Petition for Writ of Certiorari — Illinois State Board of Elections v. Hastert

—~ FIL BD

94 45°27 SEP -7 1994

OFFICE OF THE CLERK

No.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1994

ILLINOIS STATE BOARD OF ELECTIONS, et al.,

Petitioners,

DENNIS J. HASTERT, et al.,

Respondents.

Petition for Writ of Certiorari to the United

States Court of Appeals for the Seventh Circuit

PETITION FOR WRIT OF CERTIORARI

ROLAND W. BURRIS

Attorney General of Illinois

ROSALYN B. KAPLAN

Solicitor General of Illinois

Counsel of Record

DEBORAH L. AHLSTRAND

Assistant Attorney General

100 West Randolph Street

12th Floor

Chicago, Illinois 60601

(312) 814-3698

Attorneys for Petitioners

Printed by Authority of the State of Illinois (P.O. 36165—85—8-30-94)

QUESTIONS PRESENTED

Where the litigation’s actual controversy is between

competing plaintiffs, whether a plaintiff who succeeds

against opposing plaintiffs is entitled to prevailing party

status against a nominal and neutral state defendant for

purposes of attorney’s fees?

If the plaintiff is eligible for attorney’s fees from the

neutral and nominal defendant, whether the district. court

is precluded from denying fees on special circumstances

grounds?

LIST OF PARTIES

The Petitioners, in these five consolidated cases on ap-

peal, are the Illinois State Board of Elections (also sued

as the Illinois State Board of Election Commissioners),

and its members John J. Lanigan, Theresa M. Petrone,

Judith A. Jones (replacing Richard A. Cowen), Lawrence

E. Johnson, David E. Murray, Langdon D. Neal, Wanda

L. Rednour, and Hannelore Huisman.

The Respondents, grouped by separate district court fil-

ings, are:

1.

Dennis J. Hastert, Harris Fawell, John E. Porter,

Phillip M. Crane, Henry J. Hyde, Robert H. Michel

and Thomas W. Ewing—No. 91 C 4028;

Johnny Scott and Ben Howard—Intervenors in No.

91 C 4028;

Wilfredo Nieves, Al Johnson, Linda Coronado, Bobby

Rush, Jesus Garcia, Rev. Willie Barrow, Rafael

Boria, Miguel Del Valle, Robert L. Lucas, Leon D.

Finney, Jr., Rev. Clay Evans, Joseph Gardner, Luis

V. Gutierrez, Regner Suarez, Joseph Berrios, Miguel

A. Santiago, and Neomi Hernandez—No. 91 C 4154;

The Chicago Urban League, Craig R. Collins, Mark

Allen, and Nikolas C. Theodore—No. 91 C 5472; and

Ann Rosebrook, Daryl Barklow, Amiel Cueto, Richard

Mark, Jeanelle Norman, Carolyn Toney, Lee Babcock,

Raymond Oliver, Barbara Poshard, William Matthews,

Gerald Hawkins, and Eva Savala—No. 91 C 4656.

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED .................. i

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yy FP Es Me Noe yg. 0) 4 ey | +. Vv

ES l

SE a 2

SERRE Ur Me BRO VUES VEER) ccccccccccccccccceces 2

STATEMENT OF THE CASE ............... 3

REASONS FOR GRANTING THE WRIT .... 10

:.

THIS COURT SHOULD GRANT CERTIORARI

TO ADDRESS A PLAINTIFF’S ENTITLE-

MENT TO ATTORNEYS’ FEES FROM A

NOMINAL AND NEUTRAL STATE DEFEN-

DANT WHEN THE PLAINTIFF HAS PRE-

VAILED ONLY AGAINST COMPETING

PLAINTIFFS, IN ORDER TO ENSURE THAT

FEDERAL COURTS UNIFORMLY ENFORCE

FEE-SHIFTING STATUTES AGAINST DE-

FENDANTS ONLY IF THEY ARE ACTUAL-

LY FOUND LIABLE FOR VIOLATIONS OF

daw sé us 10

IT.

THE LOWER COURTS REQUIRE DIRECTION

ON THE PARAMETERS OF THE JUDICIAL-

LY-CREATED EXCEPTION TO THE GRANT

OF ATTORNEYS’ FEES WHEN FOUR OF SIX

FEDERAL JURISTS WOULD HAVE DENIED

FEES AS UNJUST AND THE TWO-MEMBER

MAJORIIX DISAGREED .......ccccccseces 14

acre sank veh ese ee sab ade0 veces 15

iv

APPENDIX

(Separate Volume)

Slip Opinion of the United States Court of Appeals

for the Seventh Circuit, as amended, June 1,

rE Be Pr ve nU ef Para aa He me

Slip Opinion of the United States Court of Appeals

for the Seventh Circuit, December 17, 1993 ..

Minute Order of the United States District Court

for the Northern District of Illinois, Eastern

Division, damery V7, THO oi. cece cscccccaes

Memorandum Opinion and Order of the United

States District Court for the Northern District

of Illinois, Eastern Division, January 17, 1992 .

Minute Order of the United States District Court

for the Northern District of Illinois, Eastern

Division, January 21, 1992 ...........esce0.-

Minute Order of the United States District Court

for the Northern District of Illinois, Eastern

Division, January 7, 1902 .......ccccceseues

Minute Order of the United States District Court

for the Northern District of Illinois, Eastern

Division, December 27, 1991 ...............

PAGE

30

5D

67

69

V

TABLE OF AUTHORITIES

Cases PAGE

Christiansburg Garment Co. v. Equal Employment

Opportunity Commission, 434 U.S. 412 (1978) . 10, 12

Farrar v. Hobby, _____ U.S. , 113 S. Ct. 566

i Ee rrr rerime ser No keie ee Sky 12, 14

Hanrahan v. Hampton, 446 U.S. 754 (1980)... 11

Hastert v. State Board of Elections, 777 F. Supp.

ee: eee ee ar oa 3, 4, 5, 6, 7

Hastert v. State Board of Elections, 794 F. Supp.

rove ro rrr rye 8

Hensley v. Eckerhart, 461 U.S. 424 (1983)..... 11, 14

Heuntt v. Helms, 482 U.S. 755 (1987) ......... 12

Hutto v. Finney, 487 U.S. 678 (1978) ......... 14, 15

Independent Federation of Flight Attendants v.

rpen,, Gt UG. FOR CRD ov vcccccevcnts 10, 11, 14

In re Illinois Congressional Districts, 704 F.2d 380

GPa Se winsu cic ecne de celuaseuuewin s< 13

In re Kansas Congressional Districts Reapportion-

ment Cases, 745 F.2d 610 (10th Cir. 1984) .... 13

Kentucky v. Graham, 473 U.S. 159 (1985) ..... 10, 12

Rhodes v. Stewart, 488 U.S. 1 (1988) .......... 10, 12

Texas State Teachers Association v. Garland Inde-

pendent School District, 489 U.S. 82 (1989) .. 10, 11, 12

vi

Constitutional Provision and Statutes

a. Goa. . ere MG. BER. OO cide cca sekccdacess 6

ee te ee va des eo bad sdskensseacd ween 3

ee le was 6 450 0s oS ¥evean cena ieene 3

BF Pr rere rere re TT Trea Tee 3

ee Se EE hv va 0s sso 0daeseaewbeneuans 2,7

Oe Se EE eek ocd ccebcaveebeusacaness es

6

IN THE

Supreme Court of the United States

OcTOBER TERM, 1994

ILLINOIS STATE BOARD OF ELECTIONS, et al.,

Petitioners,

We

DENNIS J. HASTERT, et al.,

Respondents.

Petition for Writ of Certiorari to the United

States Court of Appeals for the Seventh Circuit

PETITION FOR WRIT OF CERTIORARI

The petitioners, Illinois State Board of Elections and

its named members, respectfully pray that a writ of cer-

tiorari issue to review the decision of the Seventh Cir-

cuit Court of Appeals.

OPINIONS BELOW

The Court of Appeals’ June 1, 1994 modified opinion on

rehearing (App. 1-29) is not yet officially reported. Its

earlier December 17, 1993 decision on attorneys’ fees

(App. 30-53) has been superseded.

The three-judge district court panel issued a published

decision on attorneys’ fees on January 17, 1992, sub nom.

Hastert v. State Board of Elections, 794 F. Supp. 254

(N.D. Ill. 1992) (App. 55-66). Separate unpublished orders

a Oe

on attorneys’ fees were entered with respect to one plain-

tiff group (Rosebrook plaintiffs) on December 27, 1991,

January 7, 1992, and January 21, 1992, all of which are

reproduced in the Appendix (App. 67-69).

The underlying judgment on congressional redistricting

was entered on November 11, 1991, by the district court

panel and may be found swb nom. Hastert v. State Board

of Elections, 777 F. Supp. 634 (N.D. Ill. 1991).

JURISDICTION

The judgment of the Seventh Circuit Court of Appeals

was first entered on December 17, 1993, and, upon time-

ly petitions for rehearing, a modified opinion was issued

on June 1, 1994. The jurisdiction of this Court is invoked

under 28 U.S.C. § 1254(1).

STATUTES INVOLVED

42 U.S.C. § 1988(b):

(b) In any action or proceeding to enforce a provi-

sion of section 1981, 198la, 1982, 1983, 1985, and 1986

of this title, title 1X of Public Law 92-318, the Re-

ligious Freedom Restoration Act of 1993, or title VI

of the Civil Rights Act of 1964, the court, in its dis-

cretion, may allow the prevailing party, other than

the United States, a reasonable attorney’s fee as part

of the costs.

42 U.S.C. § 1973(e):

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

guarantees of the fourteenth or fifteenth amendment,

the court, in its discretion, may allow the prevailing

party, . er than the United States, a reasonable at-

torney’s fee as part of the costs.

_—

STATEMENT OF THE CASE

Following the 1990 census, these consolidated actions

were brought in district court by several plaintiff groups

to effectuate the congressional redistricting of Illinois. The

three-judge district court panel possessed jurisdiction under

28 U.S.C. § 1331 (general federal question jurisdiction), 28

U.S.C. § 1343 (civil rights and voting rights jurisdiction),

and 28 U.S.C. § 2284 (congressional apportionment matters

convened before three-judge district court). The defen-

dants, the Illinois State Board of Elections and its

members, are seeking review of the propriety of their

liability for the attorneys’ fees of four plaintiff groups—

relief which the district court had denied.

The Congressional Redistricting Action

The results of the 1990 census, issued to the Governor

of Illinois in 1991, dictated that Illinois’ representation in

Congress would be reduced from 22 members to 20 mem-

bers. At that time, the Illinois State Board of Elections

was subject to the terms of a 1981 federal court order,

establishing a congressional district plan with 22 districts,

including three “‘super-majority” African-American districts

(the 1st, 2nd, and 7th Illinois Congressional Districts). See

Hastert v. State Board of Elections, 777 F. Supp. 634,

637-38, 646-47 (N.D. Ill. 1991) (“Hastert IP’) (the underly-

ing congressional redistricting decision). Redistricting IIli-

nois would have a potential impact on the tenure of the

22 incumbent Congressmen, due both to the reduction in

House membership and to changes in district boundaries.

A new map also could affect the relative strength of the

Democratic and Republican delegations, and the contours

of African-American districts in proximity to the new His-

panic “super-majority” district.

_ a

The Illinois General Assembly did not redistrict Illinois

under the new census before its adjournment in July of

1991. Beginning June 27, 1991 and over the next few

months, five lawsuits were filed in federal district court

by interested plaintiff groups, naming the Illinois State

Board of Elections and its members as defendants (here-

after “State Board”). Seven individuals and/or organiza-

tions also were granted leave to intervene in the actions

that were consolidated. See Hastert I, 777 F. Supp. at

638-39. Generally, the plaintiffs’ actions requested a decla-

ration that the 1981-configured Illinois congressional dis-

tricts were unconstitutional due to the census results and

sought to enjoin the defendant State Board from conduct-

ing the 1992 elections under the 1981 court-ordered dis-

tricting plan.

As detailed below, two plaintiff groups, proposing state-

wide redistricting plans, represented the interests of the

Republican and Democratic Parties and incumbents; the

other parties raised more local concerns. There were five

plaintiff groups involved in the redistricting litigation who

also were before the Court of Appeals on the attorneys’

fees issue:

e the “Hastert” plaintiffs are the Republican Party

members of Congress, Representatives Hastert,

Fawell, Porter, Crane, Hyde, Michel and Ewing

(R. Doc. 1 & 61), who proposed the statewide

“Republican” map;!

1 Upon consolidation, the majority of filings with the district court

were docketed under the Hastert file, Case No. 91 C 4028. Record

citations to these documents will not include a case number, as

above. The citations to any pleading docketed under another file

will be preceded by the appropriate case number.

—J—

e the “Nieves” plaintiffs are a group of Hispanic

and African-American voters (including Chicago

aldermen and future Congressmen Luis Gutierrez

and Bobby Rush, as well as another Chicago alder-

man and two state legislators) who submitted a

proposed redistricting map for the four minority

districts in Chicago (No. 91 C 4154, R. Doc. 1 & 13);

* the “Rosebrook”’ plaintiffs are a group of voters

representing the interests of the Democratic Party

members of Congress, who advocated for a state-

wide “Democratic” map. (No. 91 C 4656, R. Doc.

1 & 7). Democratic Congressmen Durbin, Costello,

Bruce, Cox, Poshard, Sangmeister and Evans

were billed for the legal services provided to the

Rosebrook plaintiffs (R. Doc. 244; Ex. P in Vol. 6

of Loose Pleadings);

e the “Chicago Urban League” plaintiffs also repre-

sent the interests of the existing African-American

districts and submitted a proposal for the four

minority districts (No. 91 C 5472, R. Doc. 1); and

e the “Scott” intervenors are Johnny Scott and Ben

Howard, individually and as representatives of the

St. Clair County and Madison County, Illinois, Na-

tional Association for the Advancement of Colored

People (““NAACP”’), who intervened in the action

to oppose an early draft of the Hastert/Republican

statewide map (R. Doc. 111 *& 115).

See also Hastert I, 777 F. Supp. at 638-39.?

2 Other parties before the district court (but not the Court of

Appeals) were the “Collins” plaintiffs, including Representatives

Cardiss Collins and Charles Sines of the 7th and ist Congres-

sional Districts, as well as the following intervening parties: Rep.

Frank Annunzio (11th District); Rep. Sidney Yates (9th District);

Rep. Augustus Savage (2nd District); the Harold Washington

Party; and residents of the 3rd Congressional District. Hastert I,

777 F. Supp. at 638-39.

~

On September 19, 1991, the State Board filed a motion

to dismiss the action, setting forth the scope of its respon-

sibilities for elections and its lack of authority or duty

under federal or state law to draw congressional district

boundaries. (R. Doc. 83). The State Board acknowledged

that it was bound by the terms of the 1981 redistricting

order and represented that it would implement any valid

redis..icting plan of the legislature or court; however, the

State Board “‘lack[ed] the capacity or legal interest to be

an adversary in this cause.” (/d.).

At a September 20, 1991 hearing, the district court de-

nied dismissal but, without objection from any of the plain-

tiffs/intervenors, it granted the State Board’s alternative

request for relief and ordered that the Board’s sole par-

ticipation in the litigation would be to implement the judg-

ment. (R. Doc. 86; Hastert I, 777 F. Supp. at 639; see also

App. 57-58). The State Board played no further role in

the proceedings until it responded to post-judgment peti-

tions for attorneys’ fees, advanced by several parties. (R.

Doc. 238).

During the pre-trial proceedings, the Hastert/Republicans

and Rosebrook/Democrats submitted and amended state-

wide redistricting maps, while proposals for the minority

districts were made by the Nieves, Chicago Urban League

and other plaintiffs. See Hastert I, 777 F. Supp. at 638-39

& 641 n.8. However, by court direction, no party could

3 Under the Illinois Constitution, the State Board of Elections

was created to have — supervision over the administration

of the registration and election laws throughout the State.” III.

Const. 1970, art. III, §5. The State Board is a bipartisan board

of eight members in which no political party has a majority in

membership. Jd.; 10 ILCS 5/1A-2 (1992).

=

advance more than one plan, leading to the alignment and

adoption of the map proposals. Jd. at 640 & n.4.

The plaintiffs and intervenors entered into stipulations

(i.e., the ideal population of a district and the need for

four minority districts), and settled differences among

themselves to narrow or remove issues. Jd. at 640. For

example, all parties ultimately agreed to an elongated C-

shaped configuration for the Hispanic congressional dis-

trict. /d. at 648 & n.24. Also, the Scott intervenors obtained

an accommodation from the Hastert/Republicans whose

proposed statewide map divided counties in the East St.

Louis area and “illegally and intentionally” diluted the

votes of African-Americans. (R. Doc. 112). The Hastert

plaintiffs—recognizing that this “intervention was caused

by something that we inadvertently did’ (R. Doc. 227,

Ex. A, Tr. at 37)—quickly stipulated with the Scott inter-

venors to a change in their proposal. (See App. 61-62).

The district court presided over a two-day trial in Oc-

tober 1991. On November 6, 1991, the district court issued

its decision (Hastert I). (R. Doc. 224 & 225). The court

declared the existing map unconstitutional and adopted

the Hastert/Republican map, while finding that both the

Hastert and Rosebrook proposals would have met consti-

tutional and legal requirements had they been enacted by

the state legislature. Hastert I, 777 F. Supp. at 641 &

n.7, 662. The State Board was ordered to implement the

new redistricting map, and the parties were ordered to

bear their own costs. Id. at 662.

Attorneys’ Fees

Various plaintiffs and intervenors moved to modify the

judgment to permit attorneys’ fees and costs under 42

U.S.C. §§ 1973i(e) and 1988. (App. 57). On January 17,

ailic

1992, the district court’s decision denied “prevailing par-

ty” status to the Scott and Chicago Urban League par-

ties, but granted such status to the Hastert plaintiffs

(whose map was adopted) and the Nieves plaintiffs (who

adopted the Republican map and played a role in the crea-

tion of the Hispanic district). (App. 61-63; Hastert v. State

Board of Elections, 794 F. Supp. 254, 259 (N.D. Ill. 1992)

(“Hastert IT’’)). However, the court went on to deny the

award of fees to these prevailing parties, concluding that

the legislative and political lobbying process had been

shifted to the federal court from the legislature, where

expenses were not compensable. According to the district

court, neither the purpose of fee-shifting statutes nor the

equities in this case would be served by awarding fees.

(App. 63-66).

On December 17, 1993 and on June 1, 1994 upon rehear-

ing, a divided panel of the Court of Appeals affirmed in

part and reversed in part the attorneys’ fees ruling of

the district court. (App. 1-29; App. 30-53). The full panel

agreed to affirm the prevailing party status of the Hastert

and Nieves plaintiffs and, by reversal, to grant such status

to the Scott intervenors. (App. 15-21, 25; App. 42-44, 50).

On rehearing, the majority alone reversed the status of

the Chicago Urban League and ruled that the League also

prevailed. (App. 18-21, 25-27). The Court of Appeals com-

pared the winning and losing plaintiffs in order to iden-

tify the prevailing parties. (App. 15).

In both of its opinions, the two-member majority of the

Court of Appeals reversed the three-judge district court

panel’s decision to deny fees on special circumstances

grounds. (App. 22-24; App. 46-48). The majority deemed

the discretion to deny fees quite narrow, and believed the

Illinois taxpayers must pay for the legislature’s derelic-

tion. (/d.). The dissent would have found no abuse of dis-

= =

cretion by the lower court in denying a fee award, believ-

ing that an award would be unfair where 1) the State

Board played no active or adversarial role and agreed to

enforce the judgment, 2) the litigation involved plaintiff

groups vying against one another for partisan interests,

and 3) the redistricting process had been shifted from the

legislature to the federal courts. (App. 27-29; App. 50-53).4

On remand, the State Board thus will be exposed to

attorneys’ fees claims from the Hastert, Nieves, Scott and

Chicago Urban League parties who were last represented

by eight law firms or organizations before the Court of

Appeals. For reference, the Hastert plaintiffs alone had

accrued approximately $450,000 in attorneys’ fees through

the district court’s denial of fees. (Hastert Appellants’ Br.

at 18 n.13). The other three prevailing parties have not

indicated their potential fee requests.

4 With respect to the Rosebrook plaintiffs, the Court of Appeals

first ruled that its jurisdiction was limited to the narrow review

of the district court’s denial of a motion to reconsider a prior order

that precluded the pursuit of fees. App. 67-69; App. 35-36, 41).

On rehearing, the Court found that the Rosebrook plaintiffs’ notice

of appeal had secured review of the merits of the fee decision

(App. 13-14), but it concluded that these plaintiffs were not entitled

to prevailing party status since their proposal was not adopted.

(App. 21-22).

—~10—

REASONS FOR GRANTING THE WRIT

I.

THIS COURT SHOULD GRANT CERTIORARI TO AD-

DRESS A PLAINTIFF’S ENTITLEMENT TO ATTORNEYS’

FEES FROM A NOMINAL AND NEUTRAL STATE DE-

FENDANT WHEN THE PLAINTIFF HAS PREVAILED

ONLY AGAINST COMPETING PLAINTIFFS, IN ORDER

TO ENSURE THAT FEDERAL COURTS UNIFORMLY

ENFORCE FEE-SHIFTING STATUTES AGAINST DE-

FENDANTS ONLY IF THEY ARE ACTUALLY FOUND

LIABLE FOR VIOLATIONS OF FEDERAL LAW.

Under federal fee-shifting statutes, the factors to be con-

sidered in identifying ‘‘prevailing party”’ status in differ-

ent contexts have been elaborated upon by this Court.

See Texas State Teachers Association v. Garland Indepen-

dent School District, 489 U.S. 82 (1989) (“Garland’’) (sum-

marizing case law analysis). While a party’s success in the

litigation is a general threshold requirement, this Court

has recognized that the attorney’s fee inquiry must ex-

tend beyond a mere claim of victory to an analysis of the

nature of the dispute and relief and of the relationship

of the winning and losing parties.5

This litigation presents the unaddressed question of a

nominal defendant’s liability for fees when the substan-

5 See, e.g., Kentucky v. Graham, 473 U.S. 159 (1985) (plaintiff did

not prevail against Commonwealth despite successful settlement

with employees sued in personal capacities); Rhodes v. Stewart,

488 U.S. 1 (1988) (plaintiffs were not prevailing parties with a

favorable judgment absent relief that alters defendants’ behavior

toward plaintiffs); Christiansburg Garment Co. v. Equal Employ-

ment Opportunity Commission, 434 U.S. 412 (1978) (aint S ac-

tion must be frivolous if defendant is to “ prevail” for fee purposes);

tus sen es Federation of Flight Amends v. Zipes, 491 U.S.

754 (1989) (plaintiffs’ success over losing intervenors alone insuffi-

cient for fee award).

=:

tive controversy is only between plaintiff groups and “win-

ning” plaintiffs are identified for their relative success

against other plaintiffs, rather than against the nominal

and neutral defendant. In this category of cases, while

some plaintiffs may indeed obtain favorable relief, the ra-

tionale for departing from the American Rule on costs by ,

shifting fee liability to one’s opponent is absent. Unlike

the justification for fee shifting in normal cases, a plain-

tiff’s victory in the present type of case does not repre-

sent establishment of the defendant’s violation of federal

law, and the “losing” opponent is not the defendant. In

the context of competing plaintiffs and a neutral defen-

dant, this case asks whether a plaintiff has “prevailing

party” status against a nominal defendant when the plain-

tiff succeeds but the defendant has not “‘lost’’.

Fee awards are only permitted when a party has pre-

vailed on the merits. Hanrahan v. Hampton, 446 U.S.

754, 758 (1980). From a plaintiff's viewpoint, prevailing

party status is obtained by succeeding on “any significant

issue in litigation which achieves some of the benefit sought”

in bringing suit. Hensley v. Eckerhart, 461 U.S. 424, 433

(1983). See also Garland, 489 U.S. at 790 (rejecting a re-

quirement to succeed on the “central issue’’). In the pres-

ent case, the Court of Appeals applied only this standard,

granting prevailing party status to those plaintiffs whose

proposals were adopted, but it acknowledged that the

“issue in litigation’”’ was between plaintiffs. (App. 15-21,

42-43). In other words, the court recognized that it was

not resolving a plaintiff/defendant dispute.

From a defendant’s standpoint, this latter observation

is the crucial one. This Court has repeatedly ‘emphasized

the crucial connection between liability for violation of fed-

eral law and liability for attorney’s fees.” Zipes, 491 U.S.

at 762. Where a defendant has not been prevailed against,

——————————————————eO

federal fee-shifting statutes do not authorize an award

against that defendant. Farrar v. Hobby, __. U.S. ___.,

113 S. Ct. 566, 572 (1992); Kentucky v. Graham, 473 U.S.

at 165. In order to “prevail” against a particular defen-

dant, the plaintiff must be able to point to a resolution

of the dispute that materially alters the legal relationship

between itself and the defendant. Farrar, ___._ U.S. at

___, 118 S. Ct. at 572-73; Garland, 489 U.S. at 792-93;

see Rhodes v. Stewart, 488 U.S. 1, 3-4 (1988); Hewitt v.

Helms, 482 U.S. 755, 761 (1987).

The latter standards, if applied in a case such as this,

defeat prevailing party status as against a nominal defen-

dant, despite some plaintiffs’ achievement of relief relative

to other plaintiffs. Here, the Seventh Circuit made no

finding of federal law violation against the defendant, and

the litigation resolved only the disputes existing between

plaintiffs.

From the inception, the State Board stood willing to

implement a new and valid redistricting plan without the

necessity of a judgment against it. (R. Doc. 83). Cf. Farrar,

___ U.S. at ____, 118 S. Ct. at 574 Gudgment for nominal

damages modifies defendant’s behavior because it forces

defendant to pay money he otherwise would not pay). The

litigation settled which proposal would be implemented

given the “parochial interests and partisan concerns” of

the competing plaintiffs (App. 65)—the same competing in-

terests that prevented a legislative resolution.

In enacting fee-shifting statutes, Congress intended that

the plaintiff serve as its chosen instrument in vindicating

a policy of high priority against the violator of federal

law. See Christiansburg, 434 U.S. at 418. Policy considera-

tions of fee-shifting statutes are not served in cases such

as this, where the plaintiffs litigate their otherwise polli-

tical disputes.

-_

The imposition of fees in this matter raises theoretical

and very practical aspects of fee-shifting statutes, such

as: 1) how will the reasonableness of claimed attorney time

be determined when one plaintiff “prevails” over other

plaintiffs?; 2) would the latters’ disinterest in compromise

permit the prevailing party to obtain compensation for

succeeding over a perhaps unreasonable opponent in order

to inexplicably punish the State Board?; 3) how does the

State Board identify for itself and the district court any

non-compensable hours, when the Board, which lacks the

redistricting authority, holds no historical knowledge of

the litigation and could not, for example, have extracted

a compromise or made an offer of judgment, pursuant to

Rule 68 of the Federal Rules of Civil Procedure?; and 4)

if plaintiffs may prevail between themselves and yet never

be exposed to an opponent’s fees, what disincentive to

litigation exists when the State Board must pay the fees?

While the State Board recognizes that attorneys’ fees

have been awarded in redistricting cases, none of those

decisions has examined prevailing party status in light of

the more limited standards pronounced by this Court since

1985. See, e.g., In re Illinois Congressional Districts, 704

F.2d 380 (7th Cir. 1983); In re Kansas Congressional Dis-

tricts Reapportionment Cases, 745 F.2d 610 (10th Cir.

1984). This Court is, therefore, urged to grant a writ of

certiorari to examine this aspect of the availability of at-

torneys’ fees awards on the basis of prevailing party

status.

a

Il.

THE LOWER COURTS REQUIRE DIRECTION ON THE

PARAMETERS OF THE JUDICIALLY-CREATED EXCEP-

TION TO THE GRANT OF ATTORNEYS’ FEES WHEN

FOUR OF SIX FEDERAL JURISTS WOULD HAVE DE-

NIED FEES AS UNJUST AND THE TWO-MEMBER MaA-

JORITY DISAGREED.

Even if some plaintiffs had obtained prevailing party

status through their litigation, the three-judge district

court held discretion to deny an award of fees. When cir-

cumstances would render an award unjust, the court may

withhold fees from a prevailing party. Hensley, 461 U.S.

at 429; Farrar, ___._ US. at ___, 113 S. Ct. at 576-77

(O’Conner, J., concurring). See Zipes, 491 U.S. at 760

(“({IIn some circumstances, the interests of the losing party

trump those of the prevailing party.’’).

Ignoring the abuse of discretion standard requiring affirm-

ance if any rational person could agree with the district

court, the two-judge majority plainly refused to recognize

the three-judge district court’s conclusion, with which the

dissent would have concurred. On the same set of facts,

six federal jurists have spoken on the application of the

special circumstances exception to awarding fees and ar-

rived at opposite conclusions, exemplifying the need for

this Court’s direction.

For example, the majority was willing to accept as true

the district court’s conclusion that the plaintiffs’ lobby-

ing efforts had been shifted from the legislative to the

federal judicial forum. (App. 23). Nevertheless, it obliter-

ated the special circumstances exception by finding that

a state agency may be liable for the prevailing parties’

fees. (/d., citing Hutto v. Finney, 437 U.S. 678, 694 (1978)).

The majority failed to recognize that the exception must

exist despite plaintiffs’ prevailing status and the defen-

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otiiinn

dant’s lack of immunity under Hutto, or it would have

no meaning.

While the State Board contends that the true nature

of the plaintiffs’ litigation should have prevented prevail-

ing party status as against the nominal defendant, the dis-

trict court and the dissenting appellate judge viewed the

particular characteristics of this type of litigation as justi-

ficati-n for withholding a fee award. Addressing the

parameters of the special circumstances exception would

avoid the confusion over its application and curtail un-

necessary fee litigation.

CONCLUSION

For these reasons, the Illinois State Board of Elections

and the Board members respectfully ask this Court to

issue a writ of certiorari to review the opinion and judg-

ment of the United States Court of Appeals for the

Seventh Circuit.

Respectfully submitted,

ROLAND W. BURRIS

Attorney General of Illinois

ROSALYN B. KAPLAN

Solicitor General of Illinois

Counsel of Record

DEBORAH L. AHLSTRAND

Assistant Attorney General

100 West Randolph Street

12th Floor

Chicago, Illinois 60601

(312) 814-3698

Attorneys for Petitioners