Tacoma Owes Legal Fees to Zoo T-Shirt Hawker

     (CN) – A religious group that won the right to sell T-shirts bearings its message at the zoo in Tacoma, Wash., can recover attorneys’ fees, the 9th Circuit ruled.
     Higher Taste is a nonprofit religious organization that promotes its views by selling T-shirts at a table near the main gate of the Tacoma zoo. The T-shirts bore messages about community harmony and the humane treatment of animals.
     Though the Tacoma park district passed a resolution in 2005 banning the sale of merchandise near the zoo’s entrance, it let Higher Taste remain for another five years until it banned the group from selling shirts anywhere on zoo property.
     Higher Taste then sued the park district and won a preliminary injunction from a federal judge who found that the resolution may violate the First Amendment.
     In an ensuing settlement, the park district agreed to enact new regulations allowing organizations like Higher Taste to sell merchandise near the park’s entrance.
     Higher Taste moved for attorneys’ fees as the settlement was mum on that issue, but the District Court found that fees were not warranted since there was no prevailing party in the case.
     A three-judge panel of the 9th Circuit reversed Monday.
     “Lower courts have struggled to decide whether the requirements for prevailing-party status are met by a plaintiff who wins a preliminary injunction but does not litigate the case to final judgment,” Judge Paul Watford wrote for the Seattle-based panel. “The difficulty arises because preliminary injunctive relief is sometimes issued after a hearing that is ‘necessarily hasty and abbreviated,’ before any real assessment of the merits of the plaintiff’s claims can be made. And such relief is, by its very nature, intended to be temporary.”
     Even though the case settled before Higher Taste won a final judgment, its litigation forced the park district to enact new regulations, which the district would not have otherwise done, according to the ruling.
     The settlement “transformed what had been temporary relief capable of being undone (had the case been litigated to final judgment) into a lasting alteration of the parties’ legal relationship,” Watford wrote (parentheses in original). “Indeed, by securing Higher Taste’s right to continue selling its message-bearing T-shirts along the main walkway leading from the parking area to the zoo’s entrance, the settlement agreement gave Higher Taste what it had hoped to obtain through a permanent injunction.”
     The park district retained the right to change or revoke the new regulations at will, but “a repeal of the regulations would have no effect on the personal right to sell message-bearing merchandise Higher Taste secured for itself by negotiating the settlement agreement,” according to the 13-page opinion.
     On remand, the trial court must calculate the fees to which Higher Taste is entitled.

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