With a small town, dirty tricks election as the backdrop, an attorneys’ fee fight played out in the Supreme Court on Tuesday with no easily declared winner.

In the fortuitously titled Fox v. Vice, the justices struggled with how and whether to award attorneys’ fees to a defendant subjected to a frivolous civil rights claim which was intertwined with other, non-frivolous claims in a federal lawsuit.

Ricky Fox, a retired state trooper, decided to run for police chief of Vinton, La., in 2005. The incumbent, Billy Ray Vice, a body shop owner, engaged in a series of dirty tricks designed to discourage Fox from running. The tricks included an anonymous letter threatening to publish damaging, but false information about Fox and the filing of a false criminal complaint against Fox.

Fox won the election. Vice was investigated by the FBI and state police. In 2007, a state court jury found Vice guilty of extortion in connection with the election and his conviction was affirmed. While Vice was facing the music, Fox filed a lawsuit in state court claiming violations of his First Amendment and due process rights. He alleged that the Vice and the town were liable under section 1983 of the federal Civil Rights Act.

Vice removed the case to federal court where Fox’s lawyer, after about 18 months, moved to voluntarily dismiss the section 1983 claim. However, Fox’s lawyer said his client still had viable state-tort law claims. After the federal claim was dismissed, the judge decided that the federal and state claims were so entwined that they could not be segregated for purposes of awarding attorneys’ fees. The judge awarded Vice and the town all of the fees they had incurred in defending the case– $54,481, an amount equivalent to about two years of Fox’s salary, according to his Supreme Court brief.

In the Supreme Court, Fox’s counsel, E. Joshua Rosenkranz of Orrick, Herrington & Sutcliffe, told the justices that while the legal theory for the section 1983 claim may have been frivolous, the facts underlying all of the claims were not. The remaining claims, he said, were going to trial in state court.

But Justice Ruth Bader Ginsburg pressed him on whether his client had some responsibility for bringing the frivolous claim. “The plaintiff says, ‘I recognize as a matter of law that my 1983 claim is no good,’ but he didn’t say that until 18 months later. Doesn’t the plaintiff have some responsibility for the costs imposed upon the defendant and the court?”

“Partial responsibility,” answered Rosenkranz, adding that in considering an an attorney fee award, the judge should examine the “incremental burden” of the federal claim when it is intertwined with non-frivolous claims.

Justice Antonin Scalia asked him how a judge would calculate that burden. Rosenkranz said the judge would examine entries in the defendant’s billing records.

“That’s an incredible burden for a district court, and an especially odd burden to impose in an area where there is broad discretion on the part of the court,” noted Chief Justice John Roberts Jr.

Justice Sonia Sotomayor said the majority of circuits apply a “but for” test in determining fees where claims are entwined: fees that would not have been incurred but for the federal — frivolous — claim.

Rosenkranz countered that the clear majority rule is no fees when claims are completely intertwined — claims that arise from the same core of operative facts. But if fees are to be awarded, he added, the “but for” test should apply. The latter would not be difficult to calculate if defendants keep good records, he said.

A somewhat incredulous Roberts said, “Most lawyers do not keep detailed billing records. It seems to me you’re buying into a lot of litigation.”

In the wake of Vice’s death, his estate carried on the Supreme Court case. Representing the estate, Mark Stancil of Robbins, Russell, Englert, Orseck, Untereiner & Sauber, also faced tough questioning for his defense of awarding a defendant all fees incurred in cases where frivolous and non-frivolous claims are entwined. He told the justices that a frivolous 1983 claim does not impose “modest” burdens on a defendant, but “significant” burdens.

“The only cause of action set out with specificity here was the 1983 claim,” he said. “The district court found that state law claims had not been sufficiently pled. There wasn’t a whiff of them until the end. [Fox] rode the federal claim as far as he could. Only at the 11th hour when the district court called him onto the carpet did he back off.”

The district court did that, interjected Justice Ginsburg, “because of your motion for summary judgment. Why didn’t you file it earlier?”

Stancil said it is wrong to assume that a frivolous claim can be seen from the face of the complaint.

He urged the Court to hold that a district court has discretion to award fees “fairly attributable” to the frivolous claim. “Where you have federal, federal, federal, and then at the last second, you hear, `Oh, we have state law claims,’ that’s when district courts need discretion. What matters is how the case was litigated.”

“You don’t want district courts to determine how important the 1983 claim was as opposed to the other claims?” asked Justice Sotomayor.

“Exactly,” answered Stancil.

In rebuttal, Rosenkranz criticized Stancil’s “fairly attributable” test, saying, “It is easier to apply the ‘but for’ test than a test which is a mish-mash of factors,” leading inevitably to endless litigation.

Marcia Coyle can be contacted at mcoyle@alm.com.