Court: Leavitt's can go after town for attorney fees

CONWAY — A federal court authorized Leavitt’s Country Bakery to seek legal fees from the town of Conway to pay the bakery’s legal fees after the town lost at trial regarding an attempt to take down a painting depicting pastries.

On May 30, a notice of judgment was signed by U.S. District Court of New Hampshire Clerk of Court Tracy A. Uhrin.

“The prevailing party may recover costs consistent with Fed. R. Civ. P. 54(d) and 28 U.S.C. § 1920,” said Uhrin.

Attorneys representing the owner of the bakery, Sean Young, included the Institute for Justice’s Robert Frommer, Elizabeth Sanz, William Aronin, Bobbi Taylor and John Crabbs of Cooper Cargill Chant.

Frommer, reached June 2, said the Institute of Justice is more interested in working with town officials to make sure the town adheres to the constitution than collecting the fees, which he estimates as being more than $100,000.

He was surprised to see the judgment come so quickly.

“I don’t want the people of Conway to have to pay for the mistakes of the ZBA,” said Frommer. “What we really want is a solution that protects the free speech rights of Sean, the kids and everyone in town.”

The Institute of Justice is a nonprofit public interest law firm that gets funding from hundreds of thousands of supporters.

“We do take attorney’s fees when the government forces us into a situation like this,” said Frommer. “But we’re not doing this to get a paycheck.”

The painting over Leavitt’s entrance was created by Kennett High School students several years ago. Code Enforcement Officer Jeremy Gibbs determined it was an oversized sign, and the zoning board of adjustment agreed. The town then demanded Young take it down or change it.

In response, Young filed suit in 2023 with the help of attorneys from the Institute for Justice, challenging the enforcement on constitutional grounds. The case went to trial on Feb. 14, and on May 19, U.S. District Judge Joseph Laplante, sitting in Concord, ruled in Young’s favor based on the enforcement of the ordinance hinging on content.

“The court rules only that Conway’s application of its sign code, and specifically its enforcement of the sign code to the Leavitt’s sign in the particular manner it employed in this case, does not withstand any level of constitutional scrutiny,” said Laplante.

The last week of May, selectmen discussed Laplante’s order with their legal team in a non-public session and decided not to appeal. Town attorneys have already racked up $143,000 in costs. The legal team consisted of Jason Dennis of Hastings Law Office of Fryeburg, Maine, and Madeline Kate Osbon, Brooke Lovett Shilo, and Russell Hilliard, all of Upton Hatfield of Portsmouth.

In April 2024, town voters approved a new public art ordinance. In June of that year, the bakery said the ordinance would have a chilling effect on future murals. But Laplante denied Leavitt’s motion without prejudice, saying it was only “indirectly related” to the original suit.

Frommer said he still believes the public art ordinance could lead the town into more legal challenges. He said the newer ordinance will need to be addressed.

“It puts the planning board in the position of being the town censor,” said Frommer. “That’s one thing that the First Amendment just simply doesn’t allow.”

Frommer said a proposed solution to the issue of fees would be due to the court in mid-July.

On Friday, Leavitt’s Country Bakery will be giving customers a free doughnut, while supplies last, from 6 a.m. to 3 p.m.

“We want to thank all the locals for sticking by us this whole time and showing support and making their voices heard, and so on Friday, they can come in, and everybody who comes in gets a free doughnut,” said Young, adding town staff and elected officials are welcome, too. “We’re just happy it’s all done with, so hopefully they can bury the hatchet with us, and we’d love to see them all come in.”

Laplante, in his order, said repeatedly he was not ruling on the text of the ordinance itself but only on how the town attempted to enforce it against Leavitt’s.

Laplante said there was a “complete disconnect” between the language of the code and the town’s actions.

Town Manager John Eastman could not be reached on June 2.