Opposition Brief — Illinois State Board of Elections v. Hastert

No. 94-457

In The

Supreme Court of the United States

October Term, 1994

+

ELECTIONS, et al.,

Petitioners,

ILLINOIS STATE BOARD OT

DENNIS J]. HASTERT, et al.,

Respondents.

+

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Seventh Circuit

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BRIEF IN OPPOSITION

— - = = .

ARTURO JAUREGUI TyRONE C. FAHNER

MEXxICAN-AMERICAN

LEGAL DEFENSE AND

EDUCATION FUND

542 South Dearborn

Chicago, IL 60605

(312) 427-9363

lames D. HoLZHAUER

Counsel of Record

Georce J. TZANETOPOULOS

Lori E. LiGHTFOOT

Mayer, Brown & Piatt

190 South LaSalle

Chicago, IL 60603

(312) 782-0600

Counsel for Respondents

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TABLE OF CONTENTS

Page

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es ee ee ne en re er re ee re ree 2

REASONS FOR DENYING THE PETITION.........

I. THE COURT OF APPEALS CORRECTLY HELD

THAT ATTORNEYS’ FEES MAY BE AWARDED

AGAINST A NOMINAL STATE DEFENDANT... 8

Il. THE COURT OF APPEALS’ APPLICATION OF

THE “SPECIAL CIRCUMSTANCES” TEST DOES

NOT WARRANT SUPREME COURT REVIEW.... 13

aS re ee er ey er 6 re ree 15

TABLE OF AUTHORITIES

Page

CASES:

Blanchard v. Bergeron, 489 U.S. 87 (1989)........... 6, 14

Coalition for Basic Human Needs v. King, 691 F.2d

er Caen Gib. SOE ss 52d Cetusareweereee ne ..11, 12

Crosby v. Bowling, 683 F.2d 1068 (7th Cir. 1982)....8, 11

Farrar v. Honey, 119 SAA. SOG CISPR occ cc cecsncwnesss y

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

prewelt v¥. Pients, 462 US. Fae Caper Bsc oc wkaceseuvewes 10

Independent Federation of Flight Attendants v. Zipes,

Pe Sa FO ERs bbe pan vcccbnerseeree eet ee g

In re Illinois Congressional Districts Reapportionment

Casts, 700 F.a0 See GR Ci. TO + ccksencedeetins 10

In re Illinois Congressional Districts Reapportionment

Cases, No. 81-C-3915 (N.D. Ill. Dec. 3, 1981),

aff’d sub nom. Ryan v. Otto, 454 U.S. 1130 (1982) .... 12

In re Kansas Congressional Districts Reapportionment

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

International Oceanic Enterprises, Inc. v. Menton, 614

Ad SOS Bhs Cle, TODD oo oo vce coos ncvde xe cedoese 11

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

Love v. Deal, 5 F.3d 1406 (11th Cir. 1993)............ 10

New York Gaslight Club, Inc. v. Carey, 447 U.S. 54

CED cas chick acased sb bxeeds cheers 8

People ex rel. Scott v. Kerner, 32 Ill. 2d 539, 208

ek ee OB. Per rrrrr rrr rrr ori ree: 12

People ex rel. Scott v. Kerner, 33 Ill. 2d 460, 211

8 eee 8. errrrrr rr rrr rer en i ee 12

ill

TABLE OF AUTHORITIES —- Continued

Page

Pitochelli v. Town of Johnston, 996 F.2d 1209, 1993

i ee. Laem 16024 (ist Cir. 1995)............. 10

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

Rose v. Heintz, 806 F.2d 389 (2d Cir. 1986)........... 11

Skolnick v. State Electoral Board, 336 F. Supp. 839

IE 12

Supreme Court of Virginia v. Consumers Union, 446

es a 6a bk das 6k ws peo pee ee 8, 10

Texas State Teachers Ass'n v. Garland Independent

School District, 489 U.S. 782 (1989) ................. Y

Venegas v. Mitchell, 495 U.S. 82 (1990)............. 6, 14

Watkins v. Fordice, 7 F.3d 453 (5th Cir. 1993)......... 10

Wilson v. Stocker, 819 F.2d 943 (10th Cir. 1987)....11, 12

STATUTES:

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ek eke bir bcc e estes sees reeds passim

EE 2

No. 94-457

¢

In The

Supreme Court of the United States

October Term, 1994

e

ILLINOIS STATE BOARD OF ELECTIONS, et al.,

Petitioners,

DENNIS J. HASTERT, et al.,

Respondents.

+

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Seventh Circuit

+

BRIEF IN OPPOSITION

+

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

Porter, Philip M. Crane, Henry J. Hyde, Thomas W. Ewing

and Robert H. Michel (hereinafter referred to together as

“Respondents” or the “Hastert plaintiffs”), submit this

brief in opposition to the petition for a writ of certiorari

in this case.!

' The “Nieves Hispanic plaintiffs,” represented in this mat-

ter by the Mexican-American Legal Defense and Education

Fund, join in this Brief in Opposition.

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-29) is

reported at 28 F.3d 1430. The memorandum opinion and

order of the three-judge district court denying attorneys’

fees (Pet. App. 55-66) is reported at 794 F. Supp. 254.

¢

JURISDICTION

The original judgment of the court of appeals was

entered on December 17, 1993. Pet. App. 32. The court of

appeals granted rehearing and issued an amended opin-

ion and order on June 1, 1994. Id. at 4. By order dated

August 29, 1994 Justice Stevens extended the time for

filing the petition for certiorari up to and including Sep-

tember 7, 1994. The jurisdiction of this Court is invoked

under 28 U.S.C. § 1254(1).

STATEMENT

The issue in this case is whether the federal courts

have the authority under two fee-shifting statutes — 42

U.S.C. § 1973l(e) and 42 U.S.C. § 1988 - to award attor-

neys’ fees against a nominal state defendant when the

state legislature fails to redraw congressional districts as

required following a decennial census. The Seventh Cir-

cuit, following the decisions of every other court of

appeals to consider the issue, held that fees could be

awarded against the state defendant. Pet. App. 23 & n.16.

The court of appeals also held that under the particular

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facts of this case, no “special circumstances” existed war-

ranting denial of fees. Id. at 22-24. No “special and impor-

tant reasons” (Sup: Ct. R. 10.1) exist that would justify

review of this routine and fact-bound attorneys’ fees deci-

sion.

1. As a result of the 1990 census, the number of

congressional seats apportioned to Illinois decreased

from 22 to 20. Under state law, the Illinois legislature was

required to develop a congressional redistricting plan by

June 30, 1991, but failed to do so. On June 27, 1991 — after

it became apparent that the legislature was not going to

adopt a redistricting plan before recessing for the sum-

mer — the Hastert plaintiffs filed an action seeking: (1) a

declaration that the congressional districting plan then in

place was unconstitutional; (2) an injunction prohibiting

the Illinois State Board of Elections (the “State Board”)

from conducting the 1992 elections using the existing

districts; and (3) a declaration that the statewide redis-

tricting plan that they had prepared be put into effect.

Pet. App. 5-6.

The Hastert piaintiffs are the Republican Party mem-

bers of the Illinois congressional delegation. Several other

parties subsequently filed similar lawsuits: a group of

Hispanic and African-American voters (the “Nieves

plaintiffs”); a group acting on behalf of the Democratic

Party members of Congress (the “Rosebrook plaintiffs”);

a group of voters represented by the Chicago Urban

League (the “Chicago Urban League plaintiffs”); U.S.

Representatives Cardiss Collins and Charles Hayes and

voters from their districts (the “Collins plaintiffs”); and a

group affiliated with local NAACP chapters (the “Scott

plaintiffs”). Pet. App. 5-7. All of the lawsuits were consoli-

dated with the Hastert action. The Hastert and Nieves

plaintiffs joined together to support a single statewide

redistricting map. The Scott and Chicago Urban League

plaintiffs were interested only in a relatively small por-

tion of the state map, but they also came to support the

Hastert plan. Id. at 15-19. The Rosebrook and Collins

plaintiffs supported a different redistricting plan. Id. at

20-22.

2. The three-judge district court issued its decision

on the merits on November 6, 1991, adopting the Hastert

plan. Pet. App. 7. At the very end of its opinion, the court

ordered that “all parties to these consolidated cases bear

their own costs.” 777 F. Supp. at 662. The Hastert, Nieves,

Chicago Urban League and Scott plaintiffs filed timely

Rule 59(e) motions to alter or amend the judgment, ask-

ing the court to award them attorneys’ fees against the

State Board. The district court denied those motions on

January 17, 1992. Pet. App. 55-66.

The court held that the Hastert and Nieves plaintiffs

were prevailing parties and thus would ordinarily be

eligible for fees:

This court ultimately adopted the congressional

district plan submitted by the Hastert plaintiffs.

The Nieves plaintiffs formally adopted the Hast-

ert plan and clearly played a critical role in its

development. * * * Thus, the adoption of the

Hastert plan rendered both the Hastert and

Nieves plaintiffs prevailing parties on the signifi-

cant issues in litigation.

Pet. App. 63. The court held that the Collins, Rosebrook,

Scott and Chicago Urban League plaintiffs were not pre-

vailing parties. Id. at 61-63.

Even though it held that the Hastert and Nieves

plaintiffs were prevailing parties, the district court

denied their applications for fees. Pet. App. 63-66. The

court found that two “special circumstances” existed that

would render a fees award unjust: (1) the Hastert and

Nieves plaintiffs, as elected officials and community

leaders, “do not appear to be drawn from the ranks of the

disempowered and financially disadvantaged citizenry

that Congress had in mind when enacting §§ 1973/(e) and

1988” (Id. at 64); and (2) the plaintiffs “shifted” the redis-

tricting dispute to the federal courts and away from the

state legislature, where they would have had to bear their

own costs. Id. at 65. In concluding that the prevailing

plaintiffs were not entitled to attorneys’ fees, the district

court did not rely upon or discuss the status of the State

Board as a nominal defendant.

3. The Seventh Circuit reversed. The court of

appeals held that the Hastert and Nieves plaintiffs, the

groups the district court held to be “prevailing parties,”

were entitled to attorneys’ fees. Pet. App. 22-24. The court

also held that the Scott and Chicago Urban League plain-

tiffs were prevailing parties and were entitled to fees. Id.

at 16-21.

The Seventh Circuit rejected the district court’s asser-

tion that fees should be denied because the plaintiffs

were not “drawn from the ranks of the disempowered

and financially disadvantaged citizenry that Congress

had in mind when enacting § 1973/(e) and 1988”:

The district court is wrong on this point for two

reasons. First, despite the fact that certain of the

plaintiffs in this matter were elected officials,

there is no evidence that they were particularly

wealthy. Second, and more importantly, the

Supreme Court has consistently held that a

plaintiff’s ability to pay for legal representation

is not a special circumstance justifying denial of

attorneys’ fees. See, e.g., Venegas v. Mitchell, 495

U.S. 82, 87-88 (1990); Blanchard v. Bergeron, 489

U.S. 87, 94 (1989).

Id. at 22-23. The court of appeals also disagreed with the

district court’s holding that fees should be denied

because the plaintiffs shifted the dispute from the state

legislature to the federal courts:

This * * * is hardly a reason to deny attorneys’

fees. It is surely regrettable that the Illinois Gen-

eral Assembly was unable to enact a new con-

gressional district scheme and that the

taxpayers of the State of Illinois must now pay

for their dereliction. But such is the case when-

ever the political branches of government fail to

vindicate important rights and the affected par-

ties must seek a judicial hearing.

Id. at 23.

In one sentence of a footnote, the Seventh Circuit

rejected the State Board’s argument that fees should not

be assessed against it because it was merely a nominal

defendant: “It is of no consequence that the State Board

of Elections played no active role in the proceedings and

agreed to enforce whatever plan the district court

adopted, since fees may be taxed even against entities

whose role is limited to enforcement of regulations they

played no role in promulgating.” Pet. App. 23 n. 16.

REASONS FOR DENYING THE PETITION

In its petition, the State Board raises as its principal

argument a point that was little more than an after-

thought in the courts below: that fees cannot be awarded

against a nominal state defendant that takes no active

part in the litigation. The court of appeals dedicated only

one sentence in a footnote to that issue, and the district

court ignored it entirely. Review of the issue raised by the

petition on the scanty record of this case would hardly be

prudent.

Even if the court of appeals and the district court had

fully considered and discussed the issue raised by the

petition, it would not warrant review by this Court. The

State Board does not point to any conflict among the

circuits on the issue; indeed, it acknowledges that the

other redistricting decisions have uniformly awarded

fees. Pet. 13. The State Board ciaims that recent attorneys’

fees decisions by this Court call for a reexamination of

this previously settled issue. However, none of the deci-

sions cited by the State Board address the issue raised by

the petition or cast any doubt whatsoever on the propri-

ety of the common practice of awarding fees against

nominal state defendants charged with enforcing invalid

laws or regulations.

I. THE COURT OF APPEALS CORRECTLY HELD

THAT ATTORNEYS’ FEES MAY BE AWARDED

AGAINST A NOMINAL STATE DEFENDANT.

1. The Civil Rights Attorneys’ Fees Act of 1976, 42

U.S.C. § 1988, provides that “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.”

The Voting Rights Act includes a similar provision. 42

U.S.C. § 1973l(e). Although these statutes refer to the

district court’s discretion, this Court has repeatedly held

that “the court’s discretion to deny a fee award to a

prevailing party is narrow.” New York Gaslight Club, Inc. v.

Carey, 447 U.S. 54, 68 (1980). Indeed, “a prevailing plain-

tiff should ordinarily recover an attorney’s fee unless

special circumstances would render such an award

unjust.” Hensley v. Eckerhart, 461 U.S. 424, 429 (1983).

The fact that the particular state entity named as the

defendant may be regarded as a “nominal and neutral

defendant” is not a special circumstance warranting

denial of fees. As this Court held in Supreme Court of

Virginia v. Consumers Union, 446 U.S. 719, 739 (1980),

“[flee awards against enforcement officials are run-of-the-

mill occurrences, even though, on occasion, had a state

legislature acted or reacted in a different or more timely

manner, there would have been no need for a lawsuit or

for an injunction.” See also Crosby v. Bowling, 683 F.2d

1068, 1073 (7th Cir. 1982) (“fees can properly be taxed

avainst those whose role is limited to enforcement of

regulations that they had no role in promulgating”). The

court of appeals’ decision is but another of these “run-of-

the-mill occurrences.”

The State Board argues (Pet. 10-12 & n. 5) that several

recent decisions of this Court should be interpreted to

preclude an award of fees against a “nominal and neutral

state defendant” that did not play an active role in the

litigation. But none of the cases cited by the State Board

address that issue and none call into question the long-

settled law allowing fee awards against nominal state

defendants. In Farrar v. Hobby, 113 S.Ct. 566, 575 (1992),

the Court held that when a plaintiff seeks substantial

compensatory damages, but “recovers only nominal dam-

ages because of his failure to prove an essential element

of his claim for monetary relief,” he is not entitled to

attorneys’ fees. That holding, of course, says nothing

about this case, in which the prevailing plaintiffs received

all of the relief they sought.

Kentucky v. Graham, 473 U.S. 159 (1985), holds that

Section 1988 does not provide for a recovery of fees

against a government entity when the plaintiff only sues

government employees in their personal capacities. The

Court emphasized that when government employees are

sued in their official capacities, an award of fees is appro-

priate. 473 U.S. at 164-166. In this case, the State Board

and its members were sued in their official capacities, so

Kentucky v. Graham has no application.

Independent Federation of Flight Attendants v. Zipes, 491

U.S. 754 (1989), held that fees could not be awarded in a

Title VII action against nongovernmental intervenors who

did not violate any federal law. Texas State Teachers Ass'n

v. Garland Independent School District, 489 U.S. 782, 791-792

(1989), held that a plaintiff was entitled to “prevailing

party” status if it “succeeded on ‘any significant issue in

litigation which achieve[d] some of the benefit the parties

10

sought in bringing suit’.” Rhodes v. Stewart, 488 U.S. 1

(1988), and Hewitt v. Helms, 482 U.S. 755 (1987), both held

that a plaintiff is not a prevailing party if he does not

obtain any relief on the merits of his claim. None of these

decisions have any application to this case; none of them

decide the attorneys’ fees liability of a nominal state

defendant; and none of them overrule sub silentio Supreme

Court of Virginia v. Consumers Union or any of the other

cases holding that fees may be awarded against nominal

state defendants.

2. In light of the settled law that fees can be

awarded against nominal state defendants, it is not sur-

prising that in other congressional and legislative redis-

tricting cases - including cases decided after the

decisions the State Board relies upon — courts of appeals

have routinely awarded attorneys’ fees to the prevailing

party (i.e., the party responsible for the districting map

that was finally adopted by the court). See, e.g., Watkins v.

Fordice, 7 F.3d 453 (5th Cir. 1993); Love v. Deal, 5 F.3d 1406

(11th Cir. 1993); Pitochelli v. Town of Jonnston, 996 F.2d

1209, 1993 U.S. App. LEXIS 16814 (1st Cir. 1993) (unre-

ported decision); In re Kansas Congressional Districts Reap-

portionment Cases, 745 F.2d 610 (10th Cir. 1984); In re

Illinois Congressional Districts Reapportionment Cases, 704

F.2d 380 (7th Cir. 1983). Indeed, we are aware of no court

of appeals decision holding that an award of fees to the

prevailing party in a redistricting case would be unjust,

even though redistricting cases are typically brought

against nominal state defendants charged with carrying

out election laws.

11

In other contexts, the courts of appeals have agreed

that fees may be awarded against nominal state defen-

dants. For example, in Crosby v. Bowling, 683 F.2d 1068,

1073 (7th Cir. 1982), the Seventh Circuit held that “fees

can properly be taxed against those whose role is limited

to enforcement of regulations that they had no role in

promulgating.” In that case, the court of appeals upheld

an award of fees against officials of the Illinois Depart-

ment of Public Aid who claimed that they were merely

enforcing federal regulations. The court held that the

state defendants’ limited authority was not a special cir-

cumstance that would make a fee award unjust. “The

state defendants appear to overlook the fact that they

were named parties to Crosby’s suit and that relief was

granted against them. * * * [T]he state defendants in the

instant case were directly responsible for enforcement of

the state regulations of which the plaintiffs complained.”

Id. at 1074. Other courts of appeals have also held that the

fact that state or local enforcement officials were “mere

functionaries” or did nothing to enforce an unconstitu-

tional statute were not special circumstances that would

make a fee award against the state unjust. See, e.g., Wilson

v. Stocker, 819 F.2d 943, 951 (10th Cir. 1987); Rose v. Heintz,

806 F.2d 389, 392 (2d Cir. 1986); Coalition for Basic Human

Needs v. King, 691 F.2d 597, 602-603 (1st Cir. 1982); Interna-

tional Oceanic Enterprises, Inc. v. Menton, 614 F.2d 502,

503-504 (5th Cir. 1980).

3. The State Board’s petition supplies no good rea-

son for disturbing this uniform line of precedent. The

facts of this dispute make it clear that there would be

nothing inequitable or unjust about having the State pay

plaintiffs’ attorneys’ fees and costs. The State is obligated

12

to enact a congressional districting plan that meets the

requirements of the Constitution and federal law. The

State did not fulfill that obligation. In fact, the Illinois

General Assembly has not carried out its congressional

redistricting obligations for 30 years. The Hastert plain-

tiffs were therefore forced to go to court, propose their

own map of congressional districts, and litigate with a

host of other plaintiffs over what map was “correct”. Fee

awards are not intended to punish the state, but to com-

pensate plaintiffs for the costs incurred in vindicating

important federal rights. Wilson v. Stocker, 819 F.2d at 951;

Coalition for Basic Human Needs v. King, 691 F.2d at 603.

Because the prevailing plaintiffs went to court to obtain a

valid district map, they are entitled to attorneys’ fees.

The State Board is being represented by the Illinois

Attorney General in this case; it does not dispute that any

fee award would ultimately be paid out of the State

Treasury and not out of the pockets of any of the individ-

ual defendants. The State cannot avoid its liability for

2 As the district court noted (777 F. Supp. at 641 & n.6), the

Illinois General Assembly last enacted a Congressional redis-

tricting plan following the 1960 census, and that plan was held

to be unconstitutional. People ex rel. Scott v. Kerner, 32 Ill. 2d 539,

208 N.E.2d 561 (1965). The legislature did not adopt a new

redistricting plan at that point, but instead left the task to the

courts. People ex rel. Scott v. Kerner, 33 Ill. 2d 460, 211 N.E.2d 736

(1965). Following the 1970 census and again following the 1980

census, the legislature failed to adopt a redistricting plan and

the courts were required to choose between competing plans.

See Skolnick v. State Electoral Board, 336 F. Supp. 839 (N.D. III.

1971); In re Illinois Congressional Districts Reapportionment Cases,

No. 81-C-3915 (N.D. Ill. Dec. 3, 1981), aff’d sub nom. Ryan v. Otto,

454 U.S. 1130 (1982).

13

attorneys’ fees by hiding behind the nominal status of the

State Board.

The standards developed by this Court, and further

developed by the courts of appeal, have withstood the

test of time and have served well the congressional intent

underlying the enactment of the attorneys’ fee statutes.

The current standards are simple and fair to all litigants -

wealthy and poor alike. Those standards properly focus

on the outcome of the litigation. The State Board would

have this Court examine instead the role defendants

played during the litigation, and the extent to which the

nominal state party named as the defendant opposed the

relief sought by the plaintiffs. In light of the nature of

reapportionment cases, and the myriad of interests

involved, that task would be all but impossible to accom-

plish.

Il. THE COURT OF APPEALS’ APPLICATION OF

THE “SPECIAL CIRCUMSTANCES” TEST DOES

NOT WARRANT SUPREME COURT REVIEW.

The State Board’s second argument (Pet. 14-15)

amounts to nothing more than a claim that under the

particular facts of this case, the court of appeals misap-

plied the “special circumstances” test. The Seventh Cir-

cuit acknowledged that fees could be denied if “special

circumstances” would make an award unjust and agreed

that district courts have the discretion to deny fees in

appropriate cases. Pet. App. 22. Even if the court of

appeals misapplied the “special circumstances” test to the

fact of this case — and it did not misapply the test — that

factual dispute would not warrant review by this Court.

14

In any event, the Seventh Circuit’s rejection of the

two “special circumstances” relied upon by the district

court is clearly correct. There was no evidence in the

record that the plaintiffs were wealthy and able to afford

paid counsel, but even if they were this Court has made it

clear that the wealth and influence of a prevailing party is

not a special circumstance warranty denial of fees. Ven-

egas v. Mitchell, 495 U.S. 82, 87-88 (1990); Blanchard v.

Bergeron, 489 U.S. 87, 94 (1989). And, as the court of

appeals pointed out (Pet. App. 23), the fact that the state

legislature could have enacted a valid redistricting plan -

something it had not done since the 1950 census - is no

more a special circumstance than the fact that legislative

bodies could repeal other invalid laws. The State Board’s

assertion that the plaintiffs “shifted” the dispute to the

courts restates the obvious: the parties were required to

go to court to vindicate their rights and to accomplish

what should have been accomplished by the General

Assembly.

The Seventh Circuit properly held that the limited

“special circumstances” exception did not apply in this

case and that the Hastert and the Nieves plaintiffs

obtained not only some, but all of the relief they sought.

In these circumstances, the award of attorneys’ fees was

entirely proper and does not warrant further review.

*

15

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ARTURO JAUREGUI Tyrone C. FAHNER

MexICAN-AMERICAN James D. HoL_ZHAUER

LeGAL DEFENSE AND Counsel of Record

EDUCATION FUND GeorceE J. TZANETOPOULOS

542 South Dearborn Lori E. LiGHTroot

Chicago, IL 60605 Mayer, BROwN & PLAatT

(312) 427-9363 190 South LaSalle

Chicago, IL 60603

(312) 782-0600

Counsel for Respondents

October 1994