People Organized for Welfare and Employment Rights (P.O.W.E.R.) v. Thompson

Decision Date14 February 1984
Docket NumberNos. 83-1115,83-1323 and 83-1610,s. 83-1115
Citation727 F.2d 167
PartiesPEOPLE ORGANIZED FOR WELFARE AND EMPLOYMENT RIGHTS (P.O.W.E.R.), Walter Tunis, and Clarence Propst, Plaintiffs-Appellees, v. James R. THOMPSON, Governor of the State of Illinois, Jeffrey C. Miller, Director of the Illinois Department of Public Aid, and E. Allen Bernardi, Director of the Illinois Department of Labor, Defendants-Appellants, Michael Lavelle, Chairman of the Board of Election Commissioners of the City of Chicago, Corneal Davis and James R. Nolan, Commissioners, Defendants-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

James C. O'Connell, Asst. Atty. Gen., Welfare Litigation, Chicago, Ill., for defendants-appellants.

Thomas Johnson, Legal Asst. Found. of Chicago, Chicago, Ill., for plaintiffs-appellees.

Before ESCHBACH and POSNER, Circuit Judges, and SWYGERT, Senior Circuit Judge.

POSNER, Circuit Judge.

We must decide in this case whether an association that is dedicated to increasing the political power of the poor and the unemployed, but that has no members who are not registered to vote, has standing to litigate the question whether the First Amendment requires a state to permit local election officials to register voters in the state's public aid and unemployment compensation offices.

At the time this suit began, P.O.W.E.R. ("People Organized for Welfare and Employment Rights") was an association of members of various community, civil rights, and welfare rights organizations in Chicago such as the Chicago Urban League, the Chicago Welfare Rights Organization, and Operation P.U.S.H. Its goal, in its words, was "to organize persons eligible for public assistance and unemployment compensation benefits, to educate them as to their legal rights, including their right to vote, and to improve the social and economic conditions under which they live through all lawful means, including the electoral process." It conducted its first voter registration drive in the summer and fall of 1982. Its volunteers were allowed into the waiting rooms of Illinois Department of Public Aid and Department of Labor offices throughout Chicago to try to persuade people coming to the offices for their welfare or unemployment compensation checks to register to vote. The actual registration was done by registrars of the city's Board of Election Commissioners at tables set up on the sidewalks outside the offices.

The registration drive was a big success and P.O.W.E.R. wanted to repeat it for the 1983 mayoral primary and general elections, scheduled for February 22 and April 12. The problem was that it might be too cold then for outdoor registration. The Board of Election Commissioners had the use of only two mobile registration vans, not enough to cover the 36 major public aid and unemployment compensation offices in Chicago. P.O.W.E.R. asked the state to allow the Board's registrars to conduct voter registration in the waiting rooms. When the state refused, P.O.W.E.R. brought this suit (in its name and that of two of its members) under 42 U.S.C. Sec. 1983 against the responsible state officers, claiming that the refusal to admit the registrars violated the First Amendment. The theory was that registration and voting are forms of expression. The Board of Election Commissioners was named as an additional defendant though it later turned out that the Board was perfectly willing to put its registrars in the waiting rooms.

The district court granted a preliminary injunction directing the Board to assign registrars to the waiting rooms and forbidding the state defendants to interfere. Registration for the February and April elections was conducted in the waiting rooms pursuant to the injunction. After the elections P.O.W.E.R. moved the district judge for a voluntary dismissal of its suit. Fed.R.Civ.P. 41(a)(2). The district judge granted the motion and awarded $13,000 in attorney's fees to P.O.W.E.R. under 42 U.S.C. Sec. 1988, 559 F.Supp. 54, to be paid entirely by the state defendants. Those defendants appealed the fee award along with the orders granting the preliminary injunction and allowing voluntary dismissal of the suit. See 28 U.S.C. Secs. 1291, 1292(a)(1); Stern v. Barnett, 452 F.2d 211 (7th Cir.1971).

We must first consider whether the case has become moot. Not only are the elections originally involved in the case long past, but P.O.W.E.R. has been dissolved and the Illinois legislature has enacted a law (Sen. Bill 1301), effective November 3, 1983, which the appellees contend requires the state to allow registration in the waiting rooms of state welfare and unemployment compensation (among other state) offices. Actually, the provisions of the bill are complex, and it is not clear that the bill means just what the appellees say it means. But we need not get into that here; we need not decide whether the new statute has mooted the substantive controversy between the parties, or whether P.O.W.E.R.'s dissolution has. These are difficult questions. Until it filed its motion to dismiss the two substantive appeals, after oral argument in this case, P.O.W.E.R. conceded that the case was not moot just because the elections were over and done with, since it intended to seek the same kind of preliminary injunction the next time there was a primary or general election in Chicago. See Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 546, 96 S.Ct. 2791, 2796, 49 L.Ed.2d 683 (1976); Southern Pac. Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911). And though P.O.W.E.R. has now been dissolved, it was a coalition of organizations which still exist and which could and presumably would reconstitute P.O.W.E.R. in advance of the next round of elections, if need be.

But however these questions are answered, the plaintiffs cannot obtain the attorney's fees that they seek, and that the defendants in No. 83-1610 ask us to deny, unless P.O.W.E.R. or one of the other plaintiffs had standing to bring this lawsuit in the first place. Standing is a jurisdictional prerequisite. See, e.g., Davis v. Passman, 442 U.S. 228, 239 n. 18, 99 S.Ct. 2264, 2274 n. 18, 60 L.Ed.2d 846 (1979). If the district court never acquired subject-matter jurisdiction of this case it had no power to order the defendants to pay the plaintiffs their attorney's fees, and the defendants are entitled to have that order, along with all the other orders in the case, set aside. But we shall not have to decide whether the award of attorney's fees saves the entire case from being moot, on the theory that a plaintiff is not a prevailing party within the meaning of section 1988 if he had no legal right to the preliminary relief he obtained. See Comment, Civil Rights Attorney's Fees Awards in Moot Cases, 49 U.Chi.L.Rev. 819, 836 (1982).

It may seem odd that P.O.W.E.R. should continue to seek an award of attorney's fees after it has been dissolved. If dissolution moots the substantive controversy between the plaintiffs and the (state) defendants, as P.O.W.E.R. argues, it is not obvious why it does not also moot the controversy over attorney's fees. We take it, however, that P.O.W.E.R.'s successors in interest, presumably the organizations that formed it originally, have succeeded to any rights it may have had to an award of attorney's fees, and we have absolutely no reason to doubt that the lawyers who have filed papers with us on P.O.W.E.R.'s behalf after its formal dissolution are legitimate representatives of its constituent organizations. The defendants do not question the lawyers' bona fides; nor shall we. In any event, these lawyers also represent the individual plaintiffs in the case, who are appellants along with P.O.W.E.R. in the attorney's fee appeal. And so we come at last to the issue of standing.

It is usual to begin discussion of an organization's standing to sue by saying that it has standing if it alleges an injury to itself, as in Chicano Police Officer's Ass'n v. Stover, 526 F.2d 431, 436 (10th Cir.1975), vacated on other grounds, 426 U.S. 944, 96 S.Ct. 3161, 49 L.Ed.2d 1181 (1976), or (with certain qualifications, see Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383 (1977); International Union v. Johnson, 674 F.2d 1195, 1200 (7th Cir.1982), not necessary to discuss here) if it alleges an injury to its members. See NAACP v. Alabama, 357 U.S. 449, 459, 78 S.Ct. 1163, 1170, 2 L.Ed.2d 1488 (1958); Sierra Club v. Morton, 405 U.S. 727, 739, 92 S.Ct. 1361, 1368, 31 L.Ed.2d 636 (1972); Rockford League of Women Voters v. Nuclear Regulatory Comm'n, 679 F.2d 1218, 1221-22 (7th Cir.1982). A problem in a case such as this brought under 42 U.S.C. Sec. 1983, a civil rights tort statute, is that section 1983 contains no suggestion that Congress wanted to allow an association to sue to enforce not only its own civil rights but those of its members. See Currie, Misunderstanding Standing, 1981 Sup.Ct.Rev. 41, 45. But pass that point and assume that if P.O.W.E.R. were complaining that the defendants had made it difficult for one or more of P.O.W.E.R.'s members to register to vote, it would have standing. This assumption does not help P.O.W.E.R. It has never alleged that any of its members were not registered to vote or had incurred inconvenience in registering; and at argument its counsel was emphatic in disclaiming any intention to base standing on such a theory. Nor has it contended (except obliquely in a footnote of its appeal brief--too little and too late) that it should have been allowed to sue as the representative of the unregistered because they are unable to look after their own interests, or for any other reason.

P.O.W.E.R. in bringing this suit alleged only that its goal of improving the lot of the poor and the unemployed required for its fulfillment that the state make it easier for them to register. This might be a persuasive basis for standing if P.O.W.E.R....

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