Connor v. Winter, Civ. A. No. 3830(A).

• Decision Date: 12 August 1981
• Docket Number: Civ. A. No. 3830(A).
• Parties: Peggy J. CONNOR, et al., Plaintiffs, v. William F. WINTER, et al., Defendants, The United States of America, Plaintiff-Intervenor.
• Court: U.S. District Court — Southern District of Mississippi

519 F. Supp. 1337

Peggy J. CONNOR, et al., Plaintiffs, v. William F. WINTER, et al., Defendants, The United States of America, Plaintiff-Intervenor.

Civ. A. No. 3830(A).

United States District Court, S. D. Mississippi, Jackson Division.

August 12, 1981.

COPYRIGHT MATERIAL OMITTED

A. Spencer Gilbert, Jackson, Miss., Frank R. Parker, Washington, D. C., for plaintiffs.

William Boyd, Peter Stockett, Asst. Attys. Gen., Jackson, Miss., for defendants.

Before CHARLES CLARK, Circuit Judge, RUSSELL, Chief District Judge, and COX, District Judge.

CHARLES CLARK, Circuit Judge:

For more than fifteen years the efforts of these plaintiffs to reapportion the Mississippi Legislature in accordance with constitutional requirements have occupied the attention of federal courts. At the end of this lengthy process comes plaintiffs' Motion for Award of Attorney's Fees and Litigation Expenses brought under 42 U.S.C. §§ 1973l(e) and 1988. Based on testimony, affidavits, briefs, and other supporting documents filed by both parties, plaintiffs are entitled to recover $77,618.75 in attorney's fees, $39,197.17 in litigation expenses, and $10,870.70 in court costs.

I.

Section 1973l(e) provides:

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

42 U.S.C. § 1973l(e). Congress enacted this provision in order to enable private citizens to vindicate fundamental voting rights guaranteed by the Constitution. See S.Rep. No.94-295, 94th Cong., 1st Sess. 40, reprinted in 1975 U.S.Code Cong. & Ad.News 774, 807-08. Nevertheless, the statute expressly limits the recovery of attorney's fees to a "prevailing party." Although there are few cases decided under section 1973l(e), there is a well-developed body of case law under section 1988 defining the meaning of "prevailing party." Because sections 1973l (e) and 1988 contain substantially similar language, they should be construed similarly. Riddell v. National Democratic Party, 624 F.2d 539, 543 (5th Cir. 1980).

Under section 1988, it is clear that attorney's fee awards are available to parties even though they enforce their rights by means of a consent decree or without actually obtaining formal judicial relief. See, e. g., Hanrahan v. Hampton, 446 U.S. 754, 756, 100 S.Ct. 1987, 1989, 64 L.Ed.2d 670, 674 (1980); Robinson v. Kimbrough, 620 F.2d 468, 475 (5th Cir. 1980); Criterion Club v. Board of Comm'rs, 594 F.2d 118, 120 (5th Cir. 1979). Moreover, the Fifth Circuit has also recognized that a plaintiff may prevail and be entitled to an attorney's fee award when subsequent remedial action by the defendant effectively moots the controversy after the lawsuit has been filed. See, e. g., Iranian Students Ass'n v. Sawyer, 639 F.2d 1160, 1163 (5th Cir. 1981); Doe v. Marshall, 622 F.2d 118, 120 (5th Cir. 1980). Furthermore, that a party does not prevail on every claim asserted does not necessarily mean time spent pursuing unsuccessful claims should automatically go uncompensated. See Maher v. Gagne, 448 U.S. 122, 123, 100 S.Ct. 2570, 2572, 65 L.Ed.2d 653 (1980); Jones v. Diamond, 636 F.2d 1364, 1382 (5th Cir. 1981); Watkins v. Mobile Housing Bd., 632 F.2d 565, 567 (5th Cir. 1980). Accord Fain v. Caddo Parish Police Jury, 564 F.2d 707, 709 n.3 (5th Cir. 1977) (§ 1973l(e)).

The test of whether a litigant is a prevailing party within the meaning of sections 1973l(e) and 1988 is a pragmatic one that focuses on whether he has substantially achieved the result sought or has been successful on the crucial issue in the case. For example, Robinson v. Kimbrough, supra, stated that plaintiffs may recover under section 1988 if they are able to show "their lawsuit was a significant catalytic factor in achieving the primary relief sought through the litigation despite failure to obtain formal judicial relief." 620 F.2d at 478. Other decisions frame the inquiry in essentially identical terms. See, e. g., Iranian Students Ass'n v. Sawyer, 639 F.2d at 1163 (a causal relationship between the lawsuit and the relief received); Coen v. Harrison County School Bd., 638 F.2d 24, 26 (5th Cir. 1981) (lawsuit must be a major factor in obtaining relief).

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

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

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

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

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

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

On remand, a trial was conducted, and the parties submitted proposed plans to the court. After a settlement conference in June 1978, a plan was developed on which all parties agreed. Eventually the district court entered a final judgment adopting the agreed formula, specifically providing that its plan was to be in "full force and effect for the 1979 regular state legislative elections and thereafter unless and until altered according to law."...