Opposition Brief — Monroe v. City of Woodville

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(ZY JUN 13 199)

No. 90-1761

OFFICE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1990

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JOHN MONROE, et al.,

Petitioners,

CITY OF WOODVILLE, MISSISSIPPI, et al.,

Respondents.

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Petition For Writ Of Certiorari To The United States

Court Of Appeals For The Fifth Circuit

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BRIEF IN OPPOSITION

cy —

Dennis L. Horn*

SHIRLEY PAYNE

Horn & PAYNE

P.O. Box 1725

Jackson, MS 39215

(601) 373-0170

Counsel for Respondents

*Counse!l of Record

June 13, 1991

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

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QUESTION PRESENTED FOR REVIEW

This case involves the denial of attorneys’ fees on a

Voting Rights case in which a Three-Judge Court denied

all relief and the United States Supreme Court subse-

quently dismissed the Appeal as moot. In no manner

were the positions of the parties changed as a result of

the Petitioners’ litigation.

The sole issue consists of the following:

Whether the District Court’s denial of attor-

neys’ fees, upon its consideration of well-settled

law and upon its finding that the Petitioners

were not prevailing parties, was properly

affirmed by the Fifth Circuit Court of Appeals

since there was no abuse of discretion, no con-

flict with precedent from other circuits, and no

departure from the accepted and usual course of

judicial proceedings or conflict with applicable

decisions of this Court.

il

PARTIES TO THE PROCEEDINGS BELOW

John Monroe, Jimmy Harris and John Green, individ-

ually and on behalf of a class certified under Rule 23(b)(2)

of the Federal Rules of Civil Procedure, defined as “all

black citizens and all black registered voters of the City of

Woodville, Mississippi.”

City of Woodville, Mississippi, Ron Senko, in his

capacity as Mayor of Woodville, Mississippi, George J.

Gonda, former Mayor of Woodville, Mississippi, Andy J.

Lewis, former Alderman, Frances Townsend as City

Clerk, Gary D’Quilla, Charles James, Tim Sessions, Elnora

Veals, current Aldermen; and Joe Townsend, Mary

Magee, and Herbert Curry as Election Commissioners.

TABLE OF CONTENTS

Page

Question Presented for Review .................... i

Parties to Proceedings Below...................... ii

i iii

EE iv

ERs aod nes esp sercdccecesece 1

esau crecssseeccccscces 2

ee decor ercccccbercencons 2

Tg oc rec ccc csc ccccsescccccce 2

Diners seer esse ccccessecccoce 9

I. The Single District Court Judge Decided a Ques-

tion of Attorney’s Fees, Not a Question Con-

| cerning Section 5 of the Voting Rights Act of

ee ea GEG Ue epee sss0rscrcccccscee 9

II. Petitioners Are Not Prevailing Parties When the

Unilateral Action of the Town to Abolish its

| Town Marshal Position was not Relief Which

Petitioners Either Sought or to Which They Were

au paps spc eccccscrrrcees 11

III. The District Court Found That Petitioners Pre-

vailed on No Issue, Whether Central or Other-

wise, By Direct Relief or Catalyst or Otherwise,

and Were Therefore Not Entitled to an Award of

iv

TABLE OF AUTHORITIES

Page

Allen v. Board of Elections, 393 U.S. 544, 566 (1969) .... 12

Associated Builders & Contractors of Louisiana, Inc.,

et al. v. The Orleans Parish School Board, et al., 919

a & fF §* ee. ere TT rr rrr er 10, 14, 15

Blanchard v. Bergeson, 893 F.2d 87 (5th Cir. 1990)..... 13

Bond v. White, 508 F.2d 1397, 1400 (5th Cir. 1975)...7, 9

Hanrahan v. Hampton, 446 U.S. 754, 758 (1980)....... 13

Hathorn v. Lovorn, 457 U.S. 255 at 265, 266, n. 16

Gass he Saican coh ib ohne ie pada eR aN oe eee eos 12

Hennigan v. Quachita Parish School Board, 749 F.2d

SO WUE Sy Sn knoe scenceseeeeian aE whee 14, 15

Hensley v. Eckerhart, 461 U.S. 435, 437 (1981) ........ 13

Hewitt v. Helms, 482 U.S. 755 (1987).............. 13, 14

Jordan v. Allain, 619 F.Supp. 98, 99 n.2 (N.D.Miss.

FTE PETE OT OMT ECU CLOUT ee ee Eee eeT ETI Ee 9

Maher v. Gagne, 448 U.S. 122, 129 (1980)............. 14

Monroe v. City of Woodville, Miss., __ U.S. __, 110

i ee <a

Smith v. Robinson, 468 U.S. 992, 1006 (1984)......... 14

State ex rel. Doolittle v. Hays, 91 Miss. 755, 45 So.

Fe ois ccc lb dvess tne es seek eek es o> 12

Texas State Teachers Association v. Garland Indepen-

dent School District, 489 U.S. 782, 109 S.Ct. 1486,

ge eS pr Pre errr 15

United States v. Munsingwear, Inc., 340 U.S. 36

Se ARR Ako Pr pee Pree terre ee ee 1, 7, 10

Vv

TABLE OF AUTHORITIES - Continued

Page

Williams v. Leatherbury, 672 F.2d 549, 551 (5th Cir.

og EES So ee rr Pere er ee 14

Wooten v. Housing Authority of City of Dallas, 723

ow i | 14

OTHER AUTHORITIES:

Poem Gem Lien) Rule 47.5... 0... cece cceceee 1, 8

28 U.S.C. Section 1254...... POUL LEMS Tse a RES 2

Pe I ID nec ccccssevercveceesrscse 2

Oe as ST SPO oii kc ccc ceca a ededevesee ces 2

ee NN ons ds cccvcccceeosveceuvvesvuns 6

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OPINIONS BELOW

The United States Court of Appeals for the Fifth

Circuit disposed of the appeal herein on summary calen-

dar by per curium affirmance, entered by Goldberg, Gar-

_wood and Jones, Circuit Judges, on March 15, 1991. The

opinion is unpublished, pursuant to Fifth Circuit Local

Rule 47.5 which provides: “The publication of opinions

that have no precedential value and merely decide partic-

ular cases on the basis of well-settled principles of law

imposes needless expense on the public and burdens on

the legal profession.”

The decision of Judge William H. Barbour, Jr., of the

United States District Court for the Southern District of

Mississippi, Western Division, was entered by Memoran-

dum Opinion and Order filed September 27, 1990. This

decision is also unpublished.

The District Court’s decision here sought to be

reviewed was based upon an earlier decision on the

merits rendered by a Three-Judge District Court, denying

all relief to Petitioners. That decision was entered by

Bench Opinion of March 24, 1989. It is unpublished.

The Supreme Court of the United States, on October

16, 1989, vacated the judgment of the Three-Judge District

Court and remanded with instructions to dismiss the

appeal as moot, in accordance with United States v. Mun-

singwear, Inc., 340 U.S. 36 (1950). That decision, Monroe v.

City of Woodville, Miss., is reported at __ U.S. ___, 110

S.Ct. 273, 107 L.Ed.2d 254 (1989).

+

JURISDICTION

Jurisdiction of this Court is sought to be invoked pur-

suant to 28 U.S.C. Sections 1254 and 2101(c). The Petition

for Writ of Certiorari was timely filed within ninety (90)

days after the entry of judgment by the Fifth Circuit

Court of Appeals on May 15, 1991, pursuant to Rule 13 of

the Supreme Court Rules. This Brief in Opposition is

timely filed within thirty (30) days after receipt of the

Petition for Writ of Certiorari, pursuant to Rule 15 of the

Supreme Court Rules.

STATUTES INVOLVED

42 U.S.C. Section 19731(e) provides that “[iJn any

action or proceeding to enforce the voting guarantees of

the fourteenth or fifteenth Amendment, [USCS Constitu-

tion, Amendments 14, 15] the Court, in its discretion, may

allow the prevailing party, other than the United States, a

reasonable attorney’s fee as part of the costs.”

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STATEMENT OF THE CASE

The City of Woodville should not be held liable for

attorneys’ fees on a case that Petitioners lost. There are no

issues presented on this Petition for Certiorari that war-

rant the review of this Court.

When this litigation began the Petitioners sought

injunctive relief (1) to enjoin the appointment of election

commissioners and (2) to enjoin the appointment of and

obtain the election of a town marshal for the City of

Woodville, Mississippi. These claims were brought pur-

suant to Section 5 of the Voting Rights Act (R.Vol.1, p.4)

against a town of 1,512 persons (R.Vol.1, p.179).! Peti-

tioners prevailed on neither issue. Nevertheless, Peti-

tioners now seek an award of $132,435.20 in attorneys’

fees.

The Complaint was filed on March 2, 1988. More than

a year prior to that date, the Mississippi Election Code

had been amended to provide that towns of fewer than

20,000 people thereafter would appoint, rather than elect,

the election commissioners. Section 23-15-221, Miss. Code

Ann. 1972 (Supp. 1987). This change in State law was

precleared by the United States Justice Department effec-

tive January 1, 1987. (See editor’s note preceding Section

23-15-1 of the Mississippi Code, concerning the United

States Attorney General's interposition of no objection to

the amendment of former Section 23-11-13).

The Petitioners certainly did not prevail upon their

frivolous claim that Woodville’s Election Commissioners

should continue to be elected after the precleared amend-

ment to state law. At the Summary Judgment/Injunction

hearing held on the merits, the Petitioners contested the

preclearance of the Mississippi Election Code mandating

the appointment of election commissioners, even in light

of the Respondents’ filing of record the letters of Decem-

ber 31, 1986, and January 2, 1987, from Gerald W. Jones,

' The population of 1,512 is based on the 1980 census. the

1990 census is expected to show a decrease in that population.

Chief, Voting Section of the United States Justice Depart-

ment reflecting that relevant changes in the Mississippi

voting statutes indeed had been precleared. (R.Vol.4,

pp-19-20).

The Petitioners had also sought relief from the Three-

Judge Court to:

(1) Declare that the change in the Town marshal

position from an election to an appointed office

violated Section 5 of the Voting Rights Act;

The Three-Judge District Court specifically held that the

town had never changed the office of town marshal from

elective to appointive. Rather, that office died due to lack

of interest. The Petitioners obtained no relief with respect

to this goal of their litigation. (R.Vol.3, p.727).

The town marshal’s position paid only $50.00 per

month and had powers virtually co-extensive with those

of the chief of police, (R.Vol.1, p.210) whose position has

been continually occupied since 1968. Since the last town

marshal died in office in 1977, there had been no candi-

date who had attempted to qualify or run for town mar-

shal. (R.Vol.1, p.7). After 1977, the position of town

marshal simply remained unoccupied; no one wanted the

job. The State Legislature did pass a self-enacting state

statute which would have provided for appointment of

Woodville’s town marshal, but this enabling legislation

was never adopted by an ordinance of the Town of Wood-

ville to accomplish that act. (R.Vol.4, p.3). Neither did

Woodville appoint a town marshal. The position simply

remained vacant.

Next, Petitioners sought relief to:

(2) Preliminarily and permanently enjoin defen-

dants from erg rather than electing the

town marshal and order defendants to conduct

an immediate election for chief of police;

The Three-Judge District Court held there to be no

change in appointing rather than electing the town mar-

shal. The Respondents were not ordered to conduct an

immediate election for chief of police. The Petitioners at

no point obtained either a preliminary or a permanent

injunction in this action.

Third, Petitioners sought relief to:

(3) Preliminarily and permanently enjoin the

current chief of police from holding office.

Since 1968, a chief of police has held and continues to

hold office in Woodville. Holding office since 1968 was

one of the bases for the ruling of the Three-Judge Court:

“The burden remained on the Plaintiffs to show that there

had been a change. The evidence also, of course, that the

Police Chief, and that was part of the evidence, | think,

that perhaps the Plaintiffs were suggesting, that the

Police Chief has assumed the role of the Marshal. Well,

we looked at that and found that the Police Chief existed

at the same time that the Marshal’s office was and it was

not an office that had been created as a subterfuge for the

office of Town Marshall that they intended to abolish.”

(R.Vol.5, p.4).

No change was brought about as a result of this

lawsuit which changed the position of the parties. Since

there was no change in voting, the Petitioners did not

prevail on the merits. On the subsequent attorneys’ fees

issue, the Courts below have also concluded that there

was no change achieved by the Petitioners which would

justify fees. (District Court Memorandum Opinion and

Order, R.Vol.3, pp.721-22).

Petitioners now attempt to characterize their claim as

a challenge to the failure to call special elections when

and after no one qualified to run for town marshal. This

issue was never raised in the case presented on the merits

and this issue cannot be properly before this Court. The

District Court discussed and rejected the effort of the

Petitioners to “to switch horses in midstream,” (R.Vol.3,

p. 728) and rejected the claim for fees based on Wood-

ville’s abolishing the town marshal position. The Peti-

tioners never sought to abolish that office; nor could they

validly seek to abolish an office under their claim for

relief pursuant to the Voting Rights Act. The mere fact

that Woodville did comply with preclearance procedures

when it abolished the town marshal post does not render

the Town liable for fees.

The Petitioners presented a meritless claim and lost

before the Three-Judge Court. During the pendency of

their appeal to the United States Supreme Court, the

Town marshal position ceased to exist by way of an

action unilaterally undertaken by Respondents to abolish

the moribund office. There was, and is, no legal causation

between the Petitioners’ efforts and the abolition of the

town marshal position. The Petitioners herein had never

sought to abolish the town marshal position; they had

sought to fill that position by election, pursuant to Sec-

tion 5 of the Voting Rights Act. 42 U.S.C. Section 1973c.

The Petitioners have not obtained, by catalyst or other-

wise, any of the relief they sought in their complaint.

After the position of town marshal was abolished by

preclearance of the United States Justice Department, the

Three-Judge Court’s Opinion was vacated as moot in

light of United States v. Munsingwear, Inc., 340 U.S. 36

(1950). The Petitioners herein neither sought nor bene-

fited by the action of Respondents which abolished the

town marshal position or the action of State Legislature

which had required the appointment of election commis-

sioners. Respondents have never acknowledged any cata-

lyst effect and specifically deny it.?

Following remand from the United States Supreme

Court, the Petitioners moved for attorneys’ fees and the

Petitioners moved to dissolve the Three-Judge Court.

(R.Vol.2, pp.359-417, 421-428). The Three-Judge Court was

dissolved on July 16, 1990, (R.Vol.3, p.717), by order

citing Bond v. White, 508 F.2d 1397, 1400 (5th Cir. 1975),

pursuant to the Motion of Petitioners.

By Memorandum Opinion and Order entered Sep-

tember 27, 1990, (R.Vol.3, p.719), Judge William H. Bar-

bour, Jr., denied Petitioners’ Motion for Attorneys’ Fees,

upon a finding that the Petitioners were not prevailing

parties. The District Judge had held, correctly, that “Since

Plaintiffs have not achieved any of the goals that

prompted the filing of this lawsuit, this Court concludes

2 Respondents specifically identify footnote 3, page 4 of

the Petition for Writ of Certiorari as a perceived misstatement

of fact, pursuant to Rule 15.1 of the Supreme Court Rules.

that Plaintiffs have failed to establish the first require-

ment for the finding of ‘prevailing party’ status.”

(R.Vol.3, p.728).

The Fifth Circuit affirmed the District Court decision

without written opinion, citing its local rule 47.5 that no

publication of an opinion was necessary where the deci-

sion would have no precedential value but merely

decided particular cases on the basis of well-settled prin-

ciples of law.

The proceedings on fees in this case have exceeded

the efforts put forth on the merits. By notice from the

Supreme Court filed in the District Clerk’s office on Octo-

ber 19, 1989, the judgment of the Three-Judge Court had

been vacated and the case had been remanded to the

District Court with instructions to dismiss the appeal as

moot. (R.Vol.2., pp.353,358). On that date, all proceedings

on the merits of the case were finished. Three hundred

fifty-three (353) pages of the record had been created.

(R.Vol. 1, pp.1-229; Vol.2, pp.230-353). Since that date, all

subsequent proceedings have touched on the Petitioners’

Motions for Attorneys’ Fees. Three hundred eighty (380)

pages of the record had thus been created regarding the

attorneys’ fees issue before the District Court. (R.Vol.2,

p-354; R.Vol.3, p.733).

At the Summary Judgment/ Injunction hearing on the

merits, when questioned by United States District Judge

Tom Lee about the remedy the Petitioners then sought

regarding the town marshal position, an attorney for the

Petitioners stated “well, one of the remedies would be

attorney’s fees, first of all... ” (R.Vol.4, p.26). In this

case, there were no depositions and there was no trial.

The Petitioners, represented through the Legal Services

Corporation (R.Vol.1, p.5)3, have filed a motion seeking

$132,435.20 in attorney’s fees (R.Vol.3, p.719) (A figure

which would be substantially increased by the appeal

and this subsequent Petition for Certiorari). By way of

comparison, the fees and expenses charged the Respon-

dent Town by their counsel in this action was $7,338.64.

(R.Vol.3, pp.472,476). Such an award to Petitioners would

be unwarranted. The denial of the fees award presents no

significant issue for review.

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ARGUMENT

REASONS FOR DENYING THE WRIT

I. The Single District Court Judge Decided a Question

of Attorney’s Fees, Not a Question Concerning Sec-

tion 5 of the Voting Rights Act of 1965.

It was the Petitioners themselves who moved for the

dissolution of the Three-Judge Court. (R.Vol.2,

pp.421,424). The dissolution of the Three-Judge Court is

supported by well-established precedent: Bond v. White,

508 F.2d 1397, 1400 (5th Cir. 1975), and Jordan v. Allain,

619 F.Supp. 98, 99 n.2 (N.D.Miss. 1985). Since the Peti-

tioners’ attorneys’ fees claim is based on a catalyst theory,

the Court’s finding of “no change” is a finding of no

change in the conduct of the Defendants for attorneys’

fees purposes rather than a finding of “no change” under

Section 5 for purposes of establishing relief on the merits.

3 Hon. Carroll Rhodes is in private practice and Hon.

Willie Rose is no longer with Legal Services. Hon. Deborah A.

McDonald remains with Southwest Mississippi Legal Services.

10

The Petitioners attempt a semantic argument, saying

that a single District Judge cannot find that there was no

“change” that had occurred pursuant to Section 5, (which

requires a Three-Judge Court) while finding that there

was no “change” for attorneys’ fees purposes. This argu-

ment is self-defeating for the Petitioners since the burden

is on them to show that there was a change in Respon-

dents’ conduct in order to justify their award of fees.

Associated Builders & Contractors of Louisiana, Inc., et al. v.

The Orleans Parish School Board, et al., 919 F.2d 374 (5th Cir.

1990). The District Judge had held, correctly, that “Since

Plaintiffs have not achieved any of the goals that

prompted the filing of this lawsuit, this Court concludes

that Plaintiffs have failed to establish the first require-

ment for the finding of ‘prevailing party’ status.”

(R.Vol.3, p.728). This finding of fact is a valid finding on

the attorneys’ fees issue. Making this finding that Peti-

tioners were not prevailing parties does not transmute

the District Court’s decision on fees into a Section 5

determination.

Neither can the Petitioners claim that the Supreme

Court’s vacating the decision of the Three-Judge Court

because the issues have become moot was in any manner

an implicit reversal of the decision of the Three-Judge

panel nor somehow a disagreement with that panel’s

decision on the merits. Instead, the vacation of judgment

by the Supreme Court represents the standard, required

response when a case becomes moot during the pendency

on an appeal. United States v. Munsingwear, 340 U.S. 36, 39

(1950).

There is no substantial question presented here, there

is no division among the circuits in applying settled law,

11

and the position of the United States Supreme Court in

vacating judgments upon mootness of the issues would

not justify an award of attorneys’ fees.

Il. Petitioners Are Not Prevailing Parties When the

Unilateral Action of the Town to Abolish its Town

Marshal Position was not Relief Which Petitioners

Either Sought or to Which They Were Legally Enti-

tled.

The Petitioners claim that their lawsuit prompted the

Defendant Town to seek preclearance of the abolished

town marshal position. However, the town marshal posi-

tion had not been formally abolished, by action of the

Board of Aldermen, before the suit was filed. The Peti-

tioners did not seek its abolition. The Petitioners further

did not seek preclearance of the abolition of the town

marshal position. Rather Petitioners sought a prohibitory

injunction enjoining the enforcement of a voting change

which they alleged to have occurred, that of the elected

town marshal position having become an appointed posi-

tion. The town marshal was not appointed either before

or during the interim during which this lawsuit was filed.

Rather the town marshal position was vacant and

remained vacant because no candidate had come forward

to qualify for that position. The Petitioners additionally

failed to show that they represented any party who had

sought or would have sought to qualify for the town

marshal post on either an elected or appointed basis.

(R.Vol.4, p.26).

The Petitioners next attempt to raise a new challenge

to an alleged failure to call special elections when and

after no one qualified to run for town marshal. It is

12

difficult to see how holding special elections would have

cured the failure of candidates to come forward for the

regularly scheduled elections. Nevertheless, the Peti-

tioners cite in support of that notion a 1908 Mississippi

Supreme Court case, State ex rel. Doolittle v. Hays, 91 Miss.

755, 45 So. 728 (Miss. 1908). Their reliance is misplaced.

Doolittle properly held only that a public office had not

become vacant under definitions then enacted under the

Mississippi Election Law. The Election Law referred to in

that 1908 decision is based on a statute that has been

recodified and/or amended at least three (3) times since

that date and is currently in a form precleared by the

United States Justice Department in 1987, again rendering

any reference to such a statute moot. Neither Doolittle nor

current State law can require a candidate to run for office.

Even if there were such a requirement, such a claim

would now be moot. Nor can an alleged, although moot,

State law claim grant an award of attorney’s fees unde:

either Section 1988 or Section 19731(e).

Section 5, under which Petitioners now base their

claim for attorneys’ fees, is intended to reach any state

enactment which may alter the election law of a covered

state in even a minor way. Allen v. Board of Elections, 393

U.S. 544, 566 (1969). The Supreme Court has defined

“change” in this context under Section 5 as being any

change “reflecting the policy choices of the elected repre-

sentatives of the people.” Hathorn v. Lovorn, 457 U.S. 255

at 265, 266, n.16 (1982). There have been no policy choices

of the Town of Woodville where no candidate has come

forward and run for the town marshal position. Thus

there is no Section 5 implication. Petitioners have not

13

secured by their litigation any relief which they sought.

They are not entitled to fees.

Here, further proceedings on fees would be dispro-

portionate to the major litigation. This Court has issued

its plain admonition that “[a] request for attorney’s fees

should not result in a second major litigation.” Hensley v.

Eckerhart, 461 U.S. 435, 437 (1981). Further, the amount of

fees sought by Petitioners, $132,435.20, is disproportio-

nate to the amount incurred for Respondents’ attorney.

“Although evidence of a defendant attorney’s fees are not

dispositive of the reasonableness of plaintiffs’ fee request,

a comparison of the two is entitled to some weight.”

Blanchard v. Bergeson, 893 F.2d 87 (5th Cir. 1990).

III. The District Court Found That Petitioners Pre-

vailed on No Issue, Whether Central or Otherwise,

By Direct Relief or Catalyst or Otherwise, and

Were Therefore Not Entitled to an Award of Fees.

”7

A “prevailing party” means “a party [who] has pre-

vailed on the merits of at least some of his claims.” Han-

rahan v. Hampton, 446 U.S. 754, 758 (1980). Since

Petitioners did not prevail, they deserve no fees.

In Hewitt v. Helms, 482 U.S. 755 (1987) the United

States Supreme Court denied attorney’s fees to a plaintiff

who had “neither sought nor benefited” by subsequent

actions of the defendants. The Court stated, “This case

presents the peculiar sounding question whether a party

who litigates to judgment and loses on all his claims can

nonetheless be a ‘prevailing party’ for purposes of an

award of attorney’s fees.” Id., at 757. A respect for ordi-

nary language requires that a plaintiff receive at least

14

some relief on the merits of his claim before he can be

said to prevail. A plaintiff may indeed be a prevailing

party for purposes of an award of attorney’s fees where

there has not been a final adjudication on the merits of

his claim, but the case must be terminated by virtue of a

settlement or voluntary conduct which brings a defen-

dant’s action into compliance with the relief sought by

the plaintiffs, E.g., Smith v. Robinson, 468 U.S. 992, 1006

(1984); Maher v. Gagne, 448 U.S. 122, 129 (1980); Wooton v.

Housing Authority of City of Dallas, 723 F.2d 390, 392 (5th

Cir. 1984). For Petitioners to prevail by such a catalyst

effect, it is required that there be achieved the “settling of

some dispute which affects the behavior of the defendant

toward plaintiffs before the plaintiffs can be entitled to

fees.” Hewitt v. Helms, supra, at 757. The Petitioners have

not sustained their burden of proving they were a “sub-

stantial factor or significant catalyst in motivating the

Defendants to end their unconstitutional behavior.” Wil-

liams v. Leatherbury, 672 F.2d 549, 551 (5th Cir. 1979).

In assessing the Petitioners’ catalyst claim, the Dis-

trict Court applied the test set forth in Hennigan v. Quac-

hita Parish School Board, 749 F.2d 1148 (5th Cir. 1985). This

standard has been recently reaffirmed and applied in

Associated Builders & Contractors of Louisiana, Inc., et al. v.

The Orleans Parish School Board, et al., 919 F.2d 374 (5th Cir.

1990). Under Hennigan, the first element that must be

established by a plaintiff claiming prevailing party status

is whether, as a practical matter, the plaintiff’s goal was

achieved, 749 F.2d at 1152. At the time Hennigan was

decided, the Fifth Circuit applied a “central issue” test.

The Petitioners have here attacked the District Court’s

decision for having quoted part of the Hennigan language

15

using the old “central issue” requisites. However, the

Petitioners have failed to show how, as a practical matter,

they prevailed on either a central issue or on any issue for

which they sought relief by way of their lawsuit. Hen-

nigan has been reaffirmed on its catalyst theory by Associ-

ated Builders, supra, which follows the Supreme Court

decision of Texas State Teachers Association v. Garland Inde-

pendent School District, 489 U.S. 782, 109 S.Ct. 1486, 103

L.Ed.2d 886 (1989). The District Court, rather than ruling

that Petitioners did not prevail on the central issue of the

litigation, ruled that the Petitioners did not prevail on

any issue raised by their litigation.

The Petitioners here neither sought nor benefited by

the action of the Defendants which abolished the town

marshal position or the action of the State legislature

which required the appointment of election commission-

ers.

CONCLUSION

The Petitioners obtained none of the relief they

sought, nor were they legally entitled to any relief. As the

District Court observed, they should not be awarded fees

because of unilateral action taken by the Town to abolish

the moribund town marshal position. There is no sub-

stantial issue presented, no misapplication of this Court’s

precedent, and no conflict among the Circuits in applying

16

this Court’s standards. There is no reason to require or

suggest review on certiorari of the decisions entered here

below.

*Counsel of Record

June 13, 1991

Respectfully submitted,

Dennis L. Horn*

SHIRLEY PAYNE

Horn & PAYNE

P.O. Box 1725

Jackson, MS 39215

(601) 373-0170

Counsel for Respondents