Opposition Brief — Zessar v. Keith (No. 08-853)

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No. 08-853 | GUPREME COURT. U.S.

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In the

Supreme Court of the United States

BRUCE ZESSAR, PETITIONER,

JOHN R. KEITH, ET AL., RESPONDENTS.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Seventh Circuit

BRIEF IN OPPOSITION

MICHAEL J. WALLER Lisa MADIGAN

Lake County State's Atty. Attorney General of Illinois

DANIEL L. JASICA MICHAEL A. SCODRO*

CARLA N. WYCKOFF Solicitor General

Asst States Attorneys JANE ELINOR Notz

18 North County Street Deputy Solicitor General

Waukegan, Illinois 60085 BRETT E. LEGNER

Ass't Attorney General

Counsel for Respondent 100 West Randolph Street

Lake County Clerk Chicago, Illinois 60601

Willard Helander (312) 814-3698

Counsel for Illinois State

*Counsel of Record Bd. of Elections Respondents

QUESTION PRESENTED

Whether a plaintiff is entitled to attorneys’ fees

under 42 U.S.C. § 1988 when the district court denied

his request for preliminary injunctive relief and

therefore refused to compel defendants to alter their

conduct in any way, and plaintiffs only favorable,

interlocutory order was mooted by a legislative change

that plaintiff unsuccessfully challenged as inadequate

to remedy his original constitutional claim.

11

TABLE OF CONTENTS

Page

ge 8 Sa 0 i

By 6k ey ED i]

Ne ok ye sate e a hee ewes 1

REASONS FOR DENYING THE PETITION ..... 4

Er) a 18

lll

TABLE OF AUTHORITIES

Cases: Page

Buckhannon Bd. & Care Home, Inc. v. W. Va.

Dep't of Health, 532 U.S. 598 (2001)..... passim

Chem. Producers & Distribs. Ass'n v. Helliker,

463 F.3d 871 (9th Cir. 2006) ............... 15

Christina A. v. Bloomberg,

315 F.3d 990 (8th Cir. 2003) ............... iz

Dearmore v. City of Garland,

519 F.30 517 (Sth Cir. 2008) .............. 8,9

Dupuy v. Samuels, 423 F.3d 714 (7th Cir. 2005) ... 7

Farrar v. Hobby, 506 U.S. 103 (1992) ........5,11

Khodara Enutl. ex rel. Eagle Envtl. L.P. v.

Beckman, 237 F.3d 186 (3d Cir. 2001) ....... 16

McClendon v. City of Albuquerque,

100 F.3d 863 (10th Cir. 1996) .............-. 16

Me. Sch. Admin. Dist. No. 35 v. Mr. R..

321 F.3d S(ist Cir. 2063) ..........:.. & & B33

Nat'l Black Police Ass'n v. Dist. of Columbia,

108 F.3d 346 (D.C. Cir. 1997) 15, 16

Palmetto Props.., [nc. uv. County of Du Page.

375 F.3d 542 (7th Cir. 2004) . Dany 6

1V

People Against Police Violence v. City of

Pittsburgh, 520 F.3d 226 (3d Cir. 2008)

Pres. Coalition of Erie County v. Fed. Transit

Admin., 356 F.3d 444 (2d Cir. 2004)

Sandusky County v. Blackwell,

191 Fed. Appx. 397 (6th Cir. 2006)

Select Milk Producers, Inc. v. Johanns,

400 F.3d 939 (D.C. Cir. 2005)

Smyth v. Rivero, 282 F.3d 268 (4th Cir. 2002) ....

Sole v. Wyner, 127 S. Ct. 2188 (5

United States v. Flowers,

281 Fed. Appx. 906 (11th Cir. 2008)

Valero Terrestrial Corp. v. Paige,

211 F.3d 112 (4th Cir. 2000)

Watson v. County of Riverside,

300 F.3d 1092 (9th Cir. 2002) ...

Young v. City of Chicago,

202 F.3d 1000 (7th Cir. 2000) ..

Statutes:

10 ILCS 5/19-1 et seg. (2004)

10 ILCS 5/19-1 et seq. (2006)

BRIEF IN OPPOSITION

The certiorari petition should be denied. Petitioner

does not identify any actual conflict in lower court

authority. Instead, he attempts to manufacture a split,

but he does so only by misstating the holding below

and eliding facts critical to the court of appeals’

decision.

STATEMENT

1. In 2005, petitioner filed a complaint for

prospective injunctive relief and damages, alleging

that the absentee ballot provisions of the Illinois

Eiection Code as then written, 10 [LCS 5/19-1 et seq.

(2004), violated his constitutional rights because they

failed to provide adequate notice and a hearing to

absentee voters whcse ballots were rejected. R. 1.

2. The district court certified a plaintiff class

comprised of Illinois voters who submitted an absentee

ballot for the November 2004 general election and had

that ballot rejected without timely notice and an

opportunity for a hearing. R. 85. The court also

certified a defendant class of Ilinois’s 110 local election

authorities. Thid. The defendant class was

represented by the remaining named defendants (after

several defendants were dismissed), who. are

respondents here: the members and Executive

Director of the Illinois State Board of Elections (State

Respondents) and Willard R. Helander. the Clerk of

Lake County, Illinois. /b6id.

*)

3. The parties filed cross-motions for summary

judgment, and on March 8, 2006, the district court

entered an interlocutory order denying respondents

motions and granting petitioners motion in part.

2

R. 86-87. The court concluded that absentee voters

were entitled to notice and a hearing before their

ballots were rejected, but declined petitioner’s claims

for damages or other equitable relief. R. 87. The court

continued the matter for the parties to present plans to

remedy the absentee ballot procedure. Ibid.

Respondents moved for leave to appeal from the

interlocutory grant of partial summary judgment

immediately, R. 94, 96, but the district court denied

their respective motions, R. 99.

4. On March 16, 2006, petitioner attempted to

enforce the partial summary judgment order by

moving for a preliminary injunction barring

respondents trom conducting the March 21, 2006,

Illinois primary election pursuant toe the challenged

Election Code provisions. R. 90. The district court

denied that motion, and the challenged provisions

governed absentee voting for the March 2006 primary.

R. 93.

5. While the matter remained pending before the

district court, the Illinois General Assembly enacted

Public Act 94-1000, effective July 3, 2006, amending

the Illinois Election Code to provide, among other

things, notice and a _ pre-deprivation hearing to

absentee voters whose ballots are challenged. 101LCS

0/19-1 et seg. (2006).

6. On October 20, 2006, petitioner again moved for

preliminary injunctive relief, this time in advance of

the November 2006 general election, arguing that the

newly enacted absentee ballot provisions did not

remedy the alleged constitutional violations because

they failed to provide adequate’ pre-deprivation

process. RK. 126. The district court denied the motion,

3

as well as petitioner’s motion for reconsideration.

R. 133, 137-138. The November 2006 general election

was conducted under the new statutory provisions,

notwithstanding petitioner’s ongoing constitutional

challenge to those provisions.

7. On June 13, 2007, the district court entered its

final judgment. R. 156-157. The court rejected

petitioner's claim that the amended statute was

unconstitutional. Pet. App. 3la. Nonetheless, and

despite the fact that the original statute was no longer

in force, the court entered judgment holding the earlier

version unconstitutional and deeming petitioner a

prevailing party under 42 U.S.C. § 1988. Pet. App.

30a.

8. On appeal, the Seventh Circuit reversed that

part of the district court’s judgment declaring the pre-

amendment version of the challenged Election Code

provisions unconstitutional. Pet. App. 20a.

Specifically, the court held that petitioner’s challenge

to that statute was moot before the district court

entered judgment, and the court should not have

entered judgment on a moot issue. Pet. App. 9a-13a.

The court of appeals also reversed the determination

that petitioner was a prevailing party. Pet. App. 20a.

In reaching this conclusion, the Seventh Circuit

explained that the partial summary judgment order

lacked sufficient finality to qualify petitioner as a

prevailing party. Pet. App. 17a-19a.

In particular, the court held that the interlocutory

partial summary judgment order was not enforceable

against respondents because it did not order them to do

anything and, indeed, petitioner had attempted and

failed to enforce it against them when he

4

unsuccessfully moved for preliminary injunctive relief.

Pet. App. 17a-18a. Furthermore, respondents “never

indicated any intention to implement the findings of

the [district] court” but rather sought an immediate

interlocutory appeal from that order. Pet. App. 18a.

Finally, petitioner did not prevail at all, for he

continued to challenge the amended version of the

statute unsuccessfully. Pct. App. 18a-19a. For these

reasons, the partial summary judgment order did not

impose the sort of judicially sanctioned change on

respondents’ conduct that is necessary to confer

prevailing party status on petitioner. Pet. App. 20a.

REASONS FOR DENYING THE PETITION

The petition mischaracterizes this case in multiple

ways. First, petitioner contends that the decision

below announces a new “final judgment om the merits’

requirement for ‘prevailing party’ status,” Pet. 5

(footnote omitted), when in fact the Seventh Circuit

relied on its own prior case law to reject precisely such

a requirement. Second, petitioner invokes a string of

cases awarding “prevailing party” status to plaintiffs

who succeeded in obtaining preliminary injunctions

forcing defendants to modify their conduct, id. at 10-

13—and accuses the Seventh Circuit of breaking from

this line of cases here, id. at 12—without ever

informing this Court that petitioner never obtained a

preliminary injunction. Indeed, he failed twice in

trying to secure preliminary injunctive relief. Third,

petitioner tells the Court that he “prevailed on the

merits” in the end because the amended Election Code

provides the “notice” and “opportunity to contest’

rejected absentee ballots that he sought in filing sunt.

ration

=

at 13 n.6. But this ignores petitioner's htig

position below, where he argued vigorously that the

amendment failed tocure the constitutional infirmities

he alleged in his complaint. Fourth, and finally,

petitioner continually reports that it was respondents

who mooted the case by amending the Election Code.

Id. at 3, 8, 9. But respondents did not (and cannot)

amend Illinois law; this was the work of the Illinois

General Assembly, an independent branch of state

government.

1. Petitioner founds his entire petition on a faulty

premise. He claims that the Seventh Circuit

announced a new rule defining a prevailing party

under 42 U.S.C. § 1988 and that this unprecedented

pronouncement created a circuit split. Pet. 4-5. In

particular, petitioner contends that the Seventh

Circuit adopted a standard requiring a party to receive

a final judgment on the merits to qualify as a

prevailing party under § 1988. Pet. 5. But this wholly

misstates the decision below, which simply followed

this Court’s well-established rules that to be a

prevailing party, ““acivil rights plaintiff must obtain at

least some relief on the merits of his claim,” Pet. App

l4a (quoting Farrar v. Hobby, 506 U.S. 103, 111

(1992)), and that the ruling must involve “a ‘judicial

imprimatur on the change,” meaning that a “judicial

act must bring about ‘a corresponding alteration in the

legal relationship of the parties,” Pet. App. l4a

(quoting Buckhannon Bd. & Care Home, Inc. v. W. Va

Dept of Health, 532 U.S. 598, 601, 605 (2001)) Catter

emphasis supphied)

Thus, contrary to petitions rs contention, Pet, 4-5

the Seventh Circuit did not limit § 1988 fee awards to

parties that obtain a final judgment on the merits. The

court held merely that the failure to obtain a final

6

judgment on the merits “gives a plaintiff a hurdle to

overcome’ to establish that he was a prevailing party.

Pet. App. 16a. The court made clear that the hurdle

was surmountable; petitioner simply failed to clear it

here. As the court explained, although “[njormally,

such a determination [of prevailing party status] wal!

require a final judgment on the merits or a consent

decree,’ “[c]ases will sometimes arise where, despite

there being no final judgment or consent decree, the

legal relationship of the parties will be changed due to

a defendant’s change in conduct brought about by a

judicial act exhibiting sufficient finality.” Pet. App.

19a-20a. Based on its specific procedural history, the

court properly determined that this was not such a

case. Pet. App. 19a. But the court did so by engaging

in precisely the analysis that petitioner advocates—the

court looked beyond the fact that there was no final

iudgment on the merits and assessed whether the

partial summary judgment order had sufficient finality

to qualify petitioner as a prevailing party. In short,

the Seventh Circuit came nowhere close to announcing

a “final judgment on the merits” requirement. Pet. 5

Indeed, had the court of appeals declared such a

rule, it would have been required to overturn its own

prior decision in Paimetto Props., Inc. v. County of

DuPage, 375 F.3d 542 (7th Cir. 2004). Yet far from

overruling Palmetto. the decision below carefully

distinguishes it. Pet. App. 17a-20a As the court

explained, Palmetto was a prevailing party despite the

lack of a tinal judgment on the merits because of the

case-specific “finality surrounding the district court’

order granting a motion for summary judgement. Pet

\pp |7a. Incontrast, the interlocutory order of partial

immary judgment in tavor of petitioner here “lacke:

the finality exhibited in Palmetto,” as the Seventh

Circuit recognized. /bid. The court thus distinguished

Palmetto on several grounds. First, the plaintiff in

that case obtained an enforceable judgment prior to the

defendant mooting the case, but here petitioner could

not enforce the partial order of summary judgment.

Pet. App. 17a-18a. Second, the Palmetto defendant

acquiesced in the court's order and took steps tocomply

with the order, whereas here respondents sought an

immediate appeal of the partial summary judgment

order and took no steps to amend Illinois law; it was

the Illinois General Assembly, not respondents, who

mooted the case. Pet. App. 18a. Third, the

amendment in Palmetto satisfied the plaintiff, but here

petitioner continued to challenge the constitutionality

of the amended statute. Jbid.

The court did not disregard Palmetto, as petitioner

suggests, Pet. 5 n.3; quite the opposite, it faithfully

adhered to that decision and examined whether the

partial summary judgment order in this case had

sufficient finality despite the lack of a final judgment

on the merit: Pet. App. 17a-20a. The Seventh

Circuit's discussion of Palmetto thus was consistent

with its other precedent recognizing that a plaintiff

may be a prevailing party entitled to attorneys’ fee

even in the absence of a final judgment. See Dupuy

Samuels, 423 F.3d 7’ 719(7th Cir. 2005) (“Several af

our cask provide example if the circumstances in

which an uunterim award of attorney: tee

appropriate orin which an attorneys fee award should

be upheld despite a lack a final judgment.’); Young

i C'rtv of Chi ule yo F Kd 1LOO0 LOOO- 100} th Cor

8

plaintiff obtained preliminary injunction = § and

defendant mooted case before final judgment).

In short, far from adopting the per se rule that

petitioner describes, the court below reaffirmed the

principle, illustrated by Palmetto, that final judgment

on the merits is not required to obtain a fee award

under § 1988. Accordingly, the decision below does not

implicate petitioner's supposed split in authority.

Indeed, it is perfectly consistent with each of the cases

on which petitioner relies, as shown below.

2. As support for his alleged split in circuit court

authority, petitioner points to cases in which the

plaintiff obtained a judicial decree requiring the

defendant to take, or refrain from taking, certain

action. The plaintiff in most of these cases cbtained a

preliminary injunction before the dispute became moot,

see People Against Police Violence v. City of Pittsburgh,

920 F.3d 226, 233-235 (3d Cir. 2008); Dearmore v. City

vf Gurlund, 519 F.3d 517, 523-524 (Sth Cir. 2008);

Select Milk Producers, Inc. v. Johanns, 400 F.3d 939,

946-949 (D.C. Cir. 2005); Watson ov. County of

Riverside, 300 F.3d 1092, 1093-1094 (9th Cir. 2002).

The fee-seeking parties 1n petitioner's remaining cases

were equally successful. Two obtained a preliminary

and permanent injunction with defendants consenting

to either one or both, see United States v. Flowers, 28)

kad \pp* 960. 962-963 (Lith Cor. ZOOS): Sandusky

Comnt Biackwell, 191 Fed. Appx. 397, 399-400 (6th

Cir. ZOO) nother obtained interlocutory injunctive

eheft compelling the defendants to issue an

V1 nenta pact itement ‘ Pres. Co fron of

( f ked. 1 (Ad G | 1444, 40

9

v. Mr. R., 321 F.3d 9 (1st Cir. 2003), the defendants

were prevailing parties because they defeated the

plaintiff's request for judicial relief, see id. at 17. None

of these cases is in any way inconsistent with the

Seventh Circuit's decision below.

The obvious and dispositive difference between this

case and People Against Police Violence, Dearmore,

Select Milk Producers, and Watson is that, unlike

petitioner, the plaintiffs in those cases all received

preliminary injunctive relizf compelling the defendants

to change their conduct. In People Against Police

Violence, for example, the court enjoined the City of

Pittsburgh from enforcing its parade-permit ordinance

and that relicf governed the City’s conduct until the

City drafted an ordinance satisfying the plaintiffs’

concerns. See 520 F.3d at 228-230. Thus, the

plaintiffs succeeded in obtaining a court order

compelling defendant to alter its behavior for more

than two years. Similarly, the Dearmore plaintiffs

obtained a preliminary injunction barring enforcement

of a City of Garland law permitting inspections and

searches of certain unoccupied property. See 519 F.3d

at 519. The court’s order remained in effect for 12

days, until the City drafted an ordinance conforming to

the court's interlocutory ruling. See id. at 519-520.

During that period, the court’s order required the City

to refrain from doing something; therefore, the

plaintiffs obtained a judicially sanctioned alteration of

the parties’ legal relationship. Likewise, in Select Milk

Producers the plaintiffs obtained a_ preliminary

injunction barring the Secretary of Agriculture from

implementing a new price tor Class III butterfat milk,

and the injunction constrained the Secretary's actions

for more than two vears, until he announced a new

10

rule and the parties agreed to dismiss the matter as

moot. See 400 F.3d at 941. Again, the defendant was

prohibited from taking certain action by an enforceable

court order. Finally, in Watson, the plaintiff obtained

a preliminary injunction preventing the defendants

from introducing a sworn report into evidence in an

administrative hearing. See 300 F.3d 1093-1094. The

injunction remained in place for the duration of the

proceeding, which was conducted without the report.

See id. at 1094.

In contrast, petitioner never obtained a preliminary

injunction, a dispositive fact he omits entirely from the

petition. Petitioner sought to enforce the partial

summary judgment order and enjoin application of the

challenged Election Code provisions to the March 2006

primary election, but the district court denied that

request, R. 90, 93, and that election proceeded

unaffected in any way by petitioner’s suit. Petitioner

later tried to enforce the partial summary judgment

order again, this time to enjoin application of the

amended Election Code provisions to the November

2006 general election, R. 126, but that effort likewise

failed, R. 133. As the Seventh Circuit concluded, there

simply “was no way to enforce this grant of partial

summary judgment because [respondents] were not

directed to do, or refrain from doing, anything.” Pet.

App. 17a-18a.

Because, unlike the plaintiffs in the cases he cites,

petitioner never obtained preliminary injunctive relief,

respondents were never required to change their

conduct. ‘This distinction 1s crucial, for a party may be

a prevailing party only when the “actual rehef on the

merits of his claim materially alters the legal

relationship between the parties by modifying the

2

defendant’s behavior,” Farrar, 506 U.S. at 111-112,

and that alteration is judicially sanctioned, see

Buckhannon, 532 U.S. at 605. The only judicially

sanctioned order that petitioner obtained here was an

interlocutory ruling granting partial summary

judgment, and that ruling had no effect on the

respondents’ conduct.’

And not only did petitioner fail to receive

preliminary injunctive relief, but he also failed to

obtain a final, permanent injunction, which makes this

case distinguishable from Flowers, 281 Fed. Appx. at

962-963, and Sandusky, 191 Fed. Appx. at 399-400,

two unpublished decisions on which petitioner also

relies. Moreover, whereas the plaintiff in Preservation

Coalition received injunctive relief requiring the

defendant to issue an environmental impact report, see

356 F.3d at 451-452, here respondents were not

required to do (or refrain from doing) anything. As for

Maine School, the defendants there qualified as

prevailing parties because they defeated the plaintiffs

motion for a preliminary injunction and the plaintiff

subsequently dismissed the case, see 321 F.3d at 17,

meaning the defendants in effect received a final

' This Court has left open the question whether,

in the absence of a final judgment on the merits on a

permanent injunction claim, an award of preliminary

injunctive relief can confer prevailing party status.

See Sole v. Wyner, 127 S. Ct. 2188, 2196 (2007). But

this case does not allow the court to resolve that issue

because petitioner never succeeded in obtaining a

preliminary injunction

12

judgment on the merits, which petitioner did not

obtain here.

Finally, the cases that petitioner asserts are on

respondents’ side of the supposed circuit split do not

support further review by this Court. Pet. 12-13 (citing

Christina A. v. Bloomberg, 315 F.3d 990 (8th Cir.

2003); and Smyth v. Rivero, 282 F.3d 268 (4th Cir.

2002)). The issue before the Fighth Circuit in

Christina A. was whether a court-approved final

settlement of a class action suit, not an interlocutory

order of the court, possessed sufficient judicial

imprimatur to qualify the plaintiffs as prevailing

parties. See 315 F.3d at 991. The court applied this

Court’s holding in Buckhannon that a consent decree

does carry sufficient judicial imprimatur but a private

settlement between the parties does not, and

determined that the court-approved agreement at issue

was closer to a private settlement agreement than a

consent decree. See id. at 992-994. Thus, the Fighth

Circuit applied the same rule at work in ali of

petitioner's cases—"a legal change, rather than a

voluntary change, in the relationship of the parties is

required,” id. at 992—but to a factual circumstance

wholly distinct from this one.

The Fourth Circuit's decision in Smvth is similarly

beside the point. There, the court considered whether

a preliminary injunction that barred defendants from

enforcing a state regulation until the case was mooted

possessed sufficient judicial imprimatur to confer

prevalling party status, and held that it did not. See

282 F.3d at 275-277. Again, petitioners here did not

obtain preliminary injunctive relief, making Smyth

irrelevant to this case. Evenif Smyth were an outlier

13

on the question of the effect of a preliminary injunction

on prevaliing party status, any such conflict would not

be implicated here given petitioner’s failure to obtain

a preliminary injunction.

3. Having failed to establish a split in the circuits,

petitioner makes a bid for error-correction review by

contending that he in fact prevailed on the merits of

his claim because he “ultimately obtained the review

sought in his complaint; to be given notice of his ballot

rejection and allowed an opportunity to contest.” Pet.

13 n.6. To the contrary, petitioner continued to

challenge the amended Election Code provisions,

claiming that they did not cure the constitutional

defects alleged in his complaint. Petitioner thus

sought to enjoin the use of these provisions in the

November 2006 general election on the ground that

they were inadequate to protect his rights, and he

persisted in that argument until the district court

issued a final judgment on the merits rejecting his

claim that the amended statute was unconstitutional.

It is disingenuous for petitioner now to suggest that he

obtained the relhef he sought when he consistently

argued before the district court that this “rehef”’

violated his constitutional rights.

Even more importantly, the rehef petitioner

obtained did not come as the result of a judicially

sanctioned change in respondents conduct. First,

although the petition repeatedly refers to the

“defendants having mooted the case, it was the Illinois

Genera! Assembly and not respondents who amended

the statute. In that respect this case is verv different

from People Against Police Violence, Dearmore, Select

Milk Producers, and Watson, where the defendants

themselves took the actions that mooted the case. Far

14

from acquiescing 1n petitioner's challenge, respondents

sought an immediate appeal of the interlocutory order

awarding petitioner partial summary judgment.

Second, the legislature’s action was not compelled by

any court order. Indeed, while the district court

ordered petitioner and respondents to submit proposed

remedial plans, the court did not and could not order

the Illinois General Assembly to pass the amending

legislation. Petitioner ultimately seeks to resurrect the

“catalyst theory,” whereby voluntary changes

precipitated by a lawsuit are enough to confer

prevailing party status, but this Court has expressly

rejected that theory. See Buckhannon, 532 U.S. at

604-610. Because petitioner did not obtain any relief

due to a judicially sanctioned change in respondents’

conduct, he was not a prevailing party under § 1988.

4. ‘That the Illinois General Assembly and not

respondents were responsible for amending the

Election Code also defeats petitioner’s effort to correct

what he sees as bad policy. Pet. 14-15 (arguing that,

under the Seventh Circuit’s purported “final judgment

rule,” “the wrongdoer may moot a plaintiff's claim at

the eleventh hour to avoid paying attorneys fees”).

Respondents were sued because they were required to

enforce the challenged Election Code provisions; they

did not enact the legislation, nor did they (or could

they) amend it to prevent petitioner from qualifying as

a prevailing party. They defended the statute, and

their ability to continue that defense was cut off when

the case was mooted by a non-party, the Ilhnois

legislature. It would defy both good policy and equity

to find respondents liable to petitioner under § 1988 in

these circumstances.

15

This conclusion follows from the prevailing rule

that a legislature’s enactment of a_ statutory

amendment is not considered the act of the executive

branch officials named in a suit seeking to enjoin the

law’s enforcement. See, e.g., Chem. Producers &

Distribs. Ass’n v. Helliker, 463 F.3d 871, 879 (9th Cir.

2006); Valero Terrestrial Carp. v. Paige, 211 F.3d 112,

121 (4th Cir. 2000); Natl Bleck Police Ass'n v. Dist. of

Columbia, 108 F.3d 346, 352 (D.C. Cir. 1997). As in

these cases, respondents did not pass the legislation at

issue. Rather, they sought (unsuccessfully) to take an

immediate appeal from the partial summary judgment

order and continue to defend the constitutionality of

the statute.” This critical distinction between the

actions of a legislature and of executive branch officials

bound to enforce legislation is lost on petitioner. Pet.

3 (“defendants’ actions had mooted the case”); id. at 8

(“Defendants’ mooting actions followed the District

Court’s definitive summary judgment ruling on the

merits’); id. at 9 (“Defendants were able to ‘moot’ the

case’).

Moreover, even if the actions of the General

Assembly could be attributed to respondents, and even

if it were the courts’ role to redefine “prevailing party”

in § 1988 to promote what petitioner considers good

policy, there are sound reasons against declaring

petitioner a prevailing party here. This Court in

Indeed, Respondent Helander continued to

argue the validity of the pre-amendment statute in her

brief on appeal to the Seventh Circuit. and the State

Board Respondents adopted that argument in their

bnief.

16

Buckhannon reasoned that it is desirable for

defendants to change their conduct voluntarily, see 532

U.S. at 605, and petitioner’s proposed redefinition of

“prevailing party” would undercut that goal by

encouraging defendants to continue litigating to avoid

attorneys’ fees where they might otherwise adopt

agreeable remedial measures. Critically, the policy

favoring voluntary resolution of claims is especially

strong in cases such as this one, involving the

enactment of remedial legislation. Indeed, even if a

legislature amends a statute in response to a lawsuit,

that action “represents responsible lawmaking, not

manipulation of the judicial process.” Nat’ Black

Police Ass'n, 108 F.3d at 352 (internal quotation marks

omitted); accord Khodara Envtl. ex rel. Eagle Envttl.

L.P. v. Beckman, 237 F.3d 186, 195 (3d Cir. 2001);

McClendon v. City of Albuquerque, 100 F.3d 863, 868

(10th Cir. 1996). An award of fees under § 1988 in this

case surely would counsel in the future against

proactive, remedial legislation before a final judgment

is reached. Such a result would be the antithesis of

responsiole lawmaking and run afoul of Buckhannon’s

policy favoring voluntary resolution of claims.

Furthermore, insofar as petitioner claims that his

lawsuit precipitated the General Assembly's

amendment of the Election Code, Pet. 8 n.4, this ts

irrelevant given this Court's rejection of the catalyst

theory, see Buckhannon, 532 U.S. at 604-610. In

Buckhannon, this Court repudiated the approach that

any voluntary change by defendants in response to a

lawsuit entitled plaintiffs to attorneys’ fees because it

permitted an award of fees where there was no

judicially sanctioned change in the legal relationship

of the parties, and thus discouraged defendants from

17

changing their conduct voluntarily. See id. at 605-608.

Accordingly, a legislator’s reference to petitioner’s

lawsvit in the debates—even if fairly understood to

indicate that petitioner’s lawsuit was the catalyst for

the statutory amendment, as he contends, Pet. 8—is

legally irrelevant. Were petitioner to get his way,

defendants would recognize the _ substantial

disincentive to changing their conduct voluntarily, and

that would be especially harmful in cases, like this,

where the legislature acted responsibly and undertook

a proactive solution to a perceived statutory problem.

18

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

MICHAEL J. WALLER LISA MADIGAN

Lake County State’s Atty. Attorney General of Illinois

DANIEL L. JASICA MICHAEL A. SCODRO*

CARLA N. WYCKOFF Solicitor General

Ass't State’s Attorneys JANE ELINOR NOTZ

18 North County Street Deputy Solicitor General

Waukegan, Illinois 60085 BRETT E. LEGNER

Asst Attorney General

Counsel for Respondent 100 West Randolph Street

Lake County Clerk Chicago, Illinois 60601

Willard Helander (312) 814-3698

Counsel for Illinois State

*Counscl of Record Bd. of Elections Respondents

Apnril 2009