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Court Decides Attorneys Fees, Notes First Amendment Ratification

By Robyn Hagan Cain | Last updated on

The problem with reading appellate opinions all day is that it makes us question what is wrong with the characters that occupy the courts, on both sides of the bench.

This week, the Tenth Circuit Court of Appeals ruled that a district court can't just spitball and award a litigant $8,000 in attorneys fees, ($1,000 for each day of an eight-day trial), when the party asked for $503,000. There has to a method to the madness, and an explanation for that method.

Let's briefly go back to the beginning.

Plaintiff Michael Zinna became miffed about a failed real estate transaction with Jefferson County, Colorado, and launched the websites and to report on public meetings and corruption in Jefferson County government. He broke a few stories, and generally irritated the Jefferson County Commissioners, including James Congrove.

County officials responded by hiring a private investigator to report on Zinna, muting Zinna's microphone at a public meeting, and allegedly launching the website to blast Zinna.

Zinna sued various county officials under 42 U.S.C. §1983, alleging that officials retaliated against him in violation of the First Amendment. After motions, withdrawals, and dismissals, the jury was instructed to determine whether Congrove engaged in "unlawful conduct towards [Zinna] in retaliation or to interfere with his freedom of speech."

During deliberations, the jury asked the court when the First Amendment was adopted. The court responded that the Bill of Rights was enacted in 1789 and ratified in 1791. On receiving this information, the jury returned its verdict, finding that Zinna "proved by a preponderance of the evidence that ... Congrove used his authority as a Jefferson County Commissioner to take adverse action against ... Zinna in violation of the First Amendment."

(Sidebar: We understand that this appeal is about arbitrary attorneys fees, and not First Amendment ratification, but we can't help but wonder what jury room conversation prompted that inquiry. Was there actually a juror who questioned whether the First Amendment was adopted after Zinna and Congrove started attacking each other over the Web?)

Zinna was awarded $1,791 in damages. Then he requested half a million dollars in attorneys fees under 42 U.S.C. § 1988. The district court said, "Eh...It was an eight-day trial; how about a thousand bucks a day instead?" (We might be paraphrasing ...)

The Tenth Circuit Court of Appeals vacated and remanded the attorneys fees award.

The appellate court noted, "It is not enough ... for a court to simply 'eyeball a fee request and cut it down by an arbitrary percentage.' The $8,000 award at issue was not based on the [reasonable hourly rate] or Zinna's records. Rather, the court arbitrarily assumed that this amount was sufficient without reference to the record."

What can we take away from this case?

Attorneys fees awards must be based on actual facts and figures ... and at least one Colorado juror was unaware that the First Amendment predated the Internet.

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