State Supreme Court asked to intervene in fees claim

Sep. 15, 2013 @ 05:50 PM

A Durham man has asked the N.C. Supreme Court to reverse a lower-court ruling that denied him a chance to recover the $93,022 in legal expenses he ran up in the course of winning a case against city/county planners.

Robert Izydore and his lawyer, Hayes Hofler, petitioned for a Supreme Court review on Sept. 10. They seek to overturn an opinion handed down a month earlier by the N.C. Court of Appeals.

The appeals court decision threatens to “remove the keys to the courthouse from private citizens” and other groups that challenge improper actions of local government, Hofler said in the petition.

Izydore incurred his legal bills while challenging a City/County Planning Department ruling that would have allowed a developer to get around long-standing, privately established lot-size restrictions in his west Durham neighborhood.

Two judges sided with Izydore on the planning dispute, in the end upholding the low-size restrictions.

But when Izydore asked the city to compensate him for his legal expenses, Superior Court Judge Carl Fox sided with the city’s lawyers in saying no law requires it to pay.

A three-judge Court of Appeals panel agreed, pointing to a law that applies mainly to state agencies. It decided that the statute, the state Administrative Procedures Act, doesn’t really cover local government.

Hofler, in urging the Supreme Court to take the case, noted that the North Carolina Constitution subordinates cities and counties to the state.

Courts have recognized that since at least 1938, when the Supreme Court itself said local-government authority “may be enlarged, abridged or withdrawn entirely at the will or pleasure” of the N.C. General Assembly.

Moreover, the statute that the Court of Appeals consulted for its ruling includes a clause that allows judges to award legal fees in cases beyond those covered by the Administrative Procedures Act, Hofler said.

The appeals court seemingly “has decided to write that clause out of the statute altogether,” he said, arguing that the panel, in essence, exceeded its authority.

He added that that Supreme Court itself in 1995 recognized that a wider range of cases could qualify for the award of legal fees.

Further, the Court of Appeals ruling, if allowed to stand, would have widespread impact, Hofler said.

Should it remain on the books, “citizens who are injured by unwarranted litigation promulgated by hundreds of local administrative agencies across North Carolina will be unable to employ competent counsel to defend them,” he said. “The General Assembly did not intend this result. Neither did the Supreme Court.”

But it is not a given that the state Supreme Court’s seven justices will take the case.

The Court of Appeals ruling was unanimous, meaning Izydore doesn’t have an automatic right to have his case heard at the next level.

Last month’s ruling was authored by Court of Appeals Judge Mark Davis and joined by Judges Martha Geer and Linda McGee. All three are Democrats. The Supreme Court is majority Republican.