Civil Rights: Handbiller lawyers get bonus, too

HONOLULU – Federal Magistrate Joseph Gedan yesterday awarded almost $80,000 in fees to attorneys for Waikiki handbillers in a lawsuit against the city, and he threw in another $36,477 because he was so impressed by their work on the “highly undesirable case.”

Ironically, Gedan last year ruled in the city’s favor, upholding a 1982 ordinance banning distribution of handbills in Waikiki.

Represented by the law firm of Mark Davis and Stanley Levin, the handbillers appealed Gedan’s ruling, and U.S. District Judge Samuel P. King Jr. overruled him in January, declaring the ban unconstitutional.

Gedan yesterday ordered the city to pay Davis and Levin’s firm $116,251 for their work on the case. The figure includes $72,995 in legal fees, $2,441 for expenses, $4,377 for excise taxes and a $36,477 “upward adjustment.”

Mayor Frank Fasi and city Councilwoman Marilyn Bornhorst were surprised to learn of Gedan’s order.

Bornhorst, who represents Waikiki and heads the council Budget Committee, gasped and said, “That’s ridiculous…I wonder if we can get legal aid for the city.”

The city could build two basketball courts for $116,251, she added.

Noting Gedan’s ruling last year, Fasi said, “I can’t figure Joe out. It’s a little bit inconsistent, if you ask me.”

Davis was hired by a group of handbillers calling themselves the Waikiki Small Business Association to challenge the ban. Had his firm lost the case, they would have paid the legal fees.

The adjustment, he said, “only came about as a result of our having won.” Such awards are common and are meant to encourage lawyers to take on unpopular cases, Davis said.

In the handbilling case, he said, “There was scarcely a single element of the established community, government and the media that seemed to say this is an important First Amendment right. Public sympathy was unanimous to the contrary. Our office got a lot of hate mail as a result of our handling this case. It was just a very unpopular case.”

Gedan agreed. In a written order, he stated, “Both the court and (the attorneys) were subjected to substantial criticism and negative community reactions not only because of the results which (were) obtained in this case, but also as a result of simply pursuing the case. This case turned out to be one of a highly undesirable nature, and one which, according to counsel, has already affected (Davis and Levin’s) practice adversely.

He found that the rates Davis and Levin charged “are well within the community standards…for this type of litigation and similar complex federal legislation.”

City attorneys could not a reached for comment, and Fasi said he had not discussed Gedan’s order with them.

“Maybe there’ll be another judge who’ll have a different opinion – I don’t know,” Fasi said. “We’ll let the lawyers argue it out. Sometimes I think I got in the wrong business.

Fasi and Bornhorst said they hope to find some way to control the problem of handbilling.

Bornhorst said, “I do think civil liberties are important, but at some point you gotta balance a community’s need to keep itself in business. Handbilling has been a consistent complaint with visitors.”

contact Mark Davis

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