Ron Harper, Kevin Perkins, William Elliot, and Robert McCoy, Plaintiffs-Appellees, Cross-Appellants,
v.
City of Chicago Heights and the Chicago Heights Election Commission, Defendants-Appellants, Cross-Appellees,
Ron Harper, Kevin Perkins, William Elliot, and Robert McCoy, Plaintiffs-Appellees, Cross-Appellants,
v.
Chicago Heights Park District, Defendant-Appellant, Cross-Appellee, and David Orr, Cook County Clerk, Defendant-Appellee.
Nos. 98-2785, 98-2811, 98-2899, 98-3004, 98-3051, 98-3075, 99-2007, 99-2008, 00-1503, 00-15151
In the United States Court of Appeals For the Seventh Circuit
Argued April 6, 1999
Decided July 27, 2000
Rehearing and Rehearing En Banc Denied Aug. 28, 2000.
Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. Nos. 87 C 5112 & 88 C 9800--David H. Coar, Judge.[Copyrighted Material Omitted]
Before Kanne, Diane P. Wood, and Evans, Circuit Judges.
Diane P. Wood, Circuit Judge.
The wheels of justice have turned slowly in this voting rights case, which began more than a decade ago and continues to accrete new appeals almost by the month. The finding of a violation of Section 2 of the Voting Rights Act of 1965, 42 U.S.C. sec. 1971 et seq., has long since been established. Part of the case before us concerns the remedy for that violation. The district court issued an opinion on May 28, 1998, in which it ordered the implementation of a new election method that relies on cumulative voting. The rest of the many appeals consolidated with the case, up to and including those filed in the early spring of the year 2000, concern attorneys' fees. With respect to the remedy, we have reluctantly concluded that the district court moved too quickly in its understandable desire to put this case to rest. We therefore must reverse and remand. This in turn leads us to affirm in part and reverse in part the district court's grant of attorneys' fees and expenses.
* The facts and procedural history of this case are set forth in detail in previous opinions. See Harper v. City of Chicago Heights, 824 F. Supp. 786 (N.D. Ill. 1993); Perkins v. City of Chicago Heights,
The Class wanted the court to order the replacement of the at-large voting systems with single-member districts and to award it attorneys' fees and costs. In February 1989, all parties moved for summary judgment. District Judge Nordberg denied the defendants' motion and granted in part and denied in part the Class's motion. He held that the Class had proven the three "Gingles" factors, see Thornburg v. Gingles,
Judge Will conducted pretrial mediation, and a consent decree resulted. The decree abandoned the at-large election method and created a new system of government for both the City and the Park District. The new plan called for six single- member districts for the election of six City Council members and six park board commissioners, with a mayor and a park board president elected at large. Three of the districts would be majority white, two would be majority African- American, and one would have a majority population of African-American and Hispanic residents of voting age. The consent decree plan was based on the "strong mayor" form of government authorized by the Illinois Municipal Code, and it replaced a "commission" form of government. (The Code allows Illinois cities to select among several acceptable forms of government. The "aldermanic" form is the basic form, see 65 ILCS 5/3.1, but cities may expand upon the aldermanic form by adopting the "commission," see 65 ILCS 5/4 et seq., "managerial," see 65 ILCS 5/5 et seq., or "strong mayor," see 65 ILCS 5/6 et seq., forms. Cities may normally adopt, alter, or repeal a form of government only through a referendum. Ill. Const. art. VII, sec. 6(f).)
In a development that would later prove problematic, the consent decree plan departed from the statutory "strong mayor" form in several respects. First, instead of five wards with two aldermen each, the decree called for six wards with one alderman each. Moreover, the mayor was authorized to appoint a city clerk and treasurer (persons usually elected at large), as well as administrative assistants and a budget and finance director (positions usually reserved for cities larger than Chicago Heights). The consent decree plan also modified the statutorily defined form of government for Illinois Park Districts. See 70 ILCS 1205/1-1 et seq. Rather than five commissioners elected at large, the decree called for six commissioners, one to be elected from each ward.
Judge Will approved the consent decree over the objections of Kevin Perkins and Robert McCoy ("the Individual Plaintiffs"), who had by this time split from their fellow class representatives. Perkins and McCoy thus appealed from the order entering the consent decree (with Harper, Elliott, the City, the Park District, and certain nominal defendants listed as appellees). See Perkins,
By the time the decision in Perkins was handed down (February 7, 1995), the City's 1995 general election was approaching. Judge Will ordered that the election should take place as scheduled, but in recognition of this court's concerns, he also directed that the consent decree should be submitted for voter approval through a referendum. At the same time, he noted that the Park District had passed a resolution adopting the new form of governance specified in the decree and thus that no further action was necessary legally to establish the new Park District structure. On November 7, 1995, Chicago Heights held a referendum and the voters approved the new form of city government--which was modeled on and identical to the form adopted in the earlier consent decree. Judge Will passed away shortly thereafter, and these cases, still on remand to the district court, were reassigned to District Judge Coar.
Following this court's instructions on remand, Judge Coar first reiterated that the old, at- large election method violated Section 2, and he made particularized findings to support this determination. See Harper,
As requested, the parties submitted their proposals. The City, the Park District, and the Class reaffirmed their support for the referendum system, disagreeing only on where the lines dividing the six districts should be drawn. Perkins and McCoy objected to the solution adopted by consent and later by referendum, arguing that the six-member structure negates the power of the minority representatives because (1) in practice tie votes have frequently resulted, with the mayor (who is still elected at large) usually breaking the tie by voting with the white aldermen; and (2) the mayor may exercise veto power, which can be overridden only by a 3/5 majority of the council (i.e. four of the six aldermen). According to Perkins and McCoy, "the mayor now acts as a seventh alderman--indeed, a super alderman, who has the power to appoint two important City positions and who is not elected from a single-member district, but rather, is elected at-large."
Perkins and McCoy proposed an "aldermanic" form of government with seven single-member districts and a mayor, city clerk, and treasurer elected at large. For reasons that are unclear, their plan too departed somewhat from the statutory aldermanic form, which calls for seven wards with two aldermen each for cities whose population is between 20,000 and 50,000. See 65 ILCS 5/3.1-20- 10 & 5/3.1-20-15. Under the aldermanic form of government, the mayor votes in only two circumstances to break a tie (a situation that simple mathematics indicates is less likely to occur with an odd number of aldermen), or where a super-majority is required by law. Perkins and McCoy proposed that lines be drawn to create three majority-white districts, two majority- black districts, one majority-Hispanic district, and one district in which no single group would be in the majority. For the Park District, Perkins and McCoy proposed a seven-member board (whose members would be elected from the seven districts), which would in turn elect a president from within its ranks.
After reviewing the proposals before him, Judge Coar rejected the referendum system because it still did not remedy the original Section 2 violation. See McCoy v. Chicago Heights, 6 F. Supp.2d 973, 981 (N.D. Ill. 1998). Noting that "the parties do not explain how a government structure where the tie-breaking vote is elected at-large remedies a voting rights violation predicated on the fact that the at-large system enhanced discrimination against African- Americans," id. at 980, Judge Coar found his concerns justified by the experience under that system that was accruing, which showed that where a tie has resulted in the city council, the mayor has voted with the white aldermen. (With an even number of aldermen, moreover, ties were not uncommon.) Judge Coar also noted that the mayor's authority was further enhanced by allowing him to appoint the city clerk and treasurer, as well as administrative assistants and directors. Id. None of those powers would have belonged to him under the statutory "strong mayor" government. Finally, Judge Coar criticized the use of an at-large method to elect the Park District board president. Id. Illinois law provides that the board president may be elected by the board members, but Judge Coar believed that the use of an at-large election is particularly problematic in a seven-member board structure where the president has the power to cast tie-breaking votes. Id.
Although Judge Coar suggested that the Perkins and McCoy proposal was legally adequate, id. at 981, he did not embrace it without qualification. He was concerned that a plan that requires the drawing of district lines would be the frequent subject of constitutional attack, recognizing that his task was to steer between the Scylla of racially based district lines, e.g., Abrams v. Johnson,
II
The City, the Park District, and the Class attack the district court's holding on several fronts. First, they argue that the court erred when it found that the referendum system did not remedy the Section 2 violation. Because the modified "strong mayor" plan adopted by the voters in the referendum is a legally adequate remedy, they maintain, the district court was required to accept it. They also suggest that the referendum results can be set aside only if they would independently violate Section 2, and that we should not be worrying about their capacity to cure the earlier Section 2 violation. Second, they argue that even if the referendum plan is an inadequate remedy, the district court's cumulative voting plan is not an acceptable alternative. Finally, the City and the Park District argue that all previous grants of attorneys's fees must be revisited. We address these contentions in turn.
A.
Standing behind the district court's judgment is the earlier finding--unchallenged, as we said-- that the at-large system violated Section 2 of the Voting Rights Act. We think it was correct for the court to ask whether the replacement system eventually approved through referendum would remedy the violation; there was no need for the court to view it as if it had emerged from thin air. See Harvell v. Blythville Sch. Dist. #5,
The district court recognized that courts have relied upon the three factors set forth in Gingles, followed by the nine "Senate Report Factors," in order to decide whether or not a violation of Section 2 exists. See, e.g., Jenkins v. Manning,
The evidence of the mayor's pattern of voting in tie-breaking situations, taken with the likelihood of ties on an even-numbered council, is enough to support the district court's conclusion that the referendum system did not adequately address the acknowledged problem in the City elections. It is true, as the City points out, that the Supreme Court has held that at-large procedures are not unconstitutional per se. See Rogers v. Lodge,
With regard to the Park District, the absence of evidence of continuing discrimination is significantly more troubling. The Park District argues that the resolution system (derived like the referendum system from the consent decree) has solved its Section 2 violation the board president regularly votes with a bloc consisting of two African-American board members, one Hispanic, and one white; further, capital improvement expenditures in African-American and Hispanic districts have increased substantially, suggesting that their residents' concerns are being addressed. Neither the district court's opinion nor the McCoy and Perkins brief addresses these contentions. Because the burden of proving a Section 2 violation lies with the minority group contesting the current system, see Gingles,
B.
The question of the appropriateness of the court's chosen remedy is also a knotty one. On this point, our review is for abuse of discretion. See Connor v. Finch,
The district court's plan suffers from the same procedural flaw as did the consent decree when it was first presented to this court the court's plan modifies the election methods set forth in the Illinois Municipal Code without either going through the statutorily required procedures for making such changes to electoral methods or making a judicial finding that it was necessary to make these changes in order to comply with federal law. As this court explained in Perkins, after a finding of a Voting Rights Act violation, the parties were free to adopt and the district court to approve one of the alternative forms of government provided by Illinois law. However, the parties cannot modify the chosen form simply at-will. . . . Any modifications which must be accomplished through a referendum cannot be made by the consent decree unless the court finds that the statutory provisions would violate federal law and that such changes are necessary to ensure compliance with federal law.
The procedural holding in Perkins, while addressed to a slightly different problem, is equally applicable here, though we note that nothing in our earlier opinion disapproved of cumulative voting in the abstract. The Illinois Municipal Code makes available to cities a variety of election methods. The district court should either have selected one of these methods or found that the Illinois options violate federal law. Instead, as it had done before, it opted for a hybrid system without submitting that plan to the voters, as Illinois law would require, and without explaining why one of the State's authorized systems would not do the job. Although the Municipal Code allows for cumulative voting, it specifies that a city is to be divided into districts (not less than two and not more than six) and that each district is entitled to three aldermen. 65 ILCS 5/3.1-15-30 & 5/3.1-15- 35. Without a finding that the Code's cumulative voting method violates federal law, the district court modified the plan to call for the city-wide election of seven council members.
The district court's plan also suffers from a failure to respect the City's preference for single-member districts. The Supreme Court has held that in fashioning an electoral system to remedy a voting rights violation, courts "should follow the policies and preferences of the State, as expressed in statutory and constitutional provisions or in the . . . plans proposed by the state legislature, whenever adherence to state policy does not detract from the Federal Constitution." White v. Weiser,
Here, the City has demonstrated a clear preference for single-member districts. It proposed a remedial plan that relies on single- member districts and, in doing so, made a policy judgment about which electoral schemes are best suited for the locality. We should defer to the City's plan to the extent possible as long as it does not violate federal law. See Cane, 35 F.3d at 927. Although the district court found that the referendum system was inadequate, it did not find that any use of single-member districts violates federal law.
The United States, appearing as amicus curiae, defends the district court's plan on the ground that, under Illinois law, cumulative voting is an accepted electoral practice. Thus, the United States argues, while the district court's plan may have violated the City's preference for single-member districts, the State has no such preference. We find this distinction unconvincing. First, the United States overstates the popularity of cumulative voting in Illinois although cumulative voting is lawful under the Municipal Code, the use of single-member districts is an equally acceptable electoral practice. Moreover, although Weiser talks of deference to "state policy," a state plan was under attack in Weiser, and its holding is not so limited. The City proposed and must function under the remedial plan and accordingly its judgments are entitled to deference.
It is somewhat troubling that the City has not articulated why it prefers single-member districts over cumulative voting, but this is not an ironclad requirement for public bodies as long as the entity's actual preference can legitimately be inferred from facts on the record. It is obviously true that deference to legislative policy judgments is predicated on the legislature actually having made a policy judgment rather than an arbitrary choice. But we are satisfied that the City did so. Prior to the district court's order, the parties had never thought of cumulative voting. In the absence of a finding that cumulative voting is the only legally viable remedy, the City should have an opportunity to consider the merits and deficiencies of cumulative voting before that system is imposed upon it. We emphasize that our decision should not be understood as a condemnation of cumulative voting. Cumulative voting is, as the Illinois Municipal Code makes clear, a lawful election method that may be implemented under circumstances demonstrating suitable deference to the legislative body. It also has the virtues the district court identified
[R]ather than using race as a proxy for voting preference, such a system allows voters to draw their own jurisdictional boundaries, decide which local governments were most important to them, and allocate their votes accordingly. . . . All minority groups may potentially benefit from such a system--not just racial minorities. . . . Indeed, cumulative voting does not compartmentalize voters according to their race.
Because we reject the district court's remedy on other grounds, we need not address the City's contention that the decision to increase the number of City Council members from six to seven violates the rule of Holder v. Hall, supra, which holds that the size of a governing body is not subject to a Section 2 vote dilution claim.
III
The remaining issues pertain to the district court's orders awarding attorneys' fees and expenses pursuant to Section 14(e) of the Voting Rights Act, 42 U.S.C. sec. 1973(1)(e), and the Civil Rights Attorney's Fee Award Act, 42 U.S.C. sec. 1988. The first award of attorneys' fees covers the period of time between the beginning of the suit and the entry of the consent decree. On December 15, 1994, Judge Will entered an order that awarded Class Counsel $337,777.98, with $297,930.65 attributable to the City and $39,847.33 to the Park District. This award included a 10% enhancement "to reflect the excellent results achieved." Although this court vacated the December 15 award along with the consent decree, on November 28, 1995, after the referendum, Judge Will re-entered the fee award. The Park District paid its portion. The City initially appealed, but then reconsidered and asked us to dismiss the appeal. We granted the motion to dismiss, so there is currently no dispute as to the fees awarded by Judge Will.
Pending, however, are challenges to Judge Coar's order awarding fees and expenses. On March 26, 1999, Judge Coar awarded Class Counsel $55,665 to cover fees and expenses incurred after the entry of the consent decree. (On April 21, 1999, Judge Coar amended the order, increasing Class Counsel's award to $65,547.50.) Also on March 26, Judge Coar awarded Perkins and McCoy's attorneys $192,803.75; the City is responsible for $100,868.12 and the Park District for $91,935.63. Then on February 9, 2000, the court awarded fees in the amount of $11,065 to the attorneys representing Perkins and McCoy, for work done prosecuting their fee petition. The award does not specify how the fee award breaks down between the City and the Park District.
Both the City and the Park District filed appeals from all these orders; this court has consolidated the appeals that reached us after oral argument in this case with the original appeals. Although the City initially challenged Judge Coar's awards of attorneys' fees to the plaintiffs' counsel, it later asked that that appeal be dismissed. We granted the motion. Thus, remaining before us are the City's and the Park District's appeals of Judge Coar's March 26, 1999, fee award, which also provided the basis for the February 9, 2000, award of attorneys' fees to Perkins and McCoy.
First, the status of Perkins and McCoy as "prevailing parties" is at issue. The defendants then challenge the reasonableness of the fees awarded.
Section 1988 states that in a civil rights action, "the court, in its discretion, may allow a prevailing party, other than the United States, a reasonable attorney's fee as part of its costs." Because Perkins and McCoy's status as a prevailing party involves elements of legal analysis, our review is de novo. See Jaffee v. Redmond,
the plaintiff has succeeded on any significant issue in litigation which achieved some of the benefit the parties sought in bringing suit. . . . The touchstone of the prevailing party inquiry must be the material alteration of the legal relationship of the parties in a manner which Congress sought to promote in the fee statute.
Texas Teachers Ass'n v. Garland Independent Sch. Dist.,
Perkins and McCoy are prevailing parties insofar as they succeeded in their goal of having vacated what they regarded as an ineffectual consent decree. That this court did not vacate the decree based upon the precise arguments they raised, as the Park District points out, does not matter. They convinced this court that the decree was improperly entered, thereby succeeding on a "significant issue in [the] litigation." Texas Teachers,
These facts also persuade us that the Park District is being too particular when it asserts that Perkins and McCoy's earlier appeal was not directed against it, and that it therefore should not be responsible for paying fees associated with that appeal. It is true that most of the appeal related to the City, but not all of it did. Judge Coar correctly recognized this on remand, when he reconsidered both the provisions applicable to the City and those applicable to the Park District. The greater problem for Perkins and McCoy is that we have now rejected their challenge to the Park District resolution that implements the earlier consent decree. The fees to which they are entitled from the Park District must therefore be reconsidered. The district court on remand should take into account both whatever contributions they made to the liability findings against the Park District, and their lack of success in changing the remedy for the Park District.
Finally, both the City and the Park District challenge the reasonableness of the district court's fee award to Perkins and McCoy. They allege that (1) counsel for Perkins and McCoy failed to support their claimed hourly rates with sufficient evidence that the rates are reasonable; (2) counsel for Perkins and McCoy used reconstructed time records rather than records made at the time the services were rendered; and (3) counsel for Perkins and McCoy relied on "cluster billing," i.e. grouping several different activities into one description, thus making it impossible to determine whether the individual activities were a reasonable expenditure of time. The defendants maintain that these failings made it impossible for the district court to determine the reasonable value of the services provided. The City also raises a number of challenges to individual entries in the fee petitions. For example, it argues that one of the attorneys for Perkins and McCoy spent an unreasonable amount of time meeting with his clients.
We find no abuse of discretion in the court's decision to accept the proposed hourly rates. The reasonable hourly rate (or "market rate") for lodestar purposes is "the rate that lawyers of similar ability and experience in their community normally charge their paying clients for the type of work in question." Spegon v. Catholic Bishop of Chicago,
As to the reasonableness of the hours expended, when a fee petition is vague or inadequately documented, a district court may either strike the problematic entries or (in recognition of the impracticalities of requiring courts to do an item-by-item accounting) reduce the proposed fee by a reasonable percentage. See Ohio-Sealy Mattress Mfg. Co. v. Sealy Inc., 776 F.2d 646, 651, 657-58 (7th Cir. 1985); see also Hensley v. Eckerhart,
Perkins and McCoy acknowledge that their bills were compiled in part from contemporaneous time records and in part reconstructed. This use of reconstructed records does not doom their petition, as there is no per se rule requiring the submission of contemporaneous time records in the Northern District of Illinois. However, Judge Coar, who concluded that their time records "appear to be contemporaneous," did not address the reliance on reconstructed records. As it is within a district court's power to reduce a fee award because the petition was not supported by contemporaneous time records, see, e.g., Shakman v. Democratic Organization of Cook County, 634 F. Supp. 895, 899 (N.D. Ill. 1986); Rybicki v. State Bd. of Elections of State of Illinois, 584 F. Supp. 849, 861 (N.D. Ill. 1984), we reverse and remand for reconsideration of this issue.
For the reasons discussed above, we AFFIRM the district court's holding that the current election method violates Section 2 of the Voting Rights Act as applied to the City; however, we REVERSE the district court's remedy and REMAND to the court to craft a suitable remedy. We REVERSE the district court's holding that the current election method violates Section 2 as applied to the Park District. We VACATE in part and AFFIRM in part the March 26, 1999, order and the February 9, 2000, order granting attorneys' fees and expenses. Specifically, we AFFIRM the district court's award of attorneys' fees to Perkins and McCoy from the City and VACATE and REMAND for calculation of the precise amount of fees. We VACATE and REMAND the award of fees to Perkins and McCoy from the Park District; should the district court determine on remand that Perkins and McCoy are entitled to fees for their suit brought against the Park District, it should reconsider the amount, taking into account this opinion. Finally, we do not disturb the award of fees to plaintiffs' counsel--the Park District did not appeal that award and we dismissed the City's appeal of that award on the City's motion. All parties shall bear their own costs attributable to this appeal.
Notes:
Notes
There was also one other appeal initially brought by the Chicago Heights Park District (98-2798); this appeal was dismissed on the Park District's motion before briefing and oral argument.
Those three factors are the preconditions the Supreme Court set out in Gingles for the successful maintenance of a vote dilution claim under the Voting Rights Act. The minority group must be able to demonstrate (1) that the group is sufficiently large and geographically compact to constitute a majority in a single-member district, (2) that the group is politically cohesive, and (3) that the white majority votes sufficiently as a bloc to enable it, in the absence of special circumstances, usually to defeat the minority's preferred candidate. 478 U.S. at 50-51.
The Report lists the following factors
(1) the extent of any history of official discrimination in the state or political subdivision that touched the right of the members of the minority group to register, to vote, or otherwise to participate in the democratic process;
(2) the extent to which voting in the elections of the state or political subdivision is racially polarized;
(3) the extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, anti- single shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against the minority group;
(4) if there is a candidate slating process, whether the members of the minority group have been denied access to that process;
(5) the extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process;
(6) whether political campaigns have been characterized by overt or subtle racial appeals;
(7) the extent to which members of the minority group have been elected to public office in the jurisdiction;
[(8)] whether there is a significant lack of responsiveness on the part of elected officials to the particularized needs of the members of the minority group; and
[(9)] whether the policy underlying the state or political subdivision's use of such voting qualification, prerequisite to voting, or standard, practice, or procedure is tenuous.
Sen. Judiciary Comm. Rept. at 28-29.