Albany Criterion Club v. Dougherty County, GA Board of Commissioners Brief of Appellees

    UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

IN THE

NO. 78-3066

CRITERION CLUB OF ALBANY, et al., 
Appellants, 

versus
THE BOARD OF COMMISSIONERS OF 

DOUGHERTY COUNTY, GEORGIA, et al. 
Appellees

BRIEF OF APPELLEES

PERRY, WALTERS, LIPPITT & CUSTER
Henry C. Custer
P.O. Box 527
Albany, Georgia 31702

ATTORNEYS FOR APPELLEES



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

No. 78-3066

CRITERION CLUB OF ALBANY, et al., 
Appellants, 

versus
THE BOARD OF COMMISSIONERS OF 

DOUGHERTY COUNTY, GEORGIA, et al.,
Appellees

BRIEF OF APPELLEES

PERRY, WALTERS, LIPPITT & CUSTER
Henry C. Custer
P.O. Box 527
Albany, Georgia 31702

ATTORNEYS FOR APPELLEES



IN THE
UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 78-3066

CRITERION CLUB OF ALBANY, et al.,
Appellants,

versus
THE BOARD OF COMMISSIONERS OF 

DOUGHERTY COUNTY, GEORGIA, et al.,
Appellees

CERTIFICATE OF INTERESTED PERSONS

The undersigned counsel of record certifies that 
the following individuals or entities have an interest 
in this case: The Criterion Club of Albany, J.P.
Cheevers, B.F. Cochran, Jr., Charles L. Hayes, E.D. 
Hamilton, C.B. King, Leonard Smith, William Noble, A.C. 
Searles, W. Carl Gordon, Jr., D.H. Odums, Ozell S. 
Kelley, Henry F. Gilmore, James Pendergrast, F.V. 
Rollins, C.K. Dunson, O.W. O'Neal, Jr., Alfredo Stokes, 
Eugene Barnett, McKinley McIntyre, Andrew Carnegie, 
George Bragg, J.C. Reese, C.W. Grant, The Board of Com­
missioners of Dougherty County, Georgia, Paul A.
Keenan, Gil M. Barrett, Robert M. Denson, Karl L. Hall, 
Richard Rhodes, Carl F. Leavy, and Helen G. Rohrs. All 
the parties named herein are plaintiffs or defendants 
in this action.

Att
Appellees



THERE IS NO NEED FOR ORAL ARGUMENT

Appellees show that oral argument would not be 
helpful to the Court as the issues can be adequately- 
covered by written brief which would be a more effi­
cient use of the court's time and lessen the legal 
expense to the parties.

-ii-



TABLE OF CONTENTS

TABLE OF CASES......... ....... ........ . v
STATEMENT OF ISSUES..........  ........... 1
STATEMENT OF THE CASE........................ 2

(i) COURSE OF PROCEEDINGS AND DISPO­
SITION IN COURT BELOW___ ...____ 2

(ii) FACTS...... . ............... 3
(a) STATISTICS___ .............. 3
(b) EVENTS LEADING UP TO

LEGISLATION......... ........  4
(c) MINORITY PARTICIPATION and

RESPONSIVENESS OF ELECTED 
OFFICIALS ______............ 5

(d) REASONABLE FEES?.......___  7
SUMMARY OF THE ARGUMENT  .      9
ARGUMENT .  .   12

I. THE DENIAL OF APPELLANTS MOTION 
FOR AWARD OF ATTORNEYS FEES WAS 
CORRECT ................     12
A. APPELLANTS WERE NOT PREVAIL­

ING PARTIES.................  12
(i) AT-LARGE MULTI-MEMBER 

DISTRICTING IS NOT PER 
SE UNCONSTITUTIONAL ... 12
(a) ACCESS.... ......  15
(b) RESPONSIVENESS ... 16
(c) POLICY___ ....... 17
(d) PARTICIPATION____ 17

Page

-iii-



Page
(ii) THE LAWSUIT WAS 

RENDERED MOOT BY 
LEGISLATION OF THE 
GEORGIA GENERAL 
ASSEMBLY....... . 18

B. THE AWARD OF ATTORNEYS FEES 
IN THIS CASE WOULD BE UN­
JUST.....................  21

II. THIS COURT DOES NOT HAVE ADE­
QUATE FACTS AND EVIDENCE BEFORE 
IT TO DETERMINE THE PROPER 
AMOUNT OF FEE AWARD IN THIS CASE. 22
A. THE FEES SOUGHT BY PLAIN­

TIFFS ARE UNREASONABLE.....  22
B . FEES FOR BILLING?........... 30
C. A BONUS ........    31

III. THE GRANTING OR DENIAL OF ATTOR­
NEYS FEES TO ENCOURAGE SETTLEMENT 
IN THIS KIND OF CASE WOULD BE 
ERROR.... ...................... - 31

CONCLUSION ........     33

-iv-



Table of Cases
Page

Ayers v . Western Line Consolidated School 
District, 404 F. Supp. 1225~ (N.D. Mis7.
1975) ......................................
Brown v. Culpepper, 559 F.2d 274 (5th Cir. T9 77) .'  --- ^ —
Cohen v. Maloney, 428 F. Supp. 1278 (D.
Del. 1977).................................
Com, of Penn, v. O'Neill, 431 F. Supp. 700 
(E.D. Pa. 1977)............................
David v. Garrison, 553 F.2d 923 (5th Cir.
1977) __ ..7................. ...............

Davis v. Reed, 72 F.R.D. 644 (N.D. Miss.
1976) ........ ......................... .....
East Carrol Parish School Board v. Marshall 
424 US 636, 47 L. Ed. 2d 296, 96 S7ct7 1083 
(1976)................. .................. ..
Fortson v. Dorsey, 379 U.S. 433, 13 L. Ed. 
2d 401, 85 S.Ct. 498 (1965)...... ........
Henderson v. Fort Worth Ind. School Dist., 
574 F. 2d 1210 (5th Cir. 1978).........77. .
Johnson v. Georgia Highway Express, 488 F. 
2d 714 (5th cirf 1974).......;...7.......
Latham v. Chandler, 406 F. Supp. 754 (N.D. 
Miss. 1976)....... ........................
McCormick v. Attala County Board of Educa­
tion, 424 F. Supp. 1382 (N.D. Miss., 1976)
Morrow v. Dillard, 580 F.2d 1284 (5th Cir.
1978) .....777777....... ...................
Oil Chem. & Atom Wkrs. Int. U. v. American 
Maize Prod. Co., 492 F.2d 409 (7th Cir.
19747777777777.............................
Rainey v. Jackson State College, 551 F.2d 
£72 (5th Cir. 1977)..7....................

28

21,32,
33
30

32

12,13,
21
28

14

12

20,21,
22

10,11,25,
27,29,30,
34

28

27

10,32,
34
18

30

-v-



Page
Weeks v. Southern Bell Tel. & Tel. Co., 25467 F.2d 95 (5th Cir. 1972) ....... .
White v. Reqester, 412 
2d 314, 93 S.Ct. 2332

US 755, 37 L. Ed. 
(1973)............... 12

Zimmer v. McKeithen, 485 F.2d 1297 (5th
C I F T T W H T T . . . ................ ........... 13

-VI”



Table of Statutes

Statutes
28 U.S.C. §2201 .......... ................ 2
42 U.S.C. §§1971 (a), 1973, 1981, 1983.... 2

Page

-vii-



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

NO. 78-3066

CRITERION CLUB OF ALBANY, et al., 
Appellants, 

versus
THE BOARD OF COMMISSIONERS OF 

DOUGHERTY COUNTY, GEORGIA, et al.,
Appellees.

BRIEF OF APPELLEES

ISSUES
I. THE DENIAL OF APPELLANTS MOTION FOR AWARD OF 

ATTORNEYS FEES WAS CORRECT.
A. APPELLANTS WERE NOT PREVAILING PARTIES
B. THE AWARD OF ATTORNEYS FEES IN THIS CASE 

WOULD BE UNJUST
II. THIS COURT DOES NOT HAVE ADEQUATE FACTS AND 

EVIDENCE BEFORE IT TO DETERMINE THE PROPER 
AMOUNT OF FEE AWARD IN THIS CASE.

III. THE GRANTING OR DENIAL OF ATTORNEYS FEES TO 
ENCOURAGE SETTLEMENT IN THIS KIND OF CASE 
WOULD BE ERROR.



STATEMENT OF THE CASE
(i) COURSE OF PROCEEDINGS AND DISPOSITION 

IN COURT BELOW.
Appellants filed suit in the United States Dis­

trict Court for the Middle District of Georgia, Albany 
Division, seeking declaratory and injunctive relief un­
der 42 U.S.C. §§1971(a), 1973, 1981, 1983, and 28 
U.S.C. §2201. (R 4)

Appellants objected to the method of election of 
the Five Member Board of Commissioners by at-large, 
county-wide majority vote. The appellants alleged the 
system of electing commissioners for Dougherty County 
was invidiously discriminatory against all eligible 
black voters. (R 7)

The defendants are the Five Member Board of Com­
missioners of Dougherty County, the Clerk of the Board 
and the Judge of the Probate Court. They were sued in 
their individual and official capacities. (R 4-9) An 
answer was filed denying that the system of the county­
wide, at-large, numbered post, majority vote system of 
electing members of the Board of Commissioners of 
Dougherty County was unconstitutional and denying that 
the system deprived plaintiffs and members of their 
alleged class of their rights. The appellees further 
alleged that the defendants did not hold elections nor 
supervise elections. (R 11-15) As a fourth defense, 
the defendants showed that they had no authority in

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connection with enactment or enforcement of the 
election laws and that neither the State of Georgia 
nor any of its representatives were named as a defen­
dant in the cause. (R 11-15)

The attorneys for appellants filed a motion for 
allowance of attorneys' fees alleging that pursuant to 
a settlement agreement between the parties, the 
Dougherty County legislative delegation introduced a 
bill at the 1978 Session of the Georgia General Assemb­
ly which was passed and signed by the Governor redis­
tricting Dougherty County into a ward system providing 
for the election of at least two blacks to the county 
commission. (R 125-126)

The trial court entered an order denying appel­
lants motion for an award of attorneys’ fees. (R 204- 
205) Judgment was entered on August 28, 1978, holding 
the case moot as a result of the Legislation of the 
Georgia General Assembly and denying appellants motion 
for award of attorneys' fees. (R 266) Appellants 
filed their notice of appeal to the United States Court 
of Appeals for the Fifth Circuit dated September 8, 
1978, on September 11, 1978. (R 207)

(ii) FACTS
(a) STATISTICS

There were 30,808 total registered voters in 
Dougherty County as of November 2, 1976. (R40) The

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total population estimate as of December 31, 1975, by 
the Albany Dougherty County Planning Commission was 
94,753 persons of which 34,617 people were black and 
60,136 people were white. (R 38-40) This computes to 
a black population of 36.53% and a white population 
of 63.47%. The appellees admitted in their answer 
that plaintiffs percentages were approximately correct 
that black persons comprised 35% of the total popula­
tion of Dougherty County, Georgia, and 32% of the 
voting age population as alleged in the complaint.
(R 7, 14) The total registered voters as of November 
2, 1976, was 30,808 persons (R 40). On November 7, 
1972, there were 29,692 registered voters of which 
18,143 voted in the General Election. (R 35) On 
November 5, 1974, there were 28,595 registered voters 
of which 15,228 voted in the General Election. (R 34) 
On November 2, 1976, there were 30,808 registered 
voters of which 22,265 voted in the General Election. 
(R 33)

(b) EVENTS LEADING UP TO LEGISLATION 
The trial judge wrote a letter on July 22, 1977, 

to counsel of record stating that the court desired 
to give the Legislature an opportunity in January to 
enact legislation to solve problems encompassed by the 
lawsuit but at the same time felt that a decision 
should not be delayed so as to cause the matter to

-4-



come to a head right before qualifying time for the 
primary because candidates needed to know in advance 
of the election the manner the election was going to 
be conducted. (R 219) The court suggested that the 
Dougherty County Legislation Delegation be advised.
(R 219) The proposed legislation would divide the 
county into six districts with the percent of black 
population as follows: District One - 41.08%, Dis­
trict Two - 76.74%, District Three - 67.19%, District 
Four - 2.43%, District Five - 23.08% and District 
Six - 9.44%. (R 229) The bill enacted by the General 
Assembly provided for a Board of Commissioners composed 
of a chairman and six other members. The chairman to 
be elected at-large and the six others,one each from 
six individual districts in Dougherty County. (R 233, 
234, 235)

(c) MINORITY PARTICIPATION AND RESPON­
SIVENESS OF ELECTED OFFICIALS

In answer to plaintiffs interrogatory asking for 
black candidates running for county office, defendants 
answered that Clennon King ran for county commissioner, 
post 5, in the Democratic Primary of August 10, 1976, 
and that Clennon King ran for county commissioner, 
post 3, in the General Election of November 2, 1976.
(R 30)1
H  Appellants have stated in their Brief that no black 

had ever run for the Dougherty County Commission. 
(Brief of Appellants 1, 2)

-5-



The deposition of Carl Leavy, County Administra­
tor, taken by the plaintiffs indicates on Pages 20 
and 21 that the Board of Commissioners had enacted an 
affirmative action plan. Under the plan financial 
assistance is extended to pay part of the tuition 
costs for employees seeking training at the Vocational 
School as shown on Page 28 of the Deposition. The 
plan placed particular emphasis on recruiting and con­
sidering minorities and females in all openings at all 
levels and classifications. (Deposition Leavy 38) On 
being questioned about grants to the child care center, 
Albany State (a local black college of which one of 
the plaintiffs, Dr. Charles L. Hayes, is president) re­
ceived local funds to purchase child care slots. No 
efforts are made by the county to insure that those 
grants are used in a non-discriminatory way. (Deposi­
tion Leavy 67, 68)

The deposition of Richard Rhodes, defendant and 
County Commissioner, was taken by the plaintiffs. He 
testified that there was positively a difference in 
responding to black needs as contrasted with 20 years 
ago. (Deposition Rhodes 13) He cited an instance 
where a black delegation from a predominantly black 
neighborhood approached the commission which was 
received in openness and fairness and the commission 
took steps toward the possible alleviation of their

-6-



grievances. (Deposition Rhodes 13) He is a member 
of and attends an integrated church and being 
questioned on the previous Sunday's attendance answered 
that there were perhaps 10% black present. (Deposi­
tion Rhodes 24, 25) He belonged to an integrated or­
ganization. (Deposition Rhodes 26) Part of his poli­
tical success was based on his contacts in the black 
community. (Deposition Rhodes 26, 27) On being 
questioned about the school board, he was able to an­
swer over the reluctance of attorneys for plaintiff 
that he had appointed a black member to the school 
board. (Deposition Rhodes 28, 29, 30) The appointee 
happens to be one of the plaintiffs in this action. 
(Deposition Rhodes 30) On being questioned about his 
interest in the racial situation in the schools he 
answered that he is interested to see that everyone is 
treated fairly. (Deposition Rhodes 30) He related 
concerns of the black community expressed to him by 
members of that community indicating that they were 
his concern. (Deposition Rhodes 40)

(d) REASONABLE FEES?
In a memorandum to counsel dated June 19, 1978, 

the court inquired of counsel how under the circum­
stances plaintiffs could be prevailing parties. He 
questioned the $80.00 per hour fee sought as being 
appropriate noting that each counsel would on a

- 7 -



six-hour day take in fees of $480.00 per day on a 
five-day week of $2,400.00 per week. (R 253) The 
trial court noted further that on inquiry of the lar­
ger firms in previous instances on award of 
attorneys' fees that the hourly basis was found to be 
much less than $80.00 per hour. (R 253)

-8-



SUMMARY OF ARGUMENT

Appellees maintain that the denial of attorneys’ 
fees was correct in that appellants were not prevail­
ing parties since a legislative or political solution 
was found to a legislative or political problem. It 
is doubtful whether or not Dougherty County's at-large 
system of electing county commissioners would have 
been found unconstitutional. The record in this case 
shows that the black population had access to the po­
litical system and represented a sizeable strength 
within the system. Defendant and County Commissioner, 
Rhodes, on being deposed revealed that his success in 
running for that office was due in great part to his 
contacts within the black community. The deposition 
of Mr. Rhodes and County Administrator Leavy, revealed 
that the county government had been highly responsive 
to the black community as indicated by an affirmative 
action plan which included participation in tuition 
expenses, and the apparent ready availability of child 
care grants to Albany State College, a local black 
college and job appointments. Apparently, plaintiffs 
had never sought a legislative solution to their 
objection to the at-large system of voting; and due 
to the voting strength of blacks in Dougherty 
County as shown by the limited amount of statistics

-9-



developed in this case, such a solution would have 
been highly successful if sought prior to filing suit.

Appellees also maintain that the award of 
attorneys* fees in this case would be unjust because 
the record does not indicate that plaintiffs would 
have prevailed on the merits of the case as enumerated 
above. The case did not proceed far before becoming 
moot and the at-large system of voting operated blind­
ly against all classes of people, whites as well as 
blacks and there was no intentional nor unintentional 
discriminatory effect.

Appellees would suggest that this court does not 
have adequate facts and evidence before it to deter­
mine the proper amount of fee award in this case. An 
analysis of the bills submitted by attorneys for 
appellants requires some amount of guess work and re­
flects a good bit of duplication of time and work.
The record in this case is not adequate to properly 
meet the twelve guidelines set forth in Johnson v. 
Georgia Highway Express, 488 F.2d 714 (5th Cir. 1974) 
and Morrow v. Dillard, 580 F.2d 1284 (5th Cir. 1978). 
Should this court determine that it would be proper 
for it to award attorneys' fees and to determine the 
proper amount, appellees would suggest that fees for 
billing the client are not proper for obvious reasons. 
Appellees would also suggest that counsel for

-10-



plaintiffs are not entitled to a bonus in view of 
their affidavits that the case was handled with a view 
to settlement from the beginning with limited time be­
ing placed on the case and their previous experience 
in this area,which would indicate the case should not 
have required much of their time. Appellees also 
point out that the $80.00 per hour fee rate sought by 
attorneys for plaintiffs is not reasonable. The only 
reference to an hourly charge in this record shows 
that the trial court had inquired on other instances 
of award of attorneys' fees and found among the larger 
firms the hourly basis was much less than $80.00 per 
hour. Nor does it appear in this record whether 
plaintiffs individually, or as a group are more than 
able to pay their own attorneys' fees. Appellees 
would further suggest the reasoning set forth by the 
court in Johnson v. Georgia Highway Express, supra, 
that the courts do not have a mandate to make the pre­
vailing counsel rich and that the statute was not 
passed for the benefit of attorneys but to enable 
litigants to obtain competent counsel.

The court should not grant or withhold the award 
of attorneys' fees in these cases with an eye toward 
encouraging settlement as this issue is irrelevant to 
the award of attorneys' fees as is the conduct of the 
defendant, good or bad, negligent or intentional.

-11



ARGUMENT
I. THE DENIAL OF APPELLANTS MOTION FOR AWARD OF 

ATTORNEYS FEES WAS CORRECT.
A. APPELLANTS WERE NOT PREVAILING PARTIES.

(i) AT-LARGE MULTI-MEMBER DISTRICTING IS 
NOT PER SE UNCONSTITUTIONAL.

At-Large multi-member districting is not per se un­
constitutional. In Fortson v. Dorsey, 379 U.S. 433 
(1965), the Court held that equal protection does not 
necessarily require formation of all single-member dis­
tricts in a state's legislative apportionment scheme.
In White v, Regester, 412 U.S. 755 (1973), the Court 
affirmed a district court order requiring disestablish­
ment of multi-member districts in two Texas counties.
The United States Supreme Court recognized that such 
districts were not per se unconstitutional, but did ar­
ticulate certain standards to determine whether multi­
member districts were unconstitutional as "cancelling out 
or minimizing" the voting strength of racial groups. As 
stated in David v. Garrison, 553 F.2d 923, 927 (5th Cir. 
1977) :

In White v. Regester, ..., the indicators 
were: A history of official racial dis­
crimination vis-a-vis voting and register­
ing, a rule requiring a majority vote as 
a prerequisite to nomination in a primary,

-12-



its so-called "place" rule which limits 
candidates for legislative offices from 
multimember districts to a "place" on 
the ballot which reduces the election 
to a head-on contest for each position, 
the fact that only two blacks had been 
elected since Reconstruction, a finding 
that there was no good faith concern 
for political and other needs and aspi­
rations of the minorities, a white-domi­
nated candidate slate in one county, 
racially discriminatory campaign tactics 
to destroy minority competition, 
cultural and language barriers to 
diminish Mexican-American abilities to 
participate in the political process, 
past use of the poll tax and the most 
restrictive voting registration proce­
dures in the nation.

The court held further in David v. Garrison, supra, 
at 928:

In making that determination, this Cir­
cuit has followed the articulation of 
factors in Zimmer v. McKeithen, 485 
F .2d 1297 (5th Cir. 1973) (en banc), 
aff'd per curiam on other grounds sub

-13-



nom,, East Carroll Parish School Board 
v. Marshall, 424 U.S. 636, 96 S.Ct. 
1083, 47 L.Ed.2d 296 (1976). The 
Court set out the relevant test as fol­
lows :

[W]here a minority can demonstrate 
[1] lack of access to the process 
of slating candidates, [2] the 
unresponsiveness of legislators 
to their particularized interests, 
[3] a tenuous state policy under­
lying the preference for multi­
member or at-large districting, 
or [4] that the existence of past 
discrimination in general pre­
cludes the effective participa­
tion in the election system, a 
strong case [of dilution] is 
made. Such proof is enhanced by
[a] showing of the existence of 
large districts, [b] majority 
vote requirements, [c] anti­
single shot voting provisions 
and [d] the lack of provision 
for at-large candidates run­
ning from particular geographic 
subdistricts. The fact of

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dilution is established upon 
proof of the existence of an 
aggregate of these factors ... 
however, . . . all these fac­
tors need not be proved in 
order to obtain relief [Brac­
keted letters and numbers 
supplied]. Id. at 1305.

(a) ACCESS
The court stated further that the first factor to 

be considered was minority access to the slating process 
which must necessarily concern itself with the size of 
the electorate. The second factor concerned legislative 
responsiveness to the particularized needs of the 
minority group with inquiry as to the distribution of 
municipal jobs and appointments to various boards and 
commissions. The fourth major factor, relevant on the 
dilution question, was whether past effects of discrimi­
nation have the effect of precluding effective partici­
pation in the election system by blacks today. The 
court stated further at page 930 "There were no findings 
that blacks were afraid to vote, or campaign, and in 
fact there was evidence that the turn-out among black 
voters was unusually strong." From an examination of 
those statistics available in this record, it appears 
that the black population of Dougherty County controls

-15-



a healthy percentage, 35 to 36 percent of the total 
population. The total population estimate being 94,753 
persons and black people composing 34,617 people (R 38- 
40) would compute to a 36.53% black population. Accord­
ing to the statistics of the plaintiff, 32% of the 
voting age population were black. (R 7, 14) If 32% of 
the voting age population were black and on November 2, 
1976, there were 30,808 registered voters, assuming all 
voting age blacks registered to vote, this would mean 
that there is a possibility of 9,858 of the registered 
voters being black. This represents a sizeable voting 
power since 22,265 people voted in the General Election 
of November 2, 1976. (R 33) and 15,228 voted in the 
General Election of November 5, 1974. (R 34) This 
helps to explain County Commissioner Rhodes* statement 
that part of his political success was based on his 
contacts in the black community. (Deposition Rhodes 26, 
27) .

(b) RESPONSIVENESS
In response to the second factor as to legislative 

responsiveness to the needs of the minority group, the 
evidence in this case indicates a positive responsive­
ness of the county government to the needs of the black 
community. The deposition of County Administrator 
Leavy shows that the Board of Commissioners had enacted 
an affirmative action plan. (Deposition Leavy 38) On 
specific questioning by plaintiffs as to grants to the

-16-



child care center, they were granted to a local black 
college to purchase child care slots. (Deposition 
Leavy 67, 68) The deposition of Commissioner, Rhodes, 
stated that there was positively a difference in res­
ponding to black needs today. (Deposition Rhodes 13) 
He cited a specific instance of such needs being met. 
(Deposition Rhodes 13)

In regard to the other facet of responsiveness, 
dealing with jobs and appointments, County Administra­
tor Leavy, stated that this was the purpose of the 
affirmative action plan. (Deposition Leavy 20, 21,
38) It was extended to paying part of the tuition of 
Vocational School. (Deposition Leavy 28) On being 
questioned about the school board, Commissioner 
Rhodes, was able to answer over the reluctance of 
attorneys for plaintiffs that he had appointed a 
black member to the school board, who happens to be 
one of the plaintiffs in this action. (Deposition 
Rhodes 28, 29, 30)

(c) POLICY
In regard to the third factor which Zimmer identi­

fies dealing with state policy favoring at-large 
elections, the evidence is that Dougherty County had 
always had the at-large system of voting for county 
commissioners.

(d) PARTICIPATION
The only evidence relevant to the fourth factor

-17-



of the dilution question concerning past effects of 
discrimination precluding effective participation in 
election system, was mentioned by appellants in their 
brief on Pages 1 and 2 where they state that no black 
had ever run for the Dougherty County Commission. 
However, the interrogatories answered by defendants 
to plaintiffs show that one Clennon King ran for 
County Commissioner Post 5 in the Democratic Primary 
of August 10, 1976, and for County Commissioner Post 
3 in the General Election of November 2, 1976, (R 30) 
and, of course, Commissioner Rhodes testified that 
part of his political success was based on his con­
tacts in the black community. (Deposition Rhodes 26, 
27) There simply is no evidence in this case to 
establish plaintiffs theory that the at-large system 
of electing Dougherty County Commissioners was viola­
tive of the plaintiffs constitutional rights because 
that system diluted or prevented participation by the 
black voters of Dougherty County.

(ii) THE LAWSUIT WAS RENDERED MOOT BY
LEGISLATION OF THE GEORGIA GENERAL 
ASSEMBLY.

The lawsuit has now been rendered moot by legis­
lation passed by the General Assembly. The plaintiffs 
cannot be prevailing parties.

Oil Chem & Atom Wkrs. Int. U. v. American

- 18-



Maize Prod. Co., 492 F.2d 409 (7th Cir. 1974), a class 
action alleging sex discrimination under Title VII of 
the Civil Rights Act of 1964, 42 U.S.C.A. §2000 et 
seq.,also claimed a denial of fair representation by 
the unions. The district court had dismissed the sex 
discrimination count against the unions for lack of a 
jurisdictional basis which was upheld by the Court of 
Appeals and the corporation had corrected the alleged 
employment violations; the court did not allow the 
plaintiff to recover her costs from the unions and 
did not preclude her from being eligible to receive 
discretionary award of attorneys' fees. But, the 
court stated that the denial of an award for attorneys' 
fees would not be an abuse of discretion. The court 
stated that the rule awarding attorneys' fees to the 
prevailing party in federal litigation was apparently 
extended to encourage the presentation to the court of 
controversies involving Title VII since Congress 
intended "the ultimate final sanction" to be judicial 
enforcement. The Court of Appeals said that purpose 
would not be served if as the plaintiff urged, the 
scope of the term "prevailing party" was extended be­
yond a courtroom context to include actual effect on 
corporate policy. The congressional intent is the 
same and to allow attorneys' fees in this case by ex­
tending the scope of the term "prevailing party" would

-19-



certainly defeat the purpose of the act since the so­
lution to this case was not judicial enforcement nor 
has there been any evidence in this case to substanti­
ate that there would have been judicial enforcement.

In Henderson v. Fort Worth Ind. School Dist.,
574 F .2d 1210 (5th Cir. 1978) where an action challen­
ged a Texas Statute requiring that a candidate for 
the school board must have been a qualified voter in 
the district for a period of three years, plaintiffs 
motion1 for attorneys' fees was denied. On appeal, 
the court held that refusal to award counsel fees was 
not an abuse of discretion since defendant's actions 
were taken under a statute which did not discriminate 
on the basis of race, sex, or other similar classifi­
cations and which defendants legitimately believed to 
be valid and plaintiffs made no attempt to correct the 
law by the legislative process. It is interesting in 
this case that when an attempt to correct the law by 
legislative process was made, it was successful. It 
would appear that had plaintiffs sought such legisla­
tive solutions prior to bringing the suit that they 
would have been highly successful in view of the vot­
ing strength of blacks in Dougherty County as shown by 
the limited amount of statistics developed in this case.

-20-



B. THE AWARD OF ATTORNEYS' FEES IN THIS CASE 
WOULD BE UNJUST.

The trial court denied appellants motion for 
attorneys' fees finding that there were compelling cir­
cumstances which would render an award of attorneys' 
fees unjust. The court did not do so because it found 
defendants conduct negligent or unintentional, in good 
faith or bad. As held by this court in Henderson v. 
Fort Worth Ind. School Dist., supra, these issues are 
irrelevant to an award of attorneys' fees. The court 
held the Brown v. Culpepper, 559 F.2d 274 (5th,Cir. 
1977) case distinguishable from the Henderson case. It 
is also distinguishable from this case. As the court 
held, the defendants never admitted liability in this 
case and there is no basis in the record to indicate 
that the plaintiffs were likely to have prevailed on 
the merits of the case as argued in the section imme­
diately above in this brief as compared with the 
standard enumerated in David v. Garrison, supra. As 
the trial judge found, this case did not proceed far be­
fore becoming moot as a result of legislation and a 
substantial portion of the paperwork generated in the 
case was solely concerned with the issue of attorneys' 
fees. There has been no showing that the at-large 
system of voting for County Commissioners discriminated 
invidiously against the plaintiff or their class, but

-21-



from what evidence was developed, the reverse was shown 
as reflected in the deposition of County Administrator, 
Leavy, and County Commissioner, Rhodes. It can be said 
in this case as was said in Henderson v. Fort Worth Ind. 
School Past., supra, at 1213, "The requirement operated 
blindly against all homogeneous classes of people; 
whites were affected the same as blacks, females the 
same as males. There was no unintentional discrimina­
tory effect."

II. THIS COURT DOES NOT HAVE ADEQUATE FACTS AND 
EVIDENCE BEFORE IT TO DETERMINE THE PROPER AMOUNT OF FEE 
AWARD IN THIS CASE.

A. THE FEES SOUGHT BY PLAINTIFFS ARE UNREASON­
ABLE.

The only facts found in this record dealing with 
attorneys' fees are in a memorandum to counsel dated June 
19, 1978, where the trial court noted that the plaintiffs 
were seeking $80.00 per hour attorneys’ fees which would 
mean that each counsel would on a six hour day take in 
fees of $480.00, and on a five day week $2,400.00.
(R 253) The trial court noted further that on inquiry 
of the larger firms in previous instances on award of 
attorneys' fees that the hourly basis was found to be 
much less than $80.00 per hour. (R 253).

Both attorneys are seeking compensation at a rate 
of $80.00 an hour, plus a bonus of 75% in addition to

22-



their expenses, Expenses in the case are obviously 
minimal: Mr, Walbert alleging $216.00 for three round
trips to Atlanta - Albany at 20 cents per mile; Mr. 
Phipps alleging $375.91, which consists of a $15.00 
filing fee, $37.75 xeroxing of complaint, U.S. Marshall 
fee of $21.24, and Court Reporter for depositions 
$243.25, with the remainder of expenses apparently rep­
resenting telephone calls; $10.00, $4.00, and like 
amounts that do not appear to be a verbatim statement 
of an itemized expense of a telephone call.

Mr. Walbert shows 114.3 hours at a rate of $80.00 
an hour which totals $9,144,00. He is seeking a 75% 
bonus of $6,858.00 to make a total fee allowance of 
$16,002.00. On analyzing his itemization of time, he 
apparently is claiming 20.5 hours of travel. For con­
ferences with co-counsel, he is claiming approximately 
34.15 hours, telephone calls which were apparently to 
co-counsel 14.10 hours, reviewing file 4.7 hours, re­
search 15.85 hours, working on pleadings 7.5 hours, 
and for billing or preparation of his motion and 
application for attorneys' fees 17.5 hours.

Mr. Phipps alleges 90.1 hours at $80.00 an hour 
for a total of $7,208.00 plus a 75% bonus of $5,406.00 
for a total fee of $12,614.00. Mr. Phipps' itemization 
of time is a little bit more difficult to analyze. For

-23-



example, his first item covers the week of November 22, 
1976, and December 2, 1976, and states his services as 
"conference with clients, co-counsel and factual in­
vestigation;: legal research; preparation of complaint"; 
whereas, Mr. Walbert, for the week of November 22, 1976, 
shows "conference with clients, co-counsel and factual 
investigation; round trip Atlanta-Albany." He shows a 
total time of 19 hours whereas Mr. Phipps shows a total 
time of 12.5 hours. In Mr. Walbert's case, we can 
assume that he had 8 hours travel time - 4 hours one 
way - which would leave him 11 hours to confer with 
clients, co-counsel and so-called factual investigation.

It is submitted by Appellees that should this 
court determine that attorneys' fees would be appropri­
ate, then counsel should be compelled to produce their 
time records and testify concerning them in order to 
determine what services were rendered and to properly 
establish a reasonable value thereof.

On analyzing Attorney Phipps' itemization of time, 
his services as set out appear to be lumped within time 
units so that it becomes mostly a guess. It appears 
that for conferences, including co-counsel and client, 
he is claiming 36.80 hours, legal research 14.25 hours, 
Pleadings 8 hours, telephone calls with co-counsel 11.1 
hours, review of file 13.25 hours, a hearing 2 hours, 
and preparation of his statement and application for

-24-



Attorneys’ Fees 4.5 hours.
Johnson v. Georgia Highway Express, 488 F.2d 714 

(5th Cir. 1974) seems to be the leading case dealing 
with attorneys' fees in civil rights cases.

The court states first that it is within the dis­
cretion of the district court whether to award 
attorneys' fees against a party, citing Weeks v . 
Southern Bell Tel. & Tel. Co., 467 F.2d 95 (5th Cir. 
1972) and others, and states further that the reasona­
bleness of the award is to be judged by the abuse of 
discretion standard of review. In remanding that case 
back to the district court for reconsideration, the 
court set down twelve guidelines. They are as follows: 

"1. The time and labor required." The possibili­
ty of duplication of effort exists where more than one 
attorney is involved. Non-legal work may command a 
lesser rate and its dollar value is not enhanced just 
because a lawyer does it.

"^• The novelty and difficulty of the question." 
Both counsel have shown that they are knowledgeable in 
this area, that it is not a case of first impression 
nor is it an area new to counsel. Mr. Walbert stated 
that he never fully prepared this case for trial.

"3. The skill requisite to perform the legal 
service properly." In considering the skill necessary

-25-



to perform the legal services claimed here and in view 
of the allegations of counsel as to their expertise, 
then it appears that it would be appropriate to look 
at the length of time spent in this case in research, 
conferences, etc., which counsel already had a working 
knowledge. It is submitted by the defendants that this 
item should be inquired into by the trial court.

"4. The preclusion of other employment by the 
attorney due to acceptance of the case." From a look 
at the time statements submitted by both counsel, it 
appears that work on this file was not constant but 
was sporatic and could not have interfered and preclu­
ded counsel from attending to other business. It is 
obvious from examining counsels' own time statements 
that counsel have not been precluded from other work 
anymore than counsel would have been precluded in any 
type of legal representation for paying clients and 
this item should be inquired into by the trial court.

"5. The customary fee." The trial court below 
has already stated that upon inquiry the standard rate 
of the larger firms have shown to be much less than 
$80.00 per hour. (R 253)

"6. Whether the fee is fixed or contingent."
There is no indication in movants' brief or affidavits 
whether a fee was quoted to the client or whether, in 
fact, counsel has received compensation from other

-26-



sources. The defendants submit that this item should 
be gone into thoroughly at a hearing before the court 
below.

"7. Time limitations imposed by the client or 
the circumstances.” The record in this case is void 
on this issue.

"8. The amount involved and the results obtained."
"9. The experience, reputation and ability of 

the attorneys."
"!0. The undesirability of the case." Obviously, 

counsel for plaintiffs specialize in civil rights 
actions and such actions enhance their reputations, 
give them favorable publicity in relation to their pro­
fession and further increase their business. As was 
stated in McCormick v. Attala County Board of Education, 
424 F. Supp. 1382, 1387 (N.D. Miss., 1976):

Bearing in mind the several factors al­
luded to in Johnson v. Georgia Highway 
Express, Inc., 488 F.2d 714 (5th Cir.
1974), as elements to consider in deter­
mining reasonable attorney fees, the 
court has no hesitation in stating that 
the amounts claimed by counsel, both at 
the trial and appellate levels, are 
greatly excessive and cannot be approved.
It is well settled in this district that

2 7-



$40 an hour is a reasonable fee for 
services rendered in court and $25 an 
hour is reasonable for time necessarily 
expended by counsel out of court in prepa­
ration for the case. Davis v. Reed, 72 
F. Supp. 644 [sic]2 (N.D. Miss. 1976); 
Latham v. Chandler, 406 F. Supp. 754 
(N.D. Miss. 1976); Ayers v. Western Line 
Consolidated School District, 404 F. Supp. 
1225 (N.D. Miss. 1975).

*  *  *

In fixing this amount, the court has con­
sidered the fact that trial counsel is a 
young attorney who is engaged primarily 
in civil rights litigation, that he has 
suffered no loss of clientele in handling 
this case; on the contrary, his reputation 
as an attorney in civil rights cases is 
calculated to be enhanced by this victory. 
The court also takes into account the pre­
vailing charges for legal services in this 
locality and what other attorneys charge 
for similar services. Necessarily, time 
spent in court should carry a higher rate 
than time spent in preparation for trial.

2. Davis v. Reed, 72 F.R.D. 644 (N.D. Miss. 1976).

-28-



It is interesting to note in that case that a 
Washington, D.C. firm sought $80.00 an hour for 220 
hours on appeal to which the district court stated 
"...[W]e expressly decline to put our stamp of approval 
on the ridiculous claims made by the Washington law 
firm for legal services rendered in this case."

The court in Johnson, supra, stated as to Item 10 
"This can have an economic impact on his practice which 
can be considered by the court." Defendants submit 
that this case did have an economic impact on both 
counsels' practice and should be considered by the 
court to reduce the amounts claimed.

"11. The nature and length of the professional re­
lationship with the client." Evidence of the existence 
or lack of existence of this relationship does not 
appear within the brief or affidavits. This matter 
should be gone into at a hearing before the trial court.

"12. Awards in similar cases." The court in 
Johnson v. Georgia Highway Express, Inc., supra, does 
state that the courts must remember that they do not 
have a mandate to make the prevailing counsel rich and 
that the section should not be implemented in a manner 
to make the private attorney's general position so luc­
rative as to ridicule the public attorney general.
"The statute was not passed for the benefit of 
attorneys but to enable litigants to obtain competent

-29-



counsel worthy of a contest with the caliber of counsel 
available to their opposition and to fairly place the 
economical burden of Title VII litigation." Further 
directing the court's attention to fees set in other 
cases, in Rainey v. Jackson State College, 551 F.2d 672 
(5th Cir. 1977), the Fifth Circuit held that a reasona­
ble attorney's fee in that case would be a minimum of 
$35.00 per hour for the full rate and $17.50 for the 
half rate. If the court is right in Johnson, supra, the 
statute was passed to enable litigants to obtain compe­
tent counsel worthy of a contest with the caliber of 
counsel available to their opposition and to fairly 
place the economical burden of Title VII litigation. 
Should not there be a hearing to determine if, in fact, 
plaintiffs are entitled to attorneys' fees or if 
plaintiffs are well able to pay their attorneys' fees?

B. FEES FOR BILLING?
It is to be noted that both counsel have alleged 

time for preparing their application and motion on 
fees which, in effect, is stating they are attempting 
to charge for billing the client. In Cohen v„ Maloney, 
428 F. Supp. 1278 (D. Del. 1977) where plaintiffs 
brought an action challenging an ordinance amending 
the city's apportionment plan, obtained a judgment de­
claring the ordinance unconstitutional and restraining 
defendants from conducting elections utilizing

-30-



districts prescribed therein, the plaintiffs had 
filed an application for award of attorneys' fees in­
volving some 293 hours; the court denied plaintiff's 
application for time spent in pursuing the fee appli­
cation. In light of Mr. Walbert's experience, is it 
reasonable that he should take 17.5 hours in research 
in preparation of his fee motion.

C. A BONUS
Finally, counsel for plaintiffs maintain that they 

are entitled to a bonus of 75%. The case was not par­
ticularly difficult, even if it had been tried. Coun­
sel for plaintiffs admit in their affidavits that they 
handled this case with a view to settlement from the 
beginning and the parties reached a political solution 
through their representatives within the legislature.
To allow such a bonus in a minimum case such as this 
requiring a minimum amount of time would be unreasona­
ble and unjust.

Appellees suggest that there is not enough evi­
dence in this record to answer any of these issues in 
determining a proper fee award.

III. THE GRANTING OR DENIAL OF ATTORNEYS' FEES 
TO ENCOURAGE SETTLEMENT IN THIS KIND OF CASE WOULD BE 
ERROR.

Appellants raised the issue in their brief of 
conflict of interest between plaintiff and attorney in

-31



a statutory or fee award case occurring during the pro­
cess of settlement if the fee is considered at that 
time. Since fees were not negotiated at the time of 
settlement in this case, it appears to appellees that 
the import of this argument is to award attorneys' 
fees to encourage settlement as indicated on Page 46 
of appellants brief. Appellants argued that encourage­
ment of settlements was a goal not only of the fee 
awards act but of the whole judicial system.

The cases dealing with attorneys* fees state that 
they should be awarded in these cases "unless special 
circumstances would render such an award unjust" and, 
further, "If the cost of private enforcement actions 
becomes too great, there will be no enforcement."
Brown v. Culpepper, 559 F.2d 274 (5th Cir. 1977). Other 
cases in this area state that the purpose of awarding 
attorneys' fees in civil rights cases is to assure that 
private enforcement remains available to those citizens 
who have little or no money with which to hire an 
attorney. Com, of Penn, v. O'Neill, 431 F. Supp. 700 
(E.D. Pa. 1977).

In Morrow v. Dillard, 580 F.2d 1284, 1299 (5th Cir. 
1978) the court quoted in part from the legislative 
history of the act as follows:

MR. FISH. Mr. Speaker, the civil rights 
attorney's fees bill, S. 2278, would

-32-



allow a court, at its discretion, to 
award attorney's fees to a prevailing 
party in suits brought to enforce the 
civil rights laws. The purpose of the 
bill is to allow the courts to provide 
the traditional remedy of counsel fee 
awards to private citizens who must go 
to court to vindicate their rights 

, under the civil rights statutes.
* * *

The average citizen does not have the 
financial resources to bring suit to 
enforce his rights unless attorney's 
fees are awarded. This bill should 
be passed in order to provide more 
effective enforcement of the civil 
rights laws.

As stated in Brown v. Culpepper, 559 F.2d 274 
(5th Cir. 1977) that "the defendants conduct, be it neg­
ligent or intentional, in good faith or bad, is irrele­
vant to an award of attorneys fees." A fortiori, the 
encouragement or discouragement of settlements in this 
kind of case should be irrelevant to the award of 
attorneys' fees.

CONCLUSION
Appellees respectfully submit that the trial court

- 33-



was correct in denying appellants motion for award of 
attorneys' fees as appellants were not prevailing par­
ties and, in addition, to award attorneys' fees in this 
case would be unjust.

This court does not have adequate facts and evi­
dence before it to determine the proper amount of fee 
awards under the standards as set forth in Johnson v. 
Georgia Highway Express, supra, and Morrow v. Dillard, 
supra. If 5it finds the trial court abused its discre­
tion in denying the fee award, it should remand the 
matter back to the trial court for a hearing on the 
matter.

The conduct of defendant, good or bad, negligent 
or intentional, is irrelevant to the award of attorneys' 
fees and so should be the encouragement of settlements 
in this kind of case.

Respectfully Submitted,
PERRY,

BY:

-34-



CERTIFICATE OF SERVICE

I HEREBY CERTIFY that I have this day served two copies 
each of the foregoing Brief upon opposing counsel by
mailing, first-class, postage prepaid, to:

DAVID F. WALBERT
1210 First National Bank Tower
Atlanta, Georgia 30303

DATED this

HERBERT E. PHIPPS 
P.O. Drawer 3468 
Albany, Georgia 31706

& day of December, 1978.