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 Banner’s Request for Attorneys Fees, Costs Now in Hands of Judge

March 7, 2007 - A Henry County judge said last week that she expects to rule within 90 days on requests for attorney fees and related costs filed with respect to a public access lawsuit The Banner won against the town of Knightstown and its insurer.

A hearing was held in the Henry Circuit Court on February 27 on motions for summary judgment filed by The Banner, the town and the town's insurer on the issues of fees and costs. At the end of the hearing, Judge Mary Willis, who announced she is preparing to take nine weeks of medical leave, said a ruling should be issued within 90 days and took the matter under advisement.

The Banner sued Knightstown and its insurer in 2004 after they declined to grant the paper's request for a copy of the agreement that settled former Knightstown police dispatcher GiGi Steinwachs' civil rights lawsuit against the town and Knightstown Police Department. In April 2005, Willis sided with the town and its insurer, and ruled that the agreement was not a matter of public record.

A unanimous three-judge panel of the Indiana Court of Appeals reversed Willis' ruling in December 2005, however, and concluded the Steinwachs settlement was a matter of public record. Last July, the Indiana Supreme Court denied requests for transfer filed by the town and its insurer, which left standing the Court of Appeals ruling favoring The Banner.

Indiana's Access to Public Records Act allows a plaintiff like The Banner to recover "reasonable attorney fees, court costs, and other reasonable expenses of litigation" if it "substantially prevails." In a petition filed in December, The Banner's attorney, Kurt Webber, said his client had incurred, at that point, $125,397.09 in fees, court costs and related expenses. He also asked the court to use a "risk multiplier" that would increase this another 50 percent due to the importance of the case in the field of public access law and because of the personal financial risk he faced in taking the case.

In documents filed with the court in December, Webber noted that the lawsuit involved an important public records issue that Indiana's courts had not previously addressed: whether public agencies are prohibited from entering into confidential lawsuit settlements. He also said other newspapers around the state have relied on the Knightstown case to obtain "settlement agreements that would otherwise escape public scrutiny," a point supported by testimony from two witnesses at last week's hearing. "The ruling in Knightstown, in my opinion, is very significant," Craig Klugman, editor of the Fort Wayne Journal Gazette, testified. "It allows, for the first time, any news organization - or, more importantly, any citizen - to know how much money is being paid" to settle cases involving public agencies. He called the ruling "one of the more significant reporting tools we've been given in years," and said his paper had successfully relied on the Court of Appeals ruling in the Knightstown case to learn the terms of a settlement involving the city of Kendallville.

Klugman told the court he was proud The Banner had taken on this legal battle to put an end to the use of confidential settlements by public agencies and their insurers. He also noted that The Banner's efforts had been recognized by the Hoosier State Press Association, which honored the newspaper in 2005 with the Ray Moscowitz Award, an award periodically given to journalists who foster advancement of the First Amendment by successfully lifting a veil of secrecy surrounding government.

Joe Gerrety, the courts reporter for the Lafayette Journal & Courier, also testified at last week's hearing. He said a record request his newspaper had submitted in 2005 for a settlement agreement that ended litigation involving a police action shooting in the town of Mulberry was initially denied. However, he said when they made another request after the Court of Appeals issued its ruling in the Knightstown case, a copy of the agreement was provided.

The third and final witness called by Webber was Bryan Babb, an attorney with the Indianapolis law firm of Bose McKinney & Evans. Babb, who primarily handles appeals in his own practice and was there to serve as an expert witness on the reasonableness of Webber's appellate fees, described the Knightstown case as "very unusual," with several factors contributing to Webber's fees of more than $60,000 for the appeal.

"It was not a typical appeal," Babb testified. He noted that the case involved multiple parties and briefs and said, "I've never seen a case like this, quite frankly." With both the town and its insurer filing separate briefs and motions, Babb said this resulted in Webber having to do additional work. Babb also noted that the cost of the appeal was more in this case because the Court of Appeals had requested that attorneys provide oral arguments. He noted that the court did this on its own, something he said was very rare, and pointed out that the Court of Appeals included a footnote commending the attorneys involved on the quality of the briefs and their oral arguments.

Although The Banner prevailed on its appeal and was ultimately provided with a copy of the agreement that showed the town and its insurer paid $75,000 to settle the Steinwachs case, attorneys representing the town's insurer filed their own petition asking Willis to award them $111,324.20 in attorney fees and costs. In their court filings and at last week's hearing, attorneys for the insurer argued that The Banner had not substantially prevailed against their client, but Willis was evidently not persuaded. During a brief sidebar conference called to discuss a document that had been offered into evidence, Willis told attorneys for the town's insurer that their client would not be recovering fees. She said The Banner would be recovering fees, however, and that the only issue left to decide was the amount.

As the hearing was about to conclude, Willis noted that the determination of the proper amount of reasonable attorney fees is a matter within her discretion. "There's probably no way I can issue a number that will make everybody happy," she said. "But I'll try."

 

 

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