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Raleigh Wake Citizens Association v. Wake County Board of Elections

United States District Court, E.D. North Carolina, Western Division

September 29, 2017

RALEIGH WAKE CITIZENS ASSOCIATION, et al., Plaintiffs,
v.
WAKE COUNTY BOARD OF ELECTIONS Defendant. CALLA WRIGHT, et al., Plaintiffs,
v.
STATE OF NORTH CAROLINA, Defendant. Hours Sought Deduction Revised Hours Revised Rate Sum

          ORDER

          JAMES C. DEVER III CHIEF UNITED STATES DISTRICT JUDGE.

         In both cases in this consolidated action, plaintiffs move for attorneys' fees and litigation expenses under 42 U.S.C. § 1988, expert fees under 52 U.S.C. § 10310(e), and costs under Federal 1 Rule of Civil Procedure 54(d) and 28 U.S.C. § 1920. See [D.E. 118, 119] (No. 5:15-CV-156-D); [D.E. 125, 126] (No. 5:13-CV -607-D).[1] Defendant Wake County Board of Elections ("defendant") has responded in opposition [D.E. 123], and plaintiffs have replied [D.E. 124]. As explained below, the court grants plaintiffs' motions in part and denies them in part.

         I.

         Plaintiffs challenged the North Carolina General Assembly's ("General Assembly") 2013 redistricting plan for electing the non-partisan Wake County School Board and the General Assembly's 2015 redistricting plan for electing the partisan Wake County Board of Commissioners. The redistricting plan for the Wake County School Board is contained in Session Law 2013-110. The redistricting plan for the Wake County Board of Commissioners is contained in Session Law 2015-4 and is identical to the plan in Session Law 2013-110. See Tr. Ex. 438 (S.L. 2013-110, § 5); Tr. Ex. 439 (S.L. 2015-4, § 1 . (c)-. (d)). The court has discussed the intricacies of these plans, [D.E. 104] 5-6, and summarizes the essence of the litigation sufficiently to resolve the pending motions.

         In these actions, plaintiffs contended that the redistricting plans in Session Law 2013 -110 and Session Law 2015-4 (collectively, "Session Laws") violate the one-person, one-vote principle in the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution and Article I, § 19 of the North Carolina Constitution. As for the School Board redistricting plan, plaintiffs contended that the plan resulted from the General Assembly's partisan desire (1) to disadvantage incumbents on the non-partisan Wake County Board of Education ("Wake County Board of Education" or "Wake County School Board") who are registered Democrats who support "progressive" education policies and (2) to favor suburban and rural voters over urban voters. As for the Board of Commissioners redistricting plan, plaintiffs contended that the plan resulted from the General Assembly's partisan desire (1) to favor suburban and rural voters over urban voters and (2) to favor voters who favor Republican candidates over voters who favor Democratic candidates on the Wake County Board of Commissioners. Plaintiffs also contended that the 2015 General Assembly racially gerrymandered District 4 in the Board of Commissioners redistricting plan and thereby violated the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution.

         On March 17, 2014, United States District Judge Terrence W. Boyle dismissed the challenge to the School Board redistricting plan for lack of subject-matter jurisdiction and for failure to state a claim. See [D.E. 38] 9 (No. 5:13-CV-607-D). Plaintiffs appealed, and on May 27, 2015, the United States Court of Appeals for the Fourth Circuit affirmed in part, reversed in part, and remanded the case. See Wright v. North Carolina. 787 F.3d 256 (4th Cir. 2015). The court upheld dismissal of the State of North Carolina and several proposed state officials under the Eleventh Amendment, but held that plaintiffs adequately pleaded that Session Law 2013-110 violated the one-person, one-vote principle. See id.

         In July 2015, both cases were reassigned to the undersigned. See [D.E. 27] (No. 5:15-CV-156-D); [D.E.49] (No.5:13-CV-607-D). The court thereafter consolidated the cases. See[D.E.36] (No. 5:15-CV-156-D); [D.E. 53] (No. 5:13-CV-607-D).

         On December 16-18, 2015, the court held a bench trial in this consolidated action. On February 26, 2016, the court found that plaintiffs had not proven their case, entered judgment for the Wake County Board of Elections, and declined to enjoin the Wake County Board of Elections from administering elections under the challenged redistricting plans. See [D.E. 64, 65]. Plaintiffs appealed. See [D.E. 66].

         On July 1, 2016—after the Supreme Court's intervening decision in Harris v. Arizona Independent Redistricting Commission. 136 S.Ct. 1301 (2016)—the Fourth Circuit, in a 2-1 decision, resolved the appeal in this case. The Fourth Circuit unanimously rejected plaintiffs' racial gerrymandering claim. See Raleigh Wake Citizens Ass'n v. Wake Cty. Bd. of Elections, 827 F.3d 333, 352-53 (4th Cir. 2016). As for plaintiffs' one-person, one-vote claim, the Fourth Circuit applied Harris and found that this case was the "rare[ ]" and "unusual" case referenced in Harris. Id. at 351. Accordingly, the Fourth Circuit held that the plans violated the one-person, one-vote principle in the United States Constitution and the North Carolina Constitution. Id. at 3 51-52. The Fourth Circuit remanded "with instructions to enter immediately judgment for Plaintiffs, granting both declaratory relief and a permanent injunction, as to the one person, one vote claims." Id. at 353-54 (footnote omitted). The Fourth Circuit added that it saw "no reason why the November 2016 elections should proceed under the unconstitutional plans we strike down today." Id. at 354 n. 13.

         Rather than issue its mandate immediately, the Fourth Circuit scheduled the mandate to issue on July 22, 2016. See [D.E. 104] 9. In anticipation of that date and in order to facilitate prompt remedial proceedings so that the November 2016 elections could take place as scheduled, this court issued an order on July 8, 2016, requesting certain information from the parties, the legislative leaders of the General Assembly, and the North Carolina State Board of Elections. See [D.E. 78]. Specifically, this court asked the parties and the legislative leaders to address the mandate rule, the principles governing any court-ordered remedial plan, and a schedule for devising, considering, and adopting any court-ordered remedial plan. See Id. at 8.

         On July 14, 2016, the Wake County Board of Elections petitioned for rehearing en banc. On that same date, the Fourth Circuit stayed the mandate pending a ruling on the petition.

         In plaintiffs' response to the court's July 8, 2016 order requesting views concerning a remedy, plaintiffs contended that once the mandate issues, the court should enjoin the use of the statutes. See [D.E. 82] 2. Plaintiffs also contended that once the mandate issues, "unless and until the North Carolina General Assembly enacts other redistricting plans or methods of election, the State Board of Elections and the . . . Wake County Board of Elections[] are legally obligated to enforce the election system previously in place." Id.

         On July 26, 2016, the Fourth Circuit denied the petition for rehearing en banc On July 27, 2016, this court notified the parties, the North Carolina State Board of Elections, and the legislative leaders that this court would hold a status conference on August 2, 2016, to discuss the remedy. See [D .E. 86]. On August 2, 2016, this court held a status conference. On August 3, 2016, the mandate issued. See [D.E. 89].

         On August 4, 2016, in accordance with the Fourth Circuit's mandate, the court declared that the population deviations in the redistricting plans in Session Law 2013 -110 and Session Law 2015-4 violate the one-person, one-vote-principle in the equal protection clauses of the Fourteenth Amendment and Article I, § 19 of the North Carolina Constitution. See [D.E. 93].

         On August 9, 2016, this court issued its remedial order. C.f. Raleigh Wake Citizens Ass'n, 827 F.3d at 354 n. 13. The court's remedial order enjoined the use of the population deviations in the BOE and BOCC districts in the Session Laws. See [D.E. 104] 6. The court did not declare any other provisions of the Session Laws to be unconstitutional.

         The court's remedial order imposed a court-ordered interim election plan for 2016, but did not reinstate the entire 2011 redistricting plan and election scheme that preceded the Session Laws, despite plaintiffs' insistence to the contrary. See [D.E. 104] 36-37. The court's remedial order used the districts from the 2011 plan, but included an overall interim system of election for 2016 that largely tracked the policy decisions reflected in the Session Laws. See Id.

         The court's remedial order prohibited use of the population deviations and imposed a temporary, court-ordered redistricting plan that was far more limited than the relief plaintiffs sought. Plaintiffs sought an injunction that declared the Session Laws unconstitutional in their entirety and reverted to the method of election for the BOE and BOCC under the 2011 plan. See [D.E. 1 ] 22 (the "Wright Compl."); [D.E. 22] 17 (the "RWCA Compl."). Plaintiffs also sought a declaration that, if the General Assembly failed to promulgate a lawful election method, the BOE and the BOCC each had the authority to adopt its own redistricting plan. See Wright Compl. at 22; RWCA Compl. At 17.

         After the Fourth Circuit's decision in July 2016, plaintiffs argued that merely enjoining the population deviations did not provide them the full scope of their requested relief. Plaintiffs repeatedly insisted that they were entitled to relief enjoining the Session Laws in their entirety. See [D.E. 82] 5, 20; [D.E. 87] 2; [D.E. 96] 3. Plaintiffs also sought relief that reinstated the entire election system contained within the 2011 redistricting plan-including the type of districts, length of terms, and timing of elections. Plaintiffs consistently argued that the court lacked authority to implement a court-ordered election plan for 2016 and could instead only give effect to the 2011 plan by operation of law because, according to plaintiffs, that was the last legally enforceable plan. See [D.E. 82] 7-8; [D.E. 96] 5-6.

         This court rejected the scope of injunctive relief plaintiffs sought. The court also rejected plaintiffs' arguments that the Fourth Circuit invalidated the Session Laws in their entirety and that the provisions of the Session Laws were not severable. [D.E. 104] 23-27. The court also rejected plaintiffs' arguments that the court lacked the authority to impose an interim election plan for 2016 and that the court was required to give effect to the 2011 plan and electoral scheme. Id. at 18-23. Rather, the court held that the Session Laws rendered the 2011 plan a "legal nullity" and that "[w]hen the Fourth Circuit invalidated the redistricting plan in Session Law 2013-110 and Session Law 2015-4 in Raleigh Wake Citizens Association, it did not state or intimate that it was reviving the 2011 plans and electoral scheme." Id. at 19. The court also rejected plaintiffs' request that any plan for 2016—including a court-ordered remedial plan—reflect the election scheme contained in the 2011 plan. The court also declined plaintiffs' demand to (1) delay the election of the 2013 BOE seats until 2017, (2) impose four-year terms for those seats, (3) impose three-year terms for BOE seats up for election in 2016—returning the BOE to 5-4 staggered terms and odd-year elections in contravention of the Session Laws, and (4) have four-year terms for BOCC districts 4, 5, and 6, which were up for election in 2016.

         Instead, the court followed many of the policy judgments in the Session Laws, including holding elections for all BOE members in 2016 (avoiding staggered terms), imposing even-numbered terms (avoiding odd-year elections), and keeping the two-year terms for BOCC districts 4, 5, and 6 to "comport[] with the expectations of those candidates who filed to run in 2016." [D.E. 104] 35-37. The court departed from the Session Laws and shortened the term of election for BOE members in 2016 from four years to two years.

         During the remedial phase, plaintiffs filed an emergency petition for a writ of mandamus and suggested that the Fourth Circuit remand the case to another United States District Judge in the district. See Pet. Writ Mandamus, In re: Raleigh Wake Citizens Ass'n. et al., No. 16-1898, [D.E. 3] (Aug. 8, 2016). Plaintiffs filed their original petition the day before the court entered its remedial order and then amended the petition in response to the remedial order. See Am. Pet. Writ Mandamus, In re: Raleigh Wake Citizens Ass'n. et al., No. 16-1898, [D.E. 8] (Aug. 9, 2016). Plaintiffs argued that enjoining the population deviations was not enough. See Pet. Writ Mandamus, In re: Raleigh Wake Citizens Ass'n. et al., No. 16-1898, [D.E. 3-1] 12 (Aug. 8, 2016). Rather, plaintiffs sought "complete relief. . . including relief from the clearly 'pretextual' fruits of the unconstitutional tree." Id.

         Plaintiffs repeated their arguments that this court lacked the "power or authority to order any remedial districts, " Id. at 17, and that "the trial court should have ordered a remedy reverting back to [the 2011] plan in its entirety without any changes." Am. Pet. Writ Mandamus, In re: Raleigh Wake Citizens Ass'n. et al., No. 16-1898, [D.E. 8-1] 6 (Aug. 9, 2016). Plaintiffs also argued that the court-imposed interim election plan for 2016 "significantly differs" from the election system under the 2011 plan because it imposes different term lengths for the BOE and BOCC seats, allows for non-staggered terms, allows all BOE and BOCC seats to be vacant in 2018, and has no method of election in place after 2016. Id. at 4. Plaintiffs called staggered terms "an important feature, " argued that having all of the BOE and BOCC seats up for election in 2018 "directly conflicts with the prior constitutional election methods, " and declared that "[a]ll of these problems should be avoided." Id. at 4-5. Plaintiffs argued that the "only remedy" was to enjoin the Session Laws in their entirely and that the emergency petition was "necessary to assure a proper implementation of [the Fourth Circuit's] prior rulings." Id. at 6. On August 10, 2016, before defendant responded, the Fourth Circuit summarily dismissed plaintiffs' petition for a writ of mandamus.

         II.

         Plaintiffs are prevailing parties and request $681, 373.95 in attorneys' fees. The court has discretion whether to award a reasonable attorneys' fee to a prevailing party under 42 U.S.C. § 1988. See 42 U.S.C. § 1988(b). A prevailing plaintiff "should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust." Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (quotation omitted).

         Defendant argues that special circumstances warrant denying a fee award. See [D.E. 123] 8-13. The special-circumstances exception, however, is "narrow[]" and applies only on "rare" occasions. Lefemine v. Wideman, 758 F.3d 551, 555-56 (4th Cir. 2014). Having considered the entire record, the court declines to apply the special-circumstances exception. See Id. at 555-59.

         Awarding a reasonable attorneys' fee involves a three-step process. See McAfee v. Boczar, 738 F.3d 81, 88 (4th Cir. 2013), as amended (Jan. 23, 2014). First, the court calculates the lodestar amount (reasonable hourly rate multiplied by hours reasonably expended). Id. In making the lodestar determination, the court "appl[ies] the Johnson/Barber factors." Grissom v. The Mills Corp., 549 F.3d 313, 320 (4th Cir. 2008) (citing Johnson v. Ga. Highway Express. Inc., 488 F.2d 714, 717-19 (5th Cir. 1974), and Barber v. Kimbrell's. Inc., 577 F.2d 216, 226 (4th Cir. 1978)). The Johnson/Barber factors are:

(1) the time and labor expended; (2) the novelty and difficulty of the questions raised; (3) the skill required to properly perform the legal services rendered; (4) the attorney's opportunity costs in pressing the instant litigation; (5) the customary fee for like work; (6) the attorney's expectations at the outset of the litigation; (7) the time limitations imposed by the client or circumstances; (8) the amount in controversy and the results obtained; (9) the experience, reputation, and ability of the attorney; (10) the undesirability of the case within the legal community in which the suit arose; (11) the nature and length of the professional relationship between attorney and client; and (12) attorneys' fees awards in similar cases.

Id. at 321 (quotation omitted). Second, the court must then subtract fees for time spent on any unsuccessful claims unrelated to successful claims. See Id. Finally, the court "awards some percentage of the remaining amount, depending on the degree of success enjoyed by the plaintiff." Id.

         At the third step, a foundational link must exist between the degree of success and the amount of an attorneys' fee award:

The touchstone of an attorney's fee award "is the degree of success obtained." See Farrar v. Hobby, 506 U.S. 103, 114, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992) (quotation omitted); Hensley. 461 U.S. at 436. Although strict proportionality between attorney's fees and the amount of plaintiffs recovered damages is not required, see Yohay v. City of Alexandria Employees Credit Union. Inc., 827 F.2d 967, 974 (4th Cir. 1987), the court is to award "some percentage of the [requested attorney's fees], depending on the degree of success enjoyed by the plaintiff." See City of Aiken 278 F.3d at 337.

O'Fay v. Sessoms & Rogers. P.A., No. 5:08-CV-615-D, 2010 U.S. Dist. LEXIS 80128, at *8-9 (E.D. N.C. Aug. 9, 2010) (unpublished): see Farrar v. Hobby, 506 U.S. 103, 114 (1992); Hensley, 461 U.S. at 436; McAfee, 738 F.3d at 88.

         Defendant asks the court to reduce the requested fee award because the requested hourly rates and the hours expended are not reasonable. Defendant also asks the court to exclude the time plaintiffs spent on the unsuccessful racial gerrymandering claim and litigation concerning the legislative leaders. Finally, defendant asks the court to reduce the ...


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