Zessar, Bruce v. Keith, John R.

In the

United States Court of Appeals

For the Seventh Circuit

____________

Nos. 07-2899 & 07-2913

BRUCE ZESSAR,

Plaintiff-Appellee,

v.

JOHN R. KEITH, ET AL.,

Defendants-Appellants.

____________

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 05 C 1917—David H. Coar, Judge.

____________

ARGUED APRIL 3, 2008—DECIDED AUGUST 6, 2008

____________

Before FLAUM, MANION, and TINDER, Circuit Judges.

MANION, Circuit Judge. After his absentee ballot was

rejected in the 2004 general election, Bruce Zessar filed

suit alleging that his due process rights were violated

because election officials failed to provide him with

notice and a hearing prior to rejecting his ballot. The

district court granted in part his motion for summary

judgment, but before it entered final judgment, the Illinois

General Assembly amended the portions of the state’s

Election Code addressing absentee voting. Notwithstand-

ing this amendment, the district court entered final judg-

ment in favor of Zessar declaring unconstitutional the

2 Nos. 07-2899 & 07-2913

Code as it stood prior to amendment. The district court

also deemed Zessar a prevailing party entitled to attorney’s

fees under 42 U.S.C. § 1988. The defendants appeal.

Because we conclude that the amendment of the Election

Code mooted Zessar’s challenge to the pre-amendment

Code, and that the district court’s conclusion that Zessar

was a prevailing party was in error, we vacate those

portions of the judgment and remand for partial dismissal.

I.

Bruce Zessar resides and is registered to vote in Lake

County, Illinois. Zessar submitted an absentee ballot

intending to vote absentee in the general election held

on November 2, 2004. His ballot was rejected because of a

belief that the signatures on his absentee ballot applica-

tion and ballot envelope did not match. Election officials

concede that Zessar’s vote was rejected in error, and did

not count in the election. Making matters worse, Zessar

was not notified that his ballot had been rejected until he

received a postcard explaining the basis for the rejection

in mid-January 2005. The parties agree that during the

period between election day and the canvass, which

was held on November 17, 2004, and rendered the elec-

tion results final, Zessar had no opportunity to challenge

the rejection or otherwise rehabilitate his ballot.

The circumstances surrounding the rejection of Zessar’s

ballot arose under Article Nineteen of the Illinois Election

Code, which covers absentee voting, as it stood in 2004. 10

ILCS 5/19-1 to 5/19-15 (2004). Voters began the process

of voting absentee by filing an application with local

election authorities for an absentee ballot. 10 ILCS 5/19-2

(2004). If the applicant was lawfully entitled to vote

Nos. 07-2899 & 07-2913 3

absentee in the requested location, election officials mailed

the applicant a ballot. 10 ILCS 5/19-4 (2004). A voter

who received an absentee ballot would fill it out, place it

in a certified envelope, and either mail it to the clerk’s

office or deliver it in person. The clerk would then see

that all such ballots were delivered to the appropriate

precincts. 10 ILCS 5/19-8 (2004). Absentee ballots were not

counted or otherwise verified before the evening of election

day. On election day, however, the absentee ballot count

began no later than 8:00 p.m. Id. Once the polls closed,

election judges in each precinct cast the absentee ballots by

opening the carrier envelopes containing the ballots,

announcing each voter’s name, and comparing the sig-

nature on the ballot envelope with that on the applica-

tion. 10 ILCS 5/19-9 (2004). A ballot would be rejected in

four circumstances: (1) if the signatures on the envelope

and application did not match; (2) if the voter was not

registered in the precinct; (3) if the envelope was open, or

had been opened and resealed; or (4) if the voter voted

in person during the day. Id. While the Election Code in

effect in 2004 required notification to absentee voters

whose ballots were rejected, 10 ILCS 5/19-10 (2004), there

was no requirement that the voters be notified in time to

challenge the rejection before the canvass. In other

words, sending Zessar notice in January 2005 that his

ballot was rejected at the beginning of November 2004

violated no portion of the Illinois Election Code.

Zessar filed a class action complaint on behalf of

himself and all other similarly situated voters against

Willard R. Helander, Lake County Clerk, the members

of the Lake County Board (“Helander,” collectively), and

the members of the Illinois State Board of Elections (“State

Board”). Zessar alleged that the Election Code’s failure to

4 Nos. 07-2899 & 07-2913

provide for notice and a hearing before the rejection of his

absentee ballot violated his due process rights as pro-

tected by the Fourteenth Amendment to the United States

Constitution.1 On March 13, 2006, the district court entered

an order denying the defendants’ motion for summary

judgment and granting, in part, Zessar’s motion for

summary judgment. The court determined that the Election

Code’s failure to provide for notice and a hearing vio-

lated the Due Process Clause, and that Zessar was entitled

to prospective injunctive relief. The court also held that

the economic damages Zessar sought were not an appro-

priate remedy, and that any equitable relief beyond

implementing a lawful absentee voting system was not

warranted. The district court did not enter judgment on

its ruling, however, instead directing the parties to file

proposed procedures for providing notice and a pre-

deprivation hearing to voters whose absentee ballots

were rejected.

Three days later, Zessar filed an emergency motion for

an injunction asking the district court to enjoin enforcement

of the unconstitutional portions of the Election Code in the

Illinois primary elections which were going to take place

on March 21, 2006. For reasons not appearing in the record

before us, that motion was denied on March 20, 2006. The

district court also denied motions by the State Board and

1

The district court certified both a plaintiffs’ class, made up of

Illinois registered voters whose submitted absentee ballots

were rejected prior to the canvass without notice and a

hearing, and a defendants’ class, made up of all Illinois county

election officials operating under the authority of the Illinois

Election Code. For ease of discussion, we will refer to Zessar,

the class representative, when speaking of the plaintiffs’ class.

Nos. 07-2899 & 07-2913 5

Helander to file interlocutory appeals of the ruling on the

summary judgment motion.

While the parties’ proposed procedures for handling

absentee balloting were under consideration by the dis-

trict court, the Illinois General Assembly passed Public

Act 94-1000 (“Act”) amending provisions of the Election

Code such as the procedure for selecting election judges,

10 ILCS 5/13-1 (2006), handling challenges at polling

places, 10 ILCS 5/18-5 (2006), and counting provisional

ballots, 10 ILCS 5/18A-15 (2006). See Ill. Public Act 94-1000,

§ 5 (2006). More significantly for this case, the Act also

amended the procedures for absentee voting. The amend-

ments, which took effect on July 3, 2006, provided that if

a mail-in absentee ballot was rejected for one of the rea-

sons stated above, the election authority had to notify the

voter of the rejection “within 2 days after the rejection but

in all cases before the close of the period of counting

provisional ballots.” 10 ILCS 5/19-8(g-5) (2006). This

notice had to state the reason for the rejection, and

notify the voter that he could appear before the election

authority on or before the fourteenth day after the elec-

tion to show cause why the ballot should not be rejected.

Id. Review of the voter’s challenge would be undertaken

by a panel of three judges appointed for that purpose.

Id. The judges could review the contested ballots, enve-

lopes, applications, and any other evidence submitted

by the voter. Id. The final determination on a ballot’s

validity was not reviewable, and ballots determined to be

valid were added to the vote tally for their precincts. Id.

The defendants moved to dismiss Zessar’s suit as moot

based upon these amendments. Zessar opposed dismissal,

and argued that the amendments did not moot the

suit because they still did not provide sufficient due

6 Nos. 07-2899 & 07-2913

process to absentee voters. The district court denied the

motion on October 10, 2006. In denying the motion, it

expressed concern regarding absentee voters who would be

absent from their precincts for an extended period of time,

due to overseas deployment or otherwise, because they

would be unable to appear in person before the three-judge

panel. The court was also concerned that local election

officials might not be prepared to implement the three-

judge panels. On October 20, 2006, in anticipation of the

upcoming election and echoing the concerns expressed by

the district court, Zessar moved for an emergency injunc-

tion prohibiting the defendants from rejecting any absentee

ballots under the Election Code as it then stood. This

motion was denied by the district court on October 26,

2006.

On June 11, 2007, the district court entered a final judg-

ment containing four conclusions. First, the district court

stated that “[t]he prior version of 10 ILCS 5/19-8 is uncon-

stitutional because it failed to provide due process to the

absentee voter.” Second, the court concluded that

Zessar qualified as a prevailing party based on its earlier

partial grant of Zessar’s motion for summary judgment

and the Illinois General Assembly’s subsequent amend-

ment of the Election Code. Next, the court cited statistics

from the 2006 election showing the large number of

challenges brought by absentee voters whose ballots

were rejected and the high rate of success they had in

challenging rejection. Even though the court still enter-

tained reservations about the sufficiency of the protec-

tions afforded to voters absent from their precincts for

extended periods, the statistics did not reveal that any

such voter attempted to challenge a ballot rejection.

Accordingly, the court expressly declined to enter judg-

ment that the post-amendment Election Code was uncon-

Nos. 07-2899 & 07-2913 7

stitutional. Finally, the court declined to enter judgment

that election officials were required to use every avail-

able address (i.e., mail, email, and fax) to notify voters that

their absentee ballot had been rejected, leaving to local

election officials the determination of reasonable notifica-

tion. The defendants filed motions for reconsideration of

the court’s determination that Zessar was a prevailing

party, but the district court denied those motions.

Helander and the State Board filed separate appeals

which have been consolidated for our review. Helander

challenges the district court’s substantive determination

that the pre-amendment Election Code violated the Due

Process Clause. The State Board argues that Zessar’s

challenge to the Election Code as it stood prior to its

amendment in July 2006 was mooted by the Code’s amend-

ment. This mootness, the State Board argues, left the

district court without jurisdiction to enter final judgment

on the constitutionality of the pre-amendment provisions.

Additionally, the State Board asserts that Zessar is not

a prevailing party under 42 U.S.C. § 1988, and that the

district court erred in declaring him such and awarding

him attorney’s fees. The district court’s conclusions re-

garding the post-amendment Election Code have not

been presented to us for review.

II.

It is fundamental to the exercise of judicial power under

Article III of the United States Constitution that “federal

courts may not give opinions upon moot questions or

abstract propositions.” Protestant Mem’l Med. Ctr., Inc. v.

Maram, 471 F.3d 724, 729 (7th Cir. 2006). Therefore, we

must consider whether Zessar’s due process challenge to

8 Nos. 07-2899 & 07-2913

the pre-amendment Election Code was rendered moot by

the Code’s amendment before taking up the issue of

whether those provisions comported with constitutional

due process requirements. Id. (“Mootness is one of

the concepts that comprise the threshold issue of

justiciability.”) “Whether a case has been rendered moot

is a question of law that we review de novo.” Fed’n of

Adver. Indus. Representatives, Inc. v. City of Chicago, 326

F.3d 924, 928-29 (7th Cir. 2003).

We have previously held that any dispute over the

constitutionality of a statute becomes moot if a new

statute is enacted in its place during the pendency of the

litigation, and the plaintiff seeks only prospective relief.2

See MacDonald v. City of Chicago, 243 F.3d 1021, 1025 (7th

Cir. 2001) (citing Kremens v. Bartley, 431 U.S. 119, 129 (1977)

(“[T]he enactment of the new statute clearly moots the

claims of the named appellees.”)); see also Rembert v.

Sheahan, 62 F.3d 937, 940 (7th Cir. 1995) (“When a chal-

lenged statute is repealed or significantly amended pend-

ing review, and a plaintiff seeks only prospective relief, a

question of mootness arises.”) (emphasis added). Thus,

absent a lack of genuineness to the amendment as ad-

dressed below, the enactment of Public Act 94-1000 mooted

the parties’ dispute over the pre-amendment Election

Code. In fact, that the dispute was moot seems to have been

2

Zessar sought damages in his complaint, and if that claim was

still pending it would have left alive the question of his entitle-

ment to damages based on enforcement of the pre-amendment

Code. However, the district court denied all relief other than

“implementing a constitutional absentee voting system” when

it granted in part Zessar’s motion for summary judgment. Zessar

did not appeal that decision.

Nos. 07-2899 & 07-2913 9

apparent to the parties and the district court during the

proceedings below. Once the Code was amended in July

2006, the parties’ motion practice turned to the constitu-

tionality of the post-amendment Code. Similarly,

the district court’s denial of the defendants’ motion to

dismiss for mootness was based on its concerns about the

constitutionality of the new provisions and whether

election officials were actually going to implement them.

The parties’ concern with the Election Code as it stood

when the suit was filed ceased until the district court

entered judgment declaring that version of the Code

unconstitutional.

What was true during the litigation below remains true

on appeal. “[The] case-or-controversy requirement

subsists through all stages of federal proceedings, trial

and appellate.” Lewis v. Cont’l Bank Corp., 494 U.S. 474, 477

(1990). Another way to state the justiciability principles

set forth above is that “Article III denies federal courts

the power to decide questions that cannot affect the

rights of the litigants in the case before them.” Id. If we

were convinced by Helander that the district court erred

in concluding that the pre-amendment Code was con-

stitutionally infirm, what relief could we afford the defen-

dants? It is not as though we could order future elections

to be carried out according to procedures the Illinois

General Assembly amended in July 2006. Similarly,

what benefit would Zessar gain by prevailing on his

argument that the district court was correct? The parties’

rights and obligations remain governed by the post-

amendment Code regardless of our opinion about the

constitutionality of provisions that ceased to have effect

more than two years ago.

There is an exception to the rule that legislative cor-

rection of a challenged statute moots a challenge to the

10 Nos. 07-2899 & 07-2913

statute as it stood prior to amendment. Amendment or

repeal of a challenged statute “ ‘does not deprive a

federal court of its power to determine the legality of the

practice’ unless it is ‘absolutely clear that the allegedly

wrongful behavior could not reasonably be expected to

recur.’ ” Buckhannon Bd. and Care Home, Inc. v. W. Va. Dep’t

of Health and Human Res., 532 U.S. 598, 609 (2001) (quoting

Friends of Earth, Inc. v. Laidlaw Envtl. Serv. (TOC), Inc.,

528 U.S. 167, 189 (2000)). In other words, “when an inter-

vening amendment provides no assurance that the

complained-of conduct will cease, the case is not moot.”

Rembert, 62 F.3d at 941. Usually, however, legislative ac-

tion will provide the assurance required by Buckhannon,

because “when the defendants are public officials . . . we

place greater stock in their acts of self-correction, so long

as they appear genuine.” Wis. Right to Life, Inc. v. Schober,

366 F.3d 485, 492 (7th Cir. 2004).

Zessar argues that his challenge to the pre-amendment

Election Code is not moot because there is no assurance

that Illinois will not reenact that version of the Code, and

because the new provisions retain some of the previous

infirmities. However, this case presents neither of the

features that normally lead courts to discount the gen-

uineness of an amendment, namely the enactment, or

intended enactment, of the same statute, or a statute

substantially similar to the one challenged. See N.E. Fla.

Chapter of the Assoc. Gen. Contractors of Am. v. City of

Jacksonville, 508 U.S. 656, 662 (1993) (concluding that the

plaintiffs’ challenge was not moot because the chal-

lenged statute was amended in insignificant ways and

still disadvantaged the plaintiffs); City of Mesquite v.

Aladdin’s Castle, Inc., 455 U.S. 283, 289 n.11 (1982) (noting

that at oral argument the defendant announced its inten-

Nos. 07-2899 & 07-2913 11

tion to reenact the challenged provision if the district

court’s decision was vacated). There is no evidence in the

record that the defendants are lying in wait for vacatur of

the district court’s judgment so that they can reenact

the Election Code as it stood prior to July 3, 2006.

Moreover, the amended Code is not substantially

similar to the challenged provisions of the pre-amend-

ment Code. The practice challenged by Zessar was the

rejection of absentee ballots without notice and a hearing at

which voters could challenge that rejection. That practice

is remedied under the new version of the code. Zessar

may disagree with the extent and sufficiency of the rem-

edy, but the district court concluded that there was no

ripe basis for challenging the new version of the Code,

and Zessar did not appeal that decision. Because the post-

amendment Code is not substantially similar to the provi-

sions Zessar challenged in bringing suit, and there is no

indication that the defendants plan to reenact the Code as

it stood prior to amendment, Zessar’s argument that his

challenge to the pre-amendment Code remains live fails.

See Fed’n of Adver. Indus. Representatives, 326 F.3d at 930

(noting that “repeal of a contested ordinance moots a

plaintiff’s injunction request, absent evidence that the

[defendant] plans to or already has reenacted the chal-

lenged law or one substantially similar”).

We are cognizant of the resources that were invested,

both by the district court and the parties, in litigating

and ruling on Zessar’s challenge to the pre-amendment

Election Code. Those efforts, however, cannot maintain

the challenge as a live controversy where it involves a

statute no longer in existence and with no indication that

the challenged practice will continue. We conclude that

Zessar’s challenge to the pre-amendment Election Code is

12 Nos. 07-2899 & 07-2913

moot. The district court’s final judgment should be

vacated to the extent that it passes judgment on the pre-

amendment Election Code, and that portion of the case

below should be dismissed as moot. Miller v. Benson, 68

F.3d 163, 165 (7th Cir. 1995) (citing United States v.

Munsingwear, Inc., 340 U.S. 36, 39-41 (1950)).

With our conclusion that Zessar’s challenge to the pre-

amendment Election Code is moot, the only issue remain-

ing on appeal is whether the district court erred in

naming Zessar a prevailing party. Courts are authorized

to award reasonable attorney’s fees to prevailing parties

in suits, like this one, brought pursuant to 42 U.S.C. § 1983.

42 U.S.C. § 1988(b). It is well-established that “prevailing

party” as used in federal fee-shifting statutes like § 1988

includes only those parties that have achieved a “judicially

sanctioned change in the legal relationship of the parties.”

Buckhannon, 532 U.S. at 605. In other words, “to qualify

as a prevailing party, a civil rights plaintiff must obtain

a least some relief on the merits of his claim.” Farrar v.

Hobby, 506 U.S. 103, 111 (1992). While the district court’s

decision to award attorney’s fees under § 1988 is usually

reviewed for abuse of discretion, when that decision rests

on the application of a principle of law, our review is

de novo. Fed’n of Adver. Indus. Representatives, 326 F.3d at

932. We apply the latter standard here because we are

presented with the legal question of how broadly to

construe the statutory term “prevailing party.”

A party is considered prevailing for § 1988 purposes

when the court enters final judgment in its favor on some

portion of the merits of its claims. Buckhannon, 532 U.S. at

605 (citing Farrar, 506 U.S. at 113). Settlement agreements

will not suffice to render a party prevailing unless they

are made enforceable under a consent decree. Id. (citing

Nos. 07-2899 & 07-2913 13

Maher v. Gagne, 448 U.S. 122 (1980)). Resolving a split

among the federal courts of appeals, the Supreme Court

in Buckhannon rejected as a basis for an award of fees the

“ ‘catalyst theory,’ which posits that a plaintiff is a ‘prevail-

ing party’ if it achieves the desired result because the

lawsuit brought about a voluntary change in the defen-

dant’s conduct.” Id. at 601. Rather, there must be a “judi-

cial imprimatur on the change”; in other words, the judi-

cial act must bring about “a corresponding alteration in

the legal relationship of the parties.” Id. at 605.

The heart of the parties’ dispute boils down to whether

or not this case is controlled by our application of these

principles in Palmetto Properties, Inc. v. County of DuPage,

375 F.3d 542 (7th Cir. 2004). The plaintiffs in Palmetto

sought to open an adult entertainment nightclub. However,

there were state and local zoning laws prohibiting opera-

tion of such an establishment within 1000 feet of, among

other places, forest preserves, and the plaintiffs’ proposed

site was 735 feet from just such a location. Palmetto, 375

F.3d at 544-45. The would-be proprietors sued county

officials alleging violations of the First and Fourteenth

Amendments. Id. at 545. The parties filed motions for

summary judgment, and the court issued an order conclud-

ing that the forest preserve portions of the zoning laws

were constitutionally infirm, and enjoining their enforce-

ment. Id. at 546. Instead of entering final judgment, how-

ever, the district court continued the case because the

defendant informed the court that it did not intend to

appeal the court’s decision, but would amend or repeal

the challenged provision. Id. The defendant made good

on its promise to repeal the forest preserve portion of the

zoning law, and the district court subsequently dis-

missed the case as moot. Id. The court then awarded the

14 Nos. 07-2899 & 07-2913

plaintiffs attorney’s fees as prevailing parties over the

objection of the defendant, and the defendant appealed.

We affirmed noting that

[i]t would defy reason and contradict the definition of

“prevailing party” under Buckhannon and our subse-

quent precedent to hold that simply because the district

court abstained from entering a final order formally

closing the case—a result of the Defendant’s assertions

that it would repeal the challenged portion of the

ordinance—Palmetto somehow did not obtain a

“judicially sanctioned change” in the parties’ legal

relationship.

Id. at 549-50.

While this case is distinct from Palmetto in a number

of ways which we address below, we begin with one

obvious way it is similar—after finding a statute unconsti-

tutional, the district court did not enter final judgment

before the challenged provision was amended or re-

pealed. This situation gives a plaintiff a hurdle to over-

come if he is to show that he is a prevailing party because

the Supreme Court has repeatedly held that, other than

a settlement made enforceable under a consent decree, a

final judgment on the merits is the normative judicial

act that creates a prevailing party. See Sole v. Wyner, 127

S. Ct. 2188, 2196 (2007) (declining to bestow prevailing

party status on a plaintiff whose motion for preliminary

injunction was granted but who failed to prevail on the

merits); Buckhannon, 532 U.S. at 605 (noting that the Su-

preme Court has “only awarded attorney’s fees where the

plaintiff has received a judgment on the merits, or obtained

a court-ordered consent decree”) (citations omitted); Hewitt

v. Helms, 482 U.S. 755, 758-62 (1987) (concluding on succes-

sive appeal that the plaintiff was not a prevailing party

Nos. 07-2899 & 07-2913 15

despite a court of appeals holding that his due process

rights were violated because the appellate court left it to

the district court to fashion relief and the district court

determined that the defendants were entitled to qualified

immunity).

We did not undercut this final judgment requirement

in Palmetto, but rather applied it based on the finality

surrounding the district court’s order granting a motion

for summary judgment. There, the court’s ruling was

succinct and easily enforceable—the forest preserve

provision was unconstitutional, and the defendants were

enjoined from enforcing it. Palmetto, 375 F.3d at 546.

Moreover, all parties were in agreement regarding the

finality of the court’s decision as evidenced by the defen-

dant’s statement of its intention not to appeal and its

request for a continuance to amend or repeal the stricken

provision. Finally, as we noted repeatedly throughout

our decision, the district court’s forbearance from entering

final judgment resulted from the defendant’s representa-

tion that it was going to repeal the forest preserve provi-

sion. See, e.g., id. at 549, 550, 551.

Here, the district court’s partial grant of summary

judgment lacked the finality exhibited in Palmetto. Upon

entering its decision regarding the constitutionality of

the pre-amendment Election Code, the district court

directed the parties to submit proposed procedures for

providing timely notice and pre-deprivation hearings to

absentee voters whose ballots were rejected. There was no

way to enforce this grant of partial summary judgment

because the defendants were not directed to do, or refrain

from doing, anything. See Farrar, 506 U.S. at 111-12 (holding

that a plaintiff prevails when the relief afforded modifies

“the defendant’s behavior in a way that directly benefits

16 Nos. 07-2899 & 07-2913

the plaintiff”). In fact, Zessar attempted to have

the decision enforced when he asked the court to enjoin

the defendants from rejecting absentee ballots, without

notice and a hearing, in the Illinois primary set to occur

on March 21, 2006. The district court denied the motion,

and the primary was held under the challenged proce-

dure. Moreover, the defendants here never indicated any

intention to implement the findings of the court through

amendment, repeal, or otherwise. Instead, they sought

leave from the district court to file an interlocutory

appeal of its order. The lack of enforceable terms and

disputed nature of the district court’s partial summary

judgment order distinguish it materially from that in

Palmetto.

Additionally, when the plaintiffs in Palmetto prevailed

at the summary judgment stage and the defendant repealed

the forest preserve provision, the defendant removed “the

only provision which effectively prevented [the plaintiffs]

from operating [their] nightclub,” Palmetto, 375 F.3d at 549,

leaving the plaintiffs free to move ahead with their plan. Id.

at 546. Here, Zessar himself did not believe the amend-

ments to the election Code afforded him the relief he

sought. He instead challenged the new Code’s constitution-

ality, asking the court to enjoin its enforcement in the 2006

election, and later seeking judgment that the new provi-

sions did not provide sufficient due process.

His dissatisfaction with the amendments notwithstand-

ing, Zessar argues that they qualified him as a prevailing

party because they were enacted not only following the

district court’s partial summary judgment order, but

because of it. In support, Zessar points to statements

made during the floor debate in the General Assembly

that the amendment originated “from clerks across the

Nos. 07-2899 & 07-2913 17

state,” and “comes from a court case held in Lake County.”

It is true that the district court’s partial summary judg-

ment order likely put the interested parties on notice that

a change in absentee voting was coming. However, as

we already noted, the defendants had not been ordered

to do, or refrain from doing, anything. Rather, at the time

the General Assembly enacted Public Act 94-1000,

which included other Election Code amendments unre-

lated to those of Article Nineteen, it was still acting on its

own volition in response to the proceedings in the law-

suit. See Buckhannon, 532 U.S. at 605 (“A defendant’s

voluntary change in conduct, although perhaps accom-

plishing what the plaintiff sought to achieve by the lawsuit,

lacks the necessary judicial imprimatur on the change.”).

In sum, our decision in Palmetto should be read in

conjunction with the principles set forth by the Supreme

Court and our prior cases for determining when a plain-

tiff is a prevailing party for the purpose of awarding

attorney’s fees under § 1988. Normally, such a deter-

mination will require a final judgment on the merits or a

consent decree. Id. Cases will sometimes arise where,

despite there being no final judgment or consent decree,

the legal relationship of the parties will be changed due

to a defendant’s change in conduct brought about by a

judicial act exhibiting sufficient finality. Palmetto was

such a case. This is not, and we therefore reverse the

district court’s determination that Zessar was a pre-

vailing party entitled to attorney’s fees under § 1988.

III.

We conclude that the amendment of the Illinois Election

Code by the Illinois General Assembly in Public Act 94-

18 Nos. 07-2899 & 07-2913

1000 mooted Zessar’s challenge to the Code as it stood

prior to the amendment. There is nothing in the record

indicating that the amendment was not genuine, nor

that the defendants intended to return to the challenged

practice. Additionally, we conclude that Zessar did not

achieve a judicially sanctioned change in his legal rela-

tionship with the defendants, and that the amendment of

the Election Code was a multi-faceted change initiated by

the General Assembly partially in response to Zessar’s

lawsuit. Accordingly, the district court’s judgment is

VACATED to the extent it passed on the constitutionality

of the Illinois Election Code as it stood prior to July 3,

2006, and to the extent it declares Zessar a prevailing

party entitled to fees under 42 U.S.C. § 1988. We REMAND

with instructions to dismiss Zessar’s challenge to the pre-

amendment Election Code as moot.

USCA-02-C-0072—8-6-08