Branch-Noto v. Sisolak

D. Nevada

Branch-Noto v. Sisolak

District Court, D. Nevada·Decided July 26, 2022·No. 2:21-cv-01507·Unknown

Opinion

Monica Branch-Noto, et al., Case No.: 2:21-cv-01507-JAD-DJA

Plaintiffs Order Granting in Part Motion for v. Attorneys’ Fees

Stephen E. Sisolak, in his official capacity as [ECF No. 42] Governor of the State of Nevada, et al., Defendants

Citing the Ninth and Fourteenth Amendments, two parents of public-school students sued Nevada state officials and the Clark County School District (CCSD), seeking to enjoin COVID- 19 mitigation policies that required face coverings for indoor activities during in-person instruction. Following a hearing last fall, I found that the plaintiff-parents hadn’t established a viable legal basis for their federal claims, so I dismissed them. I further declined to exercise supplemental jurisdiction over the remaining state-law claims and closed this case. CCSD now moves for attorneys’ fees, arguing that this case should never have been filed because the plaintiffs’ claims were meritless from the start. Plaintiffs counter that the district shouldn’t have hired outside counsel and that the requested fees are unreasonable. Because I find that CCSD was within its rights to hire counsel, plaintiffs’ claims were legally frivolous, and the fees requested are largely reasonable, I grant the motion in part and award the district $57,021 in fees. Discussion I. Under state law, CCSD is permitted to hire outside counsel. Plaintiffs’ primary argument against awarding CCSD fees is that it was improper for the district to employ private legal counsel to defend itself in this case.1 They contend that because

the suit challenged two executive orders, the Attorney General’s office was required to represent all defendants unless disqualified from doing so, and that otherwise, the district should’ve used its in-house general counsel’s office to defend itself.2 Had it taken either of those two approaches, plaintiffs argue, the district would have “saved” the fees it now seeks to recover.3 As CCSD points out,4 plaintiffs’ arguments about the district’s choice of counsel have little basis in law or fact. Plaintiffs’ claims not only directly challenged two of the governor’s executive orders, but also sought a judicial declaration that CCSD’s “Updated Mask and Health Guidance for the 2021–22 School Year is null and void, of no effect, as . . . [u]nconstitutional under the Ninth [and] Fourteenth Amendment[s and a]rbitrary and capricious, . . . [c]ontrary to [a c]onstitutional right, power, privilege, or immunity in violation of the United States Constitution

. . . .”5 So even if the Attorney General’s office were statutorily required to represent all defendants when state-executive orders are litigated—a proposition for which plaintiffs provide no support—CCSD would still need representation to dispense with the challenge to its district policies because plaintiffs’ claims were broader than they imply post hoc.

1 ECF No. 43 at 3–7. 2 Id. 3 Id. 4 See ECF No. 44 at 2–4. 5 ECF No. 1 at 25–26. Nor was the district under any compulsion to utilize its general counsel’s office. Under Nevada Revised Statute (NRS) 386.410, “[t]he board of trustees of a school district may employ private legal counsel when the board determines that such employment is necessary.”6 Although plaintiffs correctly state that the district’s general counsel’s office typically represents CCSD in

litigation,7 they provide no reason that it is obligated to use its in-house attorneys. Under state law, CCSD was well within its statutory right to hire outside counsel to defend itself in this matter. II. As the prevailing party in a frivolous civil-rights case, CCSD is entitled to fees. The American Rule instructs that each party in litigation “bear[s] its own attorney[s’] fees in the absence of a rule, statute, or contract authorizing an award of fees.”8 Under 42 U.S.C. § 1988, district courts have the discretion to award fees to the prevailing party in federal civil- rights cases.9 But attorneys’ fees should only be awarded to a prevailing defendant when the court finds that the plaintiffs’ action “was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.”10 “An action becomes frivolous when the result

appears obvious or the arguments are wholly without merit, and a defendant can recover if the plaintiff violates this standard at any point during the litigation, not just at the inception.”11 Plaintiffs asserted federal claims under the Ninth Amendment; the Due Process, Privileges or Immunities, and Equal Protection Clauses of the Fourteenth Amendment; and the

6 Nev. Rev. Stat. § 386.410. 7 See, e.g., Quintana v. Clark Cnty. Sch. Dist., Case No. 2:21-cv-00023-GMN-NJK. 8 Hensley v. Eckerhart, 461 U.S. 424, 429 (1983). 9 42 U.S.C. § 1988. 10 Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978). 11 Galen v. Cnty. of Los Angeles, 477 F.3d 652, 666 (9th Cir. 2007). equal-protection principle of the Due Process Clause of the Fifth Amendment.12 At oral argument, plaintiffs’ counsel conceded that most of these claims were unsupported by any case law.13 And as described more fully in the dismissal order, many Supreme Court and Ninth Circuit cases directly foreclosed any argument in favor of them.14

It has long been established that there is no private right of action arising under the Ninth Amendment, so plaintiffs’ claim brought on that basis is without foundation.15 The same goes for the claim under the Fifth Amendment’s equal-protection principle, which does not supply a right of action against local-government actors.16 And plaintiffs could not bring a Fourteenth Amendment procedural-due-process claim to challenge broadly applicable policies such as school-district-wide mask mandates.17 The Fourteenth Amendment equal-protection and privileges-or-immunities claims lacked merit because plaintiffs alleged no facts implicating a right of national citizenship or disparate treatment against a protected class.18 Finally, although substantive-due-process principles create a fundamental right for parents to make decisions about their children, that right has never been found to be so broad as to entitle them to undermine

local public-health pandemic-mitigation efforts.19 And plaintiffs presented no reasons to depart from precedent that has narrowly construed this fundamental right and rejected using rational-

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