Petition for Writ of Certiorari — Russell v. Burris

No. 98 1030 DEC 2 8 199A

OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1998

RON RUSSELL, KENT INGRAM, WILLIAM R.

AUSTIN, and ASSOCIATED INDUSTRIES OF

ARKANSAS POLITICAL ACTION

ee es AG ebkaivsaaerve see Petitioners

VS.

TROY BURRIS, in his official capacity as chairperson

of the Arkansas Ethics Commission and

JACK KEARNEY, TOM ALEXANDER,

RITA LOONEY, and BEN ALLEN, in their official

capacities as members of the Arkansas Ethics

Commission........ a aeaa Cvawens vas ks Respondents

and CITIZENS FOR CLEAN GOVERNMENT... Respondent

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

ROBERT D. SMITH, III

Attorney at Law

312 South Pulaski Street

Little Rock, AR 72201

(501) 374-2215

TOM TANNER

Attorney at Law

P. O. Box 15623

North Little Rock, AR 72231

(501) 753-7300

Attorneys for Petitioners

Fi SIRS

QUESTION PRESENTED FOR REVIEW

THE UNITED STATES COURT OF APPEALS FOR

THE EIGHTH CIRCUIT, BY DENYING § 1988

ATTORNEYS’ FEES TO A SUCCESSFUL § 1983

LITIGANT HAS SO FAR DEPARTED FROM THE

ACCEPTED AND USUAL COURSE OF JUDICIAL

PROCEEDINGS IN A WAY THAT CONFLICTS WITH

RELEVANT DECISIONS OF THIS COURT SO AS TO

CALL FOR AN EXERCISE OF THIS COURT’S

SUPERVISORY POWER.

ii

LIST OF PARTIES

The parties to this case are as follows: Petitioners are

Ron Russell, Kent Ingram, William R. Austin, and As-

sociated Industries of Arkansas Political Action Committee.

The Respondents are Troy Burris, Chairperson of the

Arkansas Ethics Commission, Jack Kearney, Tom

Alexander, Rita Looney, and Ben Allen, in their official

capacities as members of the Arkansas Ethics Commission.

The Intervenor below is an organization known as Citizens

for Clean Government.

ee ete ae oot

ill

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW..........

LIST OF PARTIES

TABLE OF CONTENTS

TABLE OF AUTHORITIES

GROUNDS UPON WHICH

SUIIRAEPIACAPCOIN Bd AIS VOID), 00 cece see nccees 2

STATUTORY PROVISIONS INVOLVED.......... 2

EPR REEN ER GIO RADARS cs cs cdesseceveciss 4

REASON FOR GRANTING THE WRIT

The United States Court of Appeals for the

Eighth Circuit, by denying §1988 attorneys’

fees to a successful § 1983 litigant has so

far departed from the accepted and usual

course of judicial proceedings in a way that

conflicts with relevant decisions of this Court

so as to call for an exercise of this Court’s

SE SN es ee eee hich AWN 8a 6 7

CONCLUSION

APPENDIX

Appendix A

August 17, 1998 Order denying fees.......... A-1-2

Appendix B

September 29, 1998 Order denying rehearing .... B-1

iv

TABLE OF CONTENTS

PAGE

Appendix C

oe Le: Earnest, rea re C-1-13

Appendix D

PRRNeeE OEP Re GREE oe acek osc axckeevGeseueen D-1-2

Appendix E

CSE SE COTVOS osc ke Vi iss etait E-]

Appendix F

RTE MIIEOE 0.6.55 op Cuda ca eed Somes N CRRA F-1-9

Appendix G

proce La Pierre AMNGavit.... 6 icc ee cic cs G-1-2

Appendix H

WRASCR LPCMION PTOVE yoni tones Seve bees H-1-

Vv

TABLE OF AUTHORITIES

CASES: PAGE

Alyeska Pipeline Service Co. v. Wilderness

Society, 423 US. ZAG CEST OD ve ting ca cescsnnss tees. 9

Arkansas Right to Life State Political

Action Committee v. Butler,

Cone id, Givi cy Os Bi ss ooh ck ackeoe eines 6

Arkansas Right to Life Political

Action Committee v. Butler,

$46 F356 S50 CR CA, SOD a sv ae cn bev wascaeees 6

Carver v. Nixon, 72 F.3d 633

(8th Cir. 1995), cert. denied,

BS. 4 & Beg, Fk a owe wng ar ere 12

Citizens Against Rent Control,

454 U.S. at 295, 102 S.Ct. at 436-37 ............. 15

Hatfield v. Hayes, 877 F.2d 717, 719

(Sts Cin, 1959) oo a ee yea esas hee scent 10, 14

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

Hutto v. Finney, 437 U.S. 678,

eee ola SRG. ME or ia ok oe vo Re eae eens 16

J & J Anderson, Inc. v. Town of Erie,

767 F.2d 1469, 1474 (10th Cir. 1985) .............. 10

Jenkins v. Missouri, 838 F.2d 260, 267

(Bt Ce, TSB a is eck sikns chad. gente od eawa reece 15

Kirchberg v. Feenstra, 708 F.2d 991, 998

(Sth Ces. B9GS) oc ives eee ea eee eee ee re 14

vi

TABLE OF AUTHORITIES :

:

CASES: PAGE

Little Rock School District v. Arkansas

State Board of Education, ;

SEF 2ee BG Le en Ok k's hws ceen du genes 1] i

Little Rock Sch. Dist. v. Pulaski

County Special Sch. Dist. 1., f

17 FSG 200; Zire Cts See ois vee wacds cane 10 ;

Newman v. Piggie Park Enterprises, Inc.,

SI Cah, WO a CRE ep dak b aw en sv kaeeRews 9 14 ;

Pickett v. Milam, 579 F.2d 1118, 1121 ;

COU ar, SOP) bac oS ky a ea eae oa ee 10, 15 E

i

Rose v. Nebraska, 748 F.2d 1258 (8th Cir. 1984) ....... 11

Russell v. Burris, 978 F.Sup. 1211,

(E.D. Ark. 1997), affirmed in part

and reversed in part, 146 F.3d 563

(8th Cir. 1998), cert. denied,

98-397 and FR-SIo C199 O) sons ccvvcdcewensvspeeksee

ENP TE NE ae tt Sia Ry typ eT

Shrink Missouri Government PAC

v. Maupin, 71 F.3d 1422 (8th Cir. 1995),

cert. denied, 518 U.S. 1033 (1995) ................- 12

Teitelbaum v. Sorensen, 648 F.2d 1248,

ZO ESE Ce, PO ss ean ee eae eee 16

2+ CUNEATE RE Ee MAP RR ne ha rR TONES te

Thorsted v. Gregoire, 841 F.Supp. 1068

(W.D. Wash. 1994), affid, sub nom

Thorsted v. Munro, 75 F.3d 454

(FU Re TPs es a Voce ee eee keene passim

Vii

TABLE OF AUTHORITIES

STATUTES: PAGE

Ee 1) 2

Wea a a 2

Aik 2 ek Eo | BVM a rit eaMeaue hn oa carat meen.

Ate CD ee eee 8

Mek Cote tik CTA eS

Fe. O00 AGRE FOE IMO) vk cack pccvcdesceccs 5

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1998

RON RUSSELL, KENT INGRAM, WILLIAM R.

AUSTIN, and ASSOCIATED INDUSTRIES OF

ARKANSAS POLITICAL ACTION

SB," is a 2 | a i or are ee ea eee Petitioners

VS.

TROY BURRIS, in his official capacity as chairperson

of the Arkansas Ethics Commission and

JACK KEARNEY, TOM ALEXANDER,

RITA LOONEY, and BEN ALLEN, in their official

capacities as members of the Arkansas Ethics

CURIONI sd a. ks 0's. ele Ko hes a es Bn Respondents

and CITIZENS FOR CLEAN GOVERNMENT ... Respondent

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Petitioners, Ron Russell, Kent Ingram, William R. Aus-

tin, and Associated Industries of Arkansas Political Action

Committee, respectfully petition for a Writ of Certiorari to

review the decision of the United States Court of Appeals

for the Eighth Circuit in this case.

2

OPINIONS DELIVERED BELOW

An unpublished Order dated August 17, 1998, from the

United States Court of Appeals for the Eighth Circuit deny-

ing attorneys’ fees in the case of Russell v. Burris, 978 F.Sup.

1211, (E.D. Ark. 1997), affirmed in part and reversed in part,

146 F.3d 563 (8th Cir. 1998), cert denied, No. 98-397 and

98-399 (1998), is printed in its entirety in Appendix A. An

unpublished Order dated September 29, 1998, denying

rehearing by the panel is printed in its entirety in Appendix

oe

GROUNDS UPON WHICH

JURISDICTION IS INVOKED

The Order of the Eighth Circuit Court of Appeals was

delivered on August 17, 1998, (see Appendix A). The Peti-

tion for Rehearing was denied on September 29, 1998, (see

Appendix B). This Petition is filed within the time allowed

by law. The jurisdiction of this Court is invoked pursuant to

28 U.S.C. § 1254(1).

THE STATUTORY PROVISIONS INVOLVED

42 U.S.C. § 1983 reads as follows:

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory of

the District of Columbia, subjects, or causes to be sub-

jected, any citizen of the United States or other person

within the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the Constitu-

tion and laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper proceeding

for redress. For the purposes of this section, any Act

of Congress applicable exclusively to the District of

Sa al i Sh hi Stee ee ask oko ok a nl tian natn ct oe

3

Columbia shall be considered to be a statute of the

District of Columbia.

42 U.S.C. § 1988 reads as follows:

The jurisdiction in civil and criminal matters conferred

on the district courts by the provisions of this Title, and

of Title "CIVIL RIGHTS," and the Title "CRIMES," for

the protection of all persons in the United States in their

civil rights, and for their vindication, shall be exercised

and enforced in conformity with the laws of the United

States, so far as such laws are suitable to carry the same

into effect; but in all cases where they are not adopted to

the object, or are deficient in the provisions necessary to

furnish suitable remedies and punish offenses against the

law, the common law, as modified and changed by the

constitution and statutes of the State wherein the court

having jurisdiction of such civil or criminal cause is held,

so far as the same is not inconsistent with the Constitu-

tion and laws of the United States, shall be extended to

and govern the said courts in the trial and disposition of

the cause, and, if it is of a criminal nature, in the infliction

of punishment on the party found guilty. In any action

or proceeding to enforce a provision of sections 1981,

1982, 1983, 1985, and 1986 of this title, title IX of Public

Law 92-318, or title VI of the Civil Rights Act of 1964,

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.

4

STATEMENT OF THE CASE

The Petitioners were denied attorneys’ fees sought pur-

suant to 42 U.S.C. § 1988 by the United States Court of

Appeals for the Eighth Circuit. Fees were sought as part of

the costs following Petitioners successful appeal from a

partially adverse District Court ruling of their challenge to

elements of the Arkansas Campaign and Ethics laws.

Petitioners are three individuals and an approved

Arkansas Political Action Committee (PAC). Ron Russell

is Executive Vice President of the Arkansas State Chamber

of Commerce and Associated Industries of Arkansas, Kent

Ingram is a businessman and former State Senator, and

William R. Austin is a businessman. Mr. Russell and Mr.

Ingram are officers of the State Chamber PAC and Mr.

Russell and Mr. Austin are officers of Associated Industries

of Arkansas Political Action Committee (AIAPAC). The

AIAPAC, the PAC Petitioner, is an approved PAC.

Petitioners brought suit in the United States District

Court for the Eastern District of Arkansas, Western

Division, pursuant to 42 U.S.C. § 1983. They alleged that

provisions of Arkansas Campaign Finance law violated

either the First Amendment or the Equal Protection Clause

of the Fourteenth Amendment to the United States Con-

stitution. Principally the Plaintiffs challenged select por-

tions of Arkansas Initiated Act 1 of 1996, which held that

contributions to candidates for political office shall not ex-

ceed $300 for constitutional offices, | and $100 for all other

Those offices are Governor, Lieutenant Governor, Secretary of

State, State Treasurer, State Auditor, Attorney General, and Commis-

sioner of State Lands.

SPR ELEM UA GORE §

5

offices per candidate per election. Ark. Code Ann. § 7-6-

203. Petitioners challenged a provision allowing a Small

Donor PAC to contribute up to $2,500 per election per

candidate, while limiting individuals and approved PACs to

the $300/$100 limit. Petitioners also challenged a portion of

a 1991 Initiated Act which limited contributions to approved

PACs to $200 per person per year. Ark. Code Ann. §

7-6-201(9)(b).

After a seven day bench trial, the Trial Court enjoined

the $300 limit on contributions to candidates for constitu-

tional offices and the $100 limit to candidates for Justice of

the Arkansas Supreme Court and Judge of the Arkansas

Court of Appeals. Russell v. Burris, 978 F.Sup. 1211

(E.D.Ark. 1997). The Trial Court denied relief on the other

challenges.

Petitioners appealed the Trial Court’s decision to the

United States Court of Appeals for the Eighth Circuit. On

June 4, 1998, the Eighth Circuit Court of Appeals issued its

opinion striking down Act 1 candidate contribution limits in

their entirety as well as the Small Donor PAC limit and the

limit on contributions to approved PACs. Russell v. Burris,

146 F.3d 563 (8th Cir. 1998), cert. denied, No. 98-397 and

98-399( 1998).

Having succeeded in its 42 U.S.C. § 1983 challenge,

partially in the District Court and partially in the Court of

Appeals, Petitioners filed a supplemental Motion for

Attorneys’ Fees and Cests in the United States District

Court for the services performed at the trial level and a

separate motion for attorneys’ fees and costs in the United

States Court of Appeals for the Eighth Circuit for the ser-

vices performed on appeal. On August 6, 1998, the United

6

States District Court, in a well reasoned Order, awarded fees

and costs totaling $1 18,450.7 A copy of the District Court’s

opinion is attached as Appendix C. On August 17, 1998, the

United States Court of Appeals for the Eighth Circuit,

awarded Petitioners costs in the amount of $449.33 and

denied attorneys’ fees. A copy of the Court’s Order is

attached as Appendix A. A Petition for Rehearing by the

panel with suggestion that it be en banc was filed by

Petitioners. On September 29, 1998, the United States

Court of Appeals denied both the Petition for Rehearing

with Suggestion en banc (with three Judges who would have

granted the Petition) and also denied the Petition for

Rehearing by the panel. A copy of the Court’s Order is

attached as Appendix B. This Petition for Writ of Certiorari

is from the denial of attorneys’ fees by the United States

Court of Appeals for the Eighth Circuit.°

* This Order is now on appeal to the United States Court of Appeals

for the Eighth Circuit,

> Another suit was brought attacking Initiated Act 1 by the Arkansas

Right to Life Committee in the United States District Court for the

Western District of Arkansas, Arkansas Right to Life State Political Action

Committee v. Butler, Case No. 98-1215 and 1218. That suit, by unrelated

Plaintiffs, challenged some of the same provisions as the instant case in

chief and also challenged other provisions of Arkansas law. The Trial

Court in the Western District of Arkansas struck the $300 limit for

Governor and the Ethics Commission members appealed. The United

States Court of Appeals affirmed and remanded. [Arkansas Right to Life

Political Action Committee v. Butler, 146 F. 3rd 558 (8th Cir. 1998). The

Appellees in that case sought § 1988 attorneys’ fees which were likewise

denied. A copy of the Order denying fees is attached in the Appendix as

Appendix D.]

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REASON FOR GRANTING THE WRIT

THE UNITED STATES COURT OF APPEALS FOR

THE EIGHTH CIRCUIT, BY DENYING § 1988

ATTORNEYS’ FEES TO A SUCCESSFUL § 1983

LITIGANT HAS SO FAR DEPARTED FROM THE

ACCEPTED AND USUAL COURSE OF JUDICIAL

PROCEEDINGS IN A WAY THAT CONFLICTS WITH

RELEVANT DECISIONS OF THIS COURT SO As TO

CALL FOR AN EXERCISE OF THIS COURT'S SUP 'iR-

VISORY POWER.

In denying Petitioners’ § 1988 Motion for Attorneys’

Fees following a successful § 1983 challenge, the United

States Court of Appeals said:

The Court denies in all other respects the Appellees

original Motion for fees and costs. See Thorsted v.

Gregoire, 841 F.Supp. 1068 (W.D. Wash. 1994), affid, sub

nom Thorsted v. Munro, 75 F.3d 454 (9th Cir. 1996), per

curiam. (Appendix B)

No further explanation for the denial of fees was given.

In relying on Thorsted for justification for denying attor-

neys fees, the Eighth Circuit has joined the Ninth Circuit in

deviating to such an extent from relevant decisions of this

Court as well as from the accepted and usual course of

judicial proceedings as to call for an exercise of this Court’s

supervisory power to review this decision.

The District Court in Thorsted identified seven (7) spe-

cial circumstances it used to justify its denial of fees. Not all

of these seven special circumstances were present in the

instant case, but, even if they were, both the Ninth and the

8

Eighth Circuits have thwarted the congressional intent to

allow fees to successful Civil Rights litigants.

The statute authorizing the award of attorney’s fee is

clear. Title 42 U.S.C. § 1988(b) provides:

... In any action or proceeding to enforce a provision of

section... 1983..., the Court, in its discretion, may allow

the prevailing party, other than the United States, a

reasonable attorney’s fee as part of the cost.

By denying fees, the Eighth Circuit has adopted a stand-

ard in the exercise of its discretion, that is so far afield from

the "special circumstances" exceptions previously approved

by this Court to constitute an abuse of discretion. In effect,

the Ethics Commission argues that the Eighth Circuit has

made the special circumstances in Thorsted black letter law

requiring the denial of attorney fees. After the Eighth

Circuit’s Order in this case, the Ethics Commission filed a

Motion to Reconsider the original District Court Order

awarding attorneys’ fees based solely on the Eighth Circuit’s

Order now before the Court.

Courts have also held that, "the extent of Plaintiffs suc-

cess is a crucial factor in determining the proper amount of

an award" of such fees. /d. at 440. In this case, Petitioners

were almost totally successful.*

The Courts have consistently held that the shifting of

* Petitioners were found to lack standing to challenge the $500

contribution limit to an Independent Expenditure Committee. Also, their

challenge to the statute authorizing local governments to set lower con-

tribution limits was not ripe.

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9

attorney’s fees under § 1988 is to ensure "effective access to

the judicial process" for persons with Civil Rights grievances

and a prevailing Plaintiff should ordinarily recover an

attorney’s fee unless special circumstances would render

such an award unjust. Hensley v. Eckerhart, 461 U.S. 424

(1983). The Court said:

In Alyeska Pipeline Service Co. v. Wilderness Society, 421

U.S. 240 (1975), this Court reaffirmed the "American

Rule" that each party in a lawsuit ordinarily shall bear its

own attorney’s fees unless there is express statutory

authorization to the contrary. In response Congress

enacted the Civil Rights Attorney’s Fees Awards Act of

1976, 42 U.S.C. § 1988, authorizing the district courts to

award a reasonable attorney’s fee to prevailing parties in

civil rights litigation. The purpose of § 1988 is to ensure

"effective access to the judicial process" for persons with

civil rights grievances. H.R. Rep. No. 94-1588, p.1

(1976). Accordingly, a prevailing plaintiff " ‘should or-

dinarily recover an attorney’s fee unless special cir-

cumstances would render such an award unjust.’" S.

Rep. No. 94-1011, p. 4 (1976) [quoting Newman v. Piggie

Park Enterprises, Inc., 390 U.S. 400, 402 (1968)]. Hensley

v. Eckerhart, 461 U.S. 424 (1983) at p. 429.

In its Order denying attorneys’ fees, the Eighth Circuit

gives no reasoning nor rationale. It simply cites Thorsted v.

Gregoire, 841 F.Supp. 1068 (W.D. Wash. 1994), affid, sub

nom Thorsted v. Munro, 75 F.3d 454 (9th Cir. 1996).

Thorsted involved State of Washington Initiative Measure

573, that imposed term limits on incumbent members to the

United States Congress elected from Washington. The Dis-

trict Court declined to award the Plaintiffs’ attorneys’ fees

even though the Court found that enforcement of the

10

codified initiative would deprive the Plaintiffs of their con-

stitutional rights. The District Court in Thorsted held that

there were special circumstances present in Thorsted that

would render unjust an award of attorneys’ fees. ‘The Ninth

Circuit, in affirming, only found that there was no abuse of

the discretion by the District Court, but cautioned that no

circumstance identified, standing alone, would be sufficient

to deny fees.

The District Court, in its opinion addressing the same

arguments based on Thorsted and rejecting them, pointed

out that,

the purpose of § 1988 is to encourage enforcement of the

Civil Rights Act by compensating those persons who

bring meritorious actions. Such persons are thought to

be advancing the public interest[,] Pickett v. Milam, 579

F.2d 11 18, 1121 (8th Cir. 1978), and has emphasized that

‘a court’s discretion in denying fees to a prevailing party

under section 1988 is narrow.’ Little Rock Sch. Dist. v.

Pulaski County Special Sch. Dist. 1., 17 F.3d 260, 262 (8th

Cir. 1994) [citing Hatfield v. Hayes, 877 F.2d 717,719 (8th

Cir. 1989)]. This is because the ‘special circumstances’

exception was judicially created, and does not appear in

the language of § 1988. Hatfield, 877 F.2d at 720. In-

deed, the court has stated that ‘[p]revailing parties or-

dinarily should recover section 1988 fees unless special

circumstances would make such an award unjust,’ Little

Rock Sch. Dist., 17 F.3d at 262-63, and that ‘[a] strong

showing of special circumstances is necessary to support

a denial of attorney fees.’ Hatfield, 877 F.2d at 719

(quoting J & J Anderson, Inc. v. Town of Erie, 767 F.2d

1469, 1474 (10th Cir. 1985)). ‘[T]here are few cases deny-

ing attorney fees to a prevailing party as unjust under §

1988.’ J & J Anderson, 767 F.2d at 1474.

TR: EYE RS Ler e>

1]

The District Court then discussed two cases where the

Court had found special circumstances making an award of

attorneys’ fees unjust. In Rose v. Nebraska, 748 F.2d 1258

(8th Cir. 1984) there were multi-defendants in a case

brought by the parent of a handicapped child under § 1983

and the Education For All Handicapped Children Act. The

Court found that a fee award against the Governor would be

unjust because the Governor had no personal involvement

with the dispute. The Court further found an award against

the defendant local school district unnecessary because a fee

award against other defendants would fully compensate the

plaintiff to the extent required by law. The Eighth Circuit

had held that normally a state official carrying out state law

found unconstitutional is liable for fees under § 1988.

The second case, Little Rock School District v. Arkansas

State Board of Education, 928 F.2d 248 (8th Cir. 1991),

involved a finding that an attorneys’ fee award against the

Board would be unjust. The special circumstances found

there, however, were not present in this case either, as in that

case counsel had already been granted a large sum, not based

on hours of work actually expended, and that the Inter-

venors, not the State, provided the most opposition to the

prevailing party. -

The District Court pointed out that the Thorsted opinion

in the Western District of Washington was the sole opinion

found involving a voter initiative and denial of attorneys’

fees under § 1988. But for the denial by the Eighth Circuit

of fees in Arkansas Right to Life State Political Action Com-

mittee v. Butler, Appendix D, handed down on the same date

as the denial of fees in this case, the undersigned has found

no other case involving a voter initiative and denial of

attorneys’ fees under § 1988. To the contrary, the Order of

the Court conflicts with the attorney fee awards in successful

challenges to voter initiative cases in the Eighth Circuit. See

Appendix E an unpublished Order following Carver v.

Nixon, 72 F.3d 633 (8th Cir. 1995), cert. denied, 116 S.Ct.

2579 (1996), the attorney fee award in an unpublished

Order, Appendix F, in Shrink Missouri Government PAC v.

Maupin, 71 F.3d 1422 (8th Cir. 1995), cert. denied, 518 U.S.

1033 (1995) and the supporting Affidavits from Bruce La

Pierre, Appendix G and Patrick Deaton, Appendix H.

In exercising its discretion, and after reviewing the seven

special circumstances in Thorsted, the District Court found

that the purpose of § 1988 is to encourage enforcement of

the Civil Rights Act by compensating those persons who

bring meritorious actions and that an award of attorneys’

fees would serve that purpose. Petitioners, of course, agree

with the District Court, and submit that the Eighth Circuit

deviated from the statute and precedent of this Court in

embracing Thorsted. It certainly deviated from prior rulings

in the Eighth Circuit where award of attorneys’ fees were

made in voter initiative cases.

The Thorsted Court relied upon seven special cir-

cumstances in denying attorney’s fees:

1. No award is needed to serve the purpose of Section

1988, which is to assure "effective access to the judicial

process," as this is not a typical civil rights case. The mere

filing of suit by anyone with standing would have assured

a full court test.

2. No relief was won under Section 1983 claims beyond

that already awarded under the constitutional claims.

3. The legislation that prompted the suit was adopted by

a voters’ initiative, not by State officials. The deterrence

purpose of Section 1983 is inapplicable.

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13

4. The defendant officials have not yet enforced Initia-

tive 573. Their willingness to do so if it is upheld reflects

only the minimum their oaths of office require.

5. The State officials have acted in good faith.

6. This is a case of first impression in federal court, and

the public interest requires that it be adjudicated

through a full adversary process. The State defendants

have done nothing to increase the litigation costs beyond

what would have been necessary in any event.

7. There was no way for the State officials to settle the

case by agreement. Even if a stipulation of uncon-

stitutionality had been entered (a most unlikely event),

the court would have rejected it. State legislation is

presumed constitutional until the contrary is shown.

Most of these circumstances do not apply to this case.

1. The mere filing of this action would not have assured

a full court test. Standing is a threshold issue in any suit. In

Thorsted any voter or citizen could file a suit and have

standing as Thorsted was a challenge to term limits. In this

case, only one would have standing who contributed more

in the past and resolved to contribute more in the future than

the limits imposed by Initiated Act 1, was a member of a

PAC and desired to be able to contribute more than the

limits to it, was an officer of a PAC that desired to contribute

higher than the limits of the Initiated Act, and was an officer

of a PAC limited in its ability to contribute by the Act in

comparison to a Small Donor PAC. The Eighth Circuit

affirmed the District Court’s finding that Petitioners did not

have standing on one issue. If Petitioners had not had

special standing as past contributors in excess of the newly

imposed limits and probable contributors in the future and

14

as past candidates who had received contributions in excess

of the new limits, they would not have been able to bring this

action.

In addition, Petitioners did not prevail on all issues

raised in District Court. It took an appeal to the Court of

Appeals to prevail on the major issues. Denying attorney’s

fees for the appeal will discourage perseverance in protect-

ing constitutional rights in the future.

2. The Thorsted Disrict Court’s special circumstance

number two (2) was that no relief had been won under § 1983

claims beyond that already awarded under constitutional

claims. These are not separate causes of action. This case

was only brought under 42 U.S.C. § 1983. Upon a finding

that portions of the Act were unconstitutional, a permanent

injunction was granted. There is no requirement in 42

U.S.C. § 1988(b) other than that the party prevail under §

1983 in order for the Court to exercise its discretion and

award attorney’s fees. Even if Thorsted was correct that

there were separate causes of action, in this case the only

relief sought and granted was under § 1983.

Further, the Eighth Circuit, in Hatfield v. Hayes, 877 F.2d

717 (8th Cir. 1989) stated:

Prevailing parties in actions to which a fee-shifting

statute applies, then, "should ordinarily recover an

attorney’s fee unless special circumstances would render

such an award unjust." Newman v. Piggie Park

Enterprises, Inc., 890 U.S. 400, 402, 88 S.Ct. 964, 966, 19

L.Ed.2d 1263 (1968). "[A]bsent special circumstances, a

prevailing party should be awarded section 1988 fees as

a matter of course." Kirchberg v. Feenstra, 708 F.2d 991,

998 (Sth Cir. 1983) (emphasis in original). Appellate

15

review of a denial of § 1988 attorney’s fees is governed

by the abuse of discretion standard, but a district court’s

discretion in denying attorney’s fees to prevailing parties

is narrow. See Jenkins v. Missouri, 838 F.2d 260, 267 (8th

Cir. 1988) (district court’s discretion in determining

when special circumstances exist is narrowly limited).

3. The First Amendment to the U.S. Constitution is not

affected by the method of the adoption of the State Statute

in violation of the Constitution. First, the voters may no

more violate the Constitution than the legislature. Citizens

Against Rent Control, 454 U.S. at 295, 102 S.Ct. at 436-37,

Carver, supra, at p. 144. Knowing that the Court will award

attorney’s fees to successful challengers under § 1983 will

deter the voters from proposing unconstitutional Acts. It

will also deter the state legislature from imposing uncon-

stitutional statutes knowing that a constitutional challenge

under § 1983 and attorney’s fees under § 1988 will follow.

The denial of fees in this case is contrary to previous

decisions which encourage enforcement of the Civil Rights

Act by compensating those persons who bring meritorious

actions. Pickett v. Milam, 579 F.2d 1118, 1121 (8th Cir.

1978).

4. Arkansas has conducted two elections” under the

restrictions imposed by Initiated Act 1 and the limitation of

$200 contributions to PACs have been enforced since 1990.

The Ethics Commission publicly stated they intended to

enforce the restrictions imposed by Initiated Act 1 and the

limitation of $200 contributions to a Political Action Com-

mittee imposed by Initiated Act 1 of 1990. Section 1988 does

not require a violation to occur before fees are awarded.

“The 1988 primary election and a 1997 special election for State

Senate and Representatives.

16

5. The Court in Thorsted cited Teitelbaum v. Sorensen,

648 F.2d 1248, 1250 (9th Cir. 1981), for the proposition that

the "good faith" of the public officials constitutes a special

circumstance. Teitelbaum restricts that proposition to

awards against public officials individually, not to officials in

their public capacity. All the defendants in Russell v. Burris

were sued in their official capacities and not as individuals.

This Court also made this distinction in Hutto v. Finney,

437 U.S. 678, see also 98 S.Ct. at 2575-79, see also Alyeska

Pipeline Service Co. v. Wilderness Soc’y, 421 U.S. 240, 258-59,

95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). Pickett v. Milam, supra

at p. 1120- 1121.

6. Thorsted’s special circumstance no. 6 is also not ap-

plicable. Russell v. Burris is not a case of first impression.

Carver v. Nixon, supra, was an almost identical case arising

out of a Missouri initiative. In this case, Petitioners relied

on Carver and filed a Motion for Summary Judgment. The

District Court called it a close call, but denied the motion.

In any event, the State in this case presented a unique

defense based on the perceived appearance of corruption

caused by the total of all legal contributions” from the

business community rather than by large political contribu-

tions. This theory was rejected by the Eighth Circuit.

7. There is 10 way for a state official to settle a dispute

of this nature by agreement, as state officials must defend all

state laws. To adopt this reasoning as a special circumstance

emasculates § 1988 and will prohibit attorney’s fees from

ever being awarded in cases attacking unconstitutional

Statutes or state constitutional provisions.

° Prior to Initiated Act 1, campaign contributors were limited to

$1,000 per candidate per election. There was no proof of any contribution

over $1,000.

17

If this decision stands, it will have a chilling effect on any

litigant who chooses to chalienge a state statute or a state

constitutional provision under § 1983. The purpose of §

1988 is to encourage "private Attorney Generals" to pursue

these matters, because the Attorney General of the state is

bound to defend the laws of the state and is not available to

challenge those laws. Therefore it is just to award attorney’s

fees to a prevailing party on a § 1983 claim when state

statutes are challenged.

The Petitioners in this case challenged a popular Cam-

paign Finance Reform Measure approved by the people of

Arkansas by a substantial majority. They did this to protect

their First Amendment Rights as well as the rights of all

other citizens of Arkansas. ‘Their success was substantial. If

these successful Petitioners are forced to bear their own

attorneys’ fees, few aggrieved parties will be in a position to

advance the public interest. Few individuals can afford to

finance this type of litigation and groups are difficult to put

together to contribute to a litigation fund when over sixty

percent of the people are in favor of the initiative. In

hindsight, these Petitioners would probably not have filed

this action had they known that § 1988 fees would not be

available. If the Court allows this Oder to stand, coupled

with the Ninth Circuit decision in Thorsted, then other Cir-

cuits are sure to follow. Of course this decision may have

such a chilling effect that Civil Rights challenges will not be

brought to unconstitutional acts. It is respectfully submitted

that the Court should accept this case to clearly state under

what limited circumstances fees can be denied, and when §

1988 fees cannot be denied.

18

Scr oS

CONCLUSION

For the foregoing reasons, certiorari should issue to the

United States Court of Appeals for the Eighth Circuit so that

this Court may review and correct the decision below and

clarify the circumstances where the denial of an award of

attorney’s fees is appropriate to a prevailing party in a civil

rights Case and when denial of fees is not appropriate.

Respectfully submitted,

ROBERT D. SMITH, III

Attorney at law

12 South Pulaski Street

Little Rock, AR 72201

(501) 374-2215

TOM TANNER

Attorney at Law

P.O. Box 15623

North Little Rock, AR 72231

Attorneys for Petitioners

SOON SRSIAR RIANA ON NY RE Pg ——

e

‘

q

x

?

F

APPENDIXA

A-1

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 97-3922/4033/4038

Arkansas

Troy Burris, et al.,

x

Ron Russell, et al., ”

*x

Appellants, * Appeals from the United

* — States District Court for

VS. * — the Eastern District of

*x

*

*

*

Appellees.

The court grants the motion of appellees Burris,

Looney, Allen, and Kearney for leave to file late objections

to the appellants’ motion for fees and costs.

The court directs the clerk to file the objections of

appellee Citizens for Clean Government to the appellants’

motion for fees and costs.

The court directs the clerk to file the appellants’ reply

brief.

The court grants in part the appellants’ motion for fees

and costs. The court awards $449.33 in costs to the appel-

lants. see 8th Cir. R. 39A(a) and Miller-Wohl Company,

Inc. v. Commissioner of Labor and Industry, 694 F.2d 203

(9th Cir. 1982), see also United States v. State of Michigan,

940 F.2d 143 (6th Cir. 1991), and Morales v. Turman, 820

F.2d 728 (Sth Cir. 1987), to be assessed only against defen-

dants Burris, Looney, Alexander, Allen, Kearney, Russell,

Delph, and Wilson. See Independent Federation of Flight

Attendants v. Zipes, 491 U.S. 754 (1989). The court denies

A-2

in all other respects the appellants’ motion for fees and

costs. SeeThorsted v. Gregoire, 841 F.Supp. 1068 (W.D.

Wash. 1994), aff'd, 75 F.3d 454 (9th Cir. 1996) (per curiam).

August 17, 1998

Order Entered at the Direction of the Court:

/s/ Michael E. Gans

Clerk U.S. Court of Appeals, Eighth Circuit

PPS Meter eo URES

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 97-3922/4033/4038EARL

Ron Russell, et al.,

Appellants/Cross-Appellees,

Order Denying Petition

for Rehearing and

Suggestion for

Rehearing En Banc

*

*

*

*

*

VS. ?

*

Troy Burris, etc., et al., ,

*

Appellees/Cross-Appellants *

The suggestion for rehearing en banc is denied. Judge

McMilliam, Judge Richard S. Arnold, and Judge Kelly

would grant the suggestion.

The petition for rehearing by the panel is also denied.

September 29, 1998

Order Entered at the Direction of the Court:

/s/ Michael E. Gans

Clerk U.S. Court of Appeals, Eighth Circuit

APPENDIX C

C-1

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

RON RUSSELL, KENT INGRAM, PLAINTIFFS

WILLIAM R. AUSTIN, and

ASSOCIATED INDUSTRIES OF

ARKANSAS POLITICAL ACTION

COMMITTEE

v. No. LR-C-97-0089

TROY BURRIS, in his official capacity

as chairperson of the Arkansas Ethics

Commission, and CANDY SUE RUSSELL,

MARVIN DELPH, RITA LOONEY, and

NORTON WILSON, in their official

capacities as members of the Arkansas

Ethics Commission DEFENDANTS

and

CITIZENS FOR CLEAN

GOVERNMENT DEFENDANT-INTERVENOR

ORDER

Pending is the Plaintiffs’ Amended Motion For Award

Of Attorney’s Fees And Costs relating to its lawsuit seeking

declaratory judgment and an injunction against enforce-

ment of Arkansas Initiated Act of 1996, which amended

Arkansas campaign contribution laws. The Plaintiffs

brought their action under 42 U.S.C. § 1983 for alleged

constitutional violations. This Court conducted a seven-

day bench trial in September 1997, and on October 3, 1997,

entered an Order granting the Plaintiffs’ motion in part and

denying it in part. In an opinion dated June 4, 1998, the

Eighth Circuit affirmed in part and reversed in part, finding

for the Plaintiffs on certain issues they had lost at trial. See

Russell v. Burris, 1998 WL 289879 (8th Cir.).

C-2

The Plaintiffs’ Motion is made pursuant to Federal

Rule of Civil Procedure 54, and the fee shifting provisions

of 42 U.S.C. § 1988(b). In support of their claim, the

Plaintiffs explain they prevailed on four claims: (1) their

attack on Act I’s $300 contribution limitation for statewide

races; (2) their opposition to the Act’s $100 limit on con-

tributions to candidates for all other offices; (3) their attack

on the $200 contribution limit to approved Political Action

Committees (PACs); and (4) their argument against higher

contribution limits for small donor PACs. The Plaintiffs,

counsel Robert D. Smith, III, was assisted by attorneys

John R. Pagan and Tom Tanner. Mr. Smith asserts that

95% of his and his assisting counsels’ time was devoted to

the issues on which the Plaintiffs ultimately prevailed.

The Plaintiffs request an award of attorneys’ fees and

costs totaling $1¢0,409.97. Of this total, $157,150 repre-

sents attorneys’ fees, $3,074.20 is attributable to the fee and

expenses of the Plaintiffs’ expert witness, and $185.77 rep-

resents filing fees and mailing costs.

The Defendant Arkansas Ethics Commission (Com-

mission) and Intervenor Citizens For Clean Government

(Citizens) object to the Plaintiffs’ Motion. They argue this

case presents special circumstances that weigh against the

Plaintiffs’ recovery of attorneys fees. If the Court deter-

mines the case warrants some fee award, the Commission

and Citizens contend the Plaintiffs’ request must be

reduced because it is excessive. Citizens state that any

award against them is improper because they are inter-

venors in good faith. Citizens further argue that the Court,

in its October 3, 1997 Judgment, has already exercised its

discretion under § 1988 in ordering the parties and inter-

venor to bear their own costs.

C-3

Award of Attorneys’ Fees Under § 1988

Title 42 U.S.C. § 1988(b) provides:

In any action or proceeding to enforce a provision of

section{]... 1983. . ., 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.

The United States Supreme Court addressed the shift-

ing of attorneys’ fees under § 1988 in Hensley v. Eckerhart,

461 U.S. 424 (1983). The Court declared:

The purpose of § 1988 is to ensure "effective access to

the judicial process" for persons with civil rights

grievances. H.R. Rep. No. 94-1558, p.1 (1976). Ac-

cordingly, a prevailing plaintiff "should ordinarily

recover an attorney’s fee unless special circumstances

would render such an award unjust." S. Rep. No. 94-

101 1, p.4 (1976) (quoting Newman v. Piggie Park

Enterprises, Inc., 390 U.S. 400, 402 (1968)).

Id. at 429 (some citations omitted). The Court held that

the "extent of a plaintiff's success is a crucial factor in

determining the proper amount of an award" of such fees.

Id. at 440.

The Commission and Citizens argue this case presents

"special circumstances" that would render unjust an award

of an attorney’s fee. They cite in support Thorsted v.

Gregoire, 841 F. Supp. 1068 (W.D. Wash. 1994), aff'd sub

nom Thorsted v. Munro, 75 F.3d 454 (9th Cir. 1996), a case

decided on facts similar to those at issue here. Thorsted

involved State of Washington Initiative Measure 573, that

imposed term limits on incumbent members of the United

States Congress elected from Washington. The court

found enforcement of the codified initiative would deprive

C-4

the plaintiffs of constitutional rights. The court, however,

declined to award the plaintiffs attorneys’ fees, and

detailed factual findings supporting its conclusion that spe-

cial circumstances would make an award of fees unjust.

The Thorsted court first noted that no award was neces-

sary to serve the purposes of § 1988, that is, ensuring access

to the judicial process. The court concluded the case was

"not a typical civil rights case[,]" and a full court test would

have resulted from "the mere filing of suit by anyone with

standing." Id. at 1084.

The court next stated that no relief had been won under

the plaintiffs’ 1983 claims that had not already been won

under the constitutional claims.

Third, because the disputed legislation was adopted by

voter initiative, not by State officials, the court found the

deterrence purpose of § 1983 was inapplicable. /d. (citing

Wyatt v. Cole, 504 U.S. 158, 161 (1992) ("The purpose of §

1983 is to deter state actors from using the badge of their

authority to deprive individuals of their federally guaran-

teed rights and to provide relief to victims if such deter-

rence fails.").

Fourth, the court noted that the defendant State offi-

cials had not yet enforced the initiative.

Fifth, the court found State officials had acted in good

faith, and stated that "good faith is one factor of several that

a court may consider in applying [§ 1988]." /d. [quoting

Teitelbaum v. Sorenson, 648 F.2d 1248, 1250 (9th Cir.

1981)].

Next, the court observed that the case was one of first

impression in federal court, and that the public interest

C-5

necessitated adjudication through a full adversary process.

It noted the State defendants had "done nothing to increase

the litigation costs beyond what would have been necessary

in any event." /d.

Finallv, the court declared that because "state legisla-

tion is presumed constitutional until the contrary is shown,"

there was no avenue for State officials to settle the case by

agreement, and that "[e]ven if a stipulation of uncon-

stitutionality had been entered (a most unlikely event), the

court would have rejected it." /d.

The court then announced as conclusions of law that:

(1) the case presented "special circumstances" within the

meaning of Hensley v. Eckerhart and an award of attorney

fees would be manifestly unfair; (2) the totality of the

circumstances presented made the case distinguishable

from "cases holding that particular mitigating factors are

insufficient to avoid a fee award"; and (3) the plaintiffs’

applications for attorney fees should be denied.

In affirming the district court’s ruling, the Ninth Circuit

noted concerning the denial of an award of attorney fees,

that "several of the circumstances identified by the district

court would be insufficient, standing alone, to warrant a

denial of fees. We hold, however, that the district court did

not abuse its discretion by denying fees based on the

totality of the circumstances it identified." Thorsted v.

Munro, 75 F.3d 454, 456 (9th Cir. 1996).

The Eighth Circuit has instructed that "[t]he purpose of

section 1988 is to encourage enforcement of the Civil

Rights Act by compensating those persons who bring

meritorious actions. Such persons are thought to be ad-

vancing the public interest[,]" Pickett v. Milam, 579 F.2d 11

18, 1121 (8th Cir. 1978), and has emphasized that "a court’s

C-6

discretion in denying fees to a prevailing party under sec-

tion 1988 is narrow." Little Rock Sch. Dist. v. Pulaski County

Special Sch. Dist. 1., 17 F.3d 260, 262 (8th Cir. 1994) (citing

Hatfield v. Hayes, 877 F.2d 717, 719 (8th Cir. 1989)). This

is because the "special circumstances" exception was judi-

cially created, and does not appear in the language of §

1988. Hatfield, 877 F.2d at 720. Indeed, the court has

stated that "[p]revailing parties ordinarily should recover

section 1988 fees unless special circumstances would make

such an award unjust," Little Rock Sch. Dist., 17 F.3d at

262-63, and that "[a] strong showing of special circumstan-

ces is necessary to support a denial of attorney fees." Hat-

field, 877 F.2d at 719 (quoting J & J Anderson, Inc. v. Town

of Erie, 767 F.2d 1469,1474 (10th Cir. 1985)). "[T]here are

few cases denying attorney fees to a prevailing party as

unjust under § 1988." J & J Anderson, 767 F.2d at 1474.

The Eighth Circuit found special circumstances making

award of attorney fees unjust in Rose v. Nebraska, 748 F.2d

1258 (8th Cir. 1984). Rose involved a multi-defendant case

brought by the parent of a handicapped child under § 1983

and the Education for All Handicapped Children Act. The

Rose court found that a fee award against the Governor

would be unjust because the Governor had no personal

involvement in the dispute. The court further found that

an award against the defendant local school district was

unnecessary because "[o]ther parties, the commissioner of

Education and the members of the State Board of Educa-

tion, are in the case, and a fee award against them will fully

compensate the plaintiff to the extent required by law. ...

Normally, a state official carrying out state law found un-

constitutional is liable for fees under § 1988, but here other

State officials are present in the case with a much more

direct connection to the very part of the state process that

raised the federal-law issue on which plaintiff prevailed."

Id. at 1264.

C-7

In Little Rock School District v. Arkansas State Board of

Education, 928 F.2d 248 (8th Cir. 1991), the court found

unjust an award of attorney fees against the Board. The

court listed a number of reasons, which, taken together, it

considered amounted to special circumstances. Among

the reasons were: that counsel had already been granted a

large sum, on a basis not tied to hours of work actually

expended; intervenors, not the State, provided the most

opposition to the prevailing party; and, the State acted as

an adverse party in only one discrete part of the case.

The Thorsted opinion of the Western District of

Washington was the sole opinion this Court found involv-

ing a voter initiative and denial of attorney fees under §

1988. The Court considers Thorsted well-reasoned, and

agrees that the circumstances surrounding a voters’ initia-

tive do not present a typical civil rights case. Moreover, the

Court does not disagree with the Commission’s and

Citizen’s argument that the Plaintiffs here are neither

disadvantaged nor unique. While this Court can think of

many reasons why a denial of attorney fees to the plaintiffs

in this case may be reasonable or justifiable, it does not

believe that the totality of circumstances presented here

would render an award of attorney fees unjust. The pur-

pose of § 1988 is to encourage enforcement of the Civil

Rights Act by compensating those persons who bring

meritorious actions. An award of attorney fees here would

serve that purpose. No other State actors with a more direct

connection to the state process are involved. The Court

concludes that the "narrow" discretion allowed courts in

denying attorney fees under § 1988 is too restrictive to

permit a denial here.

Calsnlation of Ads B

Having decided that an award of attorney fees is appro-

C-8

priate, the Court must decide the amount. The Court

initially finds, consistent with its Judgment, that Plaintiffs

are to pay their own costs, i.e., filing fees totaling $150.00,

and postage charges of $35.77. Additionally, the Plaintiffs’

claim under § 1988 for expert witness fees totaling

$3,074.20, is denied. The Commission cites West Virginia

University Hospitals, Inc. v. Casey, 499 U.S. 83, 99-100

(1991), where the Court found § 1988 provided no auth-

ority to shift expert fees, although it recognized such

authority under §§ 1920 and 1821 to allow a witness atten-

dance fee of $40 per day for expert witnesses. The Civil

Rights Act of 1991 legislatively reversed West Virginia

University Hospitals in part by amending 42 U.S.C. § 1988

and Title VII to allow the award of expert witness fees as a

part of attorney’s fees. Stender v. Lucky Stores, Inc., 780 F.

Supp. 1302, 1306 (N.D. Cal. 1992). The amendment to §

1988, however, restricts a court’s discretion to make such

awards to cases brought under 42 U.S.C. §§ 1981 ( equal

rights to make and enforce contracts) and 1981 a (dis-

crimination in employment). 42 U.S.C. § 1988(c). The

Plaintiffs here brought their action under 42 U.S.C. § 1983.

The Court concludes that this case is one where much

of counsels’ time was "devoted generally to the litigation as

a whole, making it difficult to divide the hours expended

on a cwm-by-claim basis." Hensley, 461 U.S. at 435. Ac-

cordingly, the Court will "focus on the significance of the

overall relief obtained by the plaintiff in relation to the

hours reasonably expended on the litigation." /d. The

Hensley Court instructed that in cases, as this, where the

"plaintiff has achieved only partial or limited success. . . [,]

the most critical factor is the degree of success obtained."

Id. at 436. The Court notes that any fees rewarded must be

"reasonably expended," and that no award should include

services that were redundant, inefficient, or unnecessary.

Id. at 434. See also Jenkins v. Missouri, 127 F.3d 709, 716

(8th Cir. 1997).

ei ae a ary see

C-9

The parties appealed this Court’s rulings and obtained

additional relief Accordingly, this Court’s analysis of the

Plaintiffs’ overall success considers all issues on which they

prevailed both at trial and upon appeal. See Barnes v.

Bosley, 745 F.2d 501 (8th Cir. 1984) (increasing the district

court’s award of attorneys’ fees to reflect a plaintiff's suc-

cess on appeal).

The Plaintiffs’ complaint may be seen as alleging six

counts challenging the following provisions of Act I and

pre-existing Arkansas law: (1) the $300 per election, per

candidate limit on contributions to candidates for state-

wide office; (2) the $100 per election, per candidate limit

on contributions to candidates for other offices; (3) the

disparity between limits on contributions to candidates

applicable to small donor PACs ($2500 per election, per

candidate) and to regular PACs ($300 or $100 per election,

per candidate); (4) the $200 limit on contributions to

regular PACs; (5) the $500 limit on contributions to inde-

pendent expenditure committees; and (6) the provision

allowing local governments to set contribution limits lower

than those set by state law. After trial and appeal, the

Plaintiffs are the prevailing party on issues (1), (2), (3), and

(4). This Court ruled, and was affirmed on appeal, that the

Plaintiffs lacked standing to assert issue (5), and that issue

(6) was not ripe for adjudication.

The parties’ arguments indicate that the principal

contested issues in the case were those relating to limits on

contributions to candidates. The Court agrees. The Court

takes issue, however, with the Plaintiffs’ assessment that

95% of their attorneys’ time was spent on ultimately

prevailing issues. Based on a review of the Plaintiffs’

attorneys’ time summaries, the parties’ pleadings, and the

trial transcripts, together with observations made during

trial, the Court believes that this percentage under-

C-10

estimates the plaintiffs’ attorneys’ time spent on issue (5),

the limit on contributions to independent expenditure

committees. For example, of the 24 pages of the Plaintiffs’

brief in support of their motion for summary judgment, 9

pages are devoted to that issue. Similarly, of the 23 pages

of text in the Plaintiffs’ trial brief, 9 pages addressed the

issue. More than 2 of the 11 pages of text in the Plaintiffs

September 12, 1997 trial brief concerned the independent

expenditure committees. After reviewing the evidence, the

Court determines that 25% of the Plaintiffs’ attorneys’

time is properly attributable to the issues involving inde-

pendent expenditure committees and the ability of local

governments to set lower contribution limits. The Plain-

tiffs’ attorneys’ fee will be reduced accordingly.

Commission objects specifically to Mr. Tanner’s fee

and hourly rate. It argues Mr. Tanner did not participate

actively in the trial, and was present at trial primarily to

assist with exhibits. The Commission complains that Mr.

Tanner’s hourly rate should be reduced to that of a

paralegal, and because the Plaintiffs have not provided the

necessary information on which to base such a reduction,

the Court should award nothing for Mr. Tanner’s fees.

Contrary to the Commission’s position, it appears from Mr.

Tanner’s aflidavit that the legal work he performed for the

Plaintiffs was reasonable and consistent with his duties as

an attorney assisting Mr. Smith in this case. Moreover, the

Court recollects Mr. Tanner’s assistance to Mr. Smith at

trial appeared to be that of assisting counsel; for example,

on numerous occasions, Mr. Smith consulted with Mr.

Tanner during witness examination.

The Commission also objects to a number of the

Plaintiffs’ attorneys’ allocation of time as unnecessary and

unreasonable. For instance, the Commission objects to a

claim for 61 hours of work performed before Initiated Act

ee ee Ce Se

C-11

I was passed, 48 hours for the Plaintiffs’ reply to the

Defendants’ summary judgment motion, and 39 hours for

the Plaintiffs’ post-trial brief.

The Court believes the Plaintiffs’ attorneys are entitled

to fees for time spent preparing the claim, even prior to the

vote on Act I. Whether the time was spent before or after

the election is not relevant, if the time was reasonably

devoted to preparing a lawsuit to challenge the proposed

initiative.

After carefully reviewing the attorneys’ time sum-

maries, however, the Court agrees that the Plaintiffs’ attor-

neys claimed too much time on the Plaintiffs’ reply to the

Defendants’ response to the motion for summary judg-

ment, and on the Plaintiffs’ trial and post-trial briefs. A

comparison of the Plaintiffs’ motion for summary judg-

ment and their subsequent trial brief reveals that most of

the latter pleading is a word-for-word copy of the previous

pleading. The Plaintiffs’ reply to the Defendants’ response

to the motion for summary judgment is 5 pages; this does

not support the claim of 40-plus hours. The post-trial brief

in question is 11 pages, single-spaced. The Court concludes

the Plaintiffs’ attorneys have allocated unnecessary time to

this pleading, as well. Upon careful review of the pleadings

in dispute, the Court will exclude: 20 hours of Mr. Smith’s

time for the reply to Defendants’ response to the motion

for summary judgment; 18 hours of Mr. Tanner’s time and

4 hours of Mr. Smith’s time for the trial brief; and 12 hours

of Mr. Smith’s time for the post-trial brief.

Citizens argue that they may not be assessed any award

of attorney fees because they are not state actors and could

not be liable under § 1983. In support, they cite Inde-

pendent Federation of Flight Attendants v. Zipes, 491 U.S.

754, 762-63 (1989), which instructs that fees are not

C-12

recoverable against intervenors which have not been found

to have violated anyone’s civil rights. The Court agrees.

No part of the attorneys’ fees awarded are assessed against

the Defendant-Intervenor. The Commission also argues

that it should be responsible for only 50% of any fee award

because Citizens played a central role in the litigation and

appeal. In response, the Plaintiffs declare that the Com-

mission has submitted no evidence of which party raised

what issues on defense, or whether citizens were solely

responsible for calling a particular witness, or for defend-

ing a particular issue in the case. The Court credits the

Plaintiffs’ argument, and will assess the attorneys’ fee

against the Commission Defendants only.

Consistent with the above discussion, the Plaintiffs are

awarded attorneys’ fees against the Commission Defen-

dants in the following amounts:

Mr. Robert D. Smith III

Total hours claimed: 587.25

Hours excluded as excessive: 36.00

Sub-total: 551.25

x.75

Hours allotted to prevailing issues: 413.50

Hourly rate x$200

Attorney fees awarded: $81,700 $82,700

Mr. Tom Tanner

Total hours claimed: 264.00

Hours excluded as excssive: 18.00

Sub-total: 246.00

x.75

Hours allotted to prevailing issues: 184.50

Hourly rate x $150

Attorney fees awarded: $27,675 $27,675

a ee re

ML eS I Oe on hblaic ae hates RS Sat

C-13

Mr. John R. Pagan

Total hours claimed: 40.375

Hourly rate: x$200

Attorney fees awarded: $ 8.075 $8,075

GRAND TOTAL: $118,450

The Commission advises it intends to petition the

United States Supreme Court for a writ of certiorari. Ex-

ecution of this Order will be STAYED pending the

Supreme Court’s disposition of the appeal, either by a

denial of the petition or a decision if the writ is granted.

I'l IS SO ORDERED this 6th day of August 1998.

/s/ William R. Wilson, Jr.

JNITED STATES DISTRICT JUDGE

THIS DOCUMENT ENTERED ON DOCKET SHEET IN

COMPLIANCE WITH RULE 58 AND/OR 79(a) FRCP ON

8/10/98 BY LBELL

APPENDIX D

2 Nia Sid ian BE NREL ETT eS he eddy TR

D-1

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 98-1215/1218WAF

Arkansas Right to Life *

Political Action

Committee; David Sloan *

Appellees, * Appeals from the United

* States District Court for

* the Western District of

* — Arkansas

V.

Brad Butler, etc., et al.,

Appellants.

The court grants the appellees’ motion for leave to file

reply briefs.

The court grants the intervenor/appellants’ motion for

leave to file a supplemental memorandum.

The court grants in part the appellees’ motion for fees

and costs. The court awards $219.03 in costs to the appel-

lees, see 8th Cir. R. 39A(a), to be assessed only against

defendants Butler, Burris, Looney, Allen, Kearney, and

Alexander. See Independent Federation of Flight Atten-

dants v. Zipes. 491 U.S. 754 (1989). The court denies in all

other respects the appellees’ original motion for fees and

costs. See Thorsted v. Gregoire, 841 F.Supp. 1068 (W.D.

Wash. 1994) aff'd, 75 F.3d 454 (9th Cir. 1996) (per curiam).

The court denies the appellees’ supplemental motion

for fees and costs. See 8th Cir. R. 39A(a).

D-2

Intervenor’s motion for leave to file a brief in reply to

appellees’ response is denied as moot.

August 18, 1998

Order Entered at the Direction of the Court:

/s/ Michael E. Gans

Clerk, U.S. Court of Appeals, Eighth Circuit

APPENDIX E

ER TET NG PI Pe ie ee Ne Nae EH PERE ATCTE LEARNT PNR AN aac PT: ey racmnnat re eUssHEOteEEe ERE PETS RITE YF LEE ee EME ETRE INCE TR ORE 208 Saar cre et SWAN AES Orr?

as bie Sees es, : Wee, Tere: SEL TG ¥ yey ;

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3

4

7

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2

:

Ets Get

Lars sles

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 95-2608WMS

Thomas D. Carver, ‘

Appellant, * Appeal from the United

* — States District Court for

VS. * — the Western District of |

Missouri

Jeremiah W. Nixon, et al., *

Appellees. -

Counsel for the appellant is awarded attorney fees in

the amount of $10,980.00 and expenses in the amount of

$1,104.86. The clerk of the United States District Court is

directed to insert these fees and costs in the previously

issued mandate.

February 14, 1996

Order Entered at the Direction of the Court:

/s/ Michael E. Gans

Clerk, U.S. Court of Appeals, Eighth Circuit

APPENDIX F

LAY Pe eee ERR) tar ore Or

0

F-]

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

NO. 95-2857

Shrink Missouri Govern- .

ment PAC, a political action *

committee; W. Bevis Shock; *

Frederick T. Dyer, f

Appellees .

Appeal from the

v. * United States District

Court for the Eastern

John Maupin, in his official | * District of Missouri.

capacity as Chair of the

Missouri Ethics Commission; *

Jeremiah W. Nixon, in his ’

official capacity as Missouri *

Attorney General, °

Appellants

Filed: February 1, 1996

Before BOWMAN, ROSS, and JOHN R. GIBSON,

Circuit Judges.

ORDER

The motion of appellees for the award of attorney fees

and costs is granted. Appellees are awarded $4,532.50 for

the services of Frank Susman, $4,162.50 for the services of

Denise Z. Field, and $18,750 for the services of D. Bruce

LaPierre. Appellees are also awarded costs in the amount

F-2

of $139.82. Accordingly, appellants shall pay to appellees

the total amount of $27,584.82 as attorney fees and costs

incurred by appellees in this appeal.

A true copy.

Attest: /s/ Michael E. Gans

Clerk, U.S. Court of Appeals, Eighth Circuit.

F-3

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

SHRINK MISSOURI GOVERNMENT )

PAC, et al.,

Plaintiffs,

No. 4:95CV815

CDP

v,

JOHN MAUPIN, et al.,

ee ee ee ee a

Defendants.

MEMORANDUM AND ORDER

This matter is before the Court on plaintiffs’ motion for

an award of attorneys’ fees pursuant to 42 U.S.C. § 1988

and Fed. R. Civ. P. 54(d)(2). Because plaintiffs’ attorneys

charged reasonable hourly rates and their total-hour cal-

culation is reasonable, plaintiffs’ action will be granted.

Plaintiffs challenged the constitutionality of certain

provisions of Missouri Senate Bill 650 and Proposition A,

which limited campaign expenditures, amounts candidates

could contribute to their own elections, and campaign

"War chests", and required certain information to be in-

cluded in some political advertisements. The court initially

granted a temporary restraining order, then a preliminary

injunction and then, following an expedited schedule,

granted summary judgment to Plaintiffs on all their claims

and permanently enjoined enforcement of the statute. The

Eighth Circuit Court of Appeals recently affirmed this

Court’s decision. The primary inquiry in an attorney fees

case is whether fee request is "reasonable." See generally

F-4

Blum v. Stenson, 465 U.S. 886, 893 (1984); McDonald v.

Armontrout, 860 F.2d 1456, 1458 Cir. 1988). In calculating

a reasonable fee, a court must be mindful of Congress’

intent to encourage the enforcement of constitutional

rights through the award of fees which are "adequate to

attract competent counsel, but [which do not] produce

windfalls to attorneys." Blum, 465 U.S. at 897 (quotation

omitted).

The Supreme Court has explained that the proper

method for determining a reasonable attorney’s fee is to

multiply the number of hours reasonably expended on the

litigation times a reasonable hourly rate. Pennsylvania v.

Delaware Valley Citizens’ Council for Clean Air, 478 U.S.

546, 564 (1986) (quotation omitted). The resulting

product, the "lodestar," is presumed to be the reasonable

tee to which counsel is entitled. Here, defendants do not

challenge this method of calculating the fee award, but

rather claim tltat the hourly rates were unreasonably high

and that the hours expanded were excessive.

The Supreme Court in Blum stated that the awards of

attorney fees under § 1888 should be calculated using

"market rate" and that the "requested rates (should be) in

line with those prevailing in the community for similar

services by lawyers of reasonably comparable skill, ex-

perience, and reputations." Blum, 465 U.S. at 895-96; see

also McDonald, 860 F.2d at 1458-59. In Delaware Valley,

the Court emphasized the factors which should be issued

to set the reasonable number of hours and the reasonable

hourly rate components of the fee award formula: (1) The

time and labor required, (2) the novelty and difficulty of

the question, (3) the skill requisite to perform the legal

service properly, (4) the preclusion of other employment

by the attorney due to acceptance of the case, (5) the

customary fee, (6) whether the fee is fixed or contingent,

SAO er a ad ead etinas

Sarl Dewy. 1+ 2G te a ae Re Aw a:

F-5

(7) time limitations imposed by the client or the cir-

cumstances, (8) the amount involved and the results ob-

tained, (9) the experience, reputation, and ability of the

attorney, (10) the “undesirability" of the case, (11) the

nature and length of the professional relationship with the

client, and (12)adwards in similar cases. 478 U.S. at 565-

66; see also McDonald, 860 F.2d at 1459 n.4.

Plaintiffs’ counsel calculate the attorneys’ fees incurred

to total $68,581.19. Specifically, Plaintiffs estimate that

Frank Susman worked on the case for 67.6 hours — plus

4.8 hours preparing the instant motion — at an hourly rate

of $185, for a total of $13,386, and that he incurred costs of

$145.19; that Denise Z. Field worked on the case for 109

hours at an hourly rate of $150, for a total of $16,350; and

that D. Bruce La Pierre worked an the case for 193.5 hours

at an hourly rate of $200, for a total of $38,700.

Applying the Delaware Valley factors to the hourly rates

charged in the case at bar, the Court first notes that this was

a complicated case of first impression. The "campaign

reform" statute at issue here contained some provisions

that were quite dissimilar to statutes previously challenged

in federal courts. Moreover, attorneys Susman, La Pierre,

and Field were all experienced attorneys who ultimately

assisted their clients in prevailing on all issues raised in this

public interest suit. Attorneys Susman, La Pierre, and Field

attested in their affidavits that the hourly rates they

charged are the same as they typically charge their fee-

paying clients; indeed, Susman was awarded attorney’s fees

calculated at an hourly rate of $185 in another case in 1995.

While defendants have presented no evidence showing

that attorneys of Susman, La Pierre, or Field’s caliber do

the type of work involved in this case for a lower fee, there

is ample evidence showing that plaintiffs’ attorneys were

highly experienced and that the hourly rates they charged

F-6

in this case are their typical hourly rates. See McDonald,

860 F.2d 1456, 1459-60. The Court finds the hourly rates

charged by plaintiffs’ attorneys here are reasonable.

Defendants challenge the reasonableness of plaintiffs’

number of hours on the basis that some of plaintiffs’ mo-

tions were "frivolous" and "without merit" and plaintiff

attorneys’ experience in civil rights litigation should have

allowed them to do the work in less time. They also argue

that Field’s participation in the litigation was unreasonable

and unnecessary and that various entries by plaintiffs’

counsel indicating "meetings" or "strategy conferences"

should be deducted from plaintiffs’ total hours because

there is no evidence for the purpose, reasonableness, and

necessity of these telephone calls or conferences.

Defendants’ arguments lack merit.

First, although the court denied plaintiffs’ two motions

to strike defendants’ papers, the Court by no means found

such motions to be "frivolous." Defendants had filed briefs

that had not been contemplated by the Court’s scheduling

order, but which were allowed under the local rules. When

plaintiffs sought to strike the brief the Court stated,

“Defendants are technically correct, but they have taken

advantage of both the Court’s and plaintiffs’ good faith

efforts to resolve this case expeditiously and in the simplest

and fairest manner possible." Thus, because defendants

were technically correct, the Court did not strike their

filings, but plaintiffs’ efforts were hardly unreasonable. In

any event, the denial of two minor procedural motions does

not make plaintiffs any less the prevailing party, and the

time spent on those two motions should not be deducted

from the fee award. Furthermore, although Denise Field

was not counsel of record or licensed in Missouri, she is

highly experienced in the area of civil rights and member-

ship to the bar or entry as counsel of record are not requir-

ee ee

F-7

ed before one can recover attorneys’ fees. See generally

Missouri v. Jenkins by Agyei, 491 U.S. 274, 285 (1989) . The

evidence shows that her time was reasonable and necessary

to the prosecution of the suit.

Defendants also provide no evidence that plaintiffs’

telephone conversations and meetings were not useful or

not "of a type ordinarily necessary to advance the civil rights

litigant{s] under § 1988." McDonald, 860 F.2d at 1462

(quotation omitted). Unlike Bagsby v. St. Louis Bd. of

Police Com’rs, 783 F. Supp. 1214, 1216 (E.D, Mo. 1992),

where the court reduced the total number of hours claimed

because the time records showed "substantial duplication

of efforts," there is no such showing here, and the court

finds these meetings were reasonable and necessary in this

case. Because "consultations with experts and other attor-

neys, and research of applicable law," McDonald, 860 F.2d

at 1462, are the types of preparation needed for this type

of specialized litigation involving an issue of first impres-

sion, the Court finds plaintiffs’ Calculation of the total

hours expended on this ultimately successful litigation to

be reasonable.

Accordingly,

IT IS HEREBY ORDERED that plaintiffs’ motion for

attorneys’ fees and costs [#34-1] is granted, and defendants

shall pay to plaintiffs the sun of $67,701.10 as attorneys fees

and costs of this action.

/s/ Catherine D. Perry

UNITED STATES DISTRICT JUDGE

Dated this 22nd day of January, 1996.

F-8

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

SHRINK MISSOURI GOVERNMENT )

PAC, et al., )

)

Plaintiffs, )

)

V. ) No. 4:95CV815

) CDP

JOHN MAUPIN, et al., )

)

Defendants. )

ORDER

This matter is before the Court on plaintiffs’ motion for

supplemental and final award of attorneys’ fees pursuant

to 42 U.S.C. § 1988. Defendants have not opposed this

motion. Plaintiffs were previously awarded attorneys’ fees

as prevailing party in this Court and by the Court of Ap-

peals when it affirmed the decision of this Court. The

United States Supreme Court has now denied defendants’

Petition for Certiorari in the case and plaintiffs seek

recovery of attorneys’ fees pursuant to 42 U.S.C. § 1988 for

time and expenses incurred after the award of the Court of

Appeals and in opposing the petition for certiorari. The

Court has reviewed the request and finds the hourly rates

and expenses charged are entirely reasonable. The Court

will accordingly grant the motion.

Accordingly,

IT IS HEREBY ORDERED that plaintiffs’ Motion for

supplemental and final award of attorneys’ fees [#48-1] is

granted.

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F-9

IT IS FURTHER ORDERED that defendants shall pay

to plaintiffs attorneys’ fees and costs incurred in the

amount of $11,695.95, in addition to the other attorneys’

fees awards previously entered.

/s/ Catherine D. Perry

CATHERINE D. PERRY

UNITED STATES DISTRICT JUDGE

Dated this 31st day of July, 1996.

APPENDIX G

G-1

AFFIDAVIT OF D. BRUCE LA PIERRE

Comes now Affiant, D. Bruce La Pierre and states:

1. I was lead counsel for the American Civil Liberties

Union of Eastern Missouri and the plaintiffs in Shrink

Missouri Government PAC v. Maupin, 71 F.3d 142-2 (8th

Cir. 1995), cert. denied, 518 U.S. 1033 (1996),

2. In this case, the United States Court of Appeals for

the Eighth Circuit held that certain campaign spending

limits established by a Missouri statute (Senate Bill 650)

and by an initiative measure (Proposition A) violated the

First Amendment.

3. Counsel in this case received attorneys’ fees and costs

under 42 U.S.C. § 19813 for their successful First Amend-

ment challenge both to laws enacted by the legislature and

to laws adopted directly by the electorate as an initiative

measure, It would have been very difficult, if not impos-

sible, to bring this First Amendment case if attorneys’ fees

were not available under 42 U.S.C. § 1988.

4. I am also lead counsel in a case that is currently

pending in the Eighth Circuit and that raises a First

Amendment challenge to limits on campaign contributions

imposed by the State of Missouri. Shrink Missouri Govern-

ment PAC v. Adams (No. 98-2351EMSL 8th Circuit).

a. As the State of Missouri recently recognized in that

case, there are very few individuals or organizations who

are willing to raise a First Amendment challenge to cam-

paign finance Restrictions. Missouri noted, in an attack on

the plaintiffs’ standing, "the reluctance of real candidates

to take the political heat of publicly asking for permission

to accept unlimited Contributions," State Appellees Sug-

gestion for Hearing en banc Shrink Missouri Government

G-2

PAC v. Adams (No. 98-2351EMSL 8th Circuit) (August 7,

1998), denied, Order (August 20, 1998).

b. Absent the availability of attorneys’ fees and costs

under 42 U.S.C. § 1988, I would not have been able to

represent the plaintiffs in this litigation.

/s/ D. Bruce La Pierre

D. Bruce La Pierre, Affiant

COUNTY OF ST. LOUIS)

') SS

STATE OF MISSOURI)

On this 26th day of August, 1998, personally appeared

before me the above named Affiant, D. Bruce La Pierre,

who being first duly sworn upon his oath and stated that the

foregoing statements are true to the best of his knowledge,

information and belief and that he executed the same as

his free act and deed.

Subscribed and sworn to before me, a Notary Public,

on the day and year last above written.

/s/ Lois Love Franklin

Notary Public

Official Notary Seal

Lois Love Franklin

Notary Public State of Missouri

St. Louis City County

My Commission Expires Mar. 12, 1999

Aoo tt taba

APPENDIX H

H-]

IN THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

RON RUSSELL, ET AL

Appellants,

)

)

)

)

vs. ) No. 97-3922/4033/4038

)

TROY BURRIS, ET AL )

)

)

Appellees.

AFFIDAVIT OF PATRICK DEATON

Comes now Affiant, Thomas Patrick Deaton, Jr., being

of legal age and states under oath and penalty of perjury:

|. | am forty-seven years old and live at 1147 South

Delaware Avenue, Springfield, Missouri 65804.

2. | was the attorney of record for appellant Thomas D.

Carver in Carver v. Nixon, No 95-2606, decided December

19, 1995, and reported at 72 F.3d 633

3. Carver challenged the constitutionality of campaign

contribution limits passed by voter initiative (Proposition

A) in Missouri in November 1994,

4. Carver challenged the campaign contribution limits

by filing a 42 U.S.C. 1983 action in which he alleged that

the contribution limits violated his First Amendment

freedoms.

5. | received an award of attorney fees ($10,980.00) and

expenses ($1,104.86) pursuant to 42 U.S.C. 1988 from the

Eighth Circuit on February 14, 1996, after successfully

appealing the judgment of the United States District Court

H-2

for the Western District of Missouri (Southern Division).

6. I also received an award of attorney fees and

expenses for legal work in the district court.

7. The Attorney General of Missouri filed APPELLEES’

OBJECTIONS AND RESPONSE TO APPELLANT’S MOTION

FOR AWARD OF ATTORNEY FEES AND COSTS in the

Eighth Circuit in which Appellees argued that the award

of attorney’s fees under the special circumstances of Car-

ver was not justified and cited Thorsted v. Gregoire, 841 F.

Supp. 1068, 1083 -1085 (W.D. Wash. 1994), in support of

their opposition.

THE AFFIANT SAYS NOTHING FURTHER.

COUNTY OF GREENE )

)

STATE OF MISSOURI )

On this 25th day of August 1998, Patrick Deaton per-

sonally appeared before me, and being first duly sworn

upon his oath, stated that the above and foregoing state-

ments were true to the best of his knowledge, information

and belief.

Marl Lynne D. Phillips

Notary Public State of Missouri

Greene County

My Commission expires: July 19, 1999