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Redistricting

Redistricting

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STATE OF NEW MEXICO COUNTY OF SANTA FE FIRST JUDICIAL DISTRICT

COURT

BRIAN F. EGOLF, JR., HAKIM BELLAMY, MEL HOLGUIN, MAURILIO CASTRO, and ROXANNE SPRUCEBLY Plaintiffs, v DIANNA J. DURAN, in her official capacity as New Mexico Secretary of State, SUSANA MARTINEZ, in her official capacity as New Mexico Governor, JOHN A. SANCHEZ, in his official capacity as New Mexico Lieutenant Governor and presiding officer of the New Mexico Senate, TIMOTHY Z. JENNINGS, in his official capacity as President Pro-Tempore of the New Mexico Senate, and BEN LUJAN, SR., in his official capacity as Speaker of the New Mexico House of Representatives, Defendants.

) )

)
) NO. D-IOI-CV-2011-02942

)
) ) ) ) ) ) ) ) ) CONSOLIDATED WITH

D-101-CV-2011-02944 D-101-CV-2011-02945 D010J-CV-2011-03016 D-I01-CV -2011-03099 D-101-CV-2011-03J07 D-202-CV-2011-09600 D-506-CV -2011-00913

) )

DECISION

ON ATTORNEY'S

FEES

Following the 2010 Census, the New Mexico Legislature and the Governor of New Mexico failed to enact into law new redistricting plans for the New Mexico House of Representatives, Congress. State Senate, Public Regulation Commission and the United States

Instead of resolving the issues through negotiation and political compromise, The

New Mexico's elected officials chose the path of litigation to redistrict the State. cost to the taxpayers of this choice has been substantial.

The cost includes the special

session that did not produce redistricting plans enacted into law. It also includes the cost of multiple attorneys retained to represent Governor Susana Martinez, Secretary of State Dianna Duran, Lt. Governor John Sanchez, Speaker of the House Ben Lujan and President Pro-Tempore of the Senate Timothy Jennings, all of whom are defendants in

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this litigation.

It even includes the cost of this Court, as it was necessary to designate a

judge pro tempore to hear this matter due to the overburdened and underfunded state of the New Mexico judiciary. In the present applications before the Court, multiple

Plaintiffs (including six members of the New Mexico Legislature) request that the Court order the taxpayers of New Mexico to pay their attorney's fees.

Attorney's

Fees under the Civil Rights Act and the Voting Rights Act

Both the Civil Rights Act (42 U.S.c. §§1983 and 1988) and the Voting Rights Act of 1965 (4 U.S.c. §1973) provide that a prevailing party may be awarded attorney's fees. The attorney's fee provision of the Civil Rights Act reads in relevant part as follows: In any action or proceeding to enforce a provision of sections ... 1983 ...of this title, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs ... 42 U.S.c. §1988(b). The attorney's fee provision of the Voting Rights Act provides: Attorney's fees. In any action or proceeding to enforce the voting guarantees of the fourteenth or fifteenth amendments, the Court in its discretion may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs. 42 U.S.c. §19731(e). Both fee provisions establish a presumption that a prevailing party in litigation brought under either the Civil Rights Act or the Voting Rights Act is entitled to recover attorney's fees. The general rule is that a prevailing party should ordinarily recover

attorney's fees unless special circumstances render an award unjust.

Chavez v. Curry

Cnty., 130 N.M. 753, 766 (2001) (citing 42 U'SiC. §1988(b) and Hensley v. Eckerhart, 461 U.S. 424,429 (1983». The main considerations for the court in awarding

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attorney's fees are 1) who is a prevailing party under §1988(b) and §19731(e); 2) whether special circumstances render an award unjust; and 3) a determination of the reasonableness of the fees and costs requested. Under §1988, a prevailing party is one that succeeds "on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit." Hensley v. Eckerhart, 461 U.S. at 433 (1983). If a plaintiff has succeeded on any significant issue in the litigation which achieved some of the benefit or relief the plaintiff sought in bringing suit, the plaintiff is a prevailing party and has crossed the threshold to a fee award. Id. The plaintiff "need not prevail on all of the major issues in the litigation. Rather, the plaintiff need only 'succeed on any significant claim' and obtain 'some of the relief sought." Bogan v. Sandoval Cty. Planning and Zoning Comm'n, 119 N.M. 334, 345 (Ct. App. 1994) (quoting Texas State Teachers Ass'n v. Garland Indep. Sch, Dist., 489 U.S. 782, 791 (1989». For redistricting litigation, the majority of courts have recognized that success on the threshold question of unconstitutional malapportionment generally suffices to confer prevailing party status. Perrin v. Kitzhaber, 191 Or. App. 439, 83 P.3d 368, 376 (Ore. App. 2003); In re Kansas Congress. Dist. Reapportionment Cases, 745 F.2d 610, 612 (10th Cir. 1984); Ramos v. Koebig, 638 F.2d 838, 845 (5th Cir. 1981). Under these cases, a plaintiff prevails even when the parties agree that existing districts are unconstitutional and the main issue in litigation is which plan affords the best remedy for the violation. Once it is determined that a party is a prevailing party, the court must next consider the reasonableness of fees and costs requested based on the degree of a litigant's success. Under Texas State Teachers Ass 'n, the "degree of plaintiffs success in relation

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to the other goals of the lawsuit [is] a factor critical to the determination of the size of a reasonable fee." Id., 489 U.S. at 790. In redistricting cases, because such lawsuits "cannot be viewed as a series of discrete claims," a court should consider the significance of the overall relief obtained in relation to the hours reasonably expended on litigation. In
re Kansas Congressional Districts Reapportionment Cases, 745 F.2d at 613-614 (quoting Hensley v. Eckerhart, 103 S.Ct. at 1940).

Both the Tenth Circuit and the New Mexico courts have adopted the lodestar method of awarding fees. Bell v. Bd. of Cty. Commrs. of Jefferson Cnty., 451 F.3d 1097, 1101 (lOth Cir. 2006); Kennedy v. Dexter Consolo School, 129 N.M. 436, 447 (N.M. 2000). For lodestar, the starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. Attorney fees set under §1988 must be consistent with those fees traditionally received from a fee-paying client. Gurule v. Wilson, 635 F. 2d 782, 793 (lOth Cir. 1980). A reasonable fee is a fee that is sufficient to induce a capable attorney to undertake the representation of a meritorious civil rights case. Perdue v. Kenny A., 130 S. Ct. 1662 (2010). The primary consideration in determining a reasonable hourly rate is that rate that is commanded by that attorney in the marketplace. Id. A trial court "has discretion to limit attorneys' fees and that determination must be accorded substantial deference absent an error of law or a clearly erroneous understanding of the facts." Bell v. Bd ofCty. Commrs. of Jefferson Cnty., 451 F.3d at 1104. The appellate courts have generally recognized that trial courts are in the best position to determine an appropriate attorney's fee:

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"[A]n attorneys' fee award by the district court will be upset on appeal only if it represents an abuse of discretion." Mares v. Credit Bureau of Raton, 801 F.2d 1197, 1201 (lOth Cir.1986) ... " 'We customarily defer to the District Court's judgment because an appellate court is not well suited to assess the course of litigation and the quality of counsel.' " Mares, 801 F.2d at 1200-01 (quoting Copeland v. Marshall, 641 F.2d 880, 901 (D.C.Cir.1980) (en bancj). The district court "saw 'the attorneys' work first hand,' " Poolaw v. City of Anadarko, 738 F.2d 364, 368 (lOth Cir.1984) (quoting Higgins v. State ex. rel. Oklahoma Employment Sec. Comm'n, 642 F.2d 1199, 1203 (lOth Cir.1981», and " 'has far better means of knowing what is just and reasonable than an appellate court.' " Mares, 801 F.2d at 1201 (quoting Trustees v. Greenough, 105 U.S. 527,26 L.Ed. 1157 (1882». Case v. Unified School Dist. No. 233, Johnson County, Kan., 157 F.3d 1243, 1249 (10th Cir. 1998).

The Individual Fee Requests In this case, every Plaintiff submitted a request to the Court for payment of attorney's fees and costs. The parties resolved the issue of costs as to all Plaintiffs and the State reached an agreement with the Navajo Plaintiffs regarding the payment of their attorney's fees. As a result, six groups of Plaintiffs have fee requests pending before the Court. Some Plaintiffs have supplemented their requests for fees. The most current total attorney's fee requests (including gross receipts tax) from the parties are as follows: 1. Sena Plaintiffs: 2. The Multi-Tribal Plaintiffs: 3. The James Plaintiffs: $172,730.541 $685,346.63 $582,697.642

1 The calculation of the Sena Plaintiffs' fee request was calculated in a manner similar to the James Plaintiffs' request with out-of-pocket expenses removed, gross receipts tax added and a supplemental fee request included (see footnote 2 below). 2 Because the initial fee application from the James Plaintiffs included costs, it is a bit difficult to clearly determine the fees requested. The original request is set forth as follows: "the James Plaintiffs request an award 0($588,135.95 fortheir attorney's fees, which includes $7,793.70 in reimbursement for their out-ofpocket expenses incurred and $35,765.01 representing 7.00% gross receipts tax, and an additional amount 0($37,692.05 representing their expert witness fee." James Plaintiffs' Motion/or Attorney Fees and Costs. p. 8-9. The parties have resolved all issues as to costs, including expert witness fees. The figure set forth above, therefore, is the amount of $588,135.95 minus $7,793.70 for costs and minus $35,765.01 for gross

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4. The Maestas Plaintiffs: 5. The Egolf Plaintiffs: 6. LULAC Plaintiffs:

$930,162.353 $840,757.58 $ 20,222.504

None of the Plaintiffs objected to the fee requests of the other Plaintiffs. Despite repeated requests from the Court, the Legislative Defendants refused to take a position on the fee requests; therefore, the Court concludes that the Legislative Defendants have no objection to the fees requested. The Executive Defendants presented the only objections to the attorney's fees

requested. The Executive Defendants took a unique approach. First, they contended that the fee requests submitted on behalf of LULAC and by Mr. Durkovich should be rejected by the Court because they were not prevailing parties. Second, the Executive Defendants agree that the Egolf Plaintiffs, the Maestas Plaintiffs, the Multi-Tribal Plaintiffs, the

James Plaintiffs and the Sena Plaintiffs all satisfy the prevailing party requirement; however, they contend that the fees requested by the Egolf Plaintiffs, the Maestas Plaintiffs and the Multi-Tribal Plaintiffs are excessive: Now that the parties have submitted their fee petitions, it is shocking to see that the Egolf, Maestas, and Multi-Tribal Plaintiffs have requested awards that are grossly out of proportion with the other parties' requested awards--sometimes as much as four times greater. Given that these three groups did not prevail to any greater degree than the Sena or James Plaintiffs or the Navajo Intervenors, the Executive Defendants do not believe it is appropriate to use public funds to fulfill those disproportionate requests. Just as before this litigation, the Executive Defendants will do
receipts tax which results in attorney's fees of $544,577 .24. The Court then added back gross receipts tax of7% on this amount for a total attorney's fees request of $582,697.64. 3 The Maestas Plaintiffs have taken the unusual approach of splitting their fee request between attorney Stephen Durkovich on the one hand and the remainder of their attorneys on the other. The figure listed above includes $107,000.00 requested by Mr. Durkovich. Mr. Durkovich initially requested fees in an amount in excess of $150,000; however, in his Reply brief, he indicated he would reduce his fee request to $)00,000.00 plus 7% gross receipts tax, thus the figure of $)07,000.00 is included. The remainder requested is $823,162.35, an amount which covers the other lawyers representing the Maestas Plaintiffs. 4 Although the request for fees from the LULAC Plaintiffs seeks $20,597.50, the Executive Defendants identified a mathematical error in the request. The Court agrees that the LULAC request contained a mathematical error and, therefore, treats the request as $20,222.50.

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what they can to reduce the amount of public funds expended to private litigants seeking to advance their own private political agendas.
Executive Defendants' Response to "Prevailing Party" Fee Petitions, p.3.

The fact that the Executive Defendants focus their objections on the Egolf Plaintiffs, the Maestas Plaintiffs and the Multi-Tribal Plaintiffs is revealing for several reasons. Many of the objections raised as to these three sets of Plaintiffs could have easily been raised as to the James Plaintiffs. Although the original attorney's fee request from the Multi-Tribal Plaintiffs was slightly different, the, present requests from the Multi-Tribal Plaintiffs and the James Plaintiffs are reasonably close in amount; therefore, it is difficult to understand why one amount is "shocking" and the other is not. Apparently, the Executive Defendants' line between "shocking" and "not shocking" is approximately $600,000.00. Moreover, the Executive Defendants' contention that the Multi-Tribal Plaintiffs did not prevail to any greater degree than the Sena Plaintiffs or James Plaintiffs is simply not correct. It is not an exaggeration to say that the Multi-Tribal Plaintiffs prevailed on each and every position they took in this litigation. In contrast, with the exception of the consensus Congressional map and the consensus State Senate map which were agreed to across party lines, none of the individual maps propounded by the Sena Plaintiffs or the James Plaintiffs were adopted by the Court. The James Plaintiffs are political allies of the Executive Defendants. It appears that the extent of the Executive Defendants' desire to "do what they can to reduce the amount of public funds expended to private litigants seeking to advance their own private political agenda" is at least somewhat dependent on the particular political agenda at issue. Finally, the Executive Defendants' objections to the "vast sums requested in the

7

fee petitions submitted by the Egolf, Maestas, and Multi-Tribal Plaintiffs," Response, pp. 11-12, ring hollow in light of the time expended on behalf of the Executive Defendants in this litigation. The Court directed the Executive Defendants and Legislative Defendants

to produce their time records in connection with this matter. In evaluating a fee request, a court may look to the number of lawyers the other side used and number of hours expended as an indication of the effort the litigation required. Case v. Unified Sch. Dist., 157 F.3d at 1250. "The government cannot litigate tenaciously and then be heard to Copeland v.

complain about the time necessarily spent by the plaintiff in response." Marshall, 641 F.2d 880, 904 (D.C. Cir. 1980) (en bane).

"The Tenth Circuit has long

accepted the proposition that one of the factors useful in evaluating the reasonableness of the number of attorney hours in a fee request is 'the responses necessitated by the

maneuvering of the other side." Robinson v. City of Edmond, 160 F.3d 1275, 1284 (lOth Cir. 1998) (quoting Ramos v. Lamm, 713 F.2d 546,554 (10th Cir. 1983». The information produced by the Executive Defendants in response to the Court directive, although possibly somewhat incomplete, demonstrates that the Executive The

Defendants spared no expense in terms of time and effort in litigating this matter.

number of hours spent by the attorneys and legal assistants in litigating this matter on behalf of the Executive Defendants far exceeds the number of hours spent by any individual Plaintiff group. The Executive Defendants correctly note that a direct

comparison between the fees or hours expended by them to the those expended by Plaintiffs is inappropriate for several reasons, including the scope of claims the Executive Defendants were called upon to defend and the lower hourly rate typical of defense representation. Although a direct comparison is not appropriate, the information

8

submitted by the Executive Defendants certainly confirms that the complexity of the litigation required the Plaintiffs to staff the case at a significant level throughout the entirety of the proceedings and that the Executive Defendants considered the issues serious enough to warrant the expenditure of large amounts of attorney time. Before turning to the individual fee requests, several general conclusions can be set forth. First, all of the Plaintiffs have established that they are prevailing parties under the Civil Rights Act and the Voting Rights Act. The Plaintiffs established that the existing districts are unconstitutional and, under the majority of court decisions on this issue, that alone is sufficient to establish prevailing party status. The only objections raised to this conclusion relate to the LULAC Plaintiffs and Mr. Durkovich. The

objection to Mr. Durkovich is nonsensical. Prevailing party status relates to the party, not an attorney. Moreover, in the evidentiary hearing in which Mr. Durkovich appeared, the Court not only found that the existing Congressional map is unconstitutional, but also adopted the argument of zero population deviation as set forth by the Maestas Plaintiffs. This easily satisfies the prevailing party requirement. As to the LULAC Plaintiffs, the question may be a bit closer; however, the LULAC Plaintiffs provide a good example of why courts should continue to adhere to the standard that establishing that the existing districts are unconstitutional is sufficient to establish prevailing party status, particularly in cases in which the Court is called upon to adopt a redistricting plan because the legislative and executive branches failed to do so. In the Congressional trial, the LULAC Plaintiffs presented evidence and argued for the creation of an Hispanic minority majority Congressional district in southern New Mexico. While the Court concluded that such a district is not appropriate under the

9

present demographics of New Mexico, those demographics are changing over time and the time may come when such a minority majority district is appropriate. The law

relating to an award of attorney's fees should not discourage such an argument, particularly in the litigation in which a State fails to adopt any redistricting plan following a census, and the Court is called on to adopt a plan. In such circumstance, a Court should not be deprived of a proposal regarding minority representation because an attorney is concerned that her or she will receive no compensation. Second, the Court concludes that it has adequate evidence in the record to determine the appropriate reasonable hourly rate for all of the attorneys participating in this litigation. The record before the Court includes multiple affidavits from multiple attorneys who opine on the prevailing rates in the market. All of the affidavits taken together provide a sufficient evidentiary record for the Court to evaluate each requested rate for each attorney based upon the individual attorney's experience and expertise. Third, the Court concludes that it is appropriate for this Court to include in any attorney's fee award time spent in conjunction with the proceedings before the New Mexico Supreme Court and the related federal court proceeding. Both the Supreme Court proceeding and the related federal court proceeding are inextricably intertwined with this Court's decisions on the redistricting of the New Mexico House of Representatives. Courts have recognized that work done in other courts that is necessary to attain the results sought in this proceeding may be included. Pennsylvania v.

Delaware Valley Citizen's Council for Lean Air, 478 U.S. 546, 553 n. 1 (1986); Bartholomew v. Watson, 665 F.2d 910, 912-14 (9th Cir. 1982); Sullivan v. Hudson, 490 U.S. 877, 888 (1989); Stathos v. Bowden, 728 F.2d 15, 22 (1st Cir. 1984). It is simply

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more efficient to have these matters addressed in a single determination multiple proceedings in multiple courts. 5

rather than

Fourth, although the Executive Defendants contend that fees should be reduced for work that is "excessive, duplicative, unnecessary, poorly documented, or not

significantly related to successful claims in this court," Response, p. 15, the Executive Defendants have not identified a single specific entry from any plaintiff that fits within any of the categories listed. establish the reasonableness While this Court recognizes that the burden of proof to of the fees rests on the Plaintiffs, several courts have

determined that the failure to make specific objections constitutes a waiver of the right to challenge the reasonableness of the fees. Martinez v. Roscoe, 100 F.3d 121, 124 (lOth

Cir. 1996); Blum v. Stenson, 465 U.S. 886, 892 n. 5 (1984); Bell v. United Princeton

Properties, Inc., 884 F.2d 713, 720 (3rd Cir. 1989). The generalized objections from the
Executive Defendants create the additional problem that the Plaintiffs have not had an ability to respond to any specific objections. If this Court were to identify specific entries that fit within the categories set forth above, it would necessarily need to allow the Plaintiffs an opportunity to respond to those specific entries, thereby extending the

litigation further and generating additional fees. In evaluating the fee requests, this Court has undertaken a review of the records submitted to determine a reasonable fee; however, it should be noted that the Executive Defendants (and all other parties, for that matter) have waived their right to object to any specific time entries.

The Court should note that it does not intend to award any additional fees beyond what is set forth in this Decision. If there is an appeal of this Decision, any party seeking fees should seek those fees from the appellate court. Moreover, any federal proceedings which were filed after entry of the Final Judgments in this case are viewed as separate and any requested fees for those proceeding should be sought from the federal court.
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The Court makes the following determinations as to the individual fee requests: 1. Sena Plaintiffs The Sena Plaintiffs seek attorney's fees totaling $172,730.54. Among the parties that participated in multiple trials, the attorneys for the Sena Plaintiffs expended by far the fewest hours. Unlike most other parties, the Sena Plaintiffs seldom had multiple attorneys appear in these proceedings. The number of hours billed is low given the complexity of the proceedings. Given the experience level of the attorneys involved, the hourly rates of $300-$325 are reasonable and consistent with market rates. The Sena Plaintiffs achieved success in the following areas: 1) the Sena Plaintiffs alleged and the Court found that the existing districting maps were unconstitutional; 2) the Sena Plaintiffs supported the compromise maps adopted by the Court for the United States Congress and State Senate; 3) the Sena Plaintiffs presented evidence which assisted the Court in its determination that it would be improper to adopt the House of Representatives map passed by the New Mexico Legislature. While the Sena Plaintiffs did not achieve the success that some other parties achieved, the Sena Plaintiffs achieved their success in an efficient and cost-effective manner. Because such efficiency produced an attorney's fee request considerably smaller than any other party, the Court concludes that the full amount of$172,730.54 is reasonable and should be awarded. 2. Multi-Tribal Plaintiffs The Multi-Tribal Plaintiffs seek attorney's fees totaling $685,346.63. Initially, the Multi-Tribal Plaintiffs had sought a larger amount for attorney's fees; however, in a subsequent submission, the Multi-Tribal Plaintiffs reduced the number of attorney and paralegal hours for which they seek reimbursement by more than 350 hours. In addition,

12

the subsequent submission also reduced the hourly rate for certain paralegals and also voluntarily reduced the supplemental request for attorney's fees. These combined

reductions decreased the total fee requested by $108,369.51. The Multi-Tribal Plaintiffs' attorneys charged hourly rates between $200 to $315 depending on the experience of the attorney involved. Paralegals were charged at $100

to $125 per hour. Given the experience level of the attorneys and paralegals involved, the hourly rates are reasonable and consistent with market rates. The Multi-Tribal Plaintiffs achieved a very high degree of success on the issues they pursued in this litigation. Act violation in connection They alleged and proved the presence of a Voting Rights with the redistricting of the New Mexico House of

Representative and State Senate. It is important to note that their position on this issue was opposed by the Executive Defendants. for the House of Representatives Court. The Multi-Tribal Plaintiffs proposed districts adopted by the

and State Senate were substantially

Of all the parties to this litigation, the Multi-Tribal Plaintiffs (along with the

Navajo Plaintiffs) achieved the greatest degree of success. Finally, it is important to note that the attorneys representing the Multi-Tribal Plaintiffs faced a challenge unique among the parties. While the various Plaintiff groups often included multiple individuals, only the Multi-Tribal Plaintiffs represented multiple entities. The challenge of jointly representing six separate tribal entities was unique and it is reasonable to conclude that this unique circumstance increased the number of hours necessary to keep their clients both informed and coordinated in their efforts. Given the unique circumstances of the representation, the high degree of success and the voluntary reduction of the fee requested, the Court concludes that the full amount

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of $685,346.63 is reasonable and should be awarded. 3. James Plaintiffs The James Plaintiffs seek fees in the amount of $582,697.64. Given the experience level of the attorneys involved, the hourly rates of $175 to $325 are reasonable and consistent with market rates. Legal assistants were charged at $105 per hour which is also reasonable and consistent with market rates. One of the attorneys for the James Plaintiffs, Henry Bohnhoff of Rodey, Dickason, Sloan, Akin & Robb, took several steps which reduced the amount of fees requested, including a reduction from his standard hourly rate, elimination of a significant portion of his recorded time in an exercise of billing judgment, and charging travel time at a reduced rate. The other attorneys for the James Plaintiffs did not indicate that they took such steps to reduce their fees. In addition, in contrast to all other Plaintiffs, the James Plaintiffs did not seek any supplemental fees in connection with the determination of attorney's fees. The James Plaintiffs achieved success in the following areas: 1) the James Plaintiffs alleged and the Court found that the existing districting maps were unconstitutional; 2) the James Plaintiffs supported the compromise maps adopted by the Court for the United States Congress and State Senate; 3) the James Plaintiffs presented evidence which assisted the Court in its determination that it would be improper to adopt the House of Representatives map passed by the New Mexico Legislature and 4) the James Plaintiffs strongly advocated several important legal positions adopted by the Court, including that a court-ordered plan contain de minimis population deviations except as required to rectify a Voting Rights Act violation or to accomplish a historically

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significant state policy. The degree of success of the James Plaintiffs was significantly less than some

other parties such as the Multi-Tribal Plaintiffs. The James Plaintiffs presented multiple maps in the House of Representatives trial, the PRC trial and the State Senate trial before the consensus map was presented. None of the maps presented by the James Plaintiffs

were adopted by the Court in whole or in part. Given these circumstances, the Court concludes that the total amount of

$582,697.64 is the appropriate lodestar figure for the James Plaintiffs; however, there should be a ten percent reduction in this amount based on the degree of success of the James Plaintiffs in this litigation. The Court concludes that a ten percent reduction is

appropriate because the James Plaintiffs did achieve significant success in the litigation, i.e., joinder in the State Senate and Congressional consensus maps and success on some key legal issues in the case; however, some reduction is necessary because none of the specific maps proposed by the James Plaintiffs were adopted in whole or in part by the Court. With a ten percent reduction in the lodestar amount, the James Plaintiffs are

entitled to attorney's fees totaling $524,427.87.

4. Maestas Plaintiffs
The Maestas Plaintiffs seek attorney's fees in the amount of $930,162.35. The

Maestas fee request is the largest request presented to the Court and is somewhat difficult to evaluate because it is not submitted to the Court in a single request. One request for

fees has been submitted on behalf of attorney Stephen Durkovich, who appeared only in the Congressional trial, and a second fee request has been submitted on behalf of three different law firms: Thomson Law Office; Jones, Snead, Wertheim & Wentworth; and,

15

the Office of Katherine Ferlic. In addition, the Maestas Plaintiffs seek attorney's fees for the Davis Law Finn for services incurred in submitting the fee applications. Interestingly, the Maestas Plaintiffs argue on the one hand that the Court may not simply "eyeball" the fee request in determining whether a percentage reduction is appropriate, while at the same time one of the Maestas attorneys, Mr. Durkovich, seems to have done exactly that when he reduced his fee request to a flat fee of $100,000.00 in his Reply brief. The attorneys representing the Maestas Plaintiffs seek hourly rates ranging from $225 to $350 per hour. Given the experience level of the attorneys involved, these rates are reasonable and consistent with market rates. Although it does not appear that the attorneys representing the Maestas Plaintiffs eliminated any of their billable time in an exercise of billing judgment, it does appear that all of the attorneys other than Mr. Durkovich reduced their standard hourly rates a small amount. The Maestas Plaintiffs have sought additional supplemental fee awards based on their work in connection with the attorney fee applications. Before turning to the Maestas Plaintiffs degree of success in this litigation, a review of the requested fees leads to the conclusion that some requested fees are not reasonable. First, the Maestas Plaintiffs submitted a supplemental fee request on July 20, 2012, requesting supplemental fees in the amount of $8,561.06 for work performed in July 2012. The Court had previously set a deadline of June 18,2012, for the submission of all supplemental fee requests; therefore, this request is not timely. 6 Second, the total hours spent by the various attorneys in connection with the

6 The Court further concludes that the Maestas Plaintiffs'

and Egolf Plaintiffs'

Motion for Leave to File

Supplemental Brief should be denied.

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Congressional trial is not reasonable. Mr. Durkovich appeared only in the Congressional trial. A review of his time records indicates that he spent the vast majority of his time on the Congressional trial. Some of the time spent cannot be reasonably justified. For

example, between December 8,2011, and December 21,2011, Mr. Durkovich submitted almost one hundred hours, virtually all of the hours dedicated to the preparation of a Writ of Superintending Control. To the best of this Court's knowledge, no Petition for Writ of Superintending Control was ever filed in connection with the Congressional redistricting. In his original fee request, Mr. Durkovich stated that he spent 438.25 hours on the redistricting litigation resulting in a requested fee (including gross receipts tax) of $164,124.62. In the Reply brief, Mr. Durkovich reduced his fee request to $100,000.00 plus gross receipts tax. This represents a 35% reduction in the requested fees. In terms of hours, this would be a reduction of more than 150 hours. In examining the billing records of Mr. Durkovich, the Court concludes that, while some reduction in hours is appropriate, the appropriate reduction does not exceed 150 hours; therefore, Mr. Durkovich's self-imposed reduction is adequate to address the excessive hours expended on the Congressional trial. The Maestas Plaintiffs achieved success in the following areas: 1) the Maestas Plaintiffs alleged and the Court found that the existing districting maps were unconstitutional; 2) the Maestas Plaintiffs supported the compromise map adopted by the Court for the State Senate; 3) in the Congressional trial, the Maestas advocated for the adoption of a map that contained zero population deviation, a position eventually adopted by the Court; 4) the Court adopted the redistricting plan presented by the Maestas Plaintiff for the Public Regulation Commission; and, 5) the Maestas Plaintiffs supported

17

the incorporation of the plans requested by the Multi-Tribal Plaintiffs and Navajo Plaintiffs which were eventually incorporated into the various plans adopted by the Court. The degree of success of the Maestas Plaintiffs was significantly less than some other parties such as the Multi-Tribal Plaintiffs. The Maestas Plaintiffs presented multiple maps in the House of Representatives trial, the Congressional trial, and the State Senate trial before the consensus map was presented. The only map presented by the Maestas Plaintiffs that was adopted by the Court was the map presented in the PRC trial. In the House of Representatives trial, the Maestas Plaintiffs submitted two maps; however, the final map adopted by the Court incorporated little, if any, of the requests from the Maestas Plaintiffs. When the Court requested a map that adequately addressed the

obvious population loss in north central New Mexico by consolidating a district in this region, the Maestas Plaintiffs chose to present an incumbent pairing that gave clear political advantage to one party, a proposal that

was rejected by the Court.

Given these circumstances, the Court concludes that the total amount of $921,601.29 is the appropriate lodestar figure for the Maestas Plaintiffs; however, there should be a ten percent reduction in this amount based on the degree of success of the Maestas Plaintiffs in this litigation. The Court concludes that a ten percent reduction is appropriate because the Maestas Plaintiffs did achieve significant success in the litigation, i.e., the joinder in the State Senate consensus maps, presentation of the PRC map adopted by the Court and success on an important legal issues in the Congressional hearing; however, some reduction is necessary because only one of the specific maps proposed by the Maestas Plaintiffs was adopted by the Court. With a ten percent

18

reduction in the lodestar amount, the Maestas Plaintiffs are entitled to attorney's fees totaling $829,441.16. 5. Egolf Plaintiffs The Egolf Plaintiffs seek attorney's fees in the amount of$840,757.58. The Egolf Plaintiffs participated in the trials involving the United States Congress, the House of Representatives and the State Sente. The Egolf Plaintiffs did not participate in the Public Regulation Commission trial. Given the experience level of the attorneys involved, the hourly rates of $200 to $375 are reasonable and consistent with market rates. Legal assistants were charged at $100 per hour which is also reasonable and consistent with market rates. The Egolf Plaintiffs reduced or eliminated some hours when multiple attorneys attended meetings, depositions or court hearings, The Egolf Plaintiffs achieved success
In

the following areas: 1) the Egolf

Plaintiffs alleged and the Court found that the existing districting maps were unconstitutional; 2) the Egolf Plaintiffs supported the compromise maps adopted by the Court for the Congress and State Senate; 3) the Egolf Plaintiffs joined in the requests of the Navajo Plaintiffs and the Multi-Tribal Plaintiffs which were adopted by the Court; and 4) in the House of Representatives matter, the Egolf Plaintiffs joined in a partially successful appeal of this Court's initial plan, which resulted in remand to this Court and some modifications in this Court's initial plan. The degree of success of the Egolf Plaintiffs was less than some other parties such as the Navajo Plaintiffs and the Multi-Tribal Plaintiffs. The Egolf Plaintiffs presented multiple maps in the House of Representatives hearing. Although some portions of the

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Egolf maps became part of the map ultimately adopted by the Court (primarily the portions of the map including Clovis and the maps advocated by the Navajo Plaintiffs and the Multi-Tribal Plaintiffs), much of the content of the Egolf maps was rejected by the Court. When the Court requested a map that adequately addressed the obvious

population loss in north central New Mexico by consolidating a district in this region, the Egolf Plaintiffs chose to present an incumbent pairing that gave clear political advantage to one party, a proposal that was rejected by the Court," Given these circumstances, the Court concludes that the total amount of $840,757.58 is the appropriate lodestar figure for the Egolf Plaintiffs; however, there should be a ten percent reduction in this amount based on the degree of success of the Egolf Plaintiffs in this litigation. The Court concludes that a ten percent reduction is appropriate because the Egolf Plaintiffs did achieve significant success in the litigation, i.e., joinder in the Congressional and State Senate consensus maps, joinder in the requests of the Navajo and Multi-Tribal maps, and some success on the appeal of the House of Representatives decision; however, some reduction is necessary because none of the specific maps proposed by the Egolf Plaintiffs was adopted by the Court. With a ten percent reduction in the lodestar amount, the Egolf Plaintiffs are entitled to attorney's fees totaling $756,681.82. 6. LULAC Plaintiffs The LULAC Plaintiffs seek attorney's fees in the amount of $20,222.50. The LULAC Plaintiffs participated only in the Congressional trial. In that trial, however, the LULAC Plaintiffs did present their own proposed map for Congressional redistricting

7 The Egolf Plaintiffs' with the record.

insistence that their advocacy in this litigation was partisan neutral is not consistent

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and presented testimony in support of that map. The Court did not adopt the map presented by the LULAC Plaintiffs; however, the Court concludes that the LULAC Plaintiffs should be awarded their requested fees for three reasons. First, the LULAC Plaintiffs prevailed in their contention that the existing Congressional districts were unconstitutional. Second, as noted above, the LULAC Plaintiffs presented evidence and argued for the creation of an Hispanic minority majority Congressional district in southern New Mexico based on changing demographics. The law relating to an award of attorney fees should not discourage such an argument, particularly in the litigation in which a State fails to adopt any redistricting plan, and the Court is called on to adopt a plan. Finally, the LULAC Plaintiffs, much like the Sena Plaintiffs, presented their

position in an efficient and economical manner. The amount requested by the LULAC Plaintiffs for their participation in the Congressional trial is much less than what many other Plaintiffs sought as fees for the same trial. Moreover, some of the other parties that sought more in fees for the Congressional trial were simply joining in the consensus map, as opposed to the LULAC Plaintiffs who were presenting their own proposal, including testimony in support of that proposal. Given all the circumstances, the LULAC Plaintiffs are entitled to attorney's fees of $20,222.50.

Payment of Fees At the close of their Response brief, the Executive Defendants include a novel request regarding the payment of the attorney's fees awarded by the Court. The

Executive Defendants first contend that the Legislative Defendants "bear primary responsibility for the events that prompted this litigation, and therefore they should be

21

held liable for the awards with respect to both fees and other costs." Response at p. 21. Modifying this request somewhat, the Executive Defendants go on to request that the Court assess fees and costs against the various Defendants ''to the parties with which it was more closely aligned in the litigation." Id. at 22. Under this approach, the Executive Defendants contend that the Legislative Defendants would be liable for the fees and costs of the Egolf, Maestas and Multi-Tribal Plaintiffs, and the Executive Defendants would be liable for the fees and costs of the James, Sena and Navajo Plaintiffs.i The Court rejects this approach for three reasons. First, the Executive Defendants provide no authority for the proposition that a Court has the authority to divide an award of attorney's fees between different branches of government. To the extent the Executive Defendants provide any authority for their request, it is limited to circumstances in which attorney's fees may be divided between separate independent entities, not different branches of the same government. Second, the argument presented by the Executive Defendants, if adopted, would represent a substantial expansion of judicial authority into the governmental functions of the Legislative and Executive branches of government. In this case, the Defendants include the Governor, the Lt. Governor, the Secretary of State, the President ProTempore of the Senate and the Speaker of the House of Representatives. If this Court has the authority to order that payment of attorney's fees assessed against the State of New Mexico shall be divided in a particular manner against each of the specific budget appropriations of each elected official, there could be both short-term consequences in the form of each elected official's ability to meet the obligations of office in this budget
8 How the Executive Defendants came to the conclusion that the Navajo Plaintiffs were aligned with them and the Multi-Tribal Plaintiffs were aligned with the Legislative Defendants is not explained. The record certainly does not support such a conclusion.

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cycle and long term consequences as each elected official's future budget request would need to factor in the possibility of the need to pay an attorney's fee award. In all candor, there is some appeal to the idea that this Court has the authority to assess the attorney's fees against individual defendants, especially in light of this Court's finding that the Governor failed to even communicate with multiple Native American tribes during the redistricting process; however, the Court resists the temptation to do so because such an expansion of judicial authority is not authorized under law. Finally, the Court denies the request to divide the fees between various defendants because the request itself only reaffirms the "us-versus-them" mentality which pervades our present political environment. This request shows that the Executive Defendants still fail to recognize that the obligation to redistrict the state following the census is a shared responsibility of the Legislative and Executive branches. When the Legislative and

Executive branches fail to comply with their legal obligation, all taxpayers bear the financial consequences.

Conclusion

The Court awards the following attorney's fees (including gross receipts tax): 1. Sena Plaintiffs: 2. Multi-Trial Plaintiffs: 3. James Plaintiffs: 4. Maestas Plaintiffs: 5. Egolf Plaintiffs: 6. LULAC Plaintiffs: $172,730.54 $685,346.63 $524,427.87 $829,441.16 $756,681.82 $20,222.50

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Counsel for the Plaintiffs are directed to prepare a single Judgment on Attorney's Fees consistent with this Decision, circulate it to all counsel for approval as to form, and then submit it to the Court for entry.

Dated:

~------District Judge Pro Tempore

7/Yo/1 z,

Copies to counsel of record via e-filing system.

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