THE CITY OF GREENSBORO et al v. GUILFORD COUNTY BOARD OF ELECTIONS

Filing 169

MEMORANDUM OPINION AND ORDER signed by JUDGE CATHERINE C. EAGLES on 1/3/2018; that the individual plaintiffs' request for attorney's fees, expert fees, and non-taxable costs, Doc. 147 , is DENIED. (Sheets, Jamie)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
CITY OF GREENSBORO, et al.,
Plaintiffs,
v.
GUILFORD COUNTY BOARD OF
ELECTIONS,
Defendant.

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1:15-CV-559

MEMORANDUM OPINION AND ORDER
Catherine C. Eagles, District Judge.
The State of North Carolina enacted an unconstitutional statute that violated the
rights of the plaintiffs, the City of Greensboro and a number of individual Greensboro
residents, who brought a successful challenge to the law. The individual plaintiffs move
for attorney’s fees incurred successfully challenging this unconstitutional law which, as
prevailing parties, they should ordinarily recover. The plaintiffs named one defendant in
the case, the Guilford County Board of Elections. The County Board had the statutory
duty to enforce the unconstitutional law, but it had nothing to do with passing it, nor did
it defend the law in court. The plaintiffs did not name the State or any state entity or
actor as a defendant. Despite notice and statutory rights to intervene, neither the leaders
of the General Assembly nor the Attorney General appeared in court to defend the Act or
to concede that it was unconstitutional.
The Court is therefore forced to choose between two bad options: assessing
attorney’s fees against a litigant who neither enacted nor defended the unconstitutional

Act, or denying a fee award to the individual plaintiffs and their lawyers who prevailed
on the merits of two equal protection claims, vindicating important constitutional rights.
Neither outcome is just.
Faced with this dilemma, the Court concludes that in the peculiar circumstances of
this case, it would be unjust to require the County Board to pay the individual plaintiffs’
attorney’s fees. The plaintiffs chose not to include any state entities or agents as
defendants and the County Board did not enact the unconstitutional law or defend it in
any way. In its discretion, the Court will deny the individual plaintiffs’ motion.
I.

BACKGROUND
A. Relevant Procedural History
In 2015, the North Carolina General Assembly passed N.C. Session Law 138 (“the

Act”), changing the Greensboro City Council from a three-at-large, five-single-district
council to an eight-single-district council and drawing lines for the new districts. 2015
N.C. Sess. Laws 138, City of Greensboro Elections, available at Doc 1-1. The Act also
prohibited the City Council or citizen-led referendums and initiatives from changing the
city government. Id. at § 2.(b).
Soon thereafter, several individual plaintiffs and the City of Greensboro filed suit
challenging the Act’s constitutionality. They raised equal protections claims, including a
claim arising from population disparities among the new districts that appeared to be
based on race and partisan affiliations of incumbents. They asked this Court to declare
the Act unconstitutional and to enjoin its enforcement. Doc. 1.

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The complaint named only one defendant: the Guilford County Board of
Elections, the entity assigned responsibility under state law for conducting municipal
elections for the City of Greensboro. Doc. 1. Under North Carolina law, any lawsuit
seeking to enjoin a local election must include the county election board as a necessary
party. Wright v. North Carolina, 787 F.3d 256, 262-63 (4th Cir. 2015). Under the
Eleventh Amendment, the State of North Carolina has immunity from suit in these
circumstances, see Wright, 787 F.3d at 261 n. 2, and it was not named as a defendant.
The Court entered a preliminary injunction blocking the Act’s implementation on
July 23, 2015. Doc. 36. After the County Board filed an answer, Doc. 50, discovery
commenced. Doc. 57.
No one substantively defended the Act’s constitutionality. The County Board
reasonably took the position that it had a duty to fairly and impartially administer
whatever elections laws validly apply and that it had no duty to determine whether a law
is constitutional. E.g., Doc. 100-1 at 5; see N.C. Gen. Stat. §§ 163-33, 163-284(b) (West,
Westlaw through 2017 Regular Session). The County Board was not involved with
passing the Act and other than its records, it possessed no significant evidence relevant to
the plaintiffs’ equal protection claims. It offered no evidence or legal argument in
support of the Act at any stage, and limited its participation to providing information to
and complying with orders from this Court. While it did not concede that the Act was
unconstitutional, it did nothing to impede, obstruct, or delay the plaintiffs’ challenge. To
the contrary, the County Board stipulated to many facts, simplifying the trial and
reducing the plaintiffs’ costs. Doc. 123.
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Despite receiving notice of the litigation as required by state law, Doc. 31-2, the
North Carolina Attorney General did not make an appearance to defend the Act.
Legislative leaders possessing the statutory right to intervene, N.C. Gen. Stat. § 1-72.2
(West, Westlaw through 2017 Regular Session), were also aware of the litigation and
took no steps to defend the Act in court. See Doc. 134 at 137-39. The primary legislative
sponsor of the Act invoked legislative privilege and refused to be deposed. See Doc. 125.
The Court allowed a group of individual citizens to intervene to defend the Act.
Doc. 53. The defendant-intervenors moved to dismiss this case under Federal Rule of
Civil Procedure 12(b)(7), contending that the plaintiffs had failed to join necessary
parties—namely, the State of North Carolina, the State Board of Elections, the State
Board’s executive director, and Governor Patrick McCrory. Doc. 61. In the alternative,
the defendant-intervenors asked the Court to join these same entities and persons as
necessary parties. Id. The plaintiffs objected, contending that all were immune from suit
under the Eleventh Amendment to the U.S. Constitution and that none were necessary for
the relief sought. Doc. 63 at 10-19. The County Board filed no response to the plaintiffs’
motion and took no position on the defendant-intervenors’ motion.
The Court denied the motion, finding that “[w]hile some of these persons and
entities might well be proper parties to this lawsuit . . . none are necessary parties.” Doc.
72 at 1. The Court also observed that should permanent relief be granted, there was no
reason to think that it could not be obtained from the County Board. Id. at 2-3.
After discovery closed, and shortly after their response to the plaintiffs’ motion for
partial judgment on the pleadings was due, the defendant-intervenors moved to withdraw,
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concluding that there was no defense to the plaintiffs’ claims in light of the Fourth
Circuit’s decision in Raleigh Wake Citizens Ass'n v. Wake Cty. Bd. of Elections, 827 F.3d
333 (4th Cir. 2016) (striking down legislative redistricting of county school board on
same arguments presented in this case) (hereinafter “RWCA”). See Doc. 103. This
motion was allowed, Doc. 107, and the intervenor-defendants did not respond to the
plaintiffs’ dispositive motion or participate in the trial.
The case was tried in February 2017. The Court found that the Act violated the
Equal Protection Clause of the United States Constitution. Docs. 135, 136. On April 3,
2017, the Court permanently enjoined enforcement of the Act. Doc. 137. After the
appeal period passed, the individual plaintiffs1 moved for an award of attorney’s fees,
expert fees, and expenses from the County Board. Doc. 147. They rely on 42 U.S.C. §
1988, 52 U.S.C. § 10310(e), and Federal Rule of Civil Procedure 54.
B. Applicable Legal Principles
A prevailing party in a civil rights case brought to enforce constitutional rights
may recover attorney’s fees. 42 U.S.C. § 1988(b). “The purpose of § 1988 is to ensure
effective access to the judicial process for persons with civil rights grievances.” Hensley
v. Eckerhart, 461 U.S. 424, 429 (1983); 2 accord Lefemine v. Wideman, 758 F.3d 551,
The motion for attorney’s fees and costs is filed on behalf of individual plaintiffs Lewis A.
Brandon III, Joyce Johnson, Nelson Johnson, Richard Alan Koritz, Sandra Self Koritz, Charli
Mae Sykes, Maurice Warren II, and Georgeanna Butler Womack. As previously noted, the City
of Greensboro was also a plaintiff in this action, but it is not a party to this motion and has not
filed its own motion for attorney’s fees.
1

2

The Court omits internal citations, alterations, and quotation marks throughout this opinion,
unless otherwise noted. United States v. Marshall, 872 F.3d 213, 217 n. 6 (4th Cir. 2017).
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555 (4th Cir. 2014). In light of the purpose of § 1988, a prevailing party “should
ordinarily recover an attorney’s fee unless special circumstances would render such an
award unjust.” Hensley, 461 U.S. at 429. The special circumstances exception is
“narrow” and applies “only on rare occasions.” Lefemine, 758 F.3d at 555.
While special circumstances are “few and far between,” id., courts do sometimes
find special circumstances that justify denying fees. Courts principally deny attorney’s
fees when an award would not advance the purpose of § 1988, see, e.g., Kay v. Ehrler,
499 U.S. 432, 437-38 (1991) (denying fees to pro se attorney-plaintiff because fee award
would not advance “the overriding statutory concern . . . in obtaining independent
counsel for victims of civil rights violations”), or when a plaintiff’s suit does not
vindicate civil rights. See, e.g., Chastang v. Flynn & Emrich Co., 541 F.2d 1040, 1045
(4th Cir. 1976) (denying fees because the plaintiffs’ suit was filed after the plan was
amended to abolish any discriminatory impact). On the rare occasion, courts may also
invoke special circumstances to prevent inequity. See Little Rock Sch. Dist. v. Ark. State
Bd. of Educ., 928 F.2d 248, 249 (8th Cir. 1991) (denying fees when intervenor’s counsel
already had been granted more than $3 million in fees and the State had opposed the
intervenors’ position only in one discrete part of the case).
On the other hand, it is not a special circumstance when a plaintiff can afford to
pay for an attorney or when a defendant acts in good faith. Bills v. Hodges, 628 F.2d
844, 847 (4th Cir. 1980). Nor is it a special circumstance when a defendant is entitled to
immunity from money damages or when there is an absence of governmental policy or
custom of discrimination. Lefemine, 758 F.3d at 557-58. The financial impact of a fee
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award on taxpayers is not a special circumstance. Rum Creek Coal Sales, Inc. v.
Caperton, 31 F.3d 169, 180 (4th Cir. 1994) (the fact that taxpayers ultimately would be
required to pay attorney’s fees is an improper ground for denying or reducing an
attorney’s fee under § 1988).
Under a different statute, a prevailing party also may recover reasonable expert
fees. Section 10310(e) of Title 52 states in relevant part that “in any action or proceeding
to enforce the voting guarantees of the fourteenth or fifteenth amendment, the court, in its
discretion, may allow the prevailing party . . . reasonable expert fees . . . as part of the
costs.” The standard for awarding expert fees under § 10310(e) is the same as the
standard under § 1988. See, e.g., Bly v. McLeod, 605 F.2d 134, 138 (4th Cir. 1979)
(stating that sections 1973L(e), which was transferred to section 10310(e), and 1988 are
“phrased in identical terms, and we apply the same rule of decision under both”).
Finally, a prevailing party is generally entitled to recover its costs under Federal
Rule of Civil Procedure 54(d), which provides “costs—other than attorney’s fees—
should be allowed to the prevailing party.” Fed. R. Civ. P. 54(d)(1). While an award of
costs is within the sound discretion of the court, see Marx v. Gen. Revenue Corp., 568
U.S. 371, 377 (2013), “the rule gives rise to a presumption in favor of an award of costs
to the prevailing party,” Teague v. Bakker, 35 F.3d 978, 996 (4th Cir. 1994), and costs
should be denied only if there is “some good reason for doing so.” Cherry v. Champion
Int’l Corp., 186 F.3d 442, 446 (4th Cir. 1999). Good reasons may include excessive
costs, actions taken by the prevailing party which unnecessarily prolonged trial or
injected meritless issues, a recovery so small that the prevailing party is victorious in
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name only, that the case in question was a close and difficult one, the resources of the
parties, efforts to mitigate damages, and the outcome of the underlying suit. Teague, 35
F.3d at 996. Good faith on the part of the non-prevailing party, while a factor, is of itself
an insufficient basis for refusing to assess costs. Id. Rather, the good faith of a losing
party is a “virtual prerequisite to a denial of costs in favor of the prevailing party.” Id.;
see also Turner v. United States, 736 F. Supp. 2d 980, 1024 (M.D.N.C. 2010).
C. DISCUSSION
A. The Individual Plaintiffs Are Prevailing Parties
As a preliminary matter, the Court finds that the individual plaintiffs are prevailing
parties within the meaning of 42 U.S.C. § 1988, 52 U.S.C. § 10310(e), and Rule 54(d).
They successfully obtained injunctive relief on the merits for two separate equal
protection claims. Doc. 136 at 21-22; Doc. 135 at 20-21; Buckhannon Bd. & Care
Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 603 (2001) (A
“prevailing party” is “a party in whose favor a judgment is rendered” or “one who has
been awarded some relief by the court.”). Thus, nothing else appearing, the plaintiffs are
ordinarily entitled to an award of reasonable attorney’s fees, expert fees, and costs.
B. Attorney’s Fees and Expert Fees
In the usual civil rights case involving a constitutional violation, the person or
entity responsible for the unconstitutional law or action is a defendant and can be ordered
to pay the other side’s attorney’s fees. See, e.g., Pulliam v. Allen, 466 U.S. 522, 543–544
(1984) (holding that the defendant magistrate whose bail practices were unconstitutional
was liable for fees under § 1988); Hensley, 461 U.S. at 426 (noting that state hospital
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officials were required to pay attorneys’ fees after a finding that hospital violated
constitutional rights of persons involuntarily confined); City of Riverside v. Rivera, 477
U.S. 561, 575-81 (1986) (ordering the city to pay attorney’s fees for its police officer’s
constitutional violation). Here, however, the entity responsible for the unconstitutional
law – the State of North Carolina – is not a party to the litigation, nor is any state entity or
state official, and thus the State cannot be taxed with paying the individual plaintiffs’ fees
and costs. See Kentucky v. Graham, 473 U.S. 159, 165 (1985) (holding that when a
plaintiff does not prevail against a particular defendant because of legal immunity, Ҥ
1988 does not authorize a fee award against that defendant.”)
The County Board accurately points out that it is, in key ways, an innocent party.
The North Carolina General Assembly passed the unconstitutional law, not the County
Board. Under North Carolina law, enforcement responsibility for municipal elections,
and thus for the unconstitutional Act, is with the County Board, rather than with a state
entity, N.C. Gen. Stat. § 163-284(b), 3 and state law required the County Board to enforce
the challenged Act unless it was found to be unlawful. See, e.g., N.C. Gen. Stat. § 16333(1) (prohibiting a county board of elections from acting “inconsistent with law” or with
the State Board of Election’s rules); § 163-33(16) as amended by N.C. Sess. Law 2016125, § 20(c) (adding subsections 15 and 16) (explicitly prohibiting, as of December 16,
2017, county board of elections from altering or amending a redistricting plan for a unit

3

By statute, North Carolina has established election boards for each county. N.C. Gen. Stat.
§ 163-33. Responsibility for local elections is delegated to these county election boards. Id.

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of local government). Yet if the motion is granted, the attorney’s fees will be paid by
Guilford County, not by the State, which was responsible for the unconstitutional law.4
As the Fourth Circuit recently pointed out, § 1988 does not punish “bad
defendants” but instead “compensate[s] civil rights attorneys who bring civil rights cases
and win them.” Lefemine, 758 F.3d at 557. Here, however, there is more to it than just
an innocent County Board. See Peter v. Jax, 187 F.3d 829, 837 (8th Cir. 1999) (holding
that several reasons, taken together, amounted to special circumstances that made a fee
award unjust); Thorsted v. Munro, 75 F.3d 454, 456 (9th Cir. 1996) (holding that “the
district court did not abuse its discretion by denying fees based on the totality of the
circumstances” even though “several of the circumstances identified by the district court
would be insufficient, standing alone to warrant a denial of fees”).
In this case, the plaintiffs chose not to include any of representatives of the State—
the responsible entity here—as defendants. While the State itself, the governor, and the
State’s legislative leaders were immune from this kind of suit under the Eleventh
Amendment at the time this action was brought,5 Eleventh Amendment immunity is an

It is undisputed that the County Board would pay any attorney’s fee award, not the State.
No party has suggested a mechanism for the County Board to seek State reimbursement for any
payment of attorney’s fees it is required to make.
4

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Under the Eleventh Amendment, states possess sovereign immunity and private parties may
not haul them into federal court. Fed. Mar. Comm’n v. S.C. State Ports Auth. 535 U.S. 743, 760
(2002). There is a limited exception: courts have consistently permitted suits against state
officers for injunctive relief. See, e.g., Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89,
102–03, (1984). However, only state officers who have a “connection with the enforcement of
the act” are appropriate defendants, and the “special relation” must exist between the state
official being sued and the challenged action. Ex parte Young, 209 U.S. 123, 157 (1908); see
S.C. Wildlife Fed’n v. Limehouse, 549 F.3d 324, 333 (4th Cir. 2008).
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affirmative defense that can be waived.6 See Wisc. Dep’t of Corr. v. Schacht, 524 U.S.
381 (1998) (finding that the state can waive its sovereign immunity defense). Similarly,
the State Board’s Executive Director or the members of the State Board might not have
asserted Eleventh Amendment immunity and it is not certain they would have prevailed if
they had asserted such a defense.7 In addition, the plaintiffs affirmatively resisted the
defendant-intervenors’ motion to add any state entities or actors as defendants in the case.
Doc. 63. An award of attorney’s fees against a defendant who was not responsible and
did not defend the act would, in these circumstances, provide a perverse incentive to
plaintiffs to avoid suing responsible entities in favor of a non-responsible entity,
especially if that entity is unlikely to contest relief.
And indeed here, the County Board did not defend the Act, acting at all times
consistent with its view that its role was to follow the law, not to be an advocate. See,

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The Court appreciates that this defense almost certainly would have been raised as to
these defendants and if raised, it almost certainly would have been successful. In a recent case
on almost identical facts where the State and state officials were sued, the State of North
Carolina, the governor, and legislative leaders did assert immunity, and in an opinion issued just
weeks before this case was filed, the Fourth Circuit agreed with the trial court that these
defendants were entitled to such immunity. Wright, 787 F.3d at 261-63.
In ruling on the intervenor-defendants’ motion to dismiss or join necessary parties, the
Court held that State Board’s Executive Director was not a necessary party, Doc. 72, noting that
the County Board had successfully complied with the preliminary injunction governing city
council elections the year before without State Board involvement. However, this Court did not
say that the State Board’s Executive Director was not a proper party. Likewise, Wright does not
say that a County Board is the only proper defendant. 787 F.3d at 262-63. In fact, Wright
provides some support for the proposition that the plaintiffs could have sued the State Board’s
Executive Director. See id. at 262 (stating “as is the case with all election plans in North
Carolina, the county Board of Elections, in cooperation with the State Board of Elections, has the
specific duty to enforce the challenged redistricting plan”); see also Republican Party of North
Carolina v. Martin, 682 F. Supp. 834, 835 (M.D.N.C. 1988).
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e.g., Doc. 27. While it did not concede that the Act was unconstitutional, it did not claim
that the Act was constitutional or take any action to support the Act’s constitutionality. It
stipulated to many facts, see Doc. 126, and never filed a brief contesting any aspect of the
plaintiffs’ substantive case. It cooperated in simplifying the case. See, e.g., Doc. 25
(accepting service); Doc. 56 (agreeing to discovery plan); Doc. 115 (agreeing to joint trial
exhibits). It identified no witnesses and called no one to testify.
Finally, denying fees in this case is unlikely to deter citizens in similar situations
from filing suit or lawyers from representing them, as state law has since been amended
to require that the State “shall be a party” in similar suits in the future. 2016 N.C. Sess.
Law 109 § 2.(a), (c) (codified at N.C. Gen. Stat. § 1-72.3 and effective for actions filed
on or after August 1, 2016).8 Thus, going forward, the State has waived its Eleventh
Amendment immunity as to this kind of lawsuit. See id.
The individual plaintiffs point to other cases where courts have required entities to
pay attorney’s fees when the entity was not responsible for the unconstitutional act. In
those cases, however, the action at issue was state action and the entities required to pay

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After Wright and this action were filed, the General Assembly enacted a law requiring that
in any action filed on or after August 1, 2016, challenging “the validity or constitutionality of a
local act,” the State “shall be a party.” 2016 N.C. Sess. Law 109 § 2.(a), (c) (codified at N.C.
Gen. Stat. § 1-72.3.). The phrase “local act” refers to “an act of the General Assembly applying
to one or more specific cities by name, or to all cities within one or more specifically named
counties.” N.C. Gen. Stat. § 160A-1(5) (West, Westlaw through 2017 Regular Session). The
legislation redistricting the City of Greensboro was a local act. Accordingly, for actions filed
after that effective date, the State is required to participate in civil rights litigation “in any court”
over local bills the General Assembly has enacted.

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were state entities, not county entities.9 See, e.g., Navajo Nation v. Az. Indep.
Redistricting Comm’n, 286 F. Supp. 2d 1087, 1090, 92, 96 (D. Ariz. 2003) (awarding
attorney’s fees against the Arizona Secretary of State in lawsuit challenging the Arizona
Independent Redistricting Commission’s 2001 plan under § 2 of the Voting Rights Act
and the Arizona legislature’s 1994 plan on one person, one vote grounds); Hastert v. Ill.
State Bd. of Elections, No. 92-1397, 1994 U.S. App. LEXIS 13101, *39 at n.16 (7th Cir.
June 1, 1994) (awarding attorney’s fees against the Illinois State Board of Elections in
successful one-person-one-vote challenge to Illinois congressional districts when state
legislature failed to enact a constitutional redistricting plan after the 1990 census).
C. Costs
For the same reasons stated above as to attorney and expert fees, the court will not
require the County Board to pay the individual plaintiffs’ costs.
D. Conclusion
The entity responsible for violating the plaintiffs’ constitutional rights is not
before the Court. Thus, if the Court grants the individual plaintiffs’ motion, the financial
effects will fall on the County Board, which neither passed nor defended the Act. On the

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The individual plaintiffs also point out that the Wright/RWCA district court determined on
remand that the special circumstances exception did not apply and awarded the plaintiffs’
attorney's fees. Raleigh Wake Citizens Ass’n v. Wake Cnty Bd. of Elections, Nos. 5:15CV156-D,
5:13CV607-D, 2017 WL 4400754 (E.D.N.C. Sept. 7, 2017). This case is distinguishable in at
least two ways that matter. First, the Wright/RWCA plaintiffs, unlike the plaintiffs here,
attempted to sue the party actually responsible for the constitutional violation. See Wright, 787
F.3d at 260-61. Second, and more importantly, the Wake County Board of Elections mounted a
defense: they cross-examined the plaintiffs’ witnesses, briefed the issues, and argued that the
plaintiffs were not entitled to relief. RWCA, 827 F.3d at 339. Again, this case is different. The
Guilford County Board mounted no defense whatsoever.
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other hand, if the Court denies the motion, then counsel for the individual plaintiffs will
not receive compensation ordinarily authorized by federal law, despite vindicating critical
constitutional rights. Neither outcome is just.
Placed squarely on the horns of a dilemma, the Court concludes that leaving the
individual plaintiffs to bear their own costs is the lesser of these two unjust results. The
plaintiffs could have attempted to bring in the responsible party—the State or its
representatives—but they did not. See discussion supra Part II.B. The County Board did
not defend the Act and did not contest relief. Because of the change in state law, this
problem is unlikely to recur and the denial of fees is unlikely to discourage litigants and
lawyers from filing these kinds of constitutional challenges. A different decision—i.e.,
awarding fees to the individual plaintiffs—would perversely encourage future plaintiffs
to avoid suing responsible entities, in favor of defendants unlikely to contest relief.
These special circumstances, taken together, call for denial of the motion.
It is ORDERED that the individual plaintiffs’ request for attorney’s fees, expert
fees, and non-taxable costs, Doc. 147, is DENIED.
This the 3rd day of January, 2018.

__________________________________
UNITED STATES DISTRICT JUDGE

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