Perrin v. Kitzhaber

• Decision Date: 21 January 2004
• Citation: 83 P.3d 368,191 Or. App. 439
• Parties: Cheryl PERRIN, Charles P. Duffy, and David W. Sherman, Appellants, and Kate Brown and Dan Gardner, Intervenors-Appellants, v. John KITZHABER, in his official capacity as Governor of Oregon; and Bill Bradbury, in his official capacity as Secretary of the State of Oregon, Respondents. Jason Atkinson, Roger Beyer, William Fisher, John Minnis, Charles Starr, and the Oregon Republican Party, Appellants, and Kate Brown and Dan Gardner, Intervenors-Appellants, v. State of Oregon, John Kitzhaber, in his official capacity as Governor of Oregon; and Bill Bradbury, in his official capacity as Secretary of the State of Oregon, Respondents.
• Court: Oregon Court of Appeals

83 P.3d 368

191 Or. App. 439

Cheryl PERRIN, Charles P. Duffy, and David W. Sherman, Appellants, and Kate Brown and Dan Gardner, Intervenors-Appellants, v. John KITZHABER, in his official capacity as Governor of Oregon; and Bill Bradbury, in his official capacity as Secretary of the State of Oregon, Respondents.

Jason Atkinson, Roger Beyer, William Fisher, John Minnis, Charles Starr, and the Oregon Republican Party, Appellants, and Kate Brown and Dan Gardner, Intervenors-Appellants, v. State of Oregon, John Kitzhaber, in his official capacity as Governor of Oregon; and Bill Bradbury, in his official capacity as Secretary of the State of Oregon, Respondents.

0107-07021, 0107-07020; A118103.

Court of Appeals of Oregon.

Argued and Submitted November 10, 2003.

Decided January 21, 2004.

Julia E. Markley, Portland, argued the cause for appellants Cheryl Perrin, Charles P. Duffy, and David W. Sherman. With her on the opening brief were Michael H. Simon, Elizabeth Schwartz, Thomas R. Johnson, Jr., Portland, and Perkins Coie LLP. With her on the reply brief were Michael H. Simon and Perkins Coie LLP.

John DiLorenzo, Jr., Portland, argued the cause for appellants Jason Atkinson, Roger Beyer, William Fisher, John Minnis, Charles Starr, and the Oregon Republican Party. With him on the opening brief were Aaron K. Stuckey, Portland, and Hagen Hirschy DiLorenzo & Grein, P.C. With him on the reply brief were Aaron K. Stuckey and Davis Wright Tremaine LLP.

Thane W. Tienson, Portland, argued the cause for intervenors-appellants. With him on the briefs was Landye Bennett Blumstein LLP.

Richard D. Wasserman, Attorney-in-Charge, Civil/Administrative Appeals Unit, argued the cause for respondents. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before HASELTON, Presiding Judge, and LINDER and WOLLHEIM, Judges.

HASELTON, P. J.

In these consolidated actions involving redistricting of Oregon's congressional districts, plaintiffs Cheryl Perrin, Charles P. Duffy, and David W. Sherman (the Perrin plaintiffs), Jason Atkinson, Roger Beyer, William Fisher, John Minnis, Charles Starr, and the Oregon Republican Party (the Atkinson plaintiffs), and intervenors Kate Brown and Dan Gardner all appeal, challenging the trial court's refusal to award them attorney fees and costs pursuant to 42 USC section 1988. The trial court denied attorney fees and concluded that (1) the Atkinson plaintiffs had not "prevailed"; and (2) the Perrin plaintiffs and intervenors, while "prevailing," fell within a "special circumstances" exception to entitlement to fees under that statute. As described below, we conclude that all parties "prevailed" for purposes of section 1988 and that no "special circumstances" exception to fee entitlement applies. Accordingly, we remand for the trial court to determine the reasonableness of plaintiffs' and intervenors' fees incurred in litigating all issues, including the scope and nature of the remedy.

The pertinent facts are undisputed. The 2000 decennial census showed a shift in Oregon's population that resulted in a malapportioned distribution among the then-existing congressional districts. See ORS 188.135 (2001) (describing areas encompassed within Oregon's congressional districts that were in effect as of December 18, 1991). Consequently, the legislature undertook to redraw the congressional districts. See ORS 188.010.¹ Predictably, the Democratic and Republican parties offered contending solutions. Towards the end of the 2001 legislative session, with Republicans constituting a majority of both the Senate and the House, the legislature approved the Republican-sponsored plan, Senate Bill (SB) 500, on a strict party-line vote. Then Governor John Kitzhaber, a Democrat, vetoed SB 500. Unable to override the veto, the legislature adjourned sine die, having failed to redraw the congressional districts. That left the existing (1991) districts still in place.

In July 2001, with the May 2002 primary election ten months away, the Perrin plaintiffs and the Atkinson plaintiffs filed separate actions in Multnomah County Circuit Court, alleging claims under 42 USC section 1983. Those actions, which named Kitzhaber and Secretary of State Bill Bradbury as defendants, asserted that the existing congressional districts were unconstitutionally malapportioned, in violation of Article I, section 2, of the United States Constitution, as well as the Equal Protection Clause and the Privileges and Immunities Clause of the Fourteenth Amendment.² The Perrin plaintiffs represented the interests of the National Democratic Party; intervenors represented the interests of the Oregon Democratic Party; and the Atkinson plaintiffs represented the interests of the Oregon Republican Party.

In both actions, plaintiffs sought both declaratory relief and an injunction prohibiting defendants from ordering or conducting future elections based on the malapportioned districts. However, the parties differed as to the precise remedy. The Perrin plaintiffs and intervenors urged the adoption of the Democratic plan, while the Atkinson plaintiffs urged the adoption of SB 500. Central to that dispute were the criteria prescribed in ORS 188.010. Defendants answered, conceding that the existing districts were unconstitutional, but denying any violation of plaintiffs' constitutional or civil rights. Defendants did not endorse either of the proposed plans or advocate any alternative redistricting plan.

The trial court consolidated the cases for trial and heard two weeks of testimony that focused almost exclusively on the question of how the districts should be redrawn. In early November 2001, the court entered a judgment that (1) declared that the 1991 districts were unconstitutional; (2) permanently enjoined defendants from conducting future congressional elections based on those districts; and (3) adopted the Democratic plan advanced by the Perrin plaintiffs and intervenors, because that plan "minimizes disruption of the existing congressional districts and better complies with the statutory criteria of ORS 188.010." No party appealed from that judgment.

Later in November 2001, all plaintiffs and intervenors petitioned the court for attorney fees, asserting that they had "prevailed" for purposes of section 1988. The Perrin plaintiffs requested costs and attorney fees of $531,739.01; intervenors requested $61,899.96; and the Atkinson plaintiffs requested $144,996.34.

The trial court denied all of the fee requests in their entirety. The court's letter opinion began by addressing which of the parties had "prevailed" for purposes of section 1988. The court noted that "[a]ll plaintiffs [and intervenors] claim to have prevailed because the court granted the relief sought, namely, an injunction which prohibited the defendants from conducting elections under the then-existing malapportioned congressional districts." The court then stated, without amplification, that the Perrin plaintiffs and intervenors had "prevailed in this litigation for the reason that their plan was adopted by the court." Conversely, the trial court concluded that the Atkinson plaintiffs had not "prevailed":

"In most cases in which this issue has been examined * * *, the federal courts have been reluctant to confer prevailing party status on the party whose plan is rejected by the court. After consideration of the cases which have examined this issue, this court agrees with that reasoning. The only real issue in this case was which of the two plans should be adopted by the court. Under that analysis, the Perrin and Brown/Gardner plaintiffs were the clear winners. While the evidence produced at trial by the Atkinson plaintiffs was helpful to the court, it did not meet the statutory criteria by which this court was guided in reaching its decision. For that reason, this court cannot find that the Atkinson plaintiffs prevailed as that term is generally understood and applied."

Notwithstanding its determination that the Perrin plaintiffs and intervenors had prevailed, the trial court held that the "special circumstances" of this litigation precluded any award of fees. The court acknowledged that the "federal circuit courts * * * have uniformly held that congressional redistricting cases of this kind present no special circumstances justifying the denial of attorney fees and costs." Nevertheless, the trial court adopted, as persuasive, the reasoning of the dissenting opinion in Hastert v. Illinois State Bd. of Election Com'rs, 28 F.3d 1430, 1444 (7th Cir.1993), cert. den., 513 U.S. 964, 115 S.Ct. 426, 130 L.Ed.2d 340 (1994) (Coffey, J., dissenting). The trial court explained:

"This court disagrees with the reasoning of those courts and finds that this purely political case does indeed fall within the special circumstances exception to the general rule in favor of awarding attorney fees. It was necessary to file this case only because the members of the legislature, voting along straight party lines, failed to fulfill their constitutionally-imposed duty to redraw congressional district lines following the 2000 decennial census. No substantial rights were vindicated by this litigation. This is, at its core, a turf war between the two well-funded major political parties. The litigation in this case vindicated primarily their interests and those of the candidates who seek election in the [disputed districts].

"Such interests, while understandable and arguably laudable, are not, in this court's opinion, among those sought to be protected by Congress when it enacted this voting rights legislation. [Section 1988's] goal of inducing `voluntary compliance with the law' was never at issue in this case. The defendants acknowledged the need to redraw lines from the outset. Unlike the voting rights case in which a suit is necessary to redress wrongs perpetrated by those in a position of power against a disenfranchised group of voters, this case was solely

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