Turner v. D.C. Board of Elections and Ethics
| Decision Date | 23 October 2001 |
| Docket Number | No. CIV. A. 98-2634RWRJMF.,CIV. A. 98-2634RWRJMF. |
| Citation | 170 F.Supp.2d 1 |
| Parties | Wayne TURNER., et al., Plaintiffs, v. D.C. BOARD OF ELECTIONS AND ETHICS, Defendant. |
| Court | U.S. District Court — District of Columbia |
Arthur Barry Spitzer, American Civil Liberties Union, Washington, DC, for plaintiffs.
Nancy S. Schultz, Office of Corporation counsel, D.C., Washington, DC, Laurie Pouzzner McManus, Arlington, VA, for Dist. of Columbia Bd. of Elections and Ethics, defendant.
Mark A. Schaefer, Mirel & Algei, Washington, DC, for DC Branch NAACP, Stand Up for Democracy Coalition, Marylanders for Democracy, amicus.
Mark A. Schaefer, Mirel & Algei, Washington, DC, for DC chapter League of Women Voters, Dist. of Columbia Chapter of Republican Nat. African-American Council, DC Democratic State Committee, D.C. Statehood Party, Gay and Lesbian Activists Alliance, Gertrude Stein Democratic Club, Greater Washington Chapter of Americans for Democratic Action, Libertarian Nat. Committee, Inc., Metropolitan Washington Council AFL-CIO, movants.
M. Miller Baker, McDermott, Will & Emery, Washington, DC, for Voting Integrity Project Inc., movant.
This matter is before me for resolution of plaintiffs' Motion for Attorneys' Fees and Expenses against defendant District of Columbia Board of Elections and Ethics ("the Board") and the intervenor and defendant, the United States. My Memorandum Opinion and Order of July 24, 2001, denied plaintiffs' motion with respect to the United States under the Equal Access to Justice Act, 28 U.S.C. A. § 2412(d)(1)(A)(1994)("EAJA"), and I now address the Board's liability under the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C.A. § 1988 (1994).
The underlying facts of this dispute have been detailed in Judge Roberts' Order of September 17, 1999. Turner v. District of Columbia Bd. of Elections and Ethics, 77 F.Supp.2d 25 (D.D.C.1999). The Board placed on the ballot for the November, 1998, election an initiative that would afford seriously ill individuals the right to obtain marijuana without violating the criminal provisions of the D.C.Code. On October 21, 1998, however, Congress passed what has become known in this lawsuit as the Barr Amendment (after its sponsor), which prohibited the use of funds contained in the District of Columbia Appropriations Act to conduct any ballot initiative that sought to legalize the use of a controlled substance, including, of course, marijuana.
The billing entries submitted by plaintiffs' counsel indicate that on the very day the Barr Amendment was enacted, lawyers for the American Civil Liberties Union ("ACLU") began to formulate a legal challenge to the Amendment that they would ultimately bring on behalf of five registered voters on October 30, 1998. Plaintiffs named the Board as the only defendant.
Because the ballots had already been printed when the Barr amendment was enacted, District of Columbia voters voted on the initiative on election day, November 3, 1998. On that day the Board issued a press release explaining that it would not release the voting results of the initiative for fear of violating the Barr Amendment. Plaintiffs' Motion for Attorney's Fees and Expenses, Exhibit E.
On November 6, 1998, however, the Board filed a Motion of Defendant for Expedited Review and Declaratory Judgment, in which the Board asked this Court to declare that the Barr Amendment violated the "First Amendment rights of the voters of the District of Columbia." Id. at 1. The Board sought an order authorizing it to announce and certify the results of the vote on the marijuana initiative. On November 9, 1998, the United States asked that the application plaintiffs had filed for a temporary restraining order be denied. On November 23, 1998, the United States intervened to defend the Barr Amendment.
Ultimately, Judge Roberts concluded that the Barr Amendment did not preclude counting, announcing, and certifying the results of the marijuana initiative. In reaching that conclusion, Judge Roberts invoked the principle that a construction of a statute which avoids the resolution of constitutional issues is preferred and that, if the Barr Amendment precluded the counting, announcing, and certifying the results of the marijuana initiative, it would be of dubious constitutionality. Turner, 77 F.Supp.2d at 34.
By my order of July 24, 2001, I denied plaintiffs' fee petition on the grounds that plaintiffs had failed to meet the jurisdictional deadline EAJA imposes. Initially, plaintiffs took the position that the Board should be liable for "any amount of fees awarded under § 1988 that exceeds the amount awarded under EAJA." Order of July 24, 2001, at 15, quoting Plaintiffs' Motion for Attorney's Fees and Expenses at 23-24. In fairness to plaintiffs, I permitted them to discuss the validity of any award against the Board in light of my determination that plaintiffs could not recover any fees against the United States. Plaintiffs have responded by insisting that the Board is obliged to pay all the legal fees incurred from the commencement of the case until Judge Roberts' opinion plus the time spent litigating the validity of their petition for fees. Plaintiffs take this position even though plaintiffs and the Board sought a declaration that the Barr Amendment was unconstitutional, in the face of opposition from the United States.
Section 1988 empowers the district court, "in its discretion," to provide "[a] reasonable attorney's fee as part of the cost" to the prevailing party in any action brought under 42 U.S.C. § 1983. 42 U.S.C.A. § 1988(b)(1994). "[The] fee applicant bears the burden of establishing entitlement to an award, documenting the appropriate hours, and justifying the reasonableness of the rates." Covington v. District of Columbia, 57 F.3d 1101, 1107 (D.C.Cir.1995)(quoting Hensley v. Eckhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)).
I must first determine that the predicate requirements for 42 U.S.C. A. § 1988 (1994) are met insofar as plaintiffs were prevailing parties and the Board's actions were taken under color of state law. I will then determine whether the Board may be held jointly and severally liable for all the fees plaintiffs incurred; whether, as the Board claims, exceptional circumstances preclude the award of any attorney fees against it; and, if not, what portion of the fees should be paid by the Board.
One of the requirements for an award under § 1988 is that the applicant be a "prevailing party." District of Columbia v. Patterson, 667 A.2d 1338 (D.C. 1995). Plaintiff no doubt meets this definition:
To qualify as a prevailing party for attorneys' fees purposes, a plaintiff must show that the final result represents in a real sense, a disposition that furthers their interest. In applying this inquiry, the court must focus on the precise factual/legal condition that the fee claimant has sought to change, and then determine if the outcome confers an actual benefit or relief from a burden.
Grano v. Barry, 783 F.2d 1104, 1108 (D.C.Cir.1986) (citations omitted).
Plaintiff here sought to enjoin the Board from withholding the results of the November 3, 1998, ballot initiative, and that is precisely what they achieved through Judge Robert's September 17th, 1999 Order. The Board's argument that plaintiffs were not a prevailing party because the Board was never found to be at fault is inapposite because it confounds two distinct concepts, i.e., "prevailing party" and whether "good faith" is ever a special circumstance justifying denial of a fee award under § 1988. See infra at 7. A party prevails irrespective of whether his opponent acted with fault or in bad faith.
Defendant argues that an award of attorneys' fees is not in order here because liability for fees under § 1988 is predicated on liability under 42 U.S.C.A. § 1983 (1994), for the violation of constitutional or federal statutory rights under the color of a "statute of any State ... or the District of Columbia." Defendant reasons that, because it did not act under color of a statute of the District or Columbia, but rather of federal congressional legislation, it cannot be held liable under § 1983. This argument ignores that § 1983 itself acknowledges that "[f]or the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia." Pub.L. No. 96-170 § 1, 93 Stat. 1284 (1979). District Properties Associates v. District of Columbia, 743 F.2d 21, 27 (D.C.Cir.1984), applied this provision in treating a Congressional statute establishing the District of Columbia Administrative Procedure Act as a statute of the District of Columbia. In another case, when the Supreme Court held that a clause of a statute Congress enacted regulating activity near embassies located in the District of Columbia was unconstitutional, this Court, per Judge Gasch, imposed liability for attorneys' fees upon the District of Columbia pursuant to 42 U.S.C.A. § 1988(1994), rejecting the District's claim that it "did not benefit from the statute." Boos v. Barry, 704 F.Supp. 5, 9 (D.D.C.1989). Likewise, in this case, the Barr Amendment, although passed by Congress, applies only to the District of Columbia and must be treated as a statute of the District of Columbia for the purposes of §§ 1983 and 1988.
We therefore reach the ironic result of holding the District of Columbia accountable for a Congressional enactment that the District attacked as unconstitutional. Indeed, plaintiffs demand that the Board be jointly and severally liable for all the fees incurred in this case, from the beginning to the end. The Board understandably rejects that claim and argues that this case is one where special circumstances make the award of any fees unjust.
Plaintiffs cannot...
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