# Petition for Writ of Certiorari — City of Houston v. Leroy > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1559%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1988 - **Citation:** 486 U.S. 1008 ## Text Sore oat US.) 87-1 FILED 61 1 MAR 28 1988 , Fs 4a. i oo 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 I 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? II 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 IV 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 Be 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 Vv 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 17 17 l 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. ——————————————— 2 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 3 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 5 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 6 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.) 7 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 8 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. 9 REASONS WHY THE WRIT SHOULD BE GRANTED I. 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). 10 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) 11 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 12 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- 13 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 14 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). 15 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 16 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 17 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). 18 “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. 19 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 20 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. 21 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 22 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 la APPENDIX A Moses LEROY, et al, Plaintiffs, Vv. CITY OF HOUSTON, et al, Defendants. GREATER HOUSTON CIVIL COUNCIL, INC., Plaintiff V. 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 2a 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 3a 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 ga 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), 5a 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). 6a “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. Ta 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.” 8a 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- 9a 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1559%3A1. Public record. Not legal advice.