LULAC v. Clements Fifth Circuit Opinion

    LEAGUE OF UNITED LATIN AMER. CITIZENS v. CLEMENTS 

LEAGUE OF UNITED LATIN AMERI- 
CAN CITIZENS COUNCIL NO. 1434, 

Plaintiffs-Appellees, 

and 

Jesse Oliver, et al., Intervening 
Plaintiffs-Appellees, 

v. 

William P. CLEMENTS, etc., et 
al., Defendants. 

Jim MATTOX, et al, 

Defendants-Appellees, 

Appellants, 

V. 

Judge F. Harold ENTZ, etc., Judge Sharo- 
lyn Wood, etc., and George S. Bayoud, 
Jr., ete. Defendants-Appellants, 

and 

Tom Rickhoff, Susan D. Reed, John J. 
Specia, Jr., Sid L. Harle, Sharon Mac- 
rae and Michael P. Pedan, Bexar Coun- 
ty, Texas State District Judges, Appel- 
iants. 

No. 90-8014. 

United States Court of Appeals, 

Fifth Circuit. 

Jan. 29, 1991. 

Action was brought under Voting 
Rights Act challenging at-large method of 
electing trial judges in certain Texas coun- 
ties. The United States District Court for 
the Western District of Texas, Lucius De- 
sha Bunton, III, Chief Judge, granted re- 
lief, and appeal was taken. The Court of 
Appeals, 902 F.2d 293, reversed. On re- 

* Judges Williams and Garwood took no part in 

2313 

hearing en bane, the Court of Appeals, 914 
F.2d 620, reversed on different grounds. 
On motion of judge who had intervened on 
side of named state defendant to recover 
expenses, the Court of Appeals, Gee, Cir- 
cuit Judge, held that judge was not entitled 
to recover her expenses from state, as pre- 
vailing defendant. 

Request denied. 

1. Civil Rights ¢=294 

State trial judge who originally inter- 
vened on side of named state defendant in 
action challenging Texas’ method of elect- 
ing judges was not entitled to recover her 
expenses from state, the prevailing defen- 
dant, after election statutes were upheld on 
appeal; judge participated in litigation as 
defendant in all respects, not as person 
seeking to establish and rectify violation of 
civil rights. Voting Rights Act of 1965, 
§ 14(e), as amended, 42 U.S.C.A. § 1973! 
(e); 42 U.S.C.A. § 1988. 

2. Civil Rights ¢=299 

Prevailing defendants in civil rights ac- 
tions may recover attorneys’ fees only if 
plaintiff’s cause of action is frivolous, un- 
reasonable, or without foundation. 42 USS, 
C.A. § 1988. 

Appeals From the United States District 
Court for the Western District of Texas. 

Before CLARK, Chief Judge, GEE, 
POLITZ, KING, JOHNSON, JOLLY, 
HIGGINBOTHAM, DAVIS, JONES, 
SMITH, DUHE, WIENER, and 
BARKSDALE, Circuit Judges.* 

the Court's deliberations or decision of this ap- 

Synopsis, Syllabi and Key Number Classification 
COPYRIGHT © 1991 by WEST PUBLISHING CO. 

The Synopsis, Syllabi and Key Number Classifi- 
cation constitute no part of the opinion of the court. 

 



  

2314 

GEE, Circuit Judge: 

[1] We are asked by hindsight to treat 

as a plaintiff state District Judge Sharolyn 

Wood, who originally intervened on the 

side of the named state defendant in a 

challenge to Texas's method of electing 

such judges as she and, with the underly- 

ing case decided in Texas's favor, to assess 

her attorney fees against Texas. We con- 

clude that Judge Wood participated in the 

litigation as a defendant in all respects and 

cannot recover her expenses from another 

prevailing defendant. 

Suing Texas through its officials, LU- 

LAC and certain individuals claimed that 

the election of Texas district judges diluted 

the votes of blacks and Hispanics, thus 

violating the Fourteenth and Fifteenth 

Amendments to the U.S. Constitution, the 

Civil Rights Act of 1964, 42 U.S.C. § 1983, 

and section two of the Voting Rights Act, 

42 U.S.C. § 1973. Asserting interests both 

as a Texas voter and as a sitting Texas 

district judge, Judge Sharolyn Wood moved 

to intervene on the side of the defendant— 

the state. The court allowed her to inter- 

vene in her personal capacity, permitting 

Dallas County District Judge Harold Entz 

to do so as well. The court later held that 

the state’s county-wide district election sys- 

peal. When this case was orally argued before 

and considered by the court, Judge Reavley was 

in regular active service. He participated in 

both the oral argument and the en banc confer- 

ence. 

In United States v. American-Foreign 
Steamship Co., 363 U.S. 685, 80 S.Ct. 1336, 4 
L.Ed.2d 1491 (1960), the Supreme Court, in- 

terpreting 28 U.S.C. § 371(b), decided which 

senior judges are eligible to participate in an 

en banc court. Compare United States v. 
Cocke, 399 F.2d 433, 435 n. 4 (Sth Cir.1968) 

LEAGUE OF UNITED LATIN AMER. CITIZENS v. CLEMENTS 

tem, although constitutional, diluted the 

votes of minorities in all challenged coun- 

ties and thus violated § 2(b) of the Voting 

Rights Act. 

Judge Wood filed and was granted an 

interlocutory appeal from this order and a 

stay of the district court’s adopted interim 

plan. Texas also appealed the order. On 

appeal, a panel of our court reversed on 

reasoning which avoided prior controlling 

precedent. 902 F.2d 293. We later over- 

ruled the precedent in question and, sitting 

en banc, reversed on different reasoning. 

914 F.2d 620. Judge Wood now asks us to 

award to her reasonable attorneys’ fees 

against Texas pursuant to the Civil Rights 

Act’s and the Voting Rights Act's fee shift 

ing provisions for prevailing parties. 42 

U.S.C. § 1988; 42 U.S.C. § 1973l(e).! 

[2] Interpreting these provisions, the 

Supreme Court probed the underlying pur- 

pose of the statutes—vindicating civil 

rights-—and distinguished between prevail- 

ing plaintiffs and prevailing defendants. 

The Court viewed plaintiffs, unlike defen-. 

dants, as “private attorneys general” pros- 

ecuting a policy accorded the highest priori- 

ty by Congress. The Court held that the 

fee-shifting provisions required fee awards 

to prevailing plaintiffs absent special cir- 

(en banc). As Judge Reavley reads the 
American-Foreign Steamship Co. opinion, he 
considers himself ineligible now to partic- 
ipate in the decision of this case, and he has 
not therefore done so. 

1. As a preliminary matter, Texas now attacks 
Judge Wood's standing to intervene in the 
first place. We find she had standing as a 
sitting elected judge. See L.U.L.A.C. v. Clem- 
ents, 884 F.2d 185, 188 (5th Cir.1989); 

Williams v. State Board of Elections, 696 
F.Supp. 1563, 1570-72 (N.D.I11.1988). 

 



  

LEAGUE OF UNITED LATIN AMER. CITIZENS v. CLEMENTS 2315 

cumstances, the expense thus falling upon 
the adjudicated violator of civil rights. In- 
dependent Federation of Flight Attend- 
ants v. Zipes, — U.S. —, 109 S.Ct. 2732, 
2736, 105 L.Ed.2d 639 (1989) (limits on re- 
covery from losing defendant-intervenors); 
Christiansburg Garment Co. v. EEOC, 
434 U.S. 412, 417-21, 98 S.Ct. 694, 698-700, 
54 L.Ed.2d 648. Prevailing defendants, on 
the other hand, may recover fees only if 
the plaintiff's cause of action is frivolous, 
unreasonable, or without foundation. Id. 

The latter standard applies to Judge 

Wood, who positioned herself as a defen- 
dant by intervening on the side of the 
named defendant, Texas. We must decline 
Judge Wood's invitation to delve deeper, to 
distinguish defendant-intervenors from de- 
fendants, and to accord her, as an inter- 

venor, special treatment. 

While equity considerations, particularly 
the difference between named defendants 
as violators of federal law and defendant- 
intervenors as merely interested persons 
asserting other rights, caused the Supreme 
Court to limit an intervenor’s liability re- 
garding a prevailing party’s attorney fees, 

2. For example, in section 5 declaratory judg- 
ment actions under the Voting Rights Act, 
the parties positioned as “defendants” may 
actually be the parties charging civil rights 
violations and seeking to assert their civil 
rights. See, e.g. Donnell v. United States, 682 
F.2d 240 (D.C.Cir.1982) (County Board of 
Supervisors sought declaratory judgment of 
its redistricting plan's non-discriminatory 
purpose/effect after the United States Attor- 
ney General failed to approve its redistrict- 
ing plan, and black voters intervened on the 
side of the United States). In Donnell, the 
court disregarded the case's procedural pos- 
ture, classified the prevailing intervenors ac- 
cording to their actual role, and remanded 
with instructions to consider the following 
factors when determining whether to shift 

the Court has never held or so much as 
insinuated that such considerations extend 
to imposing a prevailing intervenor’s ex- 
penses upon a prevailing named defendant. 
Zipes 109 S.Ct. at 2736. 

Even assuming that there may be a fac- 
tual setting in which equity could persuade 
us to look beyond the procedural posture of 
a case to a party’s actual role, this is not 
such a case; nor would such an exercise 
alter Judge Wood’s position.2 Given the 
Supreme Court’s apparent rationale for ap- 
plying different standards to plaintiffs and 
defendants, any such reclassification of a 
party’s role must hinge upon whether the 
parties in question acted as private attor- 
neys general within the scope of the stat- 
utes under which Congress provided fee 
entitlement. Cf. Alabama Power Co. v. 
Gorsuch, 672 F.2d 1 (D.C.Cir.1982) (deny- 
ing intervenor on the side of the Environ 
mental Protection Agency (EPA) any as- 
sessment of their attorney fees against the 
EPA after the EPA and intervenor pre- 
vailed) Judge Wood participated in all 
ways as one defending against a civil 
rights claim and not as one seeking to 

the intervenor’s reasonable attorney fees to 
the losing party: 

(1) whether the attorney general did not 
adequately represent the intervenor’s inter- 
est; 
(2) whether the intervenors proposed dif- 
ferent theories and arguments for the 
court’s consideration, and 
(3) whether the work the intervenor per- 
formed was of important value to the 
court. 

Id. We too have annunciated these factors 
in a different context. Posada v. Lamb 
County, Tex., 716 F.2d 1066, 1074-75 and n. 
13 (5th Cir.1983) (whether to award fees due 
to pre-litigation efforts at approval proceed- 
ing before state attorney general). 

 



  

2316 

establish and rectify a violation of civil 

rights.’ 

If the losing plaintiff's action were friv- 

olous, unreasonable, or without foundation, 

and if Judge Wood qualified as a prevailing 

party aligned with the defendant, she 

might be entitled to a fee award against 

the losing plaintiff. We need not deter- 

mine if Judge Wood otherwise qualified: 

She asks us to assess her fees, not against 

a losing party, but rather against the pre- 

vailing, named defendant. She insists the 

Texas attorney general could not have won 

the case without her and that he did not 

adequately defend her interests or properly 

perform his official duties. Even assuming 

that Judge Wood is factually correct, Texas 

3. Judge Wood asserts that her opposition to 
the proposed interim plans, labeled by her as 
“patently unconstitutional,” effectively cast 
her in the posture of a plaintiff because she 
could have elected to attack the plans collat- 
erally rather than move for an injunction 
and appellate review of the district court's 

LEAGUE OF UNITED LATIN AMER. CITIZENS v. CLEMENTS 

and not Congress charges Texas’s Attor- 
ney General with the duties which Judge 
Wood maintains that he failed to perform; 
her complaints do not fall under the Civil 
Rights Act or the Voting Rights Act; and 
she cannot use their fee-shifting provisions 
to recover against Texas for his asserted 
inadequacy. See Donnell v. United 
States, 682 F.2d 240 (D.C.Cir.1982). She 
being one who occupied the position of a 
defendant by reason of her intervention, 
Judge Wood’s right to recover attorneys’ 
fees under these provisions cannot rise 
above what it would have been had she 
originally been joined as such a defendant. 

Accordingly, we must deny Judge 

Wood’s requests for attorney fees. 

DENIED. 

opinion. We do not address the issue; she 
intervened prior to this stage, and always as 
one disputing claimed civil rights violations, 
not as one asserting such violations. 

Adm. Office, U.S. Courts—West Publishing Company, Saint Paul, Minn.