Emery v. Hunt

• Decision Date: 18 October 2001
• Docket Number: No. 01-1459,01-1459
• Citation: 272 F.3d 1042
• Parties: (8th Cir. 2001) STEVEN C. EMERY; ROCKY LE COMPTE; JAMES PICOTTE, APPELLANTS, v. ROGER HUNT, IN HIS OFFICIAL CAPACITY AS SPEAKER OF THE SOUTH DAKOTA HOUSE OF REPRESENTATIVES; HOUSE OF REPRESENTATIVES, SOUTH DAKOTA; CAROLE HILLARD, IN HER OFFICIAL CAPACITY AS PRESIDENT OF THE SOUTH DAKOTA SENATE; SENATE, SOUTH DAKOTA; JOYCE HAZELTINE, IN HER OFFICIAL CAPACITY AS SECRETARY OF THE STATE OF SOUTH DAKOTA, APPELLEES. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1042

272 F.3d 1042 (8th Cir. 2001)

STEVEN C. EMERY; ROCKY LE COMPTE; JAMES PICOTTE, APPELLANTS, v. ROGER HUNT, IN HIS OFFICIAL CAPACITY AS SPEAKER OF THE SOUTH DAKOTA HOUSE OF REPRESENTATIVES; HOUSE OF REPRESENTATIVES, SOUTH DAKOTA; CAROLE HILLARD, IN HER OFFICIAL CAPACITY AS PRESIDENT OF THE SOUTH DAKOTA SENATE; SENATE, SOUTH DAKOTA; JOYCE HAZELTINE, IN HER OFFICIAL CAPACITY AS SECRETARY OF THE STATE OF SOUTH DAKOTA, APPELLEES.

No. 01-1459

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: October 18, 2001

Filed: December 6, 2001

Appeal from the United States District Court for the District of South Dakota

[Copyrighted Material Omitted] Before Wollman, Chief Judge, Fagg and Riley, Circuit Judges.

Riley, Circuit Judge.

Steven Emery, Rocky Le Compte, and James Picotte brought this lawsuit challenging the legality of a state legislative district in South Dakota. After ruling that the legislative district had been created in violation of the South Dakota Constitution, the district court ordered a special election and awarded attorney fees. On appeal, these three plaintiffs argue that the fee award was too small. Because the district court's fee award appears to have been based, in part, on an erroneous interpretation of federal law, we reverse in part and remand.

I. BACKGROUND

In 1991, following the 1990 census, the South Dakota Legislature drew new district lines for the state senate and house of representatives. It divided the state into thirty-five districts, with each district electing one senator and two members of the house of representatives. In thirty-four of the thirty-five districts, both house members were to be elected at large within the entire district. District 28, in contrast, was divided into two single-member house districts, House Districts 28A and 28B.

The legislature made this special provision for District 28, in its own words, "in order to protect minority voting rights." S.D. Codified Laws § 2-2-28 (Michie 1992). House District 28A included the Cheyenne River Sioux Reservation and portions of the Standing Rock Sioux Reservation. At the time of the 1990 census, approximately sixty percent of the voting-age population of House District 28A was American Indian. In House District 28B, which did not include any reservation land, less than four percent of the voting age population was American Indian. In District 28 as a whole, less than twenty-nine percent of the voting-age population was American Indian.

In 1996, the state legislature abolished House Districts 28A and 28B and required candidates for the two house seats to run in District 28 at large. S.D. Codified Laws § 2-2-28 (Supp. 2001). Several years later, on February 14, 2000, Emery, Le Compte, and Picotte filed this lawsuit challenging the legality of House District 28. These individuals are all residents of the Cheyenne River Sioux Reservation. They sued both houses of the South Dakota Legislature, the leader of each house, and the South Dakota Secretary of State. Their complaint alleged that the state legislature's 1996 redistricting of House District 28 violated both the federal Voting Rights Act of 1965, 42 U.S.C. § 1971, et seq., and Article III, Section 5 of the Constitution of the State of South Dakota. Later, the United States intervened as a plaintiff, alleging only violations of the Voting Rights Act.

The district court ruled in favor of the individual plaintiffs on their state claim without reaching the federal claims. The state constitutional question presented by the individual plaintiffs' complaint was whether the 1996 redistricting violated Article III, Section 5 of the South Dakota Constitution, which provides for apportionment "in 1983 and in 1991, and every ten years after 1991."

On the defendants' motion, the district court certified this question to the South Dakota Supreme Court. The supreme court accepted certification and held that the legislature's 1996 redistricting violated the state constitution. In re Certification of a Question of Law (Emery v. Hunt), 615 N.W.2d 590 (S.D. 2000). On July 28, 2000, the district court informed the parties the federal claims presented by the individual plaintiffs and the United States were moot, and the only remaining issues were the remedy and attorney fees.

On August 10, 2000, the district court held that House Districts 28A and 28B were "the proper legislative districts as a matter of law." As a remedy, the district court voided the results of a previous primary election and ordered that a special primary election be held to choose candidates for the regularly scheduled general election in November. In choosing this remedy, the district court rejected the individual plaintiffs' proposal for a single, general election in which the candidates would be chosen directly by the political parties and by petition.

Emery, Le Compte, and Picotte subsequently filed a motion for costs and attorney fees, asking that out-of-state counsel be compensated at out-of-state rates. In all, they requested $194,678.75 in attorney fees and $11,270.69 in expenses.

The district court awarded $31,541.85 in attorney fees and $2,056.93 in expenses. In reaching this award, the district court denied compensation for particular aspects of the case on which the individual plaintiffs did not prevail. Thus, the district court refused any compensation for the time out-of-state counsel spent working on federal claims. The district court also declined to award or awarded substantially reduced fees for time counsel spent opposing the defendants' motions to dismiss, researching the issue of class certification, and proposing a remedy for the state constitutional violation. The district court calculated the compensation for out-of-state counsel based upon in-state rates, but enhanced the rate for lead out-of-state counsel under the factors listed in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974). See Allen v. Amalgamated Transit Union Local 788, 554 F.2d 876, 884 (8th Cir. 1977). Finally, the district court denied requests for reimbursement of certain postage expenses, time expert witnesses spent performing tasks which the plaintiffs claimed were paralegal, and time attorneys spent preparing itemized billing statements.

Emery, Le Compte, and Picotte¹ now appeal the district court's fee award, arguing that errors by the district court resulted in a fee award that is too small.

II. DISCUSSION

A district court's award of attorney fees is reviewed for abuse of discretion. Webner v. Titan Distrib., Inc., 267 F.3d 828, 838 (8th Cir. 2001). A district court abuses its discretion if it commits an error of law. Koon v. United States, 518 U.S. 81, 100 (1996). Thus, even under the abuse of discretion standard, a district court's rulings on issues of law are reviewed de novo. See Computrol, Inc. v. Newtrend, L.P., 203 F.3d 1064, 1070 (8th Cir. 2000).

Under section 14 of the Voting Rights Act, as amended in 1975, a prevailing plaintiff, other than the United States, may be awarded a reasonable attorney fee in "any action or proceeding to enforce the voting guarantees of the fourteenth or fifteenth amendment." 42 U.S.C. § 1973l(e). The plaintiffs sought an award of fees and costs under this section and under the Civil Rights Attorney's Fees Awards Act, 42 U.S.C. § 1988. In providing for attorney fee awards in civil rights cases, Congress intended to "promote diffuse private enforcement of civil rights law by allowing the citizenry to monitor rights violations at their source, while imposing the costs of rights violations on the violators." Casey v. City of Cabool, 12 F.3d 799, 805 (8th Cir. 1993). See also Ortiz v. Regan, 980 F.2d 138, 140 (2d Cir. 1992).

The defendants do not contest that the plaintiffs are entitled to an award of attorney fees under these federal statutes, even though the plaintiffs ultimately prevailed only on state constitutional claims. See Kimbrough v. Arkansas Activities Ass'n, 574 F.2d 423, 426-27 (8th Cir. 1978). The principal issue presented on appeal is whether the district court was correct in disallowing fees for counsel's work on the plaintiffs' unsuccessful federal claims.

The Supreme Court established the framework for awarding statutory attorney fees in Hensley v. Eckerhart, 461 U.S. 424, 426 (1983), specifically when "a partially prevailing plaintiff may recover an attorney's fee for legal services on unsuccessful claims." Under Hensley, the ordinary starting point for a fee award is multiplying the number of hours reasonably expended by a reasonable hourly rate. Id. at 433. When a plaintiff has prevailed on some claims but not on others, the plaintiff may be compensated for time spent on unsuccessful claims that were related to his successful claims, but not for time spent on unsuccessful claims that were "distinct in all respects from his successful claims." Id. at 440. Claims are related, and hence deserving of compensation, if they "involve a common core of facts" or are "based on related legal theories." Id. at 435. See also Jenkins v. Missouri, 127 F.3d 709, 716 (8th Cir. 1997) (en banc).

There were some legal and factual differences between the plaintiffs' state claim and their federal claims. Most obviously, the state constitutional claim involved the timing of the 1996 redistricting, while the federal claims involved the effect the 1996 redistricting had on the plaintiffs' constitutional right to vote. Compare S.D. Const. art. III, § 5 with 42 U.S.C. § 1973.

Such differences, however, are outweighed by the close relationship between the plaintiffs' state and federal claims. Each of the plaintiffs' claims involved a common core of operative facts - the creation of House Districts 28A and 28B in 1991 and the abolition of these districts by the legislature in 1996 - as well as a legal challenge to that legislative action. The ultimate goal of reestablishing House Districts 28A and 28B for the November 2000...