Voter-registration dispute during 2020 election raises question of attorney’s fees

Petitions of the week

 The Petitions of the Week column highlights a selection of cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.

Going to court is one way to enforce your civil rights if they are violated by a state official. As options go, though, it can be expensive. This week, we highlight cert petitions that ask the court to consider, among other things, when a prevailing plaintiff in a civil-rights lawsuit can have their attorney’s fees paid by the state.

In 2019, Tennessee passed a law imposing a slew of restrictions on voter-registration drives. The state’s arm of the NAACP and other voting-rights groups filed a lawsuit against Tennessee Secretary of State Tre Hargett and other officials, challenging the measure as a violation of their First Amendment rights. A federal district court agreed to put the law on hold, allowing the groups to register voters for the 2020 election while the litigation continued.

Tennessee repealed the restrictions seven months later. The voting-rights groups agreed to dismiss the case, their purpose having been met. But they asked for their legal expenses racked up in bringing the suit to be covered by the state. The district court awarded the groups over $700,000 in attorney’s fees.

The state appealed to the U.S. Court of Appeals for the 6th Circuit, which upheld the award. Under federal law, attorney’s fees go to the “prevailing party” in a civil-rights lawsuit. The 6th Circuit ruled that the voting-rights groups prevailed once they had received a preliminary injunction of the law, and that they did not undo that status by later dismissing their claims.

In Hargett v. Tennessee State Conference of the NAACP, the state asks the justices to invalidate the award of attorney’s fees. Tennessee argues that plaintiffs do not prevail in a civil-rights case for purposes of attorney’s fees until a court issues a decision on the merits of their claims. A preliminary injunction of the law is not a permanent victory, the state contends, because it can always be undone by a final ruling – or, like here, be rendered unnecessary by a dismissal of the case.

A list of this week’s featured petitions is below:

Pinkney v. Berrien County, Michigan
22-766
Issue: Whether petitioner’s 42 U.S.C. § 1983 claim based on his prosecution, pretrial criminal proceedings, trial, conviction, and incarceration for an act the law does not make criminal should be assessed under the due process clause of the 14th Amendment or under the Fourth Amendment.

Ultra Petroleum Corporation v. Ad Hoc Committee of OpCo Unsecured Creditors
22-772
Issue: Whether an unwritten “solvent-debtor exception” overrides the Bankruptcy Code’s statutory text and allows creditors in solvent-debtor cases to recover amounts that the code disallows.

Hargett v. Tennessee State Conference of the NAACP
22-773
Issue: When, if ever, a party who obtains a preliminary injunction, but never secures a final merits determination, qualifies as a “prevailing party” eligible for attorney’s fees under 42 U.S.C. § 1988.

Jones v. United States
22-785
Issue: When, if ever, the due process clause of the Fifth Amendment requires vacatur of a criminal conviction based on the government’s refusal to seek immunity for a defense witness under 18 U.S.C. § 6003