Mississippi State Chapter Operation Push v. Mabus

• Decision Date: 04 March 1992
• Docket Number: Civ. A. No. DC 84-35-D-O.
• Citation: 788 F. Supp. 1406
• Parties: MISSISSIPPI STATE CHAPTER OPERATION PUSH, et al., Plaintiffs, v. Ray MABUS, Governor of Mississippi, et al., Defendants.
• Court: U.S. District Court — Northern District of Mississippi

788 F. Supp. 1406

MISSISSIPPI STATE CHAPTER OPERATION PUSH, et al., Plaintiffs, v. Ray MABUS, Governor of Mississippi, et al., Defendants.

Civ. A. No. DC 84-35-D-O.

United States District Court, N.D. Mississippi, Delta Division.

March 4, 1992.

Frank R. Parker, Barbara Arnwine, Lawyers Committee for Civil Rights Under Law, Washington, D.C., Julius L. Chambers, Judith Reed, NAACP Legal Defense Fund, New York City, Johnnie L. Walls, Greenville, Miss., for plaintiffs.

T. Hunt Cole, Special Asst. Atty. Gen., Jackson, Miss., for defendant.

MEMORANDUM OPINION

DAVIDSON, District Judge.

Several attorneys' fees motions concerning the above captioned case are presently pending before this court: plaintiffs' motion for an award of attorneys' fees and litigation expenses filed on September 18, 1989, the November 1, 1989 motion to amend same and most recently, plaintiffs' supplemental motion for an award of attorneys' fees and expenses for legal services rendered on appeal. The court's opinion collectively addresses each of these motions beginning with the most recent — plaintiffs' supplemental motion for an award of attorneys' fees and expenses.

I. BACKGROUND

More than seven years have passed since plaintiffs initially brought suit in this court under § 2 of the Voting Rights Act of 1965, as amended, 42 U.S.C. 1973(a)¹, challenging Mississippi's dual registration requirement and prohibition on satellite (or off-site) voter registration. MISS.CODE ANN. §§ 21-11-1² and 23-5-29³ (1972). Plaintiffs challenged these statutes as devices designed by the state legislature to limit black voter registration⁴. PUSH v. Mabus, 932 F.2d 400, 403 (5th Cir.1991). Before trial, in 1984, the Mississippi state legislature amended the challenged laws and sought dismissal of the PUSH suit as moot. PUSH, 932 F.2d at 403. PUSH, however, rejected the newly enacted amendments to the challenged laws and still maintained that dual registration and satellite prohibitions persisted with a discriminatory purpose. Mississippi State Chapter, Operation PUSH v. Mabus, 717 F.Supp. 1189, 1190 (N.D.Miss.1989). In denying defendants' motion to dismiss, the court determined that "the amended statutes did not completely eliminate either dual registration or the prohibitions on satellite voting or off-site voter registration"⁵. PUSH, at 1247. The case, therefore, proceeded to trial where plaintiffs were permitted to continue their challenge under § 2 of the Voting Rights Act, 42 U.S.C. § 1973(a). PUSH, 717 F.Supp. at 1190. The court found no discriminatory purpose behind enactment of the challenged statutes, but determined that the laws had a discriminatory impact on black Mississippians, PUSH v. Allain, 674 F.Supp. at 1260, in violation of § 2 of the Voting Rights Act. PUSH, 674 F.Supp. at 1268.

Rather than award plaintiffs the injunctive relief which they requested, the court afforded Mississippi lawmakers an opportunity to remedy the § 2 violations since a new legislative session was just about to commence. The court then offered four suggestions for changing the existing scheme as the minimum requirements for bringing registration procedures in line with the Voting Rights Act.⁶

In direct response to the court's suggestions, the state legislature adopted S. 2610, 1988 Miss.Gen.Laws, ch. 350 (codified as amended at Miss.Code Ann. §§ 23-15-14, 23-15-35, 23-15-37, 23-15-39, and XX-XX-XXX (Supp.1989)). PUSH, 932 F.2d at 404. While the bill had met every requirement which the court suggested, it faced objections from PUSH. Id. Claiming that the bill was an insufficient remedy, PUSH asked the court to order mail-in registration, voter registration in state and local agencies, and election day registration.⁷ Id.

Rejecting PUSH's arguments, the court found that S.B. 2610 effectively remedied the § 2 violations of the Voting Rights Act. PUSH, 717 F.Supp. at 1192. PUSH protested this court's acceptance of the statutory remedy and appealed to the Fifth Circuit. PUSH, 932 F.2d at 405. The appeal, however, failed; the Court of Appeals held "that the district court applied the correct legal standards to the legislation and did not abuse its discretion in approving S.B. 2610 as a remedy for the § 2 violations." Id. at 407. The district court was affirmed in all respects. Id. at 413.

II. CONCLUSIONS

A. Plaintiffs' Supplemental Motion for Attorneys' Fees and Expenses

To recover attorneys' fees under 42 U.S.C. 1988 or 42 U.S.C. § 1973l(e), plaintiffs must be prevailing parties. "No fee award is permissible until the plaintiff has crossed the `statutory threshold' of prevailing party status." Dahlem v. Denver Board of Education, 901 F.2d 1508, 1511 (10th Cir.1990) quoting Texas State Teachers Ass'n v. Garland Indep. School District, 489 U.S. 782, 109 S.Ct. 1486, 1491, 103 L.Ed.2d 866 (1989) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983)). Before he can be said to prevail, a plaintiff must receive at least some relief on the merits of his claim. Hewitt v. Helms, 482 U.S. 755, 760, 107 S.Ct. 2672, 2675, 96 L.Ed.2d 654, 661 (1987). Even stretching prevailing party status to its outermost limits, the court is of the opinion that plaintiffs simply lack it with respect to this supplemental motion. Hewitt v. Helms, 482 U.S. at 759, 107 S.Ct. at 2675, 96 L.Ed.2d at 661. Plaintiffs' supplemental motion is for an award of fees and expenses incurred in pursuing a losing appeal.⁸ People who bring losing suits must bear their own attorneys fees. Palmer v. City of Chicago, 806 F.2d 1316, 1323 (7th Cir.1986).

Plaintiffs somehow view losing the appeal as a victory; they attempt to derive prevailing status from the Fifth Circuit's pronouncement that "nothing in this opinion prevents PUSH from bringing a future challenge to Mississippi's voter registration procedures." PUSH v. Mabus, 932 F.2d at 407. While that statement may have softened the impact of losing the appeal and encouraged plaintiffs, one favorable statement, in an opinion that rejects plaintiffs' argument in totem, does not suffice to render him a prevailing party. Hewitt, 482 U.S. at 763, 96 L.Ed.2d at 663, 107 S.Ct. at 2677. Future successful challenges are always possible; however, possible future wins do not convert immediate failures into successes. The fact remains that the Fifth Circuit was not impressed with plaintiffs' claim that enactment of S.B. 2610 had a racially discriminatory purpose.⁹ PUSH, 932 F.2d at 408. The Court of Appeals concluded that S.B. 2610 established reasonable registration procedures common to many states, Id. at 409, and sufficiently remedied the § 2 violations. Accordingly, the district court decision approving S.B. 2610 was affirmed.

In Hennigan v. Quachita Parish School Board, 749 F.2d 1148, 1151-52 (5th Cir.1985), the Fifth Circuit considered the standard for measuring whether a plaintiff has succeeded sufficiently to be a prevailing party, despite a failure to obtain a judgment in his favor. Jackson v. Stevenson, 666 F.Supp. 99, 100 (S.D.Miss 1986). According to the Hennigan court,

the first element that must be established by a plaintiff claiming prevailing status is whether, as a practical matter, the plaintiff's goal was achieved.

Jackson v. Stevenson, 666 F.Supp. at 101. Because mail-in voter registration has since been adopted into Mississippi law, plaintiffs claim to have prevailed. However, to be prevailing parties for purposes of attorneys' fees, plaintiffs must show that it was plaintiffs' lawsuit that caused defendants to bring about the desired goal. Hennigan, 749 F.2d at 1152. Defendants often make unrequired changes of their own accord. Hennigan, 749 F.2d at 1153. Whether it is for economic, political, or purely personal concerns is immaterial. Id. If it has been judicially determined that defendants' conduct, however beneficial it may be to plaintiffs' interests, is not required by law, then defendants must be held to have acted gratuitously and plaintiffs have not prevailed in a legal sense. Palmer v. City of Chicago, 806 F.2d 1316, 1322, quoting Nadeau v. Helgemoe, 581 F.2d 275, 281 (1st Cir.1978). See Taylor v. Safeway Stores, Inc., 524 F.2d 263 (10th Cir.1975). Even if the lawsuit was not frivolous "and even if the suit brought about some or for that matter all of the changes in the defendants conduct that the plaintiffs had sought," Palmer, 806 F.2d at 1323, plaintiffs have not prevailed within the meaning of the statute. Such is the case here. The defendants were not required to enact mail-in voter registration legislation, PUSH, 717 F.Supp. at 1192. Nevertheless, the state legislature later passed a bill providing for mail-in voter registration which Mississippi's governor signed on April 1, 1991. PUSH, 932 F.2d at 412. The court is of the opinion that the appeal had "little if any effect on final implementation" of mail-in voter registration. Williams, 672 F.2d 549. At most, plaintiffs' appeal only heightened the momentum "in a course of action already begun." Posada, 716 F.2d at 1076.¹⁰ Given the above, "a civil rights plaintiff may not collect attorneys' fees for demanding that a state officer do what he would have done in any case." Williams v. Leatherbury, 672 F.2d 549, 551 (5th Cir.1982), Posada v. lamb County, Texas, 716 F.2d 1066, 1072 (5th Cir. (1983) quoting Coen v. Harrison County School Board, 638 F.2d 24, 26 (5th Cir.1981).

B. Plaintiffs' Original Motion for Attorneys' Fees and Expenses and the Amended Motion

a. Attorneys' Fees Provision

The applicable section of Title 42 U.S.C. § 1973l(e) provides that "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."

b. Prevailing Party Status and the Separate Stages of Litigation

Plaintiffs' motion for attorneys' fees covers services performed in two separate...