The Southern Coalition for Social Justice is attempting to collect more than $600,000 in legal fees from the Guilford County Board of Elections, but a new court filing from Guilford County in response to that suit argues that the lawsuit is completely baseless and it would be totally unjust for the Board of Elections to be forced to pay attorney’s fees for a 2015 redistricting case it wanted nothing to do with in the first place.

Guilford County Attorney Mark Payne said that, in this case, the Board of Elections has just about the best defense anyone could ask for – the board wasn’t in any way responsible for the State of North Carolina’s redistricting of the City of Greensboro that brought about the initial suit for which the coalition is asking for a reimbursement of attorney’s fees.

“To me, it’s manifestly obvious that it is not just to require an innocent party to pay for the sins of somebody else,” Payne said.

Guilford County’s brief states that, in the current case, the Board of Elections is “faced with the almost unique circumstance where the Court and both parties have jointly acknowledged that Defendant GC BOE [Guilford County Board of Elections] violated no one’s civil rights, committed no unlawful acts, and, in fact, did not engage in any of the actions complained of in Plaintiffs’ Complaint and subsequent Amended Complaints.”

The Southern Coalition’s suit against the Board of Elections calls for the board to pay the coalition $602,000 in legal fees and related costs that the coalition claims it incurred in the redistricting case that overturned the State of North Carolina’s redistricting of Greensboro.

In that redistricting, which the coalition’s current lawsuit stems from, the state changed the number of Greensboro City Council districts from five to eight and eliminated the at-large council seats – a change that, if implemented, would have made the Greensboro City Council similar to that of the City of Winston-Salem.

Guilford County could have asked the state to step in and defend the lawsuit, but, instead, the county opted to mount no defense. In April 2017, in US District Court for the Middle District of North Carolina, District Court Judge Catherine Eagles found in favor of Greensboro and the coalition.

Even though the real complaint was against the state, the coalition filed its suit against the Guilford County Board of Elections because that is the body that conducts and oversees elections in Guilford County.   Four months ago, the coalition filed a new suit in an attempt to collect attorney’s fees the coalition incurred in that case. When the lawsuit to collect the fees from Guilford County was filed, some Guilford County commissioners were outraged. They called the suit “nuts” and “morally reprehensible” – however, soon the only important question will be what the court thinks about it.

Chairman of the Guilford County Board of Education Alan Duncan, a high-profile Greensboro attorney, has been hired by Guilford County to aid in its defense. Duncan also signed the new court filing along with Payne.

Payne said he believes the document lays out a highly compelling case of why the county shouldn’t have to pay the coalition’s costs.

“The rule is the party that prevails in a civil rights case to protect citizens will get attorneys’ fees unless special circumstances would render such an award unjust,” the county attorney said, adding that, in this case, there are clearly special circumstances that make an award of fees unjust.

The brief filed by Guilford County cites several cases where the courts have found special circumstances rendering an award of attorney’s fees unjust, and it states, “None of these cases present nearly as compelling a set of circumstances as the matter currently before this Court … Truly, if an award of attorney’s fees is not unjust in the current circumstance, then it can never be unjust and the often-cited exception to the statute is meaningless and the above cases are erroneous.”

Payne’s written argument states that the county’s elections board played no role in any of the actions that the court found unlawful. One of the catchier lines in the brief states, “It cannot be said that Guilford County Board of Elections acted in good faith; it did not act at all.”

The brief goes on to state, that if it’s ever possible to find special circumstances that make an award of attorney’s fees unjust, then “those circumstances certainly and unequivocally exist in this case. Where the courts have found a defendant to be innocent of any wrong-doing, they have consistently found that award of attorney’s fees to be unjust.”

According to Payne, often the work of a lawyer has to do with statistical data or means he or she is dealing in legal minutia – but, in this case, he said, the question is about right and wrong, justice and injustice, and he said he believes, by that standard, it’s clearly wrong to make the Board of Elections pay the attorney’s fees.

“I get to do something I don’t get to do very often as a lawyer – to talk about what’s just and unjust,” Payne said of the case he’s gearing up to argue in front of Eagles.

The Southern Coalition was formed in 2007 with a stated mission of fighting against voter discrimination and other types of injustice. Southern Coalition for Social Justice Executive Director Anita Earls, who founded that organization, didn’t return calls from the Rhino Times this week. However, this summer when the coalition filed the case, Earls told the Rhino that the coalition does understand that the NC General Assembly was the party responsible for the redistricting, but she added that her group mounted a costly lawsuit that required attorneys and experts. She said that, legally, the proper place to seek reimbursement for those costs was from the defendant in that 2015 case – the Guilford County Board of Elections.

On Friday, Oct. 27, Earls filed a response to Payne’s brief that claimed his filing “grossly misstates” aspects of the law and argues that “awards of fees and costs against neutral enforcement officials in redistricting cases are not unjust under federal precedent.”

Earls offers instances where federal courts – ruling on somewhat similar redistricting cases – have found that it is just for the court to order compensation for attorney’s fees even in cases with a “neutral defendant” who’s actions were bound by law. Earls states some federal courts have found that it’s a greater injustice for an innocent party whose civil rights have been violated to be forced to bear the expense of the often costly litigation required to set things right.

She cites a 1994 US Seventh Circuit Court of Appeals case, Hastert v. Illinois State Board of Elections, which found that fee awards to plaintiffs in redistricting cases can be just, even if the body the fees are sought from did not play a role in the injustice. In that case, Earls wrote, “The Court went on to award fees against a state board of elections, finding that it was ‘of no consequence that the State Board of Elections played no active role in the proceedings and agreed to enforce whatever plan the district court adopted, since fees may be taxed even against entities whose role is limited to enforcement of regulations they played no role in promulgating.’”

Earls wrote there would be a greater degree of unfairness in these instances “if a fee award were denied and the burden fell on the Individual Plaintiffs whose constitutional rights were violated.”

In the brief, she also argues that not awarding fees in this case would constitute a deterrence for future injured parties who wished to fight for their civil rights. The very purpose of “fee-shifting statutes” in civil rights cases, Earls writes, is to “enable civil rights practitioners to make it economically feasible – as Congress hoped – to expend time and effort litigating civil rights claims.”

Earls said the current case is an example of “responsible litigation brought by civil rights plaintiffs who because of fee-shifting statutes were able to retain counsel with specialized experience in voting rights litigation and successfully set new precedent in the Fourth Circuit.”

Chairman of the Guilford County Board of Elections Kathryn Lindley said this week that Payne had been keeping the elections board informed about the case. She said it certainly seems strange that the board is being sued for legal fees given this set of circumstances.

“We’re totally innocent in this,” Lindley said.

She also said there were a lot of questions about the amount sought in the lawsuit.

“We don’t know where the numbers come from,” she said.

Payne said one reason he’s glad Duncan is on the county’s team is because Duncan can shed some light on the $602,000 figure if the cost does come into play.

“I’m no expert in attorney’s fees and he’s been an expert witness on that very topic,” Payne said of Duncan. “He’s also a very good lawyer and would give me an additional perspective on any position I have, and that’s helpful.”

Earls, a nonprofit attorney, is requesting $550 per hour for her work in the case. The lawsuit to collect fees that she filed in mid-July states that “this reflects the usual and customary rate for an attorney of my years of experience and specialized skill.”

The county’s brief discusses the negative effect if elections boards across the state had to pay attorney’s fees in this type of situation. That $602,000, it states, is greater than the elections budget of 79 of the 100 elections departments in North Carolina. The brief argues the absurd and undesirable consequences that could follow if the court finds that Guilford County must pay the money.

Payne said the state legislature was pretty clear as to why the state law requires the compensation of attorney’s fees in some civil rights cases, but neither of those applied here.

“There were two reasons,” he said. “And it uses ‘and’ not ‘or.’ One, to encourage citizens to exercise, or try to exercise, their civil rights, and two, to discourage people from violating citizen’s rights. I argue that it doesn’t do either of those things to punish us.

He said a ruling siding with the Southern Coalition in this case could make it more likely that the state would pass unconstitutional laws in the future.

“In fact, you could argue it encourages them [to do so] because it says ‘Pass whatever law you like – someone else is going to pay.’”

Payne added, “You’re not really helping citizens by making the wrong people pay for lawsuits and clearly your not discouraging bad action.”

When Payne speaks about the county’s case, he does so with a lot of passion and he said it’s fair to say he’s really gearing up for oral arguments that will be heard by the court.

“I have given my dog my speech seven times,” Payne said.

He said he doesn’t know when the case will be heard but he added,

“Judge Eagles moves quicker than most federal judges.”