Opposition Brief — Statewide Reapportionment Advisory Committee v. Beasley

No. 96-1201 }

In the . —-

SUPREME COURT OF THE UNITED STATES

October Term, 1996

STATEWIDE REAPPORTIONMENT ADVISORY

COMMITTEE; WILLIAM GIBSON, Doctor; FREDERICK

CALHOUN JAMES, Bishop; HERBERT WILLIAMS,

Reverend; WILLIE B. OWENS; SOUTH CAROLINA

CONFERENCE OF THE NAACP BRANCHES; MICHAEL G.

BURTON, as Executive Director on behalf of the Republican

Party; WILLIAM L. COLLINS, II]; EARLY COPELAND;

WILLIAM PATRICK FLACK; FRANK E. GIBSON, III;

NANCY D. HAWK; and GUS ROBERTS,

Petitioners,

versus

DAVID M. BEASLEY, in his official capacity as Governor of

South Carolina; DAVID H. WILKINS, in his official capacity

as Speaker of the South Carolina house of Representatives,

and THE SOUTH CAROLINA SENATE,

Respondents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Fourth Circuit

BRIEF IN OPPOSITION

KENNETH P. WOODINGTON

Counsel of Record

Senior Assistant Attorney General

Post Office Box 11549

Columbia, South Carolina 29211

(803) 734-3680 [Additional Attorneys

Counsel for Respondent Wilkins Continued on Inside Cover]

CHARLES MOLONY CONDON

Attorney General for the

State of South Carolina

TREVA G. ASHWORTH

Deputy Attorney General

Counsel of Record

Post Office Box 11549

Columbia, South Carolina 29211

(803) 734-3680

Counsel for Respondent Wilkins

CHARLES E. CARPENTER, JR.

FREDERICK A. CRAWFORD

DEBORAH M. SHEFFIELD

Counsel of Record

Richardson, Plowden,

Grier & Howser, P.A.

Post Office Drawer 7788

Columbia, South Carolina 29202

Counsel for Respondent Beasley

QUESTION PRESENTED

Whether plaintiffs in a reapportionment case were prevailing parties

for the purposes of an attorneys’ fee award when their

reapportionment plan was rejected by a three-judge district court and

the state legislature subsequently adopted a plan of its own without

further substantive action by the three-judge court?

es

” 11

TABLE OF CONTENTS

Cee See UE on sn 5 6 0 6 wis 08. bk i

SAAR SAT Ae REO on os. 8: Sch ik. & tc AE ea iv

COUNTERSTATEMENT OF THE CASE ......... 3

REASONS FOR DENYING THE WRIT........... 7

A. The decision below correctly applied

Gis COMMS PUCCOEMNS, tk ass 7

B. Any conflict among circuits should await

resolution until a case arises in which

the issue is dispositive. = = = ...... 4

c. The Fourth Circuit’s rule in S-1 is the

preferable rule because it avoids the

examination of confusing threads

es ae ae ae 15

ill

RAO 0 eS ieee te eae eae ge . 20

TABLE OF AUTHORITIES

Cases:

American Council of the Blind v. Romer,

992 F.2d 248 Ge ee. ale ewe 19

Baumgartner v. Harrisburg Housing Authority,

ri me Fe fs A | eee 19

Beard v. Teska, 31 F.3d 942 (10th Cir. 1994) oe

Brown v. Local 58, IBEW, 76 F.3d 762

§2 SB) Sapa Bh ee ee. ee 19

Burton v. Sheheen, 793 F. Supp. 1329

(D.S.C. 1992)(three-judge court) ........ 4

Campbell v. Theodore, 113 S.Ct. 2954 (1993) ....... 6

Citizens Against Tax Waste v. Westerville City School,

985 F268 255. Cie; 19GS ei a Bee eee. 19

Craig v. Gregg Co., Texas, 988 F.2d 18 (5th Cir. 1993). . 19

Daggett v. Kimmelman, 811 F.2d 793 (3d Cir. 1987) ....9

Farrar v. Hobby, 506 U.S. 103 (1992) . . . 7,10,11,12,13,16

Hastert v. Illinois State board of Election Commissioners,

28 F.3d 1430 (7th Cir. 1993), cert. denied,

in S$O.45(ee... CONG AAS. 9

Hensley v. Eckerhart, 461 U.S. 424 (1983) .... .9,18,19

Hewitt v. Helms, 482 U.S. 755 (1987) . . . 10,12,13,15,16

Kilgour v. City of Pasadena, 53 F.3d 1007

ee SO Se kk a a a ae 18

Little Rock School Dist. v.

Pulaski Co. Special School Dist. No. 1,

ee a ee ee ee 19

McDaniel v. Sanchez, 452 U.S. 130 (1981)... ... 6 |

Maher v. Gagne, 448 U.S. 122 (1980) = ...... 12,16 |

Paris v. HUD, 988 F.2d 236 (lst Cir. 1993) a |

Pearson v. Fair, 980 F.2d 37 (ist Cir. 1992) .... 15

Stivers v. Pierce, 71 F.3d 732 (9th Cir. 1995) .. .15,19

S-1 v. Spangler, 832 F.2d 294 (4th Cir. 1987) .... 16

S-1 and S-2 v. State Board of Education

of North Carolina, 21 F.3d 49

(4th Cir. 1994)(en banc), cert. denied,

BaD DA eee. ste och vs 0 8s passim

SRAC v. Theodore, 113 S.Ct. 2954 (1993) ote de

Zinn by Blankenship v. Shalala, 35 F.3d 273

Geom Soee, DSpace, TE 8 18,19 )

Statutes:

eee, OMe ~ Wel opie van 5 |

RULC. 4 WM 2) OL aptosly at 9 |

PUSH. § 100 80) Re! SA ee 9,12 |

ee eT

No. 96-1201

In the

SUPREME COURT OF THE UNITED STATES

October Term, 1996

STATEWIDE REAPPORTIONMENT ADVISORY

COMMITTEE; WILLIAM GIBSON, Doctor; FREDERICK

CALHOUN JAMES, Bishop; HERBERT WILLIAMS,

Reverend; WILLIE B. OWENS; SOUTH CAROLINA

CONFERENCE OF THE NAACP BRANCHES; MICHAEL G.

BURTON, as Executive Director on behalf of the Republican

Party; WILLIAM L. COLLINS, III; EARLY COPELAND;

WILLIAM PATRICK FLACK; FRANK E. GIBSON, III;

NANCY D. HAWK; and GUS ROBERTS,

Petitioners,

versus

DAVID M. BEASLEY, in his official capacity as Governor of

South Carolina; DAVID H. WILKINS, in his official capacity

as Speaker of the South Carolina house of Representatives,

and THE SOUTH CAROLINA SENATE,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fourth Circuit

BRIEF IN OPPOSITION

Respondents Beasley and Wilkins respectfully submit this

2

Brief in Opposition to the Petition for Writ of Certiorari to

the United States Court of Appeals for the Fourth Circuit

filed on January 28, 1997 by Petitioners Statewide

‘Reapportionment Advisory Committee, et al.

3

COUNTERSTATEMENT OF THE CASE

This matter arises out of Petitioners’ claim for almost

$570,000 in attorneys’ fees. Almost all of that amount was

incurred in advancing reapportionment plans which the district

court emphatically rejected.

The underlying litigation consisted of two separate

reapportionment actions consolidated below and on appeal.

The first of the two cases was filed on October 4, 1991, by

Michael G. Burton, Executive Director of the South Carolina

Republican Party, and others. The principal defendants were

the presiding officers of the South Carolina Senate and House

of Representatives and the Governor. '

The second case was filed several weeks later on

October 31, 1991, by the self-styled Statewide

Reapportionment Advisory Committee (SRAC), the South

Carolina State Conference of the NAACP, and four individual

black citizens.

__ Both cases sought a declaration of the obvious fact that

the districts (House, Senate and Congressional) drawn

according to the 1980 Census were no longer constitutional

under the 1990 Census. Both cases also sought a declaration

| This brief was prepared entirely by counsel for Appellee Wilkins.

Counsel for Respondent David Beasley requested that this brief contain the

following statement, representing the position of Governor Beasley in this

appeal in his official capacity as Governor of South Carolina:

The Office of the Governor takes a neutral position on the

issues involved in this appeal and does not assert arguments

for or against the relief sought in the appeal but leaves the

matter to the discretion and judgment of the Court.

4

that the legislative process was deadlocked, and as a remedy

asked that court-ordered plans be imposed in order for the

1992 elections to be held on schedule.

The South Carolina General Assembly had

opportunities in both 1991 and early 1992 to enact

reapportionment plans, but was unsuccessful in so doing.

House and Senate plans passed both houses in January 1992,

but were vetoed by the Governor, and the vetoes were not

overridden. Each house passed a different Congressional

plan, but neither obtained the approval of the other house.

In January 1992, the district court entered a

scheduling order stating that the issue of legislative deadlock

would be heard in February 1992, with a hearing on the

parties’ submitted plans to begin several days later. The trial

before the three-judge panel began on February 19, 1992,

and concluded on March 6, 1992. At the hearings, the

parties presented their positions as to the appropriate size,

location and shape of the reapportioned districts. Also in

February 1992, all parties agreed that a legislative impasse

existed.

On May 1, 1992, the court issued an order rejecting

the plans proposed by the plaintiffs (and the defendants as

well), and instead ordering the use of plans of the court’s

own fashioning in the 1992 elections and until the South

Carolina General Assembly adopted lawful plans of its own.

Burton v. Sheheen, 793 F. Supp. 1329 (D.S.C. 1992)(three-

judge court). As the court later noted, “the plans presented

by the parties suffered a myriad of infirmities” and the

court’s plans “did not remotely resemble the plans presented

5

by either plaintiff." Pet. App. 24-25.’

A separate question from the factual nature of the plans

was the issue of whether the court’s plans should be reviewed

under Section 2 of the Voting Rights Act, 42 U.S.C § 1973.

While the court applied some aspects of Section 2 analysis to its

plan, it held that the substantive standards of Section 2 need not

be fully imported into this case. 793 F. Supp. at 1351.

Appeals to this Court were taken by SRAC and by

Governor Campbell, whose proposed plan was similar to that

put forth by the Republican Party. The Republican Party was

not an appellant when the case was taken to this Court. Both

appellants argued that the three-judge court erred in not

approving their respective plans; they also argued that full

Section 2 analysis should be applied, a point that was supported

by the Justice Department in an amicus brief invited by this

Court. During the pendency of the appeal of the court’s plan,

the 1992 elections were held using the plan which the court had

drawn.

On June 14, 1993, this Court issued the following order

regarding the SRAC and Campbell appeals:

The judgment is vacated and the cases are

remanded to the United States District Court for

the District of South Carolina for further

consideration in light of the position presented by

the Solicitor General in his brief for the United

2 The court had noted in 1992 with respect to the plaintiffs’ respective

plans for the House that “the Republican Party and the Governor appear to

seek to eliminate Democrats and the SRAC appears to seek to eliminate

incumbents because of their race.” 793 F. Supp. at 1364.

States filed May 7, 1993.

Campbell v. Theodore, 113 S.Ct. 2954 (1993). ?

On remand, with no elections scheduled for the near

future, the court permitted the General Assembly additional

time to enact redistricting plans. By the end of May 1994,

plans for the House and the Congressional districts had been

enacted by the General Assembly and precleared by the

Justice Department within the timeframe permitted by the

court. Senate districts were reapportioned by legislation

passed in 1995 and precleared on May 30, 1995, also within

the timeframe permitted by the court.

The normal years for Senate elections were 1992 and

1996, but in the meantime, before the General Assembly's

Senate plan had been enacted and precleared, a Senate seat

came open. The Senate sought the permission of the three-

judge court to use the court’s 1992 district lines for this

special election. Holding that this motion by the Senate was

"a proposal reflecting the policy choices of the elected

representatives of the people” under McDaniel v. Sanchez,

452 U.S. 130, 152 (1981), the court in August 1994 ordered

that the court’s plan for Senate District 1 be submitted for

preciearance under Section 5. The Republican Party and

SRAC had argued that preclearance should be required.

The Justice Department precleared the court's plan on

December 12, 1994. See Pet. App. 2(. However, as the

court later noted, the plaintiffs’ victory was “pyrrhic at best,”

Pet. App. 26, because the result of obtaining preclearance

3 ‘The order in SRAC v. Theodore, also at 113 S.Ct. 2954, is

identical.

7

was that the Justice Department approved part of the 1992

court plan for the Senate which plaintiffs had strenuously

opposed.

Shortly after the entry of the original 1992 order

containing the court’s plan, the Republican Party moved for

attorneys’ fees under the statutes providing for such fees in civil

rights and voting rights cases. SRAC filed-a similar motion

shortly thereafter.

The court did not consider attorneys’ fees until the case

ended, i.e. when the last of the legislatively-enacted plans was

precleared in May 1995. On August 16, 1995, the three-judge

court dismissed the cases. Additional briefs and supplemental

affidavits were received on the issue of attorneys’ fees. The

total amount claimed by counsel is $569,153.

On December 15, 1995, the district court issued an order

denying all motions for attorneys’ fees by plaintiffs SRAC and

the Republican Party. On plaintiffs’ appeal to the Court of

Appeals for the Fourth Circuit, that court, citing Farrar v.

Hobby, 506 U.S. 103, 113 (1992) and S-] and S-2 v. State

Board of Education of North Carolina, 21 F.3d 49 (4th Cir.

1994)(en banc), cert. denied, 115 S.Ct. 205 (1994), held that

none of the results in the district court constituted an enforceable

judgment, consent decree or settlement or a “material alteration

in the relationship between the parties." Pet. App. 7-8.

A. The decision below correctly applied this Court’s

precedents.

It is readily apparent that plaintiffs’ primary legal

8

argument is with a case which this Court has declined to

review. S-] and S-2 v. State Board of Education of North

Carolina, 21 F.3d 49 (4th Cir. 1994)(en banc), cert. denied,

115 S.Ct. 205 (1994).* That case is discussed in Question

C herein. Plaintiffs spend much more time discussing S-/

than they do in disputing the correctness of the judgment

below. Regardless of whether the rule in S-/ is followed in

this case, however, the Court of Appeals reached the correct

result. The benefits plaintiffs obtained from this litigation

were meager or nonexistent, and the appropriate fee award,

under prior decisions of this Court, was no fee at all.

Plaintiffs’ "success" began and ended with the filing

of the summons and complaint in the Burton case and the

uncontested preliminary ruling shortly thereafter that the 1980

Census could not serve as the basis for legislative districts in

the 1990’s. The remainder of plaintiffs’ effort, and nearly all

their time and costs, were devoted to advocating the creation

of districts which served the plaintiffs’ respective (and

complementary) partisan goals. However, the district court

adopted a redistricting plan which, as that court later noted,

“did not remotely resemble the plans proposed by either

plaintiff." Pet. App. 25. The district court noted that

plaintiffs’ plans were not only rejected, but that the testimony

offered by plaintiffs and heard by the court "was of little help

in creating [the court’s] plan." /d. Plaintiffs thus seek

public reimbursement not for the successful vindication of

constitutional rights, but for their rejected self-serving and

partisan efforts.

Courts have declined to award fees for unsuccessful

* Remarkably, plaintiffs’ citation of S-/ does not mention the denial

of certiorari in the case. See, e.g., Pet. at vi, 7.

9

lobbying of a redistricting plan in the courts. The familiar

Standard for determining whether one is a “prevailing party"

under 42 U.S.C. § 1973/e or 42 U.S.C. § 1988 is whether the

plaintiff has "succeed[ed] on a significant issue in litigation

which achieves some of the benefits the party sought in bringing

suit." Hensley y. Eckerhart, 461 U.S. 424, 443 (1983). In

reapportionment cases the application of this Standard is not as

Straightforward as in many other types of civil rights cases.

Unlike the typical action for damages, or even the typical action

for an injunction, the result obtained is often far different from

the result sought by a particular plaintiff. In Hastert v. Illinois

State board of Election Commissioners, 28 F.3d 1430 (7th Cir.

1993), cert. denied, 115 S.Ct. 426 (1994), the Seventh Circuit

noted:

This is not ordinary litigation. . . . Each

[plaintiff] had a plan to offer and the winner, at

least from a lay person’s perspective, is the

litigant whose plan and objectives (usually

incorporated in its map) the district court

adopted. Conveniently, this common-sense ’

understanding of winners and losers coincides in

large part with the Supreme Court’s definition of

“prevailing party."

28 F.3d at 1439.5 See also, Daggett v. Kimmelman, 811 F.2d

793, 801 (3d Cir. 1987)(state was "not obligated to compensate

counsel's efforts merely to maximize anyone’s political

advantage").

The district court, noting that the reasoning of S-] was

5

Hastert concluded that the court’s ultimate approval of one party's

plan made that party the "clear winner.” 28 F.3d at 1440.

10

disapproved by other circuits, reviewed the attorneys’ fee

petition independently of the reasoning of S-/. Pet. App. 19-

27. It concluded as follows:

l. The uncontested decision that plans based on

the 1980 Census could no longer be used was

not a "significant issue." Pet. App. 20. See

Farrar, supra, 506 U.S. at 110.

The declaration that the South Carolina

General Assembly was at an impasse was a

procedural and interlocutory victory which

"eventually led to a rejection of the plans

proposed by the plaintiffs." Pet. App. 23

(citing Hewitt v. Helms, 482 U.S. 755, 760

(1987)).

3. The creation of a minority opportunity

Congressional district was not a victory for the

plaintiffs, whose plans for such a district "did

not remotely resemble the plans proposed by

either plaintiff." Pet. App. 25. The court

further noted that every plan presented at the

trial, including the defendants’ plan, contained

such a district. Pet. App. 24.°

4. While the plaintiffs prevailed on their

argument that the State Senate plan should be

sh Apparently only SRAC argued in the district court that prevailing

party status could be based on the creation of the minority opportunity

Congressional district. The district court noted that SRAC's presence as

to this issue was “superfluous,” since the Republican Party had already

filed suit. Pet. App. 24.

1]

precleared by the Justice Department before a

special Senate election could be held, this victory was "pytrhic,"

because it led to the Justice Department’s approval of the court’s

1992 plan, a plan which plaintiffs had strenuously opposed. The

practical result from this "victory" rendered it merely technical

or de minimis, and therefore not compensable. Pet. App. 26, 30

(quoting Farrar, supra, 506 U.S. at 117 (O’Connor, J.,

concurring).

5. Finally, a judgment which plaintiffs obtained

from this Court, vacating and remanding the

district court’s decision, did not lead to any

actual relief for the plaintiffs and thus was

likewise merely technical and de minimis. Pet.

App. 27, 29. The vacatur order required the

district court to consider the case "in light of the

position of the Solicitor General" in a brief filed

in the case, but this Court did not order that

results of the elections already held be vacated.

Pet. App. 27. Essentially the issue was whether

the plan should be reviewed under Section’2 of

the Voting Rights Act. However, since the South

Carolina General Assembly eventually agreed on

; a reapportionment plan, it was unnecessary for

the district court to conduct this reconsideration,’

” A further anomaly of plaintiffs’ position is that they now claim that

the district court decision they appealed to this Court was a decision on which

they prevailed, and indeed was an “exceptional” success. Pet. at 15. This

is a rather noteworthy revision of their Original estimate of the value of the

district court's plan. If, as Petitioners State, the adoption of the court's plan .

achieved “essentially all of the basic goals of [Petitioners’} litigation,” Pet.

App. 17, one has to question why nearly all the fees sought were for work

in advocating completely different plans.

12

Each of the above conclusions of the district court was

reached specifically without reference to S-/. In addition, the

results reached by both the district court and the Court of

Appeals embodied a correct application of this Court’s

precedents. For instance, Farrar v. Hobby, supra, requires

that in order to qualify as a prevailing party,

[t]he plaintiff must obtain an enforceable

judgment against the defendant from whom

fees are sought, Hewitt, supra, 482 U.S. at

760, or comparable relief through a consent

decree or settlement. Maher v. Gagne, 448

U.S. 122, 129 (1980). Whatever relief the

plaintiff secures must directly benefit him at

the time of the judgment or settlement.

In Hewitt, supra, 482 U.S. at 763, this Court left the

“catalyst” issue open:

We need not decide the circumstances, if any,

under which this "catalyst" theory could

justify a fee award under §1988, because even

if Helms can demonstrate a clear causal link

between his lawsuit and the State’s amendment

of its regulations, and can “prevail” by having

the State take action that his complaint did not

in terms request, he did not and could not get

redress from promulgation of the

informant-testimony regulations.

“No subsequent decision of this Court has explicitly

considered the issue of whether one who has received no

enforceable remedy from the litigation may still be

13

compensated for playing the alleged role of a "catalyst" for a

defendant’s later change in conduct. It is not necessary to

consider the “catalyst” issue, because plaintiffs clearly did not

succeed under the principles set forth in Farrar and Hewitt.

The position of the plaintiffs in obtaining an uncontested

judgment that the districts based on the 1980 Census could no

longer be used is comparable to the nominal damages judgment

received by the plaintiff in Farrar. Since the court did not

adopt the plaintiffs’ plans, or anything close to them, the result

was similar to that described in Hewitt, where the plaintiff

received only "the moral satisfaction [that] results from any

favorable statement of law.” Hewitt, supra, 482 U.S. at 762.

The district court’s formal declaration of the obvious, moreover,

did not "modify[ ] the defendant’s behavior in a way that

directly benefits the plaintiff." Farrar, 506 U.S. at 111-112.

The lack of direct benefit to the plaintiffs from the original

judgment in this case is shown by the decision of SRAC and

Governor Campbell to appeal it to this Court.

It is not reasonably arguable that any other results in this

case constituted "relief . . . [which] directly benefit[ted]

[plaintiffs] at the time of judgment or settlement.” Farrar, 506

U.S. at 11. Plaintiffs cannot point to any benefit to them from

this Court’s vacatur judgment which never led to a further

judgment on the merits, nor can they claim to have derived

benefit from the decision requiring preclearence of the Senate

plan when the result of the preclearence process was adverse to

their position.

Plaintiffs claim that the result in this case is undesirable |

from a policy standpoint because it will make it more difficult

14

"for economically disadvantaged minorities® to redress their

grievances in the courts." Pet. at 23. In fact, however,

requiring that a party actually succeed in litigation before

recouping attorneys’ fees is the soundest possible way to

insure that the time of the courts and the parties will not be

wasted with the use of high-priced lawyers to make lengthy

presentations of extravagantly partisan positions. Since

clients in civil rights cases seldom pay their counsel in the

event of a loss, and therefore do not necessarily seek to limit

the costs, only the courts can control the cost of this litigation

to the public treasury. Plaintiffs’ effort to recover $570,000

in attorneys’ fees for their futile efforts to lobby their

political positions in litigation was properly rejected by both

the three-judge district court and by the Court of Appeals.

B. Any conflict among circuits should await

resolution until a case arises in which the

issue is dispositive.

Any conflict between the rule of the Fourth Circuit's

S-] case and the rule followed in other circuits should await

its presentation in a case in which the resolution of the

conflict would affect the outcome of the case. If this Court

were to review this case, it is extremely doubtful that a

different result would be reached even if this Court were to

disapprove the Fourth Circuit's rule in the S-/ case. For this

reason alone, certiorari should be denied.

In addition, there is no likelihood that the plaintiffs’

1991 lawsuits were the "catalysts" for the General

Assembly’s 1994 and 1995 enactments establishing

reapportionment plans different from the plans adopted by the

® This term presumably excludes the Republican Party.

15

was noted in Judge Niemeyer’s concurring opinion. Judge

Niemeyer stated that even aside from the S-/ rule, the "question

Cc. The Fourth Circuit’s rule in S-1 is the preferable

rule because it avoids the examination of

confusing threads of causation.

In the S-] case, the Fourth Circuit adopted a clear rule

which is the logical extension of cases such as Farrar and

Hewitt. S-1 holds that fees should not be awarded unless a

16

plaintiff has obtained relief "by virtue of having obtained an

enforceable judgment, consent decree or settlement giving

some of the legal relief sought in a §1983 action." 21 F.3d

at 51. This statement is nearly an exact quote from Farrar,

506 U.S. at 111.° In S-J, the settlement of the case with

local officials caused the underlying judgment to become

moot. Asa result, the Fourth Circuit dismissed the case and

vacated the district court's judgment. S-/ v. Spangler, 832

F.2d 294 (4th Cir. 1987). Three years after the dismissal

and vacatur, the North Carolina legislature amended the

statute involved in the case. The plaintiffs, who had derived

full satisfaction from the local entity’s action some years

earlier, sought attorneys’ fees based on the claim that’their

suit was the catalyst for the state’s action.'° The en banc

decision of the Fourth Circuit concluded that absent the

prerequisite judgment or other enforceable form of remedy,

the above-quoted requirements of Farrar and Hewitt had not

been met.

In the unlikely event that this case is viewed as a

proper vehicle for review of the Fourth Circuit’s S-/ rule, the

respondent Wilkins submits that that case represents the

° “The plaintiff must obtain an enforceable judgment against the

defendant from whom fees are sought, Hewitt, supra, 482 U.S., at 760,

or comparable relief through a consent decree or settlement, Maher v.

Gagne, 448 U.S. 122 (1980)." Farrar, 506 U.S. at 111.

'© ‘This rendered the case different from the more typical voluntary-

abandonment cases in which the change in conduct comes first and is

followed by the dismissal for mootness. As the opinion adopted by the

full Fourth Circuit explained, it is hard to understand “how moot lawsuits,

in which the possibility of relief against a party is by definition

foreclosed, continue nonetheless to function as catalysts for change and

for the recovery of attorneys’ fees." 6 F.3d at 170.

17

better rule.’ As Judge Niemeyer's concurring opinion in

the present case points out, the purpose of the fee shifting

Statutes is to "reward successful litigants, not success in the

political process even if the political success was a response to

the litigation.” Pet. App. 9 (emphasis in original). Judge

Niemeyer further noted that the point of S-/ was to avoid

awarding attorneys fees to litigants “simply because their

position in litigation was vindicated by an external process or

sequence of events outside the litigation." Id.

The rule adopted by the Fourth Circuit in S-/ holds that

Farrar merely clarified Hewitt by stressing that a

voluntary change in conduct must be formalized

in a legally enforceable settlement agreement to

transform a plaintiff into a prevailing party for

Purposes of §1988. * * * In other words, the

change in conduct must be enforceable in court,

not merely gratuitous.

6 F.3d at 171. The requirement of an enforceable judgment or

settlement agreement provides "a clear rule for achieving

_ prevailing party status." Jd. Absent this bright line standard,

district courts would be forced to “untangle a web of supposed

Causal connections to determine whether a party prevailed." Jd.

at 171-172. The contrary standard is awash in ambiguity, as

shown by the original panel majority opinion in S-7. The panel

majority would have had district courts inquiring into whether

“the outcome, in whatever form it is realized" was one to which

the claimant's efforts “contribuied in a substantial way;" this

inquiry “will range outside the merits of the basic controversy"

os If certiorari were to be granted, this point would be argued more

fully in this respondent's brief on the merits.

18

and would require courts to "look outside the final judgment

to voluntary actions taken by a defendant [which] are causally

connected to the litigation." Jd. at 171 (quoting panel

majority opinion, 6 F.3d at 164). Such a broad and vague

inquiry would often contravene the direction of Hensley v.

Eckerhart, 461 U.S. 424, 437 (1983) that a fee request

"should not result in a second major litigation."

Finally, as the opinion adopted by the en banc

majority holds, awarding fees for actions taken outside the

context of the litigation "serves to disable public officials,

who may come to fear that worthwhile changes may be

retroactively linked to a lawsuit and result in a hefty bill for

attorneys’ fees." S-J, 6 F.3d at 172. Such a result would

penalize state and local officials for making salutary changes.

The post-Farrar cases cited by Petitioners, Pet. 13-15,

do not represent as monolithic a bloc of authority as

Petitioners suggest; indeed, some of those cases illustrate the

preferability of the S-/ approach. For instance, two of the

cases cited by Petitioners would have come to the same result

applying S-/.'? Two others are significantly distinguishable

because the change in conduct occurred before the dismissal

of the case, unlike the situation in S-/.' Three cases

a e Kilgour v. City of Pasadena, 53 F.3d 1007 (9th Cir.

1995)(enforceable judgment existed); Beard v. Teska, 31 F.3d 942 (10th

Cir. 1994)(settlement existed).

13 Paris v. HUD, 988 F.2d 236 (ist Cir. 1993); Zinn by

Blankenship v. Shalala, 35 F.3d 273 (7th Cir. 1994).

Rclebiate® Sei SACS SB Far Ss

19

resulted in findings that no catalyst effect was present.'* In

only two of the ten cases cited at pp. 13-15 of the Petition were

the Courts of Appeals able to determine both that the

catalyst principle applied and that in their view the lawsuit hac

Served as the cause of the defendants’ changed conduct; even

those two were remanded for determination of the appropriate

fee amount.'* Finally, three of the ten cases were remanded

for further findings of fact as to whether the suit was a Catalyst

for change.'® In other words, in six of the seven cases cited

by Petitioners in which the Courts of Appeals did not rule out

an award of fees, a remand was necessary either in order to

determine whether a causal connection actually existed, or in

order to determine the fee amount. Such protracted fee

litigation when catalyst arguments are present go far toward

making fee litigation "a second major litigation." Hensley,

supra, 461 U.S. at 437."

'* Craig v. Gregg Co., Texas, 988 F.2d 18 (5th Cir. 1993); Brown v.

Local 58, IBEW, 76 F.3d 762 (6th Cir. 1996): American Council of the

Blind v. Romer, 992 F.2d 249 (10th Cir. 1993).

'S Citizens Against Tax Waste v. Westerville City School, 985 F.2d 255

(6th Cir. 1993); Little Rock School Dist. y. Pulaski Co. Special School Dist.

No. 1, 17 F.3d 260 (8th Cir. 1994).

'© Paris v. HUD, 988 F.2d 236 (ist Cir. 1993); Baumgartner v.

Harrisburg Housing Authority, 21 F.3d 541 (3d Cir. 1994); Zinn by

Blankenship v. Shalala, 35 F.3d 273 (7th Cir. 1994).

'” It should also be noted that S-/ was a 7-6 en banc decision of the

Fourth Circuit. In view of the closeness of the vote, the atypicality of the

fact situation, and the number of cases from other circuits which subsequently

have questioned S-/, it is possible that the Fourth Circuit might choose to

modify S-] in an appropriate case. Petitioners in the present case did not

seek rehearing en banc.

20

CONCLUSION

For the foregoing reasons, it is respectfully submitted

that the Petition for Writ of Certiorari in this case is without

merit and should be denied.

Respectfully submitted,

CHARLES MOLONY CONDON

Attorney General for the

State of South Carolina

TREVA ASHWORTH

Deputy Attorney General

KENNETH P. WOODINGTON

Counsel of Record

Senior Assistant Attorney General

Post Office Box 11549

Columbia, South Carolina 29211

(803) 734-3680

Counsel for Respondent Wilkins

CHARLES E. CARPENTER, JR.

FREDERICK A. CRAWFORD

DEBORAH M. SHEFFIELD

Counsel of Record

Richardson, Plowden, Grier & Howser

Post Office Drawer 7788

Columbia, South Carolina 29202

Counsel for Respondent Beasley

Columbia, South Carolina

February 28, 1997