HOUSTON - The advocacy group that represented a minister who hoped to spread his message on a street corner as passersby headed to concerts will get nearly $28,000 from Montgomery County.
Houston federal judge Andrew Hanen on Dec. 10 awarded Nathan Kellum of the Center for Religious Expression $27,945, finding plaintiff Joshua Herridge is a "prevailing party" in his case against the county.
An "unwritten policy" created a dispute over whether Herridge could preach, display signs and pass out leaflets at the corner of Lake Robbins Drive and Six Pines Drive in The Woodlands as concert-goers headed to the Cynthia Woods Mitchell Pavilion.
The county found this location to be dangerous, while Herridge sought to preserve his spot on it because of high foot traffic. The county moved him across the street, leading to Herridge's 2019 civil rights lawsuit.
The case started off rocky for Herridge, when Judge Hanen found the county had real safety concerns that allowed it to limit where Herridge could preach. But on appeal, Herridge noted his activities also included passing out literature and holding signs.
The U.S. Court of Appeals for the Fifth Circuit remanded the case to consider those points. Hanen found the county's policy of preventing those two activities was not tailored to the interest of public safety.
Montgomery County did not show leafleting and sign-holding were just as problematic as preaching. A first injunction let Herridge perform his work in the disputed area, but after the court took a field trip to the spot, Hanen modified it to an area that has less vehicle traffic.
This resolution led the Center for Religious Expression to consider its client the prevailing party, enabling it to request attorneys fees. Montgomery County claimed otherwise, arguing Herridge didn't prevail on his civil rights claim.
Citing a case in which a plaintiff who won an injunction but was awarded no damages was considered the prevailing party, Hanen ruled for Herridge because of the terms of his first injunction.
"This injunction altered the legal relationship between the parties by modifying the County's behavior that benefitted Herridge - the Court ruled that the County must guarantee Herridge the ability to leaflet in the designated area," Hanen wrote.
"The County's prior behavior was augmented in a way that allowed Herridge to engage in some of the activity he sought. This injunction unquestionably satisfies the standard for Herridge to be a prevailing party."
The modification of the injunction was a win for the county, Hanen wrote, adding Herridge "prevailed in only the middle stage of the litigation." Still this makes him the prevailing party, "albeit narrowly," Hanen said.
The fees awarded were only incurred after the Fifth Circuit revived the case.
"The Fifth Circuit's remand was the moment where Herridge's counsel began arguing meritorious issues - sign-holding and leafleting," Hanen wrote.
Kellum is reimbursed for 62 hours of work at $450 per hour. He is now senior counsel for the First Liberty Institute.