28 F.3d 1430 (7th Cir. 1993), 92-1397, Hastert v. Illinois State Bd. of Election Com'rs

Docket Nº:92-1397 to 92-1399, 92-1402 and 92-1403.
Citation:28 F.3d 1430
Party Name:Dennis J. HASTERT, Harris Fawell, John E. Porter, Philip M. Crane, Henry J. Hyde, Robert H. Michel, and Thomas W. Ewing, Plaintiffs-Appellants, and Johnny Scott and Ben Howard, Plaintiffs-Intervenors-Appellants, v. ILLINOIS STATE BOARD OF ELECTION COMMISSIONERS, John J. Lanigan, Theresa M. Petrone, Richard A. Cowen, Hannelore Huisman, Lawrence E. J
Case Date:December 17, 1993
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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28 F.3d 1430 (7th Cir. 1993)

Dennis J. HASTERT, Harris Fawell, John E. Porter, Philip M.

Crane, Henry J. Hyde, Robert H. Michel, and Thomas

W. Ewing, Plaintiffs-Appellants,

and

Johnny Scott and Ben Howard, Plaintiffs-Intervenors-Appellants,

v.

ILLINOIS STATE BOARD OF ELECTION COMMISSIONERS, John J.

Lanigan, Theresa M. Petrone, Richard A. Cowen, Hannelore

Huisman, Lawrence E. Johnson, David E. Murray, Langdon D.

Neal and Wanda T. Rednour, Defendants-Appellees.

Dennis J. HASTERT, Harris Fawell, John E. Porter, Philip M.

Crane, Henry J. Hyde, Robert H. Michel, and Thomas

W. Ewing, Plaintiffs-Appellants,

v.

STATE BOARD OF ELECTIONS, John J. Lanigan, Theresa M.

Petrone, Richard A. Cowen, Lawrence E. Johnson,

David E. Murray, Langdon D. Neal, Wanda

T. Rednour and Hannelore

Huisman,

Defendants-

Appellees.

Wilfredo NIEVES, Al Johnson, Linda Coronado, Bobby Rush,

Jesus Garcia, Rev. Willie Barrow, Rafael Boria, Miguel Del

Valle, Robert L. Lucas, Leon D. Finney, Jr., Rev. Clay

Evans, Joseph Gardner, Luis V. Gutierrez, Regner Suarez,

Joseph Berrios, Miguel A. Santiago, and Neomi Hernandez,

Plaintiffs-Appellants,

v.

ILLINOIS STATE BOARD OF ELECTION COMMISSIONERS, John J.

Lanigan, Theresa M. Petrone, Richard A. Cowen, Hannelore

Huisman, Lawrence E. Johnson, David E. Murray, Langdon D.

Neal and Wanda T. Rednour, Defendants-Appellees.

The CHICAGO URBAN LEAGUE, Craig R. Collins, Mark Allen, and

Nikolas C. Theodore, Plaintiffs-Appellants,

v.

STATE BOARD OF ELECTIONS, John J. Lanigan, Theresa M.

Petrone, Richard A. Cowen, Lawrence E. Johnson,

David E. Murray, Langdon D. Neal and

Wanda T. Rednour,

Defendants-Appellees.

Ann ROSEBROOK, Daryl Barklow, Amiel Cueto, Richard Mark,

Jeanelle Norman, Carolyn Toney, Lee Babcock, Raymond Oliver,

Barbara Poshard, William Matthews, Gerald Hawkins, and Eva

Savala, Plaintiffs-Appellants,

v.

STATE BOARD OF ELECTIONS, John J. Lanigan, Theresa M.

Petrone, Richard A. Cowen, Hannelore Huisman,

Lawrence E. Johnson, David E. Murray,

Langdon D. Neal and Wanda T.

Rednour, Defendants-Appellees.

Nos. 92-1397 to 92-1399, 92-1402 and 92-1403.

United States Court of Appeals, Seventh Circuit

December 17, 1993

Argued Jan. 7, 1993.

Rehearing Granted and Opinion

Amended June 1, 1994.[*]

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Charles F. Marino, David M. Marino, Tyrone C. Fahner, George J. Tzanetopoulos, Richard S. Williamson, Lori E. Lightfoot, James D. Holzhauer (argued), Kirsten Jo Felling, Mayer, Brown & Platt, Chicago, IL, for plaintiffs in No. 92-1397.

Deborah L. Ahlstrand, Asst. Atty. Gen., Chicago, IL (argued), for defendants-appellees in No. 92-1397.

Jeffrey D. Colman (argued), Thomas S. O'Neill, Jenner & Block, Chicago, IL, Clyde Kuehn, Kuehn & Trentman, Belleville, IL, for intervenors-appellants in No. 92-1397.

William T. Barker, Barbara L. Smith, Sonnenschein, Nath & Rosenthal, Harvey M. Grossman, Roger Baldwin Foundation of ACLU, Inc., Chicago, IL, for amicus curiae in No. 92-1397.

Judson H. Miner, Paul Strauss, Jeffrey Cummings, Davis, Miner, Barnhill & Galland, Ruben Castillo (argued), Kirkland & Ellis, Arturo Jauregui, Ricardo Meza, Mexican American Legal Defense & Educ. Fund, Chicago, IL, for plaintiffs-appellants in No. 92-1399.

Mark Leipold, Oppenheimer, Wolff & Donnelly, Roslyn C. Lieb, Chicago Lawyers' Committee, Chicago, IL, Brenda Wright, Washington, DC, Mark S. Grotefeld (argued), Robins, Kaplan, Miller & Ciresi, Chicago, IL, for plaintiffs-appellants in No. 92-1402.

William J. Harte (argued), Joseph E. Tighe, Stephen L. Garcia, Courtney Carlton Nottage, Edward T. Joyce, Paul A. Castiglione, Kubasiak, Cremieux & Fylstra, Chicago, IL, for plaintiffs-appellants in No. 92-1403.

Before CUDAHY, COFFEY and ROVNER, Circuit Judges.

CUDAHY, Circuit Judge.

We are asked here to review a decision of a three-judge district court denying attorneys' fees to certain parties involved in litigation regarding congressional redistricting in Illinois following the 1990 census. We initially decided that we had jurisdiction over the appeals brought by the Hastert, Nieves, Urban League and Scott plaintiffs, but jurisdiction over the Rosebrook appeal only to the extent that they appealed the district court's denial of their Rule 60(b) motion to reconsider its judgment. Hastert v. State Board of Election, Nos. 92-1397, 92-1398, 92-1399, 92-1402 & 92-1403 slip op. at 11-12 (7th Cir. Dec. 17, 1993). We then affirmed the district court's determination that the Hastert and Nieves plaintiffs were prevailing parties, id. at 14, and that the Urban League plaintiffs were not, id. at 15-17. But we reversed the district court's determination that the Scott plaintiffs were not prevailing parties. Id. at 14-15. Finally, we reversed the decision that there existed "special circumstances" precluding an awarding of fees to the prevailing parties. Id. at 17-19. The Rosebrook plaintiffs, the State Board of Election and the Urban League have since filed petitions for rehearing. We today grant in part the petition filed by the Rosebrook plaintiffs and grant the petition of the Urban League plaintiffs. As a consequence, we issue this amended opinion.

I.

We are presented initially with some rather puzzling jurisdictional questions. To resolve

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them, we must recount the procedural history of this litigation in regrettably copious detail.

Because Illinois' population grew during the 1980s at a rate slower than that of the United States as a whole, the number of congressional seats apportioned to Illinois was reduced from 22 to 20. The task thus fell to the Illinois legislature to implement a constitutionally acceptable congressional redistricting plan, taking into account the fewer districts allocated to the state. 1 This is not an easy task under any circumstances, but it may be virtually impossible when the governor is of a different political party than a majority of the members of both houses of the legislature. 2 Such was the situation in Illinois in 1991. And, quite predictably, the Illinois General Assembly failed to enact a redistricting plan by the constitutionally mandated June 30, 1991 deadline. Indeed, the legislature failed even to bring a redistricting plan to the floor for debate.

Anticipating this legislative deadlock, the Republican Party members of the Illinois congressional delegation (the "Hastert" plaintiffs or group) filed the initial action in this matter on June 27, 1991. The Hastert plaintiffs sought a declaration that the present Illinois congressional districts were unconstitutional because of changes reflected in the 1990 census. They also sought to enjoin the Illinois State Board of Elections from conducting the 1992 congressional elections under the congressional district plan then in effect, and submitted their own redistricting proposal to replace the outdated map. The Chief Judge of this court convened a three-judge district court to hear the case, as 28 U.S.C. Sec. 2284(a) requires.

On July 3, 1991, a group of Hispanic and African-American voters (the "Nieves" plaintiffs or group) filed a similar action. Actually, the "Nieves" plaintiffs frequently participated as two separate sub-groups--an Hispanic sub-group and an African-American sub-group. These sub-groups were often represented by different lawyers. In addition to the relief requested by the Hastert group, the Nieves plaintiffs (both sub-groups) sought the creation of a congressional district containing a majority of Hispanic voters which, they maintained, section two of the Voting Rights Act, 42 U.S.C. Sec. 1973, required. The Nieves and Hastert actions were later consolidated.

On July 24, 1991, a group of voters ostensibly acting on behalf of certain members of the Illinois congressional delegation affiliated with the Democratic Party (the "Rosebrook" plaintiffs or group) filed still another similar action, which was subsequently consolidated with the Hastert and Nieves cases. On the same day, U.S. Representative Cardiss Collins and U.S. Representative Charles Hayes, along with several voters from their respective African-American majority districts (the "Collins" plaintiffs or group), filed a fourth action that was also consolidated with the Hastert and Nieves cases. Finally, the Chicago Urban League, representing the interests of voters in the existing African-American majority congressional districts (the "Chicago Urban League" plaintiffs or group), filed its own suit on August 29, 1991. This too was consolidated with the others. 3

The district court issued its decision on the merits on November 6, 1991, enjoining the Board from using the existing congressional district plan and ordering it to put into effect the plan proposed by the Hastert plaintiffs. Hastert v. State Board of Elections, 777 F.Supp. 634 (N.D.Ill.1991). In the final sentence of its opinion, the district court ordered

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that "all parties to these consolidated cases bear their own costs." 777 F.Supp. at 662. On November 14, 1991, the Hastert, Nieves, Chicago Urban League and Scott groups moved the district court to alter or amend its judgment to award them costs as prevailing parties. They also filed a petition for an award of their respective attorneys' fees pursuant to 42 U.S.C. Secs. 1973l(e) and 1988. On November 21, 1991, the Collins plaintiffs moved the court for leave to file a petition for attorneys' fees. Also on November 21, the Rosebrook plaintiffs filed a Rule 59(e) motion to alter or amend the judgment. 4 While this motion was still pending, the Rosebrook plaintiffs filed, on December 24, 1991, a motion for leave to file a petition for...

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