Robinson v. Kimbrough

• Decision Date: 03 August 1981
• Docket Number: No. 78-2237,78-2237
• Parties: Julia ROBINSON, Willie D. Rutledge, Willie James Brown, Nancy Scott, Otis Curry, George Copeland, Gloria A. Brown, individually and on behalf of all those similarly situated; and Harris County Civil League, Plaintiffs- Appellants, v. William H. KIMBROUGH, James McMichael, Homer A. Page, H. S. Taylor, Steve M. Waddle, individually and as Jury Commissioners of Harris County, Georgia, and all their agents, employees and successors in interest, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 458

652 F.2d 458

Julia ROBINSON, Willie D. Rutledge, Willie James Brown, Nancy Scott, Otis Curry, George Copeland, Gloria A. Brown, individually and on behalf of all those similarly situated; and Harris County Civil League, Plaintiffs- Appellants, v. William H. KIMBROUGH, James McMichael, Homer A. Page, H. S.

Taylor, Steve M. Waddle, individually and as Jury

Commissioners of Harris County, Georgia, and all their

agents, employees and successors in interest, Defendants-Appellees.

No. 78-2237.

United States Court of Appeals, Fifth Circuit.

Aug. 3, 1981.

Laughlin McDonald, Neil Bradley, Christopher Coates, Atlanta, Ga., for plaintiffs-appellants.

Champion & Champion, F. L. Champion, Jr., Columbus, Ga., for defendants-appellees.

Appeal from the United States District Court for the Middle District of Georgia.

Before WISDOM, POLITZ and SAM D. JOHNSON, Circuit Judges.

SAM D. JOHNSON, Circuit Judge:

Our previous opinion, reported at 620 F.2d 468 (5th Cir. 1980), is withdrawn and vacated and the following opinion is substituted in its place:

This is a jury discrimination case. Following this Court's decision in Robinson v. Kimbrough, 558 F.2d 773 (5th Cir. 1977) (en banc), plaintiffs moved in the district court for an award of attorneys' fees under the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988. ¹ The district court denied the motion, and plaintiffs appeal. Finding that the district court applied an incorrect test in evaluating plaintiffs' claim for attorneys' fees, we reverse and remand for further proceedings consistent herewith.

I.

A. Initial Proceedings in the District Court

The Harris County Civic League and other named plaintiffs filed a complaint on March 8, 1974, seeking revision of the grand jury and traverse jury lists of Harris County, Georgia. Defendants were sued individually and in their official capacity as jury commissioners of Harris County. Georgia law obligated the jury commissioners to compile and revise the jury lists at least biennially, and the lists so compiled served as the source for the names of county citizens to be summoned for duty on both the grand and petit juries. Ga.Code Ann. § 59-106.

Before the complaint was filed in 1974, defendants had taken little or no action to remedy the low percentages of blacks and women on the county jury lists. In 1974 the population of Harris County was approximately forty percent to forty-five percent black and approximately fifty percent female. Defendants conceded that from 1969 to 1974 the percentages on the jury lists for blacks was approximately ten percent to fifteen percent and for women was approximately zero percent to two percent. Despite these statistics, the jury commissioners stated that they were unaware of any constitutional defects in the jury lists before plaintiffs brought their jury discrimination action. ²

In their complaint, plaintiffs sought relief from several separate but related violations of their constitutional rights. First, plaintiffs claimed that the jury commissioners arbitrarily and systematically excluded blacks and women from the jury lists. Second, they attacked the constitutionality of those sections of the Georgia Code that permitted differential treatment of women with regard to jury service. Ga.Code Ann. §§ 59-112(b), 59-112(d), 59-124, and 79-207. Third, plaintiffs questioned the constitutionality of the methods used by the jury commissioners to select names for the jury lists. As relief, plaintiffs asked the district court to declare the state statutes invalid and to order the jury commissioners to remedy the underrepresentation of blacks and women on the jury lists.

In April 1974, one month after plaintiffs filed their complaint, the jury commissioners asked a Harris County judge to exercise his authority under section 59-106 to order the commissioners to recompile the jury lists for the purpose of obtaining a more representative cross section of the citizens of Harris County. The commissioners made this request despite the fact that they had revised the lists less than a year before to meet the biennial requirement. The county judge granted the jury commissioners' request for an irregularly scheduled revision of the lists, and pursuant to his order, the commissioners promptly revised the lists.

The results of the extraordinary revision were submitted to the district court on May 1, 1974. The new lists showed a remarkable increase on the traverse jury lists of blacks to 34.01 percent and of women to 44.97 percent, and a similar increase on the grand jury lists of blacks to 28.40 percent and of women to 34.22 percent. Upon receipt of these results, the district court approved the revised lists, held that plaintiffs' challenges to the Georgia jury selection laws failed to raise a substantial constitutional question, and dismissed plaintiffs' complaint. Plaintiffs then appealed to this Court.

On October 22, 1976, almost two years after plaintiffs filed their appeal from the district court's December 1974 order dismissing their complaint, a panel of this Court issued its opinion. Robinson v. Kimbrough, 540 F.2d 1264 (5th Cir. 1976). During that interval, the Georgia Legislature modified sections 59-112(d) and 79-207 and repealed section 59-124 to delete the privilege of women to opt out of jury service upon request. Ga. Acts 1975, pp. 779-80. This legislation became effective in April 1975, several months after the Supreme Court issued on January 21, 1975 its decision in Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). ³

Before the panel issued its opinion, the jury commissioners in 1975 again revised the composition of the county jury lists. ⁴ The results of the 1975 recomposition were announced to the panel of this Court during oral argument. The parties thereafter stipulated to the results of the 1975 revision and the stipulation was filed as part of the record on the first appeal. The 1975 revised figures revealed an increase in the percentages of blacks of approximately five-tenths of one percent and that of women of under five-tenths of one percent. This increase, although tangible, was relatively insignificant when compared to that previously obtained.

The panel took into consideration the 1975 recomposition of the jury lists and the 1975 changes in the Georgia statutes. On the basis of the changes in state law, the panel held that plaintiffs' challenge to the constitutionality of sections 59-112(d), 59-124, and 79-207 was moot. The panel also concluded that the 1975 revisions to the jury lists showed "that the racial composition of the jury lists ... is within constitutional limits (and) ... that the methods by which the commissioners select names for the jury lists are within constitutional bounds." 540 F.2d at 1265. Based upon the Supreme Court's decision in Taylor v. Louisiana, however, the panel held that plaintiffs' challenge to section 59-112(b), the Georgia statutory provision that permitted state judges to excuse from jury duty housewives with children fourteen years of age or younger, was substantial. Consequently, the panel reversed the district court's decision to dismiss plaintiffs' attack on section 59-112(b) and remanded to the district court for further consideration of the constitutionality of section 59-112(b).

Following the panel's decision, the first appeal was heard and considered by this Court sitting en banc. Robinson v. Kimbrough, 558 F.2d 773 (5th Cir. 1977) (en banc). The en banc opinion upheld that portion of the panel's opinion holding that the 1975 revised lists were within constitutional bounds and declaring moot plaintiffs' challenges to the constitutionality of sections 59-112(d), 59-124, and 79-207 of the Georgia statutes. The en banc opinion, however, reversed that part of the panel opinion remanding the case to the district court for consideration of the constitutionality of section 59-112(b). The Court reasoned that because plaintiffs had failed to name as defendants the state judges who were charged with the statutory duty to handle excuses of women with children under fourteen years of age, plaintiffs had sued the wrong defendants on the section 59-112(b) claim. This determination also necessarily settled plaintiffs' request for a three-judge court, since it eliminated the only remaining issue from the case. Consequently, as a result of their suit, plaintiffs never received any formal judicial relief in the form of an injunction, temporary restraining order or court-approved settlement, and never received an express admission by defendants that either their actions or the lists were unconstitutional.

B. Proceedings in the District Court Upon Remand

Following this Court's en banc decision in the first appeal, plaintiffs moved in the district court for an award of attorneys' fees pursuant to the Awards Act. In two separate motions, plaintiffs requested fees and costs for work at the trial and appellate levels, including a request for time and effort spent or to be spent on the issue of attorneys' fees. The district court denied plaintiffs' request for attorneys' fees and costs, and in a memorandum opinion and accompanying order dated April 19, 1978, offered three grounds for its decision.

First, the district court opined that this Court's decision in Rainey v. Jackson State College, 551 F.2d 672 (5th Cir. 1977), did not control the case before it, thereby strongly intimating that plaintiffs' suit was not pending on October 19, 1976, the effective date of the Awards Act. Second, the district court referred to this Court's previous rulings, and found that an award would be contrary to the determination made by this Court on the first appeal Nothing in the opinion of the Court of Appeals suggests that the Plaintiffs are entitled to an award of attorneys fees or costs. Indeed, recognizing that the Defendants (Appellees) were the prevailing parties in the litigation, the Court of Appeals directed...