City, ACLU make deal

Divided council drops bid to save anti-loitering law

City to pay $170,000

Bill sponsor decries move, saying appeal could have succeeded

April 27, 2001|By Amanda J. Crawford | Amanda J. Crawford,SUN STAFF

A divided Annapolis city council formally ended its yearlong struggle to preserve a new anti-loitering law, agreeing not to appeal a federal judge's decision last month that struck down the law as unconstitutional.

The city announced yesterday that it reached a settlement Wednesday night with the American Civil Liberties Union of Maryland. The settlement also included paying $170,000 of the $240,000 in legal fees submitted by the ACLU for its work on behalf of the county branch of the National Association for the Advancement of Colored People and three city residents.

In a two-hour closed session Monday night, Alderman Louise Hammond joined the bill's vocal sponsor, Alderman Herbert H. McMillan, in calling on the city to appeal U.S. District Court Judge Catherine C. Blake's ruling to the 4th Circuit Court of Appeals in Richmond, Va.

Five other aldermen and Mayor Dean L. Johnson voted to abandon the lawsuit and settle with the ACLU. Alderman Michael W. Fox was absent Monday.

Yesterday, McMillan decried the council's move, saying the council failed to heed the advice of its attorneys who said the city had a good chance of winning.

Miguel A. Estrada, an attorney with Gibson, Dunn & Crutcher of Washington, which took the city's case pro bono, told the council he expected the city to have a 65 percent chance of victory at the conservative 4th Circuit Court, McMillan said. Estrada offered to take the city's case all the way to the U.S. Supreme Court, if necessary, free of charge.

The city's attorneys also advised the council to file an appeal so that the city had leverage when negotiating with the ACLU on the amount of legal fees it would pay, McMillan said. The ACLU was entitled to reimbursement of its legal fees because of the successful constitutional challenge. Blake found that the law, which allowed for the creation of drug-loitering-free zones, was vague and prohibited First Amendment freedoms.

"If we would have appealed this case, we would have won it and [the ACLU] would have gotten nothing," McMillan said. "With the mayor's decision to abandon what would have been a successful appeal, the ACLU is now able to claim that a very shakily constructed District Court decision was a triumph, and turn a profit on legal fees at our taxpayers' expense."

McMillan, who announced last month that he was challenging Johnson for the Republican nomination for mayor this fall, blasted Johnson and fellow Republican Alderman Joseph Sachs for voting against an appeal when they voted in favor of the law in October 1999.

He said the two "have chosen to allow political gamesmanship to overcome their principles and cloud their judgment."

Johnson, who declined to discuss the closed meeting Monday, said he voted in favor of McMillan's law but did not see it as "the magic solution" to the city's drug problem. His vote not to appeal was a "recognition of reality" that an appeal was "not a sure deal" and had nothing to do with McMillan's mayoral challenge, he said.

"I am sorry that the alderman seems to put a price on everything and a value on nothing," Johnson said. "The battle to eliminate drugs is worth it. Is this piece of legislation going to do it? If this piece of legislation was so important, it would be adopted all through the country."

The law allowed police to force individuals they suspected were dealing drugs to move along and arrest them if they refused to leave.

The mayor pointed to the additional legal fees involved with an appeal and noted that the city had already paid its other outside attorney in the case, Jefferson Blomquist of Funk & Bolton in Baltimore, almost $40,000.

Still, Johnson said he was not pleased with the settlement. He had hoped the ACLU would give part of the $170,000 back to the city to dedicate to drug treatment programs, but the ACLU declined.

"When the City of Annapolis hires a plumber, do they say we can either pay you or build more sewers?" said ACLU staff counsel Dwight Sullivan.

He disputed McMillan's assertions that the organization's bills were inflated and said that despite the alderman's claims, no erroneous fees were included in the $240,000 figure the group planned to submit to the court.

"We submitted to them somewhere around 20 pages of detailed, itemized sheets indicating what we had billed for," Sullivan said. "We believe we would have received more [money] if we would have litigated for attorney fees. [But] we have more important battles to fight than over attorney fees with the City of Annapolis - we thought $170,000 was adequate."

Sullivan said the money would go toward funding the ACLU's programs and reimbursing the organization's outside counsel.

"We are obviously very pleased that the city has chosen not to appeal the case and we think that is the right decision," he said.

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