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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2008

## Text

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0011%3A2. Public record. Not legal advice.