The opinion of the court was delivered by: Bua, District Judge.
Before the Court is the plaintiffs' Motion for an Award of
Attorneys' Fees and Costs against the state defendants and the
Chicago Board of Election Commissioners (the Board). For the
reasons stated herein, the Motion is granted as against the state
defendants and denied as against the Board.
Plaintiffs consist of the organization commonly known as
P.O.W.E.R. and individual members therein. In anticipation of the
February 22 mayoral primary held in the City of Chicago,
P.O.W.E.R. sought to secure the right to register voters inside
certain offices of the Illinois Department of Public Aid (IDPA)
and the Illinois Department of Labor (IDOL). Because the State
agencies refused to permit such on-site registration and because
the Board therefore refused to certify such locations as
"temporary places of registration" pursuant to Ill. Rev.Stat. ch.
46, § 6-50.3 (1981), P.O.W.E.R. filed the instant lawsuit under
42 U.S.C. § 1983.
On December 10, 1982, the Court entered a temporary restraining
order invalidating the state's policy prohibiting on-site voter
registration. Following the order, the Board agreed to approve
plaintiffs' proposed sites as "temporary places of registration"
and to provide registrars at each location. On December 20, 1982,
the Court extended the temporary restraining order and on
December 30, 1982, a preliminary injunction was entered. The
registration drive ended on January 17, 1983 and, because they
had obtained all of the relief which they had sought, plaintiffs
moved to voluntarily dismiss the case pursuant to Fed.R.Civ.P.
41(a)(2). On January 19, 1983, the Court granted plaintiffs'
motion and denied the defendants' request for entry of a final
judgment. Plaintiffs now seek attorneys' fees and costs under
42 U.S.C. § 1988 as prevailing parties.
At this juncture, the state defendants do not challenge the
plaintiffs' entitlement to attorneys' fees and costs if indeed
the plaintiffs are prevailing parties.*fn1 Instead, the State
defendants focus on the apportionment of the fees and costs
between themselves and the Board.
The Court notes preliminarily that the plaintiffs in the
instant lawsuit are prevailing parties under the statute as they
have "essentially succeeded" in obtaining the relief sought.
Syvock v. Milwaukee Boiler Mfg. Co. Inc., 665 F.2d 149, 162-165
(7th Cir. 1981). The absence of any final, permanent injunction
is therefore inconsequential so long as the litigation can be
said to have served as a catalyst in providing the plaintiffs
with the relief sought. Harrington v. DeVito, 656 F.2d 264,
266-268 (7th Cir. 1981). In the case at bar, the instant
litigation served as such a catalyst.
It is by now well settled that, while an award of attorneys'
fees lies within the discretion of the District Court, in the
absence of special circumstances which would render an award of
attorneys' fees unjust, fees should ordinarily be awarded to a
prevailing plaintiff. David v. Travisono, 621 F.2d 464, 468 (1st
Cir. 1980); Witherspoon v. Sieloff, 507 F. Supp. 667, 668
(N.D.Ill. 1981). That the award is sought by a legal services
organization which furnishes its services without cost is
inconsequential. Dennis v. Chang, 611 F.2d 1302 (9th Cir. 1980).
As plaintiffs can be said to have prevailed and as no special
circumstances exist in the case at bar which would require the
Court to deny fees, it is clear that the plaintiffs are entitled
to an award of attorneys' fees under 42 U.S.C. § 1988. The only
remaining question concerns the apportionment of the cost of the
award between the state defendants and the Board.
The plaintiffs and the Board essentially argue that the State
defendants should be held primarily, if not solely, responsible
for payment of the award. It is their contention that the instant
litigation was necessitated solely by the intransigence of the
State in its failure to allow registration at the IDPA and IDOL
offices and that the actions of the Board were merely in response
to the State's position. Specifically, plaintiffs note that it
was the State defendants' policy which prohibited on-site voter
registration that precipitated the controversy and that the State
defendants consistently opposed all efforts to resolve this
matter by agreement. Indeed, throughout the controversy, the
Board appeared more than willing to accommodate any agreement
reached by plaintiffs and the State defendants.*fn2
When issued, the injunctive relief ordered bound not the Board
but only the State defendants. While the Board did agree to such
relief, it does not appear that by so doing the Board was
effecting a change in its position. Instead, as had been the case
throughout the course of the controversy, the Board merely
reacted to the position and actions of the State defendants.
Hence, when the State was ordered to allow registration in the
various offices, the Board did its part by agreeing to designate
the offices as "temporary places of registration" and to supply
the necessary registrars.
The Court has the power, in its discretion, to apportion the
cost of an award of attorneys' fees between two defendants or
sets of defendants as it considers just. Harrington v. DeVito,
656 F.2d 264, 268-269. As it is the opinion of this Court that
the instant lawsuit was required to catalyze only the actions of
the State defendants and not those of the Board, the State
defendants must be required to bear the entire burden of the cost
of the award of attorneys' fees. Plaintiffs are therefore hereby
awarded attorneys' fees in the amount of $13,297.75 plus any
additional fees incurred in litigating the question of fees
herein decided. Bond v. Stanton, 630 F.2d 1231 (7th Cir. 1980).
In addition, pursuant to 28 U.S.C. § 1920, the $60 fee required
to file the instant suit shall be borne by the defendants. All
amounts herein awarded shall be paid by the State defendants.