEK, 2006 WL 1990815 (D. Haw. July 13, 2006) . . . . . . . . . . . . . . . . . . . .14-15, 21, 26

v

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Parr v. JS & W Hawai'i, Inc., CIV 06-00041 JMS-LEK, 2006 WL 2850097 (D. Haw. Oct. 2, 2006) . . . . . . . . . . . . . . . . . . . .

21

Ramos v. Murakami, CV 06-00126 HG-LEK, 2006 WL 3248376 (D. Haw. Nov. 6, 2006) . . . . . . . . . . . . . . . . . . . . 20 Sakaria v. FMS Inv. Corp., CIV. 08-00330 SOMLEK, 2009 WL 1322356 (D. Haw. May 12, 2009) . . . . . . . . . . . . . . . . . . .

18, 23

Sam K. ex rel. Diane C. v. Dep't of Educ., Hawaii, CIV. 12-00355 ACK, 2013 WL 3071317 (D. Haw. June 17, 2013) . . . 16, 23, 28 Seo Jeong Won v. England, CIV.07-00606 JMS LEK, 2008 WL 3850485 (D. Haw. Aug. 18, 2008) . . . . . . . . . . . . . . . . . . . 19 Shea v. Kahuku Hous. Found., Inc., Civil No. 09–00480 LEK–RLP, 2011 WL 1261150 (D.Haw. Mar. 31, 2011) . . . . . . . . . . . . . . . . . . . Sound v. Koller, CV 09-00409 JMS-KSC, 2010 WL 1992198 (D. Haw. Mar. 5, 2010) . . . . . . . . . . . . . . . . . . .

23

17

Trendex Fabrics, Ltd. v. Chad Jung Kim, CIV. 13-00253-LEK, 2013 WL 5947027 (D. Haw. Nov. 5, 2013) . . . 16 Trustees of PAMCAH-UA Local 675 Trust Funds v. Am. Indus. Insulation, LLC, CIV. 10-00412 JMS, 2012 WL 2685083 (D. Haw. June 15, 2012) . . . 29 Trustees of the PAMCAH-UA Local 675 Trust Funds v. Drain-N-Rooter Plumbing, Inc., CIV. 11-00565 SOM, 2012 WL 1409656 (D. Haw. Apr. 3, 2012) . . . 29 Trustees of PAMCAH-UA Local 675 Trust Funds ex rel. Chun v. Ekahi Fire Prot., LLC, CV 13-00100-HG-RLP, 2013 WL 2897794 (D. Haw. June 12, 2013) . 28

vi

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Tylor v. Smart Enter., Inc., CIV. 13-00289 HG-RLP, 2013 WL 6843056 (D. Haw. Dec. 26, 2013) . . . . . . . . . . . . . . . . . . . . 28 US Bank Nat. Ass'n v. Yamamura, CIV.08-00358 DAE-KSC, 2009 WL 5851091 (D. Haw. Sept. 30, 2009) . . . . . . . . . . . . . . . . . . . 18 Ware v. Chertoff, CIV. 04-00671HG-LEK, 2008 WL 2653534 (D. Haw. June 27, 2008) . . . . . . . . . . . . . . . . . . .

19, 23

Wereb v. Cnty. Of Maui, CIV. 09-00198 JMS-LE, 2010 wl 431976 (D. Haw. Feb. 4, 2010) . . . . . . . . . . . . . . . . . . . . . . . 14, 18, 23, 26, 29 Williamson v. Basco, CIV. 06-00012JMS-LEK, 2008 WL 954173 (D. Haw. Apr. 3, 2008) . . . . . . . . . . . . . . . . . . . . .

22

Yamada v. Weaver, CIV. 10-00497 JMS, 2012 WL 6019363 (D. Haw. Aug. 30, 2012) . . . . . . . . . . . . . . . . . . . 15, 27 Statutes and other authority 5 U.S.C. § 5941 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 U.S.C. § 1988 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 25, 26

vii

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I. INTRODUCTION As a result of this lawsuit, Plaintiffs Hawaii Defense Foundation, Christopher Baker, and Derek Scammon are able to exercise their constitutional right to express protected speech on the public forum that is the Honolulu Police Department Facebook web page. Further, the important issues raised in this case, which to counsel’s knowledge was the first of its kind in the nation, resulted in the adoption of a city-wide policy governing government facebook pages, vindicating the rights of all citizens to properly utilize emerging technology to freely participate in protected and often political discussion. Thus, presumably, as a result of the efforts of Plaintiffs and their attorneys, all of Honolulu’s citizens’ (and other interested citizens’) rights, who had little or no power or control over the administration of the forum before the filing of this suit, are more fully protected. This vindicated right to dissent on government social media pages serves a powerful and fundamental local public purpose of giving voice to those who otherwise had their speech arbitrarily and capriciously quashed. As prevailing party, Plaintiffs are entitled to reasonable attorneys’ fees pursuant to 42 U.S.C. § 1988.

1

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II. STATEMENT OF FACTS AND PROCEDURAL HISTORY1 Sometime before January 2012, the HPD, using the social media site facebook.com, expressly created a “forum open to the public.” HPD only

prohibited speech that was obscene, sexually explicit, racially derogatory, defamatory, solicits or is an advertisement, and that suggests or encourages illegal activities. Despite having plainly created an open forum, numerous posts and comments left by Plaintiffs on the HPD Facebook page, in or about January 2012, were deleted without explanation and without Plaintiffs’ permission, including posts and comments objecting to prior deletions on First Amendment grounds. Baker Decl. The posts and comments were protected by the First Amendment and complied with the few constraints designated by the HPD when creating the forum. Even worse, having had numerous posts and comments deleted, Plaintiffs discovered that they had been banned from participating in the forum at all. On August 21, 2012, Plaintiffs filed the instant lawsuit, seeking declaratory and injunctive relief for the violation of Plaintiffs’ rights guaranteed by the First and Fourteenth Amendments. Plaintiffs also sought Temporary Injunctive Relief and a Preliminary Injunction. [Docs. 6, 7]

1

These factual assertions are supported by the attached Declaration of Christopher Baker and the responses to Plaintiffs’ Requests for Admission which were filed with this Court on October 23, 2013 and appear in this record at [Doc. 35-3]. Moreover, most, if not all, have been memorialized in the Stipulation for Dismissal filed on January 21, 2014. [Doc. 55]
2

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The day that the Complaint in this case was filed, the allegations of this Complaint appeared on the local evening news. Approximately twenty minutes later, Defendants (presumably Defendant Lum) posted the following on the HPD Facebook page: Aloha HPD Facebook users. We hope the information this site provides is useful and has value to you as members of this community. The intent of this site was to utilize current technology to build law enforcement partnerships with you toward making Honolulu the safest place to live, work, and play. Sharing your experiences with us, either good or bad, is encouraged. However, misrepresentations calculated to harm the reputation of the HPD, or others, are considered defamatory and will be deleted as a violation of the posting guidelines. We appreciate the opportunities Facebook technology allows us in sharing information with you. Aloha. In other words, as of August 21, 2013, following the filing of the Complaint, it was the intent of the City’s delegate, Defendant Lum, to continue to remove any and all posts criticizing the HPD. However, the day after the Complaint was filed, this Court held a status conference. The Court informed the City that if the allegations in the Complaint were true, which they have proven to be during this course of litigation, this Court would have no choice but to issue a Temporary Restraining Order as requested by

3

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the Plaintiffs.2 Nevertheless, after some discussion between the parties, including the City’s initial inclination to remove the HPD Facebook page altogether, the C ity decided that no posts would be removed until such time as a policy governing the removal of speech from the HPD Facebook page was negotiated with the assistance of the ACLU and approved by the Plaintiffs. Moreover, it was only following the status conference and the City’s resulting decision to decline to remove any interim postings (during the time the policy was being negotiated) that the “ban” was lifted, allowing Plaintiffs to again participate in the public forum, i.e., the HPD Facebook page. It was, therefore, determined that the Motion for Temporary Restraining Order was moot.3 [See, e.g. Doc. 10] And, months later,4 once the policy, attached as Exhibit One, was negotiated with the ACLU and

2

While counsel cannot remember the exact language the Court chose, it appears that a transcript of that status conference was preserved and counsel will order the transcript, if necessary. Counsel seriously doubts that the City will dispute any of the procedural facts of this case as Plaintiffs’ recitation is supported by both the record and e-mail correspondence between the parties’ counsel.
3

Not surprisingly, the August 21, 2013 post, cited above, was promptly removed following the Status Conference of August 22, 2013.
4

According to counsel’s e-mail history, the policy was not finalized until on or about January 22, 2013. During this time, no posts were removed from the HPD Facebook page per the parties’ agreement as to the Motion for Temporary Restraining Order. Plaintiffs were free to post any and all speech on the HPD Facebook page during this time.
4

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approved by the Plaintiffs, it was agreed that the request for preliminary injunctive relief was moot. [Doc. 17] Thereafter, limited written discovery requests were propounded on the City. No further discovery commenced because the City essentially admitted the allegations of the Complaint in its entirety and, as shown below, Plaintiffs have diligently sought to minimize the time and resources expended on this case.5 [Doc. 35-3] Negotiations as to the terms of settlement were ongoing thereafter. On October 24, 2013, after a stipulated extension of time, Plaintiffs filed their Motion for Summary Judgment and Defendants filed a Motion for Judgment on the Pleadings. [Docs. 35, 36] While these motions were pending, the parties essentially agreed upon the terms pursuant to which the case could be resolved. The only remaining matter was whether the City would pay costs paid out-ofpocket by Plaintiffs. Accordingly, in a letter dated December 30, 2013 to the Honorable Richard L. Puglisi, counsel requested a settlement conference, which was scheduled for January 8, 2013. [Doc. 40] On December 30, 2013 and because the settlement conference was to be held January 8, 2014, the parties also jointly requested an extension in which to

5

The City admitted that: the HPD’s placed only the limited restraints on the forum; Baker and Scammon posts were removed; and, that the two were banned from participating in the forum. The City’s sole reservation, preventing an absolute and unqualified admission of all of the facts, was that it did not know which posts had been deleted. [Doc. 35-3]
5

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respond to the others’ pending motions. [See Doc. 41] That request was granted only partially as the deadline was extended only to January 3, 2014 despite the scheduled settlement conference of January 8, 2014. [Doc. 41] Accordingly, Plaintiffs prepared and timely submitted their response to the defense motion on January 3, 2014. [Doc. 43] Defendants, however, did not. [Docs. 46, 50] The settlement conference was held with Judge Puglisi on January 8, 2014. There, the City took a purportedly absolute position that the City could not agree to pay Plaintiffs’ out-of-pocket costs because of the City’s undetermined “policy.” The case was not settled pursuant to those terms. Later, in denying its motion for reconsideration of the closed briefing deadlines, [Docs. 46, 50], Judge Seabright informed the parties that “[i]f all parties concur that meeting with Judge Seabright would be helpful in reaching settlement,” the parties could schedule a settlement conference. [Doc. 50] The City requested the invited conference despite Plaintiffs having informed Judge Seabright’s clerk and the City that, based on the prior representations of the City in the conference with Judge Puglisi, the conference would not be helpful. [Doc. 51] Nevertheless, a settlement conference was held on January 16, 2014 with Judge Seabright. [Doc. 52] And, remarkably, within minutes, the City made a 180

6

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degree change in position, and agreed to include a promise to pay costs in the Stipulated Dismissal.6 [Docs. 52, 55] The Stipulated dismissal was modified by Plaintiffs’ counsel pursuant to Judge Seabright’s instruction and to include the promise to pay costs. The City agreed to the terms of the newly-revised Stipulation and it was entered into this record on January 21, 2014 as [Doc. 55]. III. ARGUMENT A. Plaintiffs are entitled to Attorneys’ Fees and Costs. “A typical formulation [of prevailing party status] is that ‘plaintiffs may be considered ‘prevailing parties' for attorney's fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.’” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). “In short, a plaintiff prevails when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant’s behavior in a way that directly benefits the plaintiff.” Farrar v. Hobby, 506 U.S. 103, 111

6

Notably, while not admissible at trial, the issue of costs was first publicly revealed in the Court’s minute entry from January 16, 2014. [Doc. 51] Based on the history, discussed above, it would be unfair to inhibit counsel’s ability to justify related fees based on Rule 408 or other authority. See Barnes v. AT $ T Pension Benefit Plan – Nonbargained Program, C-08-4508 EMC, 2013 WL 3870291 (N.D.Cal. July 26, 2013) (unpublished) (finding that Rule 408 evidence is appropriately considered in determining attorneys’ fees) (citing Mullen v. United States Army Crim. Investigation Command, No. 1:10-cv-262 (JCC/TCB), 2012 wl 2681300, at *7 (E.D. Va. July 6, 2012) (unpublished)).
7

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(1992); see also Buckhammon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 600-11 (2001) (a “judicially sanctioned change in the legal relationship between the parties” supports a fee award). Here, Plaintiffs Hawaii Defense Foundation, Christopher Baker, and Derek Scammon are clearly the prevailing party.7 Plaintiffs have received the vast

majority of relief they requested (if not all), and, most importantly, in at least three material ways:  Plaintiffs are able to exercise their constitutional right to express protected speech on the public forum that is the Honolulu Police Department Facebook web page. Plaintiffs were unable to do so without being illegally censored, without any degree of due process protection, by Defendant Lum for expressing protected political dissent. Indeed, Plaintiffs were unable to participate in the forum at all before the filing of this lawsuit. Now, Plaintiffs and all of Honolulu’s citizens now enjoy a city-wide policy, that after being approved by the Plaintiffs, has been adopted and governs the removal of posts from Honolulu government facebook sites. This relief was

7

This Court should not discourage Plaintiffs from settling in cases where Summary Judgment is inevitable, yet Plaintiffs have received the relief they requested. Those cases are not moot. United States v. W. T. Grant Co., 345 U.S. 629, 632 (1953); City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289 (1982) (“It is well settled that a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.”); Philips v. Pennsylvania Higher Education Assistance Agency, 657 F.2d 554, 569– 70 (3rd Cir.1981), cert. denied, 455 U.S. 924 (1982); Solomon v. City of Gainesville, 763 F.2d 1212 (11th Cir.1985); Church of Scientology Flag Service Organization, Inc. v. City of Clearwater, 2 F.3d 1514 (11th Cir.1993); F.T.C. v. Affordable Media, 179 F.3d 1228, 1237-38 (9th Cir. 1999). And, further litigation towards the inevitable result would waste valuable judicial resources and necessitate more attorneys’ fees, which Plaintiffs would clearly be entitled to recover.
8

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obtained as a direct result of Judge Seabright’s admonition the v ery next day after the Complaint was filed;  The City admits that Plaintiffs’ posts were removed. Thus, Plaintiffs are vindicated in this action; and  The City has now promised to pay Plaintiffs’ costs. The only relief requested that has not been provided as a direct result of this lawsuit is the “re-posting” of their deleted posts. Because Plaintiffs enjoy all of the remaining requested relief, Plaintiffs are now free to repost the deleted posts and comments themselves. Plaintiffs are the prevailing party. A prevailing plaintiff “should ordinarily recover attorneys’ fees unless special circumstances would render such an award unjust.” Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210 (9th Cir. 1986) (citing Hensley, 461 U.S. at 429). And, “Hensley emphasized that ‘[w]here [as here] a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee,’ and that ‘the fee award should not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit.’” City of Riverside v. Rivera, 477 U.S. 561, 568-69 (1986) (quoting Hensley, supra.). The only question remaining is what fee would be reasonable. B. The Lodestar Method justifies the requested fee. The starting point in determining a reasonable fee is the calculation of the lodestar amount. The “lodestar is calculated by multiplying the number of hours
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the prevailing plaintiff reasonably expended on the litigation by a reasonable hourly rate.” Hensley, 461 U.S. at 433; McGrath v. Cty. Of Nevada, 67 F.3d 248, 252 (9th Cir. 1995). Although the lodestar is presumptively reasonable, the fee “may be reduced by the court where documentation of the hours is inadequate; if the case was overstaffed and hours are duplicated; if the hours expended are deemed excessive or otherwise unnecessary.’" Chalmers, 796 F.2d at 1210. In

arriving at its determination of the proper amount of attorney's fees, this court should consider the twelve factors set forth in Kerr v. Screen Actors Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975). It should be preliminarily noted that this case did not involve damages; thus, it has been called a “little case.”8 The notion that this fact somehow negates the entitlement to attorneys’ fees or somehow reduces the amount of attorneys’ fees has been squarely rejected by the United States Supreme Court: Because damages awards do not reflect fully the public benefit advanced by civil rights litigation, Congress did not intend for fees in civil rights cases, unlike most private law cases, to depend on
8

Counsel was specifically informed that the Court awards less for such a case than if the Plaintiffs had recovered “a million dollars.” While the fact that counsel risked non-payment had counsel not prevailed in this suit does not merit a premium in the lodestar calculation, City of Burlington v. Dague, 505 U.S. 557 (1992), Davis v. City & Cnty. of San Francisco, 976 F.2d 1536, 1549 (9th Cir. 1992) opinion vacated in part on denial of reh'g, 984 F.2d 345 (9th Cir. 1993), likewise counsel should not be penalized for litigating a case clearly contemplated by Section 1988 despite no promise of any monetary award than will be awarded through the benevolence of this Court.
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obtaining substantial monetary relief. Rather, Congress made clear that it ‘intended that the amount of fees awarded under [§ 1988] be governed by the same standards which prevail in other types of equally complex Federal litigation, such as antitrust cases and not be reduced because the rights involved may be nonpecuniary in nature.’ **** . . . Congress' purpose in enacting § 1988. Congress enacted § 1988 specifically because it found that the private market for legal services failed to provide many victims of civil rights violations with effective access to the judicial process. See House Report, at 3. These victims ordinarily cannot afford to purchase legal services at the rates set by the private market. . . . Moreover, the contingent fee arrangements that make legal services available to many victims of personal injuries would often not encourage lawyers to accept civil rights cases, which frequently involve substantial expenditures of time and effort but produce only small monetary recoveries. . . . City of Riverside v. Rivera, 477 U.S. 561, 575-78 (1986) (emphasis in original) (citations omitted). In other words the purpose of Section 1988 is to encourage competent attorneys to vindicate citizens’ civil rights in cases perceived as “little.” Kerr v. Quinn, 692 F.2d 875, 877 (2nd Cir. 1982) (“The function of an award of attorney's fees is to encourage the bringing of meritorious civil rights claims which might otherwise be abandoned because of the financial imperatives surrounding the hiring of competent counsel”). Thus, while Section 1988 also serves an

important function of deterring unconstitutional conduct,9 see Dennis v. Chang,
9

Counsel notes that Defendant Lum was not deterred even after the filing of this suit and despite Mr. Baker’s having complained about the violations of his First Amendment rights before the filing of this suit. Moreover, the conduct was so blatantly unconstitutional that the City was admonished to correct the conduct by a
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611 F.2d 1302, 1306 (9th Cir. 1980), the primary purpose of Section 1988 is to encourage attorneys to prosecute civil rights violations. See Kay v. Ehrier, 499

U.S. 432, 437-38 (1991) (denying award of attorneys’ fees to pro se litigant because to do so would provide a disincentive for Plaintiffs to retain independent and effective attorneys); Moreno v. City of Sacramento, 534 F.3d 1106, 1111 (9th Cir. 2008). And where, as here, there is no award of damages at all and none requested, the attorneys’ fee award is the sole source of incentive for attorneys to take these types of cases. “Lawyers must eat, so they generally won't take cases without a reasonable prospect of getting paid.” Moreno, 534 F.3d at 1111 (9th Cir. 2008). The Courts should use the “broadest and most effective remedies available to achieve the goals of our civil rights laws.” Dennis, 611 F.2d at 1306 (citation omitted). The remedy of this case is exclusively attorney fees awarded by this Court. See Moreno, 534 F.3d at 1111 (“[a]s a practical matter, what the district court awards is what the lawyer gets.”). Yet, this Court’s “typical awards” do not encourage competent counsel to bring these suits.

federal District Court Judge the very next day after the suit was filed. While it is easy for the City to now say that the threat of suit has deterred unconstitutional actions, the conduct of its employees does not reflect any such deterrence.
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C. Counsel deserves at least the hourly rate contemplated by the “Laffey Matrix.” Attorneys’ fees are to be calculated to reflect the reasonable market value of their services in the relevant legal community. Missouri v. Jenkins, 491 U.S. 274, 286 (1989); Blum v. Stenson, 465 U.S. 886, 900 (1984). Unlike some jurisdictions, it appears that this Court is rarely confronted with First Amendment litigation, particularly where no damages are at stake.10 Indeed, Mr. Baker (who approached private attorneys and public attorneys including the ACLU) was unable to find an attorney(s), other than Mr. Holcomb, that was willing to take this and/or his somewhat related case styled Baker v. Kealoha, 1:11-cv-00528 ACK KSC. Baker Decl. And, unlike many (if not most) of the decisions of this Court, cited below, Plaintiffs’ attorneys neither enjoyed nor expected a contingency fee of any damages award in addition to hourly rates. There is no market rate for this case. Because it is the fee applicants’ burden to justify the fees, Jordan v. Multnomah County, 815 F.2d 1258, 1263 (9th Cir. 1987), the undersigned has extensively surveyed attorneys’ fees awarded by this Court. This Court

notoriously awards fees far below any reasonable rate a comparable attorney would
10

With few exceptions, including a few scattered Fourth Amendment cases, the cases in which attorneys’ fees are awarded consist primarily of copyright, IDEA or FAPE, various denials of benefits, and employment discrimination or contract cases. Many of those cases include statutory and actual damages awards. Thus, those attorneys are likely collecting a contingency fee in addition to the amount rewarded by the Court.
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demand on the mainland and even below the market rate of Hawaii attorneys. “Not only are Hawaii's prevailing market rates considerably lower than those in California, but the rates awarded in this district are lower still. Therefore, Petitioner is not entitled to mainland hourly rates.” Harris v. Trash Man, LLC, CIV. 1200169 HG-KSC, 2013 WL 1932715 (D. Haw. Apr. 16, 2013) adopted, CIV. 1200169 HG-KSC, 2013 WL 1932710 (D. Haw. May 7, 2013);11 Onishi v. Redline Recovery Servs., LLC, CIV. 10-00259, 2010 WL 5128723 at *n. 1 (D. Haw. Nov. 12, 2010) adopted, CIV. 10-00259, 2010 WL 5128720 (D. Haw. Dec. 9, 2010) (“It must be noted that there is a distinction between the prevailing rates in the community, i.e, what one might charge and collect from a client, and the prevailing rates awarded by the Court,” reducing requested rate of $300 per hour to $285 per hour); Nat'l Comm'n for Certification of Crane Operators v. Ventula , CIV.0900104SOM-LEK, 2010 WL 2179505 (D. Haw. Apr. 30, 2010) adopted, CV0900104SOM-LEK, 2010 WL 2176098 (D. Haw. May 25, 2010) (prevailing rate in Boise, Idaho too high for Hawaii); Wereb v. Cnty. Of Maui, CIV. 09-00198 JMSLE, 2010 wl 431976 (D. Haw. Feb. 4, 2010) (reducing Se attle attorney’s expected rate of $325 to $260 per hour based on “typical awards”); Paramount Pictures Corp. v. Carroll, CV 05-00260 ACKLEK, 2006 WL 1990815 (D. Haw. July 13, 2006) (requests reduced from the requested $208.25, $106.25, $175, and $100 to
11

Each of the unreported opinions cited in this Memorandum are attached in the appendix to this brief.
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$130, $75, $75, $160, and $80, respectively based on “Court’s knowledge of prevailing rates in the community”); Yamada v. Weaver, CIV. 10-00497 JMS, 2012 WL 6019363 (D. Haw. Aug. 30, 2012) adopted, CIV. 10-00497 JMS, 2012 WL 6019121 (D. Haw. Nov. 30, 2012) (requests of specialized Indiana campaign finance attorneys of $400, $350, $300, $200, $150 and $135, $400, and $100 reduced to $300, $250, $225, $150, $125, $300 and $85, respectively). Instead of reflecting a fair “market” rate, these universal reductions amount to a judicially imposed de facto ceiling on attorneys’ fees. See Aloha Airlines, Inc. v. Mesa Air Grp., Inc., 07-00007 DAEKSC, 2007 WL 2320672 (D. Haw. Aug. 10, 2007) (“[I]n general the maximum hourly rate this Court has awarded for senior attorneys in the Hawai‘i community is $275/hour and the maximum hourly rate for paralegals and legal assistants is $90/hour” reducing requests of $600, $400 to $275). The cited reasons for these reductions are not based on the economic realities of solo practitioners or other attorneys struggling with the high costs and taxes of Hawaii; and most often not based on the complexity of the case or shoddy workmanship. Instead, most frequently, this Court simply relies on its

“knowledge” of “prevailing” Hawaii attorneys’ fees. Robinson v. Plourde, 717 F.Supp.2d 1092, 1097-98 (D.Haw. 2010) (“Based on this Court’s knowledge of the community’s prevailing rates, the hourly rates generally granted by the Court . . .” attorneys’ requested $300 per hour reduced to $250 and $ 275, citing cases finding
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$200 per hour reasonable for attorney with 31 years’ experience in 2008, $285 reasonable for out-of-state attorney with 30 years’ experience in 2010, a “prevailing rate in the community of $250 to $285” for attorneys with 20 to 30 years “general litigation” experience in 2008, and $225 reasonable for attorney with 35 years of experience in 2008); Trendex Fabrics, Ltd. v. Chad Jung Kim, CIV. 13-00253-LEK, 2013 WL 5947027 (D. Haw. Nov. 5, 2013) (reducing attorneys’ rates from a requested $250 per hour and $195 per hour to $175 and $125, respectively, based on “the Court’s knowledge of the prevailing rates in the community”); Sam K. v. Dep't of Educ., Hawaii, CV 12-00355 ACK-BMK, 2013 WL 1856069 (D. Haw. Apr. 30, 2013), adopted, CIV. 12-00355 ACK, 2013 WL 3071317 (D. Haw. June 17, 2013) (request of $375 per hour unreasonable and reduced to $275 based on that attorneys’ previous award of $275 per hour five years prior, and another attorney having been awarded $300 per hour in similar cases); I.T. ex rel. Renee T. v. Dep't of Educ., Hawaii, CIV. 11-00676 LEK, 2012 WL 6969333 (D. Haw. Nov. 30, 2012) adopted, CIV. 11-00676 LEK, 2013 WL 419016 (D. Haw. Jan. 31, 2013) (attorney requested $290, submitted affidavit stating $300 was reasonable, court awarded $275 because Court “previously deemed” $275 sufficient for attorney); Dep't of Educ. Hawai"i v. C.B. ex rel. Donna B., CIV. 11-00576 SOM, 2012 WL 7475406 (D. Haw. Sept. 28, 2012) adopted, CIV. 11-00576 SOM, 2013 WL 704934 (D. Haw. Feb. 26, 2013) (lawyer
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with 17 years’ experience request for $275 reduced to $250, citing 2010 case in which Court found $250 reasonable; first and second year associate requested $200, reduced to $130 because “Court typically awards attorney with similar experience between $120 and $150 per hour”); Nat'l Comm'n for Certification of Crane Operators v. Ventula, supra. (reducing out-of-state counsel’s request for Boise Idaho rates, citing prior reductions from requested $585 per hour and $350 to $285 per hour, and noting that the requests “exceed the rates awarded to more experienced attorneys in this district”); Sound v. Koller, CV 09-00409 JMS-KSC, 2010 WL 1992198 (D. Haw. Mar. 5, 2010), adopted, CV 09-00409 JMS/KSC, 2010 WL 1992194 (D. Haw. May 19, 2010) (reducing requests of $350, $225, $585, $175, and $125 to $285, $185, $350, $150, and $120, respectively, based on Court’s awareness of prevailing rates); Black v. City, Cnty. Of Honolulu, CV 0700299 DAE-LEK, 2010 wl 653026 (D.Haw. Feb. 22, 2010), adopted CIV 0700299 DAE, 2010 wl 3940979 (D. Haw. Sept. 29, 2010) (reducing attorney’s request of $275 per hour to $140 per hour based on the Court’s knowledge of “prevailing market rates”);12 Ko Olina Dev., LLC v. Centex Homes, CIV. 0912

This fee reduction was affirmed in Black v. City and County of Honolulu, 512 Fed. Appx. 666 (2013), but it appears that counsel argued only that he was entitled to “premium” lodestar because the case was taken on contingency – an argument rejected based on Davis v. City & Cnty. of San Francisco, 976 F.2d 1536, 1548–49 (9th Cir.1992), vacated in part on other grounds, 984 F.2d 345 (9th Cir.1993).

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00272DAE-LEK, 2010 WL 447451 (D. Haw. Feb. 9, 2010) (requests of $490, $450, $210, and $135 reduced to $280, $260, $130 and $85 based on “knowledge of prevailing rate” and “typical awards,” citing prior opinions); Wereb, supra. (“typical award”); US Bank Nat. Ass'n v. Yamamura, CIV.08-00358 DAE-KSC, 2009 WL 5851091 (D. Haw. Sept. 30, 2009) adopted, CIV 08-00358DAE-KSC, 2009 WL 3461288 (D. Haw. Oct. 27, 2009) (request of $200 reduced to $175 based on “knowledge of prevailing rates); Sakaria v. FMS Inv. Corp., CIV. 0800330 SOMLEK, 2009 WL 1322356 (D. Haw. May 12, 2009) (reducing request of $175 to $150 because it would be “inconsistent with this Court’s findings in other motions for attorney’s fees,” citing reduction from $155 to $140 in 2006 and $160 to $140 in 2008); Boles v. Engle, CIV 08-00438 ACK-KSC, 2009 WL 1035065 (D. Haw. Mar. 12, 2009) adopted as modified, CIV 0800438 ACK-KSC, 2009 WL 1035127 (D. Haw. Apr. 15, 2009) (requests of $390, $250, $200, $145, and $150 reduced to $280, $240, $165, $130, and $80, respectively, based on “knowl edge of prevailing rates in the community . . ., [and] the hourly rates generally granted by the Court . . .”); Blake v. Nishimura, Civ. 08-00281 SPKLFK, 2008 wl 4754858 (D. Haw. Oct. 24, 2008) (requests of $275 and $125 reduced to $240 and $80 finding requests “inconsistent with this Court’s recent decisions” and unreasonable because of the Court’s awareness of “the prevailing rates in the community”) ; Kuroiwa v. Lingle, CIV 08-00153 JMS-KSC, 2008 wl 4483772 (D. Haw. Sept. 29,
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2009) (finding request of $225 “manifestly unreasonable” in light of cited prior decisions and reducing rate to $150); Seo Jeong Won v. England, CIV.07-00606 JMS LEK, 2008 WL 3850485 (D. Haw. Aug. 18, 2008) (finding requests for $310, $155, and $120 to $285, $130, and $85 unreasonable and instead awarding $285, $130, and $85 based on “this Court’s knowledge of the prevailing rates in the community” and the submissions in the case); Ware v. Chertoff, CIV. 0400671HG-LEK, 2008 WL 2653534 (D. Haw. June 27, 2008) adopted, CIV.0400671HG-LEK, 2008 WL 3349066 (D. Haw. Aug. 12, 2008) (reducing request for $350 to $280, finding the request “inconsistent with the Court’s prior recent decisions” and based on “prevailing rates in the community,” despite recognizing the demands on counsel’s time and the undesirability of a civil rights action against the federal government); Goray v. Unifund CCR Partners, CIV. 06-00214 HGLEK, 2008 WL 2404551 (D. Haw. June 13, 2008) adopted, CIV.06-00214HGLEK, 2008 WL 2714369 (D. Haw. July 11, 2008) (reducing request of $300 to $280 based on “this Court’s knowledge of the prevailing rates in the community and the submissions in this case” and finding the request “unreasonable and inconsistent with this Court’s recent decisions” despite a state court having awarded the attorney $300 per hour); D.C. v. Dep't of Educ., CIV.07-00362 ACKKSC, 2008 WL 2884657 (D. Haw. May 28, 2008) adopted in part, rejected in part, CIV 07-00362 ACKKSC, 2008 WL 2902079 (D. Haw. July 25, 2008) (based
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on prior cited awards, $295 request deemed “slightly excessive” lowering rate to $275); World Triathalon Corp. v. Dunbar, 539 F. Supp. 2d 1270, 1283-84 (D. Haw. 2008) aff'd in part, World Triathlon Corp. v. Hapai, 320 F. App'x 778 (9th Cir. 2009) (reduction based on “Court’s knowledge of the community’s prevailing rates, the hourly rates generally granted by the Court . . .”); Mabson v. Ass'n of Apartment Owners of Maui Kamaole, CV 06-00235 DAELEK, 2008 WL 2061529 (D. Haw. Feb. 26, 2008) adopted, CV 06-00235 DAELEK, 2008 WL 2061409 (D. Haw. May 13, 2008) (paralegal reduced from $125 to $85); Ireijo v. Agnew, CIV. 07-00290JMS/LEK, 2007 WL 4633328 (D. Haw. Sept. 26, 2007) adopted, CIV. 07-00290JMSLEK, 2007 WL 4190694 (D. Haw. Nov. 20, 2007) (requests of $375, $300, and $170 found unreasonable “[b]ased on this Court’s knowledge of the prevailing rates in the community” and reducing to $285, $265, and $150, respectively); Ramos v. Murakami, CV 06-00126 HG-LEK, 2006 WL 3248376 (D. Haw. Nov. 6, 2006) (request from licensed attorney in Illinois serving as Hawaii paralegal reduced from $125 to $80 based on “Court’s knowledge of prevailing rates in the community”); Berry v. Hawiian Exp. Serv., Inc., 03-00385 SOMLEK, 2006 WL 4102120 (D. Haw. Oct. 25, 2006) adopted as modified, 03-00385 SOMLEK, 2007 WL 689474 (D. Haw. Mar. 2, 2007) aff'd on other grounds Berry v. Dillon, 291 F. App'x 792 (9th Cir. 2008) (“in light of its own knowledge of the prevailing rates in the community” requests for $350, $200, and $120 were
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unreasonable and reduced to $250, $150, and $85); Parr v. JS & W Hawai'i, Inc., CIV 06-00041 JMS-LEK, 2006 WL 2850097 (D. Haw. Oct. 2, 2006) adopted 0600041 JMSLEK, 2007 WL 30599 (D. Haw. Jan. 3, 2007) ($275 request reduced to $250 based on “Court’s knowledge of prevailing rates”); Paramount Pictures Corp. v. Carroll, CV 05-00260 ACKLEK, 2006 WL 1990815 (D. Haw. July 13, 2006) (requests reduced from the requested $208.25, $106.25, $175, and $100 to $130, $75, $75, $160, and $80, respectively based on “Court’s knowledge of prevailing rates in the community”). This Court has (at the very least implicitly) found that its “knowledge” overrides empirical evidence contradicting the reduction, stating “[a]lthough attorneys are required to provide evidence that the rate charged is reasonable, [citation omitted], this Court is better aware of the prevailing rates in the community, having had the opportunity to review fee requests of many attorneys.” Angel v. Capital Research Grp., Inc., CIV 10-00364 HG/KSC, 2012 wl 2563168 (D. Haw. June 28, 2012). In direct disregard to numerous declarations from

lawyers in the community, this pervasive “knowledge” of prevailing rates has even served to reduce requested rates that were consistent with those rates of numerous Honolulu law firms. Dep't of Educ. Hawai"i v. C.B. ex rel. Donna B., supra. (“Defendants’ counsel submitted a list of the fifty largest law firms in Honolulu that was published by the Pacific Business News on April 27, 2102” and requested
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rates consistent with those published rates); Blake v. Nishimura, CIV 08-00281 LEK, 2010 wl 13724920 (D. Haw. Mar. 31, 2010) (counsel also submitted a similar Pacific Business News publication from May 29, 2009) Black, supra. (2006 Pacific Business News list submitted); Ka Olina Dev., supra. (2009 Pacific Business News publication list submitted); Bandalan v. Castle & Cooke Resorts, LLC, CIV 07-00591 DAE-LEK, 2009 WL 1955328 (D. Haw. June 30, 2009) adopted CIV. 07-00591DAE-LEK, 2009 WL 2231693 (D. Haw. July 24, 2009) (submitted 2008 Pacific Business News publication as well as declaration from another attorney); Williamson v. Basco, CIV. 06-00012JMS-LEK, 2008 WL 954173 (D. Haw. Apr. 3, 2008) (submitted 2006 Pacific Business News publication). And, when counsel also noted that $965 per hour was approved in Hawaiian Telcom’s bankruptcy proceeding, styled In re Hawaiian Telcom Communications, Inc., Case No. 08-02005, the Court found that case “neither controlling nor persuasive in this case because of the fundamental differences in bankruptcy litigation and civil rights litigation.” Blake, supra. Thus, this judicial “knowledge” of the rates in this District do not appear to be based on empirical evidence of the market, but on previously awarded rates that were also reduced by this Court. Trendex Fabrics, supra. (citing Au v. The Funding Group, Inc., No. CV 11–00541 SOM–KSC, 2013 WL 1187919, at *8 (D.Haw. Mar. 21, 2013)) (adopting finding that $165 is a reasonable hourly rate for an attorney with six
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years of experience); Shea v. Kahuku Hous. Found., Inc., Civil No. 09–00480 LEK–RLP, 2011 WL 1261150, at *7 (D.Haw. Mar. 31, 2011) (finding that $125 per hour is reasonable for an attorney with three years [sic] experience)”); I.T. ex rel. Renee T. v. Dep't of Educ., Hawaii, supra. (reduced because this Court “previously deemed” reduced rate sufficient); C.Y. ex rel. Cheryl Y. v. Dep't of Educ., Hawai'i, CIV. 11-00335 JMS, 2011 WL 7102572 (D. Haw. Dec. 29, 2011), adopted CIV. 11-00335 JMS, 2012 WL 253147 (D. Haw. Jan. 25, 2012) (finding requested rate reasonable based on prior awards); B.T. ex rel. M.T. v. Dep't of Educ., Hawai'i, CIV. 10-00754 JMS, 2011 WL 3021129 (D. Haw. June 27, 2011) adopted, CIV. 10-00754 JMS, 2011 WL 3022042 (D. Haw. July 21, 2011) (same); C.B. ex rel. Donna B., supra. (lawyer with 17 years’ experience request for $275 reduced to $250 based on 2010 finding that the rate was reasonable for that lawyer); Ventula, supra.; Ko Olina Dev., LLC, supra.; Wereb, supra.; Sakaria, supra.; Boles, supra.; Blake, supra.; Kuroiwa, supra.; Ware, supra.; Goray, supra.; D.C. v. Dep't of Educ., supra.; World Triathalon Corp., supra.; Sam K., supra.; Mabson, supra. Further, although inflation should justify a steady increase in fees even throughout the course of litigating one case, See Gates v. Deukmijian, 987 F.2d 1392, 1406 (9th Cir. 1992) (recognizing that rates increase during the course of litigation), even the inevitable reality of inflation does not seem to overcome this
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“knowledge” of prevailing rates. I.T. ex rel. Renee T. v. Dep't of Educ., Hawaii, CIV. 11-00676 LEK, 2012 WL 6969333 (D. Haw. Nov. 30, 2012) adopted, CIV. 11-00676 LEK, 2013 WL 419016 (D. Haw. Jan. 31, 2013) (where attorney requested an increase from $275 to $290 for litigation spanning two years, this Court found “[i]nflation alone is not sufficient for the requested rate increase” despite counsel’s observation that “[w]ithout an adjustment, real compensation would decrease as one’s experience increases”). A review of this Court’s opinions demonstrates that attorneys have received only nominal increases over the past 10 years. Hawaii Disability Rights Center, et. al. v. State of Hawaii , Civ. No. 0300524 HG-KSC (D.Haw. 2005); Doe v. Keala, 361 F.Supp.2d 1171 (D. Haw. 2005) (attorneys Shelby Floyd and Stanley Levin awarded $275 per hour in 2004). Despite inflation and the continued increase in experience, senior attorneys are capped at by the Court at $300 per hour (with an occasional $350 award), an increase of approximately 9% since 2004. In the meantime and with the exception of the recent budget crisis, federal District Court Judges have received consistent increases in salary to account for inflation, alone, amounting to approximately a 20% increase since 2000.13

13

http://www.uscourts.gov/JudgesAndJudgeships/JudicialCompensation/judicialsalaries-since-1968.aspx.
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The imposed rates are particularly troubling in Hawaii. Of all of the major cities in America, Honolulu’s cost of living is surpassed only by that of Manhattan.14 Exhibit Two, U.S. Census Bureau, Cost of Living Index. Yet, as discussed above, this Court has recognized that attorneys in all other major American cities are awarded rates much higher than those awarded by this Court. Lawyers in other major cities expect and do receive a higher attorneys’ fee to compensate for inflated costs of living. Lawyers in Honolulu are not inferior to their mainland brethren. This Court should recognize their professionalism and award them comparable wages to comparably indexed cities, if for no other reason than to promote the purpose of Section 1988. Honolulu’s high cost of living is accounted for in all other professions known to counsel. For example, pursuant to 5 U.S.C. § 5941,15 federal employees residing in Hawaii receive an upward adjustment for cost of living. Yet, Hawaii lawyers who dare assist a citizen in presenting a constitutional law claim, receive
14

San Francisco’s cost of living is very close to that of Honolulu’s. According to the August 10, 2012 edition of the San Francisco Daily Journal, a reasonable hourly rate in 2012 and for associate attorneys in the San Francisco Bay Area was $482 per hour, up from $449 in 2011.
15

Notably, 5 U.S.C. § 5941 permits an adjustment where “living costs [are] substantially higher than in the District of Columbia.” 5 U.S.C.A. § 5941(a)(1). Although federal employees enjoy a 25% higher salary because of Honolulu’s extraordinary cost of living, counsel is only seeking what attorneys in Washington, D.C. would expect.
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far less than the national average. To award Honolulu attorneys who are seeking significant social reform and constitutional compliance less than those attorneys would expect to receive in Boise, Idaho, Terre Haute, Indiana, or generally “California” is simply unjust. Respectfully, Plaintiffs cannot reconcile why everything, with the sole exception of attorneys who must rely on the Court to award their fees, costs more in Hawaii than on the mainland. The purpose of 42 § 1988 is not promoted by these extraordinarily low hourly rates. Certainly, if the reason behind the low rates is some perception that local attorneys are not as competent as mainland attorneys,16 competent out-of-state counsel are not encouraged to litigate these cases in Hawaii either. Wereb, supra. (Seattle attorney requested $325, which was less than he would expect in Seattle but was nonetheless reduced to $260); Harris, supra. (reducing San Diego attorneys’ request of $400 and $300, which was 30% lower than what the attorneys would expect to receive in San Diego, even lower to $275 and $235 based on award of a similarly experienced government attorney); Carroll, supra., (Los Angeles attorneys’ requests of $208.25, $106.25, $175, and
16

Even assuming that the low rates are a product of the market rather than the reasons asserted above and supported by the data, the Court is nevertheless permitting a few firms, that have vested interests in excluding mainland lawyers from competing in Hawaii, to dictate rates too low to encourage Hawaii solo practitioners to litigate these claims. This also contradicts the purposes of § 1988. Moreover, those firms are able to spread the work to allow certain tasks to be performed cheaper. See Moreno v. City of Sacramento, 534 F.3d 1106, 1114 (9th Cir. 2008).
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$100 reduced to $130, $75, $75, $160, and $80, respectively). Even those that the Court has recognized possess extraordinary qualifications or special skills have their fees slashed. Frankl v. HGH Corp., CIV. 10-00014 JMS, 2012 WL 1755423 (D. Haw. Apr. 23, 2012) adopted, CIV. 10-00014 JMS, 2012 WL 1753644 (D. Haw. May 14, 2012) (attorneys made requests based on Laffey Matrix and despite substantial qualifications of out-of-state counsel, attorney with 28-30 years of experience, with 26 years specialized experience, request of $475 reduced to $300; attorney with 22 years of experience, 18 years of which were specialized, request of $475 reduced to $275, attorney with 12 years of experience, 11 of which were specialized, request of $420, reduced to $240; five years’ experience, 2 of which were specialized, request of $275, reduced to $150; and 1 year specialized experience reduced from request of $230 to $125); Yamada v. Weaver, supra. (requests of specialized Indiana campaign finance attorneys of $400, $350, $300, $200, $150 and $135, $400, and $100 reduced to $300, $250, $225, $150, $125, $300 and $85, respectively).17 It appears that very few civil rights actions are brought in Hawaii’s federal court where damages are not also sought and understandably so. This may also
17

This was raised to $300 by the District Court Judge based on specialized expertise. In this specific case, this Court extensively discussed the reasons warranting the reduction, including: the Plaintiffs only partially prevailed; despite Defendants’ continued willingness to agree to a permanent injun ction; and the needless appeal of an order of a preliminary injunction – facts not present here.
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explain why the City permitted Defendant Lum to conduct himself in such a manner that the day after this suit was filed, this Court was admonishing the City to correct its administration of the Facebook page. Nevertheless, these long-

established de facto rates are impermissible in the Ninth Circuit. Moreno v. City of Sacramento, 534 F.3d 1106, 1115 (9th Cir. 2008). This Court has distinguished Moreno in Sam K. ex rel. Diane C. v. Dep't of Educ., Hawaii , CIV. 12-00355 ACK, 2013 WL 3071317 (D. Haw. June 17, 2013). However, the historical analysis of the various opinions above, at the very least, demonstrates a policy of reducing fees and relying on those reductions to reduce the fees of new applicants. Counsel hereby request that their rate be established pursuant to a true market value rather than these judicially imposed rates. Counsel recognizes that the Court’s systemic reductions in attorneys’ rates have exacerbated the determination of a reasonable market rate because attorneys ask for a lesser rate as a result of these reductions. Tylor v. Smart Enter., Inc., CIV. 13-00289 HG-RLP, 2013 WL 6843056 (D. Haw. Dec. 26, 2013) (lawyer requesting $200, which is “‘at or below rates customarily charged in the community for similar work by attorneys of similar, experience, ability, and standing in the Honolulu legal community,’” reduced to $150); Trustees of PAMCAH-UA Local 675 Trust Funds ex rel. Chun v. Ekahi Fire Prot., LLC, CV 13-00100-HG-RLP, 2013 WL 2897794 (D. Haw. June 12, 2013) (attorney
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requesting $275 per hour where “customarily charges $325 per hour for his work.”);18 Trustees of PAMCAH-UA Local 675 Trust Funds v. Am. Indus.

Insulation, LLC, CIV. 10-00412 JMS, 2012 WL 2685083 (D. Haw. June 15, 2012) adopted, CIV. 10-00412 JMS, 2012 WL 2685016 (D. Haw. July 5, 2012) (same); Trustees of the PAMCAH-UA Local 675 Trust Funds v. Drain-N-Rooter Plumbing, Inc., CIV. 11-00565 SOM, 2012 WL 1409656 (D. Haw. Apr. 3, 2012) adopted CV 11-00565 SOM-RLP, 2012 WL 1409655 (D. Haw. Apr. 23, 2012) (same); Wereb, supra.; Dep't of Educ. Hawai"i v. C.B. ex rel. Donna B., supra. (attorney requested $275 per hour, a reduction from his customary $300 per hour rate, and was reduced to $250); Harris, supra.19 The Court then relies on these requests as support for its knowledge of the prevailing market rate.20

18

In this case, other attorneys were rewarded a higher rate than the Court would have found “reasonable” (presumably pursuant to the same reasoning Plaintif fs challenge, herein), finding the “blended rate” reasonable.
19

The Court in this particular case did note that the attorney had a “blemished reputation,” having been publicly reprimanded.
20

Counsel notes that several lawyers have, generally having had their requested rates previously reduced, subsequently request what this Court awards. However, this does not appear to be a reflection of actual prevailing market rates. Instead, the lawyers appear to have succumbed to the rate reduction and choose not to fight the “rate reduction” battle in each and every case. Moreover, in the overwhelming vast majority of these cases, the fee applicants’ clients had been awarded damages or, at the very least, requested damages. Thus, the attorney enjoyed or expected to enjoy contingency fees in addition to the hourly rate awarded by the Court. Consistent with Section 1988, attorneys should be rewarded for taking cases that
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This is flawed reasoning. The attorneys assume the Court will reduce their rate so they request a lower rate. The Court then continues with its longstanding policy of drastic reduction of attorneys’ fee requests, and reduces the fee even further, relying on prior reductions. This policy is inconsistent with Section 1988. Hawaii attorneys are no less capable than their mainland counterparts. And,

Hawaii citizens deserve representation by attorneys who are just as capable those of the mainland. These consistently low and even further reduced rates have created an environment where well-intentioned, experienced, and competent counsel are disinclined from representing Hawaii’s victims of constitutional violations because they will not be justly compensated for their efforts. See Decls. Perhaps even more persuasive is the fact that the City does not even believe this Court’s “typical awards” are reasonable. See Curtis Lum, Pacific Business News, “City will spend over $1 million in rail -related attorneys’ fees” (May 13, 2011) (attached as Exhibit Three). The City, which obviously employs its own attorneys, hired outside law firms charging $295 to $495 per hour to litigate its rail related cases. Id. Surely, counsel that is vindicating the First Amendment rights of private citizens in cohesion with Congressional intent deserves an award of attorneys’ fees within the range the pays its own lawyers.

do not involve damages but effectuate important social change. Such cases appear few and far between, as one would expect from the “typical awards.”
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Moreover, the awarded rates appear judicially determined rather than based on any real “reasonable market value.”21 Counsel is not requesting a rate that accounts for the elevated cost of living in Hawaii or any other factor. Counsel is merely requesting a fair market value and relies on the Laffey Matrix as evidence of a baseline standard that would reflect the true market value of legal services, albeit in a jurisdiction where all other costs besides legal services are lower. Notably, the rates awarded in this Court’s cases eight to ten years ago, were fairly represented in the Laffey Matrix. Indeed, the rates in 2004-2005 for a lawyer with the undersigned’s experience was $270-280 per hour.22 Yet, those awards have not risen over time. A review of current cases shows that the most senior attorneys are generally “capped” at $300 per hour with few exceptions allowing $350 per hour rates. Yet, had the rates continued to increase, as they have nationally and would
21

An alternative theory explaining the extraordinarily low rates compared to the cost of living is that various judicial and other policies, perhaps unintentionally, have permitted Hawaii’s few large law firms to strangle the market with exceptionally low rates. This may be a valid competitive strategy for large law firms operating in an island community competing against mainland firms for clients where potential litigants are numbered. However, the result is that solo practitioners cannot sustain successful practices focusing on federal civil rights litigation, which is dependent upon attorneys’ fees awards in an environment where costs are extraordinarily high but the awarded hourly rates are extraordinarily low (and the fees are again reduced for reasons that are valid pursuant to Chalmers, supra.). Regardless of the cause, competent counsel are not encouraged to litigate cases where damages are not substantial, such as this case.
22

A lawyer with Mr. Brazier’s experience would have billed $220-225 per hour while a lawyer with Mr. Beck’s experience would have billed $180-185 per hour.
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in a fair market environment, and attorney with 8-10 years’ experience could expect $355 per hour.23 Counsel has attached the Laffey Matrix as Exhibit Four. This Court has considered the Laffey Matrix in at least one other case where out of state attorneys urged its application pursuant to the “narrow” exception to the local forum rule and citing Prison Legal News v. Schwartznegger, 608 F.3d 446, 454 (9th Cir. 2010) for the proposition that the Laffey Matrix is not a suitable indicator of appropriate fees because it is based on Washington, D.C. rates rather than those of San Francisco. Frankl, supra. Notably, in that case, state officials were arguing for application of the Laffey Matrix with an added cost-of-living adjustment to account for the cost of living in San Francisco. Prison Legal News, 608 F.3d at 454. It is true that the Ninth Circuit found “just because the Laffey Matrix has been accepted in the District of Columbia does not mean that it is a sound basis for determining rates elsewhere,” and that the Ninth Circuit has not

23

Although Plaintiffs' counsel have used the Department of Justice Laffey matrix as the basis for their hourly-rate fee request, the Adjusted Laffey matrix is an accepted benchmark for fee awards in various jurisdiction, accounting for inflation in the "Legal Services Index." Under that rubric, the fee for an 8-10 year lawyer for this year is $567 per hour; the fee for a 4-7 year lawyer is $393 per hour, and the fee for a 1-3 year lawyer is $320 per hour. See, http://www.laffeymatrix.com/see.html (Exhibit Five). The Third Circuit Court adopted the Adjusted Laffey Matrix. Interfaith Community Organization v. Honeywell International, Inc., 426 F.3d 694 (3rd Cir. 2005). ("In updating the matrix to account for inflation from 1989-2003, ICO relied on the legal services component of the nationwide Consumer Price Index (“the Legal Services Index”), a measure of inflation in the cost of legal services maintained by the Bureau of Labor Statistics."). http://www.laffeymatrix.com/see.html
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adopted the Laffey Matrix. See Frankl, supra. But, it is also true that the Ninth Circuit has not been confronted with a “market” where the cost of living is the second highest in the entire nation, yet the “typical awards” are less than that of Boise, Idaho or Terre Haute, Indiana. This Court is charged with the duty of encouraging attorneys to file cases challenging Hawaii constitutional violations rather than moving their practices elsewhere. Although fair application of other “lodestar” factors (discussed below) demonstrates that counsel deserves a rate higher than that identified in the Laffey Matrix, Plaintiffs are nonetheless requesting only the Laffey Matrix rate, i.e., that Mr. Holcomb receive an hourly billing rate of $355, Mr. Brazier receive a rate of $290 per hour, and Mr. Beck receive a rate of $245 per hour. Plaintiffs rely on the attached Declarations of those attorneys to demonstrate that each attorney’s experience and skill levels justify this award. As shown by the discussion above, the modern cost of living and doing business in Honolulu, and fair market considerations, counsel believes that the Laffey Matrix accurately portrays less than reasonable rates for lawyers of comparable skill in Honolulu in cases that are much less novel and risky than the instant case.24 And, even assuming arguendo that the “prevailing market rate” is a fair reflection of legal rates, such as to satisfy the

24

Mr. Brazier, for example, has devoted some of his practice to hourly-billed cases. Mr. Brazier has current clients paying $250 per hour and has received $350 per hour from other federal district courts in California.
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local forum rule, in a market such as Hawaii where the costs of living are so extraordinarily high and the rates are so extraordinarily low, the purpose of Section 1988 is not promoted as attorneys are discouraged rather than encouraged to bring cases challenging constitutional violations where no damages are at stake. The requested rate is justified. D. JOHNSON/KERR FACTORS This was a novel case. Indeed, to counsels’ knowledge, only one other case in the country existed where Plaintiffs raised free speech violations where the forum was based in social media. See Bland v. Roberts, 730 F.3d 368 (4th Cir. 2013). Counsel risked a City decision to fight the case based on government speech or some other theory. See Sutliffe v. Epping School District, 584 F.3d 314 (1st Cir. 2009), Page v. Lexington County School District, 531 F.3d 275 (4th Cir. 2008). And, although counsel believed Plaintiffs would ultimately prevail, the undersigned nevertheless assumed great personal risk that the litigation would lead to costly electronic discovery, which would likely require the assistance of an expert witness. Moreover, the public perception of the case was that it was undesirable. Counsel attaches two articles as Exhibits Six and Seven where Plaintiffs were called “nut jobs,” “stupid gun nuts,” “cry babies,” had “too much time on their hands,” instructed to “get a life rather than file frivolous lawsuits,” and (laughably
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as shown above) that Plaintiffs were making HPD pay for “hundreds of billable hours for its high-priced attorneys.” This case was characterized as delving into a “new realm of stupidity,” “frivolous,” “a complete waste of time,” not a “legitimate problem”, “ridiculous,” a “complete lack of understanding of the constitution,” “who cares,” and overwhelmingly wrong.25 Further, counsel has had a long relationship with Plaintiff Baker. Counsel (with the exception of Mr. Brazier) represents Mr. Baker in another case that the public finds detestable, Baker v. Kealoha, 1:11-cv-00528 ACK KSC. That case challenges Hawaii’s prohibitions on the exercise of the Second Amendment outside the home and is currently pending before the Ninth Circuit. Moreover, the subject matter of that case is precisely the subject matter that was censored from HPD’s facebook page. Despite contacting a number of local firms, Mr. Baker was unable to find another attorney to represent him in that case. IV. CONCLUSION Plaintiffs request that counsel be awarded fees in the full amount requested. Plaintiffs also request that counsel be awarded the general excise (4.712%) tax for those fees. Donkerbrook v. Title Guar. Escrow Servs., Inc., Civ No. 10–00616 LEK–RLP, 2011 WL 3649539, at *9–10 (D.Hawai'i Aug.18, 2011).
25

These articles and comments can be found online at http://www.policeone.com/legal/articles/5929611-Gun-group-sues-Hawaii-policeover-Facebook-posts/, http://www.staradvertiser.com/news/breaking/167107435. html.
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DATED: Honolulu, Hawaii; February 4, 2014. s/Richard L. Holcomb Richard L. Holcomb Attorney for Plaintiffs

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