Candidate For Police Chief Position Must Pay Town’s Attorney’s Fees

Ricky Fox and Billy Ray Vice were candidates for the position of Chief of Police in the Town of Vinton, Louisiana. The Town elects its police chiefs, and Vice was the incumbent. While the two were campaigning, two events occurred that eventually led to a federal court lawsuit.

The first event happened in January 2005, when Vice sent Fox an anonymous letter in which Vice attempted to blackmail Fox into not running for office. The second event took place at a local high school basketball game in February 2005, when a third party accused Fox of uttering a racial slur and, at the instigation of Vice, filed a false police report regarding Fox's alleged utterance.

In December 2005, after he lost the election, Fox brought a suit in Louisiana state court against Vice and the Town, alleging both state law claims and a claim that his rights under Section 1983 of the federal Civil Rights Act had been violated. Under the Civil Rights Act, a “prevailing party” can recover attorney's fees.

In January 2006, the case was removed to federal court. In April 2007, Vice was tried and found guilty of extortion in criminal court for the anonymous letter. Meanwhile, the evidence became clear that Vice had also participated in the filing of a false police report.

Vice and the Town moved to dismiss Fox's civil lawsuit, contending that he had no federal claim. When their motion was granted, Vice and the Town succeeded in persuading the trial court to order Fox to pay their attorney's fees. Fox challenged the attorney fee award in the federal Fourth Circuit Court of Appeals.

The Court upheld the award of attorney's fees. The Court noted that Fox “presented no valid claim pursuant to the federal Civil Rights Act. As to the extortion letter, it was sent anonymously. Vice did not act under 'color of law' concerning the extortion letter. As to the fabricated basketball game incident, Fox cannot show a deprivation of the right, privilege, or immunities secured by the United States Constitution and its laws.”

The Court concluded that Fox simply waited too long to dismiss his federal claims: “Fox did not file a motion to voluntarily dismiss his federal claims before the Town and Vice responded. Rather, Fox allowed the case to proceed for more than 18 months in federal court and through considerable discovery before he was challenged on the legal sufficiency of his federal claims. At that point, Fox was forced to concede their lack of legal merit and shifted focus to the state claims. This represented recognition that Fox's federal claim should never have been brought. Fox chose to dismiss the federal claims because he could manufacture no argument to support them when he was challenged. To deny fees under these circumstances would defeat the purpose of ever recognizing defendants as 'prevailing parties,' which is to protect defendants from burdensome litigation having no legal or factual basis.”

Fox v. Vice, 2010 WL 161591 (5th Cir. 2010).

This article appears in the March 2010 issue