Opposition to Magistrate Chasez's Findings and Recommendations Regarding Attorneys' Fees; Notice of Hearing
Public Court Documents
August 22, 1986
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Case Files, Major v. Treen Hardbacks. Opposition to Magistrate Chasez's Findings and Recommendations Regarding Attorneys' Fees; Notice of Hearing, 1986. 6deb6859-c703-ef11-a1fd-6045bdec8a33. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/aee37a50-10ca-499e-9e99-e03933a55ea0/opposition-to-magistrate-chasezs-findings-and-recommendations-regarding-attorneys-fees-notice-of-hearing. Accessed November 05, 2025.
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BARBARA MAJOR, ET AL CIVIL ACTION
versus NO. 82-1192
DAVID C. TREEN, SECTION C
x x x x x x * x
OPPOSITION TO MAGISTRATE CHASEZ'S
FINDINGS AND RECOMMENDATIONS
REGARDING ATTORNEYS' FEES
INTRODUCTION.
STANDARD OF ASSESSMENT OF ATTORNEYS'
FEES MOTIONS.
THE PLAINTIFFS' LAWYERS ARE NOT ENTITLED
TO ANY FEES.
TIME AND LABOR REQUIRED.
(A.) General Excessiveness
(B.) Non-Court Time Compared to In-Court Time
NOVELTY AND DIFFICULTY OF THE QUESTIONS.
(A.) Section 2 Codified a Familiar and
Established Legal Standard.
(B.) Neither the Legal Issues Nor the
Facts Were Exceptionally Difficult.
The Opinion in Major v. Treen Proves
That This Case Could and Should
Have Been Handled by a Plaintiffs’
Motion for Summary Judgment.
The Number of Hours Claimed is
Excessive Compared to Other Voting
Rights Cases of Equal Difficulty
and Novelty.
EXPERIENCE, REPUTATION AND ABILITY
OF THE ATTORNEYS.
SPECIAL CATEGORIES OF WORK MERIT
DIFFERENT HOURLY RATES.
MAGISTRATE CHASEZ HAS ACCOUNTED TWICE FOR
DELAY IN PAYMENT
THE "RESULTS OBTAINED" IN THE PRESENT
CASE REQUIRES REDUCTION OF THE LODESTAR.
NATURE AND LENGTH OF THE PROFESSIONAL
RELATIONSHIP WITH CLIENT.
COMPARABLE CASES.
FEES FOR FEES WORK.
(A.) The Plaintiffs' Lawyers.
(B.) Mr. Menefee: Fees and Expenses.
EXPENSES.
CONCLUSION.
FOOTNOTES.
UNITED STATES DISTRICT COURT
"EASTERN DISTRICT OF LOUISIANA
BARBARA MAJOR, ET AL CIVIL ACTION
versus NO. 82-1192
DAVID C. TREEN, ET AL SECTION C
OPPOSITION TO MAGISTRATE CHASEZ'S
FINDINGS AND RECOMMENDATIONS
REGARDING ATTORNEYS' FEES
INTRODUCTION
"Parties seeking the assurance that
clear representational overkill can
provide must bear themselves the
cost that it occasions.”
‘Tasby v. Estes, 651 F.24 287, 290,
n.1l (5th Cir. 1981) aff'd in part,
rev'd in part on other grounds
Tasby v. Wright, 713 P.24 90 (5th
Cir. 1983).
The fivel attorneys who "participated"? in this
lawsuit are asking for approximately $750,000.00 for the almost
2600 hours and expenses which they allege were involved in
preparing for and engaging in a four day, 37 hour3, trial.
This is in stark contrast to the fees paid to defense counsel
in this matter, $69,270.00 at hourly rates of $75.00 to $85.00
for partners' work and $50.00 for associates’ work? and to
the $136,000.00 Magistrate Chasez has suggested they be paid
for their work on the merits. Defendants reiterate and
incorporate as though copied herein in extenso all of the
objections to the plaintiffs’ attorneys fee request originally
made in defendants' "Post-Magistrate Hearing For Attorneys’
Fees." A copy of that document is attached for the convenience
of the Court.
The plaintiffs' lawyers have claimed throughout that
they had no incentive to stretch out the litigation. Judge
Wilkey of the D.C. Circuit writing for the dissent in Copeland
v. Marshall, 641 F.2d 880 (D.C. Cir. 1980) seems to be one of
the few judges who has considered the effects on plaintiff
lawyers of a fee beckoning down the road. He said
"When a large firm [or as in this
case several lawyers from small
firms] knows the eventual success
will bring it compensation at its
customary rate for all relevant
hours of work, the firm has a
tremendous incentive to expand the
pretrial stages of the case to the
point where it becomes
overwhelmingly in the Government's
interest to settle, whether the
Government is in the wrong or not.
In private litigation the incentive
to expand the discovery and
pretrial motion stages is
counterbalanced by the high cost
that this will inflict on the
client, because victory does not
normally bring a recovery of the
litigant's own attorney's fees from
the other side. Not so in a case
of this sort against the
Government, where the law
deliberately encourages the
litigation by holding out the
carrot of attorney's fees-but only
to successful plaintiffs.
Furthermore, in private
litigation the high cost of
extensive discovery serves as an
incentive for both sides to
settle. But in Title VII cases
against the Government, the
incentives become entirely
lopsided, because expanded
litigation costs for plaintiff not
only increase his chance of
winning, but also greatly increase
the sum his lawyer stands to gain
if. he Aces win,..."
Copeland, supra, dissent at 911.
Although Judge Wilkey's remarks were addressed to the costs of
litigation outweighing the actual monetary recovery, they are
equally applicable to any litigation against government.
These lawyers had nothing to lose by investing their
time in this case. The New Orleans lawyers were just starting
their practices. The other lawyers all worked for an
organization for a salary. These lawyers could only gain. And
the more time they put in, the more they stood to gain ... And
there was another factor; it was a highly publicized case; it
was a case with a lot of high level politicians involved; it
was an exciting case.
The First Circuit examined the problem of such
excessive fee requests within the context of highly publicized
lawsuits only two years ago in Grendel's Den, Inc. v. Larkin,
749 F.24 945 (1st Cir. 1934). Judge. .Coffin, writing for the
panel, found that Harvard constitutional scholar and professor
Laurence Tribe had spent a reasonable amount of time on the
initial portion of the case, but thereafter:
...[tlhe early economy of effort
and careful focus upon only what
was necessary was lost in the heat
and excitement of litigating an
interesting First Amendment case.
...[the] basic assumption
underlying Grendel's fee
applications: [was] that the
standard of service to be rendered
and compensated is one of
perfection, the best that
illimitable expenditures of time
can achieve. But just as a
criminal defendant is entitled to a
fair trial and not a perfect one, a
litigant is entitled to attorney's
fees under 42 U.S.C. §1988 for an
effective and completely
competitive representation but not
one of supererogation."”
Grendel's Den, supra, at 953-54.
Plaintiffs' lawyers, Messrs. Derfner and Halpin, claim
that they are experts in this type of litigation. Defendants
do not contest those allegations. However, Miss Guinier and
Messrs. Quigley, Scheckman and Kellogg also claim expert status
and expect hourly rates commensurate therewith.
Yet Miss Guinier's affidavit and production revealed
that she had "participated" in only one other voting rights
case and even that case, Gingles v. Edmisten, 590 F.Supp. 345
(E.D.N.C. 1984), affirmed in part, reversed in part,
U.S. . ,'106'8.Ct. 2752 (1988), took place after this one.
Mr. Kellogg's affidavit alleged that he had tried ten
voting rights cases, but he was only able to name three when
examined on the topic five months later, (Deposition, Mr.
Kellogg, p. 9-13). Despite the fact that he claims civil
only five fee awards in the last two years.
and excitement of litigating an
interesting First Amendment case.
...[the] basic assumption
underlying Grendel's fee
applications: [was] that the
standard of service to be rendered
and compensated is one of
perfection, the best that
illimitable expenditures of time
can achieve. But just as a
criminal defendant is entitled to a
fair trial and not a perfect one, a
litigant is entitled to attorney's
fees under 42 U.S.C. §1988 for an
effective and completely
competitive representation but not
one of supererogation."
Grendel's Den, supra, at 953-54.
Plaintiffs' lawyers, Messrs. Derfner and Halpin, claim
that they are experts in this type of litigation. Defendants
do not contest those allegations. However, Miss Guinier and
Messrs. Quigley, Scheckman and Kellogg also claim expert status
and expect hourly rates commensurate therewith.
Yet Miss Guinier's affidavit and production revealed
that she had "participated" in only one other voting rights
case and even that case, Gingles v. Edmisten, 590 F.Supp. 345
(E.D.N.C. 1984), affirmed in part, reversed in part,
U.S. .°,°'106 8.Ct.-2752 (1986), took place after this one.
Mr. Kellogg's affidavit alleged that he had tried ten
voting rights cases, but he was only able to name three when
examined on the topic five months later, (Deposition, Mr.
Kellogg, p. 9-13). Despite the fact that he claims civil
rights expertise, production revealed that Mr. Kellogg has had
only five fee awards in the last two years.
Similarly, Mr. Scheckman and Mr. Quigley had
pai tiatp arid in no voting rights cases prior to Major,
(Deposition of Mr. Quigley, p. 10 and Deposition of Mr.
Scheckman, p. 13). Their combined production of only five fee
awards in the past two years, on general civil rights claims,
belies their contention of expertise in that field.
The items above summarize some of the problems with
the allegations of the fee petition which the signatures of the
plaintiffs' lawyers certified were made "to the best of [their]
knowledge, information, and belief formed after reasonable
inquiry, [the allegations are] well grounded in fact" under
FRCP 11. The "mistakes" in the fee petition mentioned above
can be characterized at best only as unforgivable sloppiness of
presentation and a waste of this Court and defendants' time and
resources, and at worst as deliberate misrepresentation.
pefendants call to the Court's attention that when
this case started, the New Orleans lawyers' firm, Quigley and
Scheckman, was only two months old. As Mr. Quigley points out,
lawyers new to private practice make a lot of mistakes.
(Deposition, Mr. Quigley, p. 77-78.) Defendants add that
lawyers new to private practice are also very unsure about how
to do things. Perhaps these factors explain the large number
of hours and lawyers. "[I]t's my experience in working on
something that's challenging, the best way to do it is to try
to involve as many people as you can in various, you know, with
various levels of experience." (Deposition, Mr. Quigley, p. 6).
But, even if the factors explain the large number of
hours and attorneys, they do not justify them. As the Third
Circuit has said
"Moreover, it should be noted that
the lodestar computation is a
two-edged sword. A fee applicant
cannot demand a high hourly
rate-which is based on his or her
experience, reputation, and a
presumed familiarity with the
applicable law and then run up an
inordinate amount of time
researching that same law. Double
dipping, in any form, cannot be
condoned. Our cases supply no
authority for rewarding non-stop
meter running in law offices."
Ursic v. Bethlehem Mines, 719 F.2d
670, 677 (3rd Cir. 1983).
Magistrate Chasez has done an admirable job in
reducing the plaintiffs' lawyers fee request to somewhat more
manageable proportions. However, that job is not complete.
Even the amount she recommends is excessive when one considers
that this case
a) didn't result in the election of
a black Congressman for the black
people of New Orleans;
could have easily been disposed
by summary judgment; and
provided "on the job training"
voting rights litigation for
several of the plaintiffs' lawyers.
ITI. STANDARD OF ASSESSMENT OF ATTORNEYS' FEES MOTIONS.
Attorneys' fees motions are to be assessed in light
the factors enunciated in Johnson v. Georgia Highway Express,
488 P.24 714 (5th Cir. 1974). These factors are to be weighed
as follows:
"(1l) Ascertain the nature and extent of the services
supplied by the attorney;
(2) Value the services according to the customary fee
and quality of the legal work; and
(3) Adjust the compensation on the basis of the other
Johnson factors that may be of significance in the
particular case."
Riddell v. National Democratic Party, 712 F.2d 165,
163 (5th Cir. 1983) citing Copper Liguor, Inc. v.
Adolph Coors Co., 684: F.24 1087, 1092 (5th Cir. 1932).
That test has not been overruled and forms the basis for
analysis of this fees motion in light of Hensley v. Eckerhart,
461 U.S. 424, 103 S.Ct. 1933 (1983) and Blum v. Stenson,
US i 2104 S.Ct. 1541 (1984).
Plaintiffs' implication, that Canons 5, 6 , and 7 of
the Code of Professional Responsibility somehow overrule
Hensley and Blum and allow plaintiffs' lawyers to spend as much
time as they see fit, without "Monday morning quarterbacking"
by the Court as to how much time was needed (Plaintiffs
Proposed Findings and Conclusion, p. 10), is without merit.
These canons were in existence at the time Hensley and Blum
were handed down, and there is no reason to conclude that the
Supreme Court failed to consider them. The standard remains,
"How much time was reasonable?"
IIT. THE PLAINTIFFS' LAWYERS ARE NOT ENTITLED TO ANY FEES.
The raglrtrate’s "Findings and Recommendation" ignore
the State defendants' argument that plaintiffs are not
entitled to any fees whatsoever.
Com'ns Court of Medina City, Tex. v. United States, 683 F.2d4
435 (5th Cir. 1982) provides:
"...in the exercise of its
discretionary function to determine
whether an award of fees is just
under the circumstances of this
case, the court should consider
whether the net result achieved is
so far from the position originally
propounded by the fee claimants
that it would be stretching the
imagination to consider the result
a 'victory' in the sense of
vindicating the rights of the fee
claimants. If the victory can
fairly be said to be only a pyrrhic
one, then an award of fees would
presumably be inappropriate."
Medina City, supra, at 442-43.
Accord Zarcone v. Perry, 581 F.24 1039, 1044 (2nd Cir. 1978).
The "victory" of plaintiffs here is at best a Medina
City "pyrrhic” victory which is not worthy of a fees award.
Plaintiffs did achieve a reapportionment of the metropolitan
New Orleans congressional districts as they sought to do.
However, that reapportionment was hollow. The named plaintiffs
and the plaintiffs' lawyers wanted a black Congressman for New
Orleans”.
They didn't get that: Plaintiffs' acknowledged that
black voting along racial lines exists in the New Orleans
area: (Merits Transcript, March 7, p. 29). They sought a
reapportionment plan that would leave the black voting strength
intact. (Merits Transcript, March 7, p. 25). Their own
witness, Mr. Lloyd Lewis, testified that in his opinion only
another black could really represent the black community.
(Merits Transcript, March 7, p. 251-253.) One can reasonably
conclude, then, that the plaintiffs' main goal was for blacks
to be able to elect a black:
"Seeing the promise of the first
Louisiana black in Congress in
this century fade away, black
leaders and civil rights lawyers
fought unsuccessfully before the
Justice Department and the courts
to stop the plan." Plaintiffs’
Exhibit 22, p. 22-23, Southern
Changes, Nov.-Dec. 1982.)
But, Plaintiffs didn't get a black representative. In
fact, the black plaintiff class elected the same
representatives that they had before. So what was
accomplished? A change in form with no change in substance.
Defendants are compelled to wonder if the named
plaintiffs represented the desires of the black community.
Apparently not. Perhaps the named plaintiffs represented only
their own black political activist® views. Perhaps if the
plaintiffs' lawyers had thought to share their anticipated
$1,000,000 attorneys' fees bonanza with at least one local
black attorney they would have been more in touch with
community views and known that the black population wasn't
interested in new representatives. But the plaintiffs' lawyers
didn't do that; instead they did 2600 hours of work with a net
result of zero, no change whatsoever. Defendants direct this
Court to Jones v. Diamond, 594 F.2d 997, 1027 (5th Cir. 1979):
". ..1t 4s appropriate, in
establishing a reasonable
attorneys' fee, to take into
account the net result of their
efforts...”
In the alternative, a reduced fee award is appropriate
if the relief, however significant, is limited in comparison to
the scope of the litigation. Studiengesellschaft Kohle mbh v.
Eastman Kodak Co., 713 F.2d 128, 132 (5th Cir. 1983), citing
Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 1942-43
(1983).
Lastly, we note that plaintiffs' continuing
6A
contention that they should be paid some fees now is
without merit. Their reliance on Parker v. Lewis, 670 F.2d 249
(D.C. Cir. 1982) is inapposite. All fees are contested by
defendants because this case was merely a pyrrhic victory.
Therefore, any forced interim award is inappropriate.
IV. TIME AND LABOR REQUIRED.
Although the Magistrate reduced the number of hours
requested by plaintiff's lawyers on the merits by 50%, the
State defendants still find the number of hours to be
excessive. Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933
(1983), provides that plaintiffs' attorneys shall be
compensated only for "reasonable" hours:
"The district court also should
exclude from this initial fee
calculation hours that were not
‘reasonably expended.' Cases may
. be aoverstaffed, and the skill and
experience of lawyers vary widely.
Counsel for the prevailing party
should make a good faith effort to
exclude from a fee request hours
that are excessive, redundant, or
otherwise unnecessary, just as a
lawyer in private practice
ethically is obligated to exclude
such hours from his fee
submission. 'In the private
sector, "billing judgment" is an
important component in fee
setting. It is no less important
here. Hours that are not properly
billed to one's client also are not
properly billed to one's adversary
pursuant to statutory authority.'"
Hensley, supra, 461 U.S. at 434,
103 S.Ct. at 1939-40 (Citations
omitted.) (Emphasis added.)
See also Copper Liguor, Inc. v. Adolph Coors Co., 684
F.2d 1087, 1069-97 (5th Cir. 1982) (If hours are excessive or
work poor, number of hours or hourly rate must be lowered.);
Davis v. Board of School Com'rs of Mobile County, 526 F.24 865,
868-69 (5th Cir. 1976); Association for Retarded Citizens of
North Dakota v. Olson, 713 F.24 1384, 1395-96 (8th Cir. 1983)
(33% reduction because case should have been presented in 2/3
of the time); Gagne v. Maher, 594 F.2d 336, 345 (2nd Cir.
1979), cert. granted by 444 U.S. 824, 100 S.Ct. 44 (1979),
aff'd Maher v. Gagne, 448 U.S. 122, 100 S.Ct. 2570 (1980)
(Fifty percent across the board reduction "because most
attorneys would not have spent so many hours on the case" was
not an abuse of discretion); and Dunten v. Kibler, 518 F.Supp.
1146, 1151 (N.D. Ga. 1981).
IV. (A.) General Excessiveness.
without any reference to the time spent on particular
tasks, a quick glance at plaintiffs' attorneys' request for
fees makes it apparent that their hours are generally
excessive. An across the board percentage reduction such as
the magistrate has suggested is appropriate for "manifest
excessiveness". Louisville Black Police Officers Organization,
Inc..v. City of Louisville, 700 F.24 268, 279 (6th Cir. 1983);
Association for Retarded Citizens of North Dakota v. Olson, 713
F.24 1384, (8th Cir. 1983); Barrett v. Kacinowski, 458 F.Supp.
689, 706 (M.D. Penn. 1978) (Percentage reduction for excessive
hours). ("...[Case] should have been presented in two-thirds
of the time actually used".)
Even with the 50% reduction in hours from 2600 to 1235
which Magistrate Chasez has recommended, the award to
plaintiffs’ is still excessive. In comparison, defendants
6B Exhibit M is a chart of all offer Exhibits M, N, and O.
published’ voting rights cases in the Fifth Circuit and
district courts within the Fifth Circuit, which defendants have
been able to locate which reveal the number of hours worked on
the case, the length of trial, and the type of voting rights
case it is, i.e. statewide Congressional, single line
Congressional, state legislature, local concerns, etc.
Exhibit N is a chart of many voting rights cases
outside the Fifth Circuit which have the same type information
as the cases on Exhibit M.
Exhibit O is a chart showing many published?
non-voting rights, statutory fee awards cases reported in the
Fifth Circuit and the districts it supervises which defendants
could locate which reveal the number of hours worked on the
case, the length of trial, and the type of civil rights case it
is, 1.e.
(1)
prisoner, First Amendment, etc. See particularly
Connor v. Winter, 519 F.Supp. 1337 (S.D. Miss. 1981)
(1269 hrs. for fifteen years case including four
statewide legislative reapportionments for 174 seats,
three declared invalid, and four trips to the Supreme
Court; case done by Frank Parker.
Doulin v. White, 549 F.Supp, 152 (E.D. Ark. 1982)
(Statewide congressional districts involving 6 seats
and four separate plans: 800 hours was found to be
excessive and the Court awarded 400 hours;
LaComb vi Crowe, No. 4-81 Civ. 152 (D.Minn. Aug. 16,
1982) (three judge court) (copy attached as Ex. Q.)
(444 hours and expenses for statewide congressional
and legislative reapportionment)
Graves v. Barnes, (This case is also known as White v.
Regester) unpublished fee award, copy attached for
convenience of the Court as Ex. P, award affirmed at
700 P.24 220 (5th Cir. 1983) (5300 hours for case that
involved two trials, ten years of litigation, and nine
reported opinions’ over statewide legislative
reapportionment involving 181 seats. Case identified
as unique because of scope and duration. Counsel
roaeivell HuneTouE pejorative letters including
deaththreat and his practice was "essentially
plundered" as a result of case.)
Farnum v. Burns, 571 F.Supp. 45 (D.R.1. 1983)
(Challenge to statewide state Senate redistricting
with preparation of several plans involving 36
districts with extensive pre-and post-trial briefing
and four-day trial composed of mostly expert
testimony. 1057 hours awarded.)
Rybicki v. State Bd. of Elections, 584 F.Supp. 849 (D.
I11. 1984) (Statewide legislative redistricting
involving 177 seats, three separate groups of
plaintiffs and plaintiffs' lawyers, nine day trial,
twenty-five witnesses and 200 exhibits. Court noted
in its opinion that case was legally and factually
complex. 3480.25 hours awarded, 2702.75 hours awarded
to black interest group (Crosby plaintiffs).
All three charts (Exhibits M, N, and O) make it clear
that the amount of time spent on Maior by the plaintiffs"
lawyers was excessive in the extreme.
IV. (B.) Non-Court Time Compared to In-Court Time.
All of defendants' specific objections to the
plaintiffs' attorneys time are incorporated herein by reference
(See p. 1 above). However, as an aid to this Court in seeing
that plaintiffs' attorneys time needs to be cut even further
than Magistrate Chasez has already done, defendants' point
paveieyiails th 4 Comparison of non-court time to in-court time.
Ex. D of defendants' memorandum to Magistrate Chasez
gives the details of this category, but a summary makes
apparent how grossly excessive the plaintiffs' lawyers' demands
for compensation are. Plaintiffs claim 2201.54 hours for
preparation for 216.58 hours of trial time. However, the trial
time figure is deceptive. There were only 37 hours of true
trial time. Thus, the ratio is really 2201.54 hours for
preparation for 37 hours of trial.
This points out that as with the rest of the case, the
plaintiffs used over-staffing on the trial, too. Although
30.33 hours of the trial time are accounted for by pre-trial
motions, etc., there are still 186.25 hours of supposed actual
trial time for a 37-hour trial, because all five lawyers were
there almost all she time.
In contrast defendants offer the following list of
voting rights and civil rights cases around the country; the
time it took to try them, or other pertinent information for
gauging the time needed if the trial time is not available; and
the number of hours awarded in regard to fees.
CASE NAME
Farnum v. Burns
571 F. Supp. 45 (D.C:
R.I. 1983) No appeal
reported. Senior
District Judge
Raymond J. Pettine
Connor v. Winter, 519
F.Supp. 1337 (S.D.
Miss. 1983) No
other cites.
Circuit Judge
Charles Clark
Chief
Coalition to Preserve
Houston v. Interim
Board of Trustees,
494 F.Supp. 733
{3.D. Tex. 1980)
appeal dismissed
450.-U.S..901, 101
S.Ct. 1335 and
judgment affirmed
450 U.S. 901, 101
S.Ct. .1335. Memo
Opin. and Order
per curiam
Wallace v. House,
F.Supp. 1192 (W.D.
La. 1974) fees
NUMBER
OF HOURS
AWARDED IYPE OF CASE
Challenge to 1057
statewide state
Senate redis-
tricting plan.
Course and result:
enjoined election;
prepared and sub-
mitted plans;
extensive pre-and
post-trial
briefing.
Plaintiff's liti-
gation provided
initial impetus
and subsequent
legislative and
judicially approved
reapportionment
plan re: Miss-
issippi legis-
lative elections.
1269.25
$5 of Voting
Rights Act
527.25
ly committed by
school district's hrs.
board of
trustees. A
case of first
impression with
difficult
question
of law and
complex proce-
dural issues,
but few court
appearances.
Challenge
by black
citizens to
attorney
violation alleged- hrs.; 105.25
paralegal
LENGTH OF
TRIAL OR
OTHER PER-
TINENT INFO.
4 days
About 15
years of
work,
(1965-1981),
including 4
Statewide
legislative
reapportionment
plus 4 trips
to U.S. Supreme
Court
3 year period
CASE NAME
award reversed (515
F.2d 619); reversal
of fees vacated
{96 B8.Ct. 1721); fees
award affirmed (538
E.24 1138) cert.
den. (97 S.Ct. 2921)
Senior District Judge
Benjamin C. Dawkins,
JI.
Doulin v. White, 549
F.Supp. 182 (E.D.
Ark. 1982) No
reported appeal.
Circuit Judge Richard
Sheppard Arnold
Graves v. Barnes, (W.D.
Tex., 1982) District
Court fee opinion
unpublished. Copy
attached as
Ex. P. Fees
affirmed in 700
F.24 220 (5th Cir.
1983)
NUMBER
OF HOURS
TYPE OF CASE AWARDED
town's at
large scheme
for electing
aldermen.
Court declared
Arkansas con-
gressional
districts
unconstitu-
tional and
placed into
effect new
court-drawn
apportionment.
Fees sought by
plaintiffs' and
intervenor's
attorneys.
Length of trial
unreported,
All urban multi-
members legis-
lative district
in Texas (i.e.
Austin, Dallas,
Houston, San
Antonio);
evident
that lead
counsel's
"law practice
was essen-
tially plundered
by his highly
public involve-
ment in these
actions" (p.11).
LENGTH OF
TRIAL OR
OTHER PER-
TINENT INFO.
Involved 4
separate
plans for
statewide
congres-
sional
districts
2 trials,
10 yrs.
of litigation
LENGTH OF
NUMBER TRIAL OR
OF HOURS OTHER PER-
CASE NAME TYPE OF CASE AWARDED TINENT INFO.
Attorneys in
this case
"were seen as
avatars of
social disrup-
tion, and were
greatly vilified
by the commu-
nication media.
Mr. Goldstein
received such
abuse and
numerous pejo-
rative letters,
including one
which wished
cancer upon
him for his
advocacy of
change.” {(p.13).
"In many ways,
this case is
unique. Its
scope and
duration and
the funda-
mental nature
of the consti-
tutional issues
involved set it
apart from other
cases in which
attorneys fees
have been awarded."
{p.15).
Rybicki v. State Consolidated 3480.25
Board of Elections, lawsuits by for all
584 F.Supp. 849 (D.C. three groups of plaintiffs;
I11. 1984) No appeal plaintiffs 2702.75 hrs.
reported. Judge challenging for black
Nicholas J. Bua the state legis- plaintiffs.
lative redistrict-
ing plan. Course
and results: 25
CASE NAME
Cole v. Tuttle, 462
F.Supp. 1016, 1020
{N.D. Miss. 1978)
Williams v. Thomas,
692 F.24 1032 (5th
Cir. 1982)
Assoc. for Retarded
Citizens of N. Dakota
VY. Olson, 561 F.Supp,
495 (D.N.Dak. 1982)
Rajender v. University
of Minnesota, 546
F.Supp. 158 {(D. Minn.
1982)
NUMBER
OF HOURS
TYPE OF CASE AWARDED
witnesses; more
than 200 exhib-
its. (Contrast
Major: 4 day
trial, 17 wit-
nesses, and
88 exhibits)
Court notes
the case was
factually and
legally complex.
The three dif-
ferent groups
had distinct
interests and
were entitled
to separate
counsel.
Prisoners’
civil rights
Prisoners’
civil rights
Retarded
civil rights
Employment
discrimina-
tion
LENGTH OF
TRIAL OR
OTHER PER-
TINENT INFO,
V. NOVELTY AND DIFFICULTY OF THE QUESTIONS.
Phd outs suggested by the Magistrate far exceed any
number reasonably warranted by the actual novelty or complexity
of the issues. Defendants note initially that the three judge
court's opinion in Major does not once refer to any of the
issues as novel or of first impression. See Major v. Treen,
574 F.Supp. 325 (E.D..1.a.:1983). All the plaintiffs had to
prove was discriminatory "effect" or "result". (§2, as
amended, Voting Rights Act)
As Mr. Leonard, defendants' expert, testified
(Transcript, Mr. Leonard, p. 24) the Donald Duck shape of
District 2, alone, is enough to prove even the more difficult
test of invidious discriminatory purpose:
"Determining whether invidious
discriminatory purpose was a
motivating factor demands a
sensitive inquiry into such
circumstantial and direct evidence
of intent as may be available. The
impact of the official action--
whether it "bears more heavily on
one race than another," Washington
¥. Davis, [426 U.S. 229, 242 196
S.Ct. 2040, 2049, 48 L,.E4d.2d 597
(1976) ]--may provide an important
starting point. Sometimes a clear
pattern, unexplainable on grounds
other than race, emerges from the
effect of the state action even
when the governing legislation
appears neutral on its face. Yick
Wo .v. Hopkins, 118 U.S. 356 [6
S.Ct. 1064, 30 L.E4d. 220] (19886);
Guinn v. United States, 238 U.S.
346: 135 S.Ct. 926, 59 L,.BE4. 1340]
(1915); Lane v. Wilson, 307 U.S.
268. [B9 SC, 8372, 83 L.Fd. 1231]
(1939); Gomillion v. Lightfoot, 364
U.S. 339. [81 'S.Ce..125, 5 I,.Ed.2d
110] (1960). The evidentiary
inquiry is then relatively easy.
But such cases are rare. Absent a
pattern as stark as that in
Gomillion or Yick Wo, impact alone
is not determinative, and the Court
must look to other evidence.
Arlington Heights v. Metropolitan
Housing Development Corp., 429 U.S.
252, 266, 97 S.Ct. 555, 5647 (1977)
(Emphasis added.)
What would constitute such a stark pattern? Let's look at
Gomillion:
"The complaint, charging that Act
140 is a device to disenfranchise
Negro citizens, alleges the
following facts: Prior to Act 140
the City of Tuskegee was square in
shape; the Act transformed it into
a strangely irregular
twenty-eight-sided figure as
indicated in the diagram appended
to this opinion. The essential
inevitable effect of this
redefinition of Tuskegee's
boundaries is to remove from the
city all save four or five of its
400 Negro voters while not removing
a single white voter or resident.
The result of the Act is to deprive
the Negro petitioners
discriminatorily of the benefits of
residence in Tuskegee, including,
inter alia, the right to vote in
municipal elections.
These allegations, if proven, would
abundantly establish that Act 140
was an ordinary geographic
redistricting measure even within
familiar abuses of gerrymandering.
If these allegations upon a trial
remained uncontradicted or
unqualified, the conclusion would
be.irresistible, tantamount for all
practical purposes to a
mathematical demonstration, that
the legislation is solely concerned
with segregating white and colored
voters by fencing Negro citizens
out of town so as to deprive them
of their pre-existing municipal
vote."
Gomillion, supra, 364 U.S. at 341,
81.8.Ct. at 127 (Emphasis added.)
Is the Gomillion plan really any stranger, or, to put
it in Arlington Heights terms, more "stark" than Act 20.
Defendants think not. Let's look at the maps of Act 20 and the
Gomillion Act 140 that were provided as appendices to the
respective opinions:
TUSKEGEE
ALABAMA I
’
Gomillion, supra, 364 U.S. at 348, 81 S.Ct. at 131.
DISTRICT 1 Ll Black Voter Registration
DISTRICT 28 nistrict One 1%
District Two 39%
Major, 574 F.Supp. at 359.
The conclusion is rather obvious, isn't it? If
anything the Act 20 map provides a starker pattern than
Gomillion's Act 140, with a more irregularly shaped figure (at
least 50 sides in Act 20 to 28 in Gomillion's Act 140). Why
couldn't the plaintiffs' attorneys have used these two maps and
moved for summary judgment? Such a procedure would have
generated, 3t Wost, $25,000 in attorneys' fees.
In the alternative defendants proceed to the standard
under amended §2.
V. (A.) Section 2 Codified a Familiar and Established Legal
Standard.
The plaintiffs claim that because Major v. Treen was
the first case litigated under amended §2 the issues were novel
and invoked matters of first impression. This contention
cannot withstand Rule 11 scrutiny. Major was not the first
amended §2 case tried. For example, Rybicki v. State Bd. of
Elections of Illinois, 574 F.Supp. 1147 (N.D. Ill. 1/20/83) is
an opinion that covered similar issues under amended §2, as to
the black Crosby plaintiffs of Chicago, as those that were
tried in Major. As is apparent, the Rybicki opinion was
published six weeks before the Major trial.
Additionally, by amending §2 Congress did not change
the law of vote dilution, but rather codified the standard
which had been used in dilution cases in the Fifth Circuit for
nearly a decade. Mr. Derfner, an expert voting rights attorney
who Miss Guinier called upon for help in researching this case,
gave testimony to the Congress that the amendment was not
novel. Rather, he said it was simply a codification of the
long-standing Fifth Circuit standard. Further, one of the
plaintiffs' lawyers, Mr. Halpin, tried the case which set the
Fifth Circuit standard, Zimmer v. McKeithen, 485 F.2d 1297 (5th
Cir. 1973):
The seminal Supreme Court case dealing with vote
dilution as -a vidlation of the Fourteenth and Fifteenth
Amendments was White v. Regester, 412 U.S. 755, 93 S.Ct. 2332,
(1973). In White the Court, upholding the district court's
order to dismantle multimember districts for election to the
State legislature, recognized that at large elections in
multimember districts might be used to minimize the electoral
strength of racial minorities. To support such a claim, the
Court said that the plaintiff must show:
"that the political processes
leading to nomination and election
were not equally open to
participation by the group in
question -- that its members had
less opportunity than did other
residents in the district to
participate in the political
processes and to elect legislators
of their choice.™
412 U.S. at 766, 93. .5.Ct. at 2339,
With these standards in mind, the White Court reviewed the
evidence considered by the district court.
The record included evidence of
1) a history of official discrimination which
touched the right of blacks to register and vote;
2) a majority vote requirement;
3) a place rule which reduced multimember
elections to a head-to-head contest for each
position;
4) no black elected officials since
Reconstruction;
5) a slating system;
ey a white-controlled Democratic party which did
not solicit black support; and
7) repeated use of racial campaign tactics.
On this record the Supreme Court determined that the
evidence was sufficient to support the district court's finding
of vote dilution. The White Court did not require direct proof
of discriminatory intent, but rather found that the totality of
circumstances may give rise to the conclusion that minority
citizens were, in fact, denied equal access to the political
process. The Court further concluded that this inequality of
access to the electoral process constituted a violation of the
Fourteenth Amendment.
Shortly after this Supreme Court opinion, the Fifth
Circuit heard Zimmer v. McKeithen, 485 F.24 1297 (5th Cir.
1973), a vote dilution case in which black residents of East
Carroll Parish, Louisiana, represented by Stanley Halpin, a fee
applicant herein, challenged the at-large plan for parish
elections. The Fifth Circuit specifically relied on White v.
Regester in formulating their standard by which to evaluate
vote dilution claims. The Court ruled that in keeping with
White, the district court should examine the following factors:
1. whether there is a lack of access to the process
of slating candidates;
whether legislators are unresponsive to the
particularized interests of the minority;
whether the state policy underlying the preference
for at-large elections is tenuous;
whether the existence of past discrimination in
general precludes effective participation in the
- political process.
The Court also held that proof of dilution is enhanced
by the showing of the existence of large districts, majority
vote requirements, anti-single shot provisions and the lack of
geographical subdistricts within an at-large scheme. "The fact
of dilution," the Court held, "is established upon proof of the
existence of an aggregate of these factors." Zimmer, supra, at
1305.
From 1973 until 1980, White v. Regester and Mr.
Halpin's Zimmer v. McKeithen continued to govern claims of vote
dilution in the Fifth Circuit, and, in fact, the standard of
proof became known as the White/Zimmer factors, or more
commonly, the Zimmer factors. See Bradas v. Rapides Parish
Police Jury, 508 F.2d 1109 (5th Cir. 1975); Rirksevy v. Board of
Supervisors, 554 F.2d 139 (5th Cir. 1977) cert. denied, 434
U.S. 968, 98 8.Ct. 512 (1977); . Nevett v. Sides, 571 F.28 209
{5th Cir. 1978); Panior v. Iberville Parish School Board, 536
F.2d 101 (5th Cir. 1976); Perry v., City of Opelousss, 515 F.2d
639 (5th Cir. 1975); Turner v. McReithen, 490 F.2d 191 (5th
Cir. 1973); Moore v. Leflore County Board of Elections, 502
F.2d 621 (5th Cir. 1974): Robinson v. Commissioners Court of
Anderson County, 505 F.2d 674 (5th Cir. 1974); Nevett v. Sides,
533 F.2d 1361 (5th Cir. 1976); and McGill v. Gadsden County
Commission, 535 F.2d 277 (5th Cir. 1976). For additional cases
see Hearings Before the Subcommittee on the Constitution of the
Senate Committee on the Judiciary, 97th Cong., 2d Sess. (1982)
at 1216 ze. ilneréinatiel Hearings).
During the second half of the 1970's, the Supreme
Court decided two landmark Fourteenth Amendment cases which
would eventually have a big impact on vote dilution claims. In
Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040 (1976), and
Village of Arlington Heights v. Metropolitan Housing
Development Corp., 429 U.S. 252, 97 S.Ct. 5556 (1977), the Court
rejected the notion that a law is invalid under the Equal
Protection Clause simply because it may have a deleterious
effect on the members of one race. Washington, supra, 426 U.S.
at 242, 96 S.Ct. at 2049; Arlinoton Heights, supra, 429 U.S. at
265, 97 S.Ct. at 563. In so ruling, the Court unequivocally
established discriminatory intent as a necessary element of a
constitutional violation.
The case which forced the issue as to the
applicability of Washington and Arlington Heights to claims of
unconstitutional vote dilution was City of Mobile v. Bolden,
446 U.S. 535, 100 S.Ct. 1490 (1980). In that case, black
plaintiffs alleged that the at-large method of electing members
to the Mobile City Commission violated their rights under the
Fifteenth and Fourteenth Amendments and §2 of the Voting Rights
Act. The district court found for the plaintiffs, and, on
appeal to the Fifth Circuit, the Court affirmed, noting that
the plaintiffs had prevailed on each and every Zimmer factor.
See Bolden v. City of Mobile, Ala., 571 F.24 238, 244 (5th Cir.
1978).
When the case came on for review before the Supreme
Court, the plurality held that in order to establish a
violation of the Fifteenth Amendment, a plaintiff must prove
purposeful denial or abridgement by government of the right to
vote. And because §2 of the Voting Rights Act was coterminous
with the Fifteenth Amendment, it too demanded proof of
discriminatory intent. 19
With these pronouncements, the Supreme Court in Bolden
essentially overruled Zimmer and made discriminatory purpose a
requisite element of all vote dilution claims, whether
constitutional or statutory.
On June 29, 1982, Congress enacted extensions of and
amendments to various provisions of the Voting Rights Act, 42
U.S.C. §1971 et seq. The express purpose of Congress in
amending §2 of the Act was to legislatively "overrule"
Bolden. !?!
The legislative history of §2 is crystal clear on this
point: Congress intended to codify the standards established
by the Supreme Court in White v. Regester and by the Fifth
Circuit in Mr. Halpin's Zimmer v. McKeithen, which were used
prior to the Supreme Court's decision in City of Mobile v.
Bolden, 446 U.S. 55, 100 S.Ct. 1490:(1980). ee Report of the
Committee on the Judiciary of the United States Senate, No.
97-417 (97th Congress, 2nd Session) at 15-16, 23, 32-34
(hereinafter S.Rep.); Report of the Committee on the Judiciary,
United States House of Representatives No. 97-227 (97th
Congress, 1st Session) 1981 at 30 (hereinafter H.Rep.) and
Tavlior v. Haywood County, Tenn., 544 F.Supp. 1122, 1134 (W.D.
Tenn. 1982). Under §2 as amended, just as in White v. Regester
and Mr. Halpin's Zimmer v. McKeithen, the plaintiffs' burden is
to demonstrate that based on the totality of circumstances,
blacks have less opportunity than other citizens to
meaningfully exercise the right to vote.
The kinship between the White/Zimmer standard and the
amended §2 is further evidenced by the so-called "Senate
factors." The Report of the Senate Committee on the Judiciary
lists nine factors which a court should typically consider in
assessing the totality of circumstances under the amended
statute. 1? These factors are a compilation of the analysis
used in White and Zimmer and the Senate Report specifically
acknowledges these cages as their source. S.Rep. at 28-29.
Thus, the 1982 amendment of §2 brings statutory vote
dilution law full circle. The "intent" test imposed by Bolden
had seriously undermined the validity of the "totality of
circumstances" approach prescribed by White and Zimmer. The
1982 amendments abruptly, and decisively, returned the judicial
standard for statutory vote dilution cases to the criteria
developed in White, Zimmer, and the voluminous caselaw which
3
they had engendered.
The disingenuousness of the fee seeking lawyers, in
claiming that §2 is novel and in claiming that they didn't know
which proof to put on, "intent" or "results", is exposed by
their own tes tindny before Congress during the hearings on the
Voting Rights Act amendments. One of the attorneys seeking
fees herein, Armand Derfner, when testifying before the Senate
Subcommittee on the Constitution, reassured Congress that the
proposed change in §2 was not a new and untried standard.
Rather, it was the familiar test used in White v. Regester and
in Mr. Halpin's Zimmer v. McKeithen. The following exchange
took place between the Chief Counsel to the Subcommittee,
Stephen Markman, and Mr. Derfner:
Mr. Markman: "Despite the fact
that you recognize that we are
talking about a new test for
section 2, you are comfortable with
your assertion that it is not
‘designed to introduce a new
uncertainty' into this area?"
Mr. Derfner: "No, I don't think
that. it is because it is a new test
only in the sense that is is not
the test that we have today. The
test that we have today is the
Mobile test, which requires proof
of purpose. However, it is not a
new test in the sense that it is a
return to the test that was
familiar to the courts in White v.
Regester, Whitcomb v. Chavis,
McCain v. Lybrand, and those cases."
Hearings at 801.
The attorney whose expert advice the plaintiffs’
lawyers sought in regard to their case, Mr. Derfner, testified
under oath that he believed the new §2 to be the familiar
standard used in White and Zimmer. The claim of the
plaintiffs' attorneys at this point that §2 is novel mandates
Rule 11 sanctions.
1t is also significant that during the Congressional
hearings the entire Civil Rights legal community echoed the
opinions voiced by Mr. Derfner. Benjamin Hooks of the NAACP
endorsed the "track record" of the White standard. Hearings at
286. Julius Chambers, president of the Legal Defense Fund
which employs plaintiffs' attorney, Lani Guinier, testified
that he understood the new §2 would codify the pre-Mobile,
(White/Zimmer) standard, as did Steve Suitts, whom plaintiffs’
lawyers listed on the pre-trial order as a witness for the fees
hearing before Magistrate Chasez, but did not call. See
Hearings at 1252 (testimony of Julius Chambers); Hearings at
599 (testimony of Steve Suitts; and Hearings at 88 (testimony
of Rep. Sensenbrenner):
"Let there be no question then. We
are writing into law our
understanding of the test in White
against Regester. And our
understanding is that this looks
only to the results of a challenged
law, in the totality of the
circumstances—--with no requirement
of proving purpose. But should the
Highest Court in the land--or a
majority of the Court--conclude
there is a purpose element in
White, then the committee
nonetheless has drafted a bill that
does not incorporate this
requirement, and that is the
ultimate legislative intent of the
bill we are adopting here today.
The test to be applied against the
. totality of circumstances as set
- out in White against Regester and
the case law under it. [sic] That
test does not depend upon any
finding or inference of intent, nor
does it require--as some have
erroneously suggested--a finding
that there are barriers to the
process of registration and voting
themselves. Thus, the problems of
discriminatory slating and language
difficulties in the White against
Regester case are important factors
to be considered along with other
factors such as racial bloc voting
and the other types of factors, but
they are not essential
prerequisites, if other relevant
factors can be shown which in the
aggregate add up to the
discriminatory result."
128 Cong.Rec. at H3841
Jones v. City of Lubbock, 727 F.24
364, 380, n.11 (5th Cir.+19384).
(Emphasis added.)
See also at 199 (testimony of Sen. Mathias); at 796
(testimony of Sen. DiConcino); Appendix at 80 (comments by Sen.
Dole): at 305 (testimony of W. Martinez); at 325 (testimony of
L. McDonald); at 463 (testimony of H. Marsh); at 564 (testimony
of D. Walbert); at 708 (testimony of H. Kirksey); at 956
(testimony of N. Dorson); at 986 (testimony of J. Rauh); at
1167, 1171 (testimony of A. Fleming); at 1183-4, 1206
(testimony of F. Parker who was called as an expert by
plaintiffs for the fee hearing before Magistrate Chasez); at
1252-3 (testimony of J. Chambers); at 1599 (testimony of W.
Robinson); at 1610 (testimony of D. Brink); at 1640 (prepared
statement of A. Guitterez).
In light of this legislative record, plaintiffs'claims
regarding the "novelty" of §2 for purposes of attorneys' fees
litigation are outrageous. The nomenclature of a test as
"amended §2" instead of "White/Zimmer" should not have
presented any difficulty for five lawyers who claim to
experts. See also testimony of plaintiffs' expert, Mr.
Strickler, who
1) even though he didn't know what cases were pending
or heard in the U.S. Supreme Court during Major which
might have affected it, (Transcript, Mr. Strickler, p.
29); and,
2) didn't know that Mr. Parker and Mr. Derfner
testified before Congress during the hearings on the
amendments to the Voting Rights Act or what they
testified about (Transcript, Mr. Strickler, -p. 30);
did know that under the amended Voting Rights Act, plaintiffs
did not have to prove intent, only result. (Transcript, Mr.
Parker, p. 12.) If Mr. Strickler knew this, why did the
plaintiffs' lawyers find it so hard to understand that they
have claimed Major was novel and difficult?
Defendants note also that none of the courts that have
tried cases under the amended §2 seem to have had a difficulty
in knowing absolutely that amended §2 simply codified the
pre-Mobile, White/Zimmer standard of "result". See Buchanan v.
City of Jackson, 708 F.2d 1066, 1071-72 (5th Cir. 1983) ("The
Senate Report makes it clear that the amendment to §2 of the
Voting Rights Act is intended 'to restore the legal standard
that governed voting discrimination cases prior to the Supreme
Court's decision in Bolden.'"); Velasquez v. City of Abilene,
Texas, 725 F.2d 1017, 1023 (5th Cir. 1984) ("The factors laid
out in the Senate Report [on amended §2] for showing a
violation of the results test are essentially the same factors
as in Zimmer."); United States v. Marengo County Commission,
731 F.24 1546, 1564, n.29 (5th Cir. 1984) ("As stated, the
language of [amended] section 2 is taken from White v. Regester
That language explicitly adopts a "results" test, and
nowhere calls for any consideration of intent."); McMillan v.
Escambia County, Fla.,, 748 F.24 1037, 1042 (5th Cir. 1984)
("The amendment intended 'to restore the legal standard that
governed voter discrimination decisions before the Supreme
Court decided Mobile v. Bolden.'"); Jones v. City of Lubbock,
727 F.2d 364,:.379 (5th Cir. 1984) ("Congress has made clear its
understanding that a court under section 2 should apply White
and Zimmer as purely 'results' cases."); McCarty v. Henson, 749
F.2d 1134, 1137 (5th Cir. 1984) ("The legislative history to
the Act [amended §2] lists a set of objective criteria to guide
the courts in analyzing the discriminatory impact of an
election system. This list incorporates the Zimmer criteria
«").
V. (B.) Neither the Legal Issues Nor The Facts Were
Exceptionally Difficult.
Plaintiffs' attorneys further contend somewhat duplici-
tously that the issues presented in this case were not only
novel, but difficult. See Affidavit of Stanley Halpin, at
2.14 Specifically, Mr. Halpin claims that this case, because
it "involved a challenge to line drawing gerrymandering" was
more difficult than other vote dilution cases and would be
considered so by specialists in voting and redistricting law.
Affidavit of Mr. Halpin at 2. Defendants fail to understand
why line drawing gerrymandering is more difficult. The
location of the line may itself identify the dilution, whereas
dilution in an at-large system is much more subtle and
difficult to detect. 1It is particularly hard to understand: why
the plaintiffs' lawyers find line drawing gerrymandering so
hard when one looks at this case within the context of the
Arlington Heights v. Metropolitan Housing Development Corp.,
429 U.S. 252, 266, 97 5.Ct. 555, 564 (1977) and Gomlllion v,
Lightfoot, 364 u.s. 339, 341, B8l.8.Ct., 129 127 (1960) "stark
pattern". (See p. 20-24 above for details.)
Defendants' expert, Mr. Jerris Leonard, testified that
compared to other vote dilution cases he had handled or was
familiar with, Major v. Treen was not particularly difficult or
complex. (Transcript, Mr. Leonard, p. 14.) In any action
under §2, the plaintiffs' case is virtually outlined by the
Senate Report/White/Zimmer factors which itemize the evidence
the plaintiffs need to offer. The Court's opinion in Major, as
in all §2 cases, tracks the Senate factors, underscoring the
relative organizational simplicity of §2 actions.
Factually, this case was not exceedingly complex. The
Plaintiffs Aountéd a straightforward challenge to the
configuration of two adjacent Congressional districts. This is
in sharp contract to some vote dilution cases which have
challenged numerous single member and multimember State
legislative districts, see e.g., Gingles v. Edmisten, 590
F.Supp. 345 (E.D.N.C. 1984); cases which have dealt with both
§2 and §5 considerations, see e.g., Brooks v. Winter, 541
F.Supp. 1135 (N.D. Miss. 1983), vacated and remanded, 461 U.S.
921, 103 S.Ct. 2077 (1983), on remand, No. GC 82-80-WK-0 (April
16, 1984); cases which have involved issues of state
constitutional law, see e.qg., Gingles v. Edmisten, supra; and
cases which have attacked the constitutionality of §2, see
e.q., U.S. v. Marengo County Commission, 731 F.2d 1546 (llth
Cir. 1984).
Two piecedants; of which the "expert" plaintiffs’
lawyers should have been aware, so strongly suggested that Act
20 could not withstand judicial scrutiny that they severely
undercut the argument, that this case was either novel or
difficult. Act 20 was found legally deficient because the line
which split Orleans Parish between districts 1 and 2 blatantly
divided a cognizable black population concentration and
effectively diluted its voting strength.
Prior to the trial in this case, both the Mississippi
and Georgia 1980 congressional redistricting plans had been
found to be discriminatory under §5 for precisely the same
reason. While §5 prohibits a discriminatory purpose or effect
and §2 ProRtbits any discriminatory results, the standards are
sufficiently similar to support the precedential impact of the
Georgia and Mississippi cases. >
In the instance of the Georgia plan, the Attorney
General through his Chief of Civil Rights, William Bradford
Reynolds, found that it divided the "apparently cohesive black
community" in Atlanta between districts 4 and 5. See Section 5
Objection Letter from William Bradford Reynolds to the Georgia
Attorney General, Michael Bowers, February 11, 1982. (Attached
as Exhibit GG.) Moreover, the State had failed to demonstrate
that this division of the black population concentration was
not racially motivated. l®
Similarly, the Attorney General, again through his
Chief of Civil Rights, William Bradford Reynolds, found that
the Congressional aistrice lines drawn east-west across the
State of Mississippi split the black population concentrated
along the north-south axis of the Mississippi River Delta into
three separate districts. The Attorney General, through Mr.
Reynolds, determined that the district configuration, insofar
as it divided what would otherwise constitute a black majority
district, diluted black voting strength. See Section 5
Objection Letter from William Bradford Reynolds to Jerris
Leonard, counsel to Mississippi, March 30, 1982. (Attached as
HH) .
One might think it strange then that Mr. Reynolds pre-
cleared the Act 20 line. But the Congress didn't think Mr.
Reynolds’ agblons ‘Terange at all. They merely found them to be
"politics" and the ignoring of the obvious racial slurs found
in the Act 20 scenario. On the basis of Mr. Reynolds obvious
defiance of the Voting Rights Act in regard to Louisiana's Act
20 and a similar situation in Mississippi, the Senate Judiciary
Committee flatly refused to confirm his appointment by
President Reagan to the number three slot in Justice, Associate
Attorney General. See newspaper articles attached as Ex. FF.
Furthermore, Mr. Quigley's deposition testimony that
Busbee was easier than Major because Busbee had overt racial
slurs and Major didn't (Deposition, Mr. Quigley, p.51) is
incorrect. See Major v. Treen, 574 F.Supp. 325, at 331 (E.D.
La. 1983); testimony, Governor Treen, Merits Transcript,
3/10/83, p. 36 et seq.; Deposition, Governor Treen, December
20, 1982, p. 120 et seq.; Deposition, Judge Feldman, p. 88-89;
and ftn. 16A herein. Insofar as the factual situation in this
case had been presented in prior §5 actions and adjudicated
against the defendant States, Major cannot be considered novel
or difficult for the purpose of an award of attorneys' fees.
Furthermore, the primary defense used by the Governor,
that this was not an attempt to dilute the black vote, but
rather, simply a political matter of trying to insure incumbent
Congressman Bob Livingston's seat, had already been discredited
by at least one amended §2 court and one Article I, §2 court,
cleared the Act 20 line. But the Congress didn't think Mr.
Reynolds’ agbiond ‘strange at all. They merely found them to be
"politics" and the ignoring of the obvious racial slurs found
in the Act 20 scenario. On the basis of Mr. Reynolds obvious
defiance of the Voting Rights Act in regard to Louisiana's Act
20 and a similar situation in Mississippi, the Senate Judiciary
Committee flatly refused to confirm his appointment by
President Reagan to the number three slot in Justice, Associate
Attorney General. See newspaper articles attached as Ex. FF.
Furthermore, Mr. Quigley's deposition testimony that
Busbee was easier than Major because Busbee had overt racial
slurs and Major didn't (Deposition, Mr. Quigley, p.51) is
incorrect. See Major v. Treen, 574 F.Supp. 325, at 331 (E.D.
La. 1983); testimony, Governor Treen, Merits Transcript,
3/10/83, p. 36 et seq.; Deposition, Governor Treen, December
20, 1982, p. 120 et seq.; Deposition, Judge Feldman, p. 88-89;
and ftn. 16A herein. Insofar as the factual situation in this
case had been presented in prior §5 actions and adjudicated
against the defendant States, Major cannot be considered novel
or difficult for the purpose of an award of attorneys' fees.
Furthermore, the primary defense used by the Governor,
that this was not an attempt to dilute the black vote, but
rather, simply a political matter of trying to insure incumbent
Congressman Bob Livingston's seat, had already been discredited
by at least one amended §2 court and one Article I, §2 court,
fourteen months before the trial in Major, and in fact, six and
seven weeks respectively before the Major Complaints was filed:
"On the other side of the balance,
we must give weight to our findings
of purposeful dilution of black
voting strength in the Commission's
actions with respect to senate
districts 14, 17 and 18 of the
Commission Plan. We found that the
immediate purpose of the Commission
in drawing these districts was
primarily to preserve the
incumbencies of two white state
Senators. We also found that 'this
process was so intimately
intertwined with, and dependent on,
racial discrimination and dilution
of minority voting strength that
purposeful dilution has been
clearly demonstrated in the
construction of Commission senate
districts 14, 17 and 18.' -Rybicki
X, at 1110."
Rybicki v. State Board of Elections
of Illinois, 574 F.Supp. 1147, 1151
{N.D. Ill. 1983) (Rybicki 11)
(decided two months before the
Major trial) (referring to their
decision in January, 1982, in
Rybicki v. State Board of Elections
of Illinois, 574 F.Supp. 1082 (N.D.
T11. 19382) (Rybicki 1))
"Many of the cases we have read in
our attempt to divine the law on
this subject involve partisan
conflict, an attempt by legislators
of one party to disadvantage the
other. No such claim has been made
here. One of the ironies of this
case is that a good deal of the
disagreement among House members in
passing a reapportionment bill
derived from their wish to keep
their various constituencies within
the district of a Republican
Congressman. The Arkansas House of
Representatives is overwhelmingly
- Democratic.”
Doulin v. White, 528 F.Supp. 1323,
1326, n.4 (E.D. Ark. 1982)
V. (C.): The Opinion in Major v. Treen Proves That This Case
Could And Should Have Been Handled by a Plaintiffs' Motion for
Summary Judgment.
An examination of each issue shows that plaintiffs
knew of, or should have known of, well settled law and/or
uncontested material facts, which could have resolved this
matter on summary judgment. Mr. Leonard, defendants' expert,
testified at the hearing that only three facts were needed to
set up a motion for summary judgment: the smoking gun (the
shape of the district, a duck in this instance), the
fragmentation of black voting precincts, and the intent to
disperse black voting power as shown by affidavits and
legislative history. (Transcript, Mr. Leonard, p. 18.)
However, out of an abundance of caution, defendants
outline in Exhibit BB, attached hereto, the principal issues
law and factual determinations and how they could have been
resolved by affidavits of facts and/or public records, which
could not be contested, and well-settled law. An overall
examination of the opinion and the record reveals that there
were no seriously contested material facts. Plaintiffs and
defendants pretty much agreed on what happened. They simply
disagreed on the legal effect of those facts.
The three judge court had no such problem with the
legal effect of those facts. It took the factual scenario and
applied the law to reach its decision. This is the essence of
summary judgment:
"Application of amended §2's
'results' test to the aggregate of
the facts adduced at trial,
including Louisiana's history of
discrimination and the impact of
that history on the present ability
of blacks in Orleans Parish to join
in the political process, the
vestiges of discrimination which
take the form of a marked disparity
in the socio-economic conditions
under which blacks and whites
currently subsist, the parish's
racially polarized voting, as
exacerbated by the State's majority
vote requirement, the tenuousness
of the state policy underlying Act
20 and the history of its
enactment, and the manipulation of
district boundary lines so as to
fracture a cohesive minority voting
bloc, preponderates in favor of the
plaintiffs. Circumstantial
evidence that race played a role in
the confection of Act 20 also
figures in the court's calculus,
although we have not engaged in the
intent analysis permitted by §2.
Based on the totality of relevant
circumstances, therefore, the court
concludes that the contours of the
First and Second Congressional
Districts, as established by Act
20, operate to deny or abridge the
rights of minority voters, who are
accorded less opportunity than
other members of the electorate to
participate in the political
process and to elect
representatives of their choice.
Defendants showing that political
motivations were the primary
impetus behind the configuration of
the First and Second Districts does
not provide persuasive rebuttal
evidence of nondilution."
Opinion, p. 354-55
V. (D.) The Number of Hours Claimed is Excessive Compared to
Other Voting.Rights Cases of Equal Difficulty and Novelty.
Compared to other voting rights cases of equal or
superior difficulty the total number of hours suggested by the
magistrate in this case is excessive. In Brooks v. Allain, No.
GC 82-80 & 81-WK-O (N.D. Miss., April 1, 1984), an attack on
Mississippi Congressional districts in which the central issue
was also the legitimacy under §2 of dividing a geographic black
population concentration, the lodestar was computed from a base
of 1,265.35 hours. Magistrate Chasez's recommendation in this
case is for approximately the same number of hours billed in
Brooks. Yet in Brooks, three Congressional districts were
involved, and the request for fees included work for a
three-day hearing, an appeal to the United States Supreme Court
which resulted in a remand, another three-day hearing and
finally, cross-appeals to the Supreme Court in which the Court
summarily affirmed the judgment below. See also Farnum v.
Barnes, infra; Graves v. Barnes, infra; Rybicki v. State Board
of Flections of Illinois, infra; Jordan v. Allain, infra;
Burton v. Hobbie, infra; In re Illinois Congressional
Districts, infra; and others all discussed at p. 60-65 below.
VI. Experience, Reputation and Ability of the Attorneys.
Defendants recognize that Mr. Halpin is experienced,
enjoys a good professional reputation and is a specialist in
voting rights litigation. Attorneys with voting rights
experience similar to his have most frequently been awarded
$100 an hour and occasionally a little more for first chair
status. Flowers v. wiley, 675 F.24 704, 705-06 (5th Cir. 1982).
Plaintiffs put on Frank Parker as an expert witness in
the areas of state reapportionment cases, legislative or
congressional, before three-judge courts. Frank Parker has
been awarded $135 per hour in State of Mississippi v. William
French Smith, CA No. 82-0956 (D.D.C. July 8, 1983). However,
that award was based on District of Columbia rates, which Mr.
Derfner has said are higher than New Orleans rates. (Affidavit
of Armand Derfner in support of Plaintiffs' Motion for
Attorneys' Fees, Affidavit p. 7, item 11). Moreover, Mr.
Parker has routinely for some years received only $100 an hour
and was recently awarded that same $100 an hour for his work in
Kirksey v. Danks, 608 F.Supp. 1448 (S.D. Miss. 1985). ($100 an
hour for appellate work in Morrow v. Finch, 642 F.2d 823 {5th
Cir. 1981) ). Yet plaintiffs seek $160 an hour for Mr. Halpin
well out of the range of plaintiffs' own expert, Mr. Parker's
fees for similar work. Similarly, the magistrate has suggested
an hourly rate for Mr. Halpin of $135 an hour despite her
acknowledgement that "... much of Mr. Halpin's work preparatory
to trial was non-legal in effort." Findings, p.18.
Plaintiffs have also asked for $160 an hour for Miss
Guinier. Magistrate Chasez awarded her an hourly rate of
$135. This rate is excessive considering Miss Guinier's lack
of litigation experience. Defendants know nothing of Miss
Guinier's general reputation, as she is a New York attorney.
However, defendants do know that they have not seen nearly
enough prod Ho Gonvide them of Miss Guinier's experience in
voting rights litigation or that she is a specialist in voting
rights litigation. Miss Guinier has listed some research
credentials, but it is clear that such credentials, even in the
case of Harvard professor and constitutional law scholar,
Laurence Tribe, do not support the high rate of a litigator.
Grendel's Den, Inc. v. Larkin, 749 F.2d 945, 955-55 (1st Cir.
1984). See also Blum v. Stenson, .S. : , 104 S.Ct.
1541, 1549, n. 15 (1984). ("Each of respondents' counsel had
admirable records as scholars, and two had valuable clerkship
experience. They also were specializing in social security
type claims against the government. Yet none of them, at the
outset of this suit in December 1978, had more than 1 1/2 years
experience as practicing lawyers ... As the term 'experience'’
normally is used, this is quite limited.")
Defendants respectfully suggest that Miss Guinier's
scholarly credentials do not begin to compare with Mr. Tribe's,
and that, therefore, there can be no question that her
scholarly work does not make up for her lack of litigation
experience.
Miss Guinier had litigated no voting rights cases
prior to Major, and despite plaintiffs' contention to the
contrary (Plaintiffs' Proposed Findings and Conclusions, P.
38), had no cases to her credit in which she was lead counsel.
She definitely is not entitled to an expert's rates for
actually litigating voting rights cases or for that matter
litigating any case, as the cases which she lists as her Ten
Most Significant Cases provel’:
Miss Guinier's first listing on her Ten Most
Significant Cases list is Pullman Standard v. Swint, 456 U.S.
273, 102 S.Ct. 1781 (1982) (employment discrimination). But
all she did on that was "work on" a brief to the U.S. Supreme
Court. She is not listed as counsel in the reported opinion.
She didn't "litigate" this case.
Her second listing is Rogers v. Lodge, 458 U.S. 613,
102 S.Ct. 3272 (1982) (voting rights-challenge to one county's
at-large system for electing its governing Board of
Commission). But all she did on that was "co-author" (with an
unknown number of others) an amicus brief to the U.S. Supreme
Court. She didn't "litigate" this case either.
Miss Guinier's third listing is Valteau v. Edwards,
No. 84-1293 (E.D. La. March 21, 1924), stay den., No. A-770
(March 28, 1984) (voting rights-primaries v. caucuses). This
case is irrelevant to a determination of her experience,
reputation, and ability in Major, as it came after Major, but
defendants do note that Miss Guinier says "[she] prepared
Response to Stay Application in the U.S. Supreme Court...".
However, the record in that case shows that she did only half
of the work, 23.3 hours. See copy of affidavits which were
exhibits to their Motion for Attorneys' Fees and Costs in
Valteau dated December 13, 1984. She didn't "litigate" this
case either.
Miss Guinier's fourth and fifth listings are NAACP v.
Hampton County, U.S. . 105 S.Ct. 1128 (1985)(voting
rights-§5 preclearance) and Hunter v. Underwood, Us Ss
105 S.Ct. 1916 (civil rights of prisoners) in which she
"co-authored [again with an unknown number of co-authors] brief
for appellant in Supreme Court ..." and "drafted brief in
Supreme Court for LDF as amicus respectively. Further,
both are 1985 cases, they are irrelevant to a determination of
her expertise, etc. as discussed immediately above at Valteau.
She didn't "litigate" these cases either.
Miss Guinier's sixth listing is Gingles v. Edmisten,
590 F.Supp. 345 (E.D.N.C. 1984) (three judge court) (voting
rights-legislative reapportionment), affirmed in part, revised
in. part, = "U.S, , 106 S.Ct. 2752 (1986), in which she
says she was trial counsel and counsel of record in the U.S.
Supreme Court. She neglects to mention that she was assistant
to Miss Winner's lead and was chastised by the three-judge
Court for her inability to phrase questions. See Transcript,
Mr. Leonard, p. 46 and Transcript of Gingles trial, examination
of Joe P. Moody, p. 772, 780, copy attached for convenience of
the Court as Exhibit CC. Defendants concede that she
"litigated" this case, but it is irrelevant because Gingles
came after the Major litigation as discussed above at Valteau,
Hampton County, and Hunter.
Miss Guinier's seventh listing is Chavis v. State of
North Carolina, 637 F.2d 213 (4th Cir. 1980) (civil
right-habeas corpus) in which she says she "co-authored [again
with an unknown number of co-authors] amicus brief for the U.S.
.". Miss Guinier is not listed as counsel in the reported
opinion. She didn't "litigate" this case either.
Miss Guinier's eighth listing is Booker v. U.S., 655
F. 2d 562 (4th Cir. 1981)¢(civil rights-criminal sanctions) in
which she says she was trial counsel. The citation she gives
for Booker is an appellate citation, not a district court
citation. Miss Guinier is not listed as counsel in the
published appellate opinion she cites. As she has not provided
a copy of the evidently unpublished district court opinion,
defendants have no way of knowing if her claim is true.
However, given her exaggerated view of her expertise, exposed
in the other nine cases she lists, defendants doubt her claim
that she "litigated" this case.
Miss Guinier's ninth listing is Flateau v. Anderson,
537 F.Supp. 257 (S.D.N.Y. 1983) (three judge court) {voting
rights-legislative reapportionment), app. dismissed, 458 U.S.
1123, 103 8.Ct. 5 (1982) in which she alleges that she was a
"litigating amicus", whatever that is. Miss Guinier is not
listed as counsel in either the three-judge opinion or the
Supreme Court citation. She didn't "litigate" this case either.
Miss Guinier's tenth and last listing is composed of
two habeas proceedings, Bozeman v. Lambert, Civ. A. 83-H-579N
{M.D.Ala. April 12, 1984) and Wilder v. Lambert, C.A.
83-H-580-N -(M.D.Ala. April 13, 1984) (unpublished cases with
which she has not seen fit to copy the court and opposing
counsel), which were evidently consolidated cases and which
were decided more than a year after the Major trial. See
Valteau, Hampton County, Hunter, and Gingles above.
Miss Guinier, as to experience in any kind of actual
litigation, and Messrs. Scheckman, Quigley, and, to a lesser
extent, Mr. Kellogg, as to voting rights litigation, have no
experience. The hourly rate of $135 set for Miss Guinier by
the Magistrate should be reduced for lack of actual litigation
experience. See Tatro v. Texas, 703 F.2d 823, 987 (5th Cir.
1983), reversed on other grounds by Irving Independent School
District v. Tatro, U.S. +2104 S.Ct. 3371 (1984).
In Tatro, counsel received a base rate of $60 an
hour. His final rate of $72 an hour resulted from a 20%
contingency multiplier. Note that not only is this a Dallas
award where higher rates prevail, but also that counsel
requested $90 an hour. The Court lowered that hourly rate to
$60 an hour, commenting that counsel only had 2 1/2 years at
the bar and limited experience in federal litigation. Tatro,
supra at 987. Additionally, defendants note that plaintiffs’
contention, that most fees are not set by a narrow area of
expertise, is contradicted by plaintiffs' own contention that
voting rights rates should be those of complex litigation such
as antitrust.
Plaintiffs have sought throughout this fees litigation
to bring thelr hourly rates into the $125-$200 an hour range.
In order to do that they have sought to compare themselves
primarily to Justice Mack E. Barham and Judge Martin L.C.
Feldman. Such comparison is inapposite. Blum v. Stenson,
U.S. , 104 S.Ct. 1541 (1984) provides that the attorney
seeking fees must prove that
the requested rates are in line with
those prevailing in the community for
similar services by lawyers of reasonably
comparable skill, experience, and
reputation. A rate determined in this way
is referred to ... as the prevailing
market rates.
Blum, supra, U.S., at on. 11, 104
S.Ct., at 1547, -n. 11. (Emphasis added.)
Plaintiffs however seek to have this Court believe
that as long as they can produce someone, anyone, in the New
Orleans area who bills at $125-$200, that they have proved the
community rate. They have totally ignored the "comparable
skill, experience, and reputation" provision. Miss Guinier, a
lawyer who had been out of school only a few years when this
litigation ensued, and who had apparently never tried a case,
cannot begin to compare herself to men like Judge Feldman or
Justice Barham. Both are men with some thirty years at the
bar. Justice Barham, for example, has in those thirty years
been in private practice, been an appellate judge, been a
justice of the Supreme Court of Louisiana, and now in recent
years has established a multi-million dollar law firm in only a
few years. (Deposition, Justice Barham, p. 7.). Thus, just
because Susie Barham or Judge Feldman might get $125 to $200
an hour does not mean that Miss Guinier should. See
Transcript, Mr. Weil (plaintiffs' expert), p. 56: "What you
find in any given city is that there's a tremendous range of
earnings and rates within the local Bar. I'm sure you can
identify with New Orleans some practitioners who can't pay
their bills and I'm sure you can identify in New Orleans some
practitioners who own three homes and two Mercedes and where
it's a reflection of their income and hourly rate." By analogy
defendants arque that the prestigious and luxurious offices of
Barham and Churchill disprove the plaintiffs' lawyers’
subsidiary argument that their hourly rates should be
equivalent to "comparably experienced members of [Justice
Barham's] firm." (Plaintiffs' Proposed Findings and
Conclusions, p. 37).
Similarly, Mr. George Strickler has testified that he
gets $150 an hour (Deposition, Mr. Strickler, p. 9, 29). But
Mr. Strickler 1s the "grand old man" of civil rights lawyers in
New Orleans. The skill, experience, and reputation of Miss
Guinier are in no way comparable to his.
Despite plaintiffs' contentions to the contrary,
(Plaintiffs' Proposed Findings of Fact and Conclusions of Law,
p. 38, 63), Miss Guinier had no voting rights cases and no
cases in which she was lead counsel to her credit when Major
started.
Vit. SPECIAL CATEGORIES OF WORK MERIT DIFFERENT HOURLY RATES.
weglserale Chasez has assigned each lawyer one
across-the-board hourly rate. However, several courts have
held that trial work merits the premium base or lodestar rate
and that non-courtroom legal work deserves a lower rate.
Corpus v, Estelle, 605 ¥.24 175, 180, n. 10 (5th Cir. 1979),
cert. den., 445 U.S. 919, 100 S.Ct. 1284 (1980); Miller v.
gaxrson, 563 F.2d 741, 756 (5th Cir. 1977); Dunten v. Kibler,
518 F.Supp. 1146, 1152 (N.D. Ga. 1981); Preston v. Mandeville,
45] F.Supp. 617, 623 (S.D.Ala. 1978) (Out of court work rate of
70% of base rate), Cruz v. Beto, 453 F.Supp. 905, 910 (S.D.Tex.
1977), affirmed, 603 F.24 1178 (5th Cir. 1979): Ingram Vv.
Madison Square Garden, 482 F.Supp. 918, 929 (S.D.N.Y. 1979);
McManama v. Lukhard, 464 F.Supp. 38, 43 (W.D.Va. 1978),
affirmed 616 F.24 727 (4th Cir. (1980); Heigler v. Gatten, 463
F.Supp. 802, 804 (E.D.Pa. 1978). See also Derfner, Court
Awarded Attorney Fees, Paragraph 16.03, 16-56, citing
Chravlihwy v. Uniroval. .Inc., 670 F.28 760, 767, n.l16 (7th Cir.
1982), cert. den. 461 U.S. 956, 103 S.Ct. 2428 (1983).
The Fifth Circuit has also held that non-legal work
deserves a lesser rate: "It is appropriate to distinguish
between legal work, in the strict sense, and investigation,
clerical work, compilation of facts and statistics and other
work which can often be accomplished by non-lawyers
Such non-legal work may command a lesser rate. Its dollar
value is not eihsneed just because a lawyer does it." Johnson,
supra, 488 F.2d at 717.
There are also other decisions that say that non-legal
work, working travel time, non-working travel time, and
informal communications, such as telephone calls and meetings,
receive even lower rates. See Johnson, supra, 488 F.2d at 717;
Dunten v. Kibler, 518 F.Supp. 1146, 1152 (N.D.Ga. 1981)
(reduced rate for travel time); Northcross v. Board of
Education of Memphis City Schools, 611 F.2d 624, 637 (6th Cir.
1979), cert. den., Board of Education of the Memphis City
Schools v. Northcross, 447 U.S. 911, 100 S.Ct. 2999 (1980),
cert. den., City of Memphis v. Northcross, 447 U.S. 911, 100
S.Ct. 3000 (1980) (necessary services performed by attorneys
which could have been performed by less experienced personnel
may be compensated at a lower rate); Ramos v. Lamm, 539 F.Supp.
730, 745 (D. Colo. 1982) (no fees for non-working travel time;
Coalition to Preserve Houston v. Interim Board of Trustees, 494
F.Supp. 738, 747 (S8.D.Tex. 1980) (lower rate for informal
communications and non-legal work). In accord, Cruz v. Beto
453 F.Supp. 905, 910 (D.C.Tex. 1977), affirmed, 603 F.24 1178
{5th Cir. 1979); Foster v. Boise-Cascade, Inc., 420 F.Supp.
674, 692 (S.D.Tex. 1976), affirmed, 577 F.24.335 {5th Cir.
1978) ($65 per hour for trial work; $50 for pre-trial work on
the merits; $50 per hour for conferences; $35 per hour for
clerical; $35 per hour for informal communications). See also
Parker v. Anderson 667 F.2d 1204, 1214 (5th Cir. 1982), cert.
den. 459 U.S. 828, 103 S.Ct. 63 (1982) (35 an hour for clerk
was not an abuse of discretion.); Cruz v. Hauck, 762 F.2d 1230,
1235 (5th Cir. 1985) (A finding that some of the hours claimed
were for clerical work may justify compensating those hours at
a lower rate, and, in some circumstances, might justify a
reduction in the number of compensable hours). Further, one
district court has held that it is inappropriate to award costs
for law clerk services. Guajardo v. Estelle, 432 F.Supp. 1373,
1388 (S.D.Tex. 1977); modified on other grounds, 712 F.2d 165
{5th Cir. 1933).
VIII. MAGISTRATE CHASEZ HAS ACCOUNTED TWICE FOR DELAY IN
PAYMENT.
Magistrate Chasez has compensated the plaintiffs’
attorneys for delay in payment by the use of current hourly
rates. This is, of course, appropriate. Graves v. Barnes, 700
F.24 220, 224 (5th Cir. 1983), citing Copeland v. Marshall, 641
F.24 880, 893, n. 23 (D.C. Cir. 1980) (en banc): Copper Liguor
711, 684 F.2d 1087, 1096, n. 26. E. Larson, Federal Court
Awards of Attorney's Fees, 206-09 (1981), and cases cited
therein.
However, the Magistrate incorrectly applied this
principle and the effect is that the plaintiffs' attorneys will
be compensated twice for delay. A hypothetical illustrates the
problem. If a second year attorney could appropriately bill at
$40 an hour in 1980, he will be properly compensated in 1986
for delay by being paid $55 an hour (the 1986 rate for a second
year sttorngyy £51 his 1980 work. Thus, the $15 an hour
differential compensates for delay. However, the same second
year attorney who billed $40 an hour in 1980, bills at $80 an
hour in 1986 because by this time he is a seventh year
attorney. If he is paid $80 an hour in 1986 for the 1980 work,
he is being paid too much for the delay. The $15 raise from
$40 to $55 accounts for delay. The $25 raise from $55 to $80
accounts for his increased competence and experience, for the
quality of work he is able to do in 1985.
The State defendants should have to pay only for the
quality of work a lawyer actually did. Thus, if Mr. Scheckman,
as a lawyer just starting private practice, could charge $50 an
hour in 1982, in order to account for delay, he should be paid
what a lawyer starting in private practice in 1986 could
charge, perhaps $55 or $60, not the $80 an hour which the
Magistrate has suggested his services are worth after four
years in private practice.
IX. THE "RESULTS OBTAINED" IN THE PRESENT CASF RFQUIRFE
REDUCTION OF THE LODESTAR.
After the three judge court found Districts 1 and 2 of
Act 20 to be violative of 82 of the Voting Rights Act, the
Court allowed the legislature an opportunity to enact a new
plan in accord with §2 standards. The legislature then enacted
the Nunez Plan, and the three-judge court subsequently approved
this remedy. Congressional primaries and general elections
were held under the new plan in the fall of 1984 for the two
districts atideioa,
The results of those elections were to retain in
office the incumbents of both the First and Second
Congressional Districts. Even though the new Second District
has a black population of 56%, the white Democratic incumbent,
Mrs. Lindy Boggs, with 60% of the total vote, won handily in
the primary over four Democratic challengers, including a
respected black leader in the community, Judge Israel Augustine.
Under Johnson, the district court should examine the
amount requested in light of the "results obtained" in order to
determine a reasonable fee (Johnson, supra). Accord, Graves Vv.
Barnes, 700 F.2d 220, 223 (5th Cir. 1933). In Hensley v.
Eckerhart, 461 U.S. 424, 103 S.Ct. 1933 (1983), the Supreme
Court agreed that an evaluation of the results obtained may
lead a district court to adjust the lodestar upward or
downward. Hensley, supra, 461 U.S. at 427, 103 S.Ct. at 1940.
More specifically, the Hensley court noted that in
civil rights litigation, because the range of possible success
is vast, the fact that the plaintiff is a "prevailing party"
may say little about "whether the expenditure of counsel's time
was reasonable in relation to the success achieved." Hensley,
Supra, 461 U.S. at 427, 103 S.Ct. at 19540.
The Fifth Circuit has applied Hensley to require the
district court to consider the relationship between the extent
of success and the amount of the award. Richardson v. Byrd,
709 P.2d 1016 (5th Cir. 1983); Studiengesellschaft Kohle mbh v.
Eastman Kodak, 713 F.2d 128, 132 (5th Cir. 1983) (citing
Hensley, supra ("A reduced fee award is appropriate if the
relief, however significant, is limited in comparison to the
scope Of the litigation."); and Miller v. Staats, 706 F.2d 336,
343 (D.C. Cir. 1983).
Graves, Hensley, Richardson, Studiengessellschaft, and
Miller uphold defendants' arguments as to the results obtained,
and defeat plaintiffs' contention that defendants' arguments
"miss the point" (Plaintiffs' Proposed Findings and
Conclusions, p. 44). A victory that is hollow does not merit
fees. Nothing could be more hollow than a case which seeks to
get a black Congressman by means of reapportionment, and
succeeds at getting reapportionment, but not a black
Congressman.
The Third Circuit has also held that a court "may
reduce the objectively determined fee when the benefit produced
does not warrant awarding the full value of the time
expended." Merola v. Atlantic Richfield Co., 515 F.2d 165, 168
{3rd Cir. 1975). See also Hughes v. Repko, 578 F.2d 483 (3rd
Cir. 1978) (Fee may be reduced if "litigation has produced
minimum benefits.").
Although the plaintiffs technically prevailed in this
case, the actual results obtained were minimal and cannot
support the amount of fees recommended by the magistrate.
Contrary to the assertions of the class representatives that
the black community desired to elect a black Congressman and
that a Black tajority district was necessary to accomplish
this, black residents of District 2 voted overwhelmingly for
the white incumbent.
The most telling data are the returns from the
September 29, 1984 open primary election. In that primary, the
incumbent Mrs. Boggs had four challengers including the one
black, Judge Augustine. An analysis of the returns shows, not
only that Representative Boggs won by a wide margin in the
District, but that she got strong support specifically from the
black voters.
Ex. DD lists all precincts in District 2 in which the
black population constitutes 90% or more of the total precinct
population. By isolating these homogeneous precincts, one can
guage the level of support for Representative Boggs among black
voters. For example, in precincts 10-11, 10-12, and 10-13
which are all approximately 99% black, Mrs. Boggs received
72.6, 51.6, and 51.4 percent of the vote respectively. Without
having to know how indivudals voted, one can surmise that
nearly 72.6% of the blacks in precinct 10-11 voted for
Representative Boggs because nearly all, if not all, the voters
in that precinct are black.
Despite the fact that the plaintiffs prevailed on the
legal issue in this case, they obtained no actual benefit for
the class they represented. The net result obtained was
maintenance of the status quo. Under these circumstances, the
award of $136,000 which the Magistrate has recommended can
hardly be considered reasonable. 18
xX. NATURE AND LENGTH OF THE PROFESSIONAL RELATIONSHIP WITH
CLIENT.
The Magistrate's findings on the nature and length of
professional relationship with the client are incorrect and fly
in the face of the facts brought to her attention at p. 122-23
of defendants' Memorandum to the magistrate.
Plaintiffs have continued to contend that "[t]he
clients are not likely to generate any fee paying work."
(Plaintiffs' Proposed Findings and Conclusions, P. 49). That
contention is false on the face of the record pertaining to
this fees motion. The amount of business generated by such
publicity cannot be guaged with exactitude, but defendants
point to at least two other voting rights cases that share
plaintiffs and plaintiffs' attorneys common to Major: Quant v.
Edwards, U.S.D.C., E.D.La. No. 84-3841, which came to light
through production, is a voter registration case with at least
two plaintiffs common to Major, and Valteau v. Edwards,
uv.s.D.C., E.D.La. No. 84-1293, a voting rights case with at
least three plaintiffs common to Major.
Some of plaintiffs' counsel of record in Major were
Messrs. Quigley, Scheckman and Kellogg and Miss Guinier. The
counsel of record in Valteau were Messrs. Quigley, Scheckman,
and Kellogg, and Miss Guinier. The counsel of record in Quant
were Messrs. Quigley and Scheckman and Miss Guinier.
Defendants call the Court's attention to the fact that
one of the plainiiees in Valteau, business directly
attributable to Major as described above, was the then current
mayor of New Orleans, "Dutch" Morial. Therefore, Major, far
from being undesirable, has had, and will continue to have, the
direct result of bringing, especially the New Orleans lawyers,
not only more cases, but some very influential clients.
Furthermore, at least Barbara Major seems to be
extremely active politically (Deposition, Mr. Quigley, p. 5-6),
and will in all probability generate more business for these
lawyers. Note that Barbara Major was also a plaintiff in Quant
and Valteau.
XI. COMPARABLE CASES.
A comparison of the fee award recommended by
Magistrate Chasez to awards given in other voting rights cases
proves that her recommendation was too high.
1 Connor v: Winter, 519 P.Supp. 1337 {(S.D. Miss.
1981). (No appeal reported.) Litigation
involved all of Mississippi's some 170
legislative seats. Lodestar: $77,618.75 for
1269.25 hours, no multiplier. This was Mr.
Parker's case.
Graves v. Barnes (This case is also known as
White v. Regester.) Eight urban multi-member (as
many as nine representatives alone for one
district. See 378 F.Supp. 640, 644) legislative
districts in the State of Texas (unpublished fee
ward copy attached for convenience of the Court
as Ex. P, award affirmed at 700 F.2d 220 (5th
Cir. 1983); two trials; ten years of litigation;
nine reported opinions including seven
denominated as "landmarks" in the fee opinion (p.
1513); lodestar: 5300 hours for $444,516.50
(with paralegal time $484,401.50); with
multiplier of two, $900,833.00 (with paralegal
$940,818.00). 12
Farnum v. Burns, 571 F.Supp. 45 (D.R.I. 1983) (No.
reported appeal). Statewide state Senate
redistricting; preparation of several plans;
thirty-six districts; extensive pre and
post-trial briefing; four-day trial composed of
mostly expert testimony; four separate opinions;
lodestar: 1057 hour, $105,700; $116,270 with
multiplier of 10%.
Rybicki v. State Board of Elections, 584 F.Supp.
849 (D.C. Ill. 1984) (No appeal reported.)
Consolidated lawsuits by three groups of
plaintiffs; state legislative redistricting; 177
seats; nine day trial; twenty-five witnesses;
more than 200 exhibits; Court noted case
factually and legally complex; three different
groups (two minorities) had distinct interests
and were entitled to separate counsel; total
todesiat fees awarded to two groups (fees denied
third group): $334,375.25; total lodestar fees
awarded to black plaintiffs: $255,795.25; no
multiplier.
Mader v. Crowell, 506 F.Supp. 484. (M.D.Tenn.
1981) (No reported appeal.) State senate
reapportionment; first decision of district
court: legislature to come up with
constitutional plan by June 1, 1979; legislature
timely passed a new plan; plaintiffs' motion for
further relief. Meanwhile, defendants had gone
to Supreme Court appealing original judgment of
January 15, 1979; Supreme Court rules moot
because of subsequent legislative action:
judgment vacated and action dismissed; lodestar:
$33,091.00; attorneys' and legal assistants' time
for 422 hours attorney time and 71.3 legal
assistant time; no multiplier.
LaComb v. Growe, (Unreported, copy attached as
Exhibit Q.) (D.C. Minn. 1982) (No appeal
reported.) Legislative and congressional
districts; determined unconstituional;
promulgation of a court drawn plan now in place
(Court drew plan from looking at five plans
submitted by different parties, including one
plan drawn on plaintiffs.); lodestar: $39,982.00
- for 444.25 hours; no multiplier.
Defendants ask the Court to compare Major to these
similar cases with the Hensley/Copper Liquor standard in mind.
Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct, 1983 41983),
mandates that fees only be paid for work that was reasonably or
necessarily done. Hensley, supra, 461 U.S. at ; 103 S.Ct.
at 1939. Copper Liquor, Inc. v. Adolph Coors Co., 684 F.24
1087 (5th Cir. 1982), provides that after having arrived at a
lodestar fee amount, that figure can be reduced by a percentage
(in Copper Liquor 25%), because awards in similar cases show
that the figure is improper. Copper Liquor, supra, at 1096-97.
Only three of the state legislative and/or U.S.
Congressional reapportionment fee awards cited above, gave more
than $100,000 in fees and they involved multiple districts as
opposed to the one line case here. Those three cases are:
Farnum v. Burns, Graves v. Barnes, and Rybicki.
Farnum v. Burns gave $116,270 and 1057 hours, but it
involved thirty-six districts, not the two at issue here, and
four separate opinions, not the one in Major.
Graves v. Barnes gave a lodestar of $450,000 and 5300
hours ($480,000 and 6999.25 hours with paralegal time included)
and multiplier of two for a total fees award of $900,833 plus
expenses. But Graves involved eight urban multi-member (as
many as nine representatives in one district) districts in
Texas, not two single member districts as in Major; two trials,
not one as in Major; at least 8 trips to the Supreme Court not
the one sborlea rip here; ten years of litigation, not the 3
1/3 years involved here; it ruined one man's practice; there
were numerous pejorative letters and one death threat; and the
judge awarding the fees noted that the case was "unique".
Rybicki v. State Bd. of Elections of Illinois gave
$334,375 for 3480 hours, but there were 177 state legislative
seats involved and there were three separate interest groups.
Only two of these groups got fees and the Court gave only
$255,795 to the attorneys for the black interest group for 2702
hours. No multiplier was awarded to either group.
Furthermore, Rybicki had a nine day trial as opposed to the
four day (37 hr.) trial in Major, 200 exhibits as opposed to
the 88 in Major, and 25 witnesses as opposed to the 17 in Major.
The comparison is obvious: In Farnum the plaintiffs’
lawyers got only $115,000 with no multiplier for a case that
had twenty-five times more seats at issue than did Major and
four times as many opinions as Major. Thus, it has a
comparable value to this case of $4,650.80 as to the number of
seats at issue, and $28,750.00 as to the number of opinions,
giving it an averaged comparable value of $16,700.40.2°
The "unique" Graves case presented reasons for a
multiplier not found here. The Graves legal hours lodestar of
$444,516.50 involved twice as much work in regard to trials as
Major; eight urban multi-member districts with as many as nine
representatives per district as opposed to the two urban single
member districts at issue here; and litigation which continued
more than thice £imes as long as Major and included at least 8
strenuous trips to the Supreme Court. Thus, it has a minimum
comparable value to this case of $222,258.25 (comparison of
trials). If the number of urban districts at issue is used as
a comparable, Graves value is only $111,129.13 (If multi-member
districts in Texas are considered twice as hard as single
member districts in Louisiana, $55,564.57; and if the length of
litigation is used, the comparable is $133,488.44. If trips to
the Supreme Court are used, it has a comparable value of only
$55,564.56, even counting the aborted trip in Major as
equivalent to one of the substantive Graves trips. The average
of the four comparables is $130,610.10. ($116,718.96 if Texas
multi-member districts considered twice as hard as Louisiana
single member districts).
Rybicki a statewide legislative case gave $255,795
(including law clerk hours) to the lawyers for the black group,
but it involved litigation that took 2.25 times as much work in
regard to the trial; 2.27 times as much work in regard to the
exhibits; and 1.47 times as much work in regard to the
witnesses as did Major. Thus, it has a comparable value to
this case of $113,686.67 if the comparison of trials; a
comparable value of $112,685.02 for exhibits; $174,010.20 if
the comparison of number of witnesses is used and an average
comparable value of $133,460.63.
XI1. FEES FOR FEES WORK.
XIT. (A.) ‘rhe Plaintiffs' lawyers.
Once lawyers hire a special attorney to litigate their
motion for fees, they become clients rather than attorneys.
Accordingly, the plaintiffs' lawyers' time after they hired Mr.
Menefee is not compensable. White v. City of Richmond, 559 F.
supp. 127, 131 (N.D. Cal. 1982), affm'd 713 F.24:458 (9th Cir.
1985)...
The plaintiffs' lawyers and Mr. Menefee have indicated
that there was no written contract between them. The first
contract with Mr. Menefee by the plaintiffs' lawyers was on
June 15, 1984 (Mr. Kellogg's Supplemental affidavit). On that
day Mr. Kellogg called Mr. Menefee. Defendants contend that
all time spent by the plaintiffs' lawyers, except when they
were actually testifying, beyond that June 15, 1984 date is not
compensable.
Additionally, the approximately seven hours that Mr.
Halpin spent responding to defendants' written objections in
live testimony, when he could have simply responded in kind,
i.e., in writing, as the Magistrate and defendants urged him to
do over and over and Magistrate Chasez finally forced him to
do, should be denied as unreasonable. Thus, in regard to the
Supplemental Affidavits, the plaintiffs' lawyers' time should
be reduced to the time they legitimately spent in oral
testimony and on their written response to defendants’
objections. Mr. Kellogg's time should be reduced to 4.25
hours, Mr. Halpin's to two hours, Miss Guinier's to two hours,
Mr. Schecknsn to “two hours, and Mr. Quigley to two hours.
In the further alternative, if the Court chooses to
award some fees to the plaintiffs' lawyers for the time they
spent after they retained Mr. Menefee, the defendants urge that
the amounts they requested be drastically reduced from the
amounts suggested by the Magistrate.
For example, the defendants note the following
problems:
1) No reference to what was discussed:?l
Mr. Kellogg on 6/15/84, 9/4/84, 9/6/84, 10/16/84,
11/20/84, 11/27/84, 12/13/84, 1/2/85, 3/29/85,
5/4/85; Mr. Quigley on 9/4/84, 9/6/84, 9/17/84,
10/18/84, 12/13/84.
All of the attorneys, but Mr. Derfner, attended
all or most of the fees hearing. They had their
own attorney, Mr. Menefee, and did not need to be
there. Therefore, all of the hours, except the
hours they actually testified, should be denied.
The hours that should be denied are shown here:
Mr. Kellogg on 5/06/85 - 7.5 hours,
Mr. Quigley: - 5/6/86 - 10 hours
5/7/85 ~- 7 hours
Mr. Scheckman: 5/6/85 - 11 hours
5/7/85 ~- 2 hours
5/14/85 ~- 3.2 hours
Mr. Halpin: 5/6/85 - 7.5 hours
Br7/8s ~ 2.5 hours
5/14/85 1 hour
Miss Guinier: - 5/6/85 - 8 hours
5/7/85: - 2.25 hours
Particular entries that are excessive:
"Miss Guinier's expenditure of 8.4 hours from
3/25/85 - 3/28/85 of "expert" attorney time, to
respond to defendants' request for production of
time slips for Janice McGaughan, Valteau v.
Edwards pleadings, time slips for Miss Guinier,
Federal Express bills, telephone logs and bills
and expense vouchers.
For further examples, see p. 143-151 of
defendants' memorandum to the magistrate.
xix. (B.) Mr. Menefee: Fees and Expenses.
Jonas v. Stack, 758 PF. 2d 567 {11th Cir. 1985)
provides that no fees may be awarded to an attorney who is a
stranger to the litigation, i.e., did not represent the
plaintiffs originally. Thus, an attorney, such as Mr. Menefee,
who requests fees through his own affidavit, does not have the
standing necessary to receive his own fees:
"The proper procedure is for the
attorney who benefits from the
representation to supplement his own fee
application to include the costs and
expenses that he has incurred by
retaining fee counsel.”
Jonas, supra, at 570.
In the alternative, under the "results obtained"
standard of Hensley and Blum, because the magistrate has
suggested that the plaintiffs' lawyers should recover
approximately 20% of what they sought, Mr. Menefee's lodestar
fee should be reduced proportionately. Grendel's Den, Inc. Vv.
Larkin, 749 F.2d 945, 958 (1st Cir. 1984). With regard to
Magistrate Chasez's recommendation on Mr. Menefee's expenses,
defendants have only one objection. Postage is not an
expense. It is a matter of overhead and should be included in
the hourly rate. Loewen v. Turnipseed, 505 F.Supp. 512, 519
{N.D. Miss. 1980).
XIII. EXPENSES,
Defendants contend that, if any fee award is due at
all, the expenses plaintiffs seek reimbursement for must be
a) reasonable, 22
b) verified,?®
C) related to the hours that are awarded??.
Magistrate Chasez has dealt with the "reasonable" and
"verified" issues. However, the "related to the hours that are
awarded" issue still remains.
In this regard, because it is sometimes difficult to
tie particular expenses to particular hours, defendants would
be satisfied if the court simply reduces the expenses in the
same proportion that it does the original merits fee request.
For example, if this Court awards the plaintiffs' only 10% of
the merits request, the expenses should also be cut to 10% of
the requested amount . 23
XIV. CONCLUSION.
Defendants ask that this Court deny an award of fees.
The plaintiffs' lawyers achieved merely a "pyrrhic vicotry"
with their hollow reapportionment of the New Orleans
congressional districts. Hensley dictates that the degree of
success must be taken into account. The point of this
litigation was to elect a black Congressman. That didn't
happen. No award of fees is appropriate.
In the alternative, defendants ask that this Court
tailor an award of fees in the $25,000 range to account for the
fact that this smoking gun (basement meeting), smoking cannon
(Governor Treen's comments), and smoking MX missle (the Donald
Duck Gomillion "stark pattern") case should have been handled
very simply on Summary Judgment.
In the second alternative, if this Court feels that a
trial was needed, defendants ask that an award be tailored in
the $50,000-$75,000 range to account for the awards given in
comparable cases.
NN. FOOTNOTES
Throughout these proceedings defendants will refer to five
attorneys, Messrs. Halpin, Quigley, Scheckman, Kellogg and
Miss Guinier. There was actually a sixth lawyer, Mr.
Derfner, but his participation was negligible and only as
to research on s5 of the Voting Rights Act for a total of
28 hours of the almost 2600 claimed here, and $4,900.00 of
the $750,000.00. The magistrate has recommended that he
not be given any compensation. Thus, he will be mentioned
only occasionally. Additionally, the hours and fees
requested for the work on the fees issue will be treated
separately.
Defendants have used the word "participated" in quotes to
emphasize the plaintiffs' lawyers use ofit. Whether they
used the word purposefully to try to slide by an exact
defining of their previous trial experience or lack
thereof or truly do not know the difference between being
lead or sole counsel and the lowliest of assistant lawyers
who have never even seen the Courthouse, defendants do not
know. However, the plaintiffs' lawyers have used
"participated" and similar words to cover that whole range
of lawyer assignments and status.
March 7, 1983 9:00. a.m, 7:00 p.m. 10 hrs.
March 8, 1983 9:00 a.m. 6:30 p.m. 9 1/2 hrs.
March 9, ..1983 9:00 .a.m., 1:00 p.m. 4 hrs.
March 10, 1983 9:00 a.m, 10:30 p.m. 13 1/2 hrs.
TOTAL 37 hrs.
The State contracts limited the hourly rates of defense
counsel to between $75.00 and $85.00 per hour. Had Judge
Feldman's firm been allowed to bill at its usual rates,
the fees for the Major defense would have been between
$104,191.25 and $126,367.25, based on Judge Feldman's
testimony that his firm bills $150 per hour for senior
partners; $125 per hour for junior partners and $55-$90
per hour for associates. (Deposition, Judge Feldman, p.
29-39)
We note in regard to the racial overtones that the
plaintiffs' lawyers probably knew of the comment allegedly
made by Representative Emile "Peppi" Bruneau that "We
already have a nigger mayor. We don't need another nigger
bigshot," at the time of Justice's preclearance and
certainly knew of it when they deposed Representative
Bruneau on December 14, 1982, and asked him if he had made
that remark. Deposition, Rep. Bruneau, p. 46.
: b »
Defendants are compelled to wonder why the plaintiffs’
lawyers -did not follow up on this. If Rep. Bruneau or
anyone -else ‘made such a comment, he made it to someone.
Justice was apparently able to track it down. Why
couldn't the plaintiffs' lawyers? They were in touch with
Justice everyday during the preclearance review
(Deposition, Mr. Quigley, p. 62), which makes it highly
unlikely that they didn't know about the comment.
If they had been able to allege such a comment by
affidavit, they would have been able to use that alone or
at least in conjunction with
1) the total lack of blacks at the "basement meeting"
where Act 20 was put together, and
2) a map of Orleans, Parish, such as the ones used at
the fees hearing, which showed that the black
population of New Orleans was effectively split by Act
20 to assure themselves of victory on summary judgment.
See Busbee v. Smith, 549 F.Supp. 494 (D.D.C. 1982)
(decided on September 21, 1982, five months before the
Major trial began and before 78.3% of the work had been
done)
(At 516-517:
Conclusion of law #15: Overt racial statements and
fragmentation of a large and contiguous black
population in a large metropolitan area by splitting
that population between two Congressional districts,
thus minimizing possibility of electing black to
Congress each prove racial purpose and discriminatory
intent.)
(At 518:
Conclusion of law #21: . "...[Tlhe political process
[does] not function in a nondiscriminatory manner
[when] [bllacks, solely because of their race, [are]
excluded from the final decision-making process...",
i.e., the conference committee in Busbee or in Major,
the basement meeting which excluded blacks and
resulted in Act 20.)
Furthermore, there was at least one other overt racial
comment. Governor Treen said that he didn't want a black
district because it would cause racial trouble.
(Deposition, Governor Treen, p. 121.) The racial
connotations of Governor Treen's words and actions are
further bolstered now by his counsel's frank admission
that, " [The Governor] was extremely concerned that the
black community believed he was a racist, and he did not
want to be preceived as a racist, for personal reasons as
well as political reasons, and the personal reasons were
as strong as the political reasons." (Deposition, Judge
Feldman, p. 89).
Deposition, Mr. Quigley, p.5-6.
6A - Plaintiffs have made this contention on at least the
following occassions:
1) Plaintiffs' Reply Brief - filed August 23, 1985.
2) Letter from Larry T. Menefee to Magistrate Chasez -
dated January 17, 1986.
3) Letter from Larry T. Menefee to Judge Collins and
Magistrate Chasez - dated April 30, 1986.
4) Letter from Larry T. Menefee to Magistrate Chasez -
dated June 13, 1986.
6B - All exhibit identification letters refer to exhibits
attached to the memorandum to Magistrate Chasez.
Inclusion of unpublished cases other than the few we have
been able to locate through reported cases, in this
memorandum has been severely limited by the ruling of this
Court and Magistrate Chasez as to such cases in the
possession of the plaintiffs' lawyers who are applying for
fees. Defendants reiterate that they consider this denial
of discovery to be prejudicial.
14.
Graves v. Barnes, 343 F.Supp. 704 (W.D.TEX. 1972), stay
den. by Graves v. Barnes, 405 U.S. 1201, 92 S.Ct. 752,
(1972) and judgment affm'd by Archer v. Smith, 409 U.S.
808, 93 S.Ct. 62 (1972) and prob. juris. noted by Bullock
v. Regester, 409 U.S. 840, 93 S.Ct. 70 (1972) and judgment
affm'd in part, rev. in part by White v. Regester, 412
U.S. 755, 93 S.Ct. 232 (1973), on remand, Qraves Vv,
Barnes, 378 F.Supp. 640 (W.D. Tex. 1974) prob. juris.
noted by White v. Regester, 417 U.S. 906, 94 S.Ct. 2601
(1974) and judgment vacated by White v. Regester, 422 U.S.
935, 95 S.Ct. 2670 (1975) on remand, Graves v. Barnes, 408
F.Supp. 1050 (W.D.Tex. 1976) app. den., Escalante v.
Briscoe, 424 U.S. 937, 96 S.Ct. 1404 (1976); also Graves
v. Barnes, 446 F.Supp. 560 (W.D.Tex. 1977), judgment
affm'd by Briscoe v. Escalante, 435 U.S. 901, 98 S.Ct.
1444 (1978) reh. den. by Briscoe v. Escalante, 435 U.S.
919, 98 S.Ct. 1479 (1978) and the district court fee
opinion is unpublished; the fees award is affirmed at
Graves Vv. Barnes, 700 F.2d 220 (5th Cir. 1983)
At that time s2 reads as follows:
"No voting qualification or prerequisite to
voting, or standard, practice or procedure shall
be imposed or applied by any state or political
1l
12
subdivision to deny or abridge the right of any
. citizen of the United States to vote on account
-" of ‘race. or color.” 42 U,.8.C. 81973 (1565).
The new s2 in its entirety reads as follows:
"(a) No voting qualification or prerequisite to
voting or standard, practice, or procedure shall
be imposed or applied by a state or political
subdivision in a manner which results in a denial
or abridgement of the right of any citizen of the
United States to vote on account of race or
color, or in contravention of the guarantees set
forth in Section 4 (f) (2), as provided in
subsection (b)."
1. the extent of any history of official discrimination
in the state or political subdivision that touched the
right of the members of the minority group to register, to
vote, or otherwise to participate in the democratic
process;
2. the extent to which voting in the elections of the
state or political subdivision is racially polarized;
3. the extent to which the state or political subdivision
has used unusually large election districts, majority vote
requirements, anti-single shot provisions, or other voting
practices or procedures that may enhance the opportunity
for discrimination against the minority group;
4 if there is a candidate slating process, whether the
members of the minority group have been denied access to
that process;
5. the extent to which members of the minority group in
the state or political subdivision bear the effects of
discrimination in such areas as education, employment and
health, which hinder their ability to participate
effectively in the political process;
6. whether political campaigns have been characterized by
overt or subtle racial appeals;
7. the extent to which members of the minority group have
been elected to public office in the jurisdiction.
Additional factors that in some cases have had probative
value as part of plaintiffs' evidence to establish a
violation are:
- whether there is a significant lack of responsiveness on
the part of elected officials to the particularized needs
of the members of the minority group.
- whether the policy underlying the state or political
subdivision's use of such voting qualification,
prerequisite to voting, or standard, practice or procedure
is tenuous. S. Rep. at 28-29.
It is relevant to the claim of novelty that Stanley Halpin
was lead counsel for the plaintiffs in Zimmer and that
Armand Derfner was lead counsel for the plaintiffs in
White.
But see Transcript, March 7, pages 22 and 36, wherein Mr.
Halpin, in his opening statement, argued that the
plaintiffs had a particularly strong case, because they
were challenging a "particularly outrageous racial
gerrymander" and that this was "an easier case than a lot
of them I have been in." Why is it, then when handling
the merits, the case is so easy, and when seeking fees, so
difficult?
The kinship between the standards in s5 and s2 is
demonstrated by the legislative history on the 1982
amendments to the Act. Because only some jurisdictions
(mostly Southern states) are "covered" by the s5
preclearance requirement, Congress was concerned that
discrimination in S5 jurisdictions was established by the
Attorney General's finding of discriminatory effect, while
in the rest of the country plaintiffs had to meet the
post-Mobile requirement of proving discriminatory intent.
The adoption of the "results" test in s2 was designed to
eradicate this discrepancy while maintaining the mandatory
preclearance requirement only in certain "covered'
jurisdictions. See S. Rep. at 35; H.Rep. alt 28.
The State of Georgia filed an alternative action for
declaratory judgment following the Attorney General's
decision to interpose an objection under s5. In Busbe v.
Smith, 549 F.Supp. 494 (D.D.C. Sept. 21, 1982), 5 1/2
months before the Major trial and when only 21.7% of the
Major plaintiffs' attorneys' work had been done, the
district court also found that the state had failed to
show that the black concentration in Atlanta had not been
split for racially discriminatory purposes.
16-A Racial appeals:
There were of course racial comments regarding the
reapportionment at issue. See footnote 36, infra.
However, racial appeals have a history in Louisiana
newspaper articles and TV tapes. For example, the
Louisiana State's Rights Party, companion group to the
White Citizens Council made such racial appeals since at
least the time of Brown v. Board of Education, 347 U.S.
483, 74 S.Ct. 686 (1954); Supplemented by 349 U.S. 249, 75
S.Ct..753 (1955),
Affidavit, Miss Guinier, P. 30 and Answers to the
Interrogatories and Request for Production -- "List of Ten
Most Significant Cases". - produced May 30, 1985.
In Fast v. School District of City of Laude, 728 F.2d 1030
(8th Cir. 1984), the Court commented that a defendant may
even arque, in appropriate circumstances, "that it was not
necessary for the plaintiff to file suit at all to obtain
the relief she ultimately got." Fast, supra, at 1035.
The present case may in fact approach this threshold.
graves v. Barnes, 343 F.Supp. 704 (W.D. Tex. 1972), stay
den. by Graves v. Barnes, 405 U.S. 1201, 92 S.Ct. 752
(1972) and judgment affm'd by Archer v. Smith, 409 U.S.
808, 92 S.Ct. 62 (1972) and prob. juris. noted by Bullock
vy, Regester, 409 U.S. 840, 93 8.Ct. 70 (1972) and judgment
affm'd in part, rev. in part by White v. Regester, 412
U.S. 755, 93 S.Ct. 2332 (1973) on remand Graves v. Barnes,
378 F.Supp. 640 (W.D.Tex. 1974), prob. juris. noted by
white v. Regester, 417 U.8. 9506, 94 S.Ct. 2601 (1974) and
judgment vacated by White v. Regester, 422 U.S. 935, 95
S.Ct. 2670 (1975) on remand Graves v. Barnes, 408 F.Supp.
1050 (W.D.Tex. 1976) app. den. by Escalante v. Brisco, 424
U.S. 937, 96 S.Ct. 1404 (1976); also Graves v. Barnes, 446
F.Supp. 560 (W.D. Tex. 1977), judgment affm'd by Briscoe
v. Escalante, 435 U.S. 901, 98 S.Ct. 1444 (1978), teh.
den. by Briscoe v. Escalante, 435.U.8. 919, 98 S.Ct. 1479
(1978) and the district court fee opinion is unpublished;
the fees award is affirmed at Graves v. Barnes, 700 F.2d
220. (5th Cir. 1983).
This and the following comparable values computed in this ma
nner:
Number of seats in
comparable case (or
length of trial,
or number of exhibits,
etc.) (50) = (25) = number of times harder;
Numer of seats in
Major (or leangth
of trial or number
—.
of exhibits, etc.)
ys
Award in comparable = Value comparable to
case ($115.000) Major (Comparable value)
Number of times hard- ($4650.80);
er (25)
Averages comparable value reached by adding all comparable
values for case togehter and dividing by number of
comparable values.
The references "fees" or "strategy" are not considered by
defendants to be sufficient.
Henglev v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933 (1983).
Copper Liquor, Inc. v. Adolph Coors Co., 634 F.24 1087,
1099 (5th Cir. 1982).
Hensley, supra
The magistrate mistakenly asserts at p. 28 of her Findings
and Recommendations that there are some expenses
defendants do not challenge. This is incorrect as
defendants made the same argument that expenses must be
related to fees, i.e. 10% of fee request is forwarded,
only 10% of expense request should be awarded, at p. 170
of their memorandum to the magistrate.
Respectfully submitted,
WILLIAM J. GUSTE, JR.
ATTORNEY GENERAL
KENDALL L. VICK
ASSISTANT ATTORNEY GENERAL
PATRICIA NALLEY BOWERS
ASSISTANT ATTORNEY GENERAL
ARTHUR J. FINN
STAFF ATTORNEY
eo hn or
ET Te 0S ha.
PATRICIA NALLEY BOWERS NL
ASSISTANT ATTORNEY GENERAL.
LOUISIANA DEPARTMENT OF JUSTICE
234 LOYOLA AVENUE, 7TH FLOOR
NEW ORLEANS, LOUISIANA 70112
TELEPHONE: (504) 568-5575
» »
UNITED STATES DISTRICT COURT
~ EASTERN DISTRICT OF LOUISIANA
BARBARA MAJOR, ET AL CIVIL ACTION
VERSUS NO. 82-1192
DAVID C. TREEN, ET AL
XxX kX xX Xx %X kX x XxX kX XxX kX XxX x kX x k Xx Xx
SECTION C
NOTICE OF HEARING
Please take notice that the attached "Opposition to
Magistrate Chasez's Findings and Recommendation Regarding
Attorneys' Fees" will be heard in the United States District
Court for the Eastern District of Louisiana, 500 Camp Street,
New Orleans, Louisiana before the Honorable Robert F. Collins
on September 10, 1986 at 9:00 o'clock a.m.
Respectfully submitted,
WILLIAM J. GUSTE, JR.
ATTORNEY GENERAL
PATRICIA NALLEY BOWERS
ASSISTANT ATTORNEY
ARTHUR J. FINN
STAFF ATTORNEY
PATRICIA NALLEY BOWERS
CERTIFICATE OF SERVICE
| certify that a copy of the foregoing pleading has been
served upon counsel for all parties by mailing the same
to each, properly addressed ils stage nC
Pe
this == day ot
i
)
ASSISTANT ATTORNEY GENERAL
LOUISIANA DEPARTMENT OF JUS
234 LOYOLA AVENUE, 7TH FLOOR
NEW ORLEANS, LOUISIANA 70113
TELEPHONE: (505) 568-5575