IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION

Transcription

1 Case 5:11-cv OLG-JES-XR Document 845 Filed 08/09/13 Page 1 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION SHANNON PEREZ HAROLD, et al. ) ) Plaintiffs ) CIVIL ACTION NO: -and- THE HONORABLE HENRY CUELLAR ) Member of Congress, CD 28 ) ) Plaintiff-Intervenor ) ) v. ) ) STATE OF TEXAS; RICK PERRY, ) In his official capacity as Governor of the ) State of Texas; DAVID DEWHURST, ) In his official capacity as Lieutenant ) Governor of the State of Texas; JOE ) STRAUS, in his official capacity as ) Speaker of the Texas House of ) Representatives ) 3Defendants ) ) SA-11-CA-360-OLG-JES-XR ) ) Plaintiff Congressman Henry Cuellar files his Motion and Brief for Reasonable Interim Attorneys Fees Prevailing Party as Basis for Fees: Section 19731(e) of the Voting Rights Act provides that "[i]n any action or proceeding to enforce the voting guarantees of the fourteenth or fifteenth amendment, the court, in its discretion, may allow the prevailing party,... a reasonable attorney's fee,... and other reasonable litigation expenses as part of the costs." 42 U.S.C.A (e); see also 42 U.S.C. 1988

2 Case 5:11-cv OLG-JES-XR Document 845 Filed 08/09/13 Page 2 of 7 (providing that "the court, in its discretion, may allow the prevailing party,... a reasonable attorney's fee as part of the costs"). Thus, "[o]nly 'prevailing parties' may recover attorney's fees under 42 U.S.C. 1973/ (e), 1988." Wilson v. Mayor & Bd. of Alderman ofst. Francisville, La., 135 F.3d 996,999 (5th Cir.1998). ln civil rights cases, "[i]f the plaintiff has succeeded on any significant issue in the litigation which achieve[d) some of the benefit the parties sought in bringing the suit, the plaintiff has crossed the threshold to a fee award of some kind." Texas State Teachers Assoc. v. Garland Ind. Sch. Dis/., 489 U.S. 782, (1989) (quotations omitted). Hewitt v. Helms, 482 U.S. 755, 760, 96 L. Ed. 2d 654, 107 S.Ct (1987). In this case Plaintiff Intervenor Congressman Cuellar succeeded on [a] significant issue in the litigation and obtained the benefit he sought: the interim redistricting remedy plan (C235) imposed by this court and adopted by the defendants in 2013 was based on the bi-partisan remedy plan (C216) submitted by Congressmen Cuellar and Conseco (Transcript of Oct. 31, 2011 Hearing, Page 215, 238 & 252 testimony of Congressman Cuellar) 1. Judge Smith cited this plan as the preferred plan (Dkt #544 p 18). Plan C235 patterned from 216 restored minority voting rights in the following manor: 1. Restored CD 23 as a viable minority districts by increasing the SSVR to the level it was before the Legislature weakened it in C185; 2. It created a minority district in the Dallas / Ft. Worth Area that did not exist in C185; it created CD33 that has now elected an African American; 3. Improved the crossover/coalition minority district between San Antonio and Austin, CD 25; 1 C235 has as its genesis C216 which Congressmen Cuellar and Conseco suggested to the Court as a bi-partisan plan; Later C216 evolved into C226 (Dkt #610) which was agreed to by the State of Texas and finally ordered by the Court The Court order makes it clear that C235 was identical to C226 (Dkt #681 ft note 1). -2-

3 Case 5:11-cv OLG-JES-XR Document 845 Filed 08/09/13 Page 3 of 7 4. Restores the minority strength in the Nueces/Cameron County minority district, CD 34. Moreover, Plan C216 was the only plan proposed by the plaintiffs that had the appropriate legal basis: deference to state policy as a starting point in drawing a remedy. The Supreme Court held in this case that since Plan C 185 was the adopted state plan, it reflected state policy and was the appropriate starting point for imposing a court ordered election plan, Perry v. Perez, 132 S. Ct. 934 at 941 (Jan. 20, 2012). Mr. Yeldell, the technician who worked on bi-partisan plan, testified that C216 was drawn based on the State Plan as the starting point, the template, and then made adjustments to address the minority voting rights concerns, (Trans of Oct. 31, 2011 Hearing, p. 275 and 282 Testimony of Scott Yeldell). In Perry the Supreme Court held that a district court should take guidance from the State s recently enacted plan in drafting an interim plan. Id at 941. These facts were documented in the court advisory filed by Congressman Cuellar on the development of the final interim court ordered plan, Dkt# 642. Finally, movant also qualifies as a prevailing party because of the injunction obtained: it prohibited the use of C185 and ordered the use of Plan C235 for the 2012 elections as an Interim Court Ordered plan (Dkt#691). The injunction was based on this Court s finding that the voting rights claims asserted against C185 under Section 2 of the Federal Voting Rights Act (VRA), 42 USC 1973c, were not insubstantial and that C235 addressed most of the concerns (Dkt# 691, p1). In other words, "the plaintiff [obtained] a resolution of the dispute which changes the legal relationship between [it] and the defendant," Texas State Teachers, 489 U.S. at 792

4 Case 5:11-cv OLG-JES-XR Document 845 Filed 08/09/13 Page 4 of 7 The success achieved by Congressman Cuellar qualifies as a prevailing party entitled to attorney fees, Texas State Teachers Assoc. v. Garland Ind. Sch. Dis. Id. Interim Fees 2 : The Supreme Court has held that such fee awards are available before the litigation is final, and that fees can be awarded on an interim basis. Texas State Teachers Assoc. v. Garland Indep. Sch. Dist., Id at 791. ( Congress cannot have meant prevailing party status to depend entirely on the time of a request: A prevailing party must be one who has succeeded on any significant claim affording it some of the relief sought, either pendente lite or at the conclusion of the litigation. ); Hutchinson v. Patrick, 636 F.3d 1, 8 (5th Cir. 2011) ( The Supreme Court has made it transparently clear that an award under a federal fee-shifting statute may sometimes be appropriate prior to the entry of a final judgment). In Hanrahan v. Hampton, 446 U.S. 754,758, 64 L. Ed. 2d 670, 100 S. Ct (1980) (percuriam), the Supreme Court reviewed the legislative history of 1988 and found that Congress intended to permit the interim award of counsel fees only when a party has prevailed on the merits of at least some of his claims. Such an award is proper, pendente lite, where a party has established his entitlement to some relief on the merits of his claims. Thus, prevailing party status is not restricted to a party who has secured a favorable final judgment. Hutchinson, 363 F.3d at 8 (internal citations and quotations omitted) (emphasis added). The district court s discretion to order interim attorney s fees serves 2 Now that there is a possibility that this case could be protracted under Sec. 3( c) as suggested by the United States (Dkt#827), the need for interim fees looms so that the advantage of the Defendants resources do not impact the effectiveness of protecting those aggrieved of their civil rights, Allen v. La. State Bd of Dentistry, 948 F. 2d 946, 947 (5 th Cir. 1991). -4-

5 Case 5:11-cv OLG-JES-XR Document 845 Filed 08/09/13 Page 5 of 7 to further the goal of ensuring effective access to the judicial process for those aggrieved of their civil rights. Allen v. La. State Bd. of Dentistry, 948 F.2d 946, 947 (5th Cir. 1991). For these reasons, Plaintiff-Intervenor Congressman Cuellar hereby requests that the Court grant his motion for reasonable attorney fees and costs. Amount Requested: The Fifth Circuit has provided the following guidance for district courts to determine an appropriate award of attorneys fees: In Johnson v. Georgia Highway Express, Inc., 488F.2d 714 (5th Cir. 1974), we establishedtwelve factors which district courts must consider in deciding the amount of attorney s fees to award to a prevailing plaintiff. The twelve factors are considered within the framework outlined in Copper Liquor, Inc. v. Adolph Coors, 684F.2d 1087 (5th Cir. 1982) [Copper Liquor III]. Under Copper Liquor the district court should: (1) ascertain the nature and extent of the services supplied by the attorney; (2) value the services according to the customary fee and quality of the legal work; and (3) adjust the compensation on the basis ofthe other Johnson factors that may be of significance, 684 F.2d at The product of factors (1) and (2) is called the lodestar. See Nisby v. Commissioners Court, 798 F.2d 134,136-37(5 th Cir. 1986); 3 Subsequent to the opinion in Johnson, the Supreme Court held that an award of attorneys fees under section 1988 should normally be based on multiplying a reasonable number of hours worked by a reasonable rate of compensation. Blum v. Stenson, 465 U.S. 886, 888, 104 S.Ct.1541,1548, 79 L.Ed.2d 891, 895 (1984); Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, , 76 L.Ed.2d 40, 50(1983). The Court noted, however, that the calculation of the lodestar does not end the inquiry and that other considerations may persuade the district court to increase or decrease a fee award. Hensley, 461U.S. at 434,103 S.Ct.at 1940, 76 L.Ed.2d at 51. In Brantley v. Surles, 804 F.2d 321(5th Cir. 1986), another panel of the court upheld a fee award where 3 The Johnson factors are addressed directly in the Rios Affidavit filed with this motion.

6 Case 5:11-cv OLG-JES-XR Document 845 Filed 08/09/13 Page 6 of 7 the district court did not evaluate each Johnson factor because the overall award me[t] the Supreme Courts guidelines in Blum and Hensley. Id. at 326. follows 4 : Movant seeks fees and costs in the amount of $328, They are summarized as Total Professional Services EXPENSES: TRAVEL Travel to Wash DC $ Travel to Wash DC $ Travel to & from Laredo $ Travel to & from Laredo $ Travel to & from Laredo $ Copies&Faxes $0.10 copies $1, Maps 8x10 65 $20.00 maps $1, Maps ledger & color 55 $45.00 maps $2, Map Invoice GIS Attached 6/13/13 GIS invoice maps/gis $2, Maps b&w $0.00 $0.00 Expenses $9, CURRENT CHARGES: SUMMARY OF BILLING Position NameRate/Hr Total Hours for Staff and Attorneys Amount Attorney RR $ $270, GIS SS $ $31, PARA DG $ $16, TOTAL $312, CUMULATIVE SUMMARY OF BILLING Expenses Billed to Date Total Fees $9, Total $328, Time sheets and expense records have been filed along with this motion. -6-

7 Case 5:11-cv OLG-JES-XR Document 845 Filed 08/09/13 Page 7 of 7 CONCLUSION As it is clear that this litigation will continue to be protracted, interim fees are allowed in a case of this nature so that the endless resources of the State Defendant are not used to compromise the Plaintiffs ability to adequately represent the interest of the minority community. DATED: August 7, 2013 Respectfully Submitted, ROLANDO L. RIOS 115 E. Travis, Suite 1645 San Antonio, Texas Ph: (210) Fax: (210) rrios@rolandorioslaw.com By: Rolando L. Rios /s/ ROLANDO L. RIOS SBN: Attorney for Plaintiff-Intervenor Cuellar The Law Offices of Rolando L. Rios The Milam Building CERTIFICATE OF SERVICE I certify that on this a true and correct copy of this Plaintiff Intervenor Motion for Attorney Fees and Costs has been served upon the Defendants using the electronic filing system. _ Rolando L. Rios /s/ _ Rolando L. Rios

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66 Case 5:11-cv OLG-JES-XR Document Filed 08/09/13 Page 1 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION SHANNON PEREZ, et. al., Plaintiffs ) CIVIL ACTION NO: ) SA-11-CA-360-0LG-JES-XR ) (Lead Case) ) vs. ) ) THE STATE OF TEXAS, et. al., ) Defendants. ) ORDER GRANTING PLAINTIFF CUELLAR REASONABLE ATTORNEYS' FEES AND COSTS The Court has before it the Plaintiff Cuellar s Motion for Attorney Fees pursuant to 42 U.S.C (e) and The Court having reviewed the motion, supporting documentation and documents in opposition is of the view that the motion is well taken. An award of reasonable attorneys' Fees and Costs is proper under 42 U.S.C l(e) and This Motion is appropriate since the Court Ordered Interim Plan, C235, resulted in the following: ordered into effect a remedy that the movant was seeking and enjoined the use of the state redistricting plan, C185, that the movant wanted enjoined. These results entitles movant, as a prevailing party, to recover "a reasonable attorney's fees as part of the costs pursuant to 42 U,S.C (e) and The Supreme Court has determined that civil rights plaintiffs are prevailing parties "if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing the suit." Texas State Teachers Association v. Garland Independent School District, , 789, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989). In other words, "the plaintiff must be able to point to a resolution of the dispute which changes the legal relationship between [it] and 3

67 Case 5:11-cv OLG-JES-XR Document Filed 08/09/13 Page 2 of 3 the defendant," Texas State Teachers, 489 U.S. at 792. In this case, the State of Texas was enjoined from using the state congressional redistricting plan for the 2012 election cycle and ordered an interim redistricting plan that increased the number of minority congressional districts. Also, the Supreme Court has held that such fee awards are available before the litigation is final, and that fees can be awarded on an interim basis. ld. at 791 ("Congress cannot have meant 'prevailing party' status to depend entirely on the time of a request: A prevailing party must be one who has succeeded on any significant claim affording it some of the relief sought, either pendente lite or at the conclusion of the litigation."); Hutchinson v. Patrick, 636 F.3d 1, 8 (5th Cir. 2011) ("The Supreme Court has made it transparently clear that an award under a federal feeshifting statute may sometimes be appropriate prior to the entry of a final judgment). "Such an award is proper, pendente lite, where a party has established his entitlement to some relief on the merits of his claims. Thus, prevailing party status is not restricted to a party who has secured a favorable final judgment." Hutchinson, 363 F.3d at 8 (internal citations and quotations omitted) (emphasis added). The district court's discretion to order interim attorney's fees serves ''to further the goal of ensuring effective access to the judicial process for those aggrieved of their civil rights." Allen v. La. State Bd. of Dentistry, 948 F.2d 946, 947 (5th Cir. 1991). In this case, movant was successful in restoring minority voting rights in the following manor: 1. Restored CD 23 as a viable minority districts by increasing the SSVR to the level it was before the Legislature weakened it in C185; 2. It created a minority district in the Dallas / Ft. Worth Area that did not exist in C185; it created CD33 that has now elected an African American; 3. Improved the crossover/coalition minority district between San Antonio and Austin, CD 25; 4. Restores the minority strength in the Nueces/Cameron County minority district, CD 34. 3

68 Case 5:11-cv OLG-JES-XR Document Filed 08/09/13 Page 3 of 3 Moreover, movant had the appropriate legal basis in proposing a remedy: deference to state policy as a starting point in drawing a remedy. The Supreme Court held in this case that since Plan C 185 was the adopted state plan, it reflected state policy and was the appropriate starting point for imposing a court ordered election plan, Perry v. Perez, 132 S. Ct. 934 at 941 (Jan. 20, 2012). Mr. Yeldell, the technician who worked on the movant s plan, testified that C216 was drawn based on the State Plan as the starting point, the template, and then made adjustments to address the minority voting rights concerns, (Trans of Oct. 31, 2011 Hearing, p. 275 and 282 Testimony of Scott Yeldell). In Perry the Supreme Court held that a district court should take guidance from the State s recently enacted plan in drafting an interim plan. Id at 941. These facts were documented in the court advisory filed by Congressman Cuellar on the development of the final interim court ordered plan, Dkt# 642. As reflected in the exhibits filed with this motion, the movant expended $328, fees and costs to prosecute this case. THEREFORE, considering all the relevant facts and relevant legal principals hereby awards as attorney fees and costs. SIGNED and ENTERED on this the of, UNITED STATES DISTRICT JUDGE 3