The opinion of the court was delivered by: Facciola, United States Magistrate Judge.
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.
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). ...