Petition for Writ of Certiorari — City of Houston v. Leroy

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87-1 FILED

61 1 MAR 28 1988

, Fs 4a. i

IN THE

Supreme Court of the United States

OCTOBER TERM, 1987

THE CITY OF HOUSTON, ET AL.,

Petitioners

¥.

MOSES LEROY, ET AL.,

Respondents

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

ROBERT J. COLLINS

Senior Assistant City Attorney

JOHN E. FISHER

Senior Assistant City Attorney

P. O. Box 1562

Houston, Texas 77251

(713) 247-2000

Attorneys for Petitioners

PETITION FOR WRIT OF CERTIORARI TO

—

Alpha Law Brief Co., Inc. — 8748 Westpark—Houston, Texas 77063 — 789-2000

QUESTIONS PRESENTED

1. Did the Court of Appeals erroneously affirm an

award of attorney’s fees for unsuccessful Voting Rights

Act litigation absent competent evidence that the Plaintiffs

were a catalyst to the Defendants in achieving single-

member districts?

2. Did the Court of Appeals use the correct legal

standard for awarding attorney’s fees for “coverage” liti-

gation under §5 of the Voting Rights Act when the

Justice Department was also a party to that litigation?

3. Did the Court of Appeals, after finding an abuse

of discretion in the award of attorney’s fees, fail to

correct it?

LIST OF ALL PARTIES TO THE PROCEEDINGS

Because there are both nominal and real parties in

interest in this litigation, they are so divided to reflect

more accurately their status under the Final Judgment

in the District Court.

NOMINAL PARTIES IN INTEREST

A. Plaintiffs below and Respondents here:

Moses Leroy

Mickey Leland

Lawrence L. Pope

Joe Perez

Joe Padilla

Hector Garcia

Don Horn

Greater Houston Civic Council of Organizations

Harris County Women’s Political Caucus

Political Association of Spanish Speaking Organizations

B. Defendants below individually and in their official

capacities and Petitioners here:

Frank Mann Member of the At-Large City Council

Johnny Goyen Member of the At-Large City Council

Larry McKaskle Member of the At-Large City Council

Judson Robin-

son, Jr. Member of the At-Large City Council

Louis Macey Member of the At-Large City Council

Homer Ford

(now deceased) Member of the At-Large City Council

Frank Mancuso Member of the At-Large City Council

James Westmore-

land Member of the At-Large City Council

Jim McConn

(later elected

Mayor) Member of the At-Large City Council

Anna Russell City Secretary

Ill

REAL PARTIES IN INTEREST

A. Defendant below and Petitioner here:

The City of Houston, Texas

B. Attorneys awarded fees below and Respondents

and/or counsel for Respondents here:

Gecrge Korbel of San Antonio, Texas

Jesse Botello of San Antonio, Texas

L.A. (“AI”) Greene of Houston, Texas

Frumencio Reyes of Houston, Texas

Juan Aldape of Houston, Texas

Craig Washington of Houston, Texas

Sidney Bracquet of Houston, Texas

David Boddie of Houston, Texas

Regina Temple of Houston, Texas

Larry Evans of Houston, Texas

Hogan & Hartson of Washington, D.C.

C. Expert witnesses awarded fees in the Final Judg-

ment of the District Court:

Dr. Chandler Davidson of Houston, Texas

Dr. Richard Murray of Houston, Texas

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ........---

LIST OF ALL PARTIES TO THE PROCEEDINGS ....

TABLE OF AUTHORITIES ............-0seeeeeeeees

OPINIONS BELOW .......c cc cccc cesses cssccscccces

STATEMENT OF JURISDICTION ...........--000+5:

APPLICABLE STATUTORY PROVISIONS ..........--

STATEMENT OF THE CASE ............eeeeeeeeees

REASONS WHY THE WRIT SHOULD BE GRANTF

II.

THE COURT OF APPEALS ERRONEOUSLY AF-

FIRMED AN AWARD OF ATTORNEYS’ FEES

FOR UNSUCCESSFUL LITIGATION WITHOUT

COMPETENT EVIDENCE THAT THE -PLAIN-

TIFFS WERE A CATALYST TO THE DEFEND-

ANNES. sossc Dssneseenesssecanneteéasasenanecaeds

THE COURT OF APPEALS APPROVED THE

TRIAL COURT’S APPLICATION OF AN ERRONE-

OUS LEGAL STANDARD TO DETERMINE THE

“LODESTAR” FEE DUE THE PLAINTIFFS’ AT-

TORRINEE EO. cc ccccnnsrccnsesesdensesevecsseceves

CONC SN n cic cccccentccenssccccsvaccsecessecs

CERTIFICATE OF SERVICE .........-sccccccceecss

APPET ccc ccccnccnscccnssresrecesovcsacaveseans

TABLE OF AUTHORITIES

CASES

Anderson v. City of Bessemer City, 470 U.S. 564 (1985)

Andrews v. Koch, 554 F.Supp. 1099 (E.D. N.Y. 1983) ...

Apolskis v. Concord Life Insurance Co., 445 F.2d 31 (7th

Cats DOGO ss casecsekssdtenseaseee

Arriola v. Harville, 781 F.2d 506 (Sth Cir. 1986), cert.

Game, US. CI ess aoe

Bose Corporation v. Consumers Union of United States, Inc.,

“6 US. 066 C0008).

Campaign for a Progressive Bronx v. Black, 631 F.Supp. 975

CRES. Fie: SOD vacesinsnisnkeee eee

Cohen v. Maloney, 428 F.Supp. 1278 (D. Del. 1977) ....

Conner v. Winter, 519 F.Supp. 1337 (S.D. Miss. 1981) ...

Flowers v. Wiley, 675 F.2d 704 (Sth Cir. 1982) ........

Hennigan v. Ouachita Parish School Board, 749 F.2d 1148

(Sie €or. SGRED nc ccguvasectndseues

Hensley v. Eckerhart, 461 U.S. 424 (1985) ............

In re Kans. Congressional Dists. Reapportionment Cases,

345 F.28 O80 CIO CR BORG occ ve scseacadesenes

Jordan v. Allain, 619 F.Supp. 98 (N.D. Miss. 1985) .....

Kirksey v. Danks, 608 F.Supp. 1448 (S.D. Miss. 1985) ...

Latham v. Chandler, 406 F.Supp. 754 (N.D. Miss. 1976)

Matthews v. LeFlore City Bd. of Election Comm., 447

F Supp. S05 (DD. Bion. 1970) occccsos ccuucsccsvces

McDaniel v. Temple Independent School District, 770 F.2d

S300 (Se Ce Pee. viocie esses.

Merchants National Bank of Mobile v. Dredze General G. L.

Gillespie, 663 F.2d 1338 (Sth Cir. 1981), cert. dis’m, 456

W... SRG COONS us Seaw en van chee eee

Newman v. Piggie Park Enterprise, Inc., 390 U.S. 400

CRRERY chs casa ewese te ee eee

Pennsylvania v. Delaware Valley Citizens Council for Clean

Air, US. » eS OR Ae valcsscsenaswr es

Perez v. Velez, 629 F.Supp. 734 (S.D. N.Y. 1985) .....

Perkins v. Matthews, 400 U.S. 379 (1971) ............

Rybicki v. State Bd. of Educ., 584 F.Supp. 849 (N.D. Tl.

SOUS): cksivcesdteawsate cee

Torres v. Sachs, 538 F.2d 10 (2d Cir. 1976) ............

Webb v. Board of Education, 471 U.S. 234 (1985)

Page

OPINIONS BELOW

The District Court's Memorandum Opinion and Order,

dated August 1, 1986, granting attorney's fees and costs

is published as Leroy v. City of Houston, 648 F.Supp.

537 (S.D. Tex. 1986). The Final Judement of the same

date is unpublished. Both are reprinted in the Appehdix.

The Court of Appeals’ opinion, dated November 12,

1987, is published as Leroy v. City of Houston, 831 F.2d

576 (Sth Cir. 1987). The Court’s order denying the

petition for rehearing is dated December 28, 1987, and

is reported at 836 F.2d 1346. Both are reprinted in the

Appendix.

OTHER REFERENCES

The parties will be referenced by their status before

the District Court as Plaintiffs and Defendants.

References to the opinions below will be to the published

versions with cross-reference to the Appendix. References

to the “Transcript of Proceedings” (the ten-day hearing

on attorneys’ fees in April-May, 1985) will be cited as

“Tr.” with the volume as a roman numeral and the page

reference in arabic numbers, as in “Tr. II-22-25.” Plain-

tiffs’ exhibits are referred to as “PX” with the exhibit

number. Defendants’ exhibits are referred te as “DX”

with the exhibit number.

STATEMENT OF JURISDICTION

The Court of Appeals’ opinion was issued on No-

vember 12, 1987, and rehearing was denied on December

28, 1987. The jurisdiction of this Court is invoked under

28 U.S.C. Section 1254(1) by the timely filing of this

Petition for Writ of Certiorari.

———————————————

APPLICABLE STATUTORY PROVISIONS

42 U.S.C. § 1973¢:

“Whenever a State or political subdivision with respect

to which the prohibitions set forth in section 1973b(a)

of this title based upon determinations made under the

first sentence of section 1973b(b) of this title are in

effect shall enact or seek to administer any voting quali-

fication or prerequisite to voting, or standard, practice,

or procedure with respect to voting different from that

in force or effect on November 1, 1964, or whenever a

State or political subdivision with respect to which the

prohibitions set forth in section 1973b(a) of this title

based upon determinations made under the second sen-

tence of section 1973b(b) of this title are in effect shall

enact or seek to administer any voting qualification or

prerequisite to voting, or standard, practice, or pro-

cedure with respect to voting different from that in force

or effect on November 1, 1968, or whenever a State

or political subdivision with respect to which the prohibi-

tions set forth in section 1973b(a) of this title based

upon determinations made under the third sentence of

section 1973b(b) of this title are in effect shall enact

or seek to administer any voting qualification or pre-

requisite to voting, or standard, practice, or procedure

with respect to voting different from that in force or

effect on November 1, 1972, such State or subdivision

may institute an action in the United States District

Court for the District of Columbia for a declaratory

judgment that such qualification prerequisite, standard,

practice, or procedure does not have the purpose and

will not have the effect of denying or abridging the right

to vote on account of race or color, or in contravention

of the guarantees set forth in section 1973b(f)(2) of

this title, and unless and until the court enters such

judgment no person shall be denied the right to vote

for failure to comply with such qualification, prerequisite,

standard, practice, or procedure: Provided, That such

qualification, prerequisite, standard, practice, or procedure

may be enforced without such proceeding if the qualifi-

cation, prerequisite, standard, practice, or procedure has

been submitted by the chief legal officer cr other ap-

propriate official of such State or subdivision to the

Attorney General and the Attorney General has not

interposed an objection within sixty days after such sub-

mission, or upon good cause shown, to facilitate an

expedited approval within sixty days after such sub-

mission, the Attorney General has affirmatively indicated

that such objection will not be made. Neither an affirma-

tive indication by the Attorney General that no objection

will be made, nor the Attorney General’s failure to

object, nor a declaratory judgment eniered under this

section shall bar a subsequent action to enjoin enforce-

ment of such qualification, prerequisite, standard, practice,

or procedure. In the event the Attorney General affirma-

tively indicates that no objection will be made within

the sixty-day period following receipt of a submission,

the Attorney General may reserve the right to reexamine

the submission if additional information comes to his

attention during the remainder of the sixty-day period

which would otherwise require objection in accordance

with this section. Any action under this section shall

be heard and determined by a court of three judges in

accordance with the provisions of section 2284 of title 23

and any appeal shall lie to the Supreme Court.”

42 U.S.C. § 19731:

“(b) No court other than the District Court for

the District of Columbia or a court of appeals in

any proceeding under section 1973g of this title

shall have jurisdiction to issue any declaratory judg-

ment pursuant to section 1973b or section 1973c

of this title or any restraining order or temporary

or permanent injunction against the execution or

enforcement of any provision of subchapters I-A

to I-C of this chapter or any action of any Federal

officer or employee pursuant hereto.”

“(e) In any action or proceeding to enforce the voting

guarantees of the fourteenth or fifteenth amend-

ment, 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.”

STATEMENT OF THE CASE

This is the appeal of an award of attorneys’ fees for

Voting Rights Act litigation. However, it is not a con-

ventional attorneys’ fees case. The amount that the Dis-

trict Court awarded, $1,025,232.00 in fees and expenses

to the Plaintiffs’ attorneys, Leroy v. City of Houston,

648 F.Supp. 537, 578 (S.D. Tex. 1986}, App. A, p.

93a), dwarfs the amounts commonly granted in Vot-

ing Rights cases. Secondly, fees were granted for legal

work in three separate cases because the work in these

cases acted as a catalyst to the Justice Department.

Although these three cases were never formally consoli-

dated, the District Court elected to consider them as part

of a continuous effort to force the City of Houston to

elect its City Council from single-member districts. Leroy

v. City of Houston, 584 F.Supp. 653 (S.D. Tex. 1984);

Leroy v. City of Houston, 648 F.Supp. at 544, 550, 556

and fn. 18 (App. A, pp. 14a, 27a, 42a). The Court of

Appeals affirmed approximately 70% of the amount

awarded. Leroy v. City of Houston, 831 F.2d 576, 586

(Sth Cir. 1987) (App. C, p. 120a).

Until the mid-1950’s the City of Houston had a ward

system with the election of its City Council from resi-

dency districts. The City then changed to an at-large

system as a reform measure. (648 F.Supp. at 548; App.

A, p. 23a; Tr. I-139-40.) In the early 1970’s minority

representatives in the State Legislature attempted without

success to pass legislation that would require the City

to change the method of election of City Council members

to a single-member district scheme. (648 F.Supp. at 548;

App. A, p. 24a.) The effort to secure single-member dis-

tricts then turned to litigation. In 1973, a coalition of

plaintiffs filed a constitutional challenge to the at-large

system styled Greater Houston Civic Council, Inc., et al.

v. Mann, et al., Civil Action H-73-1650 (“Mann”). (648

F.Supp. at 549; App. A, p. 25a.) During the pendency

of the Mann case and after the Voting Rights Act had

been extended to Texas, the Plaintiffs filed a second case,

Moses Leroy v. City of Houston, Civil Action No. H-75-

1731 (“Leroy I’), challenging certain annexations to

the City under § 5 of the Voting Rights Act (42 U.S.C.

§ 1973c) as well as demanding an order that the City

Council be elected from single-member districts. (648

F.Supp. at 549-550; App. A, pp. 25a-27a; DX. 9.) A

three-judge Court denied Plaintiffs’ request for an in-

junction and later denied their request for attorneys’ fees

in Leroy I. (DX. 4; 648 F.Supp. at 550, fn. 18; App. A,

p. 27a.)

In the fall of 1976 the Mann case was tried and the

Defendants prevailed. Greater Houston Civic Council v.

Mann, 440 F.Supp. 696 (S.D. Tex. 1977). The Plaintiffs

appealed to the Court of Appeals and the Justice Depart-

ment filed an amicus curiae brief in support of the Plain-

tiffs’ position. (648 F.Supp. at 549; App. A, p. 25a.)

The pending appeal became moot in 1979 when, as a

result of an objection to certain additional annexations

from the Justice Department under $5 of the Voting

Rights Act, the City adopted a mixed City Council

scheme of nine members elected from single-member

districts and five elected at-large. (648 F.Supp. at 549-

550; App. A, pp. 25a-27a.)

While Mann was still pending on appeal, the plaintiffs

filed a third suit in November 1978 styled also Moses

Leroy, et al. v. City of Houston, Civil Action No. H-78-

2174 (“Leroy Il’), under § 5 of the Voting Rights Act

(42 U.S.C. § 1973c). In addition, Leroy I] demanded

the Court order the City to adopt a single-member district

form of government. Leroy II concerned election changes

resulting from annexations in the Clear Lake City area

and other areas. The Plaintiffs alleged that the City had

called an election without preclearance from the Justice

Department. (648 F.Supp. at 550; App. A, p. 28a.)

In December 1978, a separate action, United States v.

City of Houston, et a!., Civil Action No. H-78-2407, was

filed by the Justice Department. Upon the latter’s motion,

H-78-2407 was promptly consolidated with Leroy II.

(See the respective docket sheets.) Plaintiffs’ request for

a temporary injunction was denied. (/d.)

Prior to Leroy II, the Justice Department precleared

the annexation of the less-populous part of the Clear Lake

area by letter of October 3, 1977, but warned of an

objection if the more populated portions of the area were

later annexed. (DX. 1; 648 F.Supp. at 554; App. A,

p. 37a.) The City annexed the remainder of the Clear

Lake area and other areas and made its submission to

the Justice Department in February 1979. Predictably,

on June 11, 1979, the Justice Department found that

the City had failed to show that the annexations had no

dilutive effect on the voting rights of the minority resi-

dents of Houston and objected to the City’s implementa-

tion of the annexation for voting purposes. (648 F.Supp.

at 555; App. A, p. 40a; DX. 14.) After hearing from

City officials, the Plaintiffs, and other interested indi-

viduals and groups, the Justice Department refused to

reconsider its objection by letter of July 18, 1979. (648

F.Supp. at 555-56; App. A, pp. 41a-42a.)

The City Council called an election for August 11,

1979, and placed on the ballot a mixed plan of electing

nine members by district and five at-large, along with

seven other propositions. On July 19, 1979, the United

States and the private Plaintiffs moved for a preliminary

injunction in Leroy II. A three-judge court enjoined the

City from holding an election on any issue except for

the precleared nine/five plan. That issue was submitted

to the voters who approved the nine/five plan and the

Justice Department withdrew its remaining objection.

(648 F.Supp. at 550, 556; App. A, pp. 27a, 42a.)

Little of consequence occurred in Leroy I] until De-

cember 1982, when the District Court sua sponte raised

the issue of attorneys’ fees. Defendants moved to exclude

from consideration for attorneys’ fees work done in

Leroy I, the Mann case and the administrative proceeding

on preclearance before the Justice Department. The Dis-

trict Court denied the motion in April 1984. See Leroy

v. City of Houston, 584 F.Supp. 653 (S.D. Tex. 1984).

After further skirmishes between the parties, including

an aborted settlement and an attempted recusal, In Re

City of Houston, 745 F.2d 925 (Sth Cir. 1984), the

District Court heard extensive testimony in April-May

1985. Following the filing of a transcript of the testimony

and briefing by the parties, the District Court took the

matter under advisement. On August 1, 1986, the District

Court entered a Memorandum Opinion and Order and

a Final Judgment awarding attorneys’ fees and expenses

to Plaintiffs’ counsel. On August 29, 1986, Defendants

appealed to the Court of Appeals.

The Court of Appeals held that the Plaintiffs were

not entitled to an award of fees for work performed

before the Justice Department during its preclearance

review or in Leroy J. After eliminating the contingency

multiplier granted by the District Court and disallowing

certain expert witness fees, the Court of Appeals reversed

and remanded the case with instructions to enter a judg-

ment in favor of the Plaintiffs in the amount of $693.,-

805.00 as “a fair, indeed ample award.” 831 F.2d at

586: App. C, p. 120a. The Court of Appeals denied a

Motion for Rehearing. 836 F.2d 1346; App. D, p. 122a.

REASONS WHY THE WRIT SHOULD BE GRANTED

THE COURT OF APPEALS ERRONEOUSLY AF-

FIRMED AN AWARD OF ATTORNEY’S FEES FOR

UNSUCCESSFUL LITIGATION WITHOUT COMPE-

TENT EVIDENCE THAT THE PLAINTIFFS WERE

A CATALYST TO THE DEFENDANTS.

The Court of Appeals denied the Plaintiffs’ requested

attorneys’ fees for work in Leroy I and for the work

performed during the preclearance review before the

Justice Department. Thus, the only questions presented

in this Petition are the availability of attorney’s fees for

the Plaintiffs’ participation in their unsuccessful litigation

in Mann and for their participation, together with the

United States Justice Department, in the § 5 litigation in

Leroy II.

In analyzing the availability of attorney’s fees in these

latter proceedings, the Court of Appeals applied an er-

roneous legal standard. The Plaintiffs recovered for the

work expended upon the Mann litigation without the

showing that the litigation was a substantial catalyst

and a motivating force in the City’s decision to adopt

its single-member district form of government. Hensley

v. Eckerhart, 461 U.S. 424, 433 (1983). The evidence

utterly failed to show that the Mann litigation caused

the Defendants to act and demonstrated at most that

the Mann litigation was merely useful to the Justice

Department in the formulation of an objection under

Section 5 to the City’s annexations. Such a showing is

inadequate, under established law, to entitle a plaintiff

to fees as a “prevailing party.” Webb v. Board of Educa-

tion, 471 U.S. 234 (1985).

A. The Mann Case

The key issue in this appeal is now, and has always

been, the Plaintiffs’ efforts to recover approximately

$384,650.00 in attorney’s fees for their losing endeavor

in the Mann litigation. Two inconsistent reasons were

advanced by the Plaintiffs and accepted by the District

Court as a basis for the recovery of fees in Mann:

(1) that Mann was a catalyst to the Justice Department

and (ii) alternatively, that Mann was a catalyst to the

City because the City feared a remand and subsequent

loss upon retrial of the case. The Court of Appeals

correctly rejected the first argument as legal error. Leroy

v. City of Houston, 831 F.2d at 582-83; App. C, pp.

111a-112a.

However,the Court of Appeals gave inadequate review

to the second proposition under the “clearly erroneous”

standard of Rule 52. Undeniably, it was Plaintiffs’ burden

to prove that their efforts in Mann were a “substantive

factor” or “significant catalyst” in forcing the City to

accept a mixed district plan in order to be prevailing

parties entitled to attorney’s fees.

As the District Court noted: “All the parties agree

that the immediate cause of the City’s changing the

method of selecting Council Members was the Depart-

ment of Justice’s objection to the annexations and block-

ing the bond election.” 648 F.Supp. at 557; App. A,

p. 44a. It further found: “Without an objection, no

remedy of adopting single-member districts would have

been discussed.” 648 F.Supp. at 554; App. A, p. 38a.

The only logical thrust of these findings (and of the

District Court’s general overview of how the Plaintiffs

had galvanized a lethargic Justice Department to act)

is that any catalytic effect of Mann was on the Justice

Department, not the City. None of these findings supports

a conclusion that fear of a remand in Mann had a cata-

lytic effect upon the City’s decision to adopt single-

member districts, and in fact there was no such evidence.

Nevertheless, the Court of Appeals still accepted as

“not clearly erroneous” the District Court’s conclusion

that Mann had a significant connection with municipal

redistricting. 831 F.2d at 581; App. C, p. 109a. Un-

fortunately, the Court of Appeals failed in its duty to

evaluate carefully the competency of the evidence used

by the District Court to make that alternative finding.

The only evidence supporting the District Court’s con-

clusion was the self-serving speculation offered by Plain-

tiffs and their attorneys. However, factual deductions

from mere speculation are not proof. McDaniel v. Temple

Independent School District, 770 F.2d 1340, 1348 (Sth

Cir. 1985).

The testimony presented by the Plaintiffs regarding

what motivated the City was exactly of the same nature

and quality as their testimony regarding what motivated

the Justice Department. The Court of Appeals correctly

denigrated that evidence as “hearsay testimony and

speculation regarding Justice Department resources, polli-

cies and procedure in this case.” 831 F.2d at 580; App.

C, p. 106a. While it was error for the District Court

to accept such evidence as competent to show the City’s

motivation, that error was compounded because of the

existence of uncontradicted testimony of City officials

to the contrary. This is not a case in which the Plaintiffs

testified as to their catalytic effect and the Defendants

remained mute. Here high ranking City officials came

forward to testify and to subject themselves to cross-

examination by the Plaintiffs.

Apparently the District Court rejected the testimony

of these City officials solely because of the existence of

a contract with the firm of Hamilton & Rabinowitz, Inc.,

which, in its view, indicated that the City anticipated a

retrial of Mann (and, by inference, implemented single-

member districts to moot that litigation). 648 F.Supp.

at 549; App. A, pp. 26a-27a. The District Court there-

fore observed:

“The Court was told and heard no evidence to

the contrary that the only case outstanding at the

time against the City of Houston concerning bound-

ary changes was 73-1650 [Mann]. (Tr. Vol. 8, p.

21.) Thus, the Court can only conclude that these

expenses were indeed incurred in anticipation of

and preparation for a retrial of 73-1650.” Id.

This finding is clearly erroneous. Other litigation specifi-

cally challenging the City’s recent annexations as invalid

under the Voting Rights Act was also pending—Marvin

Delaney, et al. v. City of Houston, et al.. (DX.

22). Therefore, the District Court’s fact-finding that

Mann was a catalyst in moving the City to single-

member districts is so against the clear weight of com-

petent evidence as to be clearly erroneous. Anderson

v. City of Bessemer City, 470 U.S. 564 (1985); Mer-

chants National Bank of Mobile v. Dredge General G. L.

Gillespie, 663 F.2d 1338, 1341 (Sth Cir. 1981), cert.

dism’d 456 U.S. 966 (1982); Apolskis v. Concord Life

Insurance Co., 445 F.2d 31, 34 (7th Cir. 1971).

In summary, the Court of Appeals approved the Dis-

trict Court’s acceptance of self-serving hearsay and specu-

lation as probative rather than follow settled Fifth Circuit

authority that the crucial inquiry in determining catalytic

effect is the “chronology of events.” Even in the event

that Mann were reversed, that case would have had to

have been retried in a completely different factual setting

(principally because of the intervening annexations in

1977 and 1978) and, depending upon the time of re-

mand, under a different statutory standard than that

which applied during the initial trial.

In fact, by the time Mann was on appeal it was being

ignored even by the Plaintiffs. The new battlefield was

the Justice Department. Because of the recent annexa-

tions, the Plaintiffs had the City “by the throat.” 648

F. Supp. at 555; App. A, p. 39a. If the Plaintiffs were

confident in early 1979 that Mann would be reversed,

there would have been no reason for them to mount

such a vigorous opposition to the City’s $5 preclearance

of the 1977-1978 annexations. (See, e.g., 648 F.Supp.

at 555-6; App. A, pp. 43a-44a.)

B. Leroy II

By contrast, Leroy II was a §5 enforcement action

and, therefore, had as its goal an injunction against the

implementation of unprecleared annexations rather than

the formulation of a new electoral scheme. Thus, Leroy

II could not be considered as a catalyst to the City’s

adoption of single-member districts. Further, it is illogical

to suggest, as did the District Court, 648 F.Supp. at 558;

App. A, p. 47a, and the Court of Appeals, 831 F.2d at

581; App. C, p. 108a, that the City feared the Plaintiffs’

persistent efforts at litigation, for the Plaintiffs had never

secured an injunction or achieved any other success in

any of their litigation until after they were joined by the

Justice Department in Leroy I/. As stated in Hennigan

v. Ouachita Parish School Board, 749 F.2d 1148, 1152

(Sth Cir. 1985), the “chronology of events” should be

carefully considered in order to assess any provocative

effect of the Plaintiffs’ lawsuit. It is hard to see how

six years of unsuccessful litigation could have any in-

fluence upon the City’s adoption of single-member dis-

tricts, and the Plaintiffs produced no evidence to establish

such a nexus.

In fact, the Plaintiffs had little leverage with which

to influence the City, while the legal authority and in-

fluence of the Justice Department through the preclear-

ance review were significant. The Justice Department's

objection under the Voting Rights Act achieved what

the Plaintiffs had been constantly seeking without success

for six years. Faced with the legal consequences of the

Justice Department's objection, the City capitulated with-

in five months of its submission to the Justice Depart-

ment’s § 5 preclearance review.

The Court of Appeals further erred in holding that

the Plaintiffs’ efforts in filing Leroy IJ had a causal con-

nection with the City’s change to single member districts.

The merits of a proposed change in an electoral system

can never be at issue in a §5 proceeding. Perkins v.

Matthews, 400 U.S. 379, 383-386 (1971). Indeed, as

the Fifth Circuit had held, participation in the § 5 review

process in the Department of Justice can never be con-

sidered activity in furtherance of the goal of § 5 litigation,

nor can obtaining a new voting procedure be considered

the object of § 5 litigation. Arriola v. Harville, 781 F.2d

506, 511 (Sth Cir. 1986), cert. denied, ——U.S._~_

(1986).

The Court of Appeals, however, contravened the hold-

ing in Webb v. Board of Education, supra, and Arriola

and allowed fees for the work in Leroy II because

“achieving the procedural goal of preclearance review

was expected by the plaintiffs to yield a favorable result

before the Justice Department.” 831 F.2d at 581; App.

C, p. 108a. The Court of Appeals awarded fees despite

the lack of any discussion by the District Court as to

whether the Plaintiffs could be prevailing parties in

Leroy II simply because that case resulted in the City’s

submission of annexations to the Department of Justice.

Therefore, the Court of Appeals did not reach this

possible contention. 831 F.2d at 581, fn. 7; App. C, p.

107a. Moreover, the Court ignored the holding in Perkins

v. Matthews, 400 U.S. 379 (1971), rejecting any connec-

tion between § 5 enforcement and any subsequent re-

districting, and found “no incongruity” because of the

“rather unusual situation in this case” where the Plaintiffs

had already litigated and lost the issue in Mann. 831

F.2d at 581: App. C, p. 108a.

The Court of Appeals relied upon the subjective be-

liefs and feelings of the Plaintiffs as to the eventual out-

come of the Justice Department proceedings to conclude

that the § 5 litigation had a catalytic effect upon the

City’s decision to change to single member districts.

However, the Court’s decision ignored the required analy-

sis as to the causal relationship between Plaintiffs’

litigation and the Defendants’ actions and granted at-

torney’s fees simply because the desired result oc-

curred. The Court’s new test leads to the anoma-

lous result that attorney's fees are recoverable in § 5

litigation upon the occurrence of two circumstances:

first, a favorable outcome to Plaintiffs in the Justice

Department’s § 5 preclearance review, and second, an

expectation by the Plaintiffs that this favorable result

would occur. This formulation is totally at odds with

this Court’s decisions in Perkins v. Matthews, supra,

and Webb v. Board of Education, supra.

Despite the remarkable new test that the Court of

Appeals fashioned for recovery of attorneys’ fees in § 5

litigation, the undisputed fact remains that the Justice

Department was also a party in Leroy //. All that any

plaintiff, governmental or private, can obtain in § 5 cover-

age litigation is an injunction against implementing voting

changes without preclearance or a declaratory judgment.

This is exactly the relief the Justice Department sought

in Leroy II. (See DX. 16.) The Court of Appeals entirely

failed to evaluate the legal effect of the presence of the

Justice Department as an intervenor in Leroy II as it

related to an award of attorney’s fees for acting as

“private attorneys general.” Thus, Leroy I], even assum-

ing the Plaintiffs prevailed, required application of the

“special circumstances” test in Newman v. Piggie Park

Enterprise, Inc., 390 U.S. 400, 402 (1968).

II.

THE COURT OF APPEALS APPROVED THE DIS-

TRICT COURT’S APPLICATION OF AN ERRONE-

OUS LEGAL STANDARD TO DETERMINE THE

“LODESTAR” FEE DUE THE PLAINTIFFS’ AT-

TORNEYS.

The Court of Appeals reviewed the District Court’s

determination of the applicable hourly rate of each of the

Plaintiffs’ attorneys and the amount of hours reportedly

expended in this litigation. The Court of Appeals cor-

rectly noted that the District Court had “uncritically

skewed the lodestar factors in every instance favorably

to the Plaintiffs and against the City.” 831 F.2d at 584;

App. C, p. 116a.

In the context of the prevailing rate, the Court of

Appeals noted that the District Court erroneously based

its figures on current rates and current levels of expertise,

thus resulting in double compensation for the Plaintiffs’

attorneys. Therefore, the Plaintiffs received compensation

“based on current rates for work done, for the most part,

in the late 1970’s and they were permitted to base their

current rates on experience and expertise gained since

that time,” resulting in an excessive average hourly rate

(after deduction of the contingency multiplier originally

granted by the District Court) of $181.* In: fact, a first

year lawyer was awarded fees based upon an hourly rate

of $150 per hour. 831 F.2d at fn. 14; App. C, p. 117a.

The Court of Appeals recognized that this practice

produced a windfall of the type prohibited by Hensley

v. Eckerhart, 461 U.S. 424 (1985). In addition, the

Court noted that the hourly rates awarded were at the

* The Court of Appeals’ effective fee award of $181.00 per hour

is greatly in excess of recent Voting Rights Act rates approved in

that circuit and other circuits. E.g., Jordan v. Allain, 619 F.Supp. 98

(N.D. Miss. 1985) ($65.00-100.00); Kirksey v. Danks, 608 F.Supp.

1448 (S.D. Miss. 1985) ($60.00-100.00); Flowers v. Wiley, 675 F.2d

704 (Sth Cir. 1982) ($40.00-133.00); Conner v. Winter, 519 F.Supp.

1337 (S.D. Miss. 1981) ($35.00-100.00); Matthews v. LeFlore City

Bd. of Election Comm., 477 F.Supp. 885 (N.D. Miss. 1979)

($100.00); Latham v. Chandler, 406 F.Supp. 754 (N.D. Miss. 1976)

($20.00-40.00); Campaign for a Progressive Bronx v. Black, 631

F.Supp. 975 (S.D. N.Y. 1986) ($100.00); Perez v. Velez, 629 F.

Supp. 734 (S.D. N.Y. 1985) ($100.00-140.00): Cohen v. Maloney,

428 F.Supp. 1278 (D. Del. 1977) ($50.00); Rybdicki v. State Bd.

of Educ., 584 F.Supp. 849 (N.D. Til. 1984) ($65.00-175.00): Jn re

Kans. Congressional Dists. Reapportionment Cases, 745 F.2d 610

(10th Cir. 1984) ($75.00): Torres v. Sachs, 538 F.2d 10 (2d Cir.

1976) ($50.00-75.00); Amdrews v. Koch, 554 F.Supp. 1099 (E.D.

N.Y. 1983) ($60.00-100.00).

“high end of the spectrum of current local commercial

practice rather than at rates customarily charged by at-

torneys in civil rights cases.” Finally, the Court of

Appeals observed that the District Court did not seem

to have considered as particularly probative the actual

charges of the Plaintiffs’ lawyers for comparable services.

Nevertheless, the Court of Appeals still refused to find

that an average rate of $181 per hour for legal work

performed in the early 1970’s was clearly erroneous.

831 F.2d at 585; App. C, p. 117a. It refused to recog-

nize that “an attorneys fee award should be only as large

as necessary to attract competent counsel.” Lewis v.

Coughlin, 801 F.2d 570, 576 (2d Cir. 1986), cited in

Pennsylvania v. Delaware Valley Citizens Council for

Clean Air, — 0S... 107 5S. Ct. 3078, S069, &. Fz.

The Court of Appeals, therefore, allowed the District

Court’s determination to stand despite the lower court’s

application of an incorrect legal standard. It is axiomatic

that this type of error is not governed by the clearly

erroneous rule. Rule 52a does not inhibit an appellate

court’s power to correct errors of law, including those

that may infect a so-called mixed finding of law and

fact or a finding of fact predicated upon a misunder-

standing of the governing rule of law. Bose Corporation

v. Consumers Union of United States, Inc., 466 USS.

485. 501 (1984).

If, indeed, the District Court erred by utilizing the

wrong legal standard in determining hourly rates and,

therefore, produced a windfall of the type prohibited

by Hensley, the Court of Appeals was not bound by

any subsidiary findings made by the District Court in

support of its determination of the hourly rates. Never-

theless. the Court of Appeals refused to correct this legal

error and apply Hensley v. Eckerhart.

The Court of Appeals was equally “troubled by the

court’s wholesale acceptance of Plaintiffs’ time records.”

Indeed, it found that, based on the record, “such faulty

records” should not be accepted absent a reduction in

the lodestar. However, while concluding that a reduction

should be made for the deficiencies in the time records,

the Court of Appeals merely deducted 13% from the

hourly rate for incomplete records while allowing the

time records themselves to stand otherwise uncorrected.

It is the City’s position that any reduction resulting

from incomplete time records should be deducted from

the hours claimed rather than from the hourly rate.

To reduce an excessive hourly rate because of incom-

plete time records addresses only half the problem. Thus,

if uncorrected, this error will result in a windfall for the

Plaintiffs’ attorneys. Indeed, from a reading of the Court

of Appeals’ decision, it is clear that the District Court

erred in two respects: first, it applied an erroneous legal

standard in determining an appropriate hourly rate, and

second, it failed to follow the correct legal standards

in reviewing the time records submitted by the Plaintiffs.

The proper approach should have been to set a satis-

factory hourly rate and then also to reduce the hours

compensated because of inadequate time records. The

Court of Appeals’ decision inexplicably deducts 13%

from the average hourly rate for incomplete time records,

while allowing Plaintiffs’ recovery for each of their hours

claimed at an average of $157 per hour. The application

of a reduced hourly rate does little to cure the District

Court’s additional error in accepting at face value the

woefully deficient time records submitted by the Plain-

tiffs’ attorneys in this case and consequently results in

an excessive fee. Further, the Court of Appeals’ approach

does not encourage other fee applicants to keep adequate

time records. The Court should have reduced the hourly

rate as well as reducing the number of hours awarded

in order to reach a fair result in this case, assuming

arguendo the Plaintiffs were prevailing parties.

The unfortunate result of this methodology used by

the Court of Appeals is to put that Court’s stamp of

approval on an excessive hourly rate of $181. This rate

should have been reduced because it is unreasonably

high, not because time records in this particular case

happened to have also been inadequate.

CONCLUSION

The Court of Appeals’ decision as to the liability of

the City of Houston for attorney’s fees in Mann and

Leroy II conflicts with prior decisions of this Court

regarding the award of attorney’s fees for unsuccessful

catalytic litigation. Moreover, that Court’s affirmance of

the District Court’s grant of attorney’s fees based upon

deficient time records and accepting a rate of $181 per

hour resulted in an unfair windfall for the Plaintiffs’

attorneys.

For the foregoing reasons this petition should be

granted and a writ of certiorari be issued to the United

States Court of Appeals for the Fifth Circuit.

Respectfully submitted,

ROBERT J. COLLINS

Senior Assistant City Attorney

JOHN E. FISHER

Senior Assistant City Attorney

EP Paks

. O. Box 1562

Houston, Texas 77251

(713) 247-2000

Attorneys for Petitioners

CERTIFICATE OF SERVICE

This is to certify that on the 28th day of March,

1988, true and correct copies of the foregoing instrument

were forwarded by United States Mail, postage prepaid,

to all other attorneys of record.

8° Zuko

OHN E. FISHER

Senior Assistant City Attorney

APPENDIX

APPENDIX A

Moses LEROY, et al, Plaintiffs,

Vv.

CITY OF HOUSTON, et al,

Defendants.

GREATER HOUSTON CIVIL

COUNCIL, INC., Plaintiff

Frank MANN, Defendant.

Moses LEROY, Plaintiff,

Vv.

CITY OF HOUSTON, Defendant.

Civ. A. Nos. H-78-2174, H-73-1650

and H-75-1731.

United States District Court,

S.D. Texas

Houston Division.

Aug. 1, 1986.

Proceeding was instituted on motions for an award of

attorney fees and expenses in litigation to guarantee

voting rights. The District Court, McDonald, J., held

that filing litigation and unceasing efforts by plaintiffs’

attorneys before the Department of Justice, being essential

Catalysts to the adoption by city of a new system of electing

its city council members, were such as to make plaintiffs

prevailing parties and, under Johnson factors as comple-

mented by “lodestar” approach after application of the

contingency multiplier, warranted an award of $984,801.-

50 in attorney fees and $40,430.92 in expenses by reason

of some 4659.95 hours expended by plaintiffs’ attorneys.

Motions granted.

See also, 592 F.Supp. 415, 584 F.Supp. 653.

L.A. Greene, Jr., Houston, Tex., George Korbel, Jessie

Botello, Craig Washington, Frumencio Reyes, San An-

tonio, Tex., David Boddie, Houston, Tex., for plaintiffs.

Denise R. Ferguson, Asst. U.S. Atty., Houston, Tex.,

for U.S.

Robert M. Collie, Jr., City Atty., John R. Whittington,

Jr., John E. Fisher, Sr., Asst. City Atty., Houston, Tex.,

Paul F. Hancock, Civ. Rights Div., Dept. of Justice,

Washington, D.C., for defendants.

Mark A. Posner, Dept. of Justice, Washington, D.C.,

amicus Curiae.

MEMORANDUM OPINION

AND ORDER

McDONALD, District Judge.

Pending before the Court are the Motions for Attor-

neys’ Fees of L.A. (“AI”) Greene, George Korbel, Jesse

Botello, Craig Washington, and Frumencio Reyes. Hav-

ing considered the arguments of the parties and the ap-

plicable law, the Court is of the opinion that the Motions

should be GRANTED. The filing and the litigation of

the cases for which Plaintiffs seek attorneys’ fees and

Plaintiffs’ attorneys’ unceasing efforts before the Depart-

ment of Justice were essential catalysts to the City of

Houston’s adoption of a new system of electing its City

Council members. The Plaintiffs were prevailing parties

and should be awarded fees for services performed. The

amount of the award is set forth in the tables made a

part of this Opinion.

The first case, styled Greater Houston Civil Council,

Inc. v. Mann, C.A. No. H-73-1650, was a constitutional

challenge to Houston’s system of electing its City Coun-

cil members in at-large elections. The case was decided

adversely to Plaintiffs at trial, and was appealed to the

Fifth Circuit. During the pendency of the appeal, Hous-

ton adopted a mixed system of election for City Council

members, utilizing both at-large and single-member dis-

trict elections. The case was declared to be moot and was

remanded to the district court for a determination on at-

torneys’ fees. The second case, Moses Leroy v. City of

Houston, C.A. No. H-75-1731, was a challenge under

Section 5 of the Voting Rights Act of 1965, 42 U.S.C.

§ 1973c (1982), after Houston annexed land, did not

secure preclearance from the Department of Justice or

declaratory judgment from the District Court for the

District of Columbia, and attempted to hold an election.

The court hearing Leroy refused Plaintiffs’ requested in-

junction and the case was closed after the Justice De-

partment precleared the changes. The third case, Moses

Leroy v. City of Houston, C.A. No. 78-2174 [herein-

after referred to as “Leroy II”), also challenged an elec-

tion scheduled to be held after annexations that had not

been precleared or declared not to violate §5 by the

District of Columbia court.’ During the pendency of this

litigation Plaintiffs’ lawyers met with officials of the De-

partment of Justice who were considering the City’s re-

quest for pre-clearance.

I. The legal standards relevant to

attorneys’ fee awards.

[1] Questions to be considered when making an award

of attorneys’ fees are: who is the prevaling party; for

what services, if any, performed before an administrative

agency may the prevailing party be compensated; how are

fees computed; and how does the multiplier apply. Plain-

tiffs’ lawyers have requested fees under 42 U.S.C.

§ 1988 and § 1973/(e), which respectively provide that:

In any action or proceeding to enforce a provision

of Sections 1981, 1982, 1983, 1985 and 1986 of

this title, title IX of Public Law 92-318 ... or

title VI of the Civil Rights Act of 1964 .. . 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.

42 US.C. § 1988.

In any action or proceeding to enforce the voting

guarantees of the fourteenth or fifteenth amend-

ments, the court, in its discretion, may allow the pre-

vailing party, other than the United States, a rea-

sonable attorney’s fee as part of the costs.’

42 U.S.C. § 1973l1(e).

1. The cases are discussed in more detail below.

2. The standards for awarding attorneys’ fees under the Voting

Rights Act are the same that govern awards under § 1988. Coalition

to Preserve Houston v. Interim Board of Trustees of the Westheimer

Independent School District, 494 F Supp. 738, 742 (S.D. Tex. 1980),

The Supreme Court in Hensley v. Eckerhart, 461 U.S.

424, 429, 103 S. Ct. 1933, 1937, 76 L.Ed.2d 40 (1983)

(footnote omitted), outlined the purposes of the statutes

in one of its most recent discussions of § 1988:

In Alyeska Pipeline Service Co. v. Wilderness So-

ciety, 421 U.S. 240, 95 S. Ct. 1612, 44 L.Ed.2d

141 (1975), this court reaffirmed the “American

Rule” that each party in a lawsuit ordinarily shall

bear its own attorney’s fees unless there is express

statutory authorization to the contrary. In response

Congress enacted the Civil Rights Attorney’s Fees

Awards Act of 1976, 42 U.S.C. § 1988, authorizing

the district courts to award a reasonable attorney’s

fee to prevailing parties in civil rights litigation. The

purpose of § 1988 is to ensure “effective access to

the judicial process” for persons with civil rights

grievances. H.R.Rep. No. 94-1558, p. 1 (1976).

Accordingly, a prevailing plaintiff “ ‘should ordin-

arily recover an attorney’s fee unless special circum-

stances would render such an award unjust.’ ” S.Rep.

No. 94-1011, p. 4 (1976), U.S.Code Cong. & Ad-

min.News 1976, p. 5912 (quoting Newman v. Pig-

gie Park Enterprises, 390 U.S. 400, 402, 88 S. Ct.

964, 966, 19 L.Ed.2d 1263 (1968).

Unfortunately, awarding fees for civil rights litigation

has also spawned, in many instances, “a second major

litigation” over those fees. See id. at 437, 103 S. Ct. at

1941; see also Laffey v. Northwest Airlines, Inc., 746

F.2d 4, 29 (D.C. Cir. 1984), cert. denied, 472 US.

1021, 105 S. Ct. 3488, 87 L.Ed.2d 622 (1985) (court

dismissed, 450 U.S. 901, 101 S. Ct. 1335, 67 L.Ed.2d 325 (1981);

see also Hensley v. Eckerhart, 461 U.S. 424, 433 n. 7, 103 S. Ct.

1933, 1939, n. 7, 76 L.Ed.2d 40 (1983) (discussing indications in

legislative history that standards for fee awards should be the same

under § 1988 and the 1964 Civil Rights Act).

“aghast” at number of hours devoted solely to fee re-

quest); Tasby v. Wright, 550 F.Supp. 262, 285 (N.D.

Tex. 1982) (main case and fee award litigation con-

stitute “seemingly endless legal struggle”); In re Fine

Paper Antitrust Litigation, 98 F.R.D. 48, 68 (E.D. Pa.

1983), (task of awarding fees in antitrust suit “not...

an easy one” when judge has to consider voluminous time

records, objections thereto, and 41 days of testimony

regarding fee petitions) rev’d in part on other grounds,

751 F.2d 562 (3d Cir. 1984). The court can attest to

the lengthiness and difficulty of awarding fees in the

case at bar, the process having taken over three years

for the court to reach the point where it could decide

the issues. Along the way, inter alia, the court has granted

the Defendants four continuances on hearings and has

allowed innumerable extensions of time for filings. The

Defendants also sought unsuccessfully to recuse the court.

See In re City of Houston, 745 F.2d 925 (Sth Cir.

1984). Plaintiffs’ lawyers alone have expended 1737

hours.°

[2] In reaching its decision on attorneys’ fees, the

court must consider and apply four legal standards. The

first two standards concern the question of entitlement

to fees, i.e., who is a “prevailing party” under the statute

and for what administrative work, if any, prevailing par-

3. The court notes that the hours spent on the fee petitions

amount to approximately one-third of the fees requested for a series

of cases that began in 1973.

The court also notes that C.A. No. H-78-2174 has been amended

to include claims that the city violated the Voting Rights Act, 42

U.S.C. § 1973 et seg. and the Constitution in 1985. Hours expended

in the claim will not be considered in any way in the instant Order.

A decision on fee petitions for the work performed in regard to this

claim amended in 1985 is reserved for another day, should the

Plaintiffs prevail.

ties can be compensated. The second two standards relate

to the computation of fees to which a party may be

entitled, viz, the liability of the so-called Johnson factors*

and under what circumstances multipliers are to be used.

The court will address each of these legal issues individu-

ally, and then proceed to discuss how those factors apply

to the cases at bar.

The first standard requiring discussion is the definition

of “prevailing party.” The statute allows only prevai! 1g

parties to receive fees. The parties in the cases at bar”

offer different formulations of the test for determining

who is a prevailing party. Plaintiffs’ lawyers contend that

the Supreme Court has set out a standard in Hensley v.

Eckerhart, 461 U.S. 424, 429-30, 103 S. Ct. 1933, 1937-

38, 76 L.Ed.2d 40 (1983). However, the Supreme Court

did not adopt the standard as its own, but merely recog-

nized that the First Circuit had enunciated a standard.

The Supreme Court appears not to have adopted any

definition of “prevailing party,” and the Court must

therefore turn to the Fifth Circuit’s recent opinion on the

subject, Hennigan v. Ouachita Parish School Board, 749

F.2d 1148 (Sth Cir. 1985).

[3] In Hennigan, the Fifth Circuit reversed a decision

by a district court judge that a plaintiff was not a pre-

vailing party. Judge Rubin, writing for the panel, ac-

knowledged that:

4. The Johnson factors are the twelve considerations the Fifth

Circuit stated a court should take into account when deciding awards

of attorneys’ fees. Johnson v. Georgia Highway Express, Inc., 488

F.2d 714, 716-19 (Sth Cir. 1974).

5. The principal Defendant in each of the cases is the City of

Houston. The Court will hereinafter, for the sake of convenience,

refer to the Defendants as “the City” or “Houston.”

The Fifth Circuit opinions have not articulated a

consistent standard for measuring whether a plain-

tiff whose efforts did not result in a judgment in

his favor has succeeded sufficiently to be a prevail-

ing party. The district judge may understandably

have been misled, for we have phrased the test dif-

ferently, in a number of opinions.

Id. at 1151 (footnote omitted). The opinion goes on

to explain the burden a fee applicant carries:

Despite their variety, all of our prior formulations of

the applicable criteria have certain elements in com-

mon. All recognize the initial need to identify the

goal that the plaintiff sought to achieve in bringing

his civil rights action. Although the opinions have

not always identified the precise legal or factual con-

dition that the plaintiff sought to change, all have

determined the nature of the benefit the plaintiff

hoped to gain, or the burden of which he hoped to

be relieved, by bringing the lawsuit.

Using this as a benchmark, the first e’-nent that

must be established by a plaintiff claim...g prevail-

ing party status is whether, as a practical matter, the

plaintiff's goal was achieved. This is determined in

this circuit by applying the central-issue test. In

other circuits, as we have discussed, the plaintiff

need “succeed [only] on any significant issue in the

litigation which achieves some of the benefit [he]

sought in bringing suit.”

When the plaintiff's goal has been achieved by the

defendant’s unilateral action, the plaintiff must of

course also show that the lawsuit caused the defend-

ant to act, and thus allowed the plaintiff to achieve

his desired goal. To demonstrate this causal con-

nection, the plaintiff must demonstrate that his suit

was a “substantial factor or a significant catalyst in

motivating the defendants to end their unconstitu-

tional behavior.” This means more, however, than

merely showing that the event occurred after suit

was filed. Here, as elsewhere in the law, propter hoc

must be distinguished from post hoc. The inquiry has

been described as “an intensely factual, pragmatic

one,” and courts should carefully consider the chron-

ology of events in order to assess the provacative

effect of the plaintiff’s lawsuit.

When the plaintiff has shown both that he succeeded

on the central issue in the litigation and that the

lawsuit caused the defendant to act, he has made a

prima facie case that he is the prevailing party and

entitled to attorney’s fees.

Id. at 1152 (footnotes omitted) (emphasis added). De-

fendants contest the propriety of an award by claiming

that the applicants did not cause ameliorative action to

have been taken. Hennigan addresses this claim:

However, a plaintiff who brings an action that has

no colorable, or even reasonable, likelihood of suc-

cess on the merits is not entitled to recover attorney’s

fees if the defendant simply complies with the plain-

tiffs demands and moots the case for reasons that

have nothing to do with the potential merit of the

suit. Whether activated by economic, political, or

purely personal concerns, a defendant may choose

voluntarily to make the change sought in the suit

rather than undergo protracted and expensive litiga-

tion.

A defendant who contends that his conduct was a

wholly gratitous response to a lawsuit that lacked

colorable merit, must demonstrate the worthlessness

of the plaintiff's claims and explain why he none-

theless voluntarily gave the plaintiffs the requested

relief. Forcing the defendant to establish that the

plaintiff has not presented a cognizable claim is con-

10a

sistent with the Federal Rules of Civil Procedure

which allocates this burden to the defendant at every

stage of the litigation.

Id. at 1153 (emphasis added) (footnote omitted).

The second standard to be applied in considering the

question of entitlement to fees concerns the extent to

which a lawyer can recover compensation for work per-

formed in administrative proceedings. This question first

arose in the City’s Motion to Exclude from consideration

in this case Plaintiffs’ Claims for Attorneys’ Fees for

Legal Services Performed in Other Cases and Adminis-

trative Proceedings. The City argues in its Motion that

“ees were not available under § 1988 for work performed

in administrative actions. The Court denied the Motion.

Since the Motion was denied, the Supreme Court decided

Webb v. Board of Education of Dyer County, 471 US.

234, 105 S. Ct. 1923, 85 L.Ed.2d 233 (1985). The

City in its Brief on Attorneys’ Fees argues on the basis

of Webb that attorneys’ fees are not available for any ad-

ministrative work in the case at bar. The Court disagrees

that Webb precludes any compensation for this work

and likewise concludes that it is not an absolute bar to re-

covery of payment for services performed before an ad-

ministrative agency. Further, this Court will discuss the

Fifth Circuit’s most recent decision on administrative

work, Arriola v. Harville, 781 F.2d 506 (Sth Cir. 1986).

Webb involved the termination of a black teacher’s

employment. The teacher claimed that his firing was un-

justified. He challenged his dismissal by way of appeal

to a state board. The teacher appeared before the board

with his lawyer, but obtained no relief. Subsequently, suit

was filed in federal court, complaining of both the dis-

lla

missal and the board’s allegedly racially based decision.

Plaintiff received damages and his lawyer petitioned for

fees under 42 U.S.C. § 1988. The Supreme Court ulti-

mately ruled that the lawyer was not entitled to fees

under § 1988 for the work he did before the board. Al-

though the Supreme Court did not specify its reasons for

denying the fee request, it did note that:

Congress only authourized the district courts to al-

low the prevailing party a reasonable attorney’s fee

in an “action or proceeding to enforce [§ 1983].”

Administrative proceedings established to enforce

tenure rights created by state law simply are not any

part of the proceedings to enforce § 1983... .

Id. at 1928 (footnote omitted).

* * * *

When the attorney’s fee is allowed “as part of the

costs’—to use the language of the statute—it is

difficult to treat time spent years before the com-

plaint was filed as having been “expended on the

litigation” or to be fairly comprehended as “part of

the costs” of the civil rights action.

Ibid.

* * * *

The petitioner made no suggestion below that any

discrete portion of the work product from the ad-

ministrative proceedings was work that was both use-

ful and of a type ordinarily necessary to advance the

civil rights litigation to the stage it reached before

settlement.

Id. at 1929.

| 12a

What, then, does Webb say to courts deciding fee:

petitions? It clearly does not say that no one may ever

collect fees for time expended in administrative proceed-

ings. The Court’s conclusions in Webb were limited to

the facts of that case. It also, at least implicitly, endorses

the idea that materials from a proceeding for which one

could not normally receive compensation under 42

U.S.C. § 1988, if used in a proceeding for which a fee

award is available may be compensable. Jd. at 1928-29.

And by allowing the award to Webb’s lawyer for a case

that settled, the case supports the practice of awarding

fees for cases where non-trial procedures such as settle-

ment win the day for a plaintiff. The Second Circuit ad-

6. See, e.g., Wooten v. Housing Authority of the City of Dallas,

723 F.2d 390 (5th Cir. 1984) (plaintiff was prevailing party for

purposes of § 1988 when her lawsuit caused Housing Authority to

change policy originally spurring lawsuit, mooting case). The court

in Wooten noted:

In Williams v. Leatherbury, 672 F.2d 549, 550 (Sth Cir. 1982),

we noted that “[v]ictory by judgment or an opponent’s con-

cession is not essential to identification of the ‘prevailing party’

entitled to recovery of an attorney’s fee under [§ 1988]. A party

could prevail in an out-of-court settlement, or a defendant might

moot the suit by taking unilateral capitulatory action. A plaintiff

who attains the sought-after relief by such means “may still

~ recover attorney’s fees if he can show both a causal connection

between the filing of the suit and the defendant’s action and

that the defendant’s conduct was required by law. .. .” Jd.

at 551. We defined “causal connection:” to mean that “[t]he

suit must be ‘a substantial factor or a significant catalyst in

motivating the defendants to end their unconstitutional be-

havior.’ ”

Id. at 391, quoting Robinson v. Kimbrough, 652 F.2d 458, 466 (5th

Cir. 1981). Directly applicable here is the holding of Davis v. City

of Ennis, 520 F.Supp. 262 (N.D. Tex. 1981) (three judge court),

that a plaintiff who can show a causal connection between his suit

and the events that moot his claim will be deemed to have prevailed

even though he never obtained a court order in his favor that directly

relates to the merits. Jd. at 265, cited with approval in Smith v.

Thomas, 687 F.2d 113, 116 (Sth Cir. 1982).

13a

dressed the specific question of preclearance review pro-

ceedings which lead to settlements:

Arguably, where the initiation of litigation is neces-

sary to compel defendants to obtain preclearance

before holding an election, lobbying efforts in a pre-

clearance review might bring the litigation to a quick

and successful end, a goal consistent with the statu-

tory purpose of Section 1973 l(e).

Gerena-Valentin v. Koch, 739 F.2d 755, 759 (2d Cir.

1984).’ The Fifth Circuit found it unnecessary to reach

the question of whether attorney’s fees can ever be award-

ed for participation in a preclearance review. Posada v.

Lamb County, Texas, 716 F.2d 1066, 1074 (Sth Cir.

1983).°

Opinions that have been rendered since the hearing

on the Motion for Attorneys’ Fees have been reviewed

and considered and do not affect the Court’s decision

awarding fees to the Plaintiffs.

The first such case is Arriola v. T.L. Harville, 781

F.2d 506 (5th Cir. 1986). Arriola does not call for a

different result—the Fifth Circuit expressly so holds:

7. The Second Circuit’s opinion made much of the legislative

history of § 1973/(e), which refers to “action” and “proceeding” as

meaning litigation. But, at the same time, the opinion adds immedi-

ately thereafter that “[t]here is thus little or no textual warrant for

a construction of the fee awards provision which applies it to lobby-

ing in preclearance reviews not in aid of catalytic litigation.” Gerena-

Valentin v. Koch, 739 F.2d 755, 760 (2d Cir. 1984) (emphasis

added).

8. Defendant’s argument that administrative procedures are neither

actions nor proceedings for purposes of § 1988 therefore misses the

point that work done in administrative contexts can be compensable

as part and parcel of a successful action or proceeding, a lawsuit.

l4a

As will be evident from our later discussion, this

holding does not preclude compensation for services

rendered in a preclearance submission that bear di-

rectly on the issues in an independent lawsuit and

where that work is required and necessary to resolve

the issues of the independent lawsuit.

Id. at 507 n. 1. The services performed by counsel for

the Plaintiffs in their efforts before the Department of

Justice were part and parcel of the ongoing litigation in

the federal courts. Basically the issue was whether the

totally at-large system of electing persons to sit on the

City Council must be modified as a matter of law. Counsel

for Plaintiffs had to proceed on various fronts contempo-

raneously.

In Arriola the Fifth Circuit found that Plaintiffs there

had received a final judgment of exactly the relief they

had sought—an injunction. (The only relief they could

have received in a § 5 suit such as theirs.) Plaintiffs had

sought to characterize their involvement in the preclear-

ance process as the “remedy phase” of the litigation. Jd.

at 511. The Fifth Circuit found this characterization

“artful” but held that Plaintiffs efforts in the preclearance

process “could not have been useful or required for the

litigation.” Jd. at 511-12.

[4] This Court finds the cases before it to be proper

candidates for the recovery of attorney fees in accordance

with Arriola and Webb. Services performed before the

Justice Department for preclearance submissions occurred

while the various parties were pursuing their judicial

remedies. The work done before the Justice Department

was a direct catalyst of change necessary to the resolution

of the lawsuits.

On NeN),),S ee ss ee ee

15a

Two very recent cases of the United Supreme Court are

also of relevance: City of Riverside v. Rivera, US.

, 106 S. Ct. 2686, 91 L.Ed.2d 466 (1986) and

Thornburg v. Gingles, US. », 1® GS. CR. Zise,

92 L.Ed.2d 25 (1986). Riverside reaffirms the use of the

“lodestar approach,” provides further instruction on who

is considered to be the prevailing party, and recognizes

the continued viability and appropriateness of the use

of the “multiplier.” Thornburg constitutes a continuing

recognition of the importance of the use of experts and

of the factors initially enunciated Johnson v. Georgia

Highway Express, Inc., 488 F.2d 714 (Sth Cir. 1974).

Having discussed the first two questions, i.e., (1) when

is a party to be considered as “prevailing” and (2) for

what services, if any, performed by an attorney before

an administrative agency are compensable, the Court

turns to the second two questions: the computation of

fees under Johnson v. Georgia Highway Express, Inc.,

488 F.2d 714 (Sth Cir. 1974) and the extent to which

the “multiplier” affects those Johnson factors.

Preliminarily, the question is whether the factors out-

lined in Johnson v. Georgia Highway Express, Inc., 488

F.2d 714 (Sth Cir. 1974) as guideposts in fee awards

have survived Blum v. Stenson, 465 U.S. 886, 104 S. Ct.

1541, 79 L.Ed.2d 891 (1984). The City argues that the

factors did not, while Plaintiffs’ lawyers argue that John-

son is still good law. The City takes the position that

the “lodestar” approach is the exclusive method of allo-

cating fees. The Court rejects that argument, finds ample

support for the continued viability of Johnson, and

considers that it must discuss those factors. The Court

considers that Blum did little to alter the fundamental

premise of Johnson.

l6a

[5] Johnson has, since its inception, been the leading

case in the Fifth Circuit on attorney’s fees. The Johnson

court listed twelve factors which district courts making

fee awards were to consider: /) time and labor required;

2) novelty and difficulty of the questions; 3) skill requisite

to perform the legal service properly, 4) preclusion of

other employment by the attorney due to acceptance of

the case; 5) customary fee; 6) whether the fee is fixed

or contingent; 7) time limitations imposed by the client

or the circumstances; 8) amount involved and results ob-

tained; 9) experience, reputation, and ability of the at-

torneys; /0) “undesirability” of the case; ]]) nature and

length of the professional relationship with the client;

and /2) awards in similar cases. Johnson, 488 F.2d at

717-19.

Johnson has not escaped criticism, however. Several

commentators have expressed reservations about the fac-

tors.” Courts have also criticized Johnson. In Northcross

v. Board of Education of the Memphis City Schools, 611

F.2d 624, 642-43 (6th Cir. 1979), cert. denied, 447 US.

911, 100 S. Ct. 2999, 64 L.Ed.2d 862 (1980) the court

expressed its concerns as follows:

We have learned through experience, however, that

merely providing a check list of factors to consider

does not lead to consistent results, or, in many cases,

reasonable fees. Many of the factors are overlapping,

and there is no guidance as to the relative import-

ance of each factor, or indeed, how they are to be

9. See, e.g., Leubsdorf, The Contingency Factor in Attorney Fee

Awards, 90 YALE L.J. 473, 503 (1981) (Johnson fails to promote

uniformity in fee awards; Comment, Adjusting Attorney Fee Awards

Through Multipliers in Antitrust Class Actions, 21 HOU. L. REV.

801, 838 (1984) (“Johnson gives little effective guidance, because

as a whole, the Johnson factors are vague and duplicative.”) [herein-

after cited as “Comment”.

l7a

applied in a given case. We conclude that an

analytical approach, grounded in the number of

hours expended on the case, will take into account

all the relevant factors, and will lead to a reasonable

result. The number of hours of work will automati-

cally reflect the “time and labor involved,” “the

novelty and difficulty of the question,” and “pre-

clusion of other employment.” The attorney’s normal

hourly billing rate will reflect “the skill requisite to

perform the legal service properly,” “the customary

fee,” and “the experience, reputation and ability of

the attorney.”

District Courts, with the initial responsibility for applying

the factors, have also found fault with the Johnson test:

The Fifth Circuit has repeatedly insisted that the

Johnson factors control the district courts’ computa-

tion of attorneys’ fees. Although these criteria re-

main central to any fee determination, we conclude

that the consideration of these factors, without more,

cannot guarantee a rational, reasonable setting of

fees. See Copeland v. Marshall, 641 F.2d 880, 890

(D.C. Cir. 1980) (en banc).

“The fundamental problem with an approach that

does no more than assure that the lower courts will

consider a plethora of conflicting and at least par-

tially redundant factors is that it provides no analyti-

cal framework for their application. It offers no

guidance on the relative importance of each factor,

whether they are to be applied differently in dif-

ferent contexts, or, indeed, how they are to be ap-

plied at all.” Copeland v. Marshall, 641 F.2d at 890.

District judges for this reason, have had difficulty

applying the Johnson factors. Id.

Riddell v. National Democratic Party, 545 F.Supp. 252,

255-56 (S.D. Miss. 1982), rev'd in part on other grounds,

712 F.2d 165 (Sth Cir. 1983).

18a

[6] Since Johnson the Fifth Circuit has incorporated

the twelve factors into the “lodestar” analysis employed

by many circuits. As the Fifth Circuit explained in Copper

Liquor, Inc. v. Adolph Coors Co., 624 F.2d 575, 583

n. 15 (Sth Cir. 1980):

The Johnson test, as interpreted in First Colonial,

is similar to the Third Circuit’s “lodestar” method

of computing attorneys’ fees. See Lindy Bros. Bldrs.,

Inc. v. American Radiator & Standard Sanitary

Corp., 3{d] Cir. 1976, 540 F.2d 102, 112-18; Lindy

Bros. Bldrs., Inc. v. American Radiator & Standard

Sanitary Corp., 3[{d] Cir. 1974, 487 F.2d 161, 167-

69; accord, City of Detroit v. Grinnell Corp., 2[d]

Cir. 1977, 560 F.2d 1093, 1098-1103; City of

Detroit v. Grinnell Corp., 2[d] Cir. 1974, 495 F.2d

448, 469-74; Grunin v. International House of Pan-

cakes, 8{th] Cir., 513 F.2d 114, 128-29, cert. denied,

1975, 423 U.S. 864, 96 S. Ct. 124, 46 L.Ed.2d 93;

Knutson v. Daily Review, Inc., N.D. Cal. 1979,

479 F.Supp. 1263, 1268-72. Under the “lodestar”

analysis, the district court must first [sic] determine

the number of hours reasonably spent by the plain-

tiffs attorney on matters upon which the plaintiff

was successful. Next, the court must ascertain the

value of the attorney’s time based on his or her

normal billing rate. If a number of attorneys are

involved, the court may use different rates to re-

flect the different amounts of skill, expertise, and

experience possessed by the different attorneys. The

court then must determine the “lodestar” amount

by multiplying the hours spent by each attorney on

the case by his or her respective hourly rate. Before

arriving at a final award, at least two other subjec-

tive factors must be considered. The first is the con-

tingent nature of success. The second factor is the

extent to which any exceptionally positive or nega-

tive quality of an attorney's work mandates in-

19a

creasing or decreasing the lodestar. A fact to be

considered in making this adjustment is the amount

recovered in damages as compared to the defendant’s

potential liability. See Knutson v. Daily Review, Inc.,

479 F.Supp. at 1269-70. See generally Comment,

Attorneys’, Attorneys’ Fees in Individual and Class

Action Antitrust Litigation, 60 Cal. L. Rev. 1656

(1972).

Some have suggested that the “lodestar” approach and

Johnson are two wholly different methods of determining

what to award a prevailing party’s lawyer. See New Ap-

proaches to Attorney's Fees: The Judge’s Role in Class

Actions, 24 The Judges’ J., 12, 14-15 (describes “lode-

star” theory and calls Johnson “another mode of analy-

sis”). Others, the Court feels correctly, consider that

Johnson and the “lodestar” approach complement one

another. Comment at 832 (footnote omitted) (“The

‘lodestar’ method does not conflict with Johnson but

furnishes an orderly regimen for examination of the

factors listed.”). In integrating the “lodestar” method and

Johnson, the Court awarding fees must undertake a

three-step analysis:

The Court of Appeals of the Fifth Circuit, pro-

genitor of the Johnson factors has recognized these

problems. It therefore has instructed district courts

to first ascertain the nature and extent of the services

supplied by the attorney from a statement showing

the number of hours worked and an explanation of

how these hours were spent. The court should next

determine the customary hourly rate of compensa-

tion. These are essentially Johnson facts 1 and 5.

The court should then multiply the number of hours

reasonably expended by the customary hourly rate

to determine an initial amount for the fee award.

Finally, the court should adjust the fee on the basis

20a

of the other factors, briefly explaining how they

affected the award. Jn re First Colonial Corp. of

America, 544 F.2d 1291, 1298-1300 (Sth Cir.

1977). See also Copper Liquor, Inc. v. Adolph

Coors Co., 624 F.2d 575, 581-84 (Sth Cir. 1980).

Anderson v. Morris, 658 F.2d 246, 249 (4th Cir. 1981).

See also Tasby v. Wright, 550 F.Supp. 262, 275 (N.D.

Tex. 1982) (Johnson test similar to “lodestar” three-

step method of computing attorneys’ fees); Comment at

832 (though Johnson does not specifically require the

“lodestar” approach, factors 1 and 5 embrace its com-

ponent parts). See generally Copper Liquor, 624 F.2d

at 583 (the Johnson test is similar to the “lodestar”

method of computing attorneys’ fees). “. . . There remain

other considerations that may lead the district court to

adjust the fee upward or downward, including the im-

portant factor of the ‘results obtained’.” Hensley, 103

S. Ct. at 1940. The opinion continues in a footnote to

adopt an approach somewhat like the Fifth Circuit’s,

but with a caveat as to duplication:

The district court also may consider other factors

identified in Johnson v. Georgia Highway Express,

Inc., 488 F.2d 714, 717-719 (CAS 1974), though

it should note that many of these factors usually

are subsumed within the initial calculation of hours

reasonably expended at a reasonable hourly rate.

See Copeland v. Marshall, 205 U.S. App. D.C. 390,

400, 641 F.2d 880, 890 (1980) (en banc).

Id. at n. 9.

Blum vy. Stenson did not alter this course; it merely

expanded on it. Blum acknowledged that upward adjust-

ments are appropriate in some cases, Blum, 105 S. Ct.

at 1548. However, several Johnson factors were described

2la

as being properly taken into account in determining the

base rate and not the multiplier including novelty and

complexity of the issues'® and results obtained."

Thus, although the Supreme Court has reshuffled the

Johnson factors somewhat, the factors are still alive and

well. This Court cannot agree with the City’s reliance

on Patrick v. Board of Trustees of the Mineola Inde-

pendent School District, 603 F.Supp. 754, 759 (E.D.

Tex. 1984), which states,

Before Blum, a court was required to direct light

from the lodestar through the twelve filters enumer-

ated in Johnson, in order to determine whether an

overall adjustment of the product of hours-times-rate

was necessary to make fees reasonably compensatory.

In Blum, the court held that the prevailing hourly

rate in the community already subsumes most of

the factors listed in Johnson, id. The only Johnson

factor to survive Blum is contingency, that is, the

degree of risk that the action will be unsuccessful,

and also that payment will be delayed.

The Supreme Court, for instance, specified in Blum that

a multiplier would be available for exceptional success

and quality of service “superior to that one reasonably

should expect in light of the hourly rates charged... .”

Blum, 104 S. Ct. at 1549. Contingency therefore cannot

be the only Johnson factor left after Blum, Consequently,

the City errs in the position taken in its briefing by not

addressing to any degree the Johnson factors.’*

10. Blum, 104 S. Ct. at 1541, 1548-49,

11. Jd. at 1549.

12. The Court often asks for additional briefing. However, such

a request would be inappropriate since the City has taken the posi-

tion that as a matter of law the Jodnson factors do not apply in

light of Blum.

22a

The last of the four questions the Court must examine

before applying the applicable law to the facts concerns

the role of the “multiplier.” The City’s argument here is

inconsistent. The City argues in its brief that “in a civil

rights attorneys’ fees setting only one contingency risk

is present, the risk of non-payment.” (Defendant's Brief,

pp. 75-76) The City discusses shortly thereafter the

division of the circuits “on the question of whether a

contingency multiplier based on risk of loss is available,”

Id. at 76. The City never states what its position is.

Presumably, its position would be that a multiplier based

on risk of loss is available. But why, then, would Hensley

and Blum both reaffirm that multipliers are still avail-

able,’* if risk of loss is the only risk left?

[7] The Court is persuaded that risk of loss is still

compensable via a multiplier. The Supreme Court ex-

pressly left this question open." The Fifth Circuit has

explicitly stated that “the contingent nature of [the] suit”

figures into the Multiplier, and that “[u]nder the rubric

of ‘the contingent nature of success’ the district court

should appraise the professional burden undertaken—that

is, the probability or likelihood of success, viewed at the

time of filing suit.” Graves v. Barnes, 700 F.2d 220,

222 (Sth Cir. 1983); see also Jones v. Diamond, 636

F.2d 1364, 1382 (Sth Cir. 1981) (en banc) (“Lawyers

who are to be compensated only in the event of victory

expect and are entitled to be paid more than those who

are assured of compensation regardless of result. This

13. Blum, 104 S. Ct. at 1549-50; Hensley, 103 S. Ct. at 1940

14. “We have no occasion in this case to consider whether the

risk of not being the prevailing party in a § 1983 case, and therefore

not being entitled to an award of attorney's fees from one’s adversary,

may ever justify an upward fee adjustment.” Blum, 104 S. Ct. at

1550 n. 17.

23a

is neither less nor more appropriate in civil rights litiga-

tion than in personal injury cases.”); Tasby v. Wright,

550 F.Supp. at 276 (defining “the contingent nature of

the employment, i.e., the recovery of attorney’s fees by

applicants was wholly contingent upon their prevailing

in the litigation. . . .”). C.f. Nicholson v. Bates, 544

F.Supp. 256, 259 (E.D. Tex. 1982) (case deemed not

contingent because lawyers realized from the outset that

Plaintiff could not pay their fees). The Fifth Circuit has

recently once again recognized the propriety of enhance-

ment of a fee award for the potential of the Plaintiff not

prevailing. The application of the multiplier as a part

of Johnson factor (6) is thus clearly appropriate.”

II. The application of the standards to

the case at bar.

[8] Having discussed the four legal questions this

Court has to consider in determining the propriety of the

award of attorneys’ fees to the Plaintiffs, the resulting

standards must be applied to this case. Rather than under-

take a discrete exegesis of the pertinent facts, the Court

will discuss the facts in conjunction with its legal con-

clusions. The Court will first set out the reasons that

Plaintiffs’ lawyers are entitled to an award of fees. Then

the Court will discuss what amount is due the lawyers.

Until the mid-1950’s the City of Houston (“the City”)

elected members of its City Council from residency dis-

tricts. The City then changed its method of electing the

members of its City Council to a system whereby all

candidates for City Council ran at-large. (Tr. vol. 7,

p. 21) Many minorities thereafter began to work for

the adoption of single-member districts. For example, the

15. Van Ooteghem v. Gray, 774 F.2d 1332, 1339 (Sth Cir. 1985).

24a

State Legislature in 1973 and 1975 was presented with

bills to change the method of election of City Council

members to a single-member district scheme. Then State

Representatives Anthony Hall, Ben Reyes, and Craig

Washington all introduced such bills. (Tr. vol. 3, pp.

21-22) Similar bills had changed the method of electing

members of the board of the Houston Independent School

District to election by single-member districts. (Tr. vol.

9, pp. 157-58) However, there was great resistance to

the °73 and °75 bills from the City in the Legislature.

The influence of the City against the single-member dis-

trict bills proved fatal to the bills. For example, lobbyist,

Jim Short used his influence against the bills, and the

City swayed the necessary votes that insured that Hous-

ton’s method of electing its City Council members would

not change. (Tr. vol. 3, p. 35) In 1975, the City held

a straw vote to determine whether the population wished

to change the method of electing City Council members

from at-large to single-member. The straw vote proved

favorable to single-member districts. However, the City

took no action to change the method of electing City

Council members in accord with the wishes of the popu-

lace as expressed in the straw vote. (Tr. vol. 3, pp. 35-36)

Nevertheless, politicians of the time, have maintained

that they would have proposed single-member districts,

but for the lack of support, and that the political process

itself would have eventually caused those districts to be

created anyway. The Court concludes that the support

was there but the politicians responsible for the change

were not. See discussion infra. After the 1975 referendum,

many citizens tried to get enough signatures to change

the charter and change the method of election to single-

member district. The petitions failed, due to an inadequate

number of signatures. (Tr. vol. 3, p. 68)

25a

The other attempts to get the City to adopt single-

member districts having failed, the minority community

turned to litigation as is next recourse. In 1973, Herman

Lauhoff, the President of the Greater Houston Civic

Council of Organizations,’® a community group composed

in large part of minorities, and Neal West asked Al

Greene to look into the possibility of a suit to challenge

the constitutionality of at-large elections of City Council

members in Houston. Al Greene initially worked alone;

Mr. Greene ultimately appealed to George Korbel to

help him in the lawsuit, and Mr. Korbel in turn brought

Mr. Botello into the case. Frumencio Reyes and Craig

Washington later joined the group. Mr. Greene also asked

the Mexican-American Legal Defense Fund (“MAL-

DEF”) for help, but MALDEF was not able to aid the

litigants.

The first case, G.H.C.C.O. v. Mann, C.A. H-73-1650,

was a challenge under the Fourteenth Amendment of the

United States Constitution to at-large election of mem-

bers of the City Council. Mr. Greene initiated the case.

The other lawyers worked with Mr. Greene thereafter,

garnering evidence and preparing witnesses. Finally, all

the lawyers devoted themselves to the trial of the case

before the Honorable Allen B. Hannay, who is now de-

ceased. That trial took place in 1977. That Court en-

tered judgment for the City. The case was appealed to

the United States Court of Appeals for the Fifth Circuit.

The Department of Justice ultimately filed an amicus

curiae brief in the case before the Fifth Circuit, taking

the Plaintiffs’ position. Houston subsequently adopted a

single-member and at-large method of electing City Coun-

16. Hereinafter, the Greater Houston Civil Council of Organiza-

tions will be referred to as “GHCCO.”

26a

cil members and mooted the case while it was pending

before the Fifth Circuit."* The record indicates that the

parties perceived a strong possibility existed that the case

would have been remanded for a new trial. That, for

example, was the view of the lead attorney for the Plain-

tiff, Mr. Greene. In addition, the Court is cognizant that

the Fifth Circuit sent back many such cases for re-

trial during the relevant period for necessary fact find-

ings. (Tr. vol. 7, pp. 129-30) And the Court notes that

the City’s three projected scenarios for Mann’s probable

disposition in the Fifth Circuit would have involved a re-

maid. Fred Hofheinz, the Mayor of Houston during the

period, stated that, after trial, the City considered 73-

1650 not to be a live case and felt confident of victory.

(Tr. vol. 8, p. 114). However, the Court notes that evi-

dence in the record clearly indicates that the City had

hired expert witnesses, the consulting firm of Hamilton

& Rabinowitz, to assist in the retrial. The City contends

that the evidence of their hiring Hamilton & Rabinowitz

does not clearly show that they anticipated retrial, argu-

ing that the contract does not clearly show that 73-1650

was the case for which Hamilton & Rabinowitz, Inc.

was hired. Nevertheless, the Court notes that the City

spent over $63,000.00, (Tr. vol. 7, p. 130), for the

contract and that the City’s budgetary notations regard-

ing that contract referred to Hamilton & Rabinowitz’s

“professional consulting services in connection with the

analysis of issues raised by litigation, administrative pro-

ceedings and legislation [sic] relating to boundary

changes by the City.” (Plaintiffs’ Exh. 32) The Court

was told and heard no evidence to the contrary that the

17. According to the order remanding the case, the parties agreed

that the constitutional issue decided by the district court and pre-

sented on appeal was moot.

27a

only case outstanding at the time against the City of

Houston concerning boundary changes was 73-1650. (Tr.

vol. 8, p. 21) Thus, the Court can only conclude that

these expenses were indeed incurred in anticipation of

and preparation for a retrial of 73-1650.

The Court has reviewed the late Judge Hannay’s de-

cision. Although this court may have realized a different

conclusion, that is not the task with this Court. The fact

remains, however, that retrial appeared to the parties

to be likely, and this likelihood significantly affecied the

City’s decision to change its system of electing City

Council members from all single-member districts.

In 1975,-the Plaintiffs once again attempted to get via

litigation single-member districts in the City of Houston.

They filed the case numbered H-75-1731, which was

also styled Moses Leroy v. The City of Houston. In this

case, the Plaintiffs sought an injunction under $5 of

the Voting Rights Act, 42 U.S.C. § 1973c. The case

concerned elections that had added newly-annexed areas

to the City of Houston. The three-judge panel that heard

the request for injunction on October 30, 1975 refused

that request, noting the great expenditure of resources

on the election that had already taken place and stating

that the Court would invalidate the elections if the De-

partment of Justice refused to pre-clear the election

changes. The Department of Justice eventually pre-

cleared the election changes. The case was therefore

closed.**

18. The City argues that the Court in 75-1731 specifically denied

the attorneys’ fees requested, and that therefore fees for work per-

formed in that case are not now available. The Court considers

Defendants’ argument to be incorrect. As will be discussed later in

more detail, the three cases together eventually forced the City to

28a

The Court notes that the point of all these cases was

to get Houston to change the at-large system as a way

of electing the members of its City Council. The ma-

terials prepared for each of these cases was later used by

the Department of Justice. In addition, it is important to

note that the City was inundated with complex litigation

by the Plaintiffs at all times. The record persuades the

Court beyond doubt that it was these cases, coupled with

the case described below, that enabled the Department

of Justice to take the actions that ultimately forced the

City to adopt some single-member districts as a method

of electing its City Council, and, in addition, that the cases

themselves directly catalyzed the City into changing its

method of electing City Council members.

Events moved very swiftly in 1977-78, providing the

impetus for the City of Houston to make changes in the

election of City Council members, as the Plaintiffs

sought. A short overview of the events of that period

would show that the City of Houston annexed parts of

Clear Lake City on December 30, 1978; Plaintiffs then

took the City to court and the Department of Justice

joined the suit; using the record in Mann, C.A. No. 73-

1650, the Department of Justice objected to the City’s

annexations; and the City therefore had to change its

charter to elect the majority of the members of its City

adopt single-member districts. And the work in 75-1731, taken as

a contribution to the ultimate success of Plaintiffs, should be com-

pensated for. In analogous situations, work for unsuccessful issues

that aid in central victory is compensable, See discussion infra; See

also Marion v. Barrier, 694 F.2d 229, 232 (11th Cir. 1982) (per

curiam) (“the court must consider the relationship of the claims

that resulted in judgment with the claims that were rejected and the

contribution, if any, made to success by the investigation and prose-

cution of the entire case,” quoting Jones v. Diamond, 636 F.2d 1364,

1382 (5th Cir. 1981) and cases cited infra).

29a

Council from single-member districts.’® After that time,

the case at bar was remanded for determination on at-

torneys’ fees. To make this brief overview is not to slight

the importance of the course of events that has brought

the litigants before the Court. The Court will examine

in relative detail the critical events of the period, as it

is those events that justify an award of attorneys’ fees

to Plaintiffs.

In order to understand the events leading up to the in-

stant motions, it’s necessary to understand the workings

of the Voting Rights Act. That Act, which was extended

to Texas in 1975, (Tr. vol. 1, p. 92), has a terrific im-

pact upon jurisdictions it covers. Fundamentally, section

5 of the Voting Rights Act provides that covered juris-

dictions either preclear with the Justice Department all

changes that will affect voting before those changes are

implemented or file an action for a declaratory judgment

in the District Court for the District of Coldmbia, re-

questing the Court to declare that the changes adversely

affect minority voting strength. If in the preclearance

process the Department finds that the changes would not

significantly act to the detriment of minorities voting

power in the covered jurisdiction, the Department will

preclear the changes; the changes can then be put into

effect. However, if the changes are objected to, the juris-

diction must take further action before any sort of elec-

tion can proceed. A jurisdiction whose changes fail to

win approval may opt to implement its changes and

chance being sued by the Department of Justice or pri-

vate parties. (Tr. vol. 1, p. 93-94) Many cases brought

to enforce the provisions of the Voting Rights Act are

19. Nine Council members are elected from single-member dis-

tricts, while five are elected at-iarge.

30a

brought by private litigants. Cases under section 5 of

the Act are usually less complicated than cases under

section 2, (Tr. vol. 1, pp. 80-81), because there are

only two issues under section 5, i.e., whether voting

changes in covered jurisdictions have been enacted and

whether there has been a preclearance of those changes.

The issues in C.A. No. H-78-2174 were particularly

clear, because the City had made no attempt to preclear

the changes that it had made in the voting structure by

annexing additional areas. (Tr. vol. 7, p. 195)

When the Department of Justice is trying to decide

whether to preclear a voting change, it generally looks

at seven factors. The Department examines: ]) whether

racially polarized voting exists in the jurisdiction; 2) what

the electoral history of the region is; 3) whether having

another method of election would make a difference in

elections (for example, what the margins of victories of

majority candidates have been and whether proposed

election changes would have allowed minority candidates

to prevail); 4) case studies; 5) whether past changes

have discriminated against minorities; 6) the effect of

run-offs in the jurisdiction; and 7) whether, in cases such

as in the City of Houston, residency districts or other

previously used election devices had actually benefited

minority constituents. (Tr. vol. 3, pp. 74-75) The key

element in the Department of Justice’s determination in

a case such as the City of Houston’s is to determine

whether there is racially-polarized voting.*’ (Tr. vol. 1,

pp. 100-01) Racially-polarized voting is voting that is

based on race to the virtual exclusion of other factors.

20. If obviously discriminatory charges have been made, proof of

racially-polarized voting may not be necessary. (Tr. vol. 1, p. 109)

3la

One determines whether racially-polarized voting exists

from a number of factors, such as the local history of

discrimination, the degree of responsiveness of local of-

ficials to their constituents, the responsiveness of those

officials to the minority population in particular, the seg-

regation of the community, and the political and social

isolation in the community of the minorities. (Tr. vol. 1,

pp. 106-07) One determines whether racially-polarized

voting exists as a Statistical matter by a five-part process.

First, one identifies the ethnic and racial composition of

the precincts in the area. Then the race of each candi-

date is determined, and election data for each election

is garnered. The next step is to determine whether the

precinct has a significant number of other minorities, i.e.,

is racially pure; finally, one determines how the precinct

voted in successive elections. If voting along racial lines

has been prevalent, racially-polarized voting exists. (Tr.

vol. 1, pp. 102-03) A good example of the elements that

the Department of Justice examines is to be found in

the case with the City of Houston.

The Department of Justice used many of the elements

described above to determine whether to object to the

City’s annexations. For example, the Department looked

at the City’s employment patterns to determine whether

racial segregation existed. (Tr. vol. 3, p. 182) The De-

partment also looked at the City’s old system of residency

districts for City Council candidates to see whether black

candidates had carried their districts. (Tr. vol. 3, pp.

183-84) The Department found that they did, but lost

city-wide. The Department also inquired about Judson

Robinson and Leonel Castillo, two minority candidates

who were elected in Houston city-wide, as a council mem-

32a

ber and city controller, respectively, and satisfied itself

that these elections were aberrations. (Tr. vol. 4, p. 49)

The Department examined the effect of run-off elections

on minorities, comparing minority success with run-offs

in City Council races with success“in Houston Independ-

ent School District, which did not have run-off elections.

(Tr. vol. 3, pp. 182-83) The Department also looked at

why Houston had changed from using residency districts

in the 1950’s (Tr. vol. 3, pp. 183-84) and the general

electoral history of Houston. (Tr. vol. 3, p. 175)

The process by which the Department of Justice exam-

ines this material is well-prescribed. The jurisdiction sub-

mits materials prescribed by regulations to the Justice

Department. (Tr. vol. 1, pp. 84-85) The materials con-

tain information about the changes and the jurisdiction.

The Department has sixty days within which to object,

not object, or ask for further information, (Tr. vol. 6,

p. 70) The size of the jurisdiction in some part deter-

mines the degree of proof necessary; the more compli-

cated the change and the larger the jurisdiction, the

greater the scrutiny given. (Tr. vol. 1, p. 101) The De-

partment of Justice reviews all voting changes in covered

jurisdictions, even a change of a voting place from one

building to another within the same precinct. (Tr. vol.

7, p. 190)

The resources the Department possesses to deal with

the submissions are inadequate to deal fully with the

submissions made. The Department of Justice received

over 7,000 voting changes in 1979, and employs only

13 non-attorneys and between 10 and 14 attorneys to

handle all these submissions. (Tr. vol. 6, pp. 59-60)

Over 7,000 jurisdictions, 4,000 in Texas alone, make

33a

submissions. When many jurisdictions were added to the

list of those already under the Voting Rights Act in 1975,

no more persons were hired to help review submissions.

(Tr. vol. 6, p. 74) Moreover, the Department has no

budget for expert witnesses to help sort out the many

knotty problems a submission may pose. (Tr. vol. 6, p.

79) Of course, the Department generally pays more at-

tention to large submissions than to small ones, and keeps

a continuing file on all jurisdictions subject to the Voting

Rights Act. (Tr. vol. 7, p. 199) But the numbers above

speak for themselves; the Department can scarcely keep

up with the work that it has. For example, in the in-

stant case, only David Hunter at the Department of

Justice worked directly on the City’s extensive submission.

(Tr. vol. 7, p. 199) In sum, the Department is spread

too thin to handle all the information it receives, and

certainly did not have the resources to develop by itself

the data regarding Houston which the submission at

controversy in this case demanded. (Tr. vol. 3, p. 116;

Tr. vol. 4, pp. 78-79)

The record clearly indicates that the Department, be-

cause of its limited resources, routinely relies on indi-

viduals in jurisdictions making submissions to provide

invaluable information with which to judge the submis-

sions. (Tr. vol. 6, p. 77) Reliance upon local persons is

particularly heavy in large jurisdictions such as Houston.

(Tr. vol. 1, p. 84; Tr. vol. 6, p. 69) In some instances,

the Department of Justice calls people in localities whom

the Department already knows. For example, the Depart-

ment has often called organizations and private citizens

to ascertain an opinion of a submitted voting change.

(Tr. vol. 1, p. 83) However, the Department lacks

sources of local information in many communities. In-

34a

stead, it must ask its few contacts in an area for names

of other persons who should be called. Jd. Many who

often deal with the Department, such as Jose Garza, con-

sider that the Department relies particularly heavily on

comments from lawyers in the locality. The Department

often relies on lawyer’s comments because those com-

ments generally are written more with an eye to the law

and offer more evidence in support of arguments than do

those of non-lawyers. (Tr. vol. 4, p. 69; Tr. vol. 6, p. 77)

And, without local input, objections are rare. (Tr. vol. 1,

p. 84)

Another effect of the limited resources available to the

Department of Justice is that the Department often is

unable to sue all jurisdictions which do not comply with

section 5. (Tr. vol. 7, p. 7) The cases are too numerous

and, many times, burdensome in terms of amount of evi-

dence for the Department to handle. (Tr. vol. 6, p. 67)

And when the Department does move to enforce, its

efforts are frequently unavailing. For example, in Crock-

ett County, Texas, the Department moved to enforce its

objection under section 5, but, misunderstanding the

local situation, took actions that actually undercut mi-

nority voting strength. (Tr. vol. 7, pp. 204-05) In addi-

tion, the Department is often not as quick to request in-

junctions as private parties. (Tr. vol. 7, p. 204) As a

result, testimony indicated that the Department generally

does not initiate its own section 5 enforcement proceed-

ings. Rather, it files amicus briefs or intervenes after lo-

cals have moved to enforce section 5. (Tr. vol. 1, p. 98)

And such intervention is relatively rare. (Tr. vol. 7, p.

8) The Court is persuaded here that the intervention did

little to add to the Plaintiffs’ lawyers efforts. See discus-

sion infra.

35a

Houston underwent the above-described review in 1978

because Plaintiffs filed C.A. 78-2174. C.A. 78-2174 con-

cerned election changes resulting from the annexation of

Clear Lake City, changes which had not been pre-

cleared.” The three-judge panel that heard 78-2174 re-

fused an initial request for injunction because the City

withdrew its ordinance calling an election. However,

it was at this point clear to the City from the three-judge

panel that, were an election called without preclearance

of election changes, an injunction would issue. The City

made its submission. The Justice Department objected to

the submission, due in large part to the Plaintiffs’ litiga-

tion efforts. On July 11, 1979, the City did call an

election without having precleared its election changes,

and the three-judge panel enjoined the election on July

19, 1979. (Tr. vol. 6, p. 14)

The Department of Justice did file a companion suit,

C.A. 78-2407, and, on December 13, 1978, moved to

consolidate with 78-2174 and advocated the Plaintiff's

position. (Tr. vol. 7, pp. 197-198) The cases were con-

solidated on December 15, 1978. However, there was no

division of labor between the Justice Department and

Plaintiffs. The Department merely intervened to add its

voice on the side of the Plaintiffs. (Tr. vol. 6, p. 32) The

Plaintiffs did the substantive work. Thus, although the

City was forced to deal with the Department of Justice

to attempt to obtain preclearance of the voting changes,

the Plaintiffs were the ones who actually did the forcing.

In order to understand the events that transpired dur-

ing the period before the injunction issued, one must un-

21. Plaintiffs tried to amend their complaint in 75-1731 in order

to include those changes, but the Court denied the Motion for Leave

to Amend.

36a

derstand the annexations the City made. Annexation of

outlying areas was a top priority of the City during the

relevant period. In testimony, witnesses stated that one

or two of the members of the Houston City Council may

have opposed the City’s aggressive policy of annexation,

but by and large the Council and the Mayor(s) were

firmly behind annexations. (Tr. vol. 8, pp. 134-35) For

example, the City annexed much territory during the ad-

ministration of Fred Hofheinz. (Tr. vol. 8, p. 97) Mayor

Hofheinz stated before the Court that annexation was

necessary in order -to protect Houston's tax base (Tr.

vol. 8( p. 98) and testified that he felt that the annexa-

tions benefited both Houston and the county. (Tr. vol.

8, pp. 104-05) Similarly, the Mayor who succeeded Hof-

heinz, Jim McConn, favored aggressive annexation. (Tr.

vol. 9, p. 181) Mayor McConn stated that he also felt

that annexations were necessary in order to protect the

City’s tax base. (Tr. vol. 9, p. 181) Support from the

Houston City Council was evidenced by the testimony of

Councilman Judson Robinson, who stated that he ap-

proved of Houston’s aggressive annexation policy. (Tr.

vol. 8, p. 139) So, for example, on December 28, 1977,

Houston annexed the Aldine/Greenspoint Mall area. In-

wood Forest/Candlelight Forest, Scarsdale, and Briar-

wick. (Tr. vol. 10, pp. 46-47) These annexations added

to Houston approximately 140,000 people. (Tr. vol. 10,

p. 55) The Clear Lake City annexation brought the

Situation at bar to a head.

Because the Voting Rights Act was extended to cover

Texas in 1975, Houston had to preclear the annexations

that it made retroactive to 1972. Houston had therefore

submitted changes to the Department of Justice before

Houston undertook to annex Clear Lake City. Both City

37a

Attorney Robert Collie and Mayor McConn knew that

the City would have to preclear any election changes caused

by annexations. (Tr. vol. 10, p. 105; Tr. vol. 9, p. 162)

The Department had precleared the changes before Clear

Lake (Tr. vol. 8, p. 80) but the Clear Lake City annexa-

tion did not go so smoothly.

There were two steps in the Clear Lake City annexa-

tion. The first step was the annexation of a strip of land

in Clear Lake. The Department of Justice approved the

strip annexation on October 28, 1977, but by letter to

the City of Houston, noted that, were a larger area

annexed, objections could be lodged under the Voting

Rights Act.”* (Tr. vol. 8, pp. 100-01) (Defendants’ Exh.

1) This letter raises an important question: would the

Justice Department actually have undertaken to move

the City to adopt single-member districts without the

Plaintiffs’ intervention? Present conclusions about what

actions may have been taken in the past are difficult, but

the record indicates nothing to support an affirmative

22. The letter stated in pertinent part:

While our consideration of this submission has not revealed the

basis for an objection by the Attorney General, we do note that

the annexation here involved is, apparently, a prelude to a more

substantial annexation in the future. We also understand that

the City of Houston may be considering other annexations which

would add a significant number of white voters to the electorate.

Should those annexations occur, of course, Section 5 preclearance

of those also would have to be obtained and in our consideration

of annexations of that nature we would be faced with a more

serious question of dilution of the minority voting strength.

Accordingly, if such annexations materialize we suggest that the

City may want to consider minimizing the dilutive effect of those

annexations by some means, such as the adoption of a single-

member district system of elections. See, e.g., City of Petersburg

v. United States, 354 F.Supp. 1021 (D.D.C. 1972), affirmed,

410 U.S. 962, 93 S. Ct. 1441, 35 L.Ed.2d 698 (1973).

Defendants’ Exh. t.

a i

38a

answer. The Department relied heavily on the information

the Plaintiffs supplied in objecting. Without an objection,

no remedy of adopting single-member districts would have

been discussed. In addition, the information generated

from the pending litigation which Plaintiffs supplied

manifested once and for all the appropriateness of single-

member districts.

The Department found the strip annexation unobjec-

tionable because few people lived there. (Tr. vol. 8,

p. 103) Altogether, approximately 20,000 people lived

in Clear Lake City at the time of the annexation (Tr.

vol. 10, pp. 25-26), most of them white. (Tr. vol. 8,

p. 104) The purpose of the strip annexation was to

take so much of Clear Lake City’s land that Clear Lake

could not incorporate and avoid annexation by Houston.

(Tr. vol. 10, p. 23) The 1977 Texas Legislature actually

forced Houston to annex the remainder of Clear Lake

City. The Legislature passed a law that meant that

Houston had to annex before 1979 or lose Clear Lake

forever. (Tr. vol. 8, pp. 98-99) Houston, therefore, an-

nexed Clear Lake City on December 30, 1977.

Before Houston could hold a much-needed bond elec-

tion, the annexation of Clear Lake City had to be sub-

mitted to the Justice Department. The City wished to hold

a critical bond election. (Tr. vol. 9, p. 184) Houston,

as do other municipalities, pays for its expenditures

through bonds. The City has little money available and

without a bond election could not pay its debts. Judson

Robinson testified that the Houston City Council was

very worried because it knew that several cities had not

beer. able to have elections for years because of problems

with the Department of Justice and they knew that Hous-

ton could not function without the bond issue. (Tr. vol.

39a

8, pp. 147-48) City Attorney Collie testified that in his

opinion as City Attorney such an election not involving

recently-annexed areas would not be legal. (Tr. vol. 9,

pp. 228-231) In any event, Collie testified further, the

City did not want a cloud over its bonds from a bond

election having been held only in parts of the City. (Tr.

vol. 9, pp. 233-34) Thus, although opinions on the City

Council of Houston varied from going to court in the

District of Columbia to negotiating with the Justice De-

partment (Tr. vol. 9, pp. 222-23), it was clear that the

City’s best option was to negotiate with the Department.

And, at that point, it was also clear that the Clear Lake

City annexations could be used to force the City to adopt

single-member districts. Senator Craig Washington de-

scribed the annexations as having leverage and having

the City “by the throat” because of the City’s need for

a bond election and the Department of Justice’s refusal

to preclear the annexations. (Tr. vol. 3, pp. 69-71)

City Attorney Collie was in charge of the actual prepa-

ration under submission. (Tr. vol. 9, p. 160) Before the

submission was sent in, the Department of Justice wrote

to ask why Houston had not yet submitted the annexa-

tion; the City replied that it was working on the sub-

mission. (Tr. vol. 10, pp. 27-28) The submission was

finaily sent to the Department of Justice in February

of 1979. (Tr. vol. 10, p. 148) The Plaintiffs entered the

preclearance process at this point. The Plaintiffs at first

sent letters and telephoned the Department officials, and

later actually met with persons reviewing the submission.

Evidence in the record indicates sustained contact be-

tween Plaintiffs and the Justice Department. Mr. Wash-

ington testified that his clients asked Plaintiffs’ counsel

to go to the Department of Justice concerning the situa-

40a

tion soon after the loss at trial. (Tr. vol. 3, pp. 27-28)

After it became clear that the Department of Justice

was going to come into the 73-1650 on appeal, and

while the Department of Justice was studying the objec-

tion, the Plaintiffs rendered invaluable aid to the Depart-

ment by giving them information that the Department

would not have had otherwise. For example, the Plaintiffs

gave the full record in 73-1650 to the Department of

Justice (Tr. vol. 3, p. 99) and this time record was

replete with evidence that the Department utilized re-

garding racially-polarized voting in Houston. The re-

liance of the Department of Justice on Plaintiffs is further

evidenced by the fact that the Department frequently

contacted some of the Plaintiffs’ witnesses in 73-1650

while they were considering the City’s submission. For

example, Mr. Chandler Davidson testified that he spoke

several times with David Hunter and Gerald Jones of the

Department of Justice. (Tr. vol. 3, p. 180) In addition,

one of Plaintiffs’ attorneys, Mr. Al Greene, travelled to

Washington to apprise the Department of Justice of the

situation in Houston, and gave names of community lead-

ers and contacts to the Department, the Department later

contacted several of these persons. (Tr. vol. 5, pp. 109-

10) The attorneys for the Plaintiffs also met with De-

partment of Justice attorneys in Houston before the ob-

jection was lodged. (Tr. vol. 6, pp. 18-20)

The Department of Justice objected to the City’s sub-

mission on June 11, 1979. (Tr. vol. 6, p. 27) Shortly

thereafter, the City asked the Department to withdraw

its objection. (Tr. vol. 6, p. 23) The City sent repre-

sentatives to meet with the Department of Justice to

argue for reconsideration. The City Attorney, the Mayor

and members of the City Council, including Judson

4la

Robinson, were at that June 20, 1979 meeting. (Tr.

vol. 6, pp. 27-28) (Tr. vol. 8, pp. 143-47; Tr. vol. 9,

p. 240) The Mayor and the City Council asked the

Department of Justice to exclude the Plaintiffs from the

meeting, an unusual measure. (Tr. vol. 9, p. 240) During

the meeting, the City discussed the submission and vari-

ous single-member district plans with the Department of

Justice. (Tr. vol. 9, pp. 223-25) This meeting was Mayor

McConn’s only conference with the Department, but ‘the

City Attorney met with the Department several times.

(Tr. vol. 9, p. 194) The Plaintiffs also met in Washing-

ton with the Department of Justice regarding the sub-

mission on June 20, 1979. (Tr. vol. 7, pp. 113-14) At

that meeting were Ben Reyes, Moses Leroy, E. M. Knight,

Chandler Davidson, Herman Lauhoff, Mickey Leland, and

George Korbel. (Tr. vol. 7, pp. 113-16) Before the

meeting, it appeared that the Justice Department repre-

sentatives were in a hurry and felt that Plaintiffs had

little to offer the Department. (Tr. vol. 3, p. 116) Ben

Reyes perceived during the meeting that the Department

did not grasp the situation in Houston until studying

the Plaintiffs’ information. Reyes felt that the Depart-

ment’s representatives’ demeanor changed and that those

representatives became more interested in the situation

after hearing the Plaintiffs. (Tr. vol. 3, pp. 98, 116-117)

Similarly, Mr. Davidson perceived that the Department

of Tustice did not have information critical to its deter-

mination on acceptability of the submission. Department

of Justice representatives asked questions, such as who

the minority candidates in Houston had been before and

after the changes effected in the 1950’s. (Tr. vol. 3, p.

185) Dr. Davidson could tell from the questions they

asked that they were quite ignorant of the situation in

Houston. (Tr. vol. 3, p. 186) Dr. Davidson perceived

42a

that Mr. Hunter knew only what was in the City’s sub-

mission before the meeting. Overall, it was the impression

of the Plaintiffs that the meeting substantially changed

the way the Department of Justice perceived the situation,

and that the information that the Plaintiffs had gathered

for litigation substantially altered the viewpoint of the

Department of Justice regarding the City’s submission.

The Department’s contacts with Plaintiffs’ counsels and

experts after the meeting, See infra, reinforced that im-

pression which the Court finds credible.

The Department of Justice refused on July 18, 1979

to reconsider its objection. (Tr. vol. 7, p. 122) After all

the meetings and discussions with the Department, dis-

cussions in Houston regarding the adoption of specific

single-member district plans commenced. On July 20,

1979, the Council placed the nine/five** plan on the

ballot for an August election, along with seven other

propositions. The negotiations were between the Plain-

tiffs and the City in private sessions, as well as with

many other people in public and private. (Tr. vol. 9,

pp. 166-67) Ultimately, the Department of Justice pre-

cleared the annexation after the present plan was passed

at an election on August 11, 1979. (Tr. vol. 5, pp. 137-

38) Subsequently, the bond election occurred, and the

City raised the money needed to conduct City operations.

(Tr. vol. 5, pp. 137-38)

The Court has thoroughly reviewed the record in the

case at bar and agrees with the Plaintiffs’ contention that

the instant cases caused the Department of Justice to

take its actions against the City and thereby move the

23. Under this plan, nine members of the City Council were

elected from single-member districts, and five were elected at-large.

The Department withdrew its objection on August 21, 1979.

43a

City to adopt a method of electing some City Council

members from single-member districts. (See Tr. vol. 2,

pp. 49-50; Tr. voi. 3, pp. 72, 95-96) The Fifth Circuit’s

probable remand of 73-1650, continued pressure of liti-

gation every time annexations occurred, and 78-2174

were significant catalysts to adopting the single-member

plan. (Tr. vol. 3, p. 33) As Mr. Greene stated during

testimony, the Plaintiffs’ goal was attaining single-member

district elections. The Plaintiffs used different tools, such

as litigation in *73, °75, *78, and then employed their

litigation skills, materials, and records with the Depart-

ment of Justice. (Tr. vol. 4, pp. 165-66) And it is of

no little import that the Department of Justice itself

considers the Plaintiffs to have prevailed in 73-1650.

Voting Rights Act: Hearings on 5.53, S. 1761, S. 1975,

S. 1992, and H.R. 3112. Before the Subcommittee on the

Constitution of the Senate Committee on the Judiciary,

97th Cong., 2d Sess. 1804 (1985) (attachments to state-

ment of William Bradford Reynolds, Assistant Attorney

General, Civil Rights Division).

The City argues vehemently that the cases had nothing

to do with the Department of Justice’s actions or the

City’s adoption of single-member districts. However, the

Court has examined the reasons that the City proffers as

an alternative explanation for the Department of Justice’s

action, and rejects each. The Court will address each of

these reasons, and then will enumerate and discuss the

reasons which the Court considers compel the conclusion

that the litigation was instrumental in moving the De-

partment of Justice to spur the City of Houston to change

its method of electing its City Council.

The City contends first that it perceived that it would

have succeeded against the Plaintiffs in litigation. Thus,

44a

the City was not moved to action by the lawsuits. (Tr.

vol. 8, p. 88 (Day); Tr. vol. 8, p. 118 (Hofheinz); Tr.

vol. 10, p. 118 (Collie) ) However, this argument misses

three points. The first point is that all parties agree that

the immediate cause of the City’s changing the method

of selecting City Council members was the Department

of Justice’s objection to the annexations and blocking of

the bond election. That blocking was brought about in

major part because of the case, 78-2174, which the

Plaintiffs commenced and prosecuted. Second, the City

apparently perceived that it would have to retry 73-1650,

and knew from experience that it would have to face

challenges in court every time Houston annexed an area;

as Houston wished to annex aggressively, that could

entail a number of challenges. Third, the materials from

previous litigation persuaded the Justice Department that

adoption of single-member districts was imperative.

The City also argues, in testimony from both Robert

Collie and Fred Hofheinz, that Plaintffis acted politically

and not as litigants in dealing with the Department of

Justice. (Tr. vol. 10, p. 116 (Collie); Tr. vol. 8, p. 116

(Hofheinz)) Admittedly, it is difficult at some times to

differentiate between the role being played by the persons

who were politicians and who were also the litigants.

The question is whether the Court can separate the

Plaintiffs’ roles as political figures, which some of the

Plaintiffs undeniably were, and Plaintiffs’ roles as litigants.

The Court must answer that question in the negative,

because the Plaintiffs’ legal action was by nature intensely

political.

The City argues in addition that Houston would have

moved to single-member district election had not the

Plaintiffs litigated the issue. The Court finds this argument

45a

to be spurious. The City offered at the hearing in support

of this assertion the testimony of two former Mayors,

Mr. Hofheinz and Mr. McConn, and one City Council-

man, Mr. Robinson. These three men said that they

supported the adoption of single-member districts for the

Houston City Council. (Tr. vol. 8, pp. 94-95 (Hofheinz);

Tr. vol. 9, p. 160 (McConn); Tr. vol. 8, p. 148 (Robin-

son) ) However, the City Council never acted in accord-

ance with the wishes of those politically powerful persons.

Indeed, former Mayor Hofheinz testified that he tried

several times to persuade the City to adopt single-member

districts, even to the point of drawing plans for single-

member districts. Hofheinz’s efforts were to no avail.

(Tr. vol. 8, pp. 122-23) Hofheinz admitted in testimony

that he did not have a majority to get a single-member

district plan passed by the Houston City Council. (Tr.

vol. 8, p. 130) In fact, Councilman Judson Robinson

testified that the Council never even formally discussed

adopting a single-member district plan while Mr. Robin-

son sat on that Council. (Tr. vol. 8, p. 154) Moreover,

as the Court has noted previously, other efforts such as

the straw vote and a legislative action to move the City

to adopt single-member districts had proved unavailing.

(Tr. vol. 8, pp. 150-51) Litigation, therefore was, as

one of Plaintiffs’ attorneys, Mr. Craig Washington ex-

plained, strategically the only way to achieve the adop-

tion of single-member districts in Houston. (Tr. vol. 3,

pp. 21-25) And the litigation team was specifically re-

quested by the Plaintiffs to work with the Justice De-

partment while at the same time pursuing this effort in

litigation. (Tr. vol. 2, p. 179)

Houston finally argues that the presence of the Justice

Department in 78-2174 obviated the need for Plaintiffs’

——————7~

46a

counsel, and that, therefore, those counsel should not be

compensated. The Court finds this argument to be in-

correct. As Defendant recognizes, fees are awarded to

parties who represent otherwise unrepresented interests

in a lawsuit. For example, if the Justice Department ade-

quately represents an intervenor’s interests in a declaratory

judgment suit under § 5, the intervenor may not receive

attorney's fees. Yet, such is not the case before the Court.

No evidence in the record indicates that the Justice De-

partment pursued a course of action that represented

Plaintiffs’ interests. Indeed, the Justice Department as

intervenor was obligated only to fulfill that responsibility

and was not representing the Plaintiffs. The Court is

persuaded that Plaintiffs performed all the essential tasks

in the litigation at bar and then were joined at the

eleventh hour by the Department. That late entry did not

signal that the “cavalry” had arrived and Plaintiffs could

relax. Every indication is that Plaintiffs made their own

case even after the Department of Justice arrived, and

that the Department did not actively represent the Plain-

tiffs.

In sum, the Court finds little credibility in the reasons

other than the Plaintiffs’ litigation that the City gave for

the adoption of single-member districts. Former City At-

torney Jonathan Day, Fred Hofheinz, and Judson Robin-

son all testified that the Department of Justice’s actions

caused the City to adopt the single-member district plan,

(Tr. vol. 8, p. 88 (Day); Tr. vol. 8, p. 116 (Hofheinz);

Tr. vol. 8, p. 172 (Robinson) ) but each missed the real

point: that is, that it was the actions of the Plaintiffs in

litigating the matter that brought the Department of

Justice to the point where it could pressure the City.

47a

III The Plaintiffs’ litigation was a substantial

catalyist for the City’s changes in the

method of electing City Council

persons.

The Court considers for four reasons that Plaintiffs

have proved that their litigation was the catalyst that

moved the Department of Justice to press the City for

adoption of single-member districts. The Court will dis-

cuss each of these reasons separately.

The first of these reasons concerns the public and

single-member districts. The cases helped educate the

public, which ultimately had to approve any City charter

change to adopt a single-member district plan. As both

former Mayors Hofheinz and McConn testified, the public

until the late seventies was basically unaware of the

dilemma in which minorities were placed because of the

at-large election of City Council members. (Tr. vol. 8,

p. 129 (Hofheinz); Tr. vol. 9, p. 187 (McConn)) The

actions of the Plaintiffs in bringing their cases opened

the public’s eyes to the problems which minority candi-

dates faced. Further, the issue of single-member districts

was politically sensitive in Houston, as Mayor Hofheinz

testified. Consequently, it was expedient for Houston’s

political hierarchy to allow the Plaintiffs to provide the

impetus for single-member districts, rather than having

to take the political heat themselves. (Tr. vol. 8, p. 121)

Finally, the issue of single-member districts was of great

interest in many localities during the relevant time period.

(Tr. vol. 8, p. 118; Tr. vol. 9, p. 185) However, it took

the Plaintiffs to bring about some sort of change. The

City administrators, although they have subsequently pro-

fessed to have favored single-member districts, were un-

able to bring about change by themselves.

——————7~~

48a

The second set of reasons which persuade the Court

that an award of attorneys’ fees is appropriate concerns

the actions of the City of Houston itself. For example,

contrary to other representations made in_ testimony,

former City Attorney Collie stated that he felt that the

Plaintiffs would keep on filing law suits until the City

adopted single-member districts. (Tr. vol. 10, p. 108)

This persistence in prosecuting expensive law suits can

only have moved the City to accede to the Plaintiffs’

wishes. In addition, the City itself kept the records of

the three cases and much of the material given to the

Department of Justice together, in other words, the City

recognized the commonality of the cases and the work

that went to the Department of Justice. (Tr. vol. 7, p.

56) Moreover, when the Department of Justice asked

the City for supplemental information in support of the

submission, the Department of Justice received materials

from 73-1650, such as the study done by Dr. McManus

of the University of Houston (Tr. vol. 10, pp. 48-49),

and the appellate briefs in 73-1650, (Tr. vol. 10, pp. 57-

58), and material regarding 78-2174. (Tr. vol. 7, p.

193): Defendants’ Exh. 2. Finally, even officials who

testified for the City in the hearing before the Court

stated that they felt that they regarded themselves as

being in an adversary relationship with the Plaintiffs at

the time that the City met with the Department of Justice

regarding the submission. For example, former Mayor

McConn stated that he felt that he and his fellow officials

were competing parties with the Plaintiffs when the parties

went to the Department of Justice. (Tr. vol. 9, p. 171)

And Jonathan Day, former City Attorney, stated that

they asked that the material in the submission be kept

confidential because of the City’s position as a Defendant

in the 73-1650. (Tr. vol. 8, pp. 76-77) Mr. Day objected

49a

on the ground that the material was “work product.”

“Work product” is by definition material prepared in

anticipation of litigation, which leads the Court to con-

clude that the City certainly anticipated further litigation

on the subject. See C. Wright and A. Miller, FEDERAL

PRACTICE and PROCEDURE: CIVIL, § 2021 (1970)

(defining “work product”).

Third, actions of the Plaintiffs’ lawyers also supports

the Court’s holding. For example, those persons who were

enlisted by the Plaintiffs’ counsels to go to Washington

to petition the Department of Justice on behalf of the

minority community were persons who were already

heavily involved in the litigation at bar. (Tr. vol. 7, p.

63) In addition, the lawyers for the Plaintiffs testified

that they considered themselves when before the Depart-

ment of Justice to be acting as competing parties in an ad-

versary process; in the lawyers’ estimation, the lawyers

were there representing their clients, the Plaintiffs. (Tr.

vol. 5, pp. 46-47 (Greene); Tr. vol. 7, p. 173 (Korbel) )

Fourth, and most important, the actions of the Depart-

ment of Justice clearly indicate that, but for Plaintiffs’

litigation, the Department would not have taken action

against the City. The importance of the litigation is

evident from many circumstances. For example, the De-

partment of Justice closed the meeting with City officials

to the Plaintiffs because the Plaintiffs and the City were

engaged in an adversary process over the issues that

were being discussed with the City. (Tr. vol. 7, pp. 114-

15) In addition, despite protest from Mr. Collie to the

contrary (Tr. vol. 9, pp. 238-39), there are many indi-

cations that the cases against the City over single-member

districts were discussed at length during the City’s meet-

ing with the Department of Justice. (Tr. vol. 7, pp. 72-

50a

78, 115) Moreover, there would have been an election

were it not for the injunction that was issued in the

Plaintiffs’ case, 78-2174. (Tr. vol. 5, p. 123)

The most significant contemporaneous sign of how

the litigation caused the actions of the Department of

Justice to object is the Department's obvious and heavy

reliance on the information Plaintiffs gathered for their

lawsuits. (Tr. vol. 10, pp. 58-59) A letter dated June 11,

1979, from the Department indicates that the Depart-

ment of Justice used this information. (Tr. vol. 9, p.

243) Furthermore, the circumstances surrounding the

Department of Justice’s objection clearly point to their

heavy reliance upon the Plaintiffs’ information.

The Department of Justice used some of the informa-

tion that was obtained by the Plaintiffs in litigation

before the Department's objection was made. Some of the

information was used in regard to the amicus brief filed

by the Department of Justice in 73-1650, on appeal with

the Fifth Circuit. For example, Al Greene testified that

he went over the exhibits in 73-1650 with Miriam Eisen-

stein, the lawyer for the Department of Justice who was

drafting that brief. (Tr. vol. 5, pp. 52-53) Ms. Eisenstein

appeared to have only the information from 73-1650

and no information from the Department of Justice re-

garding that case. (Tr. vol. 4, pp. 142-43) That indicates

to the Court that the Department had little information

of its own on Houston.

From the outset, Al Greene and other Plaintiffs’ at-

torneys put a great deal of effort into keeping the De-

partment of Justice apprised of the situation. Mr. Greene

wrote the Department of Justice, asking them to enforce

the Voting Rights Act in Houston before filing 78-2174.

Sla

(Tr. vol. 8, pp. 51-52) After the case commenced, the

Plaintiffs still kept in contact with the Department of

Justice. Mr. Greene, for instance, followed up on in-

formation he had begun sending the Department in 1976

by sending Dr. Davidson’s book (Tr. vol. 4, pp. 170-71)

without directly making overtures to the Department to

take any particular action in Houston. Mr. Greene also

told the Department of Justice about the imminent City

election in July, 1979. (Tr. vol. 5, pp. 122-23) Numerous

meetings and telephone conversations were had between

the Department of Justice and Piaintiffs all the way

through the process (Tr vol. 7, p. 116), as well as five

comments from Plaintiffs or Plaintifis’ representatives

being filed during the relevant period. (Tr. vol. 7, p. 98)

The lack of knowledge of the Department of Justice

was abundantly clear to the Plaintiffs, and therefore they

made every effort to see that the Department got the

full facts. (Tr. vol. 7, p. 198) Most of those facts came

directly from Plaintiffs’ litigation.

The Department of Justice was given the full record

in 73-1650 by the Plaintiffs, not just the excerpts the

City had sent. (Tr. vol. 7, p. 194)°* Two parts of the

24. Defendant argues that the 73-1650 record was outdated by

the time Plaintiffs gave the Department the record. If that is true,

the Court is at a loss to explain why Defendant also submitted parts

of the record to the Department. Also, no evidence suggests that the

record was in fact out-of-date.

Defendant also argues that Plaintiffs’ data was neither necessary

nor valid and cites a concurring opinion in Jones v. City of Lubbock,

730 F.2d 233 (Sth Cir. 1984). The Court is unpersuaded by this

argument for two reasons. First, the fact remains that the Justice

Department did use the Plaintiffs’ information. Second, the un-

controverted testimony before the Court indicates that the Depart-

ment does indeed use the information of the ilk Plaintiffs offer in

places such as Houston. The concurring opinion Defendants cite

does not refer to Houston, and it is not probative in the least of

error in or in uselessness of the data at hand.

52a

record proved critical in the Department of Justice’s

inquiry. One key element was the Plaintiffs’ development

of proof of racially-polarized voting from the cases that

the Plaintiffs prosecuted. This was critical to the Depart-

ment in determining that an objection was warranted.

(Tr. vol. 8, pp. 7-8) Racially-polarized voting, as Robert

Collie stated from the stand, is a necessary component

of the Department of Justice’s analysis. (Tr. vol. 10,

p. 106) In order to determine whether racially-polarized

voting exists, one has to trace various sociological factors.

Those factors include the identification of the ethnicity

of precincts, made difficult by changes in the precinct’s

ethnicity and lack of data; an analysis of various races,

including finding the race of candidates and the voting

returns for each precinct, again hard to find in Houston

because of lack of accurate data and poor record-keeping;

computation of the findings; and creating an array that

would make those findings meaningful. (Tr. vol. 3, pp.

160-71) The Plaintiffs prepared one such extensive study

in 73-1650. It took them months to complete this effort.

(Tr. vol. 3, p. 166) Undoubtedly, it would have taken

the Department of Justice a similarly long, if not longer,

time to perform the same tasks, given the lack of man-

power and lack of familiarity with the area. The Plain-

tiffs’ expert, Mr. Garza, stated that in his opinion the

Department of Justice could not have done the studies

that were necessary without prior records and that the

Department of Justice only had sixty days in which to

compile its information. (Tr. vol. 1, pp. 108-09) By

way of comparison, the Court was apprised that studies

by MALDEF regarding Bexar County hispanics, some

830,000 people, took a staff of five persons working

full-time much longer than sixty days to compile. (Tr.

vol. 6, p. 80) Using the Plaintiffs’ figures, the Depart-

53a

ment of Justice found, contrary to the assertions of the

City of Houston, that there was racially-polarized voting

in the City; in fact, the Department found that there

was severely racially-polarized voting in Houston. (Tr.

vol. 3, pp. 169-71; Tr. vol. 10, p. 52) Based in part

on this finding of racially-polarized voting, the City of

Houston’s annexation of predominantly white areas was

determined by the Department of Justice to violate the

voting rights of minority citizens of Houston. (Tr. vol. 7,

p. 197)

The other significant identifiable contribution of the

Plaintiffs’ materials to the Department of Justice’s efforts

were the contributions of the witnesses which the Plain-

tiffs identified for the Department of Justice. Primary

among those was the work of Dr. Chandler Davidson,

a professor at Rice University and expert in demographics

‘and voting rights. Dr. Davidson who, had testified for

the Plaintiffs in the hearing before the three-judge panel

in 1978, helped compile valuable information on racially-

polarized voting. (Tr. vol. 4, pp. 56-57)

Dr. Davidson’s background in racially-polarized voting

studies, such as the work he did for his book Biracial

Politics, was essential to Plaintiffs’ cases and, later in

the analysis of the Justice Department.** Dr. Davidson

testified that he had numerous contacts with the Depart-

ment of Justice personnel. For example, he discussed

racially-polarized voting in Houston with Assistant At-

torney General for Civil Rights, Drew Days; he also

talked with David Hunter, Gerald Jones and Ms. Eisen-

stein, all of whom were working on the submission from

25. The Court notes that Dr. Davidson did not bill for any of

the time that he spent working on his book. (Tr. vol. 4, pp. 29-30)

S4a

the City of Houston at the Justice Department. (Tr. vol.

4, pp. 30-44) Indeed, at the request of the Department

of Justice, Dr. Davidson submitted a comment on the

electoral analysis prepared by Dr. Susan McManus which

the City tendered in support of its submission. (Tr. vol.

7, p. 98; Tr. vol. 4, pp. 33-34) The basis for his com-

ment was the work he performed for Plaintiffs for ad-

mission as exhibits and/or testimony in their litigation

challenging the at-large system of City Council elections.

Defendant advanced an argument that should be dis-

cussed here. The City contends that 75-1731 and 78-2174

were brought under § 5 and that under § 5, courts may

not order changes in electoral practices. Counsel for

Plaintiffs would seemingly agree. See testimony of George

Korbel (Tr. vol. 6, p. 66):

If they make a determination the change is required

to be precleared, then the only power that the three-

judge court in the jurisdiction, the local jurisdiction,

has is to enjoin the activity until the Department of

Justice has had an opportunity to consider clearance

and actually give clearance or until the jurisdiction

has filed a lawsuit in the District of Columbia and

received a declaratory judgment action; and that

also requires a three-judge court.

However, that does not change the Court’s conclusion

that the Plaintiffs were prevailing parties. First, the com-

plaints in both cases also alleged causes of action under

the Constitution, which could easily be construed as re-

questing relief that includes the imposition of election by

single-member districts. Moreover, ttc fact that the Justice

Department mooted the claim by forcing the City to

adopt single-member districts does not vitiate Plaintiffs’

lawyers’ claims, given the contributions those lawyers

55a

made to the Department’s decision-making process. In

addition, even if one only considers the § 5 claims, the

fact remains that Plaintiffs got what they prayed for,

single-member districts, despite the fact that the Court

could not order adoption of those districts under § 5.

If, in another context, a plaintiff's lawyer brought a suit

on one ground, prayed for relief on it and then, on

another, unstated ground, got all the relief that he re-

quested, the lawyer presumably would receive an award

on the basis of whatever his client received and not on

what he stated as a basis for relief. The Court also notes

that Mr. Garza testified that until 1975, the question

of whether substantive as well as injunctive relief was

available under § 5 remained open. (Tr. vol. 1, pp. 81-

82) Finally, meriting attention as well is the fact that

the Plaintiffs were heavily involved in drawing the actual

plan that went to the voters. (Tr. vol. 9, p. 226) Clearly

Plaintiffs and Plaintiff's witnesses such as Ben Reyes, Dr.

Davidson, and Dr. Richard Murray discussed the drawing

of plans with the Department of Justice (Tr. vol. 6, p.

31), as did Al Greene. (Tr. vol. 6, pp. 17-18) Much

of the concern appeared to center about the use of out-

dated data by the City in drawing up the plans. (Tr.

vol. 4, pp. 43-45) While the contents of many of the

conversations are not available to the Court, many nota-

tions made during the meeting indicate that reference

was often made to the Plaintiffs in discussions between

the City of Houston and the Department of Justice.

(Tr. vol. 7, p. 117)

The City’s representatives also met several times with

Plaintiffs and Plaintiffs’ counsel. The City offered testi-

mony to the effect that these meetings were merely

nermal meetings with constituents (Tr. vol. 9, p. 212; Tr.

56a

vol. 10, p. 119) like the public and private meetings of

the nature had with many other persons who were not

affiliated with the lawsuits (Tr. vol. 6, pp. 36-37) or that

they were meetings encouraged by the Department of

Justice te be had with all community leaders (Tr. vol.

10, p. 109). The City’s witnesses also contended that the

meetings were in any event, unspecific and not about

particular plans. (Tr. vol. 10, p. 111) Undeniably, how-

ever, many meetings were had with Plaintiffs, for ex-

ample. with Ben Reyes and Mickey Leland (Tr. vol. 9,

p. 210). with E.M. Knight and members of the GHCCO

(Tr. vol. 9, pp. 211-12) and between Reyes and the

City’s expert who was drawing up the plan. (Tr. vol. 7,

p. 121) That those meetings were more important than

meetings had with other persons is evidenced by the fact

that the meetings greatly affected the plan that the City

ultimately submitted to its voters. Many plans were sug-

gested or were in fact scrutinized during the period. (Tr.

vol. 3, p. 136) However, evidence in the records indi-

cates that several suggestions made by the Plaintiffs were

adopted and incorporated into the final plan. For ex-

ample, the escalator clause. which allows for expansion

of the City Council and the number of districts as the

City grows, is directly attributable to the influence of the

Plaintiffs (Tr. vol. 7. pp. 119-20): in addition, the City

made concessions to Plaintiff Ben Reyes regarding the

drawing of lines for different districts. (Tr. vol. 9, p.

169)

Related to this argument is the City’s contention that

the Plaintiffs did not prevail because they wanted all

City Council members to be elected from single-member

districts, and what they ended up with was a mixed Sys-

tem of single-member and at-large elections. This argu-

57a

ment is without merit for two reasons. First, the Plain-

tiffs certainly gained tremendously from what they re-

ceived in the mixed system, as now a majority of City

Council members run for election in single-member dis-

tricts, and minorities gained seats on the Council. Be-

fore institution of election by single-member districts,

several minority candidates had run for city office and,

while winning the minority vote, lost city-wide. (Testi-

mony of Dr. Davidson in 73-1650, vol. V at 22-25)

Before single-member district election, only one black

and no hispanics had been elected to the City Council:

now four minorities (three blacks and one hispanic) sit

on it. (Tr. vol. 7, p. 128) Given that the black and his-

panic population of Houston alone would make it the

fourth largest city in Texas, the achievement is signifi-

cant. (Tr. vol. 7, p. 126) According to the 1970 census.

Houston was 26% black and 12% hispanic, for a total

of at least 585,000 minority citizens. In fact, the number

of City Council members was increased to allow for the

new oOffice-holders from single-member districts, which

arguably increased the impact of the new system in favor

of minorities. It is well established that Plaintiffs need not

obtain all relief they have requested in order to be pre-

vailing parties. Marion v. Barrier, 694 F.2d 229, 231

n. 1 (11th Cir. 1982) (per curiam), citing Knighton v.

Watkins, 616 F.2d 795, 799 (Sth Cir. 1980).

In sum, the Court finds it clear that the Plaintiffs’ liti-

gation was absolutely critical to the Department of Jus-

tice in the Department’s determination to object to the

City of Houston’s submission. Without the information

and aid of the Plaintiffs, the public and the Department

would not have been willing to go forward with the

type of reform that was ultimately made. The Court

58a

cannot separate the Plaintiffs’ functions as political figures

and litigants. The two roles are inextricably intertwined,

and the Court sees no reason to deny attorneys’ fees to

a lawyer who worked long and hard on extremely diffi-

cult and emotion-charged issues simply because some of

their clients had political affiliations and offices. What is

important is that although some of the Plaintiffs were

political figures, as litigants they are entitled to have

their attorneys’ paid if they are the prevailing party

which they clearly were. And the Court considered the

work done for litigation that is used in another forum,

the action of which moots the litigation compensible.

See discussion supra of Webb and Gerena-Valentin; see

also Sullivan v. Commonwealth of Pennsylvania Depart-

ment of Labor and Industry, Bureau of Vocational Re-

habilitation, 663 F.2d 443, 445 (3rd Cir. 1981) (at-

torney’s fees awarded to counsel whose efforts in prose-

cuting Plaintiffs’ Title VII suit “were a material factor”

in Plaintiffs’ obtaining the relief sought in arbitration).

Defendants assertion that Plaintiffs’ actions had to lead

“mexorably” to the Justice Department's actions is in-

correct. What else might have happened is irrelevant. The

point is that the Plaintiffs’ lawyers’ actions did lead to

the Department's decision. Criterion Club of Albany y.

Board of Commissioners of Dougherty County, Georgia.

594 F.2d 118, 120 (Sth Cir. 1979) (per curiam) sup-

ports the Court’s conclusion. In Criterion Club,

the plaintiffs brought a class action on behalf of the

black residents of Dougherty County, Georgia.

against that county's Board of Commissioners, alleg-

ing that the county-wide, at-laree system of electing

the Board abridged their fourteenth and _ fifteenth

amendment rights. The case never proceeded to trial.

59a

Instead, the parties reached an agreement pursuant

to which the Dougherty County legislative delega-

tion introduced a bill in the Georgia General As-

sembly redistricting the county and providing the

opportunity for the election of at least two blacks

to the County Commission. The bill passed and was

signed by the Governor. The district court denied

the plaintiffs’ application for section 1988 attorneys’

fees. The Fifth Circuit remanded the case to the

district court with the direction that if the district

court found that the legislative changes that occur-

red were a consequence of the filing of the plain-

tiffs’ suit by way of a compromise or other agree-

ment of the parties, then attorneys’ fees should be

awarded.

Sullivan, 663 F.2d at 449. Presenting the bill to the Gen-

eral Assembly did not “inexorably” lead to passage of the

bill, as the Assembly could have voted the legislation

down. Yet. once the Assembly passed the bill, attorneys’

fees were available for prosecuting the case that caused

the bill to go to the Assembly. See also Hardy v. Porter,

613 F.2d 112, 114 (Sth Cir. 1980) (lawyers should be

compensated for work done on unsuccessful issue in liti-

gation when work aids in prosecution of successful

claim).

IV. The Amount of the

Attorneys’ Fee Award

Having determined that the Plaintiffs’ lawyers are en-

titled to an award of fees, the Court must decide how

much compensation each lawyer should receive. As indi-

cated in the discussion of the law above, the Court con-

siders that it first must examine the Johnson factors and

then decide whether a multiplier should be used. The

60a

Court therefore turns to the Johnson factors. Initially,

the Court will discuss the factors applicable to the case

generally, such as the general level of the skifl required

to prosecute the action and the novelty of the issues pre-

sented. Then the Court will apply the factors that relate

to each individual attorney, e.g., his particular qualifica-

tions, his professional hardship in taking the case, and

the reasonableness of the numbers he spent on the tasks

in the litigation.

Several Johnson factors concern the case itself. The

first factor to which the Court turns is the general level

of skill of the attorneys involved.*" The Court is con-

vinced that a high level of skill was necessary in the

litigation under consideration. For example, 73-1650 re-

quired a tremendous amount of work and skill to put to-

gether a constitutional challenge based on massive

amounts of raw data compiled into statistics. And the

litigation under the Voting Rights Act also was very com-

plex. Normally, as explained above, litigation under

Section 5 is not overly complex. But in the case at bar,

the newness of the extension of the Voting Rights Act

to Texas and the dearth of attorney information and

knowledge regarding extension of the statute complicated

the case. (Tr. vol. 5, pp. 3-4) The Court is persuaded

from the testimony and a review of the record that the

attorneys for the Plaintiffs were quite skillful. The law-

yers made a good showing on a bare budget in an ex-

tremely difficult case, and the Court is convinced that the

quality of representation was quite high. (Tr. vol. 7, pp.

140-41) The Court considers in particular that Mr. Kor-

26. Specific skills of each lawver will be discussed infra, as well

as the time each lawyer spent on the cases,

6la

bel’s and Mr. Botello’s knowledge of the Voting Rights

Act and ability to locate expert witnesses was outstand-

ing. (Tr. vol. 3, p. 89; Tr. vol. 5, pp. 7-8) In addition,

the exhibits that were ‘put together for 73-1650 showed

a high degree of skill and professionalism. (Tr. vol. 5,

pp. 4-7)

Another factor which the Court must take into ac-

count under Johnson is the speculative nature of the

case, and the cases at bar were indeed speculative.

Initially, the cases were speculative from a legal point

of view because the litigation’s outcome was so un-

certain; in other words, given the resources available to

the Plaintiffs relative to the resources available to the

other side, plus the novelty of many of the questions pre-

sented, see infra, the cases can at best be called highly

speculative. Then too, the cases were speculative in

nature because, as Mr. Dippel pointed out, there was no

fixed fee involved for the attorneys. Thus, the cases were

speculative from a professional nature because the law-

yers who represented the Plaintiffs were unsure whether

they would be paid (Tr. vol. 1, pp. 129-30) and, if they

were paid, they had no set hourly rate for which they

had contracted.

Results obtained also justify an award of attorneys’

fees. As Mr. Dippel stated in testimony, the main value

of litigation is getting for the client what the client wants.

(Tr. vol. 2, p. 53) Although initially disappointed by

the outcome of the trial of 73-1650, (Tr. vol. 2, p. 127),

the Plaintiffs ultimately were satisfied because Houston

adopted single-member district election of City Council

members. (Tr. vol. 5, p. 19) Houston’s large size and

prior unwillingness to change to single-member district

62a

elections especially made this change an important ac-

complishment. ( Plaintiffs’ Exh. 50)

Efficiency also was a hallmark of Plaintiffs’ prepara-

tion of their case. The City admits that the average time

claimed to have been expended is not unreasonable. Its

witness, Mr. Cooper testified that the time record for the

preparation and prosecution of the case does not appear

to be unreasonable. (Tr. vol. 9, p. 67) As Mr. Cooper

pointed out, expertise in a particular type of litigation

will increase the efficiency of the pursuit of that litiga-

tion. (Tr. vol. 9, pp. 120-21) The Court is persuaded

that the expertise of the Plaintiffs’ attorneys had that ef-

fect in the cases at bar. For example, when there were

only a few attorneys working on the case, and those at-

torneys realized that the case had grown too large for

them to handle, they called in other attorneys; however,

they called in only a small task force to allow them to do

their work efficiently and without duplication. (Tr. vol.

4, pp. 173-80) Another example of the efficiency that

Plaintiffs’ attorneys manifested was to use informal dis-

covery in 73-1650, substantially reducing the cost to

themselves and the City (and ultimately the taxpayers) of

undertaking a massive case. (Tr. vol. 8, p. 8) In ad-

dition, the Court has examined the various fee petitions

submitted and determined that the Plaintiffs spent mini-

mal hours on their briefing and made good efforts to

efficiently distribute their time among the various tasks

needed. (Tr. vol. 3, pp. 38-41) Finally, the Plaintiffs’

attorneys used their expert witnesses prudently. The use

of Dr. Charles Cottrell of San Antonio provides a good

illustration. Dr. Cottrell was going to testify for the Plain-

tiffs, but the Plaintiffs’ attorneys decided shortly before

trial that Dr. Cottrell would not be needed. Instead of

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asking Dr. Cottrell to stay just in case he was needed,

the attorneys sent him home. (Tr. vol. 7, pp. 141-42)

Another factor justifying an award of attorneys’ fees in

the instant case is the lack of duplication which is mani-

fested in these cases. As one witness, Mr. Dippel noted,

there is no discernible duplication of efforts among the

attorneys present in the record. (Tr. vol. 2, pp. 72-73)

As Plaintiffs’ attorneys emphasized, they had no incentive

to duplicate efforts; in fact, the large amount of work to

be done by relatively few people made it imperative that

all tasks be split up and performed as efficiently as pos-

sible. (Tr. vol. 3, pp. 14-15; Tr. vol. 7, p. 139) The

lawyers avoided duplication by splitting up tasks daily

(Tr. vol. 7, p. 139) at meetings held in Mr. Greene’s

office. At these meetings, the attorneys discussed the

case, apprised each other of what they had done, and ap-

portioned the tasks among themselves. (Tr. vol. 3, p.

14) Examples of the lack of duplication in the case pro-

liferate in the record, four sufficing to prove the Court’s

point. First, the attorneys in some sense divided the

clientele among themselves in order to work more ef-

ficiently with them. For example, Mr. Washington and

Mr. Greene particularly focused on the black Plaintiffs

and the black interests in the case. The other attorneys

spent more time with the hispanics and involved in the

hispanic questions. (Tr. vol. 2, p. 109) Although these

divisions were not rigid, they did allow for division of au-

thority and responsibility among the lawyers; also, they

allowed the varying interests of different ethnic groups

to be fully represented. (Tr. vol. 7, pp. 148-49) A

second example is how witnesses were found and _pre-

pared. One of the Plaintiffs, Ben Reyes, helped track

down expert witnesses to be examined for possible use

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at trial. Mr. Reyes and Mr. Botello would then perform

intermediate tasks such as initially interviewing the ex-

perts and arranging for studies. George Korbel would

finally conduct a second interview with witnesses that

might be used and then decide if the witnesses would in-

deed be asked to testify. (Tr. vol. 7, pp. 139-40) Third,

the lack of duplication was further manifested in the

briefing process. For example, for the initial appellate

brief, Mr. Greene procured the record and outlined the

record. Mr. Korbel, taking that outline, went through the

transcript and drafted the brief. The brief was then sub-

jected to the scrutiny of the other attorneys. (Tr. vol. 8,

pp. 3-4) For the reply brief, a similar process was used.

Mr. Korbel prepared the first draft, and Mr. Greene re-

vised it. (Tr. vol. 5, pp. 103-05) Fourth, Plaintiffs’ law-

yers avoided duplicate efforts at trial. Examples of this

lack of duplication are that attorneys cross-examined the

persons for whom they considered this would be the most

effective.“ See Mr. Washington’s examination of Judson

Robinson, discussed supra and the use of different lawyers

to cross-examine and brief witnesses during trial. (Tr.

vol. 3, p. 57)

The final factor which the Court finds relevant to the

case under Johnson is the novelty and difficulty of that

case. The Court has examined seven circumstances that

made the questions in the case before the Court par-

27. At the hearing on attorneys’ fees not all of the petitioning

lawyers asked questions. This does not indicate that those lawyers

need not have attended. Each lawyer has his ewn petition with its

own merits, and the lawyers therefore have the right to full repre-

sentation at the hearing. The Court appreciates lawyers not asking

questions if the matter has been fully covered and they have nothing

to add. This is an example of efficient use of attorney time and an

appreciation of the Court’s time constraints

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ticularly novel and difficult from the Plaintiffs’ attorneys’

standpoint.

Often, the quality of the Defendants’ lawyers’ work

was quite high, requiring significant efforts from the

Plaintiffs’ attorneys’ to meet the challenge, which they

did. (Tr. vol. 3, pp. 16-17) In addition, the time pres-

sures on the Plaintiffs’ attorneys’ were great. As Mr.

Greene explained, some of the time pressures were caused

by circumstances alone. Plaintiffs wanted relief as soon

as possible, and frequently made this abundantly clear

to their attorneys; often the Plaintiffs’ attorneys received

very short notice on settings; and, in 75-1731 and 78-

2174, the issues involved had to be resolved before the

elections involved occurred. (Tr. vol. 5-17) Another

time factor was that the City would often delay in giving

its submissions to the Department of Justice, and then

send in massive amounts of information and request ex-

pedited consideration of their submissions. Consequently,

the Plaintiffs had little time to consider and respond to

the submissions. (Tr. vol. 5, p. 49) Still another factor

increasing the difficulty of the cases at bar for Plaintiffs’

attorneys was the slim budget on which the cases were

prosecuted. Mr. Korbel noted during the hearing that

the litigation budget had “the least” funds of any budget

in any litigation in which he had been involved. (Tr.

vol. 7, p. 170) And, examining the record, the Court

agrees that the Plaintiffs’ resources were slim both in

terms of manpower and money. Admittedly, some organi-

zations and individuals gave money for the prosecution

of this case. For example, a small contribution came from

Lawrence Pope (Tr. vol. 4, p. 164), and there was some

help from the N.A.A.C.P. Legal Defense and Educational

Fund, Inc. (Tr. vol. 3, p. 37) In addition, a single-

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member district defense fund raised two thousand dollars

($2,000) to three thousand dollars ($3,000) to pay for

the record that was used in preparing the Fifth Circuit

brief in 73-1650. (Tr. vol. 4, p. 164; Tr. vol. 7, p. 136)

The Court also notes that one of the Plaintiffs, Ben Reyes,

paid for Mr. Korbel’s plane ticket to Washington when

Mr. Korbel went to speak to the Department of Justice.

(Tr. vol. 8, pp. 33-34) However, such isolated and limited

contributions in no way covered the expense of this large

case. No organization systematically funded this lawsuit

(Tr. vol. 7, p. 136), principally because the resources

of organizations normally appealed to in such cases were

overextended. /d. For example, MALDEF could not fund

73-1650, as the organization was bu

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