may please the court in twenty fifteen when the north carolina legislature passed a local bill redistricting the greensboro city council districts it used excessive population deviations to disadvantage democratic and black voters it also does deny greensborough citizens the right to use the referendum to change their city council structure plaintiffs in this case acting as private attorneys general retained pro bono counsel and sought to vindicate their constitutional rights in the rights of all citizens and rights to an equally weighted vote and the right to be treated like every other citizen of a city in the state they succeeded and the district court recognized them as prevailing parties but in contradiction of the purpose of one nine hundred eighty eight the fees shifting statute in one thousand nine hundred three civil rights cases and in contradiction of the controlling president from this court and the united supreme court the district court committed legal error and abused the very limited discretion it had in deciding that special circumstances warranted denial of before delving into the district co legal errors and abuse of its narrowly constrained discretion it's important to recognize that the united states supreme court and this court have been unequivocal in their commitment to the purpose of one nine hundred eighty eight encouraging plaintiffs to seek competent coun bringing civil rights actions and then compensating those counsel when they were in those cases and they've been consistent in their her petition that one special circumstances justifying denial of fees are exceptionally rare and to the discretion of district courts to find special circumstances and deny fees is incredibly narrow the primary supreme court case capturing this commitment of course is hands levy eckert which co to prevailing parties in last special some circumstances would warrant that unjust but it made clear that this would be a very unusual outcome so the supreme court describes an a simple inquiry that at the stage of deciding whether or not to award fees at all the question is asked were playing to surveilling parties and if the answer is yes then it's near mandatory that some fees will be award awarded the effect on or conduct of defendants including in foresman agencies does not factor in in fact the united states supreme court in the virginia supreme court vs consumers unions case had no problem with these being awarded against the virginia state bar even though the us supreme court deemed the state bar innocent of the unconstitutional action instead the supreme court noted that feel warrants against enforcement officials are run of the mill occurrences to mean this court refused to aggregate three alleged special circumstances factors to deny fees in that case those factors were one the defendant the deceased sorry the defendant government actors good faith just like we have in this case too that there was no pattern way but back it was it's not the court unless you mean actually isn't addressing good faith standing alone it addresses only in the context of rejecting qualified immunity as being a defense so it's not independent good thing that the court was addressing is addressing call about immunity and it has the sort of a side about a good thing but that's not it was not a standalone issue they rejected it as sort of a piece hich is the fourth circuit decision from one nine hundred seventy six on which i think a lot of this is based with the the court this court says is of course the company's good faith alone would not be we're not insulated from making plaintiff whole in this countries are talking about peace they say but here there's more and so chess thing to me and i want you to explain to me why this is not the right reading because it is obviously in conflict with yours jesting to me seems to require that a court like this district court consider good faith not sufficient alone but that it can combine with more in order to qualify as the special circumstances that we're talking about so in other words it is under the fourth circuit precedent a totality of the circumstances a holistic approach and then start there and then we'll talk about what chest and found to be sufficient more factors but don't do you agree that testing as only that good faith alone is not sufficient not that you must ignore it i think in chastising that was more along the lines of what was very central to the court's determination of the outcome was that the problematic behavior had ceased in one nine hundred seventy and the lawsuit wasn't filed until one nine hundred seventy one so there was this consideration that this one th litigation was unnecessary the problems already resulted to this was creating costs in extensions of the drama more than is necessary but on page ten forty five like i mean you may read that in but that's not what the court actually set is right i mean that's that's your sort of implicit interpretation but the court didn't actually say that the court actually begins its analysis of determining whether fees are appropriate by saying here's all the good faith that alone is not sufficient but here we have more not that here's all this good faith evidence good faith can't be considered so not more but here are these other independent factors that justify by saying it's not a long sufficient but here more and then taking them as it does in total to reach its conclusion suggest fairly strongly to me that the district court here was required in fact to do what it did which is to consider good faith along with various other things including the actions of plants counsel in determining whether the special circumstances apply and then that's the abuse of discretion that we review also then let me turn to the factors that i believe the district court did consider contrary to our police representation before you before you turn away from that do you agree that testing requires the district court to do that i don't think that casting stands for the proposition that the fourth's that this court considers aggregating that prohibits aggregation earlier why do you say that i don't i wouldn't say that it categorically prohibits that it rejects the the aggregation of those three factors one of which was good faith and there were more fact in my mind there were more factors in law to mean than there are here but to even good faith just to assume your question assume the the proposition and i don't think it's the case the defense the enforcement agency which is except for maybe in the ninth circuit universally considered not a special circumstance and then it turned well except for the poor circuit where it is considered  might be sufficient but in more recent case from this court the virginia supreme court case on remand where you had an innocent party this court awarded fees against that innocent party the virginia state board didn't promulgated the rules but they salt the those rules they advocated for the problem occasional those will this is the virginia our case this early did and then they changed their mind and the u s supreme court so that was enough for the u s supreme court to consider them innocent but to get to what the what the district court here actually considered good faith in in a sense it's sort of intertwined that inquiry and i don't think either of those presents a an appropriate allowable criteria for special circumstances but then the district court switched to excusing its reliance on this plainly rejected factor by adding another alleged factor that prevailing plaintiffs named only the county board of elections as a defendant and so the district court penalize plaintiff c and l i wanted you to because i know your opposing counsel is going to get up here and say they didn't do anything wrong he sued the wrong party so please lay out why you set up the case the waited we filed the lawsuit in this case three weeks after this court issued its decision in right which was almost an analogous case in right plaintiffs wanted to sue the more guilty party they wanted to sue the legislatures that the state legislators who had passed the unconstitutional local bill this court said the only necessary party is the county board of elections it rejected plaintiffs in that case attempt to add state actors now the only differences in that case plaintiffs didn't try to add the state board of elections the district court below faulted plaintiffs for not adding the state board of elections in this case but it i illogical to talk about good faith in innocence in the first justification and then fault plaintiffs for not suing enough innocent parties the state board of elections had nothing to do with passing this challenge law they had no direct that under right that you permissive lee could have added the state board of elections the state board of elections only other parties so so defended up but just but i don't own that because i mean that's what i mean right sort of right it says the county board you know the county board of elections with the state board of elections has and this is the language you quote has the duty to enforce the challenge redistricting point right in right they have done to fight the county and the state as being the two that are charged with enforcing i mean that's the language out of right but then right also says plaintiffs can receive full and total relief from the county board of elections only and in truth true not a necessary party but a permissive one right  and they may have asserted some sort of sovereign immunity it may not have been successful but plaintiffs here sued the proper party and this question this court addressed this issue of who ends up bearing the  ignore who's on the on the other side the purpose of the statute is to make sure that access to our courts are open and you know the other thing to do to keep in mind i think is that the the state actors actually responsible for this unconstitutional law were aware of this case decided not to intervene and resisted strongly any discovery in this case the last thing the district court brought up which i don't actually think was a factor but was sort of background justification was this recently passed state law that says when a lawsuit is filed challenging the constitutionality of a local bill that the state must be named as a party but this has two problems from one thousand nine hundred eighty eight perspective the state of north carolina might not always be the guilty party and of course the state is risky is free to repeal that limited waiver of immunity at any time with forcing a statute as opposed to what the supreme court has identified as fact in special circumstances and i've been able to identify only to one is when the attorney is acting pro se in in his own behalf because there you're not really and sent a fison competent counsel there's always going to be a conflict when you're representing yourself and the circuit has followed that that rule the second one is when there's only nominal damage and it didn't really  really change the legal relationship in any meaningful way i think that has been called a special circumstance by the u s supreme court but it could also be reviewed as going to the reasonable reasonable ness of fees so after you decide to award the fees then the question of how much guilt or innocence enforcement nominal enforcement agencies that's a trade off that congress made in passing one nine hundred eighty eight they wanted to open access to the court incentiv facts i think that good i don't want you i want you to continue making that argument but before you even get there i sense that we're arguing about a lot of factors that may or may not be relevant and i put have not found where innocence was legal in a sense was relevant i thought question i have really is what do you understand to be the relevant factors providing for the exception and if it's good faith if that's relevant and innocence relevant you think then i think you  and the state does the same thing then we won't see it again because that there won't be anybody to challenge the state next time but nobody's listening and nobody's challenge the state this time who's going to pay the bill is the county of  function you are going to enforce it we together with the state board of elections do carry carry out the elections but what we but look at this way whether the guilford county board of elections was a party to this case or not our actions would have been exactly the same this case didn't change our behavior or our conduct were status in any way this case we were we were bound to follow the law before this how is that state board of elections duty to enforce any different then yours how are they different than you want it is a state actor and it is the state that that words the wrong yes there was a complaint filed here the complaint said there was wrong that was done and that wrong that was done was the general assembly passed a unconstitutional law now if the state was the wrongdoer and presumably you're that did the wrong that the case is about you have i mean this is very basic if you have a complaint you follow an action you say that that someone acted unlawfully in this case the state of north carolina acted unconstitutionally we need the state board of elections because the state of north carolina is the entity that did something wrong here there are three factors why didn't you bring him in we we couldn't our  job the guilford county board of elections job is to do what the what the statutes tell us to do as interpreted by the courts now what were we we did in fact participate in an action two for dismiss for failure to name a necessary part and the courts determined that the state actors weren't necessary parts but what you have aren't you really sort of just trying to put yourself under the chest dang framework jesting actually does exactly i think what you're trying to say right they ultimately conclude that attorney fees should not be awarded because quote the net effect would be to penalize the innocent participants right that being the people that would pay peculiarity interest and therefore no economic incentive to violate the act which obviously applies to all had no right to unilaterally alter the schedule right which you had no similar right you had no right to change it you know you laterally right those are all factors that apply to you you have the additional factor that you did nothing to defend the statue you merely worse the they created the statute they could have said the prevailing party and this is frankly the way the plaintiffs are asking you interpret this statute is that the prevailing party will get attorney's fees period but actually what the statu about here is what's just and frankly to me is a basic tenet ace a a seminal basic tenet of american jurisprudence that we don't make the innocent pay for the wrongdoings  if the statute in titles the plaintiff to relief from you and thereby becomes the prevailing party congress at that person's entitle to have fees that question is you're saying well if they did it innocently then they don't they didn't do it at all sure they get their gun jumped of relief against some that makes them in a situation where they have violated the law because there's an jumped of relief and that makes you a liable party and the liable party is charging the fees that mile that's my whole question both of you and i'm not totally subtle on this but my whole question is what are the criteria for shifting things and what are the criteria for exceptions for shifting faves and the idea of innocence i don't see it statutorily well i think it's a i think it's clearly a factor and to me it's statute the unconstitutional statute that was adopted by the state of north carolina now what actions follows from that follows per course the difference here really sort of back to a more basic point is that you can be liable in a strict liability sounds like it matters not what you did good bad indifferent but you are liable and that means that your are a losing party the opposite prevailing party but that question is different from the question of whether you are required to pay the fees and that question includes the question about a variety of different factors in the course discretion including the consideration of good faith although not enough alone but also the other actions that you took and the court is entitle to make its discretionary judgement within the framework provided to determine even though you are strictly liable for injunctive relief that perhaps your county is not have to be responsible in every single case for attorney's fees but let's look specifically at what the court did before circuit did handling this retirement fund and and they said that they acted in good faith in this case you have you have a case where an award of attorney's fees are even more unjust in that not only did they act thinking that they were we didn't act at all somebody else made the law and we're bound and we have to follow it again if we weren't parties our actions would have been just the same it didn't we our relationship with the plaintiffs didn't change at all  pryor and he's on first circuit the facts that the city did not itself and that the law at issue and that some other entity may be more culpable or causally responsible than the city do not in our view make it unjust as a matter of law to assess these costs indeed civil rights action costs including attorneys fees are often assessed against defendants who enforce the laws instead of those who enact them the legislator legislature is rarely sued and then they go and he goes to explain but this is exactly what justice scalia said he said the person legally responsible that's the term he use should bear the fees and if they're legally responsible regardless if it's if it's statutes at based on guilt or it's whether it's based on some other bases i've not actually not found a case where they refused to  multiple places again on the basis is did that there was no vindication of civil rights and testing that was one of the problems that made it unjust well which is a fundamental problem that's not here three the three letters foreign is that is that right that that's something they said but what they said that they were basing their to the determination of one with three things one the good faith win which i think i think you have a party here that it i even more on the on the side of justice that in that second is and this is an important point that that there was they have no money in the fund making making the defendants who are subject to this injunctive relief pay this will create no disincentive to bad actions in the future and this goes to your point guys that are if the if you award attorneys fees against the local board of elections then what incentive have you created for the state of north carolina that acted this unconstitutional on the first place if you let even him a free ride what if you flipped it and said rather than a disincentive for the states to do things wrong it was and instead and acted to provide an incentive for plaintiffs don't for civil rights well if you look at if you like the riverside cases says it's both and that fail and failing to one yes it's it's good that's why as the default is the default finding it's good to reward the plaintiffs for prevailing but there's a sense but if you look at riverside they said and there's also th consideration is to create a disincentive for those folks who are violating the laws in the first place and that is and what you have is you create and the judge referred to it here i prefer perverse incentives you're actually incentivizing the state of north carolina to create unconstitutional laws they can use all hundred counties in north carolina is their experiments to see which is which unconstitutional all they can do which they can get away with and they never foot the bill that according to their this interpretation of the right case the state of north carolina is never helped held accountable and they can they could do it in one hundred or if you include miss palliser can do it a thousand times and somebody else pays the bill they're not the state isn't subject to injunctive relief declaratory judgment or attorney's fees that has the opposite incentive of what the purpose of of one thousand eighty eight is that and that was the bas two for the shasta thank third the chest pain case said that the an award of penalties would punish the people for who this lawsuit was intended to intended to benefit that also applies here it's now going to be the taxpayers of guilford county that pay for that pay for the wrongs of the state of north carolina and who is this action brought on behalf of it was but only half of the voters of delaware county those subsets are sample things so you've got so we meet all of the three actual findings of chest pain plus even more compelling in a more compelling way we not only we weren't acting in good faith we weren't the actors at all we were only named for the perspective injunctive relief if we weren't parties and we and the court found that the law was unconstitutional our actions would not have changed one bit we and and the other thing that  we do need to look at is if you look at the water and remember the test is did did the judge abuse her discretion now the rules say that there is a clearly an exception that's possible i would argue if you interpret the way that the planes are asking you to interpret the statute you actually should just put a period after the very important change should get attorney's fees put a period and we all go home but the but the courts the statute and the courts have clearly said that judges have discretion and that they sometimes may find that the circumstances of this particular case with would warrant not order of turning course is going to be rare corsican be here and far between but the argument you heard from plants is basically a statistical argument we're supposed to get attorney's fees a lot of cases say we get attorney's fees so we should get attorney's fees what you need to do is look at the at the order at the actual order that judge eagles adopted here and say is there a rational basis for this order it couldn't it can't be based upon an error an error a factual error because there's no disagreement on the requirements and then stopped plus in addition i do think it's important to say that the plaintiffs in this case that they were there were the attorneys in the right case is that as they noted and the right case gave them a roadmap as to how to get a state party or at the table and that is to name the state board of elections so they were given you've gone through a red light we're not going to ticket y undisputed facts and that the and that the decision although it is unusual and i think we've got a pretty unique case here it is grounded in law and not an abuse of discretion thank you all right thank you the district court awarded injunctive relief against the guilford county board of elections had plaintiffs failed to win pulmonary and permanent injunctive relief on both their referendum and redistricting claims the greensboro county board of elections the purported innocent party in this case would have geo coded new city council districts they would have mailed postcards to voters detailing the changes and they would have implemented elections using those unlawful districts and municipal in violation of plaintiff's rights those aren't ministerial actions foresman actions for which they take primary responsibility this question of who's going to pay the bill you men judge niemeyer you mentioned the quotes from  also consistent with the supreme court's decision in kentucky versus graham in one thousand nine hundred eighty five the question of who pays the bill the supreme court has acknowledged that it's not clarified in the statute but in reality it's who ends up losing the case and who ends up having a judgment enforced against them that's the clear rule either so how do you distinguish testing so other than the reasons i already have and i think judge tackle hit on an employee one w relief was afforded before the suit was filed that's certainly a significant part and i would also say there's two cases that post state sachar that sorry post date chest pain that bring into question some of that what i characterized as dicta and chest pain one is joe versus board of education from this court in one thousand nine hundred ninety eight in footnote to the district court sorry that this court unequivocal rejected what the ninth circuit does which is consider a balance of equities in determining whether there's special circumstances so to the extent that's what was happening in chest pain i don't think it is i think it was really about there wasn't a change in the legal relationship between the parties because the the unpracticed had already changed but to the extent that's true later this for this court clarified that we are not engaging in any balance of equities in special circumstances consideration and th because it's a panel decision right but then so in support of my i believe that it's dicta there's also the rum creek case and there again this was a situation where there were equitable considerations at issue there wasn't enough money who was going to pay if that's not a special circumstance not having the money or not you know thinking it's coming from the guilty party isn't special circumstance so i think between go and run creek it's fairly simple to read chest pain more narrowly and appropriately which is just that the relieve had already been afforded there wasn't a change in relationship and that's why that outcome happened  the abuse of discretion point that my colleague brought up an error of laws by definition abuse of discretion in this court and in rum creek this court said that the deferential review ordinarily inherent in that standard is modified by a closer review when the appropriate criteria that are established for a fee award are in question what we know here are the two issues the two criteria that the district court parties so all of these equitable concerns and questions about guilt and innocent innocence are completely divorced from the actual purpose of the statute the purpose of the statute as interpreted by the supreme court in this court is to