Harper, Ron v. City Chicago Heights

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 98-2785, 98-2811, 98-2899, 98-3004,
98-3051, 98-3075, 99-2007, 99-2008,
00-1503, 00-1515/1
Ron Harper, Kevin Perkins, William Elliot,
and Robert McCoy,
Plaintiffs-Appellees, Cross-Appellants,
v.
City of Chicago Heights and the Chicago Heights
Election Commission,
Defendants-Appellants, Cross-Appellees,
Ron Harper, Kevin Perkins, William Elliot,
and Robert McCoy,
Plaintiffs-Appellees, Cross-Appellants,
v.
Chicago Heights Park District,
Defendant-Appellant, Cross-Appellee,
and
David Orr, Cook County Clerk,
Defendant-Appellee.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
Nos. 87 C 5112 & 88 C 9800--David H. Coar, Judge.
Argued April 6, 1999--Decided July 27, 2000
Before Kanne, Diane P. Wood, and Evans, Circuit
Judges.
Diane P. Wood, Circuit Judge. The wheels of
justice have turned slowly in this voting rights
case, which began more than a decade ago and
continues to accrete new appeals almost by the
month. The finding of a violation of Section 2 of
the Voting Rights Act of 1965, 42 U.S.C. sec.
1971 et seq., has long since been established.
Part of the case before us concerns the remedy
for that violation. The district court issued an
opinion on May 28, 1998, in which it ordered the
implementation of a new election method that
relies on cumulative voting. The rest of the many
appeals consolidated with the case, up to and
including those filed in the early spring of the
year 2000, concern attorneys’ fees. With respect
to the remedy, we have reluctantly concluded that
the district court moved too quickly in its
understandable desire to put this case to rest.
We therefore must reverse and remand. This in
turn leads us to affirm in part and reverse in
part the district court’s grant of attorneys’
fees and expenses.
I
The facts and procedural history of this case
are set forth in detail in previous opinions. See
Harper v. City of Chicago Heights, 824 F. Supp.
786 (N.D. Ill. 1993); Perkins v. City of Chicago
Heights, 47 F.3d 212 (7th Cir. 1995); Harper v.
City of Chicago Heights, 1997 WL 102543 (N.D.
Ill. March 5, 1997). To summarize, in 1987 Ron
Harper, Kevin Perkins, William Elliot, and Robert
McCoy ("the Class") filed a class action against
the City of Chicago Heights ("the City"),
alleging that the at-large election method used
to elect representatives to the City Council
diluted the voting strength of African-Americans
in violation of Section 2. In 1988, the Class
filed an almost identical suit against the
Chicago Heights Park District ("the Park
District") aimed at changing the at-large
election method used to select the Park District
Board. (Although the Chicago Heights Election
Commission and the Clerk of Cook County were also
named as nominal defendants, these cases have
been defended by the City and the Park District.)
The district court ultimately consolidated the
claims and certified the Class.
The Class wanted the court to order the
replacement of the at-large voting systems with
single-member districts and to award it
attorneys’ fees and costs. In February 1989, all
parties moved for summary judgment. District
Judge Nordberg denied the defendants’ motion and
granted in part and denied in part the Class’s
motion. He held that the Class had proven the
three "Gingles" factors, see Thornburg v.
Gingles, 478 U.S. 30 (1986), that are threshold
requirements to a Section 2 vote dilution
claim./2 See Harper, 824 F. Supp. at 792-93.
However, he concluded that genuine issues of
material fact remained with regard to the second
step to proving a vote dilution claim, the so-
called "Senate Report Factors," see S. Rep. No.
417, 97th Cong., 2d Sess. 2, 28-29 (1982)./3 The
cases were then reassigned to District Judge Will
for trial.
Judge Will conducted pretrial mediation, and a
consent decree resulted. The decree abandoned the
at-large election method and created a new system
of government for both the City and the Park
District. The new plan called for six single-
member districts for the election of six City
Council members and six park board commissioners,
with a mayor and a park board president elected
at large. Three of the districts would be
majority white, two would be majority African-
American, and one would have a majority
population of African-American and Hispanic
residents of voting age. The consent decree plan
was based on the "strong mayor" form of
government authorized by the Illinois Municipal
Code, and it replaced a "commission" form of
government. (The Code allows Illinois cities to
select among several acceptable forms of
government. The "aldermanic" form is the basic
form, see 65 ILCS 5/3.1, but cities may expand
upon the aldermanic form by adopting the
"commission," see 65 ILCS 5/4 et seq.,
"managerial," see 65 ILCS 5/5 et seq., or "strong
mayor," see 65 ILCS 5/6 et seq., forms. Cities
may normally adopt, alter, or repeal a form of
government only through a referendum. Ill. Const.
art. VII, sec. 6(f).)
In a development that would later prove
problematic, the consent decree plan departed
from the statutory "strong mayor" form in several
respects. First, instead of five wards with two
aldermen each, the decree called for six wards
with one alderman each. Moreover, the mayor was
authorized to appoint a city clerk and treasurer
(persons usually elected at large), as well as
administrative assistants and a budget and
finance director (positions usually reserved for
cities larger than Chicago Heights). The consent
decree plan also modified the statutorily defined
form of government for Illinois Park Districts.
See 70 ILCS 1205/1-1 et seq. Rather than five
commissioners elected at large, the decree called
for six commissioners, one to be elected from
each ward.
Judge Will approved the consent decree over the
objections of Kevin Perkins and Robert McCoy
("the Individual Plaintiffs"), who had by this
time split from their fellow class
representatives. Perkins and McCoy thus appealed
from the order entering the consent decree (with
Harper, Elliott, the City, the Park District, and
certain nominal defendants listed as appellees).
See Perkins, 47 F.3d 212. This court found merit
in their challenge and held that the district
court should not have approved a consent decree
that overrides state law without making "properly
supported findings that such a remedy is
necessary to rectify a violation of federal law."
Id. at 216 (emphasis removed). Absent a finding
of a violation of federal law, a municipality may
modify a statutorily prescribed form of
government only through a referendum. We vacated
the entire decree and remanded for further
proceedings.
By the time the decision in Perkins was handed
down (February 7, 1995), the City’s 1995 general
election was approaching. Judge Will ordered that
the election should take place as scheduled, but
in recognition of this court’s concerns, he also
directed that the consent decree should be
submitted for voter approval through a
referendum. At the same time, he noted that the
Park District had passed a resolution adopting
the new form of governance specified in the
decree and thus that no further action was
necessary legally to establish the new Park
District structure. On November 7, 1995, Chicago
Heights held a referendum and the voters approved
the new form of city government--which was
modeled on and identical to the form adopted in
the earlier consent decree. Judge Will passed
away shortly thereafter, and these cases, still
on remand to the district court, were reassigned
to District Judge Coar.
Following this court’s instructions on remand,
Judge Coar first reiterated that the old, at-
large election method violated Section 2, and he
made particularized findings to support this
determination. See Harper, 1997 WL 102543, at
*12. He noted that Judge Nordberg had found the
Gingles factors satisfied; he then considered
evidence and found that the Senate Report Factors
also pointed to a Section 2 violation.
Importantly, neither the City nor the Park
District have challenged this finding of
liability in the present appeal. Next, Judge Coar
considered the appropriateness of the remedy
adopted first in the consent decree and later
through referendum. (We refer in this opinion to
the remedy Judge Coar evaluated for the City as
the "referendum system," and to the remedy
applicable to the Park District as the
"resolution system," to reflect the fact that the
systems under which both entities had operated at
the outset of this litigation had been replaced
by remedial measures.) Expressing concern that
the referendum system preserved rather than
remedied the effects of the former unlawful
at-large laws, he ordered the parties to "propose
new governmental structures and voting maps
designed to remedy the underlying Voting Rights
Act violations." Judge Coar allowed the City, the
Park District, and the Class to rely on the
referendum system for their proposals.
As requested, the parties submitted their
proposals. The City, the Park District, and the
Class reaffirmed their support for the referendum
system, disagreeing only on where the lines
dividing the six districts should be drawn.
Perkins and McCoy objected to the solution
adopted by consent and later by referendum,
arguing that the six-member structure negates the
power of the minority representatives because (1)
in practice tie votes have frequently resulted,
with the mayor (who is still elected at large)
usually breaking the tie by voting with the white
aldermen; and (2) the mayor may exercise veto
power, which can be overridden only by a 3/5
majority of the council (i.e. four of the six
aldermen). According to Perkins and McCoy, "the
mayor now acts as a seventh alderman--indeed, a
super alderman, who has the power to appoint two
important City positions and who is not elected
from a single-member district, but rather, is
elected at-large."
Perkins and McCoy proposed an "aldermanic" form
of government with seven single-member districts
and a mayor, city clerk, and treasurer elected at
large. For reasons that are unclear, their plan
too departed somewhat from the statutory
aldermanic form, which calls for seven wards with
two aldermen each for cities whose population is
between 20,000 and 50,000. See 65 ILCS 5/3.1-20-
10 & 5/3.1-20-15. Under the aldermanic form of
government, the mayor votes in only two
circumstances: to break a tie (a situation that
simple mathematics indicates is less likely to
occur with an odd number of aldermen), or where
a super-majority is required by law. Perkins and
McCoy proposed that lines be drawn to create
three majority-white districts, two majority-
black districts, one majority-Hispanic district,
and one district in which no single group would
be in the majority. For the Park District,
Perkins and McCoy proposed a seven-member board
(whose members would be elected from the seven
districts), which would in turn elect a president
from within its ranks.
After reviewing the proposals before him, Judge
Coar rejected the referendum system because it
still did not remedy the original Section 2
violation. See McCoy v. Chicago Heights, 6 F.
Supp.2d 973, 981 (N.D. Ill. 1998). Noting that
"the parties do not explain how a government
structure where the tie-breaking vote is elected
at-large remedies a voting rights violation
predicated on the fact that the at-large system
enhanced discrimination against African-
Americans," id. at 980, Judge Coar found his
concerns justified by the experience under that
system that was accruing, which showed that where
a tie has resulted in the city council, the mayor
has voted with the white aldermen. (With an even
number of aldermen, moreover, ties were not
uncommon.) Judge Coar also noted that the mayor’s
authority was further enhanced by allowing him to
appoint the city clerk and treasurer, as well as
administrative assistants and directors. Id. None
of those powers would have belonged to him under
the statutory "strong mayor" government. Finally,
Judge Coar criticized the use of an at-large
method to elect the Park District board
president. Id. Illinois law provides that the
board president may be elected by the board
members, but Judge Coar believed that the use of
an at-large election is particularly problematic
in a seven-member board structure where the
president has the power to cast tie-breaking
votes. Id.
Although Judge Coar suggested that the Perkins
and McCoy proposal was legally adequate, id. at
981, he did not embrace it without qualification.
He was concerned that a plan that requires the
drawing of district lines would be the frequent
subject of constitutional attack, recognizing
that his task was to steer between the Scylla of
racially based district lines, e.g., Abrams v.
Johnson, 521 U.S. 74 (1997), Bush v. Vera, 517
U.S. 952 (1996), and Shaw v. Hunt, 517 U.S. 899
(1996), and the Charybdis of ineffectual Section
2 remedies. Noting the support for cumulative
voting expressed by Justices Scalia and Thomas in
Justice Thomas’s concurring opinion in Holder v.
Hall, 512 U.S. 874, 912 (1994), Judge Coar
decided to try that approach. Accordingly,
instead of dividing the City into seven
districts, the court’s order requires the
establishment of an at-large system that uses
cumulative voting. This came as a surprise to the
parties, who had not proposed any such structure,
but the court cited to literature indicating that
cumulative voting has the benefits of remedying
the vote dilution problem while avoiding the
constitutional challenges that afflict the
drawing of district lines. 6 F. Supp. 2d at 982-
83. Judge Coar found this benefit significant
given the line of Supreme Court decisions just
mentioned, and also given the practical fact that
any districting plan he approved would have to be
redrawn following the 2000 census.
II
The City, the Park District, and the Class
attack the district court’s holding on several
fronts. First, they argue that the court erred
when it found that the referendum system did not
remedy the Section 2 violation. Because the
modified "strong mayor" plan adopted by the
voters in the referendum is a legally adequate
remedy, they maintain, the district court was
required to accept it. They also suggest that the
referendum results can be set aside only if they
would independently violate Section 2, and that
we should not be worrying about their capacity to
cure the earlier Section 2 violation. Second,
they argue that even if the referendum plan is an
inadequate remedy, the district court’s
cumulative voting plan is not an acceptable
alternative. Finally, the City and the Park
District argue that all previous grants of
attorneys’s fees must be revisited. We address
these contentions in turn.
A.
Standing behind the district court’s judgment is
the earlier finding--unchallenged, as we said--
that the at-large system violated Section 2 of
the Voting Rights Act. We think it was correct
for the court to ask whether the replacement
system eventually approved through referendum
would remedy the violation; there was no need for
the court to view it as if it had emerged from
thin air. See Harvell v. Blythville Sch. Dist.
#5, 71 F.3d 1382, 1386 (8th Cir. 1995); Jenkins
v. Red Clay Consolidated Sch. Dist. Bd. of Educ.,
4 F.3d 1103, 1115-16 (3d Cir. 1992). When a
Section 2 violation has been found, the district
court "must, wherever practicable, afford the
jurisdiction an opportunity to remedy the
violation first, . . . with deference afforded
the jurisdiction’s plan if it provides a full,
legally acceptable remedy. . . . But if the
jurisdiction fails to remedy completely the
violation or if a proposed remedial plan itself
constitutes a sec. 2 violation, the court must
itself take measures to remedy the violation."
Dickinson v. Indiana State Election Bd., 933 F.2d
497, 501 n.5 (7th Cir. 1991) (citation and
quotations omitted). We review the district
court’s factual findings regarding a Section 2
violation for clear error and its legal
conclusions de novo. Gingles, 478 U.S. at 79. See
also Cousin v. Sundquist, 145 F.3d 818, 822-23
(6th Cir. 1998), cert. denied 525 U.S. 1138
(1999).
The district court recognized that courts have
relied upon the three factors set forth in
Gingles, followed by the nine "Senate Report
Factors," in order to decide whether or not a
violation of Section 2 exists. See, e.g., Jenkins
v. Manning, 116 F.3d 685, 690-92 (3d Cir. 1997);
Dillard v. Crenshaw County, Ala., 831 F.2d 246
(11th Cir. 1987). We have no reason here to
question that framework. Using it, Judges
Nordberg and Will evaluated the original plan
proposed to remedy the violation, but Judge Coar
did not perform a similarly detailed evaluation
of the referendum plan, largely because no one
gave him the information he would have needed to
do so. See 6 F. Supp. 2d at 978. Instead, he
decided that the findings that made the original
system infirm were equally applicable to the
referendum system. He noted that the problem with
the old system was its use of at-large elections,
which, given the local political environment, put
the positions to be filled beyond the reach of
minority voters. Under the plan adopted by the
referendum, only the tie-breaker is elected at
large, but taken as a whole this had the same
diluting effect as the original at-large system.
It was also significant that, because the voters
had adopted the plan by referendum, the City had
been operating under the plan for some time. This
gave the court concrete evidence of the plan’s
effect in reality. That evidence showed that the
at-large mayor voted with the white aldermen in
the cases where a city council vote resulted in
a tie. The court did not make any separate
findings about the operation of the plan in Park
District elections or governance.
The evidence of the mayor’s pattern of voting
in tie-breaking situations, taken with the
likelihood of ties on an even-numbered council,
is enough to support the district court’s
conclusion that the referendum system did not
adequately address the acknowledged problem in
the City elections. It is true, as the City
points out, that the Supreme Court has held that
at-large procedures are not unconstitutional per
se. See Rogers v. Lodge, 458 U.S. 613, 617
(1982); see also United States v. Dallas County
Comm., 850 F.2d 1433, 1438 (11th Cir. 1988)
("[A]t-large procedures that are discriminatory
in the context of one election scheme are not
necessarily discriminatory under another
scheme.") (citation and quotations omitted).
Nonetheless, we are beyond that point here, given
the state of this litigation. Appellate review
might have been somewhat easier if the district
court had discussed each of the Gingles and
Senate Report Factors in its evaluation of the
limited use of at-large procedures found in the
referendum system, but the critical question in
the end is whether the court’s finding of fact
that the newly enacted system would still
discriminate against minority voters was clearly
erroneous. The court pointed to the evidence that
led it to conclude that vote dilution would still
rise to the level of a Section 2 violation. Not
everyone would agree, but we find the court’s
conclusion to be within the range of permissible
inferences from this evidence, and hence not
clearly erroneous. We therefore affirm the
district court’s rejection of the referendum
system insofar as it is applied to the City.
With regard to the Park District, the absence
of evidence of continuing discrimination is
significantly more troubling. The Park District
argues that the resolution system (derived like
the referendum system from the consent decree)
has solved its Section 2 violation: the board
president regularly votes with a bloc consisting
of two African-American board members, one
Hispanic, and one white; further, capital
improvement expenditures in African-American and
Hispanic districts have increased substantially,
suggesting that their residents’ concerns are
being addressed. Neither the district court’s
opinion nor the McCoy and Perkins brief addresses
these contentions. Because the burden of proving
a Section 2 violation lies with the minority
group contesting the current system, see Gingles,
478 U.S. at 50-51, this lack of rebuttal evidence
dooms the challenge to the use of the plan in the
Park District. We reverse the district court’s
determination that the plan, as applied to the
Park District, is not a legally adequate remedy.
B.
The question of the appropriateness of the
court’s chosen remedy is also a knotty one. On
this point, our review is for abuse of
discretion. See Connor v. Finch, 431 U.S. 407,
415 (1977) (appellate review of a district
court’s choice of remedy in a voting rights case
is for abuse of discretion). Even though this
gives great leeway to the judge who is closest to
the problems, we are compelled to find here that
the remedy for the City crafted by the court
cannot stand at this time.
The district court’s plan suffers from the same
procedural flaw as did the consent decree when it
was first presented to this court: the court’s
plan modifies the election methods set forth in
the Illinois Municipal Code without either going
through the statutorily required procedures for
making such changes to electoral methods or
making a judicial finding that it was necessary
to make these changes in order to comply with
federal law. As this court explained in Perkins,
after a finding of a Voting Rights Act violation,
the parties were free to adopt and the district
court to approve
one of the alternative forms of government
provided by Illinois law. However, the parties
cannot modify the chosen form simply at-will. .
. . Any modifications which must be accomplished
through a referendum cannot be made by the
consent decree unless the court finds that the
statutory provisions would violate federal law
and that such changes are necessary to ensure
compliance with federal law.
47 F.3d at 217.
The procedural holding in Perkins, while
addressed to a slightly different problem, is
equally applicable here, though we note that
nothing in our earlier opinion disapproved of
cumulative voting in the abstract. The Illinois
Municipal Code makes available to cities a
variety of election methods. The district court
should either have selected one of these methods
or found that the Illinois options violate
federal law. Instead, as it had done before, it
opted for a hybrid system without submitting that
plan to the voters, as Illinois law would
require, and without explaining why one of the
State’s authorized systems would not do the job.
Although the Municipal Code allows for cumulative
voting, it specifies that a city is to be divided
into districts (not less than two and not more
than six) and that each district is entitled to
three aldermen. 65 ILCS 5/3.1-15-30 & 5/3.1-15-
35. Without a finding that the Code’s cumulative
voting method violates federal law, the district
court modified the plan to call for the city-wide
election of seven council members.
The district court’s plan also suffers from a
failure to respect the City’s preference for
single-member districts. The Supreme Court has
held that in fashioning an electoral system to
remedy a voting rights violation, courts "should
follow the policies and preferences of the State,
as expressed in statutory and constitutional
provisions or in the . . . plans proposed by the
state legislature, whenever adherence to state
policy does not detract from the Federal
Constitution." White v. Weiser, 412 U.S. 783, 795
(1973). Accordingly, when a legislative body
fails to offer an acceptable remedy, "the court,
in exercising its discretion to fashion a remedy
that complies with sec. 2, must to the greatest
extent possible give effect to the legislative
policy judgments underlying the current electoral
scheme or the legally unacceptable remedy offered
by the legislative body." Cane v. Worcester
County, Md., 35 F.3d 921, 928 (4th Cir. 1994).
Here, the City has demonstrated a clear
preference for single-member districts. It
proposed a remedial plan that relies on single-
member districts and, in doing so, made a policy
judgment about which electoral schemes are best
suited for the locality. We should defer to the
City’s plan to the extent possible as long as it
does not violate federal law. See Cane, 35 F.3d
at 927. Although the district court found that
the referendum system was inadequate, it did not
find that any use of single-member districts
violates federal law.
The United States, appearing as amicus curiae,
defends the district court’s plan on the ground
that, under Illinois law, cumulative voting is an
accepted electoral practice. Thus, the United
States argues, while the district court’s plan
may have violated the City’s preference for
single-member districts, the State has no such
preference. We find this distinction
unconvincing. First, the United States overstates
the popularity of cumulative voting in Illinois:
although cumulative voting is lawful under the
Municipal Code, the use of single-member
districts is an equally acceptable electoral
practice. Moreover, although Weiser talks of
deference to "state policy," a state plan was
under attack in Weiser, and its holding is not so
limited. The City proposed and must function
under the remedial plan and accordingly its
judgments are entitled to deference.
It is somewhat troubling that the City has not
articulated why it prefers single-member
districts over cumulative voting, but this is not
an ironclad requirement for public bodies as long
as the entity’s actual preference can
legitimately be inferred from facts on the
record. It is obviously true that deference to
legislative policy judgments is predicated on the
legislature actually having made a policy
judgment rather than an arbitrary choice. But we
are satisfied that the City did so. Prior to the
district court’s order, the parties had never
thought of cumulative voting. In the absence of
a finding that cumulative voting is the only
legally viable remedy, the City should have an
opportunity to consider the merits and
deficiencies of cumulative voting before that
system is imposed upon it. We emphasize that our
decision should not be understood as a
condemnation of cumulative voting. Cumulative
voting is, as the Illinois Municipal Code makes
clear, a lawful election method that may be
implemented under circumstances demonstrating
suitable deference to the legislative body. It
also has the virtues the district court
identified:
[R]ather than using race as a proxy for voting
preference, such a system allows voters to draw
their own jurisdictional boundaries, decide which
local governments were most important to them,
and allocate their votes accordingly. . . . All
minority groups may potentially benefit from such
a system--not just racial minorities. . . .
Indeed, cumulative voting does not
compartmentalize voters according to their race.
6 F. Supp. 2d at 982-83 (quotations and internal
citations omitted).
Because we reject the district court’s remedy
on other grounds, we need not address the City’s
contention that the decision to increase the
number of City Council members from six to seven
violates the rule of Holder v. Hall, supra, which
holds that the size of a governing body is not
subject to a Section 2 vote dilution claim.
III
The remaining issues pertain to the district
court’s orders awarding attorneys’ fees and
expenses pursuant to Section 14(e) of the Voting
Rights Act, 42 U.S.C. sec. 1973(1)(e), and the
Civil Rights Attorney’s Fee Award Act, 42 U.S.C.
sec. 1988. The first award of attorneys’ fees
covers the period of time between the beginning
of the suit and the entry of the consent decree.
On December 15, 1994, Judge Will entered an order
that awarded Class Counsel $337,777.98, with
$297,930.65 attributable to the City and
$39,847.33 to the Park District. This award
included a 10% enhancement "to reflect the
excellent results achieved." Although this court
vacated the December 15 award along with the
consent decree, on November 28, 1995, after the
referendum, Judge Will re-entered the fee award.
The Park District paid its portion. The City
initially appealed, but then reconsidered and
asked us to dismiss the appeal. We granted the
motion to dismiss, so there is currently no
dispute as to the fees awarded by Judge Will.
Pending, however, are challenges to Judge Coar’s
order awarding fees and expenses. On March 26,
1999, Judge Coar awarded Class Counsel $55,665 to
cover fees and expenses incurred after the entry
of the consent decree. (On April 21, 1999, Judge
Coar amended the order, increasing Class
Counsel’s award to $65,547.50.) Also on March 26,
Judge Coar awarded Perkins and McCoy’s attorneys
$192,803.75; the City is responsible for
$100,868.12 and the Park District for $91,935.63.
Then on February 9, 2000, the court awarded fees
in the amount of $11,065 to the attorneys
representing Perkins and McCoy, for work done
prosecuting their fee petition. The award does
not specify how the fee award breaks down between
the City and the Park District.
Both the City and the Park District filed
appeals from all these orders; this court has
consolidated the appeals that reached us after
oral argument in this case with the original
appeals. Although the City initially challenged
Judge Coar’s awards of attorneys’ fees to the
plaintiffs’ counsel, it later asked that that
appeal be dismissed. We granted the motion. Thus,
remaining before us are the City’s and the Park
District’s appeals of Judge Coar’s March 26,
1999, fee award, which also provided the basis
for the February 9, 2000, award of attorneys’
fees to Perkins and McCoy.
First, the status of Perkins and McCoy as
"prevailing parties" is at issue. The defendants
then challenge the reasonableness of the fees
awarded.
Section 1988 states that in a civil rights
action, "the court, in its discretion, may allow
a prevailing party, other than the United States,
a reasonable attorney’s fee as part of its
costs." Because Perkins and McCoy’s status as a
prevailing party involves elements of legal
analysis, our review is de novo. See Jaffee v.
Redmond, 142 F.3d 409, 412-13 (7th Cir. 1998).
The Supreme Court has stated that the statutory
threshold for obtaining attorneys’ fees under
Section 1988 is "generous." Hensley v. Eckerhart,
461 U.S. 424, 433 (1983). To determine if a party
is "prevailing," courts ask whether:
the plaintiff has succeeded on any significant
issue in litigation which achieved some of the
benefit the parties sought in bringing suit. . .
. The touchstone of the prevailing party inquiry
must be the material alteration of the legal
relationship of the parties in a manner which
Congress sought to promote in the fee statute.
Texas Teachers Ass’n v. Garland Independent Sch.
Dist., 489 U.S. 782, 791-93 (1989) (citation and
quotations omitted). Once a plaintiff qualifies
for a fee award by meeting this threshold, "the
degree of the plaintiff’s overall success goes to
the reasonableness of the award . . ., not to the
availability of a fee award vel non." Id. at 793.
Perkins and McCoy are prevailing parties insofar
as they succeeded in their goal of having vacated
what they regarded as an ineffectual consent
decree. That this court did not vacate the decree
based upon the precise arguments they raised, as
the Park District points out, does not matter.
They convinced this court that the decree was
improperly entered, thereby succeeding on a
"significant issue in [the] litigation." Texas
Teachers, 489 U.S. at 791. Recognizing this, the
City chose not to appeal Perkins and McCoy’s
prevailing party status so long as the
substantive aspects of this case are upheld on
appeal. (Because we are reversing some aspects of
Judge Coar’s decision, we note that the City has
reserved its right to object to Perkins and
McCoy’s status in later proceedings.) The Park
District also argues that it should not be liable
for any of the fees incurred by Perkins and
McCoy, because they did not appeal the portions
of the consent decree that applied to the Park
District. See Perkins, 47 F.3d at 217. But the
six-district structure also affected the Park
District, and the final judgment of this court
vacated the entire decree, not just parts of it.
These facts also persuade us that the Park
District is being too particular when it asserts
that Perkins and McCoy’s earlier appeal was not
directed against it, and that it therefore should
not be responsible for paying fees associated
with that appeal. It is true that most of the
appeal related to the City, but not all of it
did. Judge Coar correctly recognized this on
remand, when he reconsidered both the provisions
applicable to the City and those applicable to
the Park District. The greater problem for
Perkins and McCoy is that we have now rejected
their challenge to the Park District resolution
that implements the earlier consent decree. The
fees to which they are entitled from the Park
District must therefore be reconsidered. The
district court on remand should take into account
both whatever contributions they made to the
liability findings against the Park District, and
their lack of success in changing the remedy for
the Park District.
Finally, both the City and the Park District
challenge the reasonableness of the district
court’s fee award to Perkins and McCoy. They
allege that (1) counsel for Perkins and McCoy
failed to support their claimed hourly rates with
sufficient evidence that the rates are
reasonable; (2) counsel for Perkins and McCoy
used reconstructed time records rather than
records made at the time the services were
rendered; and (3) counsel for Perkins and McCoy
relied on "cluster billing," i.e. grouping
several different activities into one
description, thus making it impossible to
determine whether the individual activities were
a reasonable expenditure of time. The defendants
maintain that these failings made it impossible
for the district court to determine the
reasonable value of the services provided. The
City also raises a number of challenges to
individual entries in the fee petitions. For
example, it argues that one of the attorneys for
Perkins and McCoy spent an unreasonable amount of
time meeting with his clients.
We find no abuse of discretion in the court’s
decision to accept the proposed hourly rates. The
reasonable hourly rate (or "market rate") for
lodestar purposes is "the rate that lawyers of
similar ability and experience in their community
normally charge their paying clients for the type
of work in question." Spegon v. Catholic Bishop
of Chicago, 175 F.3d 544, 555 (7th Cir. 1999)
(quotations and citations omitted). The attorneys
for Perkins and McCoy supported their proposed
hourly rates with their own affidavits confirming
the reasonableness of these rates as well as
affidavits from attorneys practicing in the
field. While an attorney’s self-serving affidavit
alone cannot establish the market rate for that
attorney’s services, such affidavits in
conjunction with other evidence of the rates
charged by comparable lawyers is sufficient to
satisfy the plaintiffs’ burden. Id.
As to the reasonableness of the hours
expended, when a fee petition is vague or
inadequately documented, a district court may
either strike the problematic entries or (in
recognition of the impracticalities of requiring
courts to do an item-by-item accounting) reduce
the proposed fee by a reasonable percentage. See
Ohio-Sealy Mattress Mfg. Co. v. Sealy Inc., 776
F.2d 646, 651, 657-58 (7th Cir. 1985); see also
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)
(if plaintiff fails to document hours adequately,
court may reduce award accordingly). Whichever
option the district court chooses, it is required
to "provide a concise but clear explanation of
its reasons for the fee award" that is sufficient
to permit appellate review. Ohio-Sealy Mattress,
776 F.2d at 658, quoting Hensley, 461 U.S. at
437.
Perkins and McCoy acknowledge that their bills
were compiled in part from contemporaneous time
records and in part reconstructed. This use of
reconstructed records does not doom their
petition, as there is no per se rule requiring
the submission of contemporaneous time records in
the Northern District of Illinois. However, Judge
Coar, who concluded that their time records
"appear to be contemporaneous," did not address
the reliance on reconstructed records. As it is
within a district court’s power to reduce a fee
award because the petition was not supported by
contemporaneous time records, see, e.g., Shakman
v. Democratic Organization of Cook County, 634 F.
Supp. 895, 899 (N.D. Ill. 1986); Rybicki v. State
Bd. of Elections of State of Illinois, 584 F.
Supp. 849, 861 (N.D. Ill. 1984), we reverse and
remand for reconsideration of this issue.
For the reasons discussed above, we AFFIRM the
district court’s holding that the current
election method violates Section 2 of the Voting
Rights Act as applied to the City; however, we
REVERSE the district court’s remedy and REMAND to
the court to craft a suitable remedy. We REVERSE
the district court’s holding that the current
election method violates Section 2 as applied to
the Park District. We VACATE in part and AFFIRM in
part the March 26, 1999, order and the February
9, 2000, order granting attorneys’ fees and
expenses. Specifically, we AFFIRM the district
court’s award of attorneys’ fees to Perkins and
McCoy from the City and VACATE and REMAND for
calculation of the precise amount of fees. We
VACATE and REMAND the award of fees to Perkins and
McCoy from the Park District; should the district
court determine on remand that Perkins and McCoy
are entitled to fees for their suit brought
against the Park District, it should reconsider
the amount, taking into account this opinion.
Finally, we do not disturb the award of fees to
plaintiffs’ counsel--the Park District did not
appeal that award and we dismissed the City’s
appeal of that award on the City’s motion. All
parties shall bear their own costs attributable
to this appeal.
/1 There was also one other appeal initially brought
by the Chicago Heights Park District (98-2798);
this appeal was dismissed on the Park District’s
motion before briefing and oral argument.
/2 Those three factors are the preconditions the
Supreme Court set out in Gingles for the
successful maintenance of a vote dilution claim
under the Voting Rights Act. The minority group
must be able to demonstrate (1) that the group is
sufficiently large and geographically compact to
constitute a majority in a single-member
district, (2) that the group is politically
cohesive, and (3) that the white majority votes
sufficiently as a bloc to enable it, in the
absence of special circumstances, usually to
defeat the minority’s preferred candidate. 478
U.S. at 50-51.
/3 The Report lists the following factors:
(1) the extent of any history of official
discrimination in the state or political
subdivision that touched the right of the members
of the minority group to register, to vote, or
otherwise to participate in the democratic
process;
(2) the extent to which voting in the elections
of the state or political subdivision is racially
polarized;
(3) the extent to which the state or political
subdivision has used unusually large election
districts, majority vote requirements, anti-
single shot provisions, or other voting practices
or procedures that may enhance the opportunity
for discrimination against the minority group;
(4) if there is a candidate slating process,
whether the members of the minority group have
been denied access to that process;
(5) the extent to which members of the minority
group in the state or political subdivision bear
the effects of discrimination in such areas as
education, employment and health, which hinder
their ability to participate effectively in the
political process;
(6) whether political campaigns have been
characterized by overt or subtle racial appeals;
(7) the extent to which members of the minority
group have been elected to public office in the
jurisdiction;
[(8)] whether there is a significant lack of
responsiveness on the part of elected officials
to the particularized needs of the members of the
minority group; and
[(9)] whether the policy underlying the state or
political subdivision’s use of such voting
qualification, prerequisite to voting, or
standard, practice, or procedure is tenuous.
Sen. Judiciary Comm. Rept. at 28-29.