Opposition Brief — Statewide Reapportionment Advisory Committee v. Beasley

'

No. 96-1201 \~”/ | Coust, U.S,

IN THE } MAR 6 1997

Supreme Court of the Gnited States

OCTOBER TERM, 1996

SN ee om i a)

STATEWIDE REAPPORTIONMENT ADVISORY

COMMITTEE, ef al.,

Petitioners,

V.

DAVID M. BEASLEY, GOVERNOR OF

SOUTH CAROLINA, ef al.,

Respondents.

On Petition of a Writ of Certiorari to the

United States Court of Appeals for the Fourth Circuit

BRIEF IN OPPOSITION FOR THE

SOUTH CAROLINA SENATE

FRED THOMPSON, III GEDNEY M. HOWE, III, P.A.

STOKES & THOMPSON

151 Meeting Street

Charleston, S.C. 29402

(803) 723-9600

8 Chalmers Street

Charleston, S.C. 29402

(803) 722-8048

MARK A. PACKMAN

(Counsel of Record)

JODI TRULOVE

DICKSTEIN, SHAPIRO, MORIN

& OSHINSKY, LLP

2101 L Street, N.W.

Washington, D.C. 20037

(202) 785-9700

Attorneys for Respondent

South Carolina Senate

PRESS OF BYRON S. ADAMS # WASHINGTON, D.C. + 1-800-347-8208

QUESTIONS PRESENTED FOR REVIEW

1. Whether this Court should consider the

validity of the so-called "catalyst" theory for awarding

attorneys' fees under 42 U.S.C. §§ 1973l(e) and 1988(b),

where, even if that theory were applied, Petitioners still

would not be entitled to attorneys' fees because the trial

court did not abuse its discretion in determining that

whatever successes Petitioners achieved in the litigation

were de minimis?

2. Whether the courts below abused their

discretion in concluding that relief obtained by Petitioners

in the form of a court order requiring the Senate to obtain

preclearance of a district for use in a special election

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

§ 1973c, was de minimis, in light of the fact that the

district was precleared without any objection from the

Department of Justice and was used without any changes

in the special election?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ........ i

pp Se Fee. 8 yt. vi

STATEMENT OF THE CASE ................... ]

I. THE UNDERLYING LITIGATION ........ ]

A. Proceedings In The Three-Judge

RETO ENG ETS GhaG lcs s heehadcesneces ]

B. Proceedings In The Supreme Court .... 3

C. Proceedings On Remand .............. 4

fl. THE ATTORNEYS' FEES LITIGATION ... 6

A. Proceedings In The Three-Judge

i RE Dale 2:3 > 6

B. Proceedings In The Court Of Appeals . 10

SUMMARY OF ARGUMENT .............--.5-- 12

REASONS FOR DENYING THE WRIT ......... 13

ANY CONFLICT AMONG THE CIRCUITS

REGARDING THE "CATALYST" THEORY

NEED NOT BE RESOLVED HERE BECAUSE

DENIAL OF ATTORNEYS' FEES IS PROPER

BASED ON GROUNDS WHOLLY

UNRELATED TO THAT THEORY ............ 13

I. ee 13

Page

If. This Court Should Deny The Writ

Because Petitioners Disclaimed

Reliance On The "Catalyst" Theory

In The Court Below As A Means Of

Satisfying The "Prevailing Party"

MS. bac a Se eken cekenéaeesss 15

Il. The Three-Judge Court Acted Well

Within Its Discretion In Holding

That Petitioners Were Not Entitled

To Attorneys' Fees Under Any

Theory Because Any Success They

May Have Achieved Was De Minimis .. 16

A. The Three-Judge Court Held

That, Even Under The

"Catalyst" Theory, Petitioners

Were Not "Prevailing Parties"

Because Whatever Successes

They Achieved Were

RE on Gate acs sacs uns x 17

B. The Three-Judge Court's

Determinations Regarding

Attorneys' Fees Must Be

Upheld Absent An Abuse Of

a er hn a ee 18

C. The Three-Judge Court Ruled

Consistently With The Case

Law And Did Not Abuse Its

OEE ee Per eee 18

iv

CONCLUSION

Page

Petitioners' Alleged Success In

Obtaining An Order Requiring

The Senate To Preclear The

Plan For The 1994 Special

Election Was De Minimis ....... 24

TABLE OF AUTHORITIES

Page

Cases.

Beer v. United States, 425 U.S. 130

tick Kee e RHE ED SENOS 0g de 0k 21

Bly v. McLeod, 605 F.2d 134 (4th Cir.

1979), cert. denied, 445 U.S. 928

| Reg REE Ra 16

Brown v. Local 58, Int'l Bhd. of Elec.

Workers, 76 F.3d 762 (6th Cir.

EE une aL Nas Naeee Aa o4h a beens eeba eas 15, 18

Burton v. Sheheen, 793 F. Supp. 1329

(D.S.C. 1992), vacated and

remanded sub nom. Statewide

Reapportionment Advisory

Committee v. Theodore,

6 ee rr passim

City of Springfield v. Kibbe, 480 U.S.

TE A kak sen ta kuces o0o6 800606 banwede 16

Connor v. Johnson, 402 U.S. 690

| ER ee ere ee rr ers 5

Corder v. Gates, 104 F.3d 247

i bs ck Whine tN cede wbneeees 18

Donnell v. United States, 682 F.2d 240

(D.C. Cir. 1982), cert. denied,

ET Oe BO COD 6 icc acess dew sceveeeses 25, 26

Farrar v. Hobby, 506 U.S. 103 (1992) ......... passim

2 ect nail IA AA ENE GANA at AOI EET alts OAR se TO

Georgia v. United States, 411 U.S. 526

LORE Me raknawny kee Ge Avot ss Roma ewok 4

Goehring v. Brophy, 94 F.3d 1294

CL RIED: in SSS ree Bg d vie hala bE Res 18

Hanrahan v. Hampton, 446 U.S. 754

CRUEL. “iss ka vanncssths tp aces tous 14, 20, 23, 24

Hastert v. Illinois State Board of

Election Commissioners, 28 F.3d

1430 (7th Cir. 1993), cert. denied,

Rt es NE 665 cewcncceeescbateescesies 22

Hensley v. Eckerhart, 461 U.S. 424

| BARE oe SU 14, 17, 19, 22

Hewitt v. Helms, 482 U.S. 755 (1987) ......... 20, 26

Independent Fed'n of Flight Attendants

D. £apet, 491 UB-TS4ATSSF) once ccc cee ecees 26-27

Jackson v. Stevenson, 666 F. Supp. 99

(S.D. Miss. 1986), aff'd mem.,

810 F.2d 197 (5th Cir. 1987) ............. ‘eae’ 19

Johnson v. De Grandy, 512 U.S. 997

RA ROR UTR als Sec cat Pen vases kao xeon sexs 21

Kansas Health Care Ass'n v. Kansas

Dep't of Social G@ Rehabilitation

Servs., 31 F.3d 1052 (10th Cir.

eh ee eee ish ear issxe inne. s 18

Lebron v. National R.R. Passenger

eM See rrr 16

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

(5th Cir. 1987), cert. denied,

ee | ee eer rrr rrr 26

Libby v. Illinois High Sch. Ass'n,

921 F.26 FO CFR DIGG) cc ckisecesccccesis 18

Ruffin v. Great Dane Trailers, 969

F.2d 989 (11th Cir. 1992), cert.

denied, 507 U.S. 910 (1993) ..........000e cece. 18

S-1 and S-2 v. State Bd. of Educ.,

21 F.3d 49 (4th Cir.) (en banc),

cert. denied, 115 S. Ct. 205 (1994) ........... passim

Smith v. Beasley, 946 F. Supp. 1174

(Ri BEE cde nicinena cia cde tenn cowie ces 6, 24

Statewide Reapportionment Advisory

Committee v. Theodore, 506 U.S. 951

fo | ore rn eee a ee 3

Statewide Reapportionment Advisory

Committee v. Theodore, 508 U.S. 968

4 PRT Ee oe reer eer ere rrr +

Supreme Court of Virginia v.

Consumers Union of United States,

Eig GG TI FAP GRO hose cence eds vegeveses 27

Swietlowich v. County of Bucks,

620 F.2G 33 (30 Cir. I9GO) 2.2... cccccescccss. 23

Texas State Teachers Ass'n v. Garland

Indep. Sch. Dist., 489 U.S. 782

Be) Oe hes ee ere 14, 17, 20, 22

eee ete SEO >

I A wcities se Lt te Na

Page

Statutes.

Be ee I 5 6s buh 0.0 oo ee oe eka scene seldees 10

EE 5h bbc ceed sac cpws 6s aned bens 2

ee a ET po 4a nao cpdsedwcemens 1,2, 3,4

eS | ee ee eee oor passim

ge A rere passim

ee RA PE na 5000995 ck apaweee <dewsaues 23

Se Be HD x 5 hed d eas weideoeses passim

Miscellaneous.

Brief for the United States as Amicus

Curiae, Statewide Reapportionment

Advisory Committee v. Theodore,

508 U.S. 968 (1993) (Nos. 92-155

a gk ee ee Ee On oe PT ee Ee eee 4

STATEMENT OF THE CASE

I. THE UNDERLYING LITIGATION

This case arises out of South Carolina's efforts in the

early 1990s to redraw its state legislative and congressional

districts. Not surprisingly, the 1990 census figures

revealed that the boundaries of the districts drawn in the

1980s had become unconstitutionally apportioned and,

therefore, had to be redrawn. See Appendix to Petition for

Writ of Certiorari ("App.") 4, 12. Both the State House

and Senate formed subcommittees to develop new

redistricting plans, but were unable to pass plans prior to

adjournment of the General Assembly's 1991 legislative

session. App. 4. |

A. Proceedings In The Three-Judge Court

In October 1991, Michael Burton, in his Capacity as

Executive Director of the South Carolina Republican Party

("Republican Party"), and the Statewide Reapportionment

Advisory Committee ("SRAC"), an unincorporated

association of private individuals and organizations in

South Carolina that advances the interests of

African-Americans (collectively, "Petitioners "), brought

separate suits challenging the state legislative and

congressional districts drawn in the 1980s. See App. 4, 13;

Burton v. Sheheen, 793 F. Supp. 1329, 1337-38 (D.S.C.

1992), vacated and remanded sub nom. Statewide

Reapportionment Advisory Committee v. Theodore, 508

U.S. 968 (1993). Both complaints alleged that these

districts were unconstitutionally apportioned and violated

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

sought an injunction precluding any future use of these

districts, a declaration that the legislative process was at an

impasse, and an order adopting redistricting plans

proposed by each Petitioner. See App. 13. The two cases

were consolidated before a three-judge court pursuant to

28 U.S.C. § 2284, which requires that challenges to the

constitutionality of a statewide redistricting plan be heard

by such a court. See App. 4, 13. The State Senate

obtained permission to intervene, along with the South

Carolina Democratic Party and others. Burton, 793

F. Supp. at 1338.

In January 1992, the General Assembly reconvened

and passed reapportionment plans for the State House and

Senate, but the Governor vetoed them and the General

Assembly was unable to override the veto. App. 13. The

General Assembly was unable to agree on a congressional

redistricting plan. App. 13. In February 1992, all parties

agreed that the legislature was at an impasse, and the

three-judge court assumed the role of overseeing design

and implementation of new redistricting plans for the 1992

elections. See App. 13.

In February 1992, a three-week trial began. All

parties stipulated that the existing districts were

unconstitutionally apportioned, Burton, 793 F. Supp. at

1336 n.2, and no party contended that they be used in the

1992 elections. Thus, no trial time was devoted to these

issues. App. 20. Moreover, because all parties agreed that

the existing districts were unconstitutional, the three-judge

court found it unnecessary to consider whether these

districts also violated Section 2 of the Voting Rights Act.

Burton, 793 F.Supp. at 1336 n.2. Rather, the trial

focused on the various redistricting plans advocated by

each of the parties.

In May 1992, the three-judge court rejected all of

the parties' proposed plans, finding that they "suffered an

array of infirmities." Burton, 793 F.Supp. at 1369. In

particular, the three-judge court found that the Republican

2

Party's proposed plan "disregard[ed] . . . county lines and

communities of interest" in an effort to "garner [more]

black voters" and failed to observe South Carolina's

traditional redistricting policies. Id. at 1360. The

three-judge court further stated that "the same maladies

that afflict the . . . Republican Party's plan, i.e. splitting

county . . . [and] precinct lines, afflict the SRAC plan."

Id. at 1359 n.58. The court proceeded to draw its own

plans, which contained fewer black-majority districts than

those proposed by Petitioners for the State House and

Senate and "did not remotely resemble the plans proposed

by either [Petitioner]." Id. at 1365-66; App. 24-25.

In explaining the plans it fashioned, the three-judge

court stated that it had attempted to follow what it viewed

as the State's policy of adhering to county lines in drawing

districts. Burton, 793 F.Supp. at 1341. The court also

discussed its adherence to the "one person, one vote" rule

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

§ 1973c, in drawing its plans. Id. at 1342-48. The court

declined, however, to conduct a full analysis of whether its

plans complied with Section 2 of the Voting Rights Act,

42 U.S.C. § 1973. Id. at 1350-51.

B. Proceedings In The Supreme Court

Having failed to obtain implementation of the plans

it preferred, the SRAC (but not the Republican Party)

appealed the three-judge court's decision to this Court.

While the United States was not a party in the trial court,

this Court requested the views of the Solicitor General.

Statewide Reapportionment Advisory Committee vr.

Theodore, 506 U.S. 951 (1992).

On June 14, 1993, this Court vacated the lower

court's judgment and remanded for "further consideration

in light of the position presented by the Acting Solicitor

3

General in his brief for the United States." Statewide

Reapportionment Advisory Committee v. Theodore, 508

U.S. 968 (1993). In his brief, the Solicitor General argued

_ that the three-judge court (1) failed to perform a plenary

analysis of whether its plan complied with Section 2 of the

Voting Rights Act; (2) improperly considered preservation

of county lines as the predominant state policy in

redistricting; and (3) improperly subordinated the

requirements of Section 2 to the policy of preserving

county lines. Brief for the United States as Amicus Curiae,

Statewide Reapportionment Advisory Committee .

Theodore, 508 U.S. 968 (1993) (Nos. 92-155 and

92-219), at 9-17. While the Court remanded the case, it

did not vacate the 1992 elections, which had been held

using the three-judge court's plans. App. 14.

C. Proceedings On Remand

On remand, the three-judge court provided the

General Assembly with an opportunity to develop and

obtain preclearance of new plans for future use.’ In 1994,

the General Assembly passed and obtained preclearance of

a congressional redistricting plan and a plan for the State

House, which were used in the 1994 elections. See App.

14. Neither the SRAC nor the Republican Party

’ Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c,

requires certain jurisdictions, including South Carolina, to

obtain prior approval, known as "preclearance," of changes in

laws, practices, or procedures affecting voting. See Georgia pv.

United States, 411 U.S. 526, 534-35 (1973) (holding that

Section 5 applies to redistricting plans). To obtain

preclearance, such jurisdictions must prove cither to the United

States Attorney General or to a three-judge district court in the

District of Columbia that the proposed change has neither a

discriminatory purpose nor a discriminatory effect. 42 U.S.C.

§ 1973c.

4

challenged these precleared plans. Petition for Writ of

Certiorari ("Pet.") 5-6.

In June 1994, while the General Assembly was still

developing a new redistricting plan for the Senate, which

did not have a scheduled election until 1996, a vacancy

occurred in Senate District One when the incumbent was

elected to a judgeship. See App. 14-15. (Senate District

One is in the northwestern corner of the State. It is a

predominantly white rural district. All parties to the

Burton litigation drew this district in similar ways; it was

not one of the districts as to which the parties were in

dispute regarding its racial composition.) The Senate

sought permission to hold the special election using the

district lines drawn by the three-judge court. App. 15.

The Senate took the position that, because the district had

been drawn by the court, its use in the special election did

not have to be precleared by the Department of Justice

("DOJ"). See Connor v. Johnson, 402 U.S. 690 (1971)

(holding that court-drawn redistricting plans are not

subject to the preclearance requirement). DOJ disagreed,

as did the SRAC and the Republican Party.. The

three-judge court denied the Senate's request and held

that the use of the district had to be precleared. App. 15.

Thus, the Senate submitted the district to DOJ, obtained

preclearance, and conducted a special election using the

same district the three-judge court had drawn in 1992. See

App. 15. The outcome of this election had no effect on

the racial makeup of the Senate.

In May 1995, the General Assembly enacted a new

redistricting plan for the Senate and obtained preclearance.

App. 15. Neither the SRAC nor the Republican Party

objected to this plan. Pet. 6-7. In short, by June 1995,

the General Assembly had passed, and obtained

preclearance of, a new congressional redistricting plan and

5

new plans for the State House and Senate. App. 6. Two

months later, the three-judge court dismissed the entire

case. App. 6.7

Il. THE ATTORNEYS' FEES LITIGATION

A. Proceedings In The Three-Judge Court

The SRAC and the Republican Party each

subsequently requested attorneys' fees under 42 U.S.C.

§§ 1973l(e) and 1988(b), contending that they were

"prevailing parties" in the redistricting litigation within the

meaning of those statutes and thus entitled to fees.

App. 6. The three-judge court denied the motions in their

entirety. App. 31. To be a "prevailing party," the

three-judge court stated, a plaintiff must obtain "'some

relief on the merits of his claim,'" in the form of either

"'an enforceable judgment against the defendant from

whom fees are sought, or comparable relief through a

consent decree or settlement.'". App. 17 (quoting Farrar

v. Hobby, 506 U.S. 103, 111 (1992)).

Applying these standards, the three-judge court

found that "as a matter of law [Petitioners] cannot be

considered prevailing parties because an enforceable

judgment against the defendants no longer exists." App.

18. The court noted that while its opinion in Burton

constituted a judgment on the merits, Petitioners "could

Although Petitioners do not refer to the events following the

enactment of state legislative and congressional redistricting

plans, many of the black-majority districts in the State House

and Senate that were drawn after the remand from the Supreme

Court were subsequently held¢ unconstitutional on the grounds

that race was a predominant factor in the drawing of these

districts, and that the districts were not narrowly tailored to

achieve a compelling government interest. See Smith v. Beasley,

946 F. Supp. 1174, 1210 (D.S.C. 1996).

6

———e

no longer enforce" that order "because the Supreme Court

vacated it." App. 18.

Turning to the Republican Party's claim that its

lawsuit had acted as a catalyst in causing the State to

redistrict, the three-judge court held that claim must fail

because the Fourth Circuit had "rejected the catalyst

theory as a means of determining who is a prevailing

party." App. 18 (citing S-1 and S-2 v. State Bd. of Educ.,

21 F.3d 49 (4th Cir.) (en banc), cert. denied, 115 S. Ct.

205 (1994)). (Under this theory, a plaintiff may be

deemed a "prevailing party" eligible for attorneys' fees

even if he did not succeed on some aspect of the merits of

his case so long as his lawsuit was the catalyst that caused

non-judicial branches of government to provide the

desired relief to the plaintiff. See App. 9, 10.)

The three-judge court went on to find, however,

that regardless of the validity of the "catalyst" theory, the

SRAC and the Republican Party "would not be entitled to

attorneys' fees under amy theory because their successes

were only technical or de minimis." App. 19 (emphasis

added).

The three-judge court first found that Petitioners

had not achieved significant relief in obtaining a

declaration that the existing districts were malapportioned

and an injunction against their future use. The court

explained that "the issue of whether the existing plans were

constitutional was . . . never in dispute before this court.

Further, this issue consumed virtually none of the court's

time .... Similarly, since all parties agreed the existing

plans were unconstitutionally apportioned, it strains reason

to suggest the issue of whether these plans could continue

to be employed was a significant one." App. 20. Because

a party must "succeed on a significant issue" to qualify as a

7

"prevailing party," the court reasoned, Petitioners could

not be considered "prevailing parties" on the issues of

malapportionment and continued use of the existing

districts. App. 20.

The three-judge court next found that Petitioners

were not "prevailing parties" on the question of whether a

legislative impasse existed. The court observed that,

although it had found in February 1992 that an impasse

existed, this ruling was merely a "procedural" one that

"allowed the case to proceed to trial" and "in no way

affected the merits." App. 22. Moreover, like the issue of

whether the existing districts were malapportioned, the

impasse question was essentially undisputed. See App. 13

("On February 10, 1992, the court convened a status

conference at which all parties .zreed that the legislative

process was at an impasse with respect to redistricting.").

Accordingly, the court found that "because the impasse

issue was not significant and the agreement failed to

change the legal relationship between [Petitioners] and the

defendants, . . . [Petitioners] are not prevailing parties on

the impasse issue." App. 23.

The three-judge court next considered whether

Petitioners qualified as "prevailing parties" based on the

state legislative and congressional redistricting plans

implemented by that court. The court first rejected the

Republican Party's claim that it had been a catalyst in the

court's decision to draw a black-majority congressional

district, observing that none of the parties at trial had

opposed the creation of such a district. App. 23-24.

The three-judge court likewise rejected the claim of

the SRAC that it had prevailed by causing the court to

implement new state legislative and congressional

redistricting plans.

a

The obvious motive and goal of

[Petitioners] was to get their plan adopted

by the court. As this court made abundantly

clear in the underlying order, the plans

presented by the parties suffered a myriad of

infirmities. In addition, we emphasized the

plans we fashioned were our own and did

not remotely resemble the plans proposed by

either [Petitionerj. ... Thus, it cannot be

credibly asserted that [Petitioners]

"prevailed" in the creation of the interim

plans this court ordered ....

f ». 24-25 (note omitted).

By contrast, the three-judge court found that the

SRAC had prevailed in having the three-judge court's

judgment vacated by this Court. App. 27. Nonetheless,

the three-judge court declined to award the SRAC any

attorneys' fees, stating:

In essence, what the SRAC achieved was a

situation where the Supreme Court's order

vacated the judgment, but left undisturbed

the actions performed under the judgment.

Indeed, the Supreme Court did not

invalidate the 1992 Senate elections held

pursuant to the vacated court order. And, in

addition, the period whereby the

court-drawn plans ceased to exist was

short-lived. In 1994, the General Assembly

passed a House of Representatives' act which

became law and later was precleared for use

by the DOJ. Also in 1994, a plan for the

congressional districts was passed and

precleared. Then, in 1995, a Senate Act

became law and was also precleared.

App. 29. In light of these facts, the three-judge court

concluded that the SRAC's success on appeal was "merely

technical and de minimis." App. 29.

The three-judge court also found that Petitioners

were "prevailing parties" on the question of whether the

Senate had to obtain preclearance in order to use the

court-drawn District One for a special election to fill a

vacancy. App. 25-26. The three-judge court reasoned

that the order requiring the Senate to obtain preclearance

was enforceable by Petitioners and, therefore, satisfied

Farrar's requirement that a plaintiff have an enforceable

judgment. App. 26. The three-judge court denied

attorneys' fees on this issue, however, finding that "[i]n

light of the DOJ's subsequent preclearance of the plan,

[Petitioners'] victory was pyrrhic at best. | While

[Petitioners] were successful in having the plan submitted

for preclearance, the election ultimately was conducted

pursuant to the 1992 plan," the very plan that the Senate

had advocated using. App. 26. Accordingly, the court

found that Petitioners' victory on this issue was de minimis

and, therefore, did not justify an award of attorneys' fees.

App. 29.

B. Proceedings In The Court Of Appeals

The Court of Appeals for the Fourth Circuit

affirmed the denial of attorneys' fees for all aspects of the

litigation. App. 8.° Stating that the issue presented for

appeal was whether the SRAC and the Republican Party

* Unlike cases related to the merits of a redistricting plan,

which are appealed directly to this Court pursuant to 28 U.S.C.

§ 1253, disputes concerning awards of attorneys' fees are

appealed to the intermediate circuit courts of appeals.

10

were "prevailing parties," the court concluded that its

previous decision in S-] and S-2, 21 F.3d at 51, had

"rejected '‘catalyst' analysis of causation in determining

prevailing party status" on the grounds that this theory

could not be reconciled with this Court's holding in

Farrar. App. 6-7. Applying S-1 and S-2 to the instant

case, the court of appeals held that Petitioners did not

qualify as "prevailing parties." App. 8. The court of

appeals reasoned that because the three-judge court's

judgment on the merits was vacated on appeal, Petitioners

could not enforce that judgment against the defendants.

App. 8. The court of appeals further held that this Court's

order vacating and remanding to the three-judge court for

further consideration did not constitute an enforceable

judgment against the defendants. App. 8. Finally, the

court of appeals held that Petitioners' success concerning

the Section 5 preclearance claim was too insignificant to

qualify them as "prevailing parties." App. 8.

In a concurring opinion, Judge Niemeyer agreed

with the majority that S-1 and S-2 had rejected the

"catalyst" theory. He also agreed that, to be a "prevailing

party," a plaintiff "must obtain relief in the action on the

merits of his claim," and he stated that success in the

political process does not satisfy that requirement, even if

the political success was a response to the litigation. App.

9. Finally, Judge Niemeyer concluded that even if

"prevailing party" status was determined by examining the

results obtained through the political process, he "could

not conclude that the district court abused its discretion in

denying the [Petitioners'] attorneys fees." App. 9.*

* Judge Motz also concurred, indicating that, in her view,

Petitioners would have prevailed under the "catalyst" theory

but that the court of appeals was bound by its prior rejection of

that theory. App. 9-10.

1]

\

SUMMARY OF ARGUMENT

1. The alleged conflict among the circuit courts

concerning the viability of the "catalyst" theory to justify

an award of attorneys' fees under 42 U.S.C. §§ 1973l(e)

and 1988(b) is not properly presented to the Court on the

facts of this case. Petitioners never asked the court of

appeals to reconsider its rejection of the "catalyst" theory.

In fact, Petitioners expressly disavowed reliance on that

theory for determining whether they were "prevailing

parties." The court of appeals thus did not have the

opportunity to consider anew the merits of the theory. In

the absence of such consideration, this Court ought not to

grant certiorari. See infra pp. 15-16.

2. Regardless of whether the "catalyst" theory

applies, Petitioners are not entitled to recovery of

attorneys' fees because any arguable successes they

achieved in the litigation were de minimis and, therefore,

too insignificant to qualify them for attorneys' fees. The

three-judge court analyzed each of Petitioners' claims for

attorneys' fees separately and determined, in the exercise of

its sound discretion, that given the de minimis nature of

each success, Petitioners were not entitled to fees under

any theory. Because the three-judge court did not abuse

its discretion in determining that Petitioners are not

entitled to recover fees under any theory, and because its

decision was entirely consistent with the principles set forth

by this Court governing recovery of attorneys' fees under

42 U.S.C. §§ 1973l(e) and 1988(b), resolution of the

viability of the "catalyst" theory will not affect the

outcome of this case. See infra pp. 16-27.

12

REASONS FOR DENYING THE WRIT

ANY CONFLICT AMONG THE CIRCUITS

REGARDING THE "CATALYST" THEORY NEED

NOT BE RESOLVED HERE BECAUSE DENIAL

OF ATTORNEYS' FEES IS PROPER BASED ON

GROUNDS WHOLLY UNRELATED TO THAT

THEORY

This is a case where Petitioners seek well over

$500,000 in attorneys' fees despite obtaining essentially

none of the relief they sought. As the three-judge court

recognized, what the SRAC and the Republican Party

really wanted was an order imposing their proposed

redistricting plans. Petitioners failed completely in this

regard: the three-judge court rejected their plans out of

hand because they suffered "an array of infirmities."

Burton, 793 F.Supp. at 1369. As the Senate now

demonstrates, the only issues on which Petitioners even

arguably succeeded were cither uncontested, procedural,

or insignificant. Thus, the denial of attorneys' fees by the

lower courts was entirely appropriate, and this Court

should not grant certiorari.

I. Introduction

Section 1988 of Title 42 of the United States Code

provides, in relevant part:

In any action or proceeding to enforce a

provision of section[] . . . 1983 . . . of this

title . . . , 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 U.S.C. § 1988(b). Section 1973l(¢) of Title 42 of the

United States Code contains virtually identical "prevailing

13

party" language.* Therefore, this Court has indicated that

these provisions should be similarly construed. See Hensley

v. Eckerhart, 461 U.S. 424, 433 n.7 (1983); Hanrahan v.

Hampton, 446 U.S. 754, 758 n.4 (1980).

This Court has held that to be deemed a "prevailing

party" within the meaning of these provisions, a plaintiff

must succeed on a "'significant issue in J|itigation.'"

Hensley, 461 U.S. at 433 (citation omitted); Farrar, 506

U.S. at 109. Moreover, that victory must consist of some

relief on the merits in the form of "an enforceable

judgment against the defendant from whom fees are

sought or comparable relief through a consent decree or

settlement." Farrar, 506 U.S. at 111 (citation omitted).

Whatever the form of relief, it must materially alter the

legal relationship of the parties. Jd. Moreover, a de

minimis or purely technical victory, even if it suffices to

make a plaintiff a "prevailing party," does not justify an

award of attorneys' fees. Id. at 112-13; see also Texas State

Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782,

792 (1989). In the present case, when the litigation

concluded, Petitioners did not have an enforceable

judgment against the defendants, nor a consent decree or

settlement agreement with the defendants. For this reason

alone, the petition for certiorari should be denied.

Petitioners nonetheless contend that the court of

appeals erred by rejecting the so-called "catalyst" theory

for determining "prevailing party" status. Pet. 9, 12-13.

Under this theory, in certain circumstances, a plaintiff can

obtain attorneys' fees, even if he does not prevail on a

> Specifically, Section 1973l(e¢) provides, “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, other than the United States, a reasonable

attorney's fee as part of the costs." 42 U.S.C. § 1973l(e).

14

Soest entails a

te nak Re whalbitec. ett! ate

: re

significant issue in court, if his lawsuit prompts remedial

action by a defendant. See, ¢g., Brown v. Local 58, Int'l

Bhd. of Elec. Workers, 76 F.3d 762, 771-72 (6th Cir.

1996). Petitioners claim that the Fourth Circuit's

rejection of the "catalyst" theory conflicts with the

approach taken by all other circuits, and request that this

Court grant certiorari to resolve the alleged conflict.

II. This Court Should Deny The Writ Because

Petitioners Disclaimed Reliance On The

"Catalyst" Theory In The Court Below As A

Means Of Satisfying The "Prevailing Party"

Requirement

At the outset, the Senate notes that the central issue

Petitioners present here differs from any of the arguments

they advanced in the court of appeals. There, Petitioners

disclaimed any reliance on the "catalyst" theory as a means

of satisfying the "prevailing party" requirement of both 42

U.S.C. §§ 1973l(e) and 1988(b). See Reply Brief for

Plaintiffs-Appellants 10 (filed April 19, 1996) ("Reply

Br.") ("Appellants do not claim . . . that they are prevailing”

parties based on catalyst theory.") (attached as Appendix).

Petitioners never requested the Fourth Circuit to revisit its

ruling in S-] and S-2 rejecting the "catalyst" theory as a

basis for determining "prevailing party" status. Instead,

Petitioners contended that courts should consider the

"catalyst" theory in determining the amount of an award

after "prevailing party" status had already been

determined. Reply Br. 10 (Appendix). In their petition

for certiorari, by contrast, Petitioners frame the issue as

"[w]hether the court of appeals erred in rejecting . . . [the]

‘catalyst' theory of causation in determining prevailing

party status under 42 U.S.C. §§ 1973i(e) and 1988... ."

Pet. 1.

15

While this Court is, of course, authorized to

consider Petitioners' new argument, see Lebron v. National

R.R. Passenger Corp., 115 S. Ct. 961, 965 (1995), the

Senate respectfully suggests that, in the absence of a

plenary debate in the court of appeals on the issue that

Petitioners present here, a grant of certiorari is not

appropriate in this case. Cf. City of Springfield v. Kibbe,

480 U.S. 257, 259 (1987) ("We ordinarily will not decide

questions not raised or litigated in the lower courts."); see

also Bly v. McLeod, 605 F.2d 134, 138 (4th Cir. 1979)

(refusing to rule on basis of "catalyst" theory because the

plaintiff did not raise the argument in the court below),

cert. denied, 445 U.S. 928 (1980).

II. The Three-Judge Court Acted Well Within Its

Discretion In Holding That Petitioners Were

Not Entitled To Attorneys' Fees Under Any

Theory Because Any Success They May Have

Achieved Was De Minimis

Even if this Court should choose to consider

Petitioners' new argument, the alleged conflict among the

circuit courts need not and should not be resolved in this

case because, regardless of whether the "catalyst" theory

remains viable, the three-judge court acted well within its

discretion in denying attorneys' fees on other grounds.

Thus, certiorari should be denied because, whether or not

the Fourth Circuit's reasoning conflicts with that of other

circuits concerning the "catalyst" theory, the outcome of

this case remains the same.

16

A. The Three-Judge Court Held That, Even

Under The "Catalyst" Theory, Petitioners

Were Not "Prevailing Parties" Because

Whatever Successes They Achieved Were

Insignificant

Petitioners essentially contend that they would have

been entitled to recovery of attorneys' fees if the Fourth

Circuit had applied the "catalyst" theory to this case. This

argument, however, overlooks two crucial points. First,

this Court has expressly held that while plaintiffs must be

deemed "prevailing parties" to be eligible for recovery of

attorneys' fees under 42 U.S.C. §§ 1973l(e) or 1988(b),

Hensley, 461 U.S. at 433 & n.7, that determination alone

does not warrant an award. If the claims on which

plaintiffs prevail are purely techmical or de minimis, an

award of attorneys' fees is not justified. Farrar, 506 U.S.

at 112-13; see also Texas State Teachers Ass'n, 489 U\S. at

792.

Second, Petitioners overlook the fact that while the

court of’appeals may have refused to apply the "catalyst"

theory, the three-judge court held that "[Petitioners]

would not be entitled to attorneys' fees under amy theory

because their successes were only technical or de minimis."

App. 19 (emphasis added). Because the three-judge court

made clear that the "catalyst" theory was included among

the theories it considered in making this determination,

App. 18-19, whether or not Petitioners' lawsuit operated

as a catalyst for legislative action, Petitioners were not

entitled to attorneys' fees. Thus, the applicability of the

"catalyst" theory has no bearing on the outcome of this

case.

B. The Three-Judge Court's Determinations

Regarding Attorneys' Fees Must Be Upheld

Absent An Abuse Of Discretion

Both 42 U.S.C. §§ 1973l(e) and 1988(b) explicitly

grant a district court "discretion" to award attorneys’ fees.

In accordance with the statutory language, the circuit

courts have consistently held that a district court's

determinations as to "prevailing party" status and the

amount, if any, of an attorneys' fees award should be

reviewed only for abuse of discretion. Goehring v. Brophy,

94 F.3d 1294, 1304-05 (9th Cir. 1996) (district court's

finding that plaintiff's lawsuit was not a catalyst was

deemed not an abuse of discretion); Brown, 76 F.3d at

771; Ruffin v. Great Dane Trailers, 969 F.2d 989, 991-92

(llth Cir. 1992), cert. denied, 507 U.S. 910 (1993); Libby

v. Illinois Bigh Sch. Ass'n, 921 F.2d 96, 98 (7th Cir.

1990); see also Kansas Health Care Ass'n v. Kansas Dep't of

Social @ Rehabilitation Servs., 31 F.3d 1052, 1053 (10th

Cir. 1994) ("prevailing party" determination is reviewed

under clearly erroneous standard). Moreover, the district

court's findings of fact underlying these determinations are

reviewed only for clear error. Corderv. Gates, 104

F.3d 247, 249 (9th Cir. 1996); Goehring, 94 F.3d at

1304; Brown, 76 F.3d at 771; Kansas Health Care, 31

F.3d at 1053.

C. The Three-Judge Court Ruled Consistently

With The Case Law And Did Not Abuse Its

Discretion

As the three-judge court observed, App. 19,

Petitioners initially sought four types of relief: (a) a

declaration that the existing districts were tnconstitutional,

(b) an injunction prohibiting their future use, (c) a

declaration that the legislative process was at an impasse,

18

ee ee ee

and (d) adoption of the redistricting plans proposed by

Petitioners. The three-judge court found that Petitioners

had achieved only minimal success on these requests for

relief. As demonstrated below, the three-judge court did

not abuse its discretion.

(a), (b) The three-judge court accurately noted that

the issues of whether the existing districts were

unconstitutional and whether they could be used again

were essentially undisputed. App. 20. These issues were

conceded by the defendants in their answers to the

complaint, and stipulated to before trial. App. 20; Burton,

793 F. Supp. at 1336 n.2. Consequently, these issues

consumed almost none of the court's time and were

disposed of by the court in a footnote in its opinion. App.

20; Burton, 793 F. Supp. at 1336 n.2. Because all parties

were in agreement and no litigation on these issues was

required, the three-judge court properly found that the

issues were not significant in the litigation and that

Petitioners were not entitled to attorneys' fees. This ruling

was entirely consistent with this Court's precedents. See

Farrar, 506 U.S. at 109 (plaintiffs must succeed on a

significant issue in the litigation to be considered

"prevailing parties"); Hensley, 461 U.S. at 433 (same).°

Even if Petitioners' success on these issues could

technically qualify them as "prevailing parties," because the

° See also Jackson v. Stevenson, 666 F. Supp. 99, 100-02 (S.D.

Miss. 1986) (plaintiffs sought a declaration that the existing

districts were unconstitutional, an injunction against their

continued use, and a court order implementing new

redistricting plans; held, attorneys' fees denied under the

"catalyst" theory because “at the time plaintiffs filed suit,

defendants had already begun the process of redistricting and

[they] . . . conscientiously strove toward that end regardless of

plaintiffs' actions"), aff'd mem., 810 F.2d 197 (5th Cir. 1987).

19

issues were undisputed from the outset, such a victory can

only be viewed as too technical and de minimis to warrant

any attorneys' fees. Farrar, 506 U.S. at 113; Texas State

Teachers Ass'n, 489 U.S. at 792 (technical victory may be

too insignificant to qualify for "prevailing party" status).

(c) The three-judge court also properly held that its

finding in February 1992 that the General Assembly was at

an impasse did not merit an award of attorneys’ fees. This

ruling did not represent any victory on the merits for

Petitioners, but rather was merely an interlocutory ruling

that allowed the case to go forward. App. 22-23. As such,

this ruling did not warrant a fee award. See Hewitt v.

Helms, 482 U.S. 755, 760 (1987) (denying attorneys’ fees

when "(t]he most that [the plaintiff] obtained was an

interlocutory ruling that his complaint should not have

been dismissed for failure to state a constitutional claim" );

Hanrahan, 446 U.S. at 759 ("procedural or evidentiary

rulings . . . may affect the disposition on the merits, but

[are] themselves not matters on which a party could

‘prevail' for purposes of shifting his counsel fees to the

opposing party"). Moreover, like the issues of

malapportionment and preventing future use of the plans,

the issue of whether there was an impasse was basically

undisputed. Thus, even if the ruling on the impasse issue

had made Petitioners "prevailing parties," that success was

purely technical and de minimis and, therefore, did not

merit recovery of attorneys' fees. See Farrar, 506 US. at

113.’

(d) The three-judge court also properly found that

Petitioners were not "prevailing parties" by virtue of

” It would be particularly inappropriate to award Petitioners

attorneys' fees based on a finding of legislative impasse given

that the impasse was caused by a veto of the General Assembly's

plan by a Republican governor.

20

—

obtaining court-ordered plans for the 1992 elections.

App. 24-25. As the court noted, Petitioners' primary

objectives with respect to new redistricting plans were not

simply to secure new redistricting plans, but rather to have

their respective proposed plans adopted. App. 24.

Consequently, the parties spent the bulk of the trial and

the bulk of their fees advocating their proposed plans. The

SRAC and the Republican Party each advocated a plan for

the Senate with fourteen black-majority districts -- the

maximum number possible. The three-judge court,

however, soundly rejected maximization. See Johnson v. De

Grandy, 512 U.S. 997, 1022 (1994) (Voting Rights Act

does not require drawing the maximum possible number

of miajority-minority districts). In particular, the

Republican Party advocated the drawing of a district in the

Savannah River valley along South Carolina's western

border that disregarded established communities of

interest in order to create an elongated, non-compact

black-majority district." The three-judge court soundly

rejected this district. Burton, 793 F.Supp. at 1360.

Finally, the SRAC and the Republican Party argued that,

in measuring whether the proposed plans had a

discriminatory effect under Section 5 of the Voting Rights

Act, the court should have compared them with each

other, rather than with the pre-existing plans. The

three-judge court soundly rejected this argument as well.

Id. at 1347-48; see Beer v. United States, 425 U.S. 130,

141-42 (1976) (comparing proposed plan with

pre-existing plan to determine whether proposed plan had

a discriminatory effect). In short, Petitioners' proposed

plans "suffered an array of infirmities," 793 F. Supp. at

1369, and the court-ordered plans "did not remotely

resemble the plans proposed by either [Petitioner]."_ App.

* The SRAC advocated a similar district in its proposed plan.

21

25. In fact, the court's plan more closely resernbled the

plans proposed by the Senate than those advanced by

Petitioners.

Hastert v. Illinois State Board of Election

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

115 S. Ct. 426 (1994), demonstrates that the three-judge

court ruled correctly. There, relying on the principles set

forth by this Court in Hensley and Texas State Teachers

Association, the court held that a party whose proposed

redistricting plan was rejected by the court could not be

deemed a "prevailing party." 28 F.3d at 1439-43. In

reaching this conclusion, the court explicitly rejected the

losing party's argument that it prevailed because it "was a

substantial factor in eradicating conduct that violates the

Voting Rights Act." Jd. at 1443. Here, as in Hastert,

because their proposed plans were soundly rejected by the

three-judge court, the SRAC and the Republican Party

cannot be deemed "prevailing parties."°

The three-judge court also correctly ruled that the

SRAC was not entitled to attorneys' fees as a result of this

Court's decision to vacate the judgment of the three-judge

® Noting that in redistricting litigation, 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," the Hastert court stated, "Conveniently, this

common-sense understanding of winners and losers coincides

in large part with the Supreme Court's definition of 'prevailing

party.'" Hastert, 28 F.3d at 1439. Under this standard, the

party that came closest to prevailing was the Senate, since its

proposed plan bore more resemblance than any other proposed

plan to the plan ultimately drawn by the court for the Senate.

22

court and remand for further proceedings.'° In

Hanrahan, this Court ruled that plaintiffs are not

"prevailing parties" when they convince an appellate court

to reverse the trial court and to remand for additional

proceedings. In that case, the trial court directed verdicts

for the defendants in a civil rights action brought under 42

U.S.C. § 1983. The court of appeals reversed and

remanded for a new trial. This Court held that the

plaintiffs were not "prevailing parties" under 42 U.S.C.

§ 1988 because they had "not prevailed on the merits of

any of their claims," but rather had demonstrated only that

they "were entitled to a trial of their cause." 446 US. at

758; see also Swietlowich v. County of Bucks, 620 F.2d 33,

34 (3d Cir. 1980) (remand to trial court not sufficient, in

and of itself, to make plaintiff a "prevailing party").

Thus, here (as in Hanrahan), Petitioners'

entitlement to attorneys' fees cannot rest on their alleged

success on appeal. Rather, they must demonstrate that

they prevailed on some significant issue on the merits on

remand. But Petitioners cannot make such a showing,

because (even assuming the validity of the "catalyst"

theory), the three-judge court did not find that the

General Assembly's adoption of new plans following the

remand rendered Petitioners "prevailing parties." And, as

Judge Niemeyer stated in his concurrence in the court of

appeals opinion, "the question of who prevailed, even

when measuring the results obtained through the political

process, is so unclear that whether we apply S-1 and S-2 or

evaluate who won in the political arena, I could not

*° As noted above, the Republican Party did not join the appeal

to this Court, and thus cannot possibly recover attorneys' fees

based on the appeal.

23

conclude that the district court abused its discretion in

denying [Petitioners'] attorneys fees." App. 9."

D. Petitioners' Alleged Success In Obtaining

An Order Requiring The Senate To Preclear

The Plan For The 1994 Special Election

Was De Minimis

Both the court of appeals and the three-judge court

found that Petitioners' success in obtaining a court order

which required the Senate to submit the court-ordered

plan for District One that had been used for the 1992

elections for preclearance before using it in a 1994 Senate

special election was purely technical or de minimis and,

therefore, did not justify an award of attorneys' fees. App.

8, 26. These findings are correct because this issue was

collateral to the litigation, Petitioners’ participation in the

debate was superfluous, and the plan was precleared

without any changes or objections.

Whether preclearance was required prior to the

Senate's use of the 1992 court-ordered plan for District

One in its 1994 special election was an entirely collateral

issue to the redistricting litigation, which primarily

concerned implementation of permanent redistricting plans

in South Carolina based on the 1990 census. This Court

ruled in Hanrahan, 446 U.S. at 758-59, that interlocutory

or procedural victories that do not go to the merits of a

claim, such as favorable discovery or evidentiary rulings,

! Moreover, in light of the current litigation involving these

same parties and district plans in which some black-majority

districts have been ruled unconstitutional, see Smith v. Beasley,

946 F. Supp. 1174, 1210 (D.S.C. 1996), it would be

premature to award attorneys' fees to Petitioners as "prevailing

parties" based on enactment of these plans.

24

cannot render a party "prevailing" for purposes of

attorneys' fees awards.

In addition, the preclearance debate, which was

initiated by the Senate -- not Petitioners or the United

States -- primarily involved only the Senate and the United

States (specifically, DOJ). After directly contacting DOJ

to ascertain its position, the Senate requested the

three-judge court's guidance concerning whether

preclearance was required in order to use the

court-ordered plan for District One for the special election.

DOJ then filed a response asserting that preclearance was

required. While Petitioners also filed responses asserting

the same position as DOJ, their presence was superfluous

because DOJ was directly involved and performing its

designated function to enforce Section 5.

Donnell v. United States, 682 F.2d 240, 245-49

(D.C. Cir. 1982), cert. denied, 459 U.S. 1204 (1983),

demonstrates why an award of attorneys' fees is not

appropriate for this claim. In that case, a county Board of

Supervisors filed. an action against the United States

seeking a declaratory judgment that its proposed districting

plan complied with Section 5. Various private parties

intervened in support of the United States. After the

United States prevailed on the basis that the county had

failed to demonstrate a nondiscriminatory purpose for the

plan, these private parties sought attorneys' fees as

"prevailing parties." Id. at 244. In remanding to the

district court for further consideration, the appellate court

held that, "[w]here Congress has charged a governmental

entity to enforce a statutory provision, and the entity

successfully does so, an intervenor should be awarded

attorneys’ fees only if it contributed substantially to the

success of the litigation." Jd. at 248-49. The court

reasoned that "Congress did not intend to allow private

25

litigants to ride the back of the Justice Department to an

easy award of attorneys' fees." Jd. at 249. Here,

Petitioners made minimal, if any, contributions to the

debate between the Senate and DOJ concerning

preclearance.

Finally, the de minimis nature of any arguable

success by Petitioners on this issue is illustrated by the fact

that, after submission to DOJ, the proposed district was

precleared by DOJ without any objections or changes.

Thus, while there may have technically been a procedural

victory in obtaining a court order requiring the Senate to

obtain preclearance of the plan, there was no success on

the merits, as Farrar requires, because the district was used

in exactly the same form in which it was submitted. This

procedural victory alone is insufficient to render Petitioners

"prevailing" on this issue. See Hewitt, 482 U.S. at 760

(stating that a plaintiff could not be a "prevailing party"

where "(t]he most that [the plaintiff] obtained was an

interlocutory ruling that his complaint should not have

been dismissed for failure to state a constitutional claim");

see also Leroy v. City of Houston, 831 F.2d 576, 578 (5th

Cir. 1987) (noting related case denying attorneys' fees to

parties who filed a complaint seeking an order requiring

preclearance because defendant had already submitted plan

at time complaint was filed, and plan was subsequently

precleared), cert. denied, 486 U.S. 1008 (1988). Thus, for

all of the foregoing reasons, Petitioners are not entitled to

attorneys’ fees based on the three-judge court's Section 5

preclearance ruling.”

2 Even if this Court were to determine that Petitioners are

"prevailing parties" entitled to recover some attorncys' fees, the

Senate cannot be assessed attorneys' fees because it is an

intervenor defendant. See Independent Fed'n of Flight

(Footnote continued)

26

CONCLUSION

As demonstrated above, the petition for writ of

certiorari should be denied.

Dated: March 6, 1997 Respectfully submitted,

FRED THOMPSON, III GeEDNEY M. Howe, III, P.A.

SToKEs & THOMPSON 8 Chalmers Street

151 Meeting Street Charleston, S.C. 29402

Charleston, $.C. 29402 (803) 722-8048

(803) 723-9600

Mark A. PACKMAN

Counsel of Record

Jop1 TRULOVE

DICKSTEIN SHAPIRO MorRIN

& OsHinsky LLP

2101 L Street, N.W.

Washington, D.C. 20037

(202) 785-9700

Attorneys for Respondent

South Carolina Senate

(Footnote continued)

Attendants v. Zipes, 491 U.S. 754, 761 (1989) (Court denied

award of attorneys' fees against labor union that intervened in

employment discrimination action, stating that attorneys' fees

should not be awarded against an intervenor defendant unless

the "“intervenor['s] action was frivolous, unreasonable, or

without foundation"). Moreover, the Senate enjoys legislative

immunity from attorneys' fees liability for its legislative actions

in the redistricting process. See Supreme Court of Virginia v.

Consumers Union of United States, Inc., 446 U.S. 719, 738-39

(1980) (principle of legislative immunity precludes awards of

Section 1988 attorneys' fees premised on the exercise or

nonexercise of legislative powers).

27

APPENDIX

APPENDIX

IN THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Nos. 96-1086(L), 96-1099

STATEWIDE REAPPORTIONMENT

ADVISORY COMMITTEE, ET AL.,

Plaintiffs-Appellants,

v.

DAVID M. BEASLEY,

Governor of South Carolina, ET AL.,

Defendants-Appellees.

REPLY BRIEF FOR PLAINTIFES-APPELLANTS

* = * 2

[Page 10]

Appellants do not claim, as appellees contend,

that they are prevailing parties based on catalyst theory.

Brief for Defendants-Appellees, p. 16. The courts have,

however, applied catalyst theory at "the secondary stage of

evaluating the degree of success obtained" by a prevailing

party. Clark v. Sims, 894 F. Supp. 868, 872 (D. Md.

1995). It is entirely appropriate for a court to take into

account the benefits to the public at large and "the public

purpose served" by the litigation in determining a fee

award. Farrar v. Hobby, 113 S. Ct. 566, 579 (1992)

(O'Connor, J., concurring).