Unpublished Disposition, 848 F.2d 1243 (9th Cir. 1988)

MEMORANDUM^* 

Plaintiffs, pursuant to rules promulgated by the Columbia County Fair Board, were denied the right to solicit signatures on a petition for the recall of certain county officials. They sued for damages for the alleged violation of their first amendment rights and for damages for various pendent claims. Plaintiffs also sought declaratory and injunctive relief. The trial court disposed of the declaratory and injunctive issues, directed verdicts against the plaintiffs on the federal constitutional claims, and submitted to the jury the damage claims for false arrest and false imprisonment.¹  The jury found that plaintiff Ryan had been falsely arrested but awarded him no damages. This appeal challenges all adverse rulings by the trial court, but it is necessary to address only the directed verdict against the Sec. 1983 claims and the plaintiffs' claim for attorneys' fees in addition to those allowed by the court for the jury vindication of the false arrest claim.

In 1983, when the plaintiffs were arrested, the Columbia County Fair Board Rules provided:

3. Any person wishing to solicit funds or to sell or distribute literature, gifts or any other items to support his or her own interests or the interests of any profit or non-profit organization must first obtain a booth, stand or designated area from the Columbia County Fair Board, and then may solicit, sell or distribute within four (4) feet from the perimeter of the booth, stand or designated area.

4. Any person found soliciting funds, or selling or distributing literature, gifts or other items outside the area described in Rule 3 may be asked for his or her identification, the name of the organization (if any) he or she represents, and the location of the booth, stand or designated area (if any) out of which he or she is working. The person may then be directed to his or her booth, or designated area, or, if no such area has been obtained, he or she may be asked to leave the fairgrounds.

The plaintiffs contend that they would have successfully obtained enough signatures on their petitions to place on the ballot a recall of two county commissioners, had they been allowed freely to seek petition signatures on the fairgrounds. They claim that the enforcement of the rules violates their rights under the first and fourteenth amendments.

This case is controlled by Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640 (1981). Heffron involved a state fair run by the Minnesota Agricultural Society. The International Society for Krishna Consciousness ("ISKCON") challenged a similar state fair rule. The Court analyzed the rule as a time, place and manner restriction. Such restrictions are valid "provided that they are justified without reference to the content of the regulated speech, that they serve a significant governmental interest, and that in doing so they leave open ample alternative channels for communication of the information." Id. at 647-48 (quoting Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771 (1976)). The plaintiffs do not argue that rules 3 and 4 are content-based as written or applied. Their challenge is based only on the second and third prongs of the Heffron test. They argue that the rules are not justified by a significant, demonstrated governmental interest, and that if such an interest is established, the rules are not as narrowly drawn as the constitution requires.

A. The burden of showing a significant governmental interest

The second prong of the Heffron test requires that the restriction "serve a significant governmental interest." Heffron, 452 U.S. at 648. It is the government's burden to justify restrictions on protected first amendment activities. Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971).

In Heffron, the principal justification asserted by the state was the need to maintain the orderly movement of the crowd in light of the large number of exhibitors and persons attending the fair. The Court recognized that the state's interest in protecting the safety and convenience of persons using a public forum was a valid governmental objective. Heffron, 452 U.S. at 649-50. Further, the Court rejected an argument that granting ISKCON an exemption from the rule would not significantly affect the safety and convenience of the public. The Court reasoned that such an analysis was required to recognize that all groups would be entitled to the same exemption. Thus, the concern for widespread exploitation of captive fairgoers and resulting disorder was legitimate, and it constituted a sufficient governmental interest. Id. at 652-54.

Here, the fair board gave several reasons for its rules. Although these reasons were not well-articulated, they demonstrate that the board was concerned with crowds that sometimes gathered and congestion in the trafficways. Further, the board correctly noted that if an exception was made for the plaintiffs then all groups would have the same rights. Uncontrolled petitioning and soliciting in the fairground booth areas would work injustice to exhibitors who have paid for and prepared their exhibits. Traffic control was a legitimate concern of the board.

The plaintiffs argue, however, that a particularized analysis of the facts in Heffron and the case at bar demonstrate that Heffron is distinguishable. This argument amounts to little more than the truism that a state fair is larger than a county fair. Although the Minnesota State Fair had many more patrons than the Columbia County Fair, the Columbia County Fairgrounds were smaller than the Minnesota State Fairgrounds. The record demonstrates that thousands of patrons attended the county fair. Patrons included large groups such as senior citizens, and substantial crowds gathered at peak periods.

We also reject plaintiffs' suggestion that the government must submit expert testimony to satisfy its burden of showing a significant interest in restricting the time, place, and manner of speech. Cf. Acorn v. City of Phoenix, 798 F.2d 1260, 1268-70 (9th Cir. 1986) (expert testimony heard on whether allowing solicitation of funds from cars on public streets posed significant danger of traffic accidents). Neither Heffron, nor common sense, require expert testimony. Nor does the Heffron Court rely upon or even refer to the type of expert testimony urged by the plaintiffs. Rather, the Court accepts without comment the validity of the interest in maintaining the orderly movement of the crowd. Heffron, 452 U.S. at 650 ("As a general matter, it is clear that a state's interest in protecting the 'safety and convenience' of persons using a public forum is a valid governmental objective.").

We are unwilling to invent a requirement of expert testimony. The trial court correctly found that the fair board had satisfied its burden of demonstrating that the rules served the significant interest of orderly flow of traffic.

The third prong of the Heffron test requires that the restrictions on speech allow alternative opportunities for expression of protected activity. The Heffron Court noted that the state fair rules did not prevent ISKCON members from soliciting funds outside the fair; nor did the rules exclude ISKCON members from the fairgrounds. Moreover, the rules did not deny organization members the right to mingle in the crowd and orally propagate their views and direct interested fairgoers to their booth, where the fairgoers could obtain literature and make contributions. Id. at 643-44, 655. Similarly, in this case, the rules allowed the plaintiffs to obtain signatures outside the fairgrounds, to converse with fairgoers anywhere on the fairgrounds, and, if they wished to rent a booth, to direct fairgoers to their booth to sign the petition.

The plaintiffs, however, seek to apply a standard different from that followed in Heffron. They note that the first amendment demands that the "regulation must be narrowly tailored to further the State's legitimate interest," Grayned v. City of Rockford, 408 U.S. 104, 116-17 (1972), and that the regulation must be the "least restrictive means of achieving" the board's end. NAACP v. City of Richmond, 743 F.2d 1346, 1355 (9th Cir. 1984). If the fairground were a public square, the plaintiffs' point might be well taken.

Both the cited cases involved restrictions on first amendment activity in public streets, not fairgrounds. "Public streets are the prototypal example of a public forum." Id. (citing Hague v. CIO, 307 U.S. 496 (1939)). Thus, restrictions of access to public streets require a "particularly high degree of scrutiny." Richmond, 743 F.2d at 1355. However, as both Heffron and Richmond recognized, fairgrounds are created for the rental of exhibit space, and by their very nature are a more limited public forum than are streets and parks. Heffron, 452 U.S. at 651; Richmond, 743 F.2d at 1355 n. 8. A constitutional standard for time, place and manner regulation of speech appropriate for a public square is not necessarily appropriate for a fairground with its booths, concession stands, and narrow passageways.

In Heffron, the Court explicitly rejected an argument by ISKCON that a less restrictive means existed to control the fairground traffic-flow problem. The Court found ISKCON's suggestions--penalizing disorder after the fact, limiting the number of solicitors or placing more narrowly drawn restrictions on the location and movement of ISKCON's representatives--impracticable when analyzed as applying to all groups at the fair. Heffron, 452 U.S. at 654. Similarly, in this case, the plaintiffs' suggestions--limiting "petitioning to areas away from the entrance to the fairgrounds or other areas which had a high potential for creating difficulties," or limiting "the petitioning to specific times which were less busy than others"--would create greater potential for abuse, allowing the board to select times or places which would discriminate against certain groups, or could be susceptible to that challenge.

Thus, the board's rules satisfy the three-pronged Heffron test, and are valid time, place and manner restrictions.

ATTORNEYS' FEES

Plaintiff Ryan contests the district court's award of only 5% of the attorneys' fees that he sought. We review for abuse of discretion the district court's award of attorneys' fees and the amount awarded. Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210 (9th Cir. 1986), amended, 808 F.2d 1373 (9th Cir. 1987).

In Hensley v. Eckerhart, 461 U.S. 424, 433 (1983), the Court stated that reasonable attorneys' fees may most usefully be determined by multiplying the hours reasonably expended on the case by a reasonable hourly rate. Hensley further suggested that this initial computation may be adjusted upwards or downwards based on the results obtained. Id. at 435-37. The adjustment is "particularly important" when the plaintiff has only been partially successful. Id. at 436. The Court further stated that partial success raises two questions: whether the claims upon which the plaintiff prevailed were unrelated to the other claims, and whether the level of success makes the hours reasonably expended a satisfactory basis for making a fee award. See Id.

After quoting the above passages, the trial court analyzed the case at bar:

In this action there were two plaintiffs, 15 defendants, First Amendment claims for 1983 and 1985, and federal and state false imprisonment claims for 1983. Only one plaintiff prevailed against two of the 15 defendants on the federal and state false imprisonment claims.

The trial court then found that Ryan's request for 60 percent of the total fees incurred in the action was unreasonable. Rather, the court found that 5 percent of the total was reasonable. The court found the hourly rates of $125 and $100 were reasonable.

The plaintiffs argue that the district court's order did not contain adequate findings to support its award. They argue that the district court did not state whether it had found the hours requested excessive, or that the case was overstaffed, or that the documentation of hours expended was inadequate. See Hensley, 461 U.S. at 433-34 (indicating that these factors may justify reducing the award). However, "the district court need not set forth in exhaustive detail the method of calculating an attorney's fee award," so long as the court indicates the number of hours compensated and the hourly rate applied. Chalmers, 796 F.2d at 1211 n. 3. From the district court's order, it is clear that the court identified the total hours incurred at the $125 per hour rate and the total hours incurred at the $100 rate and awarded 5 percent of each of those categories of hours. The district court's order is clearly distinguishable from those in the cases cited by the plaintiffs. Id. at 1213 (attorneys' fee award vacated and remanded where it appeared that the court had used a multiplier, but had failed to indicate the multiplier or the reasons for applying it); Jordan v. Multnomah County, 799 F.2d 1262, 1266-67 (9th Cir. 1986) (judge made no finding on the sufficiency of the evidence and applied an "unsupported 'range' hourly rate to a 'range' of hours to arrive at a fee"), superseded, 815 F.2d 1258 (9th Cir. 1987).

The court's finding was supported by the record. The false imprisonment testimony comprised about 14 percent of the transcript. Ryan's testimony comprised about 2.5 percent of the transcript. The pretrial preparation for the false imprisonment claims was less than 5 percent of the total time. Sprague did not prevail on his false imprisonment claims at all. The attorney time and services provided on the first amendment issues were unrelated to the false arrest claims. The result of the litigation was a fairly accurate measure of the efficiency of the work bestowed upon it.

Given this support in the record and the explanation, albeit lacking in micro detail, the trial court did not abuse its discretion in awarding 5 percent of the fees requested.

AFFIRMED.