Virginia Society v. Caldwell

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
VIRGINIA SOCIETY FOR HUMAN LIFE,
INCORPORATED; ANDREA SEXTON,
Plaintiffs-Appellants,
v.
DONALD S. CALDWELL, Attorney for
the Commonwealth of Virginia for
the City of Roanoke, in his official
capacity and as a representative of
the class of attorneys for the
No. 98-2565
Commonwealth of Virginia; PAMELA
M. CLARK, in her official capacity
as Chairman of the Virginia Board
of Elections; GEORGE M. HAMPTON,
SR., in his official capacity as Vice-
Chairman of the Virginia Board of
Elections; M. BRUCE MEADOWS, in
his official capacity as Secretary of
the Virginia Board of Elections,
Defendants-Appellees.
VIRGINIA SOCIETY FOR HUMAN LIFE,
INCORPORATED; ANDREA SEXTON,
Plaintiffs-Appellants,
v.
DONALD S. CALDWELL, Attorney for
the Commonwealth of Virginia for
the City of Roanoke, in his official
capacity and as a representative of
the class of attorneys for the
No. 99-1110
Commonwealth of Virginia; PAMELA
M. CLARK, in her official capacity
as Chairman of the Virginia Board
of Elections; GEORGE M. HAMPTON,
SR., in his official capacity as Vice-
Chairman of the Virginia Board of
Elections; M. BRUCE MEADOWS, in
his official capacity as Secretary of
the Virginia Board of Elections,
Defendants-Appellees.
Appeals from the United States District Court
for the Western District of Virginia, at Roanoke.
Samuel G. Wilson, Chief District Judge.
(CA-95-1042-R)
Argued: June 10, 1999
Decided: August 10, 1999
Before MURNAGHAN, WILKINS, and HAMILTON,
Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
2
COUNSEL
ARGUED: James Bopp, Jr., BOPP, COLESON & BOSTROM, Terre
Haute, Indiana, for Appellants. Alice Ann Berkebile, Assistant Attor-
ney General, Richmond, Virginia, for Appellees. ON BRIEF: James
R. Mason, III, BOPP, COLESON & BOSTROM, Terre Haute, Indi-
ana, for Appellants. Mark L. Earley, Attorney General of Virginia,
Richmond, Virginia, for Appellees.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Appellants, the Virginia Society for Human Life (VSHL) and
Andrea Sexton, appeal the district court's denial of their motions to
recover attorneys' fees and expenses under 42 U.S.C.§ 1988. For the
reasons that follow, we affirm.
I
VSHL is a non-profit organization whose stated purpose is to edu-
cate the general public about pro-life issues. To that end, VSHL peri-
odically prepares voter guides that do not expressly advocate the
election or defeat of any candidate but, rather, state the candidate's
views on public issues, so called "issue advocacy."
On October 2, 1995, VSHL and Andrea Sexton (hereinafter both
parties are simply referred to as VSHL) filed a complaint pursuant to
42 U.S.C. § 1983 against the Commonwealth of Virginia (Virginia)
in the United States District Court for the Western District of Vir-
ginia. See 28 U.S.C. §§ 1331, 1343(a). In its complaint, VSHL
alleged that Virginia Code Annotated §§ 24.2-908, 24.2-910, and
24.2-1014 (Michie 1995) (the 1995 Statutes), which are part of Vir-
3
ginia's Campaign Finance Disclosure Act, see Va. Code Ann.
§§ 24.2-900 through 24.2-930, and 24.2-1014 (Michie 1995) (the
Act), were unconstitutional on their face and as applied to VSHL.
The first of the 1995 Statutes challenged by VSHL, Virginia Code
Annotated § 24.2-908 (Michie 1995), required, with certain excep-
tions not relevant in this case, any person or political committee that
anticipated receiving "contributions" or making "expenditures" over
$100 to file a Statement of Organization.1 Id. Virginia Code Anno-
tated § 24.2-901(A) (Michie 1995) defined (1)"contribution" as any
"money and services of any amount, and any other thing of value over
$100, given, advanced, promised, loaned, or in any other way pro-
vided to a candidate, campaign committee, political committee, inau-
gural committee, or person for the purpose of influencing the outcome
of an election . . ."; (2) "expenditure" as any "money and services of
any amount, and any other thing of value over $100, paid, promised,
loaned, provided, or in any other way disbursed by any candidate,
campaign committee, political committee, inaugural committee, or
person for the purpose of influencing the outcome of an election
. . ."; (3) "person" as "any individual or corporation, partnership, busi-
ness, labor organization, membership organization, association, coop-
erative, or other like entity"; and (4) "political committee" as "any
state political party committee, congressional district political party
committee, county or city political party committee . . . , organized
political party group of elected officials, political action committee,
or other committee or group of persons which receives contributions
or makes expenditures for the purpose of influencing the outcome of
any election. . . ." Id.
The second of the 1995 Statutes challenged by VSHL, Virginia
Code Annotated § 24.2-910 (Michie 1995), required any person or
political committee required to file a Statement of Organization by
Virginia Annotated Code § 24.2-908 (Michie 1995) "to maintain
records and file disclosure reports." Va. Code Ann. § 24.2-910(A)
_________________________________________________________________
1 According to Virginia Code Annotated § 24.2-908 (Michie 1995), a
Statement of Organization was required to include, inter alia, "the name
and address of the person or committee"; "the area, scope, or jurisdiction
of the person or committee"; and the name and address of principal offi-
cers. See id.
4
(Michie 1995). Virginia Code Annotated § 24.2-910 (Michie 1995)
also required any person or political committee making "independent
expenditures" to
maintain records and report . . . all contributions received
and expenditures made of:
1. Any funds, in the aggregate, in excess of $500
for a statewide election or $100 for any other elec-
tion expended for the purpose of influencing the
outcome of any election;
2. Any funds in any amount expended to publish
or broadcast to the public any material referring to
a candidate by name, description, or other refer-
ence and (i) advocating his election or defeat, (ii)
setting forth his position on any public issue, vot-
ing record, or other official acts, or (iii) otherwise
designed to influence individuals to cast their
votes for or against him or to withhold their votes
from him; and
3. Any funds in any amount expended to publish
or broadcast to the public any material promoting
or opposing a question submitted to the voters in
a referendum.
Va. Code Ann. § 24.2-910(B) and (B)(1)-(3) (Michie 1995). Virginia
Code Annotated § 24.2-901(A) (Michie 1995) defined "independent
expenditure" as "an expenditure made by any person or political com-
mittee which is not made to, controlled by, coordinated with, or made
upon consultation with a candidate, his campaign committee, or an
agent of the candidate or his campaign committee." Id.
The third of the 1995 Statutes challenged by VSHL, Virginia Code
Annotated § 24.2-1014 (Michie 1995), required that certain "writ-
ing[s]," identify the "person responsible for it." Va. Code Ann. § 24.2-
1014(B) (Michie 1995). Virginia Code Annotated § 24.2-1014
(Michie 1995) defined "writing" as "printed or otherwise reproduced
5
statement[s] or advertisement[s]," Va. Code Ann. § 24.2-1014(A),
"concerning any potential nominee or candidate, or concerning any
question to be submitted to the voters . . .," Va. Code Ann. § 24.2-
1014(B). Virginia Code Annotated § 24.2-1014(B) (Michie 1995)
required the writing to contain: (1) the name of the candidate if the
writing was authorized by a candidate or his campaign committee, see
Va. Code Ann. § 24.2-1014(B)(1); (2) the name of the political party
committee if the writing was authorized by a political party commit-
tee, see Va. Code Ann. § 24.2-1014(B)(2); or (3) if the writing was
authorized by any person other than a candidate, his campaign com-
mittee, or a political party committee either: (a)"the full name of the
committee and a registration number provided by the State Board," if
the committee had filed a Statement of Organization under Virginia
Code Annotated § 24.2-908, Va. Code Ann. § 24.2-1014(B)(3)(a)
(Michie 1995); or (b) "the full name and residence of the individual
responsible for the writing," in any other case, Va. Code Ann. § 24.2-
1014(B)(3)(b) (Michie 1995).
According to VSHL, it filed suit in 1995 as it prepared to distribute
voter guides for the November 1995 Virginia state elections. VSHL
alleged that the 1995 Statutes were unconstitutional because statutes
similar to the 1995 Statutes had been held to constitute unconstitu-
tional prior restraints on issue advocacy groups. See McIntyre v. Ohio
Elections Comm'n, 514 U.S. 334, 357 (1995); Buckley v. Valeo, 424
U.S. 1, 78-80 (1976) (per curiam). VSHL sought a declaration from
the district court that, if the 1995 Statutes applied to issue advocacy
groups such as VSHL, the 1995 Statutes facially violated the First
Amendment to the United States Constitution under the United States
Supreme Court's decisions in Buckley and McIntyre. See Buckley, 424
U.S. at 78-80 (interpreting federal election laws that require the dis-
closure of expenditures to apply only to expenditures used expressly
to advocate the election or defeat of a clearly identified candidate,
thereby avoiding the First Amendment problems that would arise
from a reporting requirement that applied to funds expended on issue
advocacy); McIntyre, 514 U.S. at 357 (holding that an Ohio statute
prohibiting anonymous issue advocacy was an unconstitutional
abridgment of speech).
On the same day that VSHL filed its complaint, it filed a motion
for a preliminary injunction seeking to enjoin Virginia from enforcing
6
the 1995 Statutes. In response, Virginia contended that the 1995 Stat-
utes did not apply to issue advocacy groups such as VSHL and that
Virginia had no intention of attempting to enforce the 1995 Statutes
against VSHL and similar issue advocacy groups. Regardless, on
October 12, 1995, the district court, determining that substantial ques-
tions existed as to whether the 1995 Statutes applied to issue advo-
cacy groups such as VSHL, entered a temporary injunction enjoining
Virginia from enforcing, against VSHL, Virginia Code Annotated
§§ 24.2-908, 24.2-910, and 24.2-1014(B)(3)(b). See Fed. R. Civ. P.
65(b). The temporary injunction was converted into a preliminary
injunction on October 21, 1995. See Fed. R. Civ. P. 65(a). Because
the district court believed that the Supreme Court of Virginia could
construe Virginia Code Annotated §§ 24.2-908 and 24.2-910 nar-
rowly, the district court certified to the Supreme Court of Virginia the
question of whether Virginia Code Annotated #8E8E # 24.2-908 and 24.2-
910 were susceptible to a narrow construction that would preserve
their constitutionality. See Virginia Soc'y for Human Life, Inc. v.
Caldwell, 906 F. Supp. 1071, 1074-75 (W.D. Va. 1995). However,
the Supreme Court of Virginia declined to answer the certified ques-
tion submitted by the district court. See Virginia Soc'y for Human
Life, Inc. v. Caldwell, No. 95-2122 (Va. Jan. 18, 1996).
In 1996, approximately two months after the Supreme Court of
Virginia declined to answer the certified question submitted by the
district court, and before the district court reached a final determina-
tion on VSHL's § 1983 challenge to the 1995 Statutes, the Virginia
General Assembly amended the 1995 Statutes. See Va. Code Ann.
§§ 24.2-908, 24.2-910, 24.2-1014 (Michie 1997) (hereinafter referred
to as the Amended Statutes or as the 1996 Amendments to the 1995
Statutes). The Amended Statutes made several changes to Virginia
Code Annotated §§ 24.2-908, 24.2-910, and 24.2-1014 (Michie
1995).
First, Virginia Code Annotated § 24.2-908 (Michie 1995) was
amended to require only political committees (instead of persons and
political committees) that made expenditures over $200 in a calendar
year (instead of $100) to file a Statement of Organization.2 See Va.
_________________________________________________________________
2 The requirements of the Statement of Organization set forth in Vir-
ginia Code Annotated § 24.2-908 (Michie 1995) were amended to elimi-
nate any reference to "person." See Va. Code Ann. § 24.2-908 (Michie
1997).
7
Code Ann. § 24.2-908 (Michie 1997). Virginia Code Annotated
§ 24.2-908 (Michie 1995) was further amended to eliminate the
exceptions not relevant to this appeal. See Va. Code Ann. § 24.2-908(Michie 1997).
Second, Virginia Code Annotated § 24.2-910(A) was amended to
require only political committees (instead of persons or political com-
mittees) required to file a Statement of Organization to maintain
records and file disclosure reports. Virginia Code Annotated § 24.2-
910(B) (Michie 1995) was amended to require any person who was
not a political committee (instead of any person or political commit-
tee) making "independent expenditures, in the aggregate, in excess of
$500 for a statewide election or $200 [(instead of $100)] for any other
election," to "maintain records and report . .. all independent expendi-
tures" (instead of contributions received and expenditures made),
including those expended "for the purpose of influencing the outcome
of any election." Va. Code Ann. § 24.2-910(B) (Michie 1997). In
addition, the 1996 Amendments to the 1995 Statutes eliminated Vir-
ginia Code Annotated § 24.2-910(B)(3). See Va. Code Ann. § 24.2-
910(B) (Michie 1997).
Third, the Amended Statutes made two notable changes to Virginia
Code Annotated § 24.2-1014 (Michie 1995) that limited the scope of
"writing[s]" required to identify the"person responsible for it." Va.
Code Ann. § 24.2-1014(B) (Michie 1995). Specifically, Virginia
Code Annotated § 24.2-1014 (Michie 1997) limited the definition of
a "writing" required to identify the author to"printed or otherwise
reproduced statement[s] or advertisement[s] made for the purpose of
influencing the outcome of an election," (instead of printed or other-
wise reproduced statements or advertisements), Va. Code Ann.
§ 24.2-1014(A) (Michie 1997), and Virginia Code Annotated § 24.2-
1014(B) (Michie 1997) further limited the scope of a"writing"
required to identify the author to those writings"concerning any
clearly identified candidate" (instead of concerning any potential
nominee or candidate or concerning questions submitted to voters).
On July 12, 1996, VSHL filed an amended complaint under 42
U.S.C. § 1983 challenging the Amended Statutes. Notably, VSHL's
§ 1983 challenge to the Amended Statutes was identical to its § 1983
challenge to the 1995 Statutes. VSHL alleged that the Amended Stat-
8
utes were unconstitutional because statutes similar to the Amended
Statutes had been held to constitute unconstitutional prior restraints
on issue advocacy groups. VSHL sought a declaration from the dis-
trict court that, if the Amended Statutes applied to issue advocacy
groups such as VSHL, the Amended Statutes facially violated the
First Amendment to the United States Constitution under the Supreme
Court's decisions in Buckley and McIntyre. VSHL also sought a pre-
liminary injunction against Virginia's enforcement of the Amended
Statutes as applied to VSHL.3
On February 19, 1997, the district court, after choosing to narrowly
construe the Amended Statutes to save their constitutionality under
Buckley, 424 U.S. at 78-80, determined that the Amended Statutes
were limited to express candidate advocacy and, therefore, did not
apply to issue advocacy. Accordingly, the district court held that
VSHL, an issue advocacy group, was without standing to challenge
the Amended Statutes because the Amended Statutes did not apply to
it. Therefore, the district court dismissed VSHL's amended § 1983
complaint for lack of standing.
On March 3, 1997, VSHL appealed the district court's dismissal of
its amended § 1983 complaint for lack of standing to this court. This
court certified to the Supreme Court of Virginia the question of
whether the Amended Statutes were susceptible to a narrow construc-
tion that removed groups engaged solely in issue advocacy from
reach. Virginia Soc'y for Human Life, Inc. v. Caldwell, 152 F.3d 268,
272 (4th Cir. 1998). On June 5, 1998, the Supreme Court of Virginia
construed the provisions as not applying to issue advocacy. See
Virginia Soc'y for Human Life, Inc. v. Caldwell, 500 S.E.2d 814, 818
(Va. 1998).
Specifically, the Supreme Court of Virginia narrowly construed the
phrase "for the purpose of influencing the outcome of an election," as
used in the Virginia Code Annotated §§ 24.2-901, 24.2-908, 24.2-
910, and 24.2-1014 (Michie 1997), as not applying to individuals or
_________________________________________________________________
3 At this point, the preliminary injunction entered by the district court
enjoining Virginia from enforcing the 1995 Statutes became moot inas-
much as VSHL's § 1983 challenge shifted from the 1995 Statutes to the
Amended Statutes.
9
groups that engage solely in issue advocacy. Caldwell, 500 S.E.2d at
816-18. The Supreme Court stated:
The parties do not dispute, and it is readily apparent, that
absent a narrowing construction of the phrase "for the pur-
pose of influencing the outcome of an election" as used by
the General Assembly in the statutes in question, these stat-
utes would apply to individuals and groups that engage
solely in issue advocacy, and, thus, would be unconstitution-
ally overbroad. However, a narrowing construction is rea-
sonable because it is consistent with the manner in which
the United States Supreme Court construed very similar fed-
eral election statutes in Buckley. Moreover, a narrowing
construction avoids a constitutional infirmity and is consis-
tent with the legislative intent that we are able to determine
from the words used by the General Assembly under the cir-
cumstances existing at the time these statutes were enacted
or amended.
Each of the statutes in question has either been enacted or
amended subsequent to the decision in Buckley . Without
question, the General Assembly is presumed to have knowl-
edge of decisions of the United States Supreme Court on
constitutional issues that bind actions of the states when
enacting statutes that potentially invoke such issues.
Accordingly, here the General Assembly is presumed to
have had knowledge that the Buckley decision narrowly con-
strued the phrase "for the purpose of influencing" as used in
federal election laws to apply only to expenditures used to
advocate the election or defeat of a clearly identified candi-
date and, thus, to exclude groups that engage solely in issue
advocacy. Similarly, that presumption of knowledge extends
to the more recent McIntyre decision that a state statute can-
not constitutionally prohibit anonymous issue advocacy by
groups that engage solely in issue advocacy.
Additionally, the General Assembly, when amending a stat-
ute, is presumed to have knowledge of the Attorney Gener-
al's interpretation of that statute in its existing form. See Lee
Gardens Arlington Limited Partnership v. Arlington County
10
Board, 250 Va. 534, 540, 463 S.E.2d 646, 649 (1995). In
1995, the Attorney General, in response to an inquiry con-
cerning the constitutionality of Code § 24.2-1014 in light of
the McIntyre decision, issued a formal opinion, consistent
with prior opinions on related issues, expressly construing
the phrase "for the purpose of influencing" as having the
same definition as that adopted in Buckley. See 1995 Op.
Va. Att'y Gen. 170.
In light of the General Assembly's knowledge of the opin-
ions in Buckley and McIntyre and the Attorney General's
opinion adopting a narrowing construction of the broad
sweep of the phrase "for the purpose of influencing" at the
time the General Assembly enacted or amended the statutes
in question, we conclude that the General Assembly
intended to limit that phrase and related phrases so as to
have no application to individuals or groups that engage
solely in issue advocacy and that do not expressly advocate
the election or defeat of a clearly identified candidate.
Caldwell, 500 S.E.2d at 817.
The Supreme Court of Virginia then considered the effect of this
narrowing construction on each of the statutes in question. See id. at
817-18. First, the Supreme Court of Virginia noted the various terms
used throughout the Act that contained the phrase"for the purpose of
influencing the outcome of an election":
"Contribution" is defined as "money . . . given . . . for the
purpose of influencing the outcome of an election" and "Ex-
penditure is defined as "money" . . . paid . .. for the purpose
of influencing the outcome of an election." "Independent
expenditure" is defined as "an expenditure made by any per-
son or political committee which is not made to . . . a candi-
date" or generally on behalf of a candidate."Political
committee" is defined as a "person or group of persons
which receives contributions or makes expenditures for the
purpose of influencing the outcome of an election."
Caldwell, 500 S.E.2d at 817-18 (quoting Va. Code Ann. § 24.2-
901(A) (Michie 1997)). The Supreme Court of Virginia then applied
11
these definitions to Virginia Code Annotated §§ 24.2-908, 24.2-910,
and 24.2-1014 (Michie 1997):
As narrowly construed, a group that engages solely in issue
advocacy and does not receive "contributions" or make "ex-
penditures" to expressly advocate the election or defeat of
a clearly identified candidate is not a "political committee"
as defined in Code § 24.2-901(A), and, consequently, is not
included in the mandate of Code § 24.2-908. The same
rationale applies to the provisions of Code § 24.2-910(B)
that require any group that "is not a political committee and
who makes independent expenditures" to report these
expenditures to the State Board of Elections. An"indepen-
dent expenditure" contemplated by this section and as
defined in Code § 24.2-901(A) excludes expenditures made
solely for issue advocacy. Similarly, Code § 24.2-1014,
when narrowly construed in this manner, requires identifica-
tion of authorship only on writings "made for the purpose of
influencing the outcome of an election for public office" and
excludes writings that are limited to issue advocacy.
Caldwell, 500 S.E.2d at 818.
Due to the answer received from the Supreme Court of Virginia,
this court affirmed the district court's dismissal of VSHL's amended
§ 1983 complaint for lack of standing. See Caldwell, 152 F.3d at 274.
Following the resolution of the appeal, VSHL filed motions in both
this court and the district court seeking to recover its attorneys' fees
and expenses pursuant to 42 U.S.C. § 1988. This court referred
VSHL's request for appellate attorneys' fees to the district court for
its consideration in the first instance. In its motions for both trial and
appellate attorneys' fees, VSHL argued that it was a"prevailing
party" under 42 U.S.C. § 1988 because: (1) the preliminary injunction
against the enforcement of the 1995 Statutes was a final determination
on the merits of its § 1983 challenge to the 1995 Statutes, and, thus,
at a minimum, entitled it to attorneys' fees on its§ 1983 challenge to
the 1995 Statutes; (2) the Supreme Court of Virginia's narrow con-
struction of the Amended Statutes as not applying to issue advocacy
groups was comparable to a final determination of its § 1983 chal-
12
lenge to the Amended Statutes; and (3) its litigation against Virginia
was the "catalyst" that prompted the Virginia General Assembly's
1996 Amendments to the 1995 Statutes and the Supreme Court of
Virginia's narrow construction of the Amended Statutes as not apply-
ing to issue advocacy groups.
On September 24, 1998, the district court denied VSHL's request
for attorneys' fees and expenses associated with the proceedings in
the district court because VSHL was not a prevailing party under 42
U.S.C. § 1988. Specifically, the district court rejected VSHL's argu-
ment that it was a prevailing party in its § 1983 challenge to the 1995
Statutes because the issuance of the preliminary injunction against
enforcement of the 1995 Statutes was a final determination on the
merits of its § 1983 challenge to the 1995 Statutes. The district court
determined that the preliminary injunction "was not a `final disposi-
tion'" of VSHL's § 1983 challenge to the 1995 Statutes; rather, "[t]he
final disposition in the case was a dismissal for lack of standing."
(J.A. 236). Next, the district court determined that the Virginia
Supreme Court's narrow construction of the Amended Statutes as not
applying to issue advocacy groups did not provide VSHL with a final
enforceable judgment against Virginia, and, thus, VSHL was not a
prevailing party under 42 U.S.C. § 1988. Finally, the district court
determined that VSHL could not obtain prevailing party status under
42 U.S.C. § 1988 by relying on a theory that its litigation against Vir-
ginia was the catalyst for the Virginia General Assembly's 1996
Amendments to the 1995 Statutes and the Virginia Supreme Court's
narrow construction of the Amended Statutes as not applying to issue
advocacy groups. The district court concluded that reliance on a "cat-
alyst theory" was foreclosed by the Fourth Circuit's decision in S-1
and S-2 v. State Board of Education, 21 F.3d 49 (4th Cir. 1994) (en
banc) (per curiam) (vacating S-1 and S-2 v. State Board of Education,
6 F.3d 160 (4th Cir. 1993), and adopting Judge Wilkinson's dissent-
ing opinion reported at 6 F.3d at 168-72), which rejected such a the-
ory as a basis for obtaining prevailing party status under 42 U.S.C.
§ 1988. See S-1 and S-2, 21 F.3d at 51.
On December 21, 1998, the district court denied VSHL's request
for attorneys' fees and expenses associated with the appellate pro-
ceedings before this court. VSHL noticed a timely appeal from both
decisions of the district court. The two decisions of the district court
13
were consolidated for appeal by an order of this court dated January
25, 1999.
On appeal, VSHL contends that it was a prevailing party under 42
U.S.C. § 1988 because: (1) the preliminary injunction against the
enforcement of the 1995 Statutes was a final determination on the
merits of its § 1983 challenge to the 1995 Statutes, and, thus, at a
minimum, entitled it to attorneys' fees on its § 1983 challenge to the
1995 Statutes; (2) the Supreme Court of Virginia's narrow construc-
tion of the Amended Statutes as not applying to issue advocacy
groups was comparable to a final determination of its § 1983 chal-
lenge to the Amended Statutes; and (3) its litigation against Virginia
was the catalyst that prompted the Virginia General Assembly's 1996
Amendments to the 1995 Statutes and the Supreme Court of Virgin-
ia's narrow construction of the Amended Statutes as not applying to
issue advocacy groups.
II
Section 1988 of Title 42 of the United States Code provides, in rel-
evant part: "In any action or proceeding to enforce a provision of . . .
[§] 1983 . . . of this title, . . . the court, in its discretion, may allow
the prevailing party, other than the United States, a reasonable attor-
ney's fee as part of the costs." 42 U.S.C. § 1988(b). If the district
court denies a prevailing party attorneys' fees, we review such a
denial for an abuse of discretion. See McDonnell v. Miller Oil Co.,
134 F.3d 638, 640 (4th Cir. 1998). However, if the district court
determines, as a matter of law, that a party is not a prevailing party
under 42 U.S.C. § 1988, we review the district court's determination
de novo. See Shaw v. Hunt, 154 F.3d 161, 164 (4th Cir. 1998).
Because the district court in this case determined, as a matter of law,
that VSHL was not a prevailing party under 42 U.S.C.§ 1988, we
review the district court's determination de novo. See id.
The Supreme Court held in Farrar v. Hobby, 506 U.S. 103 (1992),
that a plaintiff can obtain prevailing party status under 42 U.S.C.
§ 1988 only when the plaintiff obtains"an enforceable judgment . . .
or comparable relief through a consent decree or settlement." Farrar,
506 U.S. at 111. The Supreme Court explained, "Only under these cir-
cumstances can civil rights litigation effect `the material alteration of
14
the legal relationship of the parties' and thereby transform the plain-
tiff into a prevailing party." Id. (quoting Texas State Teachers Ass'n
v. Garland Indep. Sch. Dist., 489 U.S. 782, 792-93 (1989)).
Sitting en banc, a majority of this court in S-1 and S-2 examined
Farrar and concluded that in order for a plaintiff to obtain prevailing
party status under 42 U.S.C. § 1988, there would have to be a "mate-
rial alteration of the legal relationship between the parties" as mani-
fested by whether the plaintiff was entitled to enforce "a judgment,
consent degree, or settlement against the defendant." S-1 and S-2, 6
F.3d at 168-69 (Wilkinson, J., dissenting) (adopted by the majority in
S-1 and S-2, 21 F.3d at 51).
Obviously, if a plaintiff's case is dismissed, for example, for lack
of standing, before a final enforceable judgment, settlement, or con-
sent decree, the plaintiff will not be able to obtain prevailing party
status under 42 U.S.C. § 1988. See Shaw , 154 F.3d at 166 (stating that
"a plaintiff without standing will not be able to recover fees . . .
because the possession of Article III standing is interwoven into the
very concept of plaintiff status") (emphasis in original). Thus, if a
plaintiff is granted a preliminary injunction against the defendant's
alleged unlawful conduct, but the plaintiff's case is ultimately dis-
missed without a decision on the merits, the grant of the preliminary
injunction is not in and of itself relief entitling a plaintiff to prevailing
party status under 42 U.S.C. § 1988. See Smith v. University of N.C.,
632 F.2d 316, 346-52 (4th Cir. 1980) (holding that a party who
obtains a preliminary injunction preserving the status quo based upon
the probability of success on the merits but ultimately fails on the
merits cannot obtain prevailing party status under 42 U.S.C. § 1988).
However, a plaintiff that has received a preliminary injunction against
the defendant's alleged unlawful conduct may obtain prevailing party
status under 42 U.S.C. § 1988 without obtaining a favorable final
judgment following a full trial on the merits of its claim. See S-1 and
S-2, 6 F.3d at 172 n.3 (adopted by the majority in S-1 and S-2 v. State
Bd. of Educ., 21 F.3d 49 (4th Cir. 1994)). "[W]hen a plaintiff is suc-
cessful in obtaining a preliminary injunction based on its probability
of success, the defendant's voluntary cessation of unlawful conduct
need not deprive the plaintiff of prevailing status." Id. (emphasis in
original) (hereinafter referred to as footnote three of S-1 and S-2).
Thus, a plaintiff may obtain prevailing party status under 42 U.S.C.
15
§ 1988 without obtaining a favorable final judgment in its challenge
to a defendant's alleged unlawful conduct if the plaintiff shows that
it obtained a preliminary injunction based upon the probability of suc-
cess on the merits and, further, that the defendant voluntarily ceased
unlawful conduct in response to the plaintiff's litigation against the
defendant. See id. The plaintiff must show that it was unable to
achieve a final determination on the merits of its challenge to the
defendant's alleged unlawful conduct because the defendant voluntar-
ily ceased unlawful conduct in response to the plaintiff's litigation
against the defendant, thereby depriving the plaintiff of its opportu-
nity to obtain a final determination on the merits. See id. This view
is consistent with other circuits' viewpoints on this issue. See, e.g.,
National Black Police Ass'n v. District of Columbia Bd. of Elections
& Ethics, 168 F.3d 525, 527-29 (D.C. Cir. 1999) (allowing plaintiffs,
who had obtained an injunction pursuant to their 42 U.S.C. § 1983challenge to defendant's alleged unlawful conduct, to obtain prevail-
ing party status under 42 U.S.C. § 1988 even though subsequent legis-
lation mooted plaintiffs' § 1983 challenge because the injunction
altered the legal relationship between the parties); Haley v. Pataki,
106 F.3d 478, 483-84 (2d Cir. 1997) (allowing plaintiffs, who had
obtained a preliminary injunction pursuant to their 42 U.S.C. § 1983challenge to defendant's alleged unlawful conduct, to obtain prevail-
ing party status even though defendant's subsequent compliance with
the injunction and passage of legislation mooted plaintiffs' § 1983
challenge because the injunction was a determination on the merits);
see also Maloney v. Marietta, 822 F.2d 1023, 1024 (11th Cir. 1987)
(preliminary injunction in voting rights case vacated as moot follow-
ing voluntary compliance by defendants; fees properly awarded to
plaintiffs as prevailing parties); Taylor v. Ft. Lauderdale, 810 F.2d
1551, 1558 (11th Cir. 1987) (same, where City passed mooting ordi-
nance following entry of preliminary injunction); Williams v. Alioto,
625 F.2d 845, 847-48 (9th Cir. 1980) (same, where police voluntarily
ceased enjoined conduct while preliminary injunction on appeal).
A
VSHL contends that it was a prevailing party under 42 U.S.C.
§ 1988 because the preliminary injunction against the enforcement of
the 1995 Statutes was a final determination on the merits of its § 1983
challenge to the 1995 Statutes, and thus, at a minimum, entitled it to
16
attorneys' fees on its § 1983 challenge to the 1995 Statutes. We dis-
agree.
As noted above, a plaintiff that has received a preliminary injunc-
tion against the defendant's alleged unlawful conduct may obtain pre-
vailing party status under 42 U.S.C. § 1988 without obtaining a
favorable final judgment following a full trial on the merits of its
claim. See S-1 and S-2, 6 F.3d at 172 n.3 (adopted by the majority in
S-1 and S-2 v. State Bd. of Educ., 21 F.3d 49 (4th Cir. 1994)). To
obtain prevailing party status, the plaintiff must show that it was
unable to achieve a final determination on the merits of its challenge
to the defendant's alleged unlawful conduct because the defendant
voluntarily ceased unlawful conduct in response to the plaintiff's liti-
gation against the defendant, thereby depriving the plaintiff of its
opportunity to obtain a final determination on the merits. See id.Unfortunately for VSHL, it has failed to show that the 1996 Amend-
ments to the 1995 Statutes were a voluntary cessation of unlawful
conduct made in response to VSHL's litigation against Virginia.
First, Virginia Code Annotated § 24.2-908 (Michie 1995) was
amended to require only political committees (instead of persons and
political committees) that made expenditures over $200 in a calendar
year (instead of $100) to file a Statement of Organization. However,
the fact that Virginia Code Annotated § 24.2-908 (Michie 1995) was
amended to change the expenditure amount to $200 in a calendar year
and to eliminate persons making such expenditures did not amount to
a voluntary cessation of unlawful conduct in response to VSHL's liti-
gation against Virginia. The Supreme Court of Virginia concluded
that the Virginia General Assembly amended Virginia Code Anno-
tated § 24.2-908 (Michie 1995) in response to Buckley and McIntyre.
Further, VSHL has offered insufficient evidence that such changes
were made in response to its litigation.
Second, Virginia Code Annotated § 24.2-910(A) was amended to
require only political committees (instead of persons or political com-
mittees) required to file a Statement of Organization to maintain
records and file disclosure reports. Virginia Code Annotated § 24.2-
910(B) (Michie 1995) was amended to require any person who was
not a political committee (instead of any person or political commit-
tee) making "independent expenditures, in the aggregate, in excess of
17
$500 for a statewide election or $200 [(instead of $100)] for any other
election," to "maintain records and report . .. all independent expendi-
tures" (instead of contributions received and expenditures made),
including those expended "for the purpose of influencing the outcome
of any election." In addition, the 1996 Amendments to the 1995 Stat-
utes eliminated Virginia Code Annotated § 24.2-910(B)(3). The fact
that Virginia Code Annotated § 24.2-910(A) was amended to require
only political committees required to file a Statement of Organization
to maintain records and file disclosure reports, and the fact that Vir-
ginia Code Annotated § 24.2-910(B) (Michie 1995) was amended to
cover only persons who were not political committees and only
expenditures over $200 and was amended to eliminate Virginia Code
Annotated § 24.2-910(B)(3), did not amount to a voluntary cessation
of unlawful conduct in response to VSHL's litigation against Vir-
ginia. The Supreme Court of Virginia concluded that the Virginia
General Assembly amended Virginia Code Annotated§ 24.2-910
(Michie 1995) in response to Buckley and McIntyre. Further, VSHL
has offered insufficient evidence that such changes were made in
response to its litigation.4
With regard to Virginia Code Annotated § 24.2-1014 (Michie
1995), the Amended Statutes made two notable changes that limited
the scope of "writing[s]" required to identify the "person responsible
for it." Va. Code Ann. § 24.2-1014(B) (Michie 1995). Specifically,
Virginia Code Annotated § 24.2-1014 (Michie 1997) limited the defi-
nition of a "writing" required to identify the author to "printed or oth-
erwise reproduced statements or advertisements made for the purpose
_________________________________________________________________
4 Furthermore, there is nothing to suggest that the Supreme Court of
Virginia would have construed Virginia Code Annotated §§ 24.2-908
and 24.2-910 (Michie 1995) in a manner inconsistent with its interpreta-
tion of Virginia Code Annotated §§ 24.2-908 and 24.2-910 (Michie
1997). The Supreme Court of Virginia construed the phrase "for the pur-
pose of influencing the outcome of any election," used in Virginia Code
Annotated §§ 24.2-908 and 24.2-910(B) (Michie 1997), as not applying
to issue advocacy. See Caldwell, 500 S.E.2d at 816-18. Virginia Code
Annotated §§ 24.2-908 and 24.2-910 (Michie 1995) were also tied to the
phrase "for the purpose of influencing the outcome of any election."
Thus, VSHL has also failed to show that Virginia Code Annotated
§§ 24.2-908 and 24.2-910 (Michie 1995) were unlawful.
18
of influencing the outcome of an election," (instead of printed or oth-
erwise reproduced statements or advertisements), Va. Code Ann.
§ 24.2-1014(A) (Michie 1997), and Virginia Code Annotated § 24.2-
1014(B) (Michie 1997) further limited the scope of a"writing"
required to identify the author to those writings"concerning any
clearly identified candidate" (instead of concerning any potential
nominee or candidate or concerning questions submitted to voters).
However, VSHL has not proven that this change was made in
response to VSHL's litigation against Virginia.
Virginia Code Annotated § 24.2-1014 (Michie 1995) was enacted
prior to the Supreme Court's decision in McIntyre, which was decided
on April 19, 1995. On July 13, 1995, the Attorney General of Vir-
ginia, "in response to an inquiry concerning the constitutionality of
. . . § 24.2-1014 in light of the McIntyre decision . . .," Caldwell, 152
F.3d at 273 (quoting Caldwell, 500 S.E.2d at 817), issued a formal
opinion stating that "in light of McIntyre , the provision in § 24.2-
1014[ ], requiring the identification of all persons responsible for
writings `concerning any question to be submitted to the voters'
would not survive constitutional challenge." 1995 Op. Va. Att'y Gen.
172 (quoting Va. Code Ann. § 24.2-1014 (Michie 1995)). Conse-
quently, in 1996, the Virginia General Assembly amended Virginia
Code Annotated § 24.2-1014 (Michie 1995) to comply with McIntyre.
As the Supreme Court of Virginia explained:
Without question, the General Assembly is presumed to
have knowledge of decisions of the United States Supreme
Court on constitutional issues that bind actions of the states
when enacting statutes that potentially invoke such issues.
Accordingly, here the . . . presumption of knowledge
extends to the more recent McIntyre decision that a state
statute cannot constitutionally prohibit anonymous issue
advocacy by groups that engage solely in issue advocacy.
Additionally, the General Assembly, when amending a stat-
ute, is presumed to have knowledge of the Attorney Gener-
al's interpretation of that statute in its existing form. See Lee
Gardens Arlington Limited Partnership v. Arlington County
Board, 250 Va. 534, 540, 463 S.E.2d 646, 649 (1995). . . .
19
In light of the General Assembly's knowledge of the opin-
ions in Buckley and McIntyre and the Attorney General's
opinion adopting a narrowing construction of the broad
sweep of the phrase "for the purpose of influencing" at the
time the General Assembly enacted or amended the statutes
in question, we conclude that the General Assembly
intended to limit that phrase and related phrases so as to
have no application to individuals or groups that engage
solely in issue advocacy and that do not expressly advocate
the election or defeat of a clearly identified candidate.
Caldwell, 500 S.E.2d at 817. Thus, it is clear that the 1996 Amend-
ments to the 1995 Statutes were made in response to McIntyre and the
Virginia Attorney General's opinion interpreting Virginia Code
Annotated § 24-2.1014 (Michie 1995) in light of McIntyre. Further-
more, VSHL has not brought forth sufficient evidence that proves that
the 1996 Amendments to Virginia Code Annotated § 24.2-1014 were
made in response to its litigation against Virginia.
In sum, given the fact that VSHL has not demonstrated that the
Virginia General Assembly's 1996 Amendments to the 1995 Statutes
constituted a voluntary cessation of unlawful conduct made in
response to its litigation against Virginia, VSHL is not entitled to pre-
vailing party status under 42 U.S.C. § 1988, even though VSHL
obtained a preliminary injunction against the enforcement of the 1995
Statutes.
B
VSHL also contends that it was entitled to prevailing party status
under 42 U.S.C. § 1988 because the Supreme Court of Virginia's nar-
row construction of the Amended Statutes as not applying to issue
advocacy groups, in response to this court's certification of such
question, was comparable to a final judgment on the merits of its
claim. We disagree.
The Supreme Court has never intimated that we are to look to a
state supreme court's construction of a statute to determine whether
a plaintiff obtained prevailing party status under 42 U.S.C. § 1988 in
its § 1983 challenge. In fact, in Farrar , the Supreme Court stated that
20
"a judicial pronouncement . . . unaccompanied by an enforceable
judgment on the merits, does not render the plaintiff a prevailing
party." Farrar, 506 U.S. at 112. The Supreme Court in Farrar further
stated, "Of itself, `the moral satisfaction[that] results from any favor-
able statement of law' cannot bestow prevailing party status." Id.(quoting Hewitt v. Helms, 482 U.S. 755, 762 (1987)).
Thus, the question is not whether the Supreme Court of Virginia's
construction of the Amended Statutes entitled VSHL to prevailing
party status, but whether VSHL prevailed in its§ 1983 action. See
Farrar, 506 U.S. at 112. Clearly, VSHL did not. As noted previously,
VSHL's § 1983 action was dismissed for lack of standing.
C
Finally, VSHL contends that it was a prevailing party under 42
U.S.C. § 1988, pursuant to a catalyst theory. Under VSHL's catalyst
theory, it claims that it obtained prevailing party status under 42
U.S.C. § 1988 because its litigation against Virginia was the catalyst
for post-litigation changes in Virginia's conduct, namely: (1) the Vir-
ginia General Assembly's 1996 Amendments to the 1995 Statutes;
and (2) the Supreme Court of Virginia's narrow construction of the
Amended Statutes as not applying to issue advocacy groups such as
VSHL.
On appeal, VSHL concedes, as it must, that our en banc decision
in S-1 and S-2 forecloses reliance on a catalyst theory to establish pre-
vailing party status under 42 U.S.C. § 1988. In S-1 and S-2, sitting en
banc, a majority of this court interpreted Farrar to preclude reliance
on a catalyst theory for obtaining prevailing party status under 42
U.S.C. § 1988. See S-1 and S-2, 21 F.3d at 51. The court concluded,
"There is no way . . . that Farrar and a broad `catalyst theory' of
attorneys' fees recovery can be reconciled." S-1 and S-2, 6 F.3d at
168-69 (Wilkinson, J., dissenting) (adopted by the majority in S-1 and
S-2, 21 F.3d at 51). Rather, the court concluded that in order for a
plaintiff to obtain prevailing party status, entitling it to recover attor-
neys' fees under 42 U.S.C. § 1988, there would have to be a "material
alteration of the legal relationship between the parties" as manifested
by whether the plaintiff was entitled to enforce"a judgment, consent
degree, or settlement against the defendant." S-1 and S-2, 6 F.3d at
21
168-69 (Wilkinson, J., dissenting) (adopted by the majority in S-1 and
S-2, 21 F.3d at 51). This court's decision in S-1 and S-2 forecloses
VSHL from relying on a catalyst theory to obtain prevailing party sta-
tus under 42 U.S.C. § 1988. See S-1 and S-2, 21 F.3d at 51. We can-
not overrule this court's en banc decision in S-1 and S-2. See
Etheridge v. Norfolk & Western Ry. Co., 9 F.3d 1087, 1090 (4th Cir.
1993). Accordingly, VSHL's argument that it was a prevailing party
under 42 U.S.C. § 1983, pursuant to a catalyst theory is without merit.
III
Because VSHL's § 1983 claim was dismissed for lack of standing
without VSHL obtaining a final enforceable judgment in its § 1983
challenge to the Amended Statutes, and because VSHL has not dem-
onstrated that Virginia voluntarily ceased unlawful conduct in
response to its § 1983 challenge to the 1995 Statutes, VSHL was not
a prevailing party under 42 U.S.C. § 1988. Accordingly, we affirm the
district court's denial of VSHL's motions to recover attorneys' fees
and expenses under 42 U.S.C. § 1988.
AFFIRMED
22