Kirkland Helps Change Tune In Opera Singer's Clash With City

By Michele Gorman | June 23, 2019, 8:02 PM EDT

When Krista McClellan Clouse was arrested on a public sidewalk in Virginia in 2016, it wasn’t the kind of recognition that she usually gets for her singing.

Clouse, a soprano opera singer with a music degree from Boston University, has performed at the annual First Lady’s Luncheon by the Congressional Club and abroad in Europe and South America, and has been the recipient of or finalist for various music awards in South Carolina, Brazil and Italy.

Kirkland helped opera singer Krista McClellan Clouse sue the city of Alexandria, Virginia, and reach an eventual settlement after she was arrested over a street performance. (Photo: Krista McClellan Clouse)

Her voice has also been a regular part of Alexandria’s historic Old Town district for several years. But that didn’t stop police from clapping Clouse in handcuffs and bringing her before a judge over an alleged noise violation.

The experience, according to Clouse, left her with not only physical and emotional harm, but also damage to her reputation.

However, with the help of a pro bono team from Kirkland & Ellis LLP, Clouse went on offense and recently secured a settlement in a lawsuit she brought against her native city. Among her claims, Clouse said Alexandria’s ordinance violates the First Amendment and is unconstitutionally vague and overbroad.

Kirkland trial attorney and partner Mike Williams, who led the Washington, D.C.-based team of lawyers working on the case, told Law360 the settlement is not only personal vindication for Clouse, but also significant on a larger scale because it protects the constitutional rights of street performers and promotes the city’s cultural community.

“We have a person who was aggrieved and who believed her constitutional rights were violated and she was harmed in the process,” he said. “Then we have a city that’s clearly trying to do the right thing, but that might have fallen short in this case.”

A representative for the city of Alexandria did not respond to request for comment.

According to the complaint filed in August, Clouse often performs on public sidewalks in the Old Town district of Alexandria with a portable speaker playing accompaniment music, and had taken precautions to ensure her noise didn’t exceed 75 decibels, per local rules.

A few hours after Clouse began to sing on a night in September 2016, an officer told her that she couldn’t use a speaker system without a permit, according to a statement issued from the city at the time.

But Clouse continued, was arrested for violating the city’s noise control code and brought before a magistrate judge, who issued a warrant for a misdemeanor noise violation and released her pending a trial date, according to the city.

Later, the commonwealth’s attorney recognized the noise violation should first have been addressed by a civil notice of violation and Clouse should not have been immediately arrested.

The charge was dropped and the city apologized to the opera singer.

Kirkland took on Clouse’s case shortly after her arrest, in large part because of her stature and the First Amendment claim. The firm didn’t represent Clouse in moving to dismiss her criminal charge, but did assist her in securing the expungement of her arrest, another significant outcome of the case that the circuit court granted on June 17.

Given the apology and its statement to reconsider its noise ordinances, Kirkland lawyers had to determine how much to press the issue.

“Is the city’s mea culpa enough, or do we really need to proceed to litigation in order to secure Krista the compensation that she’s seeking?” Williams said, later adding, “There were still no guarantees that it would make revisions” to its noise ordinances without litigation to secure those changes.

Aware that the courts in the Eastern District of Virginia expect to send cases to trial within a year, Kirkland lawyers knew the fast pace would require significant resources if the suit overcame any initial challenges by the city. Williams, who called Clouse a “prominent fixture” of Old Town, helped staff a team to take the case to trial in a district where the stakes are often high.

Kirkland’s resources were worth it because of the constitutional questions at issue.

“I think the most important outcome isn’t just for the city of Alexandria, but for municipalities generally that there’s a recognition that public performers are not only important for creating vibrant public spaces, but also that they have First Amendment rights no less than any other speakers, no less than any other citizens,” Williams said.

At a hearing in December, a judge said the case would move forward on at least one of the claims, and emphasized it was in the parties’ best interest to consider settlement discussions.

A settlement was announced in March. And while the terms are confidential, the impact of the case is clear.

City staff are now performing a comprehensive review of all noise ordinances and will recommend any necessary changes to the City Council, according to Kirkland, which is encouraging officials to take into account the input of Clouse and other public performers.

Clouse told Law360 that she hopes the review will result in identifying more scientific means to determine sound limits and in bringing Alexandria’s noise ordinances up to speed with the increased use of electronic music and speakers popular among current performers.

“I’m hoping that people know that they have rights and that those are protected,” Clouse said. “I would like people to feel bolder, to feel like they have the opportunity to go out and express themselves without fear of repercussion.”

She also said she is grateful for the Kirkland attorneys who reached out and saw her case through to the end, as well as the city's willingness to negotiate and reach an agreement.

“Overall, my feeling is overwhelmingly positive,” Clouse said. “This has really given me an opportunity to take a step back and get out of the grind that we had been in for almost three years since our lives fell apart.”

Kirkland is no stranger to large scale pro bono work. The firm has handled major voter rights cases in North Carolina, as well as a lawsuit that alleges Maryland diverted students from historically black colleges and universities by duplicating those schools’ academic programs at traditionally white institutions.

But pro bono work should also mean cases in which a single person’s rights might be at stake, according to Williams.

“Our firm does a great job at doing big-impact cases for pro bono,” Williams said. “It’s one thing to handle the big, attention-grabbing headlines; it’s another thing to handle a pro bono case when it’s one person and her livelihood and her dignity involved.”

--Editing by Katherine Rautenberg.

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