Dillard v. City of Greensboro, 99-6206

Citation213 F.3d 1347
Decision Date06 June 2000
Docket NumberNo. 99-6206,99-6206
Parties(11th Cir. 2000) John DILLARD, Damascus Crittenden, Jr., et al., Plaintiffs-Appellees-Cross- Appellants, v. CITY OF GREENSBORO, Defendant-Appellant-Cross-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1347

213 F.3d 1347 (11th Cir. 2000)
John DILLARD, Damascus Crittenden, Jr., et al., Plaintiffs-Appellees-Cross- Appellants,
v.
CITY OF GREENSBORO, Defendant-Appellant-Cross-Appellee.
No. 99-6206.
United States Court of Appeals,
Eleventh Circuit.
June 6, 2000.

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Appeals from the United States District Court for the Middle District of Alabama. (No. 87-01223-CR-T-N), Myron H. Thompson, Judge.

Before COX, BIRCH and BARKETT, Circuit Judges.

PER CURIAM:

The City of Greensboro, the defendant in this action under § 2 of the Voting Rights Act,1 appeals an order awarding the plaintiffs attorney fees. The plaintiffs cross-appeal, seeking to increase the fee. We vacate and render judgment for a reduced fee.

I. Background

The plaintiffs here sued the town of Greensboro, Alabama (1990 population: 3047) on a claim that the City's at-large system for electing city councilmembers violated § 2 by diluting votes cast by the City's black citizens, who are a majority of the City's voting-age population.2 Greensboro agreed to the entry of a consent decree establishing liability in 1987, not long after the action was filed. By separate judgment, the City agreed to pay $5712 of the plaintiffs' attorney fees and expenses to that date.3

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But this supposed death-knell turned out to be the starting bell for a long fight: While the 1987 consent decree settled the question whether there would be single-member city-council districts, and the parties have always agreed that there would be five districts, the decree did not settle the question of the five districts' boundaries. Even within that dispute, however, there was common ground. With the exception of two alternative plans proposed by the City early in the remedy phase, every plan advanced by both sides featured two districts whose voting-age population had a black supermajority.4 And again with the exception of two of Greensboro's early alternative plans, all the plans had two districts whose voting-age populations were majority white. It was the third majority-black district-called the "swing district"-that lay at the heart of the dispute. The quarrel over the swing district was not about its boundaries as such (for instance, how they grouped neighborhoods), but centered on the racial composition of the district. As explained in more detail below, the trend of the litigation was that the plaintiffs wanted a very black district, while Greensboro wanted one with a simple black majority or a bare black supermajority in the voting-age population. The plaintiffs repeatedly accused the City of seeking, through its proposed boundaries, to preserve white hegemony in Greensboro.

The parties proposed their first plans at two hearings in 1988. The plaintiffs' plan had a swing district whose population (we think total population; the record is not clear) was over 83% black. The City's 1988 swing district was 61.3% black. In the alternative, the City urged adoption of a plan in which each district, like the City as a whole, had a black majority of just over 60%.

The 1990 census came and went without a court ruling. In 1992, the parties presented new 1990-data plans at a third evidentiary hearing. The plaintiffs proposed a plan whose swing district's voting-age population was 76.4% black. In the City's 1992 plan, blacks comprised 58.5% of the swing district's voting-age population. The magistrate judge recommended adoption of the City's 1992 plan, subject to preclearance by the Department of Justice (DOJ) under § 5 of the Voting Rights Act. The magistrate judge worried, however, that black-voter turnout would be so low in the swing district that blacks would not elect the "councilperson[ ] of their choice," (R.1-62 at 4), and he therefore recommended retaining jurisdiction to see if the City's plan remedied the admitted § 2 violation. The district court adopted the recommendation and ordered Greensboro to use the City's plan on an interim basis for elections in August 1992, while the plan awaited DOJ preclearance.

The swing district in Greensboro's plan elected a white to the city council over a black candidate. Late in 1992, following the election, the DOJ refused to preclear the plan because that district's black majority had elected a white rather than the "black-supported candidate." Greensboro now had no voting plan in effect, and the plaintiffs returned to court and moved for imposition of a plan like those they had proposed before, again with a swing district whose voting-age population was over 75% black.

Following a hearing in 1993, the court permitted the City to seek preclearance of another plan it had proposed. Although this plan had a blacker swing district (with a 62% black voting-age majority), the DOJ rejected this plan, as well, because the swing district was not black enough. The

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City gave up and, in June 1994, asked the court by letter to draw a plan that would save the City from having to seek preclearance. The City's counsel offered as an example a plan with a swing district whose voting-age population was 66.3% black. The plaintiffs responded by continuing to urge a plan like the one they had proposed in 1992, in which the swing district's voting-age population was over 75% black. The plan proposed by Greensboro's counsel, they argued, was seeking a " 'sweet spot' where the district is high enough in black percentage to please the Court ... [,] but low enough that whites will still be able to control the district and defeat the black-preferred candidate." (R.2-100 at 4.) The district court rejected the plan proposed by the City's counsel, concluding that there was no evidence that the 66%-black district was black enough to ensure effectuation of black-voter preferences; nor had the City explained why in the light of other available plans it had "limit[ed] black electoral opportunities in [the] manner that it did." (R.2-103 at 9 (internal quotation omitted).) The court thus adopted the plaintiffs' plan and ordered a special election.

The City appealed. This court observed that race appeared to have been a paramount concern in the choice of districts and questioned the soundness of the district court's plan under the equal-protection principles announced in Shaw v. Reno, 509 U.S. 630, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993), and elaborated in Miller v. Johnson, 515 U.S. 900, 115 S.Ct. 2475, 132 L.Ed.2d 762 (1995), a case that interprets the Equal Protection Clause to forbid race-dominated districting. Because the Shaw /Miller issue was raised for the first time on appeal, the court stopped short of concluding that the adopted plan violated the Equal Protection Clause. The court instead vacated the district court's judgment and remanded for the district court to scrutinize the plan under Miller.

On remand, Greensboro argued that the court-adopted plan was unconstitutional and continued to ask the court to draw a plan. For their part, the plaintiffs contended that race did not predominate in the drawing of their proposed plans, and that the court should readopt their plan with the 75%+ black swing district. In the end, the court sidestepped Miller scrutiny of the plaintiffs' plan and decided to appoint a special master to draw a plan for the court. In light of Miller, the court instructed the master to eschew race as a factor unless it was necessary to remedy the § 2 violation.

After visiting Greensboro and reviewing the record of party-proposed plans, the master concluded that race had figured into all of the prior proposed plans, but that Greensboro's black majority and residential segregation made it possible to draw a race-blind plan that would remedy the § 2 violation. The master found that Greensboro was too small to have any remarkable geographical communities of interest, but that street configurations formed discrete neighborhoods. He thus relied on major streets and other salient barriers to draw up the plan, crossing them only when necessary to maintain equipopulation or avoid isolating a subdivision or small neighborhood. After minor revisions to accommodate two incumbents, the master proposed a plan that has two districts in which blacks constitute over 75% of the voting-age population (one 76% and the other 80%), a swing district whose voting-age population is 66.4% black, and two where whites are a majority (64 and 72%) of the voting-age population. No party objected, and the district court adopted the plan.

Then the plaintiffs moved for $253,530 in attorney fees and expenses for their counsel, Ed Still and Jim Blacksher. Greensboro countered, among other arguments, that the plaintiffs had not "prevailed" because they did not get a swing district as

Page 1353

black as the one they wanted. The district court rejected this argument, concluding that the plaintiffs had partially prevailed and were entitled to a fee. The district court reduced the hours billed by 30%, however, on the reasoning that while the plaintiffs prevailed in obtaining a swing district whose population had a higher percentage of blacks than Greensboro originally proposed, the swing district was not as black as they would have liked. The court found that Still and Blacksher's services were worth $290 an hour, because that it is about what the court had awarded them before in other cases. After other adjustments not relevant here, the fee award came to $139,310.20, or $45.72 for every man, woman, and child in Greensboro (according to 1990 census figures).

Greensboro appeals.5 We review the district court's award for abuse of discretion, but this deferential standard of review does not prevent us from revisiting questions of law de novo, or from reviewing subsidiary findings of fact for clear error. See ACLU v. Barnes, 168 F.3d 423, 427, 436 (11th Cir.1999).

II. Discussion

42 U.S.C. § 1973l (e) authorizes an award of attorney fees to the prevailing party "...

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