OUTDOOR SYSTEMS INC V CITY OF CLAWSON
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STATE OF MICHIGAN
COURT OF APPEALS
OUTDOOR SYSTEMS, INC., d/b/a INFINITY
OUTDOOR,
FOR PUBLICATION
December 12, 2006
9:05 a.m.
Plaintiff-Appellant,
v
No. 263365
Oakland Circuit Court
LC No. 2000-022427-CZ
CITY OF CLAWSON,
Defendant-Appellee.
Official Reported Version
Before: Jansen, P.J., and Sawyer and Bandstra, JJ.
PER CURIAM.
In this action for attorney fees brought under 42 USC 1988, plaintiff appeals as of right
the circuit court's determination that it was not the "prevailing party" in an underlying lawsuit.
We reverse and remand for further proceedings.
I. Facts and Procedural History
Plaintiff is a billboard advertising company. Plaintiff installs and maintains billboards on
property that it owns or leases, and then sells advertising space on the billboards. Plaintiff leased
the right to install and maintain billboards at certain locations in the city of Clawson. At the time
plaintiff applied for permits to install its signage, Clawson Code, § 34-1110(13) prohibited
billboards. Clawson Code, § 34-1102 defined a "billboard" as a "nonaccessory sign which is
directed to the general public, and on which a display can be posted, painted or otherwise affixed
in a manner which is readily changeable." Clawson Code, § 34-1102 further defined a
"nonaccessory sign" as a "sign which does not pertain to the principal use of the premises on
which such sign is located." Accordingly, plaintiff 's signs constituted "billboards" as defined by
the ordinance, and Clawson denied plaintiff 's request.
Plaintiff then sued Clawson, alleging that Clawson's prohibition on billboards (1) violated
the Home Rule City Act,1 (2) violated § 12 of the former City and Village Zoning Act (CVZA),
1
After the Michigan Supreme Court decided Adams Outdoor Advertising, Inc v City of Holland,
463 Mich 675; 625 NW2d 377 (2001), plaintiff dismissed its claim in count 1.
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MCL 125.592,2 and (3) violated 42 USC 1983 by abridging plaintiff 's First Amendment rights.
After facilitation failed, the parties filed cross-motions for summary disposition. The circuit
court issued a written opinion, granting summary disposition for Clawson on two grounds. The
circuit court ruled that Clawson Code, § 34-1110 did not violate the CVZA because there was no
place within Clawson where a billboard could be appropriately located. The circuit court also
concluded that Clawson's ordinance did not unconstitutionally restrict plaintiff 's free-speech
rights. The circuit court denied reconsideration.
Plaintiff appealed by right. See Outdoor Systems, Inc v Clawson, 262 Mich App 716;
686 NW2d 815 (2004). This Court affirmed the circuit court's ruling that Clawson had not
violated the CVZA, but did so on different grounds than those relied on by the circuit court.
However, this Court reversed the circuit court's ruling that Clawson Code, § 34-1110 did not
unconstitutionally restrict commercial free speech, determining that that Clawson's billboard ban
was not narrowly tailored to achieve Clawson's interest in traffic safety and aesthetics. This
Court reasoned:
Plaintiff challenges the legality of defendant's ordinance that prohibits
"billboards," meaning readily changeable signs unrelated to the principal use of
the premises upon which they are located. We conclude that, because it advances
no governmental interest, the ordinance's prohibition of readily changeable signs
violates plaintiff 's First Amendment right of free speech. We reverse and
remand. [Outdoor Systems, supra at 717.]
Thereafter, Clawson passed Ordinance 640,3 which amended Clawson Code, § 34-1110
and deleted the prohibition of billboards. This amendment mooted plaintiff 's request for
injunctive and declaratory relief.
In the wake of this Court's favorable ruling with respect to plaintiff 's First Amendment
claim, plaintiff moved the circuit court for a determination that it was a prevailing party under 42
USC 1988, which provides for attorney fees. In response, Clawson asserted that it had prevailed.
Clawson argued that plaintiff 's main objective had not been to eliminate the billboard prohibition
altogether, but to challenge Clawson's size and height limitations on signs.
2
MCL 125.592, now repealed, provided:
A zoning ordinance or zoning decision shall not have the effect of totally
prohibiting the establishment of a land use within a city or village in the presence
of a demonstrated need for that land use within either the city or village or the
surrounding area within the state, unless a location within the city or village does
not exist where the use may be appropriately located or use is unlawful.
3
Clawson Ordinance 640 provides in relevant part: "Section 34-1110 Signs Prohibited
Throughout the City is hereby amended with the deletion of paragraph (2), flashing signs and
the deletion of paragraph (13), billboards."
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The circuit court denied plaintiff 's motion, stating:
Now, defendant also states that [it] prevailed on Count 2, and every issue
in Count 3 that was actually litigated by the plaintiff. The Court in Hensley [v
Eckerhart, 461 US 424, 433; 103 S Ct 1933; 76 L Ed 2d 40 (1983),] stated that in
order to achieve prevailing party status a plaintiff must both, one, achieve success
on a significant issue that, quote, leads to some benefit sought by the plaintiff.
There would still have to be a hearing in front of me on First Amendment because
I never determined if in fact there's been a remand.
* * *
The Court is satisfied it's going to deny this particular motion. I don't
think it's properly before me at this point in time. You can always ask the Court
of Appeals to examine it. Even if it were, I would think it would be a public
question that may not be subject necessarily to costs.
The circuit court denied plaintiff 's motion for determination of prevailing-party status
and entered a stipulated judgment providing that plaintiff had withdrawn its claim for actual
damages and that the amendment of Clawson's ordinance rendered moot plaintiff 's request for
injunctive relief. The circuit court also awarded plaintiff nominal damages of $10, and stated
that the stipulated judgment "shall not provide the basis for any request by Plaintiff for attorney
fees and/or costs . . . ."
II. Standard of Review
"Michigan adheres to the rule that a state court is bound by the authoritative holdings of
federal courts upon federal questions, including interpretations of federal statutes." Yellow
Freight System Inc v Michigan, 464 Mich 21, 29 n 10; 627 NW2d 236 (2001), rev'd on other
grounds 537 US 36 (2002). Federal case law uniformly holds that the issue of determining
prevailing-party status under 42 USC 1988 is a legal question subject to review de novo. Bailey
v Mississippi, 407 F3d 684, 687 (CA 5, 2005); Palmetto Properties, Inc v DuPage Co, 375 F3d
542, 547 (CA 7, 2004); Richard S v California Dep't of Developmental Services, 317 F3d 1080,
1086 (CA 9, 2003); Christina A ex rel Jennifer A v Bloomberg, 315 F3d 990, 992 (CA 8, 2003);
Truesdell v Philadelphia Housing Auth, 290 F3d 159, 163 (CA 3, 2002); Smyth v Rivero, 282
F3d 268, 274 (CA 4, 2002); Church of Scientology Flag Service Org, Inc v City of Clearwater, 2
F3d 1509, 1513 (CA 11, 1993). Therefore, we will review de novo the question whether plaintiff
was a prevailing party in the underlying litigation for purposes of 42 USC 1988. This is in
accord with our own case law, which provides that questions of law are reviewed de novo on
appeal. Thomas v New Baltimore, 254 Mich App 196, 201; 657 NW2d 530 (2002).
III. Analysis
Plaintiff argues that the circuit court erred in determining that it was not a prevailing
party in the underlying 42 USC 1983 action for purposes of 42 USC 1988. We agree.
The Civil Rights Attorney's Fees Awards Act, 42 USC 1988, governs the award of
attorney fees in actions to enforce various federal civil rights and antidiscrimination statutes.
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Section 1988 provides in pertinent part, "In any action or proceeding to enforce a provision of
[42 USC 1983], . . . the court, in its discretion, may allow the prevailing party, other than the
United States, a reasonable attorney's fee as part of the costs . . . ." 42 USC 1988(b). Although
the phrase "may allow" might appear to be permissive, the United States Supreme Court has
interpreted the phrase as mandating attorney fees when the plaintiff prevails and certain special
circumstances are not present. Independent Federation of Flight Attendants v Zipes, 491 US
754, 761; 109 S Ct 2732; 105 L Ed 2d 639 (1989).
"A plaintiff must be a 'prevailing party' to recover an attorney's fee under § 1988."
Hensley v Eckerhart, 461 US 424, 433; 103 S Ct 1933, 76 L Ed 2d 40 (1983). The "prevailing
party inquiry" under § 1988 "does not turn on the magnitude of the relief obtained." Farrar v
Hobby, 506 US 103, 114; 113 S Ct 566; 121 L Ed 2d 494 (1992). Instead, "'[t]o be a "prevailing
party," a party must "succeed on any significant issue in litigation which achieves some of the
benefit the parties sought in bringing suit."'" Granzeier v Middleton, 173 F3d 568, 577 (CA 6,
1999), quoting Phelan v Bell, 8 F3d 369, 373 (CA 6, 1993), quoting Hensley, supra at 433; see
also Texas State Teachers Ass'n v Garland Independent School Dist, 489 US 782, 791; 109 S Ct
1486; 103 L Ed 2d 866 (1989) (holding that a "prevailing party" for purposes of § 1988 is "one
who has succeeded on any significant claim affording it some of the relief sought"). At a
minimum, the resolution of the dispute must change the legal relationship between the plaintiff
and the defendant. Id. at 792. The Supreme Court has rejected a "central issue test" that would
require a party to succeed on the main issue of the litigation to be considered prevailing.
Krichinsky v Knox Co Schools, 963 F2d 847, 850 (CA 6, 1992), citing Texas State Teachers
Ass'n, supra at 790.
In this case, plaintiff was a prevailing party. Plaintiff prevailed on a significant issue in
the litigation, and the litigation of its claim materially altered the legal relationship between
plaintiff and Clawson in a manner directly beneficial to plaintiff. As we previously determined
in Outdoor Systems, supra at 719: "The main issue presented here is not, therefore, that Clawson
does not allow large outdoor advertising signs. Instead, plaintiff challenges the provision of the
Clawson ordinance that prohibits "billboards" throughout the city." In a footnote, we further
stated:
We recognize that plaintiff also tangentially challenges the size and height
limitations of the ordinance. We conclude below that the CVZA does not apply
without regard to the size or height limitations of the ordinance. We also
conclude below that the trial court did not err in its determination that the size and
height restrictions of the ordinance were properly tailored to the governmental
interests in traffic safety and aesthetics in satisfaction of First Amendment
concerns. [Id. at 719 n 2.]
We concluded that
the billboard prohibition within the Clawson ordinance violates the First
Amendment. To the extent that the ordinance otherwise allows large outdoor
signs, within the size and height limitations discussed above, billboard advertisers
like plaintiff must be allowed to procure, build, and lease locations even though
their signage is readily changeable. [Id. at 724-725.]
-4-
Thus, we determined that although Clawson was able to restrict the height and size of
billboards within it municipal limits, it was not able to prohibit billboards altogether. The
relationship between plaintiff and Clawson was accordingly altered in a way that benefited
plaintiff. Moreover, after we issued our opinion, Clawson amended its code of ordinances to
delete its prohibition of billboards from § 34-1110. Although plaintiff presumably still would
like to install signs that exceed the size and height restrictions that Clawson has imposed,
plaintiff has achieved the right to install certain billboards within the city of Clawson as a result
of this litigation because Clawson entirely deleted its outright prohibition of billboards within the
city.
Clawson argues that plaintiff did not actually litigate the constitutionality of the § 341110 prohibition of billboards. However, plaintiff specifically alleged in its complaint that the
ordinance violated its First Amendment rights: "On its face and as applied to [plaintiff], the
complete ban on billboards by the City of Clawson's Sign Ordinance violates the protections
afforded free speech in the First Amendment to the United States Constitution." Plaintiff
similarly raised the constitutionality of the § 34-1110 ban on billboards in its motion for
summary disposition. We reject Clawson's suggestion that plaintiff never fully addressed or
litigated this matter below.
In sum, plaintiff is a prevailing party under 42 USC 1988. Because plaintiff has not yet
requested any definite amount of attorney fees, and because the circuit court did not award
attorney fees below, we need not determine at this time the proper amount of attorney fees, if
any, that should be paid to plaintiff. However, we note that plaintiff, as a prevailing party, is
entitled to "reasonable" attorney fees. 42 USC 1988; Hensley, supra at 426. The amount of
reasonable attorney fees payable to plaintiff under 42 USC 1988 must be commensurate with the
degree of plaintiff 's overall success in the underlying 42 USC 1983 litigation. Texas State
Teachers Ass'n, supra at 793. We reverse the circuit court order and remand this case for further
proceedings consistent with this opinion.4
Reversed and remanded. We do not retain jurisdiction.
/s/ Kathleen Jansen
/s/ David H. Sawyer
/s/ Richard A. Bandstra
4
Clawson argues that even if plaintiff was a prevailing party, no attorney fees are awardable
because the underlying litigation involved a question of public interest. On the contrary, the
language of 42 USC 1988 does not contain any such public-interest exception. Nor does
Michigan's public-question exception apply here. Michigan's exception for cases involving
public questions applies only to the taxation of costs, see In re MCI Telecom Complaint, 460
Mich 396, 444; 596 NW2d 164 (1999), and at any rate would not apply in this case, which is
governed by federal statute rather than state law.
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