Amicus Curiae Brief — Housing Authority of Dallas v. Highlands of McKamy IV & V Community Improvement Ass'n

fa’ Supreme Court, US. |

2 FILED |

No. 02-1282 APR 8 2005

In The CLERK :

Supreme Court of the Gnited States

2

Vv

THE HOUSING AUTHORITY OF THE

CITY OF DALLAS,

Petitioner,

vs.

IMPROVEMENT ASSOCIATION, ET AL.,

Respondents.

,

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On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

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AMICUS CURIAE BRIEF OF THE

TEXAS ASSOCIATION OF COUNTIES

IN SUPPORT OF PETITIONER

-

ROBERT L. LEMENS WILLIAM W. KRUEGER, III*

C. REX HALL JOANNA R. LIPPMAN

TEXAS ASSOCIATION OF FLETCHER & SPRINGER, L.L.P.

COUNTIES 720 Brazos, Suite 1100

1204 San Antonio Street Austin, Texas 78701

Austin, Texas 78701 (512) 476-5300

(512) 478-8753 (512) 476-5771 (fax)

G12) 476-9578 (fax) *Counsel of Record for

Texas Association of Counties,

Amicus Curiae

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

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QUESTIONS PRESENTED

Whether a civil rights defendant’s compliance with a

court order is a “special circumstance” prohibiting the

award of attorney’s fees under 42 U.S.C. §1988.

Whether “prevailing party” status is justified for

rewording a court order as opposed to a material re-

covery of the relief sought.

ii

TABLE OF CONTENTS

Page

I I viniins sechastndnttnin we cosas aceasta sikiniaiaas i

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a EE I sii tnt ditt dghnrnntnitcincintinis ili

Interest of Texas Association of Counties, Amicus

SMPIUID .sicknicison deucierinavdvenucanandataiaeinioua dentiadhadin wibiccenain

SUMING OF AIOE occ cicinsirescncesesstonenssncvereqexevonacese

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I. The compliance with a court order, in a civil

rights case, is a special circumstance that

prohibits the award of attorney’s fees under _

42 U.S.C. §1988. Any decision to the contrary

plainly warrants this Court’s review and

jeopardizes the authority of the judicial sys-

WIE cwinnesrtvincsdecsninedaaedeateaianancsaeicte aie

II. This Honorable Court should grant review to

determine the recovery necessary for “pre-

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TABLE OF AUTHORITIES

CASES

Bauer v. Sampson, 261 F.3d 775 (9th Cir. 2001)........

Cooper v. Singer, 719 F.2d 1496 (10th Cir. 1983),

abrogated on other grounds, Venegas v. Mitchell,

495 U.S. 82, 110 S. Ct. 1679 (1990) ..............ccssseeee.

Cunningham v. City of McKeesport, 753 F.2d 262

(3d Cir. 1985), vacated and remanded on other

grounds and reinstated, 807 F.2d 49 (3d Cir.

Dondi Properties Corp v. Commerce Sav. & Loan

Ass’n, 121 FRD 284 (N.D. Tex. 1988)............ cco

Farrar v. Hobby, 506 U.S. 103, 113 S. Ct. 566 (1992)

GTE Sylvania, Inc. v. Consumers Union of the

United States, Inc., 445 U.S. 375, 100 S. Ct. 1194

LR acbixchsviisnianansansbenintavdsantssnsatassansnrneavsevennptansivesens

Hewitt v. Helms, 482 U.S. 755, 107 S. Ct. 2672

DUI Ul Lida didiisiatncetogchiicunvaes tanekcksundiebecntcumenceaskenneets

Kerr v. Quinn, 692 F.2d 875 (2d Cir. 1982).................

Newman v. Piggie Park Enterprises, Inc., 390 U.S.

le it I © RI viccevsnkespssnsnccesocessvesetennsesves

Sanchez v. Schwartz, 688 F.2d 503 (7th Cir. 1982)....

Scham v. District Courts Trying Criminal Cases,

148 F.3d 564 (Gth Cirg1998)...............cveccrecssosoreees

Seattle School Dist. No. 1 v. State of Washington,

633 F.3d 1338 (Sth Cir. 1980)...............cccssssseossereees

United States v. United Mine Worker’s of America,

330 U.S. 258, 67 S. Ct. 677 (1947) .........:..00esceeseseees

iv

TABLE OF AUTHORITIES — Continued

Page

Walker v. City of Birmingham, 388 U.S. 307, 87

Be i Se Bicaeiesntniainiscitionstaesnarniiacinaia ahaa 7

Walker, et al. v. City of Mesquite, et al., 313 F.3d 246

ERI SAI TIED ciincacsneicaistncdtietnanniniaeeiiauaaicatnnaataianaeubetes 4

Williams v. Hanover Housing Auth., 113 F.3d 1294

CI le IIE csietaianeasacadinracenabinsnstietievacanbebaninigiiniieeiathaseintes 5

STATUTES a"

ee as NE icacninediteisdarnithaatliaeicandnaiaonsuuniaidend eines 2

AF ee tek ita siteneabenccicaiipiseaalnnctaimaees 3, 4, 5,9

Local Rules of the Northern District of Texas, LR

Ge ie citsicecinasinaninnatiasiinginisisaviasonainaualencanmemaasimiiamndaaliaae 7

pune Cmte e BED BGG asics ensvcssecncesavessksvnsessnnsstianverses 1

Texas Disciplinary Rules of Professional Conduct,

BRIS TIE - sats ntsestceiniedeeidinehaniguaieuiiaieindstiihenianicabumbicaniamenniin 7

OTHER AUTHORITIES

S. Rep. No. 94-1011 (1976), reprinted in 1976

U.S.C.C.A.N. 5908, 5909 and 5912................cccccccoccscceees 5

ike RN Ie Ga ers cistaiensinnenneviwenctesetiencnnmune 5

reread

INTEREST OF THE TEXAS ASSOCIATION

OF COUNTIES, AMICUS CURIAE

The Texas Association of Counties is a Texas non-

profit corporation with 254 Texas counties as members.

Represented on the Board of Directors of the Texas Asso-

ciation of Counties (“TAC”) are the following associations:

the County Judges and Commissioners Association, the

North and East Texas Judges’ and Commissioners’ Asso-

ciation, the South Texas Judges’ and Commissioners’

Association, the West Texas Judges’ and Commissioners’

Association, the Texas District and County Attorneys’

Association, the Sheriff’s Association of Texas, The County

and District Clerks’ Association of Texas, the Texas Asso-

ciation of Tax Assessor-Collectors, the Texas County

Treasurers’ Association, the Justice of the Peace and

Constables’ Association of Texas, and the County Auditors’

Association of Texas.’

TAC and its representative entities are actively

engaged in government operations, with limited public

funding and divergent constituents. It is imperative that

TAC rely upon court orders without fear, prejudice or

punishment. The public funding necessary for these

operations should not be diverted due to poorly worded,

unequally enforced statutes. TAC must be able to confi-

dently rely upon the legal standards used to award attor-

ney’s fees.

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‘The parties have consented to the filing of this brief. Counsel for

a party did not author this brief in the whole or in part. No person nor

entity, other than the amicus curiae, its members, or its counsel, made

a monetary contribution to the preparation and submission of this brief.

Sup. Ct. R. 37.6.

2

STATEMENT OF FACTS

This is a civil rights institutional reform case brought

by African-Americans who complained of racial discrimi-

nation in the administration of Petitioner’s, The Housing

Authority of the City of Dallas (“DHA”, “Housing Author-

ity”) public housing programs. The district court had

federal question jurisdiction over this case pursuant to 28

_ U.S.C. §1331. The district court found the Housing Au-

thority liable and, among other things, ordered the Hous-

ing Authority to buy or build public housing in

“predominantly white areas.”

Complying with the district court’s order, DHA bought

two unimproved tracts in a predominantly white area

(“the Sites”), and announced plans to build a small apart-

ment complex on each tract. The Respondents, a group of

homeowners living nearby (“the Homeowners”), challenged

the Remedial Order and sought injunctive relief to prevent

the construction of public housing in their neighborhood.

The district court rejected the Homeowners’ claim that the

Remedial Order discriminated against them on the basis

of their race (predominantly white), and denied relief to

the Homeowners. The Homeowners appealed the district

court’s ruling to the United States Court of Appeals for the

Fifth Circuit in Case 97-11083. ;

On March 16, 1999, the Fifth Circuit held that the

application of the “predominantly white” requirement

deprived the Homeowners of their Constitutionally pro-

tected right to equal protection; the Circuit Court reversed

the district court and remanded with instructions to

eliminate the “predominantly white” requirement from the

Remedial Order. The Circuit Court did not, however,

enjoin the construction of public housing on the Sites; the

3

court instead held that its opinion does not preclude the

construction of public housing on the Sites, provided the

Sites are selected by means of non-racial criteria.

The Homeowners then sought attorney’s fees relating

to their action for injunctive relief and their appeal of the

district court’s order denying injunctive relief. After an

evidentiary hearing, the magistrate judge recommended

denial of the motion for attorney's fees, and the district

judge adopted the findings, conclusions, and recommenda-

tions of the magistrate judge. The Homeowners appealed

from the district judge’s order denying attorney’s fees.

On appeal, the Housing Authority argued that the

Homeowners were not entitled to attorney’s fees because

(1) the Homeowners did not get the injunctive relief they

sued for and, therefore, were not a prevailing party within

the meaning of §1988; (2) attorney's fees should not be

imposed on DHA when it did nothing more than obey the

district court’s order; and (3) the Homeowners failed to

prove the amount of their fees.

The Court of Appeals reversed, finding that (1) al-

though the Homeowners failed to get the injunctive relief

they sued for, they were a prevailing party because they

forced the district court to revise the Remedial Order; and

(2) the fact that DHA was forced to apply the “predomi-

nantly white” requirement at the risk of imprisonment

and fine was not a “special circumstance” that would

render the imposition of attorney’s fees unjust, because (i)

“a state actor’s good faith compliance with an official or

legal requirement that is unconstitutional is not a special

circumstance that justifies the denial of attorney's fees”;

(ii) “DHA did not litigate the unconstitutional terms of the

Remedial Order; it instead chose not to contest the Walker

4

plaintiffs’ motion for summary judgment”; and (iii) “it

seems particularly inappropriate to deny the Homeowners

attorney's fees because the DHA acquiesced to a remedy

that infringed upon the Homeowners’ rights.” Walker, et al.

v. City of Mesquite, et al., 313 F.3d 246, 251 (5th Cir. 2002).

¢

SUMMARY OF ARGUMENT

The compliance with a court order, in a civil rights

case, is a special circumstance that prohibits the award of

attorney’s fees under 42 U.S.C. §1988. Any decision to the

contrary plainly warrants this Court’s review and jeopard-

izes the authority of the judicial system. This Honorable

Court should grant review to determine the recovery

necessary for “prevailing party” status. It is not enough to

reword an order; the relief rewarded must be material to

the relief sought.

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ARGUMENT

I. The compliance with a court order, in a civil

rights case, is a special circumstance that

prohibits the award of attorney’s fees under

42 U.S.C. §1988. Any decision to the contrary

plainly warrants this Court’s review and

jeopardizes the authority of the judicial sys-

tem.

Title 42 of the United States Code §1988, provides, in

part, that:

“In any action or proceeding to enforce the provi-

sion [Section] . . . 1983 . . ., the Court in its

5

discretion, may allow the prevailing party. . .a

reasonable attorney’s fee as part of the cost. . .”

The statute allows for a discretionary award of attorney’s

fees to a “prevailing party” unless “special circumstances”

would make such an award unjust. 42 U.S.C. §1988

(2002); Newman v. Piggie Park Ent., Inc., 390 U.S. 400,

402, 88 S. Ct. 964, 966 (1968). This legislation was passed

to ensure the uniform application of the civil rights laws.

Congress intended to achieve consistency among the

various circuits and this Honorable Court. S. Rep. No. 94-

1011,1N4. (1976), reprinted in 1976 U.S.C.C.A.N. 5908,

5909 and 5912; See also H. Rep. No. 94-15581, 3 (1976).

To date, the Federal Courts have failed to achieve the

consistency in our civil rights laws previously mandated

by Congress. There is no standard or guideline for the

“special circumstances” exception among the various

Federal Circuits and this Honorable Court. There are no

guidelines at all in the Third or Sixth Circuits where the

“special circumstances” exception was found to justify a

denial of attorney’s fees. The First, Second, Fifth and

Ninth Circuits apply varying standards with varying

results. The Third, Seventh and Tenth Circuits reject the

current standard for the “special circumstances” exception

employed in the Second Circuit. Further, the First Circuit

has explicitly rejected the Ninth Circuit’s “balancing

of equities” approach.” Accordingly, the legislative

? Williams v. Hanover Housing Auth., 113 F.3d 1294, 1301 (1st Cir.

1997); Kerr v. Quinn, 692 F.2d (2d Cir. 1982); Scham v. District Courts

Trying Criminal Cases, 148 F.3d 554, 557, 558-59 (5th Cir. 1998); Bauer

v. Sampson, 261 F.3d 775,785-86 (9th Cir. 2001); Seattle School Dist.

No. 1 v. State of Washington, 633 F.3d 1338, 1348 (9th Cir. 1980);

Cunningham v. City of McKeesport, 753 F.2d 262, 268 (3d Cir. 1985),

(Continued on following page)

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consistency commanded by Congress is sorely lacking in

the Federal Courts.

This litigation is an excellent example of the confusion

in our judicial system. In the case at bar, DHA has been

involved in litigation for approximately 18 years. In March

of 1992, a 1987 consent decree was vacated and eventually

a remedial order was entered in February 1995 affecting

DHA. This order, among other things, directed the Hous-

ing Authority to buy or build public housing in “predomi-

nantly white areas.” The term “predominantly white area”

was defined as less than 37% Hispanic, Black or other

minority. After so many years of court intervention,

expense and litigation, DHA merely complied with this

order. The Homeowners filed this suit against DHA to

enjoin the construction of two new 40-unit public housing

projects on sites adjacent to their neighborhoods. Respon-

dents sought to prevent DHA from acquiring sites, or in

the alternative, from constructing public housing in their

neighborhoods.

As a result of the Homeowner’s litigation, the terms of

the Remedial Order have been modified; but, the spirit of

the pronouncement has not changed in the least. DHA, in

its discretion, may continue to develop public housing on

the previously purchased sites. Nevertheless, the Fifth

Circuit Court of Appeals ruled that the Homeowners were

the “prevailing parties” and the “special circumstances”

vacated and remanded on other grounds and reinstated, 807 F.2d 49 (3d

Cir. 1987) (“the statute contains no contingent fee exception”); Sanchez

v. Schwartz, 688 F.2d 503, 505 (7th Cir. 1982); Cooper v. Singer, 719

F.2d 1496, 1501-02 (10th Cir. 1983), abrogated on other grounds,

Venegas v. Mitchell, 495 U.S. 82, 110 S. Ct. 1679 (1990).

exception was inapplicable. The issue here is whether

DHA operated under “special circumstances” that would

render an award of attorney's fees unjust.

This Honorable Court requires parties to comply with

court orders even if there might be grounds to object to the

court order or if the order is subject to substantial consti-

tutional question.’ To defy a court order may subject the

defiant to monetary fines and/or criminal contempt, even

though the order may be set aside on appeal. In this way,

litigants must place complete confidence in the judicial

mandates that emanate from litigation. Where judicial

orders are concerned, there is no right of defiance beyond a

timely appeal.

The ethical rules of professional conduct also require

proper compliance with court orders. For instance, the

Texas Disciplinary Rules of Professional Conduct, Rule

3.01; Local Rules of the Northern District of Texas, LR

83.8; and Dondi Properties Corp v. Commerce Sav. & Loan

Ass’n, 121 FRD 284, 286 (N.D. Tex. 1988). These rules are

mirrored throughout our judicial system.

It is not proper to punish a party for complying with a

Court’s order. To award attorney's fees against a compliant

party is unjust. This Honorable Court should grant review

to clearly delineate the “special circumstances” necessary

to render an award of attorney’ fees unjust. This Court

* GTE Sylvania, Inc. v. Consumers Union of the United States,

Inc., 445 U.S. 375, 386, 100 S. Ct. 1194, 1201 (1980); Walker v. City of

Birmingham, 388 U.S. 307, 314-315, 87 S. Ct. 1824, 1828-1829 (1967);

United States v. United Mine Worker’s of America, 330 U.S. 258, 293, 67

S. Ct. 677, 695-696 (1947).

8

cannot allow the lower court’s decision to punish parties

for complying with the Court orders.

II. This Honorable Court should grant review to

determine the recovery necessary for “pre-

vailing party” status.

The Homeowners sued for an injunction prohibiting

and restraining DHA from developing public housing in

their neighborhoods. The Homeowners were initially

denied “prevailing party” status by the District Court.

This decision was reversed on appeal to the Fifth Circuit.

The Appellate Court ordered the removal of the phrase

“predominantly white area” in a remedial order. This

modification did not affect the spirit of the prior remedial

order and its author’s intent. DHA was allowed to con-

tinue, granted on a race-neutral basis, with its develop-

ment activities. Even now, the Housing Authority may, in

its discretion, develop the litigated parcels of land. The

Homeowners’ effort to stop DHA’s development completely

failed. )

The Homeowners have not “prevailed” in any material

or realistic way. The moral satisfaction that results from

any favorable statement or re-statement of the law cannot

bestow prevailing party status. Farrar v. Hobby, 506 U.S.

103, 112, 113 S. Ct. 566 (1992); Hewitt v. Helms, 482 U.S.

755, 762, 107 S. Ct. 2672 (1987).

To allow the Appellate Decision to stand, controverts

this Court’s previous rulings and allows the form of a

Court’s order to overwhelm the substance of United States

Law. This issue deserves review by this Honorable Court.

Ps

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CONCLUSION

The compliance with a court order, in a civil rights

case, is a special circumstance that prohibits the award of

attorney's fees under 42 U.S.C. §1988. Any decision to the

contrary plainly warrants this Court’s review and jeopard-

izes the authority of the judicial system. This Honorable

Court should grant review to determine the recovery

necessary for “prevailing party” status. It is not enough to

reword an order; the relief rewarded must be material to

the relief sought. —

Respectfully submitted,

ROBERT L. LEMENS WILLIAM W. KRUEGER, III*

C. REX HALL JOANNA R. LIPPMAN

TEXAS ASSOCIATION OF FLETCHER & SPRINGER, L.L.P.

COUNTIES _ 720 Brazos, Suite 1100

1204 San Antonio Street Austin, Texas 78701

Austin, Texas 78701 (512) 476-5300

(512) 478-8753 (512) 476-5771 (fax) —

(512) 478-8578 (fax) *Counsel of Record for

Amicus Curiae