nothing to defend Illinois' redistricting
plan" from the plaintiffs' attack and even aligned the State defendants
with the plaintiffs in part by agreeing that the plan violated the voting
rights of African-Americans, while still denying that it violated the
voting rights of Latinos. By thus abdicating "his duty to defend" the
redistricting plan, LULAC and AAWG argue the Attorney General forced them
"to shoulder the costs and legal fees associated with defending the
merits of the plan."
In support of this theory, LULAC and AAWG rely exclusively on a recent
opinion by Judge David H. Coar of the Northern District of Illinois in
King v. State Board of Elections, No. 95 C 827, 2002 WL 221606 (N.D.
Ill. Feb. 11, 2002). King, however, is distinguishable on its facts and,
even if were not, the court would not arrive at the same result. In
King, the plaintiff sued the Illinois State Board of Elections to
challenge the constitutionality of a certain majority-Hispanic
legislative district created as a result of an earlier lawsuit brought
under the Voting Rights Act. Some of the plaintiffs in that earlier
lawsuit then intervened as defendants in King to defend the district at
issue. After ruling against King on the merits, Judge Coar held the
defendant-intervenors could obtain an award of fees and costs from the
State as a co-defendant under §§ 1973l(e) and 1988. In doing so, Judge
Coar seemed to rely on two principal considerations. First, he noted the
State "refused to defend vigorously [the] constitutionally required map
against King's challenge," "played a nominal part throughout the lengthy
litigation," and "passively awaited the outcome" while "the intervenors
carried the weight of the defense." Id. at *1, *3, *4, *5. That rather
accurately describes what the State defendants in the present case did.
But Judge Coar also repeatedly emphasized the "unique procedural history"
of the case before him by observing that the defendant-intervenors in
King "actually took on the role of the traditional civil rights
plaintiff" as they were the ones who had originally "brought charges of
civil rights violations, convinced the court to rectify this violation in
[the earlier law suit], and, in the present case preserved the rights
they had asserted." Id. at *3, *4, *6.
Unlike King, there is nothing "unique" or "unusual" about the
procedural history of this case that would justify recasting LULAC and
AAWG as traditional civil rights plaintiffs. They most certainly were not
enforcing any rights they had secured in a prior law suit. Instead, this
case was a fresh attack on a brand new redistricting map. While the
plaintiffs challenged the map because they believed it violated the Voting
Rights Act and the federal constitution, LULAC and AAWG, among others,
intervened to defend it because they believed it complied with federal
law just the way it was. Period. As there was nothing special about this
case to make one think LULAC or AAWG had "really" played the role of a
traditional civil rights plaintiff, that portion of the court's rationale
in King thus does not apply in this case.
In many ways, the present case more closely resembles what happened in
League of United Latin American Citizens Council v. Clements, 923 F.2d 365
(5th Cir. 1991), and the court agrees with both the reasoning and outcome
in that case. In Clements, the plaintiffs sued the state of Texas,
claiming that the election of state district judges diluted the votes of
blacks and Hispanics in violation of the Voting Rights Act and the U.S.
Constitution. Judge Sharolyn Wood, a sitting
district judge, intervened
in the law suit as a defendant. After the State and Judge Wood received a
favorable ruling on appeal, Judge Wood sought an award of attorneys' fees
against the State by "insist[ing] the Texas attorney general could not
have won the case without her and that he did not adequately defend her
interests or properly perform his official duties." Id. at 368-69.
Assuming all of this as true, the court nevertheless denied Judge Wood's
request to recover fees against Texas under § 1973l(e) and § 1988
"for [the attorney general's] asserted inadequacy." Id. at 369. It
observed that, although the Supreme Court in Independent Federation of
Flight Attendants v. Zipes, 491 U.S. 754 (1989), used equity
considerations to limit the liability of a defendant-intervenor, as
opposed to a named defendant, for a prevailing plaintiff's attorneys'
fees, "the Court has never held or so much as insinuated that such
considerations extend to imposing a prevailing intervenor's expenses upon
a prevailing named defendant." Clements, 923 F.2d at 368. The court also
explained that, even if there are times when it is appropriate to "look
beyond the procedural posture of a case to a party's actual role," such
as in a declaratory judgment action, it would not matter because "Judge
Wood participated in all ways as one defending against a civil rights
claim and not as one seeking to establish and rectify a violation of
civil rights." Id. The same is equally true of LULAC and AAWG in this
case: both of these parties intervened as defendants "disputing civil
rights violations, not as one[s] asserting such violations." Id. at 368
This court recognizes that the U.S. Court of Appeals for the Third
Circuit in Pennsylvania v. Flaherty, 40 F.3d 57 (3d Cir. 1994), a case
upon which Judge Coar heavily relied in King, suggested a prevailing
defendant-intervenor could receive an award of attorneys' fees against
the named defendant under § 1988 when the named defendant "failed to
challenge a legally questionable preliminary injunction, and allowed it
to remain in effect for over fifteen years." Id. at 62. This statement,
however, was dictum and supported by little analysis. As such, this court
has found no persuasive authority to force a prevailing but derelict
named defendant to pay the attorneys' fees of a defendant-intervenor
under a federal fee-shifting statute. In the absence of such authority,
this court declines to tread into what were, before King, uncharted
waters "with no controlling precedent to serve as guideposts." King, 2002
WL 221606, at *7.
The court also refuses to entertain LULAC and AAWG's alternative theory
of recovering attorneys' fees and costs from the State defendants under a
state law claim for quantum meruit. As the court sees it, this is
effectively a separate cause of action against the state of Illinois.
LULAV and AAWG, however, have merely asserted this theory in their
motion; they have not filed any amended complaint to allege such a
claim. And even if they did, the court would refuse to exercise
supplemental jurisdiction over it because all of the federal causes of
action have long since been dismissed from this law suit. See
28 U.S.C. § 1367(c)(3).
For the reasons stated above, LULAC and AAWG's petition for attorneys'
fees and costs is denied.