Pitochelli v. Town of Johnston

• Court: Court of Appeals for the First Circuit
• Decided: August 17, 1993
• Docket: 92-2339
• Status: Published

Opinion

USCA1 Opinion

August 17, 1993   UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                _____________________

No. 92-2339

                              ERNEST PITOCHELLI, ET AL.,

                                Plaintiffs, Appellee,

                                          v.

                                  TOWN OF JOHNSTON,

                                Defendant, Appellant.

                                _____________________

                                     ERRATA SHEET

The opinion of this Court issued on July 6, 1993, is amended
          as follows:

               Strike the first full paragraph on page 6.

               Strike "as modified" in the mandate paragraph on page 6.

July 6, 1993
                                [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ____________________

        No. 92-2339

                              ERNEST PITOCHELLI, ET AL.,

                                Plaintiffs, Appellees,

                                          v.

                                  TOWN OF JOHNSTON,

                                Defendant, Appellant.

____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ronald R. Lagueux, U.S. District Judge]
                                             ___________________

                                 ____________________

                                        Before

                                Boudin, Circuit Judge,
                                        _____________
                            Coffin, Senior Circuit Judge,
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                              and Stahl, Circuit Judge.
                                         _____________

                                 ____________________

            Thomas A. DiLuglio for appellant.
            __________________
            John A. Glasson for appellees.
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COFFIN, Senior Circuit Judge.  Defendant appeals an award of
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          attorney's  and   expert  fees  granted  to   plaintiffs  at  the

          conclusion of their successful  challenge to the voting districts

          in the Town of Johnston, Rhode Island.  We decrease the amount of

          the expert fees award but otherwise affirm.

                                          I.

               The Town  of Johnston  contains five councilmanic  districts

          that, until this litigation, had not been redrawn since they were

          adopted in 1963.   In June  1990, two registered voters  sued the

          town pursuant to the Civil Rights Act of 1871, 42 U.S.C.    1983,

          1985(3), to  effect reapportionment  in accordance with  the one-

          person,  one-vote standard  of  Reynolds v.  Sims,  377 U.S.  533
                                          ________     ____

          (1964).  In their motion for a preliminary injunction, plaintiffs

          sought immediate redistricting according to data collected in the

          1980 census  or, alternatively,  electing all  seats  in 1990  at

          large.    The district  court  determined  that the  councilmanic

          districts were malapportioned and ordered the town to conduct at-

          large  elections that year.  It did not yet require redistricting

          because release of the 1990 census data was imminent and the town

          could  not  reapportion  the  districts  without  postponing  the

          elections.  

               Once data from the  1990 census became available, plaintiffs

          amended their  complaint to request redistricting  based on these

          population  figures.   Finally,  in August  1992,  on the  eve of

          trial, the town submitted  a reapportionment plan using  the 1990

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census  data.   The plan,  with some  revisions, was  accepted by

          plaintiffs and the court, and a consent judgment was entered.

               Plaintiffs then moved for  attorney's fees, expert fees, and

          costs,   totalling  $26,398.13.     The  town  objected,  arguing

          primarily that  plaintiffs  were not  entitled  to a  full  award

          because they  had not prevailed  on all of their  claims and that

          the town was not  responsible for the malapportionment.   After a

          hearing, the district court  awarded plaintiffs the entire amount

          of their request.  This appeal followed.  

                                         II.

               In an action  to enforce civil rights,  the prevailing party

          may recover attorney's and expert fees.   42 U.S.C.   1988.1  The

          determination  of whether a party  has prevailed and the decision

          to  award  fees  is committed  to  the  sound  discretion of  the

          district  court.    McDonald v.  Secretary  of  Health  and Human
                              ________     ________________________________

          Servs., 884 F.2d 1468, 1474 (1st  Cir. 1989).  The district court
          ______

          must   provide  a  clear  explanation  of  its  award  to  ensure

          meaningful  review.  Grendel's Den, Inc. v. Larkin, 749 F.2d 945,
                               ___________________    ______

          950 (1st Cir. 1984).

               The  town concedes  plaintiffs' entitlement  to an  award of

          attorney's and expert fees.   At oral argument, it  also conceded

          that plaintiffs are entitled to the full amount requested if they
                              
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          1  The retroactive applicability of the Civil Rights Act of 1991,
          which  amended Section  1988  to allow  the  prevailing party  to
          recover  expert fees,  currently  is pending  before the  Supreme
          Court.   See  Landgraf v.  USI  Film Products,  113 S.  Ct.  1250
                   ___  ________     __________________
          (1993), granting cert. in part to, 968 F.2d 427 (5th  Cir. 1992).
                  _________________________
          We need not determine whether the Act applies to this proceeding,
          however, because defendant has never raised the issue.

                                         -4-

are found  to be the prevailing  party on all their  claims.  The

          town  protests,  however, that  the  award  is excessive  because

          plaintiffs did not succeed  in obtaining reapportionment based on

          the 1980 census, as they originally requested.

               A party prevails if it "`succeed[s] on any significant issue

          in litigation which achieve[s] some of the benefit [it] sought in

          bringing  the suit.'"  McDonald, 884 F.2d at 1474 (quoting Nadeau
                                 ________                            ______

          v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir. 1978)).  The district
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          court determined that plaintiffs had achieved their ultimate goal

          of  a just  reapportionment,  based  on  the most  recent  census

          figures.  It further determined that the requested attorney's and

          expert fees  were reasonable.   The court therefore  awarded fees

          for work  expended on both the  1980 and 1990 census  claims.  We

          affirm.

               Defendant's  technical focus  on  the 1980  census claim  is

          misguided.    Plaintiffs  sued   the  town  to  achieve   a  fair

          apportionment  of the town's voting districts, and, at every step

          of  this   proceeding,  they  succeeded.     At  the  preliminary

          injunction hearing, they proved  that the town's voting districts

          were malapportioned under the 1980  census, and the court forbade

          use  of these  districts in  the 1990  elections.  Once  the 1990

          census data became available,  plaintiffs amended their complaint

          and  eventually effected  redistricting based  on these  figures.

          The district  court therefore  did not  abuse  its discretion  by

          awarding  fees  for work  expended  on  plaintiffs' original  and

          amended claims.

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Alternatively,  the town  argues that  special circumstances

          render  any award  unjust.   The town  explains that  its charter

          requires  districts   based  on  the  number   of  electors,  not

          residents.   Johnston Town Charter Sec. 2-6.  It therefore claims

          that  it "did  not  create  and  is  powerless  to  prevent"  the

          malapportionment.   Appellant's Brief at 18-19.  The town asserts

          that  its blamelessness  is  a special  circumstance that  should

          relieve  it of  the  burden of  bearing  plaintiffs' fees.    See
                                                                        ___

          Chastang v.  Flynn and Emrich Co., 541  F.2d 1040, 1045 (4th Cir.
          ________     ____________________

          1976) (citations omitted).

               The town's argument lacks  merit.  We note that  the charter

          itself  requires the town to  redistrict within one  year of each

          census  and more often if necessary, yet  the town took no action

          until  it  was  sued 27  years  after  the  districts first  were

          established.2   The town clearly had the authority to reapportion

          the councilmanic districts, for it drafted the redistricting plan

          incorporated in the consent judgment.  

               Finally, the  town contends that the  district court's award

          of  fees  resulted from  a biased  perception  that the  town had

          prolonged  the litigation  needlessly  and willfully.   The  town

          argues that  newspaper articles critical  of its  conduct of  the

          case  impermissibly influenced  the  district  court.   Defendant

          appends copies  of these articles to its brief on appeal.  It did

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          2  On appeal, the town urges that it made attempts to correct the
          malapportionment before this lawsuit.   The record, however, does
          not contain any competent evidence of these attempts.  

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not  present the issue  of bias or  the articles to  the district

          court.  

               We  decline to  consider the  question of  bias, for  it was

          raised  for the  first  time on  appeal.   See  United  States v.
                                                     ___  ______________

          Yefsky, No. 90-1174, slip op. at 22 n.7 (1st Cir. May 3, 1993).  
          ______

          We do  not intend, however,  for our refusal  to be  construed as

          conferring  merit  on  defendant's  claim.    The  town  has  not

          presented  a   plausible  challenge   to  the   district  court's

          impartiality.

               Affirmed.3
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          3  In its brief, the town included two pages entitled "Appellant,
          Town  of Johnston's,  Motion  for Rehearing,"  which purports  to
          request reconsideration  of the  district court's award  of fees.
          The town has  not filed a  motion requesting this relief,  and we
          decline to  address  its self-styled  "motion."   The  issues  it
          raises, however, are identical to those raised on appeal.

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