No.
~~ -\502
lq~~ (\06 LEAVE~).
SEP. 2 3 REeD
DAKIn R. BEllSOII
• ATTDR:!EY At LAW
IN THE UNITED STATES COURT Of APPEALS
fOR THE fIfTH CIRCUIT
NO. 8'-1502
THE CITY Of LUBBOCK. TEXAS. and the
Mayor and City Council thereof
BILL McALISTER. ALAN HENRY. JOAN BAKER.
M. J. -BUD- ADERTON and E. JACK 8ROWN
all in their officials capacities as
.eMbers of the City Council of Lubbock. Texas
Defendants-Appellants
YS.
REY. ROY JONES, GONZALO GARZA. EUSEBIO MORALES
and Intervenor. ROSE WILSON. individually and
as Representatives respectively of the Black and
Mexicsn-A.erican Voters of the City of Lubbock. Texa.
Plaintiffs-Appellee.
ON APPEAL fROM THE UNITED STATES DISTRICT COURT
fOR THE NORTHERN DISTRICT or TEXAS
LUBBOCK DIYISION
HONORABLE HALBERT O. WOODWARD. JUDGE PRESIDING
BRIEf fOR APPELLANTS
SHELTON AND JONES
TRAYIS D. SHELTON
T. DALE JONES
1801 Avenue Q
Lubbock. Texa. 79.01-4891
JOHN C. ROSS. JR.
CITY ATTORNEY
P.O. Box 2000
Lubbo~k. Texa. 79457
JAMES P. BREWSTER
CIYIL TRIAL ATTORNEY
(806) 762-6411. Ext. 2215
Septe.ber 2'. 198'
IN THE
ST~TES COURT OF
THE FIFTH CIRCUIT
U~ITED
F~R
~O.
APPE~LS
83-1S02
THE CITY or LUBEOCK, TEXAS, ~nd the
Mevor Ind Citv Council thereof
BILL McALISTER, AL~N HENRY, JOAN BAKER,
M. J. "BlO· ADERTQN and E. JACK eRD~N
III in their offici.ls.capaclties IS
members of the City Council of Lubbock, Texas
Defendants-Appellants
VS.
REV. ROY JONES, GONZALO GARZA, EUSEBIO ~ORALES
and Intervenor, ROSE WILSON, individually and
a. Representatives respectively of the Black and
Mexlcln-American Voters of the City or Lubbock, Texas
Plaintifrs-A~pellees
ON APPEAL FRO~ THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT or TEXAS
LUSBOCK DIVISION
HONORABLE HALEERT O. ~OODWAP.D, JUDGE PRESIDING
ERIEF FOR
SHELTON AND JONES
TRAVIS D. SHELTON
T. D~LE JONES
:801 Avenue Q
Lubb~ck, Texi. 79401-4:91
APPELLA~TS
JOHN C. ROSS, JR.
CITY ATTORNEY
P.O. Box 2000
Lubbock, Texas 79AS7
JAMES P. BREWSTER
CIVIL TRIAL ATTORNEY
(806) 762-6411, Ext. 2215
Septe~b.r
23, 198'
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CERTIFICATE OF Il,TERESTED F;'.RTIES
:;0. 63-1502
CITY OF LUBBOCK,
et a1 vs.
T~x;.,S,
The uncersi;nec, couns£l
ing
lis~ec
persons have an
These representations are
Co~rt ~ay
record, c£=tifies
o~
:n~erest
~~de
evaluate possible
in the
in order
e~
REV. 'ROY JO:\ES,
outco~e
tha~
~~~~
0:
al
the
t~~s
the Jucqes
o~
follo~-
case.
this
cis~ualifieatio~ or rec~s~l.
DEFENDANTS-AP?ELLANTS:
The City of Lubboek, Texas
Henry, Mayor
Joan Baker, ·C:ty Council
M. J. "Bud" r.:erton, C:ty Council
~. Jack Bro~n, City Cc~~cil
~lan
ATTO!U~YS
FOR DEFEND;J,TS-hPPELLANTS:
Travis D. Shelton
'1'. Dale Jones
(SHELTON , JONES)
Joh.~ C. 'Ross, Jr., Cit::' Attorney
Jar..e. P. Bre~ster
PLAI~'TIFFS-APPELLEES:
Rev. Roy Jones
Gonzalo Garza
Eusebio Morales
Rose Wilson
hll respeetively as representatives for the Black and
Mexictn-Amereian voters of the City of Lubboek, Texas.
~~TORNEYS
FOR
PLAINTIF:S-~J?ELLEES:
Mark C. Ball
Lane Arthur
.
William ,E. Garrett
To:nas Garza
Albert Perez
Daniel H. Benson
Rolando Rios
Robert P. ·Da\'~do...•
~~--
,;~WSTf
P'Attorney'of Record for the City of
Lubboek and Lubbock City Couneil,
Defendants-~ppellants
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ST~.'1'E:!·~:\T
appeal deals solely
'1'~is
a~arde:
It
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!U:G;'_~DING
~ith
ORAL ;'.RGU!·':"NT
the issue of
to the plaintiffs-apFellees in a voting
the ?rc·,isiton. of 42 U.S.C. 55 1973l(e) and 1988.
b~~~rcated
by the Trial Court, and the main case
attc~neys' ~eeE
rig~ts
=ase
The caEe
~ncer
\·:as
~s ?~es:ntly ~e­
fore t::i5 Court for argument on October 24, 1983, u:-.c.er :::ause !;o.
83-1~96.
Appellant. would
AI~
that argument in this
a?~eal
on
attorney. fee. be eOmbined with the' main ca.e and all handled at
o~e ti~e
by the Fifth Circuit.
The two appeals are directly re-.
latec, and considerable time and expense could be sa\ed for the
Court and the partie. by
~r~ing
all issues together in one ap-
pearanee before the Court.
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?';'.GE
CERTIFIC;;TE OF INTEN:S'ZED PJ.RTIES.............................. i i
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STATE:l-1!!\! .REGARDING ORi-.L ARGlWI:;! •••••••••••.••................ i i i
III
TABLE: OF COl\TENTS.............................................. i v
II
ST1>.TE!J'II:T OF THE: ISSCES .•• , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
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LIST OF ;'U!HORITIES ••••••••••••••••.•.•••.••••••.••...••....... v
STATEMENT OF 'rHE CASE.......................................... :3
Jurisdiction". • • • • • • . • • . . . . •• • . . . . • • . • . • • • • . . . • . . . . • . . . . . .. 3
Proceedings ·and Oi5positio:. in
Cour~ Belo~
.. _
3
Statement of Facts........................................ 5
SUHHARY OF ARGUMENT •••••••••••••••••••••••••••••••••••••••.•••• 6
ARGUMENT •••••••••••••••••••••••.•••••••••••••••••••••••••..•••• 8
The Tri~l Court a=~sed his ~iscretion in a~ardin9
excessive and un~arrantec a~torneys' fees to Plaintif:.
I.
?laintiffs-Appellee. were not the prevailing
parti•• at all .ta~•• of the ca•• below••••••••••. 8
II. Th.
Tr~al court erred in the application of
standards governin; attorney fee a~ards ..••.....•. 14
CONCLUSION. • • • • • • • • • • • . . • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • •• 21
CERTIFICATE OF SERVICE......................................... 22
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LIST OF
EO:lnes v.
5~9
hU~HORITIES
~ong,
:,2c 1316 (4th Cir. 1979) •••••....•........• 9,12
::1": v. !olcLeod,
605 F.2c 134 (4th Cir. 1979) •••••••..•••........ 8,12
C~~v
of ~o:ile v. Bolcen,
446 U.S. 55 (1980) •..• ~ •.••.••••••••.••.••..•... 3,5,11
East Carroll Parish School Be.' v. ~Ar.hal1,
424 U.S. 636 (1976) ••••••••••••••••••••.••••••.• 10
Ee:lslev v. Eckerhart,
_ _l:.s. _ _ , 103 S.Ct. 1933 (1983)
12,13,l4,15
I:ar.ian St~cents Ass'n v. Ed~ara.,
604 F.2d 352 (5th eir. 1979) •••••••••••••••.•... B
Johnson v. GeOriia Hichwav EXjres., Inc.,
488 '.2& 7 4 (5t~ eir. 1 74) ••••••••••••••..••.. 14,15
JC:les v. Citv of Lubbock,
6e2 :.id 504 (5th eir. 1982)
3,10,1-,12
Jone. v. Diamond,
636 F.2d 1364 (5th eir. 1981) ••••••••••••••••••• 13
Neelv v. Citv of Gren&ca,
624 F.2c 547 (5th Cir. 1980)
17,lB
Nevett \'. Side.,
571 F.2d 209 (5th eir. 1978) •••••••••••••••••..• 10,11,13
v. '~bervil1e Parish School Be.,
543 r.2c! H17., liB n. 2 (5th dr. 1976) ........ B,14
PL~ior
Rocer. v. Lodge, .
102 s.et. 3277 (1982) ••••••••••••••••••••••••••• 3,5,11
l':::i te v. Re§ester,
. .
412 t . • 755 (1973) ••••.•.•....••. ; •••..•••••••• 10,11
v. ~c~.ith.n,
485 F. 2d 1297 (5th Cir. 1973)
Z~~~er
v
: 10,11
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28 U.S·.C. !i 1343 •.•••••••••.••••.••••••••....•..•••.. 3
42 t.:.S.C. 5 1971 ••••••.••• ,••••••••••.•••••....•...... 3
42
~.S.C.
'5 1973 et
se~.
(Vctin~ Ri~~ts
Act} ••.......
~~i,3,4,6,E,
9,10,11,1~,13
42 t!.S.C. 5 1983
3
42
:'ii,3,6,S,:3
~.S.C.
5 1988
14th Amendment, United States·Con.titution •••••.•••.• 9,10
15th
Amen~.nt,
United State. Ccn.titution •••••.•.••• 3,9,10
Rule 23(b) (2), Federal Rules
c~
Civil Procecure •.•..• 3
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Il' THE
COURT or ;J?~~S
FOR TroE rIFTH CI~CUIT
~X:TED
ST~T~S
1'0. 83-1502
CITY OF LCB30CK, TEX;.S, and the
Mayor and City Council ~hereof
BILZ. !-~C;.I.IST~R, ~ HENRY, JOAN SAKER,
M. J. "3UD" ADERTON andoE: JACK BROWN,
all in Their Official Capacities as
Members of the City Council of Lubbock, Texas
::~
DE:encants-A??ellan~5,
VS.
REV. ROY JONES, GONZALO GARZA, EUSEBIO MORALES,
an~ Intervenor, ROSE WILSON, Individually and
as Re?resentatives Respectively of the Black and
~exican-k"erican Voters of the Ci~y 0: Lubbock, Texas
Plaintiffs-Appellees.
BRIEF FOR
APPELLr~TS
TO THE: HONORABLE O1\ITEO STATES COURT OF APPEALS:
Appellants, the City of
L~bbock,
Texas, its Mayor Alan Henry,
Joan Saker, M. J. "Bud" Aderton and E. Jack Brown all in their official capacities
Defendants in
t~e ~orthern
Halbert O.
~s
member. of the City Council of Lubbock, Texa.,
~A-5-i6-34A,
in the United States District Court for
District of Texas, Lubbock" Division, the Ho~orable
"oo~~ard,
Judge Presiding, respectfully
brief in apReal of the judgment of the
•
0
~istrict
sub~it
this
Court in favor of
Plaintiffs-Appellees, Rev. Roy Jones, Gonzalo Garza, Eusebio
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?-!oreles, end Inte=venor, Rose i':ilson, ineivieuelly ane as ::-,,?::-e;se:l':e.tives of the Blacks and !·:e>::'can-]..-:lerica:ls
Lu:bock, Texas.
This appeal arises es the secone
ceted trial in the District
in
:~e
0: -:he c: t·:
~a_:
trial court) is currentlr on eppeal in the
oral
arg~~ent.
~_:~::--
(C~-5-7E-;4
~nitec
Court of Appeals for the Fi::h C:'rcuit uncer Cause No.
a~a~:~ng
c: a
The rnein case;
Cour~ belo~.
::
States
83-1~~6
Secause of time factors ir.volvec
:.~ :~e
appellate process, the Trial Court separated the issue of a:torneys
!ees for the plaintiffs into a separate ceuse of action uncer the
s~~e
strle, but
T~is
appeal is from the juegment
~ith
the Distric:
Co~rt
Cause No.
a~areins
attorneys :ees tc plain-
tiffs' attorneys in the secone cause of action.
an~
filing of all briefs in Caus. No. 83-1502,
ask the Fifth Circuit to
Ch-5-i6-3~A.
reco~bi~e C~use ~o.
Upon completion
Defen~ants-Appellants
83-1196 ane
Ca~se
No.
1502 into one suit and schedule arqurrler.t :or the two cases at the
s&Jlle time. 1
STATEY~NT
1.
or
THE ISSUES
I\'hether Plaintiffs-A::pellees were the "prevailing ?arties"
at all stages of the litigation entitling them to an award of attorr.e~'.
fees for both trials held in this ease or only for the secone
trial.
2.
Whether
~he
amount of the award of attorneys' fees to
Plainti!fs-Appellees in this ease is
cretion by the Trial Court because
ex~essive
i~pro?er
and an abuse of dis-
standares were
~sec,
IT~e defendant~ have changee since the bi!urcation order ~as entered by the.Trial Court. ~ill XcAlister, Mayor, died unexpectedl:,
a:le Alan Henry was elected mayor in a special election held August
13, 1983. A special election to fill the vacancy on the council
created by the movement of Alan nenry to' the mayor's job has been
schedul~d for November 8, 1983.
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a~c
duplicAtion of
not properly
e~fort ~as
S:~T~~X~T
c:sco~~tec.
OF TEE CASE
J<:RISDICTION
The Trial
t~is
Cour~ ~ac jurisc~ctio~ o~
case
t~e ~al~
Court) pursuant to the provisions of 42 U.S.C.
r.s.c.
1:83, and 1988, 28
to the
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k~e~~~ent
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and 42 U.S.C. S 1988.
a~ard
Un~ted
5 1343(3) and (4),
States Constitution.
of attorneys' fees corne.· to
?~OCEEDI~GS
AND
DIS?OSI!IO~
The original
a~d
s~it "AS
I~
t~e
.Court
§§
the
(E3-11~c i~
1791,
Fi:tee~tt
Th:s a?pea1
:rc~ a~
42 U.S.C.
~n6er
1~73,
5':973L\~)
COURT BELOW
filed on April 1, 1976,
a~d
cert::ie= as
a class action under Rule 23Cb) (2), F.R.C.P. on June 1, .1977.
s~it
was brought on behalf of all Black and
ze~.
in the City of
tion
syste~
L~~~ock,
~exican-American citi~
Texas, to challenge the
used to select the
~~yor
The
at-lar~e
and City Council.
This
elec-
a~peal
repre.ents the .ecotid appearance of the case before the Fifth
Circuit.
After the first trial the District Court
on the merit. and
.~tered judgme~t
o~ Lubboc~,!1-!!.
1979.
dis~issed
the action
in favor of the Defendants
~ity
Appeal was perfected by Plaintiffs on July 6,
The Fifth Circuit, without ruling
~n
the merits, issued an
Opinion, withdrew'it, and then rever.ed and remanded for "reconsideration in light o! the U.S. Supreme Court's intervening decision
in City
o~
Mobile v. Bolden, 446 U.S.
5~(19EO),"
and with instruc-
t:ona to "give appropriate consideration to the teachings ccntained
in Rocers v. Lodge, 102 S.Ct. 3277 (1982)."
F.2d 504 (5th Cir. 1982).
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Jones v. Lubbock, 682
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On June 29, 1982, Congress amended
Rig~ts ;'c~
mer.t
~as
of 1955, 42. U.S.C. SS 1973
not
Sec~io~
!1~.
in the Fifth Circuit
~entionee
and
2 c:
~~e
o~i~~
~lt~o~~~ t~e a~e~~­
rE~.a~d, ?lai~ti::s ~e:;
allOwed to ar..end their
co~plaint
Section 2 violations.
The District Court apparently
incorpcra~e a_2e~atio~s
co~cluded ~~a~
the "recor.sideration" should taKe the form of a second
cc~p_ete
al on the merits.
The second trial
lasted four days.
To avoid duplication, the er.tire record from
beg~~
on
0:
Ja~uary
10, 1963,
tri-
a~c
the first trial was introduced by stipulation for consideration
along
~ith n.~ e~idence
at the second trial.
and stipulations admitted for the first
In a Memorandum Opinion cated
}:arc~
<,
ti~e
19~:,
the Trial Court reversed the position taken in the first trial,
held that the at-large system violated Section 2 of the Voting
Rights Act and the Fifteenth
kmen~ent
tered judqment against the Defendants.
the Trial
Cou~t
to the Constitution, and enAs a part of the
imposed a new election system
single-member districts with a
~~yor
~hich
jud~ent,
established six
elected at-large.
Defendants perfected their appeal from the judgment of the
Trial Court on April 1, 1983.
no arguments had been
garding an
a~ard
At the time the appeal was perfected,
pr~sented
and no decisior. had been made re-
of attorneys' fees to the Plaintiff-Appellees.
Rather than interfere with the appellate schedule for the main
case or force a hurried decision on the award, the Trial Court entered an Order of Bifurcation on April r, 1983, separating the attorneys' fee issue
ne~
fro~
ease as CA-5-76-34A.
tered by
th~
the rest of .the case
Judgment
a~arding
Trial Court on July 7,
this appeal from
t~at
1~83,
a~d ren~bering
attorneys' fees
~as
en-
and ;'?pellants perfected
judqment on July 18, 1983.
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the
OF FACTS
S:~TE~~NT
appeal arises
T~is
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~ecember,
c~ be~alf
IS78, and
of the
of a
C~~
::fth Circuit reversed and
Locce,
Mo~ile
U.S.
ri~hts
~fter
(The City of
t::fs perfected their' a;;eal.
in light of
1579.
:a~uary,
Oefenca~ts
vo~ing
K~t~out
ruling en
the case for
re~anded
::=S~ ~r:ec
juc~,e~t ~as e~~ered
L~bbock.
et alj. P ain~~e ~e=i~s.
tte
reco~sicera~ion
v. Belden, 446 U.S. :5 (1980) anc Rocers v.
, 102 S.Ct. 3277 {19B2}.
Prior to the second trial, Plaintiffs
t~eir
case
pleadings to incorporate
of the Voting Rights Act.
t~e
1982
Follo~ing
~ere
allowed to amenc
~~en~~e~ts' ~o Sec~ion
the second
~rial
2
on the
merits, the Trial Court reversed the prior decision and entered
j~a~ent
lantS
for Plaintiffs on
?erfec~ed
On the same
~~rch
4, 1983.
The Defendants-Appel-
their a;peal frcm that judgment on April 1. 19B.3.
da~e,
b~
stipulation and aqreement, the Trial court
entered an Order of Bifurcation which separated the issues .re~a~cing
p. l}
attorneys' fees from the main voting rights ease.
The parties,did not
~ant
{R.I.
to delay the appeal of the main
ease while the evidence was developed and arguments presented to
t~e
Trial Court on atto=-neys' fees.
The bifurcation was neces-
sary to allow the main cas. to enter the appellate process while
the attorneys'
fee,~r9u=.ent
was being developed before Judge
~~odward.
Although requested by =oth parties: the Trial court refused
to
anc
allo~
any oral
re~uireQ
the
heari~9
on attorneys' fees.
Oefencant~-Appellants to
requests by written brief.
responc to Plaintiffs
(R.II, 68 (16-l7)]
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[R.II, p. 6B(3}]
EVidence
rega~din9
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ho~=s
s?ent on the case and
t;ZZc
~as
all
t~e
_eonsideration of the affidavits,
:rial court
a~a=ded
of the
affidavit (R.I,
cf
co~nse: :~=
~p.
;-;c;
for cross-examination of the affiants.
por~~~~ty
Fol:o~i~g
s~~~~tted ~y
q~alifications
e~tered
judgr.,ent for
attorneys' fees in specific
ei~ht
?_a~n­
,:~~~ ~o
[~_I:,~.
c?-
68(_))
stipulati:~s a~c
~rie:s,
Plaint~ffs-Arpe:lees and
indivic~al ~~ou~~s
attorneys who had represented the
each
to
Plai~~i::s.
(R.I,
The Judgment was accompanied by a Memorand~~ Opinion and
p. 63)
Order setting out· the Court's method of arriving at the final
~~c~r.tS a~arqed
ora~d~~
fr~
(R.I, pp.
5~-6~),
were dated July 6, 1983.
and
~th
the
Juc~er.t
and
Me~­
Appellants perfectec this appeal
the Judgment on July 18, 1983.
The
a~ard
for attotneys' fees
totaled $186,961.75.
SU~~~ARY
OF ARGUMENT
It is apparent that if Appellees prevail on ap?eal in the
main case now· before this Court al Cause No. 83-1196, an award of
attorneys' fees in
~ome ~~ount
will be inevitable ur.=er the pro-
visions of 42 U.S.C. S 19i3l(e) and/or S 19S8 and existing case
law.
It is equally obvious that Appellees are not entitled to any
attorneys' fees under
appeal.
th~
law if the City of Lubbock prevails on
aecause of the statutory link between the two appeals,
it is necessary
t~
combine the two portions of the case back in-
to one so that the results of the main appeal can
rectly to the issue of attorneys' fees.
~
applied di-
In order tc present ar-
qu:..ents on the·-issue of the amount of attorneys' fees, if awarded,
~P?ellants
a'sume for purposes of argument only that Appellees
will prevail in the main case.
No waiver of any
ar;~ment
against
the pa~~ent of attorneys' fees in the· event Appella:.ts prevaii on
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the
~~in
ject
case is intended,
such payment under
~~
a~d A;?ella~ts
would S?cc:::cally
t~ose circ~~stances.
First, Appellees were net the prevailing
trial on any issue before the
res~lted fro~
Court.
to
Co~rt,
par~ie5 a~
and the reversal
C~
the f:rs:
a??eal
intervening actions by the United States Supreme
Also, subsequent to the reversal, Appellees
a~end
c~­
their pleadings before the second trial to
~e=e allo~ec
i~ccr?orate
amendments to Section 2 of the Votihg 'Rights Act which were made
by Consress while the cas. was on appeal.
:he Trial Court's
erroneo~s
interpretation
o~
the amended
Section 2, together with the introcuction of limited additional
evidence, created the victory for the Appellees at the second trial, not anything done at the first trial or on appeal.
Court
chL~sed
The Trial'
positions because of the apparent change in the
statutory test' to be applied, not becaus. the original decision
was h.ld to be incorrect under the original standard used at the
first trial.
~ppellants'
second
arg~~ent
deals with the application of
the standards and the number of hours credited and paid by the
Trial Court.
Appellees
~ere
represented at various stases of the
two trials by as many as eight attorneys" When new attorneys
were added to the list, none of the others dropped out.
If the
trial fee requested by Appellees had been allowed by the Trial
Court, each day of trial
56,000 or more.
two trials.
wo~ld
have
Fifteen and one
acc~ued
ha~f
attorneys fees of
days were necessary for the
There was nothing so complicated about the case that
six attorneys were required in the courtroom at one
- 7 -
ti~e duri~g
trial.
~he
T~e
':ria:' Court e:>:p=essEc concern
duplication of
hood
o~
~hat
on that basis.
and the fees
appeal.
fees
e~fort a~d
Hc~eve=, t~e
a~arded
=educec the fEES
reduction
a=e too high, even if
aroc the
a~a=d
a~arce~
5C~E-
~a5 ~c~ sU:::C:E~t
appe:2.a;.~s
The standard applied i:. determining thE
~as i~correct,
1:.:":E1:-
a:::::~: ~;:e
of $186,961.75
0:
a~c~r.:
:5
ar.
C~
pre":a:.:
~~e
aZ~5e
of
discretion.
THE TRIAL COURT ~~OSED HIS DISCRE~ION
IN AWARD:~G EXC~SSIVE AND O~~ARRA~T£D
" AT'I'O:="'~Y S FEES TO PLkWTIFFS
I
I.
Appellees Were Not ~he Prevailing Parties a~ All Stages of
of the Case Below.
Plaintiffs-Appellees in this suit ask for an
~eys'
To
a~ard o~
attor-
fees under either 42 U.S.C. S 1973i(e) or 42 U.S.C. S 1988.
~ualify
for an aware, a party must have
"pre~ailed
on
a~
im-
portant mAtte~ in the caus~ of litigation, even [though] he ultimately does not prevail on all issues.-
Panior v. Iben-ille
?a=ish School Sd, 543 :.2d 1117, 1119 n. 2 (5th Cir. 1976)
ing the legislative history of 42 U.S.C. S
1973~(e».
(~uot­
"T~e
prop-
er focus is whether the plaintiff has been successful on the
central issue. • .as exhibitec by the fact that he has ac;uirec the
primary relief sought."
Iranian Students Ass'n v. Edwards, 604
F.2d 352, 353 (5th Cir. 1979).
It is "clear that if the plaintiffs-had ulti~ately lost
on the merits that their three ex~~ples of procedural
success ~ould not entitle them to an award of attorneys'
fees • • • ". In order to recover 'attorneys' ~ees and c:csts,
plaintiffs must s~ow at least some success on the me=its.
Blv v. McLeod, 60S F.2d 134, 137 (4th Cir. 1979).
If Appellees are ultimately unsuccessful
- 8 -
o~
the main case,
I
I
I
I·
I
I
I
I
I
I
I
I
I
I
I
I
I
are :,ot entitled to an Ci",oa:d
~he:::
As
~or
p:evio~!ly
indicated.
o~
A?pe11a,-~s'
consideration only in the
eve~t
a~torneys'
:e:s
:~
arguments he:: a:e
that Appel_ees
c.:,::,
c.:::o·':~~.
~:e::~te=
CO ?:e~ai: O~
appeal in Cause No. 83-1196 before this court.
In this case. Appellees ask
ce?tion of the suit in 1977.
~o:k
done by counsel in
~or
Consequently. they ask fo: fees
eonnectio~
s~ow
that
~o:
with the first t:ial anc :i:st
appeal of the case, as well as the second trial.
respectfully
t~: i~-
attorneys' fee: f:c:::
~ppellants wo~ld
appellees did not prevail on any
:::atter raised by their pleadings ;:ior to their
i~p::tant
~~ended co~;:aint
filed after tre case was remanded by the Fifth Circuit.
If, as in this case, there is initially a genuine
dispute as to whether the plaintiff fee claimant is a
·prevailing party,· inquiry on that question ~i9~t well
proceed first. This inquiry is properly a prasmatic
one o~ both fact and law that ~ill ordinarily range
outside' the merits of the basic controversy. Its initial focua misht well be on establishing the precise
factual/legal condition that tha fee claimant has
sought to change or alfect so as to gain a benefit or
be relieved of a burden.
With this condition taken as
a bene~~rk, inquiry may then turn to whether as a
~uite practical matter the o~tcome, in whatever form
it is realized, is one to which the plaintiff fee
claimant's efforts contributed in a significant way,
an~ which does involve an actual conferral of benefit
or r~lief from burden when measured against the benchmark condition. Bonnes v. Long, 599 F.2d 1316, 1319
(4th Cir. 197-9).
A.
~
Appellees filed this suit in 1977, before the 1982 amenement
to Sectio~. 2 of the Voting Rights Act, ~2 U.S.C. S 1973.
Tr.e
"precise factual/legal condition" sought to be changed invol,ec
alleged
viola~ions
of Section 2, as then in effect, and of
t~e
Fourteent~ ·and Fifteenth A~endments to the U.S. Constitution re-
sulting from the origination and
~aintenance
- 9 -
of the·at-large
I
sys~e~
0:
electing the City
conclusion c: the first trial,
jue~ent a~a~~st
s~=~it
t~e
a
en~ered
that the
~~e
t~at ~~e
the plaintiffs.
:rc~
the
Co~rt,
as
correct under the
la~ :~
ex-
le~al s~ar.:~=c
~as
~~
~a~e-~c~~:~=
plaintif!s or. all issues and orcered
reflected in the first opin:on,
istence at
Court
~~e
eefendants recover their costs
Ke
in Lubbock, Texas.
Cou~cil
time of the.opinion.
a?plied
While the
by
o?in:c~
did
no~
explicitly recognize that the plaintiffs hac to prove discriminatory intent in order to
nevertheless,
th~
pre~ail
on their constitutional claims,
Court speci!icallr found that
t~e
;laintiffs
hac failed to prove any discriminatory intent in either the inception or
~~1ntenance
of Lubbock's election system.
Citv of Lubbock, 682 F.2d 504 (5th Cir. 1982).
addition,
Jones v.
(Jones I).
In
tne Ccurt cited :,evett v. Sides, 571 F.2d 209 (5th
Cir. 1978), cert. denied 446 U.S. 951 (1980), in the original
opinion
cuit's
.ho~~n9
that the Trial Court wa. aware of the Fifth Cir-
re~uir~ent
of actual
discr~~inatory
a Violation of the Fourteenth and Fifteenth
Nevett
intent to establisr.
Amen~~ents.
Since
wa. decided and published prior to the first trial in
this case,
t~e
appellees'.hould have been
a~are
menta and adjusted their proo: accordingly.
of the
re~uire­
They did not •
. The Trial Court al.o made a thorough and correct application
of the stancarcs taken
and
Zi~~er
fro~
Knite v. Re,ester, 412 U.S. 755
v. McReithen, 465 :.2d
1~97
(5th Cir. 1973), aff'd
other ~rouncs sub.' nom Ea.t Carroll 'Parish School
424 U.S. 636'(1976).
amen~ent
The.e·~ere ~he
to Section 2 of the
Votin~
- 10 -
(1~i3)
Be:
c~
v. Marshall,
standard. which the 1982
Right. Act wa. intended tc
I
cc;if~'.
t~at
or
Appl~~ng
t~e White/Zi~~er
sta~carc,
".' • . There is no barrier to the :ino:ity
ot~erwise
in the election
I
I
I
I
I
~rou?s ~~ vo:i~~
fincin~
of past ciscri:ination precluces minorities
In
Cour~ c:~cl~oec
participating in the election process, . . .
there is no real aroc valid support for a
I
I
I
I
I
I
the
s~~ary,
syste~.-
that
[a~cJ
t~: e~~ec~
frc~ ?artic:~atic~
Jones I at 36.
after a full ane fair opportunity to
?rese~t
their allegations and evidence in support thereof, the appellees
did net prevail on any
trial.
import~nt
matter litigated at the first .
Furthermore, appellees' counsel failed to offer any evi-
6ence to show discriminatory intent, although the first trial was
after the Fifth Circuit decided Nevett v. Side., supra.
B.
APPEAL
~??ellee~'
mente
counsel die perfect an appeal
However~
tha~
or. in any manner unlawful.
the Trial Court
ha~
the first
jud~­
appeal did not result in a ruling by the
Lubboc~'s
Fifth Circuit that
fro~
election system was unconstitutional
~or
di6 it result in any
applied an erroneous standard.
rul~nq
that
Ratter, the
reversal and remand was for -reconsideration in light of the
Su?r~.e
Court's intervening decision in City of Mobile v. Bolden,
• . • land) to give appropriate consideration to the teachings contained in Rogers v. Lodge.-
Jones v. Lubbock, 682 F.2d 504 (5th
Cir. 1982).
Eolden and Rocers made it clear that discriminatorr intent
is
re~uired
a?pro~ed
to. establish a
the Fifth
constitu~ion.l
Circuit~.
violation,·and Rocers
decision in Nevett v. Sicel.
case was cecided under Section 2 of the yoting Rights Act,
- 11 -
~either
an~
the
I
I
Fifth Circuit
~ace
absolutely
~c ~e~tion
to Section 2 when it remanded
Plair.ti~fs'
cuit al to
r£~a~d,
be~or.
case to the
t~~s
counlel did not oztain a
w~ether
although
the 1982
the Fifth Circuit issued its
we~e
the Fi!tr.
Ci~-
required a re',ersal a:ld
been
the'arnen~~ent ~ad
a~e~c~e~~
t~ial =c~r~.
ruli~g fro~
l:.,e~~"'lIent
In short, the plaintiCfs
of the _952
e~acteQ
and
~as
e::ective
~~ndate.
not "prevailing Farties"
,
.
~ith
respect to any "important matter" at the time this case was remanded by the Fifth Circuit.
Plaintiffs obtained nc
Lubbock'i election system wal
a~:thing
cause the Court's second
jUd~I.~t
other
findi~g
that
than.legitirna~e.
~e-
appears to be based entirely on
the effect of the 1982 amendment to Section 2 of the Voting Rights
Act, a ground which was not specifically asserted for relief by
the plaintiffs until after the case was
r~~nded.
the Fifth
Cir~
'cuit's decision in Jones I effectively closed the "course of litigation" begun' by the plaintiffs in 1977.
. Xe.ping in
Denc~"'lIark,
min~
the "precise factual/legal condition" as a
it can be readily seen that the "plaintiff fee claL"'lI-
ant[s'] efforts" did not contribute in any "significant way" so
as to involve an "actual'conferral of benefit or relief from burden when measured against the benchmark condition" in either the
first trial or the initial appeal of this ea.e.
See Bonnes v.
Lons, sUrra; Sly v. McLeod" 605 F. 2d ,13~'-139 (4th Cir. 19i9).
Furthermore, the United States Supreme Court, in the recent
case of Rende); v.' Eckerhart, _ _U:S' _ _ ' 103 S.Ct: 1933 (19B3),
held that "Tne extent of a
plai~tiff's
success i. a crucial factor
in dete-~ining the proper amount of an a~ard of attorney'a feel
- 12 -
u~der
42 C.S.C. S lsae."
T~e
Court
~e~t
en
:0 5a~ :~ac ~~il~ _~
rr,ey be • -.:.seful sterting point,
[if) . • • a pla~ntiff has achieved only ?ertial cr li~ic­
ed success, tte ?rc~uct of hours reaso~a~l~ ex~ent~t
On the litigaticn as a ~hole times a r~a50~a=_~ ~o~rly
rate may be an excessive amount. . . That :~e ;la~n­
tiff is [ulti~at~lv) a "prevailing ~art~" :~~=~~o=e
may say'little abo~t ~hether the expencltur~ 0: eo~n­
lel's time ~al r.asona~le in relation to t~e s~eeess
achievea..
A reduced fee a~ard is a~=re=ria:e if
the relief, ho~ever significant, is limitec' in corn?arison to the scope of the liti9~t~on as a whole. Id at
1941-1943.
"!T]he court
t~at
resulted in
~-.:.st
consider the relationship of the claims
j-.:.:~,ent ~ith
the claims
t~at
were rejeCted and
the contribution, if any, made to success by the investigaticn
and prosecution of the entire ease."
Jones v. Diamond, 636 F.2d
1364, 1382 (5th Cir. 1981).
Moreover,
eve~
if the Fifth Circuit's decision did not e:fect
a break in the' "course" of this litigation, plaintiffs' counsel
shoul4 not be awarde4 a fee for the first round.
co~nsel,
Plaintiffs'
though aware that the Fifth Circuit held in Nevett v.
Sides that a
sho~i~g
of discriminatory intent is required to es-
tablish a violation of the constitution, did not offer "any evidence" of 'discriminatorr intent at the first trial.
Nor did they
obtain a ruling, from either the trial court or the Fifth Circuit,
that Lubbock's
.le~tion
system violat.s either the constitution
or the Voting Rights Act.
Finally,
pla~ntiffs'
counsel did not
-.:.rge the 1982 amendment to Section 2' of' the Voting Rights Act as
a basis for reyersing and
the Fifth
r~~andin9' this
C~rcuit!s ~ s~onte
the mandate
reversin~
case.
Indeed, it was
motion for rehearing the produced
and remanding the ease.
- 13 -
In short,
plai~tiffs'
I
I
I
I
I
I
I
I
I
I
I
co~nsel ~i~ ~ot
·~:"Jtil ~!ter
the
ful!ill their role as "private
c~se
"'·as
fore, they should not be
re:nande~,
i~
they die
a~arded ~ttcrney
for:r.ed pri.or to the remand.
a~tc=~ey se~e=a_"
~he:-.,
fees :or
a.. e -::-.ere-
a~y ~c=~
?e=-
See Panior v. I::'e=·:ille Parish Schc::>l
:50, 543 :.2d 1117 (5th Cir. 1976).
II.
The Trial Court ~rred in
Fee Awards
A?plyi~g
the
S~a~carcs Gover~in~
~ttorney
In determining the amount of Any fee to be awarded in th±s
litigation, the Court obviously must consider the
set forth in Johnson v. Georqia
71' (5th Cir. 1974).
sidered as
~ell.
Hich~ay Ex~ress,
t~elve
!~c.,
factors
:.2d
~6B
However, there are other !actors to be
co~-
While the purpose of providir.g AdequAte fees in
civil rights cas.s is to attract competent
cou~sel
might not otherwise be properly represented, it
pose of Congress to provide ',dndfalls to
civil rights litigation.
~as
attor~eys
Hensley v. Eckerhart,
for those who
not the purinvolved in
U.S.
, 103
S.Ct. 1933 (1983): Senate Report No. 94-1011, p. 6 (1976).
A useful starting point for determining
amount of a rea-
t~e
sonable fee is the nurr,ber of hours reasonably expended on the
litigation; multiplied by a reasonable hourly rate.
However, the
Supreme COwrt, in elucidating some of the Johnson factors, explicitly listed several circumstances in which it would be appropriate to
~educe
the recovery below this
initi~l
which are wexcessive, redundant, or otherwise
be excluded from a fee request.
1~'0.
Hensley v.
Duplication of efforts should be
Johnson v. Georsia Hich""av
Ex~ress,
Hours
~nnecessary"
Ec~erhart,
should
at 1939-
closel~ scr~tinized.
Inc.,
- 14 -
amount.
su~ra
at 717.
"Cases
I
I
-
be
I:".:y
a"c -:1:e skill A:lC ey.?E::::'e:-.ce c: la',::.:e::s ':a::::'es
overst~::ed,
...· ::.cely...
Bentley,
_939.
su~ra ~t
T~e
cist::ico:;
:-.as c::'sc::e-
C::;'';::O:;
t::'O:l in determining the a."lloc:;t of a :ee a,,;arc. a:-.:: -::-.e::e is ":l0
::recise ruJ.e or fOIT.lula fer
trial
cour~
::-.a~i:l£ ~~ese
must still c:o:;e=::-.i:lE
0: £aeh case,
a~c
";~o:~ct
the
a:le rate does not end
-:~e
t~e
c!
ceter:ni:-.a dO:ls. "
a~OU:lt
of
t~e
fee on
reaso~able ho~rs ~~~e5
in~~iry."
T:Je
O:;~E
:acts
a =Eascn-
Henslev at 1940.
From the hppellantl' perspective in the case now before the
C?urt, the word "reasonable" is the key.
~:
reasonable in relatic:l to the
?erformed.
~~OU:lt
The
nu~~er
of hours :nest
a:lc diff::'culty of
o:;~e
work
Appellees have the burden of proof ir. all areas of
their claim.
Appellants submit that the proof is deficient, and
the claims and award are excessive in several res?ects.
An appli-
catio:l of the Johnson factors to the facts of this case reveals
that the fee award is fAr out of line with the reasonableness
standard required by
::~ticular Jor~son
st&tu~e
and appellate decisions.
While no
factcr should be stressed to the exclusion of
c-:hers, Appellants wish to highlight certain specific areas for
the court.
Leaving aside for
-:~e r.o~ent
consideration of the number of
hours claimed, determinAtion of the appropriate hourly and/or
daily trial· rate to be applied involves several important considerations.
Among these are the customary fee for similar work in
t~e co~~unity
and the experience, reputation and ability of the
attorneys involved.
From the beginni:l£ Appellants would point oct to the Court
t~at
the Appellees
the~selves·orisin.lly requested
- 15 -
$80 per hour
I
I
fo~ ?~eparation ~~d
fig~~e
$750 per day
from beginning to end.
t~ial
The
fee
a~~e~ ~~e ::=~~ ~=:a~.
reques~ec
increa::s
~=o~
to 5125 per hour and from 5750 to $1,000 per trial c:y
an
:~crease
occ~~~ed
c~ease
in the first trial
after the first trial
even
ass~~ing
re~uest
~hich
of
~ome
that the lower fees
newly licensed and relatively inexperienced
the first trial.
du~:ng
_
~o~~:~~
an in-
~~ch
we~e justi~:ec.
With one exception the trial attorneys for the
ycu~S,
=e~ui~ i~
$49,EjO.
would justify
S6
By comparison cutside ccunsel fer
~P?ellees we~e
a~
~he
time of
~he ~?pellants
the first trial, although far more experience= than plain-
tiffs' counsel, charged an hourly rate of $60 for less experienced
co~~sel
and $75 per hour for counsel with almost
experience and recognize: skill in the
th:~ty
co~rtroom.
years of
~??ellants
would submit to the Court that in the 1977-1979 per:od, few, if
any, attorneys in LUbbock, Texas, were receiving more than $75 per
hou~,
~egard~ess
of experience, and beginning attorneys or those
with limited experience were receiving significantly less in private practice.
Likewise, $750 per day trial fee was uncommon at
that time for anyone.
The Trial court obviously recognized tne accuracy of Appellant.' contention. when he set an hourly rate of $75 and a trial
fee of $600 per day in the Judgment.
Moving forward to the present time, a fee of Sl25 per hour
and/or 51,000 per eay per attorney is
t~ial
and related activites.
un~easonable
In the present day
for
t~e
second
ma~~etplace
in
Lubbock, Texa., these are the types of fees commanded only by the
- 16 -
~os~
s~illed
and experienced
~rial at~orneys ~~e=e
-:·~:o
trial \,'ork is handled b1 c:-.e 0:'
Co~rt
recognized the
t~e a~ard ~elow
vali~ity o~
the levels
the
:00
many attorney.
A~pellees
Appellants'
reques~ed
Appellants' contenticns
~ere
at.t.or:1E ..: s.
were represented br
are
o~
~~e
't:-.e ::-:a:
pos~~~cn ~r
t~ofc_co
the Ap?ellees.
~ive
se:::n~
F~=St,
_~
t~ere
case
~~is
tria_ at:orneys at the
first trial and seven at the second trial.
trial by several
;'.~a::'1,
0:
by the Appellees.
c~ a~peal
re?resen~ing
a _
Participa~ion
in the
It is unfair to ask the taxpayers
the City cf Lubbock to pa:: Appellees $5, COO to '$7,0 0 per da: o
~as
minimal.
for trial fees, or even
$3,O~0
to $3,600 as awarded
b~
the Court.
There wa. no rational requisite benefit to the Appellees, and
they
~ere
overrepresented at trial.
recognized the propriety of
~aying
The Fifth Circuit has long
less to
la~~ers
.erve a. lead counsel at trial, even where only two
involved on the .ide of
t~e
plaintiff..
who did not
la~~ers
were
Neely v. Citv of Grenada,
62' :.2d 547, 551 n. 4 (5th Cir. 1980).
:here are three
distinc~
involved in this case.
Plaintiffs or groups of Plaintiffs
While the Trial Court found that the var-
ious Plaintiffs did not necessarily have exactly the same needs
or interests, the presentaticn of evidence and the strategy for
trying the case would not have varied .ignificantly from one to
the other.
In point of
fac~,
as a group for both trials.
should have
rate
~or
be~n
volve~ent
One lead counsel for each group
sufficient.
trial, regardless
the attorneys all worked together
o~
To pa¥ all seven attorneys the same
their participation and direct in-
goes against the principle. set forth in Neely v.
Grenac!a, supra.
- 17 -
factor to be cO:lsi:ere:: is the
.:'_"'lc~:'er
~::;s o~
perfor"IE: by thE attor:-.e:' rEQuesting the fee.
attorne~'
t~e
':::':1'<
;·:c:::-: Co:-,€ '::' a:-.
..-hich is not of a strictly" legal :1at-..:::e" ::Jo-..:lc not be
co~pe:'ls~te:
ing
"'·C::.",
at the
se~e
rate es time spent on acti-'itlE:S ::ecuir-
tra::'ninc; and' Ex:;ertise of an atto:.-ney.
:;::l :":e1" ": _ Ci to,
of Greni.ca, suora at 552, the Fifth Circuit ap;:royec t:-.E: :':':trict
court's
a~ard
of $30 per hour fer such work, even
fee and legal preparation
Much of the time
~.s
the trial
compensated at a higher rate.
s~br.,itted
in the affidavits of AFpe:lees'
attor:lE"s in this case i:'lvo1ves seerching of
deed records, and city council
have been done by a
t~ough
non-la~~er,
~inutes.
:'le~s~a;:€r
Most of this
re::rcs,
~ork ~ould
was generally unproductive in
terms of the litigation, and should be compenseted, if at ell, at
4
lower
r~te.
The information
~ctually
used at triel carne
ly from stipulations prepared by employees of the
of Lubbock from municipal records.
sub~itted
requests
~hich
included
le~ge­
defenda~t
City
The two out-of-town attorneys
is
hours of travel time.
In
spite of assurances from Appellees' counsel in the affidavits
filed, Appellants contend that there must have been at
some
le~st
unnecessary duplication of effort in the areas of research end
document preparation with all eight lawyers having to
same law ,nd cases.
~:;pellees
the
It is appropriate for the Court to discount
hours for duplication.
The
st~cy
Neely, supra at 552.
have made
~~ch
about the "undesi:.-ability" of
the cale and requested additio:'lal compensation for that reason.
In support of their position, Appellee. have submitted
new.paper editorials.
n~~erous
A careful reading of those editorials,
- 18 -
however,
~ill
show that they arc
,inc:ctive
~o~
;=cpe:
i~
ceal
~i~h ~isagree~ent
ever
ci~y
council.
~ot .~ake ?erso~al a~tacks C~
involved.
They do
t~e
The two attorneys
?ro~ote
rather than
tunities in future litigation.
7heir
da~age
~~o
a??eara~ce
their
others were
members at the Texas Tech law set-col.
wo~ld
~he
in
a~~c~~E:·S
~e
5;:-
:ase
~~is
e~~lo.~e~~ o:~cr­
~~l_-tirne ~a:~l~y
The ·undesirability" :actor
certainly not be a factor in their job
ties outsi:e their regu:ar
~:cC~l~g -~:
=rc~ o~~-of-tc~~ c:ai~ ~o
cialists in this type litigation.
would tenc to
0:
me~ho6
~a~~~e a~:
stat~s
or in ac:i,i-
e~?lc~~ent.
Only the four local private attorneys were potentially affected by any adverse publicity, and it is at least debatable
w~ether
they were hurt or helped in their private practice :y
Farticipa~ion
in this case.
Appellants would also point
o~t
to
the Court that-much of the publicity in this case resulted from
meetings and press conferences called by plaintiffs' attorneys
and from ?ress releases which they
~ostly
sub~itted.
It was a
sit~ation
of their own making.
Finally, Appellants feel that the nature of this case is
different from most of
past.
~he
others which have been litigated in
There was no fin:ing of present discrimination on the part
of any city officials or in the
tion
~he
syste~.
r.~intenance
of the present elec-
The Court specifically found a real responsiveness
on the part of the
cit~·
and its elected officials to the particu-
larized needs of the minority residents of
Lubboc~.
Under the cir-
cumstances, the attorne:'s' fees awarded by the Court should not be
increased in any way as a puniti,e measure against the City
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o~
Tr.e
~u:bock.
cl~;in~
in
pai~ents,
if any,
the r.ppellees themselves.
~~ount
come
~ust
anc scope in relation.t.ip
The
~ees
~o ~~e
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~=on
the
~ax~a~'er~,
sho~lc ~:
facts of
i--
reasc~abl:
~r.~s ~ase.
CO~CL:JSION
For :.he :'£&50:-.1
~or
s:.~:.ec,
t~e
t.ini~E':
Stl.:es Cou:-:
the Fifth Circuit I!".oulc. re\'erse t:-.e J;,,:Cc;T.:E:lt
then :,:"ay appear
~?r=opriate,
renee::- Juc;'::ient on
0:
~e;-,Q.l:
lantl, or re.:r.a:-.e fer further consi6era.:ion unc.er
;'.;:;:eal~
:'elo·~:.
t~e
a:'".::' as
c: ;'.;:;:;el-
;:=:.;:.er st.a:l-
cares of 1&",', ·.... i~h all costs tAxed &;a:'::st the Appellees.
JOHN C. ROSS. JR.
CITY ATTOR:.'E:Y
POlt O~fice Box 2000
Lubbock, Texas 75457
~~~
·~f\~Tii
~
BY·
CIVIL TRIAL ATTORNEY
(806) 762-6411. Ext. 2215
SH£LTO:, , JONES
Travis D. Shelton
T. DAle Jon••
18 01 Avenue 0
Lubbock, Tex.. 79401-4891
ATTOR.~YS
FOR DEFENDANT-Ai'?ELLANT5
Septemller 23. 1983
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0: SERVICE
CERTIFIC~T!
~~; ~n~ersi~~ed
foregc:~q
Attorne~'
the
Brie! for
hereby
cer~i~ies tha~
Appellar.~s ~ere
at Law, 8300 Douglas,
re~·.:est .anC:
as designated
copy each on the other counsel
servec upon
t=~e
co=:es c:
\\il::a~
L. Ga==ett,
;'.ppellees' attorneys, a:'lC C:'le t=ue
~or
Appellees, as herea:te=
by placing same in the United States Postal)Service,
and properly acdressed, on this the
n~«ec,
~ostace
1,ttorne'" at LAw
1006 '-3~h Street
Lubbock, Texas 79401
ALBERT PEREZ
Attorne}' at Law
1112 Texas Avenue
Lubbock, Texas 79401
LANE ARTHUR
MARJt BALL
Attorney at Law
121.6 Avenue K
S~ite 1506
Lubbock, Texas 79401
DANIEL H. BENSON
Attorney at Law
5416 16~h Place
Lubbock, Texas 79415
pre?aid
~~~ay of September, 1983.
,...!'.ES P. BREwSTER
OF COUNSEL
(806) 762-6411, Ext. 2215
TO!o1 GARZA
t~e
800, Dallas, Te>:as 75225, at
S·..li~e
b~'
th=ee
O'SHEA, HALL
Attorneys at Law
1402 Texas Avenue
Post Office Box 2187
Lubbock, Texas 79408
ROLANDO RIOS
Southwest Voter Registration
201 N. St. Mary's, Suite 501
San Antonio, Texas 78205
ROBERT P. DAVIDOW
Geo. Mason 'School of LAw
3401 N. Fai~fax Drive
Arlington, Virginia 22201
- 22 -
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SEP. 23 REel
THE UNITED STAT[S COURT OF APP[ALS
FOR THE FIFTH CIRCUIT
NO. 8}-1502
TH[ CITY OF LUBBOCK. T[XAS. and the
Mayor and CIty Council thereuf
BILL McALIST[R. ALAN H[NRY. JOAN BAK[R.
H. J. "BUO" AD[RTON and [. JACK BROWN.
all in their ufficial capacitiea as
Membera uf the City CounCIl of Lubbock. Texaa
Defendants-Appellants
VS.
R[V. ROY JONES. GONZALO GARZA. EUSEBIO MORAL[S.
and Intervenor. ROS[ WILSON. indIvidually and
aa Repreaentativea reapectively of the Black and
Mexican-American Votera of the City of Lubbock, Texas
Plaintlffa-Appellees
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION
HONORABLE HALBERT O. WOODWARD. JUDGE PRESIDING
EXCERPTS FROM RECORD IN LIEU OF APPENDIX
JAM~S P. BREWSTER
P.O. Box 2000
Lubbock. Texas 79457
(806) 762-6411, Ext. 2215
OF COUNSEL FOR APPELLANTS
September 2}. 198}
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EXCERPTS fROM RECORD IN LIEU Of APPENDIX
NO. 83-1502
CITY Of LUBBOCK, TEXAS, ET AL VS. REV. ROY JONES, [T AL
TABLE OF CONTENTS
1.
Docket Sheet (Supplementel since April 1, 1983)
2.
Proposed Pre-Trial Order (from case before bifurcation)
3.
Order of Bifurcation (dated April 1, 1983)
4.
Judgment (dated July 6, 1983)
5.
Memorandum Opinion end Order (deted July 6, 1983)
6.
Certificate of SerYi~e
II
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION
REV. ROY JONES, ET AL
Plaintiffs
V.
USDC NO. CA 5-76-34-h
FIFTH CIRCUIT NO. 83-1502
THE CITY OF LUBBOCK, ET AL
Defendants
CLERK'S CERTIFICATE
I, NANCY HALL DOHERTY, Clerk of the United States District
Court for the Northern District of Texas, Lubbock Division, do
hereby certify that the attached instruments numbered from one
'through sixty-eight are the originals and/or certified copies of
orig~nals
of all instruments filed and the docket sheet is a
certified copy of all docket entries in the above styled and
numbered cause.
GIVEN under my hand and seal of office at Lubbock, Texas,
this 9th day of August, 1983.
NANCY HALL DOHERTY, Clerk
./;
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~
D~put~
f
By: J<6&cOeJ
0034'04 10lTe3! 3
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DE FElWI.,ITS
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REV. ROY JONES, ET AL
CLOSED
APPEAL?-/f-t~
THE CITY OF LUEBOCY.
THE 11hYOR 1'.1,0 CITY CO I'CI_ OF
SAID CITY,
BILL McALISTER, Mayor
AL1'~ HENRY, JOAK BAKER,
M. J. "BUD" AOERTON and
E. JACK BRO,m, as members of
The City Council of the City of
Lubbock, Texas
Intervenor, ROSE NILSON
~tm
CAUSE
(Cln THE U.S. CIVIL STATUTE UNDER WHICH THE CASE
IS FILED AND WRITE A BRIEF STATEI·"ENT OF CAUSE I
C. Hall
• O. Box 2187
-ubbock, Texas
Defendants
John Ross
James P. Brewster
City Attorneys
P. O. Box 2000
Lubbock, Texas 79457
ATTORNEVS
William L. Garrett
300 Douglas, Suite 800
allas, TX 75225
214-369-1942'or 987-9797
.rk~
Dale Jones
Travis O. Shelton
:__.:i."_;"=~;:ltI801 Avenue 0
Lubbock, Texas 79401
79408
C,:,n:.;...::.:. ·,.,.~i":·
lbert Perez
112 Texas Avenue
ubbock, Texas 79401
C!l:: ....•. :·~.
Tomas Garza
006 13th Street
bbock, Texas 79401
'.
;0:".. ". _.'
.
..•. .:.'~:.t"l~:
c-~~: :.,:.. ,/2 •.. ,•.: ,,:.'~~.::..Intervenor, Rose
il¥.~",c:9'I J
l)"p..~' Lane Arthur
,
!2zd2d< . .
of. Daniel H. Benson-hool of Law
exas Tech University
bbock, Texas 79409
.
Wl1son
ARTHUR' ARTHUR
1216 Avenue K
Lubbock, Texas 79401
Robert P. Davidow
School of Law
George Mason University
3401 North Fairfax Drive
Arlington, Virginia 22201
olando Rios
OUTHWEST VOTER~REGISTRATION
501
FILING FEES PAID
~~~::;;;,;~_--!
--:R::.:E;.::C;:;,EI:.:;,P.:.T.::,NU::::'.::.:.,B:,:E:,:;:R
STATISTICAL CARDS
-l
c:;;.,:;:o;,.;.N;.:;'U:;;M:::B:;ER;;..~
r--.!-+.:'",~,--"",,--;~-531l.6.J-l.sJ.D-D OL..ApD~p.ee.aa..11~F:.Ee~e!---=--=-------l
~ 53086 ($70.00
Cross APpeal Fee
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CARD
JS-S
010 TE 1.'IoILEO
I J5-6'-------I
.....
/
'AOCf [Olt"CS
Filed ORDER OF IHFURCATIO:-l; ordcri:lg that all : sS:Jcs :~l t.:l':. case
concerning attorneys' fees to be awarded. if any. a=c
bifurcated and separated from all other issues a:le suc.
attorneys' -fees issue shall be litigated and tried unac=
Civil Action No. CA 5-76-34A. Therefore, the cou=t s j.:dc:ne.. t
of 3/4/8~ is the final judgment of this case on all issues ane
constitutes the final judgment for the purposes of any aooeal
that any party might perfect; copies to attorneys han~ ee:i eree
to attorneys by Nancy Koenig; Law Clerk, in Judge wood~a=e's
cha.'llber.s •.
0
12/83
.3
/14/83 ~
Filed AFFIDAVIT OF LhNE ARTHUR ON EXPENSES; cert. of servo
Filed PLAINTFFS AND PLAINTIFF-INTERVENOR ATTOR!,EYS 0 TH:E CHART;
cert. of servo
Filed AFFIDAVIT OF ~TTORNEYS FEES (Attorney E. Warren Goss)
Filed AFFIDAVIT OF Daniel H. Benson w/ attached copies of newspaper
stories and editorials
Filed AFFIDAVIT ON THE TI}~ EXPENDED BY CITY by Pltf-Intervenor
Atty Lane Arthur
Filed
DE~~ANTS'
ATTOro~'S
BRIEF IN OPPOSITION TO THE AW~P~I~G OF
fOR PLAIh7IFFS; cere. of servo
ATTO~;EYSo
FEES TO
7/83
Filed ~~MO~,DUM OPINION AND ORDER: copies to counsel
Filed JUDG~~NT ordering that the plaintffs and intervenors recover
attorneys' fees against the defts in the amount of $186,961.75
and such .Attorneys' fees are here assessed as costs against
the eefts; copies to counsel (signed by Judge wood~3rd 7/6/83)
(Dktid 6/7/83)
18/8 "
Filed Llefts' NO':'ICE OF APPEAL
Mailed certified copy to Fi~th' Circuit w/ certified copy of docket
sheet and transmittal letter; copy of letter and Notice 0: ~?peal
to attorneys of record
7/83 ~'Filed Pltfs' , Intervenor's NOTICE OF CROSS APPEAL; cert. of servo
r:ailed certified copy to Fifth Circuit w/ certified copy of docket
sheet and trans~ittal letter; copy of letter and Notice of Cross
Appeal to attor~eys of record
/9/83 (. ~
Filed REPORTER'S TRANSCRIPT OF PROCEEDINGS(June 1, 1983)- 1 Vol.
Mailed original record on appeal to Fifth Circuit (1 Vol w/ 1 Vol
of Transcript)-w/ transmittal letter, Clerk's Certificate and
certified copy of docket sheet; copy of letter, certificate and
docket sheet to attorneys
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION
REV. ROY ,,70NES, ET AL
VS.
CITY OF LUBBOCK, TEXAS
sS·
S
S
S
CIVIL ACTION
~O.
5-76-34
PROPOSED PRE-TRIAL ORDER
Following personal conferences by and between counsel for
the parties in the aboye entitled and nUQbered cause, the following-Proposed Pre-trial Order is submitted by the Farties and has
been jointly prepared by counsel for the parties.
1.
The basi. for jurisdiction is:
1344, 2201 and 2202, and
4~
28 U.S.C. §5l33l, 1343,
U.S.C. §§197l(d) and 1973j"(f).
There are no jurisdictional questions pending.
2.
There are no pending motion••
3.
The following claims, counterclaims, third party claims,
cross claims, defenses, etc. have been filed:
a.
By the Plaintiffs and Plaintiff-Intervenors:
(1)
Plaintiffs and Intervenors allege in their
complaint that the at-large/by-place (with
majority rule and staggered terms requirements)
method of elections used by Defendants results
in a denial or abridgement of the right of Plaintiffs and Intervenors to vote on account of race
or language minority statuI
a.
set forth in
Section 4(f)(2) of the Voting Rightl Act of 1965,
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as amended, and as a result, B_ack and'Mexican-American citizens have less opportunity
than
~~ites
to participate in the po_itical
process and to elect candidates of their
choice, all in violation of the rights of
Plaintiffs secured by Section 2 of the 'Voting
Rightl Act of 1965, as amended, Pub. L. No.
9~-205,
(2)
96 stat. 134 (1982).
Plaintiffs and intervenors further allege in
their complaint that the at-large/by-place
(with majority rule and staggered terms
quir~mentl)
r~­
method of elections has been
adopted and maintained by Defendants for the
discriminatory purpose of diluting,
and
ca~celling
minimiz~ng,
out Black and Mexican-American
votina strength in violation of the rights of
1laintiffs secured by the Fourteenth and Fifteenth Amendments to the United States Constitution and 42 U.S.C. 11983.
b.
By the Defendants:
(1)
Defendant. deny that the present election
scheme and ordinance. of the City of Lubbock,
Texa., cause an. unconstitutional dilution,
cancellation, or minimization of force, effect, and voting strength of Plaintiff. and
the ctasses represented by Plaintiffs, (the
Black population of the City of Lubbock,
Texa., and the Mexican-American population
of the City of Lubbock, Texas}. or of the
Plaintiff-Intervenor and the class represented by the Plaintiff-Intervenor (the
!lack population of the City of Lubbock.
Texas).
(2)
Defendants deny that the election system of
the City of Lubbock, Texas, violates the XIV
and/or XV Amendments to the Constitution of
the United States, and the Defendants further
deny that the eleetion system violates Section 2 of the Voting Rights Aet as amended.
(3)
Defendants further deny that Plaintiffs,
Plain~
tiff-Intervenor, lnd the elasses represented
by them respectively as set forth above are
denied membership on the City Couneil or the
opportunity to participate effectively in the
political process that leads to the election
to the City Council by reason of the election
system of the City of Lubbock, Texas.
(4)
Defendants deny that by reason of the election
system of the City of Lubbock, the Plaintiff.,
Plaintiff-Intervenor, and the cla.ses they
represent respectively, are deprived of .eat.
on the City Council in proportion to their
voting potential and deny that their votina
potential i. uncon.titutionally diluted or
cancelled by the present election .chem..
Defendants deny that the present at-large
election system uneonstitutionally prevents
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Plaintiffs, Plaintiff-Intervenor. and the
classes they represent respectively. from
ever electing any member of their minority
groups (Black persons and
Xexic2n-;~erican
persons) to the Lubbock City Council, and
deny that there is a requirement of obtaining a majority of the
~~ite
votes of the
population of the City of Lubbock in order
to·be elected to
~he
membership on the City
Council.
(5)
Defendants deny that the representation afforded the Plaintiffs, Plaintiff-Intervenor,
and ~he ·classe. they represent respectively,
by member. of the. Lubbock City Council is consti~utionally
inadequate.
Defendants deny,
that such representation has ever been con.titutionally inadequate, and deny that
~epresentation will
~uch
be constitutionally inade-
quate ,t any time in the future as a result
of the present election scheme.
(~)
.Deftndants further deny that the present election scheme 1. arbitrary and capricious and
deny that such scheme completely shuts out
Blacks and
Mexi~an-Americans
from having a
role in the governing body under which they
live in
(7)
~ubbock,
Texas.
Defendants deny that the right to vote is rendered meaningless for all practical purposes by
,
the election scheme now in effect.
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Defendants
further deny that Plaintiff. Pla:ntiff-Intervenor, and the classes they re?resent res?ectively have no remedy other than this court
to correct any lack of representation on the
City Council of Lubbock, Texas.
assumi~g
for
the sake of argument only that such lack of
repreientatlon exists, which assumption Defendant. specifically deny.
(8)
Defendant. deny that the voting system now
in effect in. the City of Lubbock., Texas.
cau.es any seographic area in which Blacks
or Mexican-American. live in the City of
Lubbock, Texas, and deny that the existenceof any segresated geographic area in the
City of Lubbock prevents residents of such
area. from movins to other areas of
th~
City
.of Lubbock.
(9)
Defendants deny that Black. and MexicanAmericans have, as a result of the voting
system now in effect in the City of Lupbock,
suffered from the results and effects of
invidious discrimination and treatment in the
fields of education, employment, health, politics, economics, and other similar areas
of life in the City of Lubbock, Texas.
(10) Defendants further deny all other evidentiary
alleaationl by Plaintiff and
~laintiff-lnter-
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venor not expressly admitted within the stipulations and exhibits thereto on file in this
cause.
(11) Defendants deny that the election system of
the City of Lubbock was created or is being
maintainted for a racially discriminatory purpose.
4.
An
itemized list of all
~tipulations
which have been
agreed upon by the partie. will be filed separately
when completed.
Because of its length such list is
not ser forth at this point in the proposed pre-trial
order, but i. hereby incorporated by reference and made
a part of this propo.ed pre-trial order.
There are no
admis.ions of law, and all agreed upon facts are set
forth in the .tipulation. of the partie••
s.
The following i •• conci.e .ummary of the ultimate facts
aa claimed by:
a.
Plaintiff and Plaintiff-Intervenors:
(1)
This i •• clas. action on behalf of all Mexican-American and Black citizens in the City
of Lubbock.
(2)
The City of Lubbock i. • home rule city governed
by a Mayor and four city councilpersons, all
of whom are elected at-large by place in citywide voting.
(3)
Yhite•. constitute a majority of the total population, voting age population, and registered
voters of the City of Lubbock.
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(4)
The at-large by-place with number posts. staggered terms election system for the City of
Lubbock results in the exclusion of MexicanAmerican and Black representation in city
government, denies Mexican-American and Black
voters the opportunity to elect municipal officials of their choice, and denies MexicanAmerican and Black candidates the opportunity
to win election in municipal elections.
(5)
Voting in Lubbock is t'acially polarized with
voters generally voting along racial/ethnic
line.; minorities voting for minority candidate. and nonminorities voting for nonminority
candidate..
Polarized voting in Lubbock
ha~
thus denied the representation of minorities
in the Lubbock City Council.
(6)
The City of Lubbock municipal elections re'quires a majority vote to win election to the
City Council.
(7)
The State of Texa. and the City of Lubbock have
a long hi. tory of racial discrimination against
Mexican-American and Black citizens which has
denied and continue. to deny Mexican-American
and Black citizen. in Lubbock equal access to
the political
(8)
a~d
electoral proce.sel.
The Mexican-American and Black population of
Lubbock i. sufficiently numerous and sufficiently concentrated in particular area. of
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the City that if members of the City Council
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were elected from single member districts,
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one or two districts would be oajority minority in population.
(9)
At-large/by-place voting in Lubbock perpetuates a past intentional and purposeful dis-
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criminatory denial to Mexican-American and
Black citizens of equal access to the political process.
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(10) The State of Texas and Lubbock County has in
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the past used at-large election or multimember
district systems to dilute the voting strength
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of minorities.
(11) Because of long standing social, legal, economic, political, educational and other widespread and prevalent restrictions, biases and
prejudices, minorities in the City of Lubbock
have historically suffered and continue to
suffer from the results and effect. of discrimination in all areas of life.
As a re-
sult, a major portion of the minorities in
Lubbock reside in neighborhoods with substandard housing, high unemployment, lower educational achievement, etc.
(12) No minority has ever been elected to the
Lubbock City Council.
a.
Defendants:
(1)
Whether or not the at-large system here in
question prevents the Black and Mexican-American
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citizens of the City of Lubbock from enjoying
full access to the processes of nomination and
election, including,
(2)
citizens of the City of Lubbock are denied
the opportunity for participation in the candidate selection process; and,
(3)
Wh.ther or not the elected officials of the
City of Lubbock are responsive to the particular concerns of the Black or Mexican-American citizens of the City of
(4)
L~bbock;
and,
Whether or not the continuing effects of past
discrimination, if any, effects the ability of
the Black or Mexican-American citizens of
the City of Lubbock in their participation
in the political process: and,
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Whether or not the Black or Mexican-American
(S)
Whether or not the policy underlying the preference for multimember or at-large voting
was desianed or 11 used with a motive of effectin& the political participation of the
Black or Mexican-American citizens of the
City of Lubbock: and,
(6)
Whether or not any structural devices exist
that could enhance whatever dilution potential
as may ba found: and,
(7)
All such facts beins viewed in the aggregate.
The followins findinss of fact are proposed:
a.
By the Plaintiffs and Plaintiff-Intervenors:
(1)
The State of Texas, and the City of Lubbock
have a history of official discrimination
against minorities which has denied and continues to deny Lubbock's minority citizens
equal access to the political process.
(2)
Racial bloc voting generally prevails in
Lubbock elections; minority voters generally
vote for minority candidates and nonminority
voters generally vote for nonminority candidate••
(3)
The minority community of Lubbock has long suffered from and continues to suffer froM, the
result. and effects of invidious discrimination
and treatment in education, employment, economic., politic. and other fields.
(4)
The State of Texa. and Lubbock has in the PJst
u.ed multimember election districts to dilute
the voting strength of minorities.
(5)
There has existed in Lubbock a slating process
that denied minorities access to that process.
(6)
There ha. never been a minority elected to
public office for the City of Lubbock.
(7)
The City of Lubbock ha. no compelling or rational intere.t in maintaining the at-large
election .y.tem.
(8)
Be.ides the at-large
electi~n
system, the City
of Lubbock al.o employ. the following devices
in it. election.:
.taggered terms, numbered
electoral po.t., majority vote requirement
and elected official need not reside in any
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particular geographic area of the City.
(9)
The majority vote requirement has the effect of
submerging the will of the minority and thus
denies minorities access to the political
.ystem.
(10) The numbered post requirement enhances the minorities lack of access because it prevents a
cohe.ive political group from concentrating on
a .inc1e candidate.
(11) Becau.e Lubbock hal no residency requirement,
the lack of acce.. i. enhanced because all
candidate. could reside in nonminority neighborhoods.
(12) The staglered terms requirement enhances the
lack of access by reducing the number of available election positions in anyone election and thus reduce. the opportunity for a
cohe.ive political &roup to concentrate on
a dng1e candidate.
(13) The Lubbock area hal a history of maintaining
a "dual" .chool .y.tem--a .egregated school
.ystem.
(14) The State of Texa. and the Lubbock area hal
a hi.tory of impO.inl a poll tax system.
(15) Minoritie. in Lubbock register to vote and
turn out to vote in lower rates· than nonminoritie••
(16) The minority community in the City of Lubbock
is concentrated in a certain geographic area.
of the City.
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(17) It is possible to draw single member districts
for the City of Lubbock.
(18) It has been demonstrated that if single member districts existed in past elections, oinoritie. would have been elected to the Lubbock
City Council.
b.
By the Defendants:
(See separate document of suggested findings of
fact and ccnc1usions of law).
7.
The followinl conclusions of law are proposed:
&.
By the Plaintiffs and Plaintiff-Intervenors:
(1)
This Court has jurisdiction of this action
pursuant to 28 U.S.C. SS1331, 1343, and 2201
and 42 U.S.C. SI1971(d) and 1973j(f).
(2)
The present system of at-large city-wide voting
for the members of the Lubbock City Council result. in the dilution and abridgement of the
minority voting strength and thus denies minorities the right to meaningful participation in
the municipal election process in violation of
Section 2 of the Voting Rights Act of 1965, .s
amended, Pub. L. No. 97-205, 13, 96 Stat. 134
(1982).
(3)
The present system of at-large city-wide voting
for member. of the Lubbock City Council was conceived and/or i. being unconstitutionally maintained for the invidious purpose. of diluting
the voting strength of the minority community
in violation of Fourteenth and Fifteenth Amendments to the United States Constitution and 42
U.S.C. 11983.
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b.
By the Defendants:
(See separate document containing proposed conclusions of law).
8.
The parties estimate that trial of this case
~ill
require four to five days.
9.
Additional materials which are expected to aid in the
dispo.ition of the case are contained in the numerous
and lengthy stipulations entered into by the parties
and will be filed .eparately.
Counsel for the parties
will designate and exchange exhibit and witness lists
prior to trial.
10.
certificate of Counsel:
attor~ey.
Thi. is to certify that all
have personally conferred prior to the date
of the .ubmi•• ion of this proposed pre-trial order,
that the stipulations, to be filed, have been agreed
upon, and that thi. proposed pre-trial order is submitted to the Court for entry.
Re.pectfully Submitted,
Attorneya for Plaintiff.:
Attorney. for Defendants:
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Attorneys for Plaintiff-Intervenors:
Arthur & Arthur
I~'-~
c;::r- orcounse1
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1.1\15,,"1 C:
""Oth~I''''' t'"IloUoCl 0"
1
til'"
F I LED
11\ TilE UNITED STATES DIS1'RICT CO RT
FOR TilE NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION
APR - 11983
r..I\t>: Y 5, HALL. CLERK
REV. ROY JONES, et al.,
vepuly
Plaintiffs,
CIHL
v.
Acno:,
1\0. CA-S-76-3
CITY OF LUBBOCK, et al.,
Defendants •
ORDER OF BIFURCATION
The above-entitled and numbered cause has been tried and a decision
has been reached and the final judgment has been entered by the court on
March 4, 1983, which judgment adjudicated all of the contested issues
between the parties except the questions concerning attorneys' fees to
be allowed, if any, to the prevailing party.
By .gr....nt of counsel, .nd consent of the court, it was stipulated
th.t the question of .ttorneys' fees,including the amount and reasonableness
thereof, would be determined separate and apart from the trial of the issues
concerning the merits of the lawsuit.
fees would b.
dete~ined
It is contemplated that attorneys'
at an appropri.te time after
th~
judgment in the
c.se had become final.
Therefore, pursu.nt to the stipulation and agreement of the
parti~s,
it is here ordered that all issues in the case concerning attorneys'
fees to be awarded, if any, are bifurcated and separated from all
other issues and such attorneys'-fees issue shall be litigated and tried
under Civil Action No. CA-5-76-34A.
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Therefore, the court's judgment of March 4, 1983 is the final
judgment of this case on all issues and constitutes the !inal judgl:ent
for the purposes of any appeal that an)" party misht perfect.
The Clerk \i111 furnish a copy hereof to each attn:ney.
ENTERED this lst day of April,
19~).
~~
LBERT O. 1.10on...,ARD
Chief Judge
Northern District of Texas
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'2 -2' -1 .1.
Ilee.
City A\torney
IN THE L~ITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TE~~S
LUBBOCK DIVISION
REV. ROY JONES, et al.,
Plaintiffs,
v.
CITY OF LUBBOCK, et al.,
Defendants.
}
}
}
}
}
}
}
}
}
-. :. II .110
c..>vlt,
I C.",":." C":fkl:'
t
1. J. \
FflL:D
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(1:0.)
NANCY HALL DOHERTY, CLERK
8y----'o;:::e~~uty=---­
CIVIL ACTION NO. CA-5-76-34A
JUDGMENT
The above-entitled and numbered cause concerning the assessment of
attorneys' fees.as costs in favor of the plaintiffs and intervenors
against the defendants has been heard and the court has determined by
here~ith
memorandum opinion of even date
that attorneys' fees are to be
assessed against the defendants.
It is accordingly Ordered, Adjudged and Decreed that the plaintiffs
and intervenors recover attorneys' fees against the defendants in the
amount of $186,961.75 and such attorneys' fees are here assessed as
costs against the defendants.
The recovery shall be allowed to the
attorneys in the follOWing amounts:
Lane Arthur
S 54.605.00
Mark Hall •
23.702.50
Tomas Garza
26,220.50
Albert Perez
24,892.50
Dan Benson
15,202.50
7,623.75
Robert Davidow
Bill Garrett
14,780.00
Rios
15,435.00
~olando
4,500.00
West Texas Legal Services
TOTAL
$186,961. 75.
The Clerk
~i11
furnish a copy hereof to each
/,,~
attor~e).
E';rERED this ~ day of July, 1983.
z:~~
Chief Judge
District of Texas
~orthern
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I~ TilE U:;ITEll ST/,TES DJ STRJ CT CUl:i,T
FOR TilE ::ORTHERN III STRJ CT OF TEXAS
LUBBOCK DIVISION
REV. ROY
JO~ES,
~.'
to.'":
v.
1..:;Cl
CJJ.J~f
~
1 .. _ •
D
et al.,
~'
Plaintiffs,
~
't"'t:'I.t:',
l - (
l:;",)
N,t,NCY HALL C:rlEfH)'. CLERK
ACTlO:~i6. E:, 5
CJVIL
iii
til"e;::.:t)'
CITY OF LUBBOCK, et al.,
Defendants.
MEM:lRA."<D1lM OPINION AND ORDER
This voting rights case was tried first on December 11, 1978, and
following dates, for a total of twelve days.
Pursua"t to an appeal
fro~
a judgment entered by this court denying relief to the plaintiffs in the
first trial, the United States Court of Appeals for the fifth Circuit
reversed and remanded this case to this court for "reconsideration in
1/
light of the Supreme Court's intervening decision in City of Mobile v. Bolden,
• [and) to give appropriate consideration to the teachings contained
21
in ROlers v. Lodge.
B~fore
Jones v. Lubbock, 682 F.2d 504 (5th Cir. 1982).
the case was remanded, the Congress of the United States passed
an Extension of the Voting Rights Act in June of 1982 which presented
additional issues to be determined in this suit.
In this posture the court conducted a second trial on the 10th,
11th, 12th, and 13th day. of January, 1983.
Final judgment on behalf of
the plaintiffs was entered on tbe 4tb day of Harch, 1983.
tbis
cou~t
Subsequently,
entered an order on April 1, 1983, pursuant to a stipulation
and agreement by the parties, bifurcating and separating from all other
II
446 U.S. 55 (1980).
11
U.S.
(1982) (50 U.S.L.W. 5041, June 29, 1982).
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issues in the case the question of the
a~ard
of
~ttorne~s'
fees to
thl
prevailing parties.
It is the purpose of this memorandum to award and set the attor eys'
fees which the court has determined to be proper, but any costs, such as
costs of transcripts, depositions, etc.,
~ill
be assessee in the
prOVided by the federal Rules of Civil Procedure and. ot
Pursuant to 42 U.S.C.
§
y
this statute prOVides that the award of attorney's fees is
discr~tion,
this oreer.
19731{e), the prevailing party may, in the
court's discretion, be awarded a reasonable attorney's fee.
court's
""a~ner
Although
~ithin
the
successful plaintiffs in voting rights cases are
generally awarded and allowed the recovery of their attorneys'
However, the amount is to be determined by the court.
fee~.
In this circuit,
this amount is to be determined after a consideration of the factors set
forth in Johnson v. Georgia
High~aY
Express, 488 f.2d 614 (5th Cir.
1974).
Each plaintiff's attorney involved in this litigation has submitted
a sworn atfidavit as to the time expended and the charges therefor and
has asked for reimbursement in the amounts set forth in the affidavits.
The court has considered these affidavits, as well as the briefs and
positions of all of the parties, and makes the following findings of fact
and conclusions as to the proper amount of attorneys' fees.
First of all, the final judgment entered by this court granting the
relief sought by the plaintiffs clearly establishes that the plaintiffs
are the prevailing parties and they are entitled to recover attorneys'
fees.
Defendants strenuously argue that the initial judgment of this
court was reversed and remanded for additional consideration, as indicated
above, and that plaintiffs should not be determinp.d as the prevailing
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p"rties in the first tri"l in 1978-79.
This I,o"ition
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at tena1J.l" ;:5
this court considt:rcd in its final judGment, nol only tl,e r"cord in th"
second trial. but considered all of the record in the first tr·a_.
Th"
plaintiffs were not only successful in having this case
re~andcd
court for further consideration after the first trial,
ut t ey, on the
basis of the first trial. as well as the additional e\'id nee
to this
rt:sented
at the second trial, prevailed by final judGment awardin£ the relief
sought.
Without the record in the first trial, the second trial would
have been much longer, and it was largely on the basis of the evidence
introduced at the first trial that the court supported its findings of
fact and conclusions of law in the final memorandum and judgr-ent that
were entered.
Under these facts, the plaintiffs were the prevailit,;;
parties at all stages of the trials and are entitled to recover their
attorneys' fees for both trials.
Hensley v. Eckerhart, 51 U.S.L.W. 4552,
4554 (Kay 17, 1983).
Recently, the Fifth Circuit Court of Appeals and the United States
Supreme Court have provided additional guidelines to the application of
the Johnson factors.
Henslev, supra.
Craves v. Barnes, 700 F.2d 220 (5th Cir. 1963);
3/
In Craves and Henslev, the district court is instructed
to determine a lodestar, the number of hours reasonably expended in the
suit multiplied by the prevailing hourly rate in the community for
similar work;
th~
fee may then be adjusted either upward or
do~~ward
after a consideration of other important factors.
Plaintiffs seek rt:covery for a total of 1,603.48 hours in pre-trial
preparation plus 81 trial days expended by eight attorneys.
3/
Graves, supra at 222; Henslev, supra at 4554.
The
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rC;I:;onablt'ncss .:lnd
lhl' nt..:n:sl'ilty
the testir.lony of a
lOt:~l
of these
huur~~
practicinG attorney.
b;,'/( L(:(-;: !t;:i" r:.G
()t},<.r thAn :
h<:Tcinaftcr discussed relating to duplication!> :!:1d t.L:rtain
outlined belo\o'. the court finds that this nuc:ber of
~ours
! ....
~;;.C~~<: ..
n...duct.~ons
...· as
rc~so:-.a:'le
a.nd necessary.
The next step In the "lodestar" approach is to aetcr:::lne the
pre\'l"illng hourly rate.
Plaintiffs assert that 5125 per hour for ?:-e-trial
....ork and Sl,OOO per day during the actud tri.!.l shoulc be i:!,.'uded.
The
court recognizee that plaintiffs' affidavits support the position of
plaintiffs that their charges are reasonable. necessary. and customary.
Hotoever. plaintiffs have also introduced a letter h-o:t the defendant
City of Lubbock that states that during the first trial had defense
counsel Travis Shelton \:as paid $75 per hour and Dennis McGill 1o:as p.:.id
$60 per hour.
It:est Texas Legal Services asserts that $60 per hour is
reasonable for Mr. Garrett's time on the appeal.
Based upon these
4/
affidavits and the court's own knO\o.-ledge. the court finds that the
prevailine hourly r~te in Lubbock, Texas, ranged fro: $50 - $75 per hour
at the time of the first trial.
Subsequently, customary fees have increased
and range from $60 - $125 per hour.
Based on factors discussed bela...' ,
the court finds that the proper rate for all pre-trial work done by the
plaintiffs' attorneys up to the first trial is $75 per hour, and pre-trial
work for the second trial should be compensated at the rate of $100 per
hour.
Further, the court does not find that the attorneys should be
paid at the rate of $1.000 per day during the trial_
Rather, the court finds
that the proper fee based upon the prevailing rate (5500 - $1.000 per
day) as modified by the factors discussed bela"'· is 5600 per day.
4/
Plaintiffs agree that the court may consider his O\o'Tl kn0\:1edge of
prevailing rates_ Plaintiffs' MemorandulD of Law "n A""ard of Attorneys Fees.
pages 6 and 7, filed January 24. 1979 and reurged in Plaintiffs' Letter Brief
dated June 2. 1983.
.
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This case did
pre~ent
unusual
is~ues.
class action but tlleTe ...· CrE· difficult hct
investisation and the issucs were fUTther
It .... ,,~ not
sltuation~
co~pljcated
C'
ly an
H·quiri. r
y
the
<:Y.lc .~j'J<'
]('0
·thy
i~t"rv·
ie
N
decision by the Unitf:d States Supreme Court (supTa) and the action of
the Congress in extending the Voting RiShts Act in the interval bet.een
thc two trials.
The issues presented by these two factoTs had not
heretofore been considered or presentf:d to the court and, of course,
wf:re necessary to determine this litigation.
As indicated above, this case was'not a simple case but was sufficiently
complicated to require competent legal expertise.
La...~ers with trial
and investigative experience were necessary to present the issues to the
court and to ultimately prevail.
The attorneys in this case, from
observation by this court, had the necessary expertise and used
skillfully.
i~
The court recognizes that several of plaintiffs' attorneys
were young with relatively limited legal experience.
These same attorneys
carried the major responsibility for trial preparation and presentation;
therefore, the court will not make a reduction in the hourly or daily
fee based upon the fact that they had less experience than other attorneys.
The court has considered that defense counsel, Mr. Shelton. is more
experienced than any of the other attorneys in this case; he is a past
president of the State Sar of Texas and is recognized as one of the
leading attorneys in the state.
The court finds that an award of fees
5/
in excess of his hourly charge in this case would not be justifiable.
Two of the attorneys, Honorable Dan Benson and Honorable Robert
Davidow, are professors at the Texas Tech University School of Law and
5/
Thi~ finding in no way implies that the fee of defense counsel is
in any way a controlling factor in this or any other case except that
in these circumstanccs, under these facts. the court finds that the
prevailing fee at the time of trial is more accurately reflected by
~Ir. Shelton's fee than by the ~12~ fee claimed by plaintiffs' counsel •
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they
~ere
not precluded
fro~
taking on additional
preclude them from recovering fees.
~ork
but this
doc~
not
The other counsel, with the ey.ception
of West Texas Legal Services and perhaps Mr. Rios, ware in private
practice and it is obvious that for the time required in this case they
were precluded from doing other legal business because their undivided
attention
required by this case during the time claimed.
~as
Other than
~lr.
Arthur who
~as
paid by the intervenors at the rate
of $30 per hour, for which he must reimburse them out of his recovery,
and the other attorneys on a fixed rate of compensation, all other
attorneys
~ere
on a contingent fee basis alone.
Although this case did have extremely important constitutional questions
involved, there was no pressure from either party or from the court for
early disposition of the case.
The court recognizes that the attorneys
did give-priority to this case at times, but does not find that there were
any time limitations imposed that present any unusual factor
~ith
resFect
to the amount of attorneys' fees.
There was no monetary recovery by the plaintiffs in this case and
none was sought," but this does not in any way limit the amount of attorneys'
fees under this case.
As indicated above. the court finds that the attorneys in t is case
were competent in trial matters, and based upon the court's observation,
~hey
handled this case with the requisite expertise.
This case was an unpopular and undesirable one
stand~oint.
of interest.
fro~
the
a~~ers'
The case has generated and still is generating a gr at deal
Widely divergent views concerning this case and the attorneys'
participation therein exist.
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naturc
11,~
atturn~ys
th~
~nd
l~ngth
of the
and the plaintiffs in
proression~l r~lhtiunship betv~~n th~
thi~
case is nut n
r~ctor
one way or
other as it is not indicated that futurc business can be obtained by
the attorneys as the result of their representation of the plaintiffs.
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rroba~ly
only one-time representation of the clients in this case will
result.
Attorneys' fees in similar cases have ranged upwards to the neighborhood of $1 million dollars.
Craves v. Barnes, supra.
Kone of the
cases awarding attorney's fees are particularly helpful because the
amount of fees must necessarily be determined upon the particular circumstances
of each case.
However, the court has considered the
~ide
range of fees
allowed by other courts, Parker v. Anderson, 667 r.2d 1204 (5th Cir. 1982)
(award $21,980.50); Hensley v. Eckerhart, 51 U.S.L.W. 4552, 4553 (award
$133,332.25); Swann v. Charlotte-Mecklenburg Board of Education, 66 F.R.D.
483 (W.D.N.C. 1975) (award $175,000.00), and finds that the fees hereinafter
allo~~d
and awarded are within the range permitted in these other similar
cases.
From the court's observations and an examination of the record of
both trials, the court has come to the conclusion that there are two
factors that should be carefully considered in setting the fees.
of all, this was a contingent fee
First
case, and the court is of the opinion
that had there not been additional evidence submitted at the second trial
and further had the Voting Rights Extension Act not been amended, the
plaintiffs may well have been the losing instead of the prevailing party
and their attorneys would recover nothing.
In other words, the contingency
of their fee made their recovery of fees very uncertain and the risk great.
However, balancing this determination that the contingency fee perhaps
requires the imposition of a multiplying factor over the
nor~al,
customary
cash fee or agreement, is the question of duplication of attorneys' efforts.
Tne court recosnizes that plaintiffs have r visec and
~educ
d their
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oribin~l
claims for
of effort.
att~rneys' f~~s
in order to
However, this case did not
plus that of the
~~st T~xas
r~quirc
Legal Services on
cli~inat~
the
s~rviccs
activ~ly
of the case although they were present as indicated.
of eight
Although
~ppeal.
attorney may have handled a separate phase of this case,
that some of the attorneys did not participate
any dcplic3tion
th~
la~ycrs
~ach
court notes
in the trials
Further, even
thou~.
there WAS a separation of these responsibilities between the attorneys,
it was of course necessary that each attorney familiarize himself with all
of the background in the case and conduct the necessary legal research
with respect to
duplication.
s~me.
This effort alone constituted e great amount of
In other words, fewer attorneys could have done the same amount
of work and not have expended the total number of hours that the eight
attorneys did expend in this case.
The court has no quarrel with the
number of hours that these attorneys state that they have expended,
but the court does find that some of these hours, in spite of their
volunteer representation of the class in this suit, is duplication.
The
court is of the opinion that the contingency factor, which would justify
the imposition of a multiplier, is offset by the finding of duplication
of efforts.
Further, the court recognizes that the delay in receiving fees may
justify
aD
award higher than the prevailing fee at the time of trial.
Indeed, considerable time has passed since the first trial.
However,
the court finds no justification for enhancing the $75 per hour fee
because the fee
se~ected
is not only at the top of the fee range for
the first trial but also within the range for the second trial.
In
addition, the court considers the $75 fee to be somewhat higher than
that normally charged by attorneys of the
experien~e o~
laintiffs'
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counsel.
On balance, the court finds the $75 fee to be reasonable for
the first trial.
The $100 per hour award for the second trial is within
the top of the range of currently prevailing fees; therefore,
6/
no adjustment should be made on that figure eithe~.
Considering all of the above factors, and from the court's
observation during the pretrial conferences and trials of this
case, as well as considering all of the submissions of the parties,
the court finds that the reasonable and necessary fee to be awarded
to the attorneys should be as follows:
6/
A further
factor considered by the court is that manv hours
searching files, records and nE~spapers might have be n done by c erks
or secretaries instead of these attorneys. Also, several hours' travel
time have been charged.
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.\TTllIlNEY
._---
l.
2.
3.
LAN~:
AItTIIUIt
NAItK IIAI.I.
'I"mlAS GARlA
...
AI.BJ,;IlT l'EREZ
S.
DAN BENSON
,
6.
7.
d.
PItf:Tltf AI.
PItEPAItATlON
TIME IN SECOND
T1UAL AT
$100 PElt IIOUR
TItIAI. OAYS
IN S~:COND
TRIAl. AT $600
I'EI\ UAY
12 days
($7,200.00)
263 hour!!
($26,300.00)
3-1/2 days
($2,100.00)
$S4,605.00
1l1.9 hours
($ 6,142.50)
12 days
($7,200.00)
82.6 hours 1*
($ 8,260.00)
3-1/2 days
($2,100.00)
$23,702.50
103.7 hours
($ 7,777.50)
12 days
($7,200.00)
91. 43 hours 2*
($ 9,143.00)
3-1/2 days
($2,100.00)
$26,220.50
3-1/2 days
($2,100.00)
$24,1l92.50
I'J(ETRIAi.
1'ltEI'AitAT iON
Tim: IN FlIlST
TlII,\L AT
$7S I'J,;R 1I0UIt
'I'IllAI. OAYS
IN FlItST Tit lAI.
AT $600 1'f:1t
UAY
:!S3.4 hours
($J9,OO:>.00)
126.7 hours
($ 9,502.50)
12 days
($7,200.00)
60.9 hours
($ 6,090.00)
106.7 hours
($ 8,002.50)
12 days
($7,200.00)
($
0.0 hours
0.00)
($
0.0 days
0.00)
$15,202.S0
ItllllERT DAVIDOIJ
101.65 hours
($ 7,623.75)
0.0 days
($
0.00)
($
0.0 hours
0.00)
($
0.0 days
0.00)
$ 7,623.75
IIILL GARRETT
0.00 hours
($
0.00)
0.0 days
($
0.00)
126.80 hours
($12,680.00)
0.00 hours
0.00)
0.0 day!!
0.00)
($
133.)5 hours 5*
($13,335.00)
ROLANDO RlOS
($
'.I.
3*
TOTAL
4*
$14,780.00
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3-1/2 days
($2,100.00)
$15,435.00
TJ,;Xo\S
LEGAL SERVICES
Attorneys' Fees on appeal of first case, $4,500.00
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I~ES'l"
$ 4,500.00
NOTE: The court recognhes that Hr. Arthur and West Te.as Leaa1 Services are c1ai.ina certain costs, but these
should b" t:lxablc as cosu in the llIanner provided by the Federal Rules of Civil Proc:edure concerning the final
juJ/;ment her"tofore entered by the court and is not to be deter.ined by this opinion.
TOTAL AWARD OF ATTORNEYS I FEES UP UNTIL
FILING OF NOTICE OF APPEAL
Xvtcs tv <.h:lrt 1*, 2*, 3*, 4*, and 5* un following page.
...
0
3-1/2 days
($2,100.00)
$186,961. ]5
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1\011:5 TO CIVd{T ]f'IHCf,TEU DY -
(1)
(2)
Dt:duction of 2 houn billl:d for prt:SS conhrence.
(3)
D<:duct1on of .5 bour billed for press conference.
(l.)"
After comparing :ir. Garrett's personal .ffid.\'1t and chronolo;;y.
the court is enable to detenr.1ne ""bieh of the £49.8S hOUTS
~r. Carrett claims in the chronololY c01:iprise the: 179.65 hC:Jrs
claimed b)' Mr. Carrett as pretri.l preparation fGr Trial #2.
Clurly. thon hours prior to 1982 relate to the appeal and
are included in Wen Tex•• LeS,l Service.' n.tement. Therefore,
bea!on!n& 1n 1982 the court h .. tculled .11 hours submitted b,·
Mr. Garrett th.t are not obviously reIned to the appeal or the
.ctu.l tri.l d.)·so This total is 154.80 hours. %\ext the co\Ort
ha. totalled aU hour. listed in block. -- so:e 'as lont as 2-1/2
conths -- as t.rial preparation. Hours dUlgr.atee! on~)' as trial
preparation total 112.95. Pursuant to ~ . !£.2!!. at
4556 n.13 the court. has reduc.ed those: hours by 25:': because of
Mr. Garrett's failure to furnish a detaUed chronolos:-·. ~
!.!!2. Cooper LiGuor, Inc. v. Adolph Coors Co., 684 r.2d
1087,1094-95 (5th Cir. 1982); Parker v. Andenon, 667 r.2d
1204. 1214 (Sth Cit. 1982).
(5)
The court h. . deducted 9.5 hours. On Dece=ber 2, 1982 and
Dl:c~r 27, 1'82 Hr. Rios h•• cl.i_d a total of 25.5 hours.
The court finds thet $2,550 for theae two day. that involved
only 9 boun of actu.l 1ea.1 .ervices is unreasonable. but
",'111 compensate: Hr. 1.10. at a rate of $100 per hour for a full
I-hour day.
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bec!uction of c..:' hOUTS billed for prc:paTl'ltion for, sche:dulinS and
holdinG 01:.... 5 conference.
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A Judgment
~ill
be entered accordingly.
The Clerk will furnish a copy hereof to each attorney.
E~TERED this ~ ~day of
July, 1983.
;[~
.Chief Judge
Northern District of Texas
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CERTIFICATE OF SERVICE
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THIS IS TO CERTIFY that a true and correct copy of the
forego1ng Excerpts from Record 1n L1eu of Appendix, has been
served upon Appellees by causing a copy of same to be mailed by
Unlted States Postal Serv1ce simultaneously w1th and ln the same
container with the Brlef of Appellees' in this cause, to all
attorneys of record named ln the Cert1ficate of Service to sald
Brlef for Appellants, on this the 22nd day of September, 1983.
:w
~~~
Of Counsel
ATTORNEYS FOR APPELLANTS
OI,',ln H, WISQII'
"JQ~'iU ~,ll'W
IN THE UNITED STATES COURT OF APPEALj
FOR THE FIFTH CIRCUIT
NO.
Eo
B3- I 502
THE CITY OF LUBBOCK, TEXAS, and the
Mayor and City Council thereof, BILL MeAl-LISTER,
ALAN HENRY, JOAN BAKER. M. J. "BUD" ADDERTON, and
JACK BROWfi:. all in their offici.al capacities as members
of the City (ounci I of Lubbock, Texas
De f endan l s-Appe 11 an l S
VS.
REV.
ROY JONES,
GONZALO GARZA,
EUSEBIO MORALES,
and Intervenor, ROSE WILSON. indh'idually and as
Representatives of the Black and Mexican-American
Voters of Lubbock, Texas
PI a i olif fs-Appellees
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISON
HONORABLE HALBERT O. WOODWARD, JUDGE PRESIDING
BRIEF OF APPELLEES AND CROSS-APPELLANTS
\HLLIAM L. GARRETT
8300 Douglas,
Suite BOO
Dallas,
TX 75225
214/
TOMAS GARZA
1006 13th St.
MARK HALL
Lubbock,
Lubbock.
TX 79401
1402
Texas Ave.
TX
79408
369-1952
201 N. St. Mary's, Suite 501
San Anlonio, rx 78205
ROLANDO
RIDS
LANE ARTHUR
1216 Avenue K
Lubbock, TX 79401
DANIEL H.
ROBERT P. DAVIDOW
BENSON
School of Law
Texas Tech Uni versi ty
Lubbock, TX 79409
ALBERT PEREZ
1112 Texas Avr-.
Lubhock,
':;eo. Mason School of La""
3401 N. Fairfax Drive
Arlington, VA 22201
ATTORNEYS FOR APPELLEES-CROSS APPELLANTS
TX
79 .. 01
II
II
III
--
II
II
III
III
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DAnin H. BtMSON
AIlORll£Y AT LAW
27 R!:C'll
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
NO. 83-1502
THE CITY OF LUBBOCK, TEXAS, and the
Mayor and City Council thereof, BILL McALLISTER,
ALAN HENRY, JOAN BAKER, M. J. "BUD" ADDERTOS, and
E. JACK BROWN, all in their official capacities as members
of the City Council of Lubbock, Texa
Defendants-Appell n s
VS.
REV. ROY JONES, GONZALO GARZA, EUSEBIO MORALE,
and Intervenor, ROSE WILSON, individually and as
Representatives of the Black and Mexican-Am rican
Voters of Lubbock, Texas
Plaintiffs-Appellees
ON APPEAL FROM THE UNITED STATES DISTRICT COeRT
FOR THE NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISON
HONORABLE HALBERT O. WOODWARD, JUDGE PRESIDI~G
BRIEF OF APPELLEES AND CROSS-APPELLANTS
WILLIAM L. GARRETT
8300 Douglas, Suite 800
Dallas, TX 75225
214/ 369-1952
TO~lAS
GARZA
1006 13th St.
Lubbock, TX 79401
MARK HALL
1402 Texas Ave.
Lubbock, TX 7940
ROLANDO RIOS
201 N. St. Mary's, Suite 501
San Antonio, TX 78205
LANE ARTHUR
Lubbock, TX 79401
ALBERT PEREZ
III Texas Ave.
Lubbod. TX i9!.01
DANIEL H. BENSON
School of Law
Texas Tech University
Lubbock, TX 79409
ROBERT P. DAVIDO~
Geo. Mason School of Law
3401 N. Fairfax Drive
Arlington, VA 22201
1216 Avenue K
ATTORNEYS FOR APPELLEES-CROSS APPEL ASTS
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CERTIFICATE OF INTERESTED PARTIES
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NO. 83-1502
CITY OF LUBBOCK, TEXAS, et a1. vs. REV. R:JY JONES,
H
al.
The undersigned, counsel of record for Rev. Roy Jones, et al.
certifies
that the following listed parties have an
the outcome of this case.
that
interest
in
These representations are made in order
Judges of this Court may evaluate possible
disqualification
or recusal pursuant to Local Rule 13(6)(1).
Rev. Roy Jones
Gonzalo Garza
Eusebio Morales
Juan Antonio Reyes
Rose Wilson
William L. Garrett
Daniel H. Benson
Robert P. Davidow
Tomas Garza
Albert Perez
Lane Arthur
Rolando Rios
Mark Hall
The City of Lubbock, Texas
Estate of Bill McAllister
Alan Henry
Joan Baker
M. J. "Bud" Adderton
E. Jack Brown
Travis D. Shelton
T. Dale Jones
John C. Ross, Jr.
James C. Brewster
Dennis McGill
William L. GarretL
Attorne
of Record for Rev.
Roy Jones,
Gonzalo
Garza,
Eusebio
Morales,
and Rose
Wilson, Plaintiffs-App~llees.
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STATEMENT REGARDING ORAL ARGUMENT
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This appeal is on the issue of attorneys' fees rnly, since it
was
se~arated
from the merits of a voting rights case by the trial
court.
Although
belives
that
oral
the
issues here are not
argument
would
be
complicated,
helpful
to
the
Counsel
court,
especially on the issues of the multipliers and payment in current
dollars.
This
which
is
appeal
is related to the appeal in
cause
scheduled for oral argument on October
ii
24,
#
83-1196,
1983.
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TABLE OF CONTENTS
Certificate of Interested Parties.
i
Statement Regarding Oral Argument.
ii
Table of Contents • •
iii
List of Authorities.
iv
Statement of Jurisdiction.
Statement of the Issues • •
2
Statement of the Case • • • •
3
Course of Proceedings and Disposition
in the Trial Court
3
Statement of the Facts
5
Summary of the Argument.
7
Argument •
10
Section I. Reply to Appellants
10
Section II. Cross Appeal • • •
12
A. Present vs. Historical rates
J2
B. No Multiplier ••
16
C. Duplications Not Detailed
1
D. 25% Reduction Was Error.
19
Conclusion
21
Certificate of Service
22
iii
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LIST QI AUTHORITIES
~
£1
Hobi1e
~
Bolden, 446. U. S. 55 (1980) •••
Copeland .:L:. Marshall, 641 F. 2d 880
(D. C. CiL 1980)
~ ~
Inc.
~
Adolph Coors
684 F. 2d 1087 (5t1i Cir. 1982)
Graves v. Barnes,
(5th CiG 1983)
14
~.
14,15,20
700 F. 2d 220
8,14,15,16,17,
19,
HenSley ~ Eckerhart, _U. S.
103 S. Ct. 1933 (1983).
7,10,11,12,20
Jones v. Lubbock, 640 F.2d 777 (5th Cir. 1981);
682 r. 2d 5ii4"T3th Ci r. 1982)
Parker v. Anderson, 667 F. 2d 1204
(5thCiG ~
• •• • • • • •• • • . • • •.
20
ROBers !..:. Lodge, _U. SO_t
102 S. Ct, 3277 (1982)
Taylor ~ Sterrett. 640 F. 2d 663
(5th Cir, 1981)
11
42 U. S. C. 1988
10
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STATEMENT OF JURISDICTION
The Trial Court has jurisdiction of this cause pursuant to 2
U.
S.
C. 1343(3) and (4), upon causes oi action arising under 42
U.
S.
C.
1971,
1973,
1983,
& 1988,
and the Fourteenth
Fifteenth Amendments to the U. S. Constitution.
under 28 U.
This
28
U.
decision
S.
C.
and
Relief was sought
2201 & 2202 and under Rule 57,
F.
R.
C. P.
Court has jurisdiction to hear this appeal by virtue of
S.
C.
of
1291,
in
that the decision appealed is
the United States District Court
District of Texas.
for
the
a
final
Northern
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STATEMENT OF THE ISSUES
PAGE
SECTION
1:
REPLY TO APPELLANTS
10
The Minority Voters were the Prevailing parties
under Sec. 1988 for attorneys' fees purposes
SECTION
l!:
CROSS-APPEAL
10
12
A: The trial court erred in failing to award
attorneys' fees based on present hourly
rates
12
B: The trial court erred in failing to apply
a multiplier
16
C: The trial court erred in failing to specify
what efforts of counsel were duplications
18
D: The trial court erred in discounting
Mr. Garrett's fee by 25%
2
19
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STATEMENT OF
I.
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STATEMENT OF THE COURSE OF PROCEEDINGS AND DISPOSITION
-
!li i l l TRIAL COURT
The
action
suit was originally filed on April I,
allegations
on behalf of all Black
citizens of the City of Lubbock,
the
CASE
with class
1~76,
and
Mexican-American
Texas, and with allegations that
at-large scheme for election of city council members
minority
voting strength.
By court order of June!,
was certified as a class action pursuant to
case
diluted
1977,
Rule
the
23(b)(2),
F.R.C.P.
fi rst trial was held in
The
for a total of twelve days,
1979,
the
December,
trial
and
in
favor
(hereinafter
called
of
"the
Defendants City
City").
Janua~y,
1979,
and by order of June 8,
court dismissed that action on the merits and
judgment
Woodward
1978,
of
The
et
"I.
Halbert
O.
Lubbock,
Honorable
entered
also filed a Memorandum Opinion.
Notice
of
appeal was filed by the
called "minority voters") on July 6,
Plaintiffs
1979,
(hereinafter
and perfected on that
date.
The
United
reversed
1981),
States Court of Appeals for
the decision of the trial court,
then withdrew that opinion,
remanded,
682
F.2d 504 (5th Cir.
the
Fifth
Circuit
640 F.2d 777 (5th Cir.
and subsequently reversed and
1982),
with instructions
for
"recousideration in light of the U. S. Supreme Court's decision in
3
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City
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Mobile,
instructions
Alabama::f....!.. Bolden, 446 V. S. 55 (1980)," and with
to "give appropriate consideration to the
V. S,
contained in Rogers ::f....!.. Lodge,
The
1982,
teachings
, 102 S. Ct. 3277 (1982).
minority voters amended their complaint on November
and
alleged causes of action under both the Fourteenth and
Fifteenth Amendment to the V.
S. Constitution and under 42 U.S.C.
1973 (The Voting Rights Act), as amended June 29, 1982.
Trial after remand was held on January 10-13,
time
the
entire record from the first trial
stipulation,
and
1983, at which
was
Introduced
by
new evidence and stipulations were taken by the
trial court.
On March 4,
1983,
the trial court entered judgment in favor
of the minority voters finding that the present at-large
scheme
violated
Constitution
intent
both
the
Fifteenth
Amendment
to
election
the
U.
S.
in that the scheme was initiated with discriminatory
and the Voting Rights Act in that the scheme
resulted
the minority voters having less opportunity than others
to
in
elect
representatives of their choice.
To
trial
of
remedy the constitutional and statutory
violations,
court ordered a single-member district system for
city
the
election
councilmen composed of 6 single member districts
and
a
mayor elected at large.
The City filed their notice of appeal on April I,
all
briefs
have been filed in cause' 83-1196,
19 3,
and the casr
and
is
scheduled for oral argument before this court on October 24, 19 3.
4
Additionally,
on April 1,
1983,
the trial court entered an
Order of Bifurcation, separating the issue of attorneys' fees from
the
merits of the case in chief.
fees
to
the
minority
voters'
$186,961.75 was entered on July 7,
appeal
from
Judgment
attorneys
1983.
that judgment on July 18,
brief herein.
in
attorneys'
the
amount
of
The City perfected its
1983,
and has filed
it~
The minority voters' attorneys filed a cross appeal
on July 27,
1983.
the
brief and in support of the
City's
awarding
This brief is respectfully filed in answer to
minority
voters'
cross
appeal.
II.
STATEMENT OF THE FACTS
This
minority
order
appeal
voters'
of
July
arises from an award of attorneys' fees to
the
attorneys,
in
its
were
the
the
end
6,
1983,
since the court determined
that
the
minority
voters
prevailing parties for purposes of attorneys fees.
When suit was orginally filed in this r.ase in 1976,
sought
large
by
the
scheme
Texas,
was
then plaintiffs was the declaration that
of
election of city council
illegal and unconstitutional.
achieved on Harch 4,
an
appeal
decided
1983,
members
in
the
at
Lubbock,
That end was
finally
when after a first trial in 1979, and
in 1982,
the
trial
additional evidence to be taken in 1983,
court,
after
allowing
entered judgment for the
minority voters granting all relief requested,
The
Court held an in-chambers conference on
5
June
I,
19 3,
REC.
the
VOL.
11,
on the issue of attorneys fees, and required that
City respond in writing to the minority voters' attorney
requests.
opposition,
fee
The City filed no affidavits, but did filed a brief in
incorporating many of the same arguments presented to
this court.
The
Court
entered
judgment
for
the
minority
voters'
attorneys in the total amount of $186,961.75 on July 6, 1983.
6
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SUMMARY OF THE ARGUMENT
The City has alleged that the trial court committed two basic
errors in regard to its findings on the issue of attorneys' fees.
(1)
at
that the the minority voters were not the prevailing
all
parties
stages of the litigation for the purposes of an award
attorneys'
parties,
fees,
the
because
and
court
(2)
that even
abused
if
they
were
its discretion in making
it used improper standards,
and duplication
of
prevailing
the
of
award
efforts
were not sufficiently penalized.
The City's argument regarding prevailing parties was rejected
by
the trial court based upon the recent pronouncement of the
S.
Supreme Court in Hensley
1933 (1983).
party
~
Eckerhart,
__U. S.
which
unrelated
,103 S. Ct.
The ruling there in essence states that a prevailing
is determined by viewing the case as a whole.
issues
U.
were
based
on different
facts
are
Only
those
sufficiently
for there not to be an award of attorneys fees if their
proponents are not
ul~imately
this
minority voters were successful in
Court,
the
cause of action:
successful.
III the case now before
their
only
that the at large election scheme is illegal and
unconstitutional.
The
improper
minority voters also believe that the trial
standards
in
attorneys' fee award,
the
calculation of
the
court
amount
of
used
the
but for different reasons than the City anJ
with different results.
7
First,
the
court
present hourly rates,
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failed to award attorneys fees
seven
By using historical rates,
court penalized the attorneys for the delay in receipt,
years
on
and failed to use the proved local rates as
the base for making its calculations.
the
based
since the case was filed.
Also by
not
using
some
the
prevailing local rate, the court forced these attorneys to work at
a rate less than generally applicable in the area for this type of
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work.
Second, the court erred in failing
the
lodestar had been calculated.
0
apply a multiplier once
The court's error was not
undertaking the analysis required by Graves
~
Barnes,
in
700 F. 2d
220 (5th Cir. 1983). The court ignored the distinction between the
contingency and the quality of work multiplier.
Third, the court wholesale discounted the award of attorneys'
fees
to
account for duplication of efforts by the amount of
any
multiplier by offsetting one against the other. The court erred in
not specifying the actual efforts that were duplicated, and making
a deduction therefor.
This court has required the trial court
to
be specific in stating its reasons for increasing or decreasing an
attorneys' fee award. Graves, supra, at 221.
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Fourth, the court erred in discounting Mr. Garrett's award by
25%
for
failure
to
keep
contemporaneous
time
records.
Contemporaneous time records were kept, and the cases cited by the
court
in
support
of this discount do not
support
the
court's
position for the reason that this court has not adopted the D.
8
C.
Circuit rule requiring standardized time sheets.
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ARGUMENT
SECTION
I:
REPLY TO APPELLANTS
THE MINORITY VOTERS WERE THE "PREVAILING PARTIES" UNDER SEC.
1988 FOR ATTORNEYS' FEES PURPOSES
The
minority
the
City has argued in its Brief,
pages 9
14,
that
voters were not the prevailing parties at all stages
litigation.
the
of
Since the judgment of the trial court after the
first trial was for the City, and since the decision of this court
reversing
the decision of the trial court was because,
the
City
has argued, of an intervening decision of the U. S. Supreme Court,
then
the
minority
voters cannot be said to
have
prevailed
at
either the first trial or at the appellate level.
This spurious argument was rejected by the trial court in the
awarding
of
attorneys' fees to the minority
voters'
attorneys.
RECORD, P. 53.
The City has attempted to rely upon the recent statements
the U. S. Supreme Court in Hensley
~
Eckerhart. __U. S.
of
103 S.
Ct. 1933, 1943 (1983).
We hold that the extent of a plaintiff's success
is a crucial factor in determining the proper
amount of an award of attorney's fees under 42
U. S. C. 1988.
This statement of the Supreme Court must be understood in the
context of the development of the theory of "prevailing party." It
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is clear from a full reading of Hensley, supra, that the criterion
by
a prevailing party is determined is whether
which
have
"succeed[ed]
on any significant issue in
plaintiffs
litig8tion
which
achieves some of the benefit the parties sought in bringing suit.'1
Hensler,
supra, at 1939. The Supreme Court quoted with favor this
court's statement in Taylor:!.....!....
Cir.
Sterrett,
640 F.
2d 663,669 (5th
1981): "[T]he proper focus is whether the plaintiff has been
successful
on the central issue as exhibited by the fact that
has acquired the primary relief sough,," Hensley.
~.
he
at 1939,
f n. B.
Had
the
minority
voters
also
sought
relief
based
upon
different facts and legal theories, that is, an unrelated claim to
that upon which they succeeded,
on
that
unrelated
attorney's
claim,
then,
they
had they been unsuccessful
would not
be
fee award for pursuing unsuccessfully
entitled
that
to
an
unrelated
claim.
Such is not the case. The minority voters sought from the
outset
to
have
unconstitutional
and
district system.
other
relief.
the
at
to
large
have
election
scheme
it replaced by
single
They sought no other relief;
They
were
declared
member
they obtained
successful in acquiring
the
no
primary
relief sought. Hensley, supra, at 1939.
Additionally,
attorneys'
trial
fees
formed
the
trial
court
noted
in
its
award
that much of the evidence produced at the
the basis of its decision at the
favor of the minority voters. REC. P. 53.
11
second
of
first
trial
in
The City would dock the
II
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minority
first
voters' attorneys for unsuccessful proof made during the
trial.
The
Supreme
Court
has
spoken
on
this
issue.
the plaintiff's claims for relief will
involve a comoon core of facts or will be
based on related legal theories. Much of
counsel's time will be devoted generally to
the litigation 8S a whole, .eking it diffi~ult
to divide the hours expended on 8 claim-byclaim basis.
Such a lawsuit cannot be viewed
85
8 series of discrete claims.
Instead
the
district
court
should
focus--o-n- "t""he
~8nce of the overall relief obt""8ined h
i l l plaintiff .!.!!. relations 1..2. the hours
reasonably expended .e.!!. i l l 1it18,11tion.
-Hensley,supra, at 1940.
not
the
prevailing parties for the purpose of awarding attorneys fees
Thus
was
not
the
accepted
argu.ent
by
that the minority voters
the trial court.
and cannot
be
were
supported
by
relevant case law. The findings of the district court on the issue
of
prevailing parties were correct and certainly were not clearly
erroneous.
SECTION
n:
APPELLEES' CROSS APPEAL
THE TRIAL COURT ERRED IN FAILING TO AWARD ATTORNEYS'
FEES BASED .Q.!! PRESENT HOURLY RATES - -
The
$75.00
appeal.
trial
per
hour
court
awarded attorneys fees in
for the first trial,
and $100.00 per hour for the second trial,
trial work.
the
$60.00 per hour
amount
of
for
the
all for
pre-
Trial work was compensated at the rate of S600.00 per
day for both trials.
12
I
The court found that the total of 1,603.48 hours of pre-trial
preparation
plus
81 trial days expended by eight
reasonable and necessary.
evidence
rates
P. 53-54.
Additionally, the only
and per day trial rates is the affidavit of
a
was
before the trial court as to prevailing pre-trial hourly
attorney E.
is
REC.
attorneys
Warren Goss,
"reasonable one,
local
Lubbock
who testified by affidavit that $125.00
and represents the rate being charged
by
many attorneys and firms in the Lubbock, Texas, area at this time.
In particular, considering the twelve factors listed herein above,
the rate of $125.00 per hour is,
quality
and
nature
if anything,
of the work done by the
quite low for
attorneys
Plaintiffs and Plaintiff-Intervenor in this case."
Hr.
for
Goss
trial
for
the
REC. P. 13.
also testified that the rate of $1,000.00 per
work
Plaintiffs'
the
is
and
a "reasonable rate and one
Plaintiff-intervenor's
to
attorneys
day
which
these
are
fully
entitled in this case." REC. P. 13.
The
only
other fee amounts suggested to the court
rates of compensation for the City's outside counsel,
are
the
575.00
per
hour during the first trial, and the affidavit filed by West Texas
Legal
Services that $60.00 per hour was appropriate for appellate
work.
There
is
~
evidence that such fees
are the prevailing rates for civil rights work.
court
are
reasonable
or
Additionally, the
applied its "own knowledge" to determine a fee
range,
but
failed to state a basis for that knowledge.
This
court
has
approved the use of
13
current,
ra her
than
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••
••
••
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II
II
-
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historical rates, in the setting of fees. Graves
2d 220,
Co.
224 (5th Cir.
684 F.
rates
is
payment.
2d 1087,
1983);
~
1096 (5th Cir.
~
~
Liquor, Inc.
1982).
Barnes, 700 F.
Adolph Coors
The use of current
justified by the concept of compensation for
The
court quoted from an
Circuit, Copeland
~
Marshall, 641
~
delay
banc decision of
t
e
of
D.C.
F. 2d 880, 893 (1980):
[p]ayment today for services rendered long in the
past deprives the eventual recipient of the value
of
the use of the money in the meantime,
which
use,
particularly in an inflationary era,
is
valuable.
Many
1977,
of the attorneys on this case have been
some six years ago.
working
since
The first trial was in 1979, some four
years ago. With one exception, none have received a dime for their
services.
The
trial
compensation
$75.00
and
court
by
noting
excused
the
failure
that both figures
for
the
pre-trial
work,
$100.00 were within the range of prevailing fees
both time periods.
However, even assuming this is true,
minority voters deny based on the testimony of Mr.
10-16,
adjust
to
which the
Goss,
REC. Pp.
the court does not justify a differential between the
If delay in payment were to be considered,
rates.
for
two
then pre-trial
since
pay for the time prior to the first trial should be higher,
it has been longer in coming.
The
found
stated
a
court
the~
awarded $600.00 per day for
range to be $500.00 to 51,000.00.
for
selecti~n
of the $600.00
14
trial
There is
figure.
Again
work,
no
the
and
reason
only
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evidence
before the court as to prevailing rate is $1,000.00
per
day. REC. P. 1 3 •
Under the "lodestar" method, the duty of the court is to find
the
number of hours reasonably expended and multiply that sum
the
prevailing
Graves
~
hourly
rate in the community for
Barnes, supra, at 222, quoting
~
similar
by
work.
Liquor Ill, 684 F.
2d at 1093.
The
award for attorney's fees on appeal was based solely
un
the hearsay affidavit filed by West Texas Legal Services, alleging
75
work
hours @ $60.00 per hour.
on the appeal,
detailed
chronology
The attorney that actually did
William L.
Garrett,
the
filed with the court a
stating 261.1 hours for the period
June
8,
1979 through August 13, 1982, for work on the appeal of this case.
For the court to accept the hearsay affidavit of West Texas
Services,
Legal
which had no standing before the court, was an abuse of
discretion.
Had the trial court correctly applied the method and used the
prevailing
local rate,
then the "lodestar" for the attorney fees
award would have been :
PRE-TRIAL WORK: 1,603.48 @ $125.00/hr
TRIAL WORK: 81 trial days @ $l,OOO/da
$200,435.00
c
APPEAL WORK: 261.1 hours @ $125.00/hr
COSTS AND EXPENSES:
TOTAL:
$ 81,000.00
$ 32,637.50
c
$
7,01 .56
$321,091.06
15
.!!:
The
THE TRIAL £Qill ERRED
1l!
FAILING TO APPLY
~
MULTIPLIER
trial court excused its failure to apply a multiplier to
the attorneys' fees award by stating that billing fo.
duplication
of work offset the need for a multiplier.
This
court has noted that the
purpo~e
of a multiplier is
to
compensate for the "contingent nature of success," and for quality
of work performed.
Graves
~
Barnes,
supra, at 222. The trial
court found that in this case the contingency factor would justify
the imposition of a multiplier.
the
multiplier,
REC.
P. 58.
However, in denying
the trial court failed to undertake the analysis
required by this court in Graves
~
Barnes, supra, at 222 - 223:
A. The contingency multiplier
1. Analysis of the plaintiff's burden
a. Complexity of the case, legally and factually
b. Probability of the defendant's liability
c. Evaluation of damages
2. Risks assumed in developing the case
I
a.
Number of hours of labor
guarantee of remuneration
b.
Amount of out of pocket expenses
c.
Development
of prior expertise
particular type of litigation
3. The delay in the receipt of payment
B. The quality of representation multiplier
16
without
risked
in
the
1. The result obtained by the verdict
a. The potential money damages
b. The benefit conferred on the class
2.
Basic
unti~ized
An evaluation of the professional methods
in processing the case
in
granting
a multiplier is that
the
"identify those factors supporting its conclusion,
court
should
state the spe-
cific amount by which the basic fee should be increased,
give
a brief statement of reasons therefor."
Graves
and
~
Barlles,
supra, at 222-223.
Consideration
considered
of
a
multiplier
for
contingency
must
separate and apart from the evaluation of the
of services multiplier. Graves
~
be
quality
Barnes, supra, at 223.
In evaluating whether to apply a contingency multiplier,
the
trial court discussed only some of the required factors, and found
those in favor of the minority voters.
The trial court found that
the case was both legally and factually complex,
the
case was taken on a contingent basis by the attorne}s (except
for Mr.
P.
Arthur who was paid at the rate of $30.00 per hour), REC.
56-57; and that there was delay in the receipt of payment (yet
to be
the
REC. P. 55; that
received)~
REC.
P. 58.
The Court wholly failed to discuss
minority voters' request for reimbursement of out
of
expenses, some $7,018.56, which were submitted. REC. P. 3-5.
the
court
liability
failed
to
discuss
the
probability
and an evaluation of the damages,
claims would be difficult or easy to prove.
17
pocket
Also
of
defendant's
e .•
whether the
Further the court did
not
discuss the development of expertise by counsel
which
could
the
court
have been of aid to the court.
As
to
the quality of representation multiplier,
found that the "attorneys in this case had the necessary expertise
and used it skillfully." REC. P. 55. The court did note that money
damages were not sought,
but failed to discuss tllat a substantial
benefit had been conferred on class members.
If the court were going to deny a multiplier,
I
have
discussed
denial.
each
This
discussed
it
of these factors as
each
failed to do - it abused its
below,
related
to
the
discretion.
As
the court wholesale discounted any
and, it did not make the distinction between the
quality
then it should
multiplier,
attributed
the
multiplier,
contingency
lack of such
an
and
award
to
"duplication of efforts."
£:
THE TRIAL COURT ERRED IN FAILING TO SPECIFY
WHATE'FFORTS OF COUN'SELWERE DUPLICATIONS
Basic
in
requirement
the
on
setting
of an attorney's fee
the district court to "explain the
reasons upon which the award is based." Graves
at
221.
its
~
award
is
the
findings
and
Barnes,
supra,
The trial court based its findings of duplication
unsupported
belief that with eight lawyers,
"some of
upon
these
hours, in spite of their volunteer representation of the class, is
duplication."
times
sheets
Yet the court received the "reVised
and
reduced"
of the lawyers which they represented to the
18
court
•
times
sheets
of the lawyers which they represented to the
court
eliminated duplication. REC. P. 7-8.
If
the
should
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not be compensated,
specify
what
I
services
that
duplicated
services
then under Graves it was required
were
duplicated,
and
deduct
for
to
such
duplicati.on.
The method used by the trial court produced an unjust result.
Assuming
that a fair multiplier would be 2,
against
supposed
$186,961.75
I
court were going to find
is
worth of duplication.
illustration
which
duplication
purposes
only).
to
then to off-set that
state
that
there
(Using the court's
The court should have
hours represented duplicated services,
award
was
for
specified
and elimlnated
any
attorneys fee for those hours, and then considered the question of
a multiplier for both contingengy and qualtiy factors.
The
court
abused its discretion in the method by
which
it
handled the question of duplication of services and in its failure
to discuss the relevant factors in the consideration of whether or
not to award a contingency and a quality of work multiplier.
Q:
THE COURT ERRED IN REDUCING
FEE BY 2 5 % - - -
The
district
submitted
listed
25%
by
Hr.
court
~
GARRETT'S
was dissatisfied
Garrett
with
the
in that certain blocks of
chronology
time
as "trial preparation," and discounted his fee request
as it related to those blocks of time.
19
In support
of
were
by
this
These
cases
Eckerhart,
do
supra,
not support such a
at 1942,
reduction.
and lack of contemporaneous
time
Liguor,
~
~t
Adolph Coors, Inc. supra,
records.
not indispensable."
Circuit
I
I
rule
neous,
complete
Anderson,
and
proposition
standardized
2d 1204,
667 F.
that
fee
without
the
1214 (5th Cir.
D.
Parker
1982) slands for
requests that do not show
that
the class cannot be compensanted.
court
least gave the attorney an opportunity to
C.
"contempora-
time records •.. "
benefited
at
"time sheets
This court refused to adopt
that no fees will be awarded
~
1094-1095 notes that
although contemporaneous time records are preferred,
are
~
fn. 13, approved a 30% reduction for
inexperience
Inc.
Hensley
There the
~
the
the
work
district
"revise
and
clarify his petition."
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There
Garrett
was
failed
examination
kept.
this
of
no
to
keep
contemporaneous
time
the
that
Mr.
records.
the fee request will indicate that ttat
Additionally,
summary;
finding by the district court here
An
were
so
request blocked together some time
in
the court did not make any inquiry
whether
there
were actual hand written time sheets to back up this summary.
it done so,
as in Parker
~
Had
Anderson, supra, they would have been
provided.
The
wholesale discount of Mr.
abuse of discretion.
20
Garrett's fee request was
an
r;,.r.(I'("r
tJ'"
f/J#,,vf,F,1r' (r.-:'F'
FI'!,....
1'1'11'
~L:)
The lIinority voters,
pray
the
Appellees and Cross Appellants
herein,
Court to AFFIRM the Judgllent of the trial court on
the
issue of prevailing parties, and REVERSE the judgment of the trial
court
the
regarding the allount of the .ward .nd
"lodestar"
~
illlli
judglllent
for
Ilinority voters' attorneys in the ,lDount of $314,072.50 as
sward,
include
a reasonable
voters would sub.it is "2",
.inority
.ultipl1er,
which
a
ttle
andlnclude"xpenses inttle
(
~
a.ount
of
$7,018.56,
herein.
..J,
(".t
~ \)0
1\.0"
1
d\~7'Sb'
/ '}..1> 1 ",\'1'
b 1V
,/
X ~ b3,,)\~'3·7b
for their costs
?-
.. lt~
tilt
snd
and
attorneys
,i)
rtf(<<
,{"'."t:
,,.JtiI
~,~.l,f'
'\'D~.'},ff~
~ f..' ,l
It"
t~\ Respectfully submitted,
WILl.IAM L. GARRETT
'TTORNEY,"'"
A PROFESSIONAL CORPORATION
8300 Douglas, Suite 800
g;:)';6.::.W"
",
By :o-WI"I''';;':;;:'''-''"'1G';;"";-;'';"H;-;'-07700000
ROLANDO RIOS
201 N. St. ''IIry's, Suite 501
San Antonio, TX 78205
LANE ARTHUR
1216 Avenue K
Lubbock, TX 79401
DAHl EL H. BENSOH
Texas Tech University
Lubbock, TX 79416
ALBERT PEREZ
1112 Texas A'"e.
Lubbock, TX 79401
TOMAS GARZA
1006 13th St.
Lubbock, TX 79401
MARK HALL
1402 Texas Ave.
Lubbock, TX 79408
ROBERT P. DAVIDOW
ATTORNEYS FOR APPELLEES
3401 N. Fairfax Dr.
Arlington, VA 22201
CROSSAPPELLAN~
21
fees
CERTIFICATE OF SERVICE
I
hereby
certify that a copy of the
Appellants'
record,
2000,
Hr.
Appellees/Cross-
Brief has been furnished to Appellants' attorneys
James P.
Lubbock,
Lubbock,
foregoing
TX
TX 79401,
Brewster,
Civil Trial Attorney, P. O. Box
and Shelton & Jones,
79457,
of
by placing a copy in the U.
1801 Avenue
Q.
S. Mail, postage
prepaid and properly addressed on this 24th day of October, 1983.
I
William L. Garrett
Attorney for Appellees
Cross Appellants
22
•u
D. ·.R
n. B
m R!1~Y U LA of
THE U IT 0 ST TES COURT OF APPEALS
OV.25~
FOR THE FIFTH CIRCUIT
u
u
O. 83-1502
THE CITY OF LUBBOCK, TEXAS, and the
Mayor and City Council thereof
BILL McALISTER, ALA HE RY, JOA BAKER
M. J. "BUD" ADERTON and E. JACK BROW
all in Their Official Capacitiea as
Members of the City Council of Lubbock, lexa8
Defendsnts-Appellsnts
VS.
REV. ROY JONES, GONZALO GARZA, EUSEP.IO MORAL S,
and Intervenor, ROSE WILSO , IndivIdually and
as Representatives Respectively of the Blsck and
Mexican-A.erican Voters of the City of Lubbock, Texes
Plaintiffs-APpellees
ON APPEAL fROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT Of TEXAS
LUBBOCK DIVISION
HO ORABLE HALBERT O. WOODWARD, JUDGE PRESIDING
BRIEf Of CROSS-APPELLEE
A D
REPLY BRIEF FOR APPELLANTS
SHELTO
JO ES
TRAVIS O. SHELTON
r. DAL JO ES
1801 Avenue Q
Lubbock, Texas 79 01-4891
ov mb r 23, 1983
JOH C. ROSS, JR.
CITY ATTORNEY
P.O. Box 2000
Lubbock, Texa. 79457
JAMES P. BREWSTER
CIVIL TRIAL ATTOR EY
(806) 762-6411, Ext. 2215
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,
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I . THE
'11'£0 STATES COURT OF APPEAL::;
FOR THE FIFTH CIRCUIT
NO. 83-1502
THE CITY OF LUBBOCK, TEXAS, and the
Yiayor and City Council thereof
BILL NcALISTER, ALAN HENRY, JOAN BAKER,
N. J. "BUD" ADERTO and E. JACK BRO\vN,
all in Their Official Capacities as
Nembers of he City Co ncil of Lubbock, Texas
o f ndants'Appellan s,
VS.
REV. ROY JONES, GONZALO GARZA, EUSEBIO HORALES,
and Intervenor, ROSE WILSON, Individually and
as Representatives Respectively of the Black and
Mexican-American Voters of the City of Lubbock, Texas
Plaintiffs-Appellees.
o
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION
HONORABLE HALBERT O. WOODWARD, JUDGE PRESIDING
BRIEF OF CROSS-APPELLEE
AND
REPLY BRIEF FOR APPELLA TS
SHELTON & JONES
TRAVIS D. SHELTON
T. DALE JONES
1801 Avenue Q
Lubbock, Texas 79401-4891
JOHN C. ROSS, JR.
CITY ATTOR EY
Post Office Box 2000
Lubbock, Texas 79457
JNo ES C. BREv TER
CIVIL TRIAL A TOR~EY
(806) 762- 411. Cxt. 2215
ov m r 23, 19 S 3
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CERTIFICATE OF INTERESTED PARTIES
NO. 83-1502
CITY OF LUBBOCK, TEXAS, et al.
vs.
REV. ROY JONES, et al.
The undersigned counsel of record for Appellants/CrossAppellees, City of Lubbock, et al., certifies that the persons
with an interest in the outcome of this case are unchanged from
those listed in the Certificate of Interested Parties in Appellants' Original Brief.
t
Attorney of Record for City of
Lubbock and Lubbock City Council,
Appellants/Cross-Appellees
STATEMENT REGARDING ORAL ARGUMENT
Counsel for Appellants have decided since original submission of briefs in this cause that oral argument would not be
particularly beneficial in this case.
Further, it is the under-
standing of counsel, based upon an order entered on
ovember 17,
1983, signed by Judge Randall, that this case will be he rd on
the summary calendar by the same panel that heard oral a gumen
in companion Cause No. 83-1196.
ii
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TABLE OF CONTENTS
PAGE
CERTIFICATE OF INTERESTED PARTIES •••••••.••...•..•......... ii
STATEME T REGARDING ORAL ARGUMENT . . . . . . . . . . • . . . . . . . . . . . . . . . ii
TABLE OF CONTENTS ....•..••••••..••..•...................... iii
TABLE OF AUTHORITIES . • . . • . • • • . . . . • . . . . . . . . . • . . . . . . . . . . . . . . . iv
STATEMENT OF THE ISSUES....................................
1
STATEMENT OF THE CASE......................................
1
SECTION I.
REPLY BRIEF....................................
2
ARGUMENT. . .. .. ..•.... .• . .• • •••••. .•. . ..... . . . .. . .. . . ..
2
I.
Appellees were not the prevailing parties
at all stages of the case below
2
The Trial Court erred in the application
of standards governing attorney fee
awards... .• • . . . ... .. . .. . ... •... . . . . . ... . .. .. .
2
RESPONSE TO CROSS-APPEAL •••....•.•............
2
SUMMARY OF ARGUMENT........... . . . • • . • . . . . . . . . . . . . . . . . .
2
ARGUMENT.... ••• •. ••• •• • • •• •• •. ... .. . . . ... . . . . . .. . .. . ..
4
II.
SECTION II.
I.
The Trial Court did not abuse his discretion by failing to award attorney's fees
based on present hourly rates or by failing to apply a multiplier to the resulting
fee..........................................
4
The Trial Court did not err in reducing
the att~rney fee award for duplication
of e f f o r t . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4
The Trial Court did not err in discounting
Mr. Garrett I s f e e . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6
CONCLUSION. • . . • • • • . • . . • • • • • • • . . • . . . . . . . . . . . . . . . . . . . . . . . . . . .
8
CERTIFICATE OF SERVICE.....................................
9
II.
III.
iii
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TABLE OF AUTHORITIES
CASE
PAGE
Copper Liquor, Inc. v. Adolph Coors Co.,
684 F.2d 1087 (5th Cir. 1982)
5
Hensley v. Eckerhart,
_ _U. S.
, 103 S. Ct. 1933 (1983)
5
Johnson v. Georgia Highway Express, Inc.,
488 F.2d 714, 717 (5th Cir. 1974)
5
Neely v. City of Grenada,
624 F.2d 547 (5th Cir. 1980)
5
Taylor v. Sterrett,
640 F.2d 663, 670 (5th Cir. 1981)
5
iv
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STATEMENT OF THE ISSUES
SECTION I.
1.
REPLY BRIEF
Whether Appellees/Cross-Appellants were the "prevailing
parties" at all stages of the litigation entitling them to an
award of attorneys' fees for both trials held in this case or
only for the second trial.
2.
i<lhether the amount of the award of.attorneys' fees to
the Appellees/Cross-Appellants in this case is excessive and an
abuse of discretion by the Trial Court becauce improper standards
were used and duplication of effort was not properly discounted.
SECTION II.
1.
RESPONSE TO CROSS-APPEAL
Whether the Trial Court abused his discretion by failing
to use proper standards in determining the amount of attorneys'
fees to be awarded to Appellees/Cross-Appellants.
2.
Whether the Trial Court erred in reducing the attorney
fee award for duplication of effort.
3.
Whether the Trial Court erred in discounting Mr. Garrett1s
fee.
STATEMENT OF THE CASE
For purposes of both the Brief of Cross-Appellee and the Appellants' Reply Brief, Appellants adopt the Statement of the Case,
including the Statement of Jurisdiction, Statement of Proceedings
and Disposition in the Court Below, and the Statement of Facts as
those matters appear on pages
I
through 6 of Appellants' Original
Brief previously filed herein.
- 1 -
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SECTION I.
REPLY BRIEF
ARGUMENT
THE TRIAL COURT ABUSED HIS DISCRETION
IN AWARDING EXCESSIVE AND UNWARRANTED
ATTORNEYS' FEES TO APPELLEES
I.
Appellees Were Not the Prevailing Parties ar All Stages of the
Case Below.
Appellants and Appellees have sufficiently joined issue in
their original briefs on the question of whether or not A pellees
were the prevailing parties at all stages of the suit.
Appellants
continue to rely on their arguments previously presented to the
Court, and no additional arguments are presented.
II.
The Trial Court Erred in the Application of Standards Governing Attorney Fee Awards.
Appellees did not respond directly to this second ground of
error in their response to Appellants' Original Brief.
However,
Appellees' Cross-Appeal raises their own allegations of
~rror
claiming that misapplication of the proper standards by the Trial
Court resulted in an inadequate award of attorneys' fees,
rather
than an award which was too high as alleged by the Appellants.
To simplify the response and avoid unnecessary duplication, Appellants will present any additional arguments regarding proper
standards and their application under the Response to
he Cross-
Appeal which follows in Section II.
SECTION II.
RESPONSE TO CROSS-APPEAL
SUMMARY OF ARGUMENT
Each time Cross-Appellants talk about attorneys' fees,
value of past services increases dramatically.
trial an hourly rate of $80 was requested.
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the
After the first
By the end of the
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second trial, those same hours were valued at 5125 each.
Now on
appeal, Cross-Appellants are claiming 5250 per hour for exactly
the same hours
origi~ally
valued at 580--more than a
thr~e-fold
increase:
Total requests are even more shocking.
After the second
trial a total fee of $290,000 was requested from the Trial Court.
Five months later that total has suddenly grown to 5642,182.12 on
appeal.
The facts of this case simply do not begin to justify
the higher rates requested, much less the multiplier demanded on
appeal.
The hourly rates established by the Trial
high, are certainly within the range of fees
situation.
Co~ct,
appropria~e
while
to this
There is no abuse of discretion in setting the fees
below the level demanded by the attorneys in this case, and the
finding is supported by the evidence.
In opposition to the Trial Court's refusal to use a multiplier because of duplication of effort, Cross-Appellant.s object
because the Court did not specify the exact hours of duplication.
The basis for the Court's ruling is clear from the record and is
spelled out in the judgment.
The Cross-Appellants did not need eight attorneys.
that many would have been more than sufficient.
Half
Sheer numbers
dictate the obvious.
Research of the law caused a mul iple du-
plication of effort.
Strategy sessions involved all of the at-
torneys, and trial prepardtion by all necessita ed du.lica ion.
Most obvious is the duplication in the cour room when
six or seven attorneys present at the same
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ime.
here are
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Finally, Cross-Appellants object to the 25
hours submitted by Mr. Garrett.
reduc ion in the
Cross-Appellees submit
reduction by the Court is fully justified.
hat the
The affidavits of MI.
Garrett and his former employer, West Texas Legal Services, are
in direct conflict, both as to the value of his time
spent on the appeal.
nd the ho rs
Mr. Garrett holds hinlself out as an expert
in civil rights litigation.
Even though his participation at the
second trial was very limited in scope, the record reveals that
he submitted twice as many hours as others who carrieu more of
the load.
If he is an expert, less preparation
s,~uld
ave been
required, not more than that required by those who were handling
their first civil rights litigation.
ARGUMENT
I.
The Trial Court did not abuse his discretion by failing to
award attorneys' fees based on present hourly rates or by
failing to apply a multiplier to the fees awarded.
II.
The Trial Court did not err in reducing the at
award for duplication of effort.
orn~ys'
fee
The hourly rates awarded by the Trial Court are within the
range of fees presently being
litigation in Lubbock, Texas.
c~arged
and paid in civil rights
Cross-Appellants complain becau£e
the rate awarded is not the highest in the range found by the
Court on page 4 of the Memorandum Opinion and Order dated July
7, 1983, which is filed in support of the Judgment entered by
the Court on that same date.
The Trial Court had numerous reasons
for awarding the lesser rate.
Cross-Appellants are represented by
i ht a torncys, some of
whom are apparently seeking a major windfall from a "deep pocket."
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There is a significant difference between the stated goal of
u.s.
he
Supreme Court to provide "adequate fees to attract competent
counsel,"
Hensley v. Eckerhart,
U.S.
, 10] S. Ct. 19]]
(198]), and a request for the Court to order payment of $250 per
hour for all attorney time spent on a particular case.
While the
Trial Court has some obligation to award attorneys' fees to prevailing plaintiffs, he also has a duty to see that the award is
fair and reasonable under the applicable standards and in light
of the facts of a particular case.
Courts have consistently made a distinction between lead
counsel and other counsel when fees are set.
For example, see
Copper Liquor, Inc. v. Adolph Coors Co., 684 F.ld 1087 (5th Cir.
1982).
Distinctions are also made between tri 1 work and other
involvement with the case.
547 (5th Cir. 1980).
Neely v. City of Grenada, 624 F.2d
Cross-Appellants are asking for maximum
fees for all hours and all attorneys.
The attorneys for Cross-Appellants cannot jU3tify their numbers.
The Trial Court specifically found that eight attorneys
were not necessary, and they certainly do not merit the payment
of
a fee which is more than double the going rate for the best
trial attorneys in Lubbock, Texas, when operating solo in the
courtroom.
It is clearly within the discretion of the Trial Court
to discount time spent by more than one a torney where only one
is needed.
Taylor v. Sterrett, 640 F.2d 66], 670 (5th Cir. 1981);
Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717 (5th
Cir. 1974).
Any consideration of a multiplier was more than off-
set by the obvious duplication of effort lnvolved in representation
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by multiple attorneys.
The duplication of effort was obvious, and the Trial Court
specifically set out the duplication in his findings.
He is not
required under these circumstances to specify hour by hour the
duplication.
It is easy to talk in the abstract about "magic'" words like
"multiplier" and "lodestar," but the Court must not lose sight
of the object of the discussion in the process.
be reasonable and fair to all parties under the
each case.
The award must
circ~mstances
of
An award of $250 per hour (or even S125 per hour) for
traveling, looking through newspaper records, multiple preparations, and sitting in the courtroom while someone else carries
the load is neither reasonable nor fair.
the ridiculous.
In fact, it borders on
The mandate of the law is that successful attor-
neys be fairly compensated for their labors, but not
njustly en-
riched at the expense of the taxpayers of the City of Lubbock.
III.
The Trial Court Oid Not Err in Oiscounting Mr. Garrett's
fee.
Cross-Appellants next complain because the Trial Court re-
duced the hours submitted by William Garrett by 25% before calculating his fee award.
In an additional complaint which is less
obvious on the surface, Cross-Appellants also allege that the
Trial Court erred in awarding West Texas Legal Services S4,500
for the appeal of the case after the first trial whlle refusing
to accept the much greater claim filed by Mr. Garrett personally.
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If anything, the reduction by the Trial Court should have
been greater.
It is undisputed that Mr. Garrett was a full-time
employee of West Texas Legal Services during the entire
he worked on the appeal.
t~me
that
West Texas Legal Services filed an af-
fidavit with the Court requesting reimbursement for Mr. Garrett's
time in the total amount of 75 hours at the rate of $60 per hour.
This affidavit is in direct conflict with the personal affidavit
filed by Mr. Garrett.
While he
me~tions
his employment with West
Texas Legal Services in passing, the apparent intent of the affidavit is to personally collect attorney's fees for 261.1 hours of
time claimed spent on the appeal at a rate of $250
er hour.
The
Trial Court obviously recognized both the validity and the superiority of the claim by West Texas Legal Services.
The Trial Court's concern with the hours submitted by Mr.
Garrett for time spent in conjunction with preparation for the
second trial is also justified.
Mr. Garrett is a self-proclaimed
expert on civil rights litigation.
If that is so, then it should
require less time for him to prepare for trial than would be required for someone new to the field.
This is particularly true
where, as in this case, his sole job at trial was technical in
nature, to-wit:
ness.
the cross-examination of Appellants' expert wit-
However, a comparison of the requests for attorney's fees
shows that this is not the case.
A careful study of the record shows that Mr. Garrett actually
submitted more than twice as many hours for trial preparation as
were submitted by several others who carried the vast majority of
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the burden of presenting the case during the second trial.
The Trial Court was in the best position to observe the performance of the attorneys and determine the reasonableness of
their requests for payment.
The reduction was fully justified.
~ONCLUSION
For the reasons stated, the United States Court of Appeals
for the Fifth Circuit should reverse the Judgment below, and as
then may appear appropriate, render Judgment on behalf of Appellants, or remand for further consideration under the proper standards of law, with all costs taxed against che A.pellees.
JOHN C. ROSS, JR.
CITY ATTORNEY
Post Office Box 1000
Lubbock, Texas 79457
SHELTON & JONES
Travis D. Shelton
T. Dale Jones
1801 Avenue Q
Lubbock, Texas 79401-4891
ATTO~~EYS
FOR DEFENDANT-APPELLANTS
November 23, 1983
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CERTIFICATE OF SERVICE
The undersigned hereby certifies that three true copies of
the foregoing Brief for Appellants were served upon William L.
Garrett, Attorney at Law, 8300 Douglas, Suite 800, Dallas, Texas
75225, at the request and as designated by Appellees' attorneys,
and one true copy each on the other counsel for Appellees, as
hereafter named, by placing same in the United States Postal Service, postage prepaid and properly addressed, on this the
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day of November, 1983.
TOM GARZA
Attorney at Law
1006 13th Street
Lubbock, Texas 79401
ALBERT PEREZ
Attorney at Law
1112 Texas Avenue
Lubbock, Texas 79401
LANE ARTHUR
Attorney at Law
1216 Avenue K
Suite 1506
Lubbock, Texas 79401
MARK HALL
O'SHEA" HALL
Attorneys at Law
1402 Texas Avenue
Post Office Box 2187
Lubbock, Texas 79408
DANIEL H. BENSON
Attorney at Law
5416 16th Place
Lubbock, Texas 79416
ROLANDO RIOS
Southwest Voter Registration
201 N. St. Mary's
Suite 501
San Antonio, Texas 78205
ROBERT P. DAVIDOW
Geo. Mason School of Law
3401 N. Fairfax Drive
Arlington, Virginia 22201
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