Connor v. Winter , 519 F. Supp. 1337 ( 1981 )

CHARLES CLARK, Circuit Judge:

For more than fifteen years the efforts of these plaintiffs to reapportion the Mississippi Legislature in accordance with constitutional requirements have occupied the attention of federal courts. At the end of this lengthy process comes plaintiffs’ Motion for Award of Attorney’s Fees and Litigation Expenses brought under 42 U.S.C. §§ 19737(e) and 1988. Based on testimony, affidavits, briefs, and other supporting documents filed by both parties, plaintiffs are entitled to recover $77,618.75 in attorney’s fees, $39,197.17 in litigation expenses, and $10,870.70 in court costs.

I.

Section 19737(e) provides:

In any action or proceeding to enforce the voting guarantees of the fourteenth or fifteenth amendments, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.

42 U.S.C. § 19737(e). Congress enacted this provision in order to enable private citizens to vindicate fundamental voting rights guaranteed by the Constitution. See S.Rep. No.94-295, 94th Cong., 1st Sess. 40, reprinted in [1975] U.S.Code Cong. & Ad.News 774, 807-08. Nevertheless, the statute expressly limits the recovery of attorney’s fees to a “prevailing party.” Although there are few cases decided' under section 19737(e), there is a well-developed body of case law under section 1988 defining the meaning of “prevailing party.” Because sections 19737 (e) and 1988 contain substantially similar language, they should be construed similarly. Riddell v. National Democratic Party, 624 F.2d 539, 543 (5th Cir. 1980).

Under section 1988, it is clear that attorney’s fee awards are available to parties even though they enforce their rights by means of a consent decree or without actually obtaining formal judicial relief. See, e. g., Hanrahan v. Hampton, 446 U.S. 754, 756, 100 S.Ct. 1987, 1989, 64 L.Ed.2d 670, 674 (1980); Robinson v. Kimbrough, 620 F.2d 468, 475 (5th Cir. 1980); Criterion Club v. Board of Comm’rs, 594 F.2d 118, 120 (5th Cir. 1979). Moreover, the Fifth Circuit has also recognized that a plaintiff may prevail and be entitled to an attorney’s fee award when subsequent remedial action by the defendant effectively moots the controversy after the lawsuit has been filed. See, e. g., Iranian Students Ass’n v. Sawyer, 639 F.2d 1160, 1163 (5th Cir. 1981); Doe v. Marshall, 622 F.2d 118, 120 (5th Cir. 1980). Furthermore, that a party does not prevail on every claim asserted does not necessarily mean time spent pursuing unsuccessful claims should automatically go uncompensated. See Maher v. Gagne, 448 U.S. 122, 123, 100 S.Ct. 2570, 2572, 65 L.Ed.2d 653 (1980); Jones v. Diamond, 636 F.2d 1364, 1382 (5th Cir. 1981); Watkins v. Mobile Housing Bd., 632 F.2d 565, 567 (5th Cir. 1980). Accord Fain v. Caddo Parish Police Jury, 564 F.2d 707, 709 n.3 (5th Cir. 1977) (§ 19731(e)).

The test of whether a litigant is a prevailing party within the meaning of sections 19731(e) and 1988 is a pragmatic one that focuses on whether he has substantially achieved the result sought or has been successful on the crucial issue in the case. For example, Robinson v. Kimbrough, supra, stated that plaintiffs may recover under section 1988 if they are able to show “their lawsuit was a significant catalytic factor in achieving the primary relief sought through the litigation despite failure to obtain formal judicial relief.” 620 F.2d at 478. Other decisions frame the inquiry in essentially identical terms. See, e. g., Iranian Students Ass’n v. Sawyer, 639 F.2d at 1163 (a causal relationship between the lawsuit and the relief received); Coen v. Harrison County School Bd., 638 F.2d 24, 26 (5th Cir. 1981) (lawsuit must be a major factor in obtaining relief).

The litigation history clearly shows this action was a substantial factor in the legal and political process which ultimately led to reapportionment of the Mississippi Legislature. In 1965 plaintiffs brought this action against Mississippi’s Governor, Attorney General, and Secretary of State in their official capacities as the State Board of Election Commissioners, challenging the extreme population variances in the existing legislative apportionment.¹ The district court invalidated that apportionment scheme. Connor v. Johnson, 256 F.Supp. 962 (S.D.Miss.1966). After the legislature unsuccessfully attempted to enact a reapportionment that met constitutional standards, the district court formulated its own temporary plan for the 1967 quadrennial elections, Connor v. Johnson, 265 F.Supp. 492, 504-07 (S.D.Miss.1967), and the Supreme Court affirmed without opinion use of this temporary plan. 386 U.S. 483, 87 S.Ct. 1174, 18 L.Ed.2d 224 (1967).

In 1971 the Mississippi Legislature enacted another reapportionment. Because the district court could find no justification for the continuation of substantial population variances, it once again held the legislation unconstitutional. Conner v. Johnson, 330 F.Supp. 506 (S.D.Miss.1971). The district court consequently promulgated its own plan for the 1971 elections, relying extensively on multimember districts, but did not devise a plan for Mississippi’s three largest counties, ordering instead interim multimember representation in these areas. On interlocutory appeal from that order, the Supreme Court stayed the district court’s judgment. Emphasizing that in court-ordered reapportionment plans single-member districts are preferable to multimember districts “because they more closely reflect voter preferences,” the Court instructed the district court to put into effect a single-member district plan “absent insurmountable difficulties.” Connor v. Johnson, 402 U.S. 690, 692, 91 S.Ct. 1760, 1762, 29 L.Ed.2d 268, 270 (1971). However, on remand the district court found the difficulties in instituting a single-member plan to be insurmountable, 330 F.Supp. 521 (S.D.Miss.1971), and the Supreme Court denied further interlocutory relief. 403 U.S. 928, 91 S.Ct. 2241, 29 L.Ed.2d 722 (1971).

After the 1971 elections had taken place, the plaintiffs again appealed to the Supreme Court. It unanimously concluded that variances between the largest and smallest Senate and House districts “raise[d] substantial questions concerning the constitutionality of the District Court’s plan as a design for permanent apportionment.” Connor v. Williams, 404 U.S. 549, 550, 92 S.Ct. 656, 658, 30 L.Ed.2d 704, 706 (1972). Nevertheless, the Court declined to consider the prospective validity of the 1971 plan without a final redistricting for the entire state, vacated, and remanded for proceedings before a Special Master. Id. at 551-52, 92 S.Ct. at 658-59, 30 L.Ed.2d at 706-707.

However, in April 1973 the Mississippi Legislature enacted a new reapportionment plan for the upcoming 1975 elections. The plaintiffs promptly filed their objections to the plan, but, while its decision was still pending, the district court learned that the legislature was considering revisions to the statutory formula. Accordingly, it further delayed its decision for the expected legislative action. Connor v. Waller, 396 F.Supp. 1308, 1311 (S.D.Miss.1975). When the legislature finally acted in April 1975, the court dismissed the plaintiffs’ complaint and directed them to file an amended complaint addressing the new statutory apportionment. After an amended complaint was filed, the district court entered judgment essentially approving the 1975 legislative plan. Id. at 1332. The Supreme Court reversed, holding that the legislative reapportionment could not be implemented until it had been submitted and cleared under Section 5 of the Voting Rights Act. Connor v. Waller, 421 U.S. 656, 95 S.Ct. 2003, 44 L.Ed.2d 486 (1975).

When the 1975 legislative plan failed to obtain Section 5 clearance, the district court formulated another temporary reapportionment plan for the 1975 elections. But the Supreme Court allowed the plaintiffs to file a petition for writ of mandamus compelling the district court to enter a final judgment embodying a permanent reapportionment plan for the Mississippi Legislature. Connor v. Coleman, 425 U.S. 675, 96 S.Ct. 1814, 48 L.Ed.2d 295 (1976). The district court thereupon held hearings and adopted a final plan. See Connor v. Finch, 422 F.Supp. 1014 (S.D.Miss.1976); id. 419 F.Supp. 1089; id. 419 F.Supp. 1072.

On direct appeal, the Supreme Court also invalidated this court-approved plan, finding that it “fail[ed] to meet the most elemental requirements of the Equal Protection clause in this area — that legislative districts be ‘as nearly of equal population as is practicable.’ ” Connor v. Finch, 431 U.S. 407, 409-10, 97 S.Ct. 1828, 1831, 52 L.Ed.2d 465, 470 (1977) (citations omitted). The Court also found that the plaintiffs had submitted an alternative plan that better served the historic state policy against fragmenting existing political boundaries yet came closer to achieving population equality. Id. at 420, 97 S.Ct. at 1836, 52 L.Ed.2d at 477.

On remand, a trial was conducted, and the parties submitted proposed plans to the court. After a settlement conference in June 1978, a plan was developed on which all parties agreed. Eventually the district court entered a final judgment adopting the agreed formula, specifically providing that its plan was to be in “full force and effect for the 1979 regular state legislative elections and thereafter unless and until altered according to law.” Connor v. Finch, 469 F.Supp. 693, 694 (S.D.Miss.1979).

Meanwhile, in April 1978, about two months after the trial was concluded, the Mississippi Legislature enacted yet another reapportionment plan. That legislative plan was submitted to the Attorney General pursuant to the Voting Rights Act, and he interposed his objections to it. Mississippi then brought an action in the District Court for the District of Columbia seeking a declaratory judgment that the new legislative apportionment had no discriminatory purpose or effect. Comparing the statutory reapportionment to the 1979 court-approved plan, the District of Columbia court found that the statutory plan did not dilute existing black voting strength and approved it. The Supreme Court affirmed without opinion. United States v. Mississippi, 444 U.S. 1050, 100 S.Ct. 994, 62 L.Ed.2d 739 (1980). Although the 1979 court-ordered plan would have remained in effect if the District of Columbia court had not approved the 1978 statutory plan, the legislative plan superseded the court-approved plan and became the final legislative apportionment for the State of Mississippi. See Wise v. Lipscomb, 437 U.S. 535, 539-42, 98 S.Ct. 2493, 2497-98, 57 L.Ed.2d 411, 416-418 (1978).

Even though the permanent apportionment plan ultimately put into effect was promulgated by the Mississippi Legislature and not by formal judicial decree, it certainly was plaintiffs’ efforts which produced the judicially ordered plan that provoked the legislature to create and submit its statutory plan which received subsequent approval under the Voting Rights Act. Furthermore, the District of Columbia court based its decision approving the statutory reapportionment plan on a favorable comparison with the 1979 court-ordered plan. See United States v. Mississippi, 444 U.S. at 1050-1051, 100 S.Ct. at 994-95, 62 L.Ed.2d at 740 (Stevens, J., concurring).

More importantly, however, this litigation provided the initial impetus for the process that eventually brought to fruition the statutory reapportionment under which the citizens of Mississippi elect their legislature. Only when confronted with fourteen years of unsuccessful litigative resistance, invalidation of three successive legislative apportionments, Supreme Court reversal on four separate occasions of plans proposed by the district court, and imminent implementation of the 1979 court-approved plan did the Mississippi Legislature enact an apportionment scheme which passed constitutional muster. The plaintiffs did not prevail in every proceeding in which they engaged and did not obtain a reapportionment plan that embodied every detail of their own plan. But the test of whether they prevailed for the purposes of an attorney’s fee award is whether they have substantially received the relief sought or have been successful on the central issue in the litigation. They have undoubtedly satisfied this test— the Mississippi Legislature is now reapportioned in accordance with constitutional dictates. The plaintiffs have prevailed and are eligible to receive an award of attorney’s fees.

II.

The State of Mississippi urges that it would be inappropriate to award attorney’s fees in this case even though the plaintiffs have prevailed. While recognizing that the district court should ordinarily award fees to a prevailing party, the State invokes the principle that the court should not do so when there exist special circumstances which would render such an award unjust. See Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263, 1266 (1968). The “special circumstances” exception to the general rule favoring attorney’s fee awards is an extremely narrow one and is applied only in unusual circumstances. In Riddeli v. National Democratic Party, 624 F.2d at 544-45 (5th Cir. 1980), the court reviewed decisions of other courts addressing the “special circumstances” exception and concluded that they fall into two broad categories: (1) situations where, although characterized as claims to vindicate federal constitutional guarantees, plaintiff’s lawsuit was a private state law tort claim for damages and (2) those where, although plaintiffs received the benefits sought in the lawsuit, their efforts did not contribute to achieving those results. Like Riddell, the situation presented in this case does not involve either of these reasons for recognizing special circumstances which would preclude an award of attorney’s fees. 624 F.2d at 545.

Moreover, none of the other reasons advanced by the State warrants refusing such an award. The State primarily argues that granting an award of attorney’s fees in the circumstances of this case would be unjust because the State Board of Election Commissioners was not responsible for the legislative malapportionment, was entirely without authority to alter or amend the existing constitutional deficiencies, and had no control over the reapportionment process. It correctly observes that the Board has only narrowly defined statutory duties and that the power to adopt a new legislative apportionment at all times rested exclusively in the hands of the Mississippi Legislature.²

The State’s position is untenable, for there is nothing extraordinary about awarding fees to a plaintiff who successfully challenges a state legislative enactment in situations like those presented here. This principle is illustrated by Supreme Court of Virginia v. Consumers Union of the United States, 446 U.S. 719, 100 S.Ct. 1969, 64 L.Ed.2d 641 (1980). There, the Consumers Union brought a first amendment challenge to certain state attorney disciplinary rules against the Virginia Supreme Court, the Virginia State Bar, and individual officers in their official capacities. The district court found that special circumstances made it unjust to award fees against the State Bar or its officers because the Virginia Supreme Court alone had the power to alter the challenged disciplinary rules and because the State Bar and its officers had attempted in vain to persuade the court to change the disciplinary rules in accordance with first amendment requirements. The Supreme Court expressed its view of this holding in the following terms:

We are not convinced that it would be unfair. to award fees against the State Bar, which by statute is designated as an administrative agency to help enforce the State Bar Code. Fee awards against enforcement officials are run-of-the-mill occurrences, even though, on occasion, had a state legislature acted or reacted in a different or more timely manner, there would have been no need for a lawsuit or for an injunction.

Id. at 739, 100 S.Ct. at 1978, 64 L.Ed.2d at 658.

Although this passage is contained in dicta, it reflects what we perceive to be the correct approach. When bringing a constitutional attack on a state statute, plaintiffs routinely sue the executive officer charged with responsibility for enforcing the legislative policy, even though the executive neither enacted the disputed statute nor possesses the power unilaterally to repeal it. The Election Commission was the only agency with statewide power to prevent the ballot placement of candidates for election to a malapportioned legislature. While they had no power to create reapportionment, they could control the continued election of members to a legislative body found to be unconstitutionally constituted. The Fifth Circuit has rejected the argument of city officials who claimed that they were “mere functionaries” carrying out the will of the city council. International Oceanic Enterprises, Inc. v. Menton, 614 F.2d 502, 503-04 (5th Cir. 1980). That the Board was powerless to effect a legislative reapportionment does not affect its liability for attorney’s fees.

Since these executives were sued in their official capacity, this award of attorney’s fees will be paid from the funds of the State government. Hutto v. Finney, 437 U.S. 678, 693-94, 98 S.Ct. 2565, 2575, 57 L.Ed.2d 522, 535-536 (1978); McNamara v. Moody, 606 F.2d 621, 626 (5th Cir. 1979).

The additional reasons asserted by the State to constitute special circumstances justifying a denial of attorney’s fees are no more persuasive. That the Board may have acted in good faith in carrying out its official duties does not render an award unjust. Riddell v. National Democratic Party, 620 F.2d at 471 n.2; Johnson v. Mississippi, 606 F.2d 635, 637 (5th Cir. 1979); Brown v. Culpepper, 559 F.2d 274, 278 (5th Cir. 1977). Nor is it relevant that the fi nancial impact of paying the attorney’s fees will ultimately fall on taxpayers who did not themselves participate in any discriminatory or otherwise unconstitutional act. Aware Woman Clinic v. City of Cocoa Beach, 629 F.2d 1146, 1150 (5th Cir. 1980); Criterion Club v. Board of Comm’rs, 594 F.2d at 120. In sum, the State presents no compelling justification for denying recovery of attorney’s fees to these plaintiffs.

III.

Having decided that the plaintiffs are entitled to recover their attorney’s fees incurred during the prosecution of this lawsuit, we must now determine the proper amount of fees to be awarded. In fixing the fee award, this court is governed by the twelve factors set forth in Rainey v. Jackson State College, 551 F.2d 672 (5th Cir. 1977), and Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). In accordance with those criteria, we make the following findings of fact from the record in this case:

1. Plaintiffs’ counsel has submitted detailed affidavits in support, of their claim for fees, extensively documenting the time expended and the expenses incurred in pursuit of the plaintiffs’ interests in this matter. These affidavits and testimony by counsel establish that plaintiffs’ attorneys devoted a total of 1,269.25 hours to rendering legal services in connection with this case, broken down into the following time periods:

March 14,1973 - June 14, 1976: 427 hours

June 15, 1976 - February 28, 1977: 276 hours

February 28, 1977 - May 31,1979: 566.25 hours

The legal services for which fees are claimed are limited to time spent preparing and researching pleadings and briefs, conducting hearings and depositions, drafting correspondence, and other matters which are of record. The time devoted to each matter is not unreasonable on its face, and plaintiffs’ counsel has satisfactorily explained the asserted irregularities raised by the State’s attorneys on cross-examination. Accordingly, we find that plaintiffs’ counsel actually expended the times itemized, that the times spent were all in furtherance of his clients’ interest, and that they were reasonable and necessary for the discharge of his professional obligations.

2. This case has presented at various times issues involving the application of constitutional and statutory voting rights requirements to both statutory and court-ordered legislative redistricting plans. It has included problems associated with multimember districts and the need of fragmenting traditional political boundaries to achieve population equality. While the issues presented have not always been novel, they sometimes have been and often have raised complex and difficult problems in their application to the Mississippi system of legislative elections. Moreover, the State has mounted a vigorous opposition at each stage of these proceedings and has allowed no point to go uncontested.

3. To deal effectively with the issues presented in this action required the services of an attorney with consummate legal skills, familiarity with practice in federal courts, and special expertise in matters of legislative reapportionment. The plaintiffs’ counsel demonstrated the requisite skill and professional ability, and he secured the principal relief sought by his clients.

4. The litigation has been protracted, and the time consumed necessarily precluded counsel’s work on other legal matters.

5. Both plaintiffs and the State of Mississippi have submitted affidavits reflecting the customary fee in this area for civil rights litigation work of this quality and complexity. These fees range from a low of $35 an hour to a high of $100 an hour. Based upon our review of the record, our own knowledge of prevailing fee arrangements, and the special expertise of plaintiffs’ counsel, we find that the following hourly rates are reasonable for the periods involved:

March 14,1973 - June 14, 1976: $50 per hour

June 15, 1976 - February 28,1977: $50 per hour

February 28, 1977 - May 31,1979: $75 per hour

6. Although plaintiffs’ attorney is a regular employee of an organization which conducts civil rights litigation, recovery of a fee was wholly contingent on the successful outcome of the lawsuit. See Morrow v. Finch, 642 F.2d 823, 825 (5th Cir. 1981); Jones v. Diamond, 636 F.2d at 1382.

7. Time limitations imposed by the client or circumstances are not relevant to the fee calculation in this case.

8. This case involved significant constitutional principles having statewide impact. It helped to secure constitutional voting rights for a broad class of Mississippi voters and completely reorganized Mississippi’s system of legislative elections. That the relief sought and obtained by plaintiffs was nonpecuniary in nature is immaterial. See S.Rep.No.94-295, 94th Cong., 1st Sess. 41-42, reprinted in [1975] U.S.Code Cong. & Ad.News at 808.

9. The State of Mississippi concedes that plaintiffs’ counsel has extensive experience in civil rights litigation, enjoys an excellent reputation in his field, and is an exceptionally able attorney.

10. Because plaintiffs’ attorney specializes in litigation of this kind and is employed by an organization that routinely accepts this kind of employment, the undesirability of the case is not a factor in fixing an appropriate fee.

11. The nature and length of the professional relationship with the client is not relevant in this case.

12. Awards made in similar civil rights cases fall within the same range as those reflected in the opposing affidavits submitted in this case. See, e. g., Morrow v. Finch, 642 F.2d 823 (5th Cir. 1981) ($100/hour); Davis v. City of Abbeville, 633 F.2d 1161 (5th Cir. 1981) ($50/hour); Neely v. City of Grenada, 624 F.2d 547 (5th Cir. 1980) ($100/hour); Gates v. Collier, 616 F.2d 1268 (5th Cir. 1980) ($35/hour); Knighton v. Watkins, 616 F.2d 795 (5th Cir. 1980) ($50/hour); Rainey v. Jackson State College, 551 F.2d 672 (5th Cir. 1977) ($35/hour). However, fees charged in similarly complex federal cases, including antitrust and securities regulation, are higher than those sought here.

In accordance with the foregoing findings, the court assesses the plaintiffs’ attorney’s fees as follows:

March 14, 1973, to June 14, 1976,

427 hours at $50 per hour $21,350.00

June 15, 1976, to February 28,1977,

276 hours at $50 per hour 13,800.00

February 28, 1977, to May 31, 1979,

566.25 hours at $75 per hour 42,468.75

$77,618.75

In addition to attorney’s fees, the plaintiffs are entitled to recover the reasonable and necessary expenses incurred asserting their rights. See, e. g., Jones v. Diamond, 636 F.2d at 1382; Fairley v. Patterson, 493 F.2d 598, 606-07 (5th Cir. 1974). After considering the affidavits and testimony of plaintiffs’ attorney and the additional documentary evidence submitted in support of claimed litigation expenses, we find that the plaintiffs should be awarded the following expenses:

Travel, meals, lodging $ 2,226.70

Consultant fees 17,795.64

Express mail service 533.97

Supplies 96.19

Telephone '' 54.43

Typing reapportionment plan 282.80

Printing Supreme Court briefs 18,207.44

$39,197.17

Although the State has objected to numerous particular items of recovery, the record shows these objections to be without merit.

The State has filed a motion to review the clerk’s action taxing costs in the amount of $10,870.70 against the defendants pursuant to Fed.R.Civ.P. 54(d). The plaintiffs’ cost bill has been properly itemized and verified, and the defendants have not presented any countervailing proof either in the hearing held on plaintiffs’ motion or in pleadings before this court. The costs taxed against the defendants by the clerk are proper.

IV.

In conclusion, pursuant to 42 U.S.C. § 19731 (e) the court finds that the plaintiffs are entitled to recover their attorney’s fees and litigation expenses from the defendants, the Honorable William F. Winter, Governor of the State of Mississippi, the. Honorable Bill Allain, Attorney General of the State of Mississippi; and the Honorable Edwin L. Pittman, Secretary of State for the State of Mississippi, in their official capacities as the State Board of Election Commissioners and not individually, to be paid from public funds in the State Treasury, the sum of $116,815.92.

Court costs in the amount of $10,870.70 shall be taxed in the Bill of Costs pursuant to Rule 54(d), Fed.R.Civ.P.

Judgment will be entered in accordance with Fed.R.Civ.P. 58.

1 . In the amended complaint filed in 1975, plaintiffs also named as defendants the Lieutenant Governor, President Pro Tempore of the Senate, Speaker of the House, and Speaker Pro Tempore. The State of Mississippi now correctly, if belatedly, points out that the members of the state legislature enjoy absolute immunity from suit. Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951). See Supreme Court of Virginia v. Consumers Union of the United States, 446 U.S. 719, 100 S.Ct. 1967, 64 L.Ed.2d 641 (1980); Dombrowski v. Eastland, 387 U.S. 82, 87 S.Ct. 1425, 18 L.Ed.2d 577 (1967).

However, this action has always been directed primarily against the state executive officers charged with administering Mississippi’s election laws. Indeed, the final judgment entered by the court on April 13, 1979, ran only against the then members of the State Board of Election Commissioners and their subordinates. Connor v. Finch, 469 F.Supp. 693, 694 (S.D. Miss. 1979). Likewise, the judgment on this motion will only operate against the incumbent election commissioners in their official capacities.

2 . The State raises this argument now for the first time, after more than fifteen years of litigation. It has never filed a motion to substitute parties asserting that the Board was not amenable to suit or was unable to accord the relief sought.