# Connor v. Winter

> District Court, S.D. Mississippi · August 12, 1981 · 519 F. Supp. 1337

URL: https://www.frixlaw.com/law-library/cases/9627472

## Case

- **Full name:** Peggy J. CONNOR, Et Al., Plaintiffs, v. William F. WINTER, Et Al., Defendants. the United States of America, Plaintiff-Intervenor
- **Court:** District Court, S.D. Mississippi
- **Decided:** August 12, 1981
- **Citations:** 519 F. Supp. 1337; 1981 U.S. Dist. LEXIS 15333
- **Precedential status:** Published
- **Opinion:** Dissent by Cox
- **Judges:** Clark, Russell, Cox
- **Cited by:** 25 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

WILLIAM HAROLD COX, District Judge,
dissenting:
The majority herein has again cast a sovereign state into perilous and turgid waters to first be cast upon the rocky shores of Scylla because they were powerless to make the necessary changes, then only to be thrust into the dark brown vortex of Charybdis, when because of their impotency they are required to pay plaintiffs attorneys’ fees, litigation expenses, and costs.
This suit was originally filed in this Court on October 19,1965 against the then Governor, Attorney General, Secretary of State, Speaker of the House of Representatives, and the President Pro Tempore of the Senate upon the following allegations:
The defendant Johnson is sued in his capacity as Governor of the State of Mississippi and a member of the State Board of Election Commissioners; as such he is vested with certain authority in connection with elections of members to the Mississippi Legislature.
The defendant Patterson is sued in his capacity as Attorney General of the State of Mississippi, and a member of the State of Mississippi, and a member of the State Board of Election Commissioners; as such he is vested with certain authority in connection with elections of members to the Mississippi Legislature.
The defendant Ladner is sued in his capacity as Secretary of State of the State of Mississippi and a member of the State Board of Election Commissioners; as such he has certain authority in connection with elections of members to the Mississippi Legislature.
The defendant Sillers is sued in his capacity as Speaker of the Mississippi House of Representatives; he is the presiding officer of that body, and is here sued as a representative of all presently acting members of said House, such members constituting a class so numerous as to make it impractical to bring them all before the Court.
The defendant Yarbrough is sued in his capacity as President Pro Tempore of the Mississippi Senate, and he is the presiding officer of that body, and is here sued as the representative of all presently acting members of said Senate, such members constituting a class so numerous as to make it impractical to bring them all before the Court.
In 1975, pursuant to the mandate of this Court, an amended complaint was filed which along with other things substituted the named defendants under Rule 25, Federal Rules of Civil Procedure and added two additional parties. 1
It does not take the wisest of men nor those with the most insight to see what is *1347 obvious in this case. This was a suit against the Legislature of the State of Mississippi. The plaintiffs joined its officers as defendants and deposed its members as witnesses. Not once during the fourteen year course of this litigation was any member of the State Board of Election Commissioners ever deposed, or called as a witness to determine why the Board never undertook, or if it could undertake to sua sponte reapportion the Legislature; and to hold that they should have done so in their administrative capacities now, ignores the substance of this litigation for the form.
As the defendants rather poignantly illustrate, the Státe Board of Election Commissioners is established by § 23-5-1, Mississippi Code of 1972, Annotated and Amended, which has remained unchanged since the inception of this lawsuit.
Due to the lack of specific statutory provisions, the authority, duties and responsibilities of the Board must be implied from other statutes. Lopez v. Holleman, 219 Miss. 822 , 69 So.2d 903 (1954); Miss.Code Anno. §§ 23-1-1 et seq., 23-3-1 et seq. and 23-5-1 et seq. (1972). However, the Board’s duties are specifically restricted to those matters concerning general elections. Miss.Code Anno. § 23-5-134 (1972) Miss. Code Anno. § 3263 (1956 recomp.).
As far as the legislative elections are concerned, the Board has two functions. First, they pass upon the qualifications of independent candidates from multi-county districts; and secondly, they draft the official ballot for those positions in general elections. Miss.Code Anno. § 3106 (1956 recomp.); Miss.Code Anno. § 23-5-134 (1972). Of paramount importance, however, to the instant matter is the fact that the State Board of Election Commissioners possesses absolutely no authority to administratively reapportion either the House of Representatives, or the Senate of the Mississippi State Legislature. Such is constitutionally the sole duty and prerogative of each of the individual Houses.
A state agency may not act wiihout constitutional or statutory authority, and to hold the commissioners liable in their official capacity for the failure to assume an unconstitutional and ultra vires act belies reasoning.
Concomitantly, my brethren seem to overlook the fact that before the election commissioners could even undertake such an act, were they constrained to do so, they would first have to obtain approval from either the Department of Justice, or the United States District Court for the District of Columbia pursuant to Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c, which would have in all likelihood extremely doubtful results.
Should the Mississippi State Board of Election Commissioners, or the sovereign State of Mississippi then be held liable?
As defendants rightfully concede one cannot now question the authority of the Courts once relief in the case in chief is granted to award attorneys’ fees pursuant to 42 U.S.C. §§ 19737 (e) and 1988 against state executive and administrative personnel in their official capacities (Hutto v. Finney, 437 U.S. 678 , 98 S.Ct. 2565 , 57 L.Ed.2d 522 (1978); S.Rep.No.94-1011 (1976), U.S. Code Cong, and Admin.News 1976, 5908.); nor may the Court in its discretion deny attorneys’ fees to the prevailing party unless in its discretion it finds that “special circumstances” exist. S.Rep.No.94-1011 (1976), U.S.Code Cong, and Admin.News 1976, 5908. In Newman v. Piggy Park Enterprises, Inc., 390 U.S. 400 , 88 S.Ct. 964 , 19 L.Ed.2d 1263 (1968), the Court was called upon for the first time to interpret, 42 U.S.C. § 2000a(3)(b) which provided for an award of attorneys’ fees to the prevailing party in suits brought by private individuals to enjoin racial discrimination in public accommodations. After a brief discussion of the principles upon which such legislation was passed, the Court indicated: It follows that one who succeeds in obtaining an injunction under that Title should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust. 390 U.S. at 402 , 88 S.Ct. at 966 , 19 L.Ed.2d at 1266 .
The foregoing standard has been embodied in both 42 U.S.C. §§ 19737 (e) and 1988, *1348 S.Rep.No.94-295 (1975), U.S.Code Cong, and Admin.News 1965, 774, 807, S.Rep.No.94-1011 (1976), U.S.Code Cong, and Admin. News 1976, 5908, 5912.
The restrictive interpretation placed upon the “special circumstances” exception by the courts renders such in effect a nullity. This interpretation is reminiscent of the passage wherein MacBeth remarked, “Life’s but a walking shadow; a poor player, That struts and frets his hour upon the stage, And then is heard no more; it is a tale Told by an idiot, full of sound and fury, Signifying nothing.”
Certainly, no one can classify the rights adjudicated in Chastang v. Flynn and Emrich Co., 541 F.2d 1040 (4 Cir., 1976) and as a practical matter those in Henderson v. Forth Worth Independent School District, 574 F.2d 1210 , vacated en banc, 584 F.2d 115 (5 Cir., 1978), as a private state law tort claim for damages, or situations where the plaintiff’s efforts did not contribute to achieving a beneficial result. Therefore, I cannot accept the rather simplistic dismissal which has been given this point.
When viewed in light of the election commissioners’ impotency to act and the fact that they have no budget or funds from which an award could be paid, the instant matter clearly indicates that if there has ever been a case made for the “special circumstances” exception this is it! On the one hand you have the Legislature who has sole and exclusive power to rectify the plaintiffs’ grievances; yet, it and its members are absolutely immune. On the other hand one finds an administrative agency, none of whose members would personally benefit from any malapportionment, or more importantly who had no right or authority to alter or amend the apportionment for either House. Additionally, none of the members of the Board are members of the Legislature and the Board’s only function so far as the instant matter is concerned is to determine the qualifications of only a portion of the candidates for legislative office and draft the official ballot for those positions.
The net effect of this award is to penalize the innocent and helpless officials who have engaged in no discriminatory act, active or passive, and who have no authority or power to reapportion Mississippi. To render this award of attorneys’ fees in this matter flies into the face of the very foundations of the principles of equity and fair play upon which this suit is brought.
When viewed in light of the applicable standards, it is a flagrant abuse of discretion to award the plaintiffs attorneys’ fees herein. Analyzing the instant situation to that in Riddell v. National Democratic Party, 624 F.2d 539 (5 Cir., 1980), the Board cannot only show good-faith compliance with their official duty, but also that there are no funds with which to pay an award and that they possessed no control over the challenged practice in addition to the host of factors already named. Therefore, I feel that in light of the immunity of the real party in interest, the Legislature, that special circumstances exist in this matter which render an award of attorneys’ fees against the State Board of Election Commissioners manifestly unjust and improper.
When confronted with questions of immunity, the Courts have traditionally since the inception of the union cast aside legal niceties and looked to the real party in interest. Lincoln County v. Luning, 133 U.S. 529 , 10 S.Ct. 363 , 33 L.Ed. 766 (1890); Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738 , 6 L.Ed. 204 (1824); Jagnandan v. Giles, 538 F.2d 1166 (5 Cir., 1976).
It is without question that the Lieutenant Governor, the President Pro Tempore of the Senate, and the Speaker of the House of Representatives as well as all the other members of both Houses enjoy absolute immunity from judicial relief, both equitable and compensatory, where sued for acts untaken and performed in their official capacity as legislative officers. Supreme Court of Va. v. Consumers Union, 446 U.S. 719 , 100 S.Ct. 1967 , 64 L.Ed.2d 641 (1980); Eastland v. United States Servicemen’s Fund, 421 U.S. 491 , 95 S.Ct. 1813 , 44 L.Ed.2d 324 (1975); Dombrowski v. Eastland, 387 U.S. *1349 82 , 87 S.Ct. 1425 , 18 L.Ed.2d 577 (1967); United States v. Johnson, 383 U.S. 169 , 86 S.Ct. 749 , 15 L.Ed.2d 68Í (1966); Tenney v. Brandhove, 341 U.S. 367 , 71 S.Ct. 783 , 95 L.Ed.2d 1019 (1951); Star Distributors, Ltd. v. Marino, 613 F.2d 4 (2 Cir., 1980); Green v. DeCamp, 612 F.2d 368 (8 Cir., 1980); Smith v. Klecker, 554 F.2d 848 (8 Cir., 1977); City of Safety Harbor v. Birchfield, 529 F.2d 1251 (5 Cir., 1976).
Is not then the State of Mississippi immune from an award of attorneys’ fees?
Piercing the veil of legal rhetoric herein, I am constrained to and do believe that the thrust of this lawsuit was against the Legislature of the State of Mississippi. As has been demonstrated, the State Board of Election Commissioners are mere functionaries and possessed no constitutional or statutory authority to effect the relief sought herein. Therefore, I am of the opinion that the sovereign State of Mississippi is immune from an award of attorneys’ fees herein in that all of the acts wherein complaint is made is of a pure, or wholly legislative question — reapportionment.
In the recent decision of Hernandez v. City of Lafayette, 643 F.2d 1188 (5th Cir. 1981), the Court of Appeals expounded upon the applicability of legislative immunity to municipalities and their officers.
After holding that the mayor of Lafayette was absolutely legislatively immune for vetoing certain zoning changes, the Court turned its attention to the legislative immunity of the city.
Succinctly stated, the Court held that in order to determine whether a governmental entity was entitled to claim immunity, the Court would have to examine the facts and view them as stated by the Supreme Court of Virginia v. Consumers Union, supra, in light of traditional concepts of immunity under the common law. Since Hernandez involved the taking of property without due process of law, the Court held that the city was amenable to damages.
The situation sub judice is inapposite. Here we have a situation wherein a claim of legislative immunity was raised over a pure, or wholly legislative question — reapportionment. Although application of reapportionment to traditional concept of immunity is virgin territory as far as precedents are concerned, the reasoning supporting inclusion is irrefragable. When viewed in light of the historical background of the Supreme Court of Virginia wherein the Court held that not only the individual members, but the Legislature as a whole are immune from acts done in their or its legislative capacity, one finds the tradition referenced in Hernandez that officials and state are absolutely immune from suit and resulting attorneys’ fees in reapportionment matters, such being exclusively legislative in function and practice.
The plaintiffs have wholly failed to bear the requisite burden of proof herein. First, the plaintiffs have the burden of proving that the services rendered were both necessary and proper. Skehan v. Board of Trustees of Bloomsburg St. College, 501 F.Supp. 1360 (M.D.Penn., 1981). Secondly, it is within the sound discretion of this Court whether to award attorneys’ fees; and if it does, the amount thereof. Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). Thirdly, the reasonableness of the Court’s actions are to be judged by the abuse of discretion standard of review. Johnson, supra.
In reviewing the time spent by counsel, in the litigation of a claim, the Court in Johnson stated: “The trial judge should weigh the hours claimed against his own knowledge, experience, and expertise of the time required to complete similar activities.... It is appropriate to distinguish between legal work, in the strict sense, and investigation, clerical work, compilation of facts and statistics and other work which can be accomplished by non-lawyers but which a lawyer may do because he has no other help available. Such non-legal work may command a lesser rate. Its dollar value is not enhanced just because a lawyer does it. 488 F.2d at 717 .”
Bearing in mind the Fifth Circuit’s decision in Harkless v. Sweeny Ind. Sch. Dist., 608 F.2d 594 , the failure to keep time logs *1350 from the passage of § 402 of the 1975 Amendments to the Voting Rights Act of 1965, 42 U.S.C. § 1973 /(e), on August 6, 1975, should and does weigh heavily against the plaintiffs. Considering this in light of the items noted in paragraphs 2-13 of defendants’ objections, plaintiffs estimates are far less than accurate.
Plaintiffs have submitted three affidavits executed by Frank R. Parker claiming 1.272.25 hours for the work he allegedly performed from March 14, 1973 to date. Mr. Parker kept no time records, and all of the entries in the affidavits are arbitrary estimates divined by him from a review of his files on, or shortly before the execution date of the affidavits. Exhibit “A” to plaintiffs’ motion covers from June 3, 1977 through May 28, 1979, and accounts for 566.25 hours of work; however, according to Mr. Parker’s testimony the affidavit and thereby the hourly notations were not prepared until shortly before December 22, 1980, over a year and a half after the last services were rendered. Exhibit “B” purports to reflect the services rendered by counsel from March 14, 1973 through June 14, 1976 for a period of over three years; yet, no notations of services were made until June 14, 1976. Exhibit “C” purports to cover from June 15,1976 through February 28,1977, a period of over seven months; however, counsel kept no interim time records and on August 10, 1977, estimated he spent 276 hours during that time frame.
The plaintiffs failed to produce any objective evidence that any of the time claimed was actually expended. Rank speculation and conjecture do not sustain, or satisfy the burden of proof. One cannot fathom why a civil rights attorney with the experience of Mr. Parker would operate in such a slipshod fashion. As Mr. Parker testified in the hearing in this matter, he was specifically sent to Mississippi to litigate this matter. Plaintiffs have consistently demanded attorneys’ fees throughout the course of this litigation, and why they did not maintain proper records after the adoption of 42 U.S.C. § 1973 /(e) has not been satisfactorily explained; therefore, I would deny the plaintiffs’ request for attorneys’ fees.
As for an award of expenses of litigation, I cannot agree with my brethren that some of the expenses claimed herein are compensable. Mindful of the Fifth Circuit’s decision in Jones v. Diamond, 636 F.2d 1364 (5th Cir.), it is important to note that the United States Supreme Court has granted certiorari on the question on which this Court now has spoken. See Ledbetter v. Jones, - U.S. -, 101 S.Ct. 3106 , 69 L.Ed.2d 970 (1981).
Initially, there is the $3,984.15 claimed in expenses from fees and expenses paid to one of the plaintiffs, Henry J. Kirksey, during the course of litigation. The aforesaid payments are tantamount to champerty and maintenance and are not compensable. Loewen v. Turnipseed, 505 F.Supp. 512 (N.D.Miss., 1980); Hodge v. Seiler, 558 F.2d 284 (5th Cir. 1977); Skehan v. Board of Trustees of Bloomsburg State, 436 F.Supp. 657 (M.D.Penn., 1977); Miss.Code Anno. § 97-9-11 (1972).
Next is the $2,251.20 paid to Larry Rand and Rob McDuff as fees and expenses for services as paralegals. Plaintiffs failed to offer even a scintilla of proof as to the paralegal training of either of these gentlemen.
In Jones v. Armstrong Cork Co., 630 F.2d 324, 325-326 (5th Cir.), the Court held: “The district court order stated that Ms. Turner was entitled to no compensation for the work hours of Ethel Smith. The salary Ms. Smith received for her work was considered an overhead expense not to be reimbursed by an attorney’s fee award. This holding is correct in light of the district court’s conclusion that it had not been established that Ethel Smith was a ‘paralegal.’ Although she was called a paralegal, neither Ms. Smith nor Ms. Turner ever introduced evidence of any paralegal training, and more importantly, most of the time Ms. Smith spent on the case was in the performance of clerical duties. The factual finding of the district court that Ms. Smith is not a paralegal is not clearly erroneous; thus, the court’s conclusion that no compensation would be allowed for her work hours is *1351 affirmed.” See also Anderson v. Redman, 474 F.Supp. 511 (D.Del., .1979); Willey v. Maben Mfg. Co., Inc., 487 F.Supp. 1369 (N.D.Miss., 1979).
During the hearing herein, there was no testimony adduced showing any paralegal training, or expertise. Although there was testimony that Mr. McDuff was a student of political science at Millsaps College, Mr. Parker did not know how many hours the gentlemen had, or even what year he was in school. The conclusory statements by Mr. Parker that Rand and McDuff acted as paralegals is less than sufficient to sustain or satisfy their burden of proof.
Plaintiffs also sought compensation for expenses incurred as a result of the retention of the services of certain “experts” who did not testify; i. e., $408.97 for Comprehensive Planners, Inc. or Hoyt T. Holland. Such expenses must not be allowed. Cohen v. West Haven Bd. of Police Commissioners, 485 F.Supp. 958 (D.Conn., 1980). The rationale behind this reasoning is obvious. To allow such expense items would condone and reward padding. The Court must encourage judicial economy.
The next item concerns the bill of David Valinsky. Although plaintiffs claim time and expenses for a deposition from Dr. Valinsky, the Court’s docket clearly shows that no such deposition was ever filed, and the Court never had any use and benefit of such. Therefore, under the Cohen doctrine the $6,155.99 expense item should not be allowed. See also Skehan v. Board of Trustees of Bloomsburg St. College, 501 F.Supp. 1360, 1384 (M.D.Penn., 1981).
Also included in the expense items is a charge of $719.40 from Court Reporters Service for the deposition of Thomas H. Campbell. This item is covered under 28 U.S.C. § 1920 to be taxed as costs and, therefore, should not be allowed as an expense item. Loewen v. Turnipseed, supra.
The charge of $282.80 from Lavern J. Holley for typing Sweeny’s plan is obviously secretarial in nature and should not be allowed. Jones v. Armstrong Cork Co., su=pra.
The $29.14 charge from Glen D. Fortenberry for room at the Ramada Inn should not be allowed. As was demonstrated at the hearing, Mr. Fortenberry received his statutory per diem and travel expenses and is entitled to no more. Willey v. Maben Mfg. Co., supra.
The motion filed in the instant matter is for the services and expenses incurred by Frank R. Parker for services performed and expenses incurred by him. Included in the expense items are expenses incurred by George Peach Taylor, $219; and Thomas J. Ginger, $23.72. Neither of these attorneys joined in the motion, submitted affidavits, or testified as to the reasonableness of the charges. They must, therefore, be excluded.
The charges of Frank R. Parker for trips to Washington must not be allowed. From a review of the bills dated May 30, 1975, January 1,1977, February 8,1977, and February 24, 1977, the charges were unnecessary and unreasonable. The only reason for these trips offered by Mr. Parker was poor mail service between Jackson and Washington. A review of plaintiffs’ expense vouchers reveals the flaw in his logic. Plaintiffs with relative frequency utilized Delta Dash Service and Federal Express which guaranteed next day service. Therefore, the expenses incurred by these needless trips to Washington in the amount of $921.73 must not be allowed. 2
Certain expenses incurred by Barry Ford should not be allowed. Although plaintiffs again failed to sustain the burden of proving Mr. Ford’s qualifications as a paralegal, it appears that the $9.50 item and the $7.09 item were incurred during legal proceedings. Plaintiffs have failed to demonstrate the necessity of his presence at these proceedings and must be denied. Loewen v. Turnipseed, supra. As for the $15.30 incurred in the service of subpoenas, such is not a compensable item under 42 U.S.C. §§ 1973 /(e) and 1988. 28 U.S.C. §§ 1911 et seq.
Finally, the expense items covered by the headings “Express Mail Service,” “Sup *1352 plies,” and “Telephone” are items normally and properly considered overhead, or costs of doing business and must not be allowed. Loewen v. Turnipseed, supra; Crowe v. Lucas, 479 F.Supp. 1258 (N.D.Miss., 1979).
In conclusion, I simply cannot agree with the majority herein and must and do respectfully dissent. Certainly attorneys should be compensated for their efforts in vindicating important questions of civil rights. But, there comes a time when the fundamental principles of equity and fairness say stop and from this point I will not budge!
The proposed judgment orders the Governor of the State of Mississippi, the Attorney General of the State of Mississippi and the Secretary of State of the State of Mississippi in their official capacities as State Board of Election Commissioners and, not individually, to pay the plaintiffs a reasonable attorneys’ fee and litigation expense in the amount of $116,815.92 and for said sum to be paid from the public funds in the state treasury. There is further awarded the sum of $10,870.70 which is taxed as costs in the bill of cost against the defendants under Federal Rule 54(d) with no provision that said officials shall not be liable for such costs individually, or that they may collect it from the public funds of the sovereign treasury.
. These parties were William L. Waller, Governor, A. F. Summer, Attorney General, Heber Ladner, Secretary of State, William F. Winter, Lieutenant Governor, B. G. Perry, President Pro Tempore, John R. Junkin, Speaker of the House, and C. B. “Buddy” Newman, Speaker Pro Tempore. The Lieutenant Governor and the Speaker Pro Tempore were included as additional defendants.
. Note that Mr. Parker conceded $33.27 of his January 21, 1977 claim was improper.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9627472. Public record. Not legal advice.