Lytle v. Commissioners of Election of Union County, 75-1327

• Decision Date: 10 February 1976
• Docket Number: No. 75-1327,75-1327
• Citation: 541 F.2d 421
• Parties: Robert LYTLE, Appellee, v. COMMISSIONERS OF ELECTION OF UNION COUNTY et al., Appellants.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 421

541 F.2d 421

Robert LYTLE, Appellee, v. COMMISSIONERS OF ELECTION OF UNION COUNTY et al., Appellants.

No. 75-1327.

United States Court of Appeals, Fourth Circuit.

Argued Nov. 12, 1975.

Decided Feb. 10, 1976.

John L. Choate, Asst. Atty. Gen. of S. C., Columbia, S. C. (Daniel R. McLeod, Atty. Gen. of S. C., C. Tolbert Goolsby, Jr., Deputy Atty. Gen., Karen LeCraft Henderson, Asst. Atty. Gen. of S. C., Columbia, S. C., Bruce W. White, Union County Atty., Union, S. C., on brief), for appellants.

Amand Derfner, Charleston, S. C., and David Ross Clarke, Milford, S. C., for appellee.

Before WINTER, CRAVEN and WIDENER, Circuit Judges.

CRAVEN, Circuit Judge:

This is an appeal by the Commissioners of Election of Union County from an award of attorney's fees to counsel for Lytle. We affirm.

I.

In March 1974 Appellee Robert Lytle brought suit under 42 U.S.C. § 1983 against the Commissioners of Election of Union County, South Carolina, in their official capacities alleging generally that residency requirements for election to the Township Commission ¹ violated the fourteenth amendment by diluting the power of his vote. He sought declaratory and injunctive relief against the future operation of that system of representation.

In May 1974 the district court entered summary judgment for Lytle, finding that while elections were at large for the entire eight-member Commission, the requirement that each commissioner reside in a separate township violated the fourteenth amendment because of the substantial inequality in population of these townships. Judge Blatt enjoined the Election Commissioners from holding any further elections for the Commission under these residency requirements and ordered that the primary and general elections in 1974 be conducted with all candidates running at-large on a countywide basis.

Hearing the case on expedited appeal, we affirmed the holding of the district court that the residency requirements of the election plan in Union County were unconstitutional. ² We read Dusch v. Davis, 387 U.S. 112, 87 S.Ct. 1554, 18 L.Ed.2d 656 (1967), as meaning that while residency requirements may be constitutionally permissible as part of a rational system of local government, the system was constitutionally deficient where the plan would allow a "minority in numbers . . . to control the governing board . . .." ³ 509 F.2d at 1052. However, finding that the interim relief ordered by the district court was unnecessarily extensive, we reversed on that issue and remanded with the direction that a plan be developed which incorporated the election of some members from specific geographical areas and others as "floaters" without any residency requirements. ⁴ On remand the district court ordered implementation of a plan with five members of the Commission elected with residency requirements and three without any such requirements.

In August 1974 Lytle filed a motion for attorney's fees. A hearing was held on the motion in September, and in January 1975 Judge Blatt entered an order awarding attorney's fees in the amount of $5,000. It is from this award that the instant appeal is taken.

II.

The district court granted attorney's fees on alternative grounds: the private attorney general and the common benefit theories, although he specifically stated in his order that he felt the former theory was "more applicable" to the facts of this case. What was a relatively simple question at the time is now complex because the law has changed.

On May 12, 1975, the Supreme Court handed down its opinion in Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). That case specifically destroyed the power of a district court to award attorney's fees under the private attorney general theory. Furthermore, the Court's discussion of the proper application of the common benefit theory clearly indicated that it is inappropriate for the case at hand. Id. at 264 n.39, 95 S.Ct. 1612. The Court specifically recognized that it was for the Congress to select, by statutory authorization, those types of actions in which attorney's fees should be awarded.

And Congress acted on August 6, 1975, adding § 14(e) as an amendment to the Voting Rights Act. That section ⁵ provides as follows:

(e) In any action or proceeding to enforce the voting guarantees of the fourteenth or fifteenth amendment, 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.

Then came Dallas County v. Reese, 421 U.S. 477, 95 S.Ct. 1706, 44 L.Ed.2d 312 (1975), decided on May 19, 1975. Dallas County held that the fact a majority of a governing board may be elected from residential districts comprising a minority of the entire unit's population, without more, does not establish a constitutional violation. The Court nevertheless recognized that such claims may establish a constitutional violation, but in order to do so, they "must be based on findings in a particular case that a plan in fact operates impermissibly to dilute the voting strength of an identifiable element of the voting population." Id. at 480, 95 S.Ct. at 1708. See also, Vollin v. Kimbel, 519 F.2d 790 (4th Cir. 1975).

III.

In Bradley v. Richmond School Board, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974), the Supreme Court held that on direct appeal "a court is to apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary." Id. at 711, 94 S.Ct. at 2016. We readily agree with the Commissioners' argument that judicial opinions as well as statutory developments are included within the "law in effect" concept. See id. at 715, 94 S.Ct. 2006.

The Commissioners concede that in a proper case the district courts are authorized by § 14(e) of the 1975 Voting Rights Act amendments to award counsel fees. But they urge this is not such a case and that on its peculiar facts and because of Dallas County, supra, Lytle is not entitled to receive the benefit of the statute. We disagree.

The Commissioners argue first that Lytle is not the prevailing party even before Dallas County. They contend that, since all residency requirements were not abolished and since modifications of the plan could be made either by the legislature or the district court, Lytle did not prevail below. The district court, in considering the issue of attorney's fees, concluded that Lytle had prevailed. We find that while all residency requirements were not abolished under the terms of the circuit court's opinion, Lytle did establish in that suit that the system in operation violated the Constitution and won relief appropriate, in the opinion of this court, to remedy that constitutional infirmity. ⁶

Even after Dallas County, ⁷ Lytle remains the prevailing party. Since the Commissioners did not seek review in the Supreme Court, our decision became the law of the case. ⁸

We reject the Commissioners' contention that, under Dallas County's explication of the meaning of the Constitution, Lytle's suit is not "an action to enforce any voting guarantees of the fourteenth amendment" and, therefore, does not come within the terms of the 1975 legislation. ⁹

Dallas County held that, without more, residency requirements of the type in effect in Union County did not violate the fourteenth amendment. That case, as noted above, recognized that a constitutional violation is established where it is shown that the "plan in fact operates impermissibly to dilute the voting strength of an identifiable element of the voting population." 421 U.S. at 480, 95 S.Ct. at 1708.

This case was decided in favor of Lytle on motion for summary judgment. The court made no finding as to the invidious effect of the plan's operation in Union County because prior to Dallas County such a finding would have been superfluous. For reasons already expressed, we need not go back and retry the case. For Lytle to prevail, all we need determine is whether this was an action to enforce the voting guarantees of the fourteenth amendment. It is enough that under the theory of Lytle's complaint such a showing might have been made had his motion for summary judgment been denied.

Lytle specifically alleged that the system operated to dilute his voting strength in violation of the fourteenth amendment. Furthermore, Lytle's affidavit, which was before the court when it considered the motion for summary judgment, specifically contends "that other Commissioners (outside Union Township, which contains over 50 percent of the county's population) have primarily represented the interests of their respective townships . . . ." This is precisely the type of allegation which Dallas County recognized would establish a constitutional violation if accepted as true: " 'If a borough's resident on the council represented in fact only the borough, . . . different conclusions might follow.' " 421 U.S. at 480, 95 S.Ct. at 1708 (quoting from Dusch v. Davis, supra ). We, therefore, conclude that Lytle's action does in fact come within the terms of § 14(e) of the 1975 amendments to the Voting Rights Act.

The Commissioners further urge that in any case attorney's fees should not be awarded since they come within the exception mentioned in Bradley,supra, that legal developments during appeal should not be applied where they would cause "manifest injustice." 416 U.S. at 711, 94 S.Ct. 2006. We view this argument as wholly without merit. All of the reasons advanced by Mr. Justice Blackmun in Bradley for refusing the benefit of the exception to the school board apply equally here.

Finally, the Commissioners argue that they are immune from suit under the eleventh amendment and that they may not be sued under 42 U.S.C. § 1983 since in their official capacities they are not persons within the meaning of that statute.

As the district court found, this suit is...