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August 26, 1985

IRWIN I. KIMMELMAN, etc., et al., Defendants. and EDWIN B. FORSYTHE, et al., Plaintiffs, v. THOMAS H. KEAN, etc., et al., Defendants; JAMES J. FLORIO, et al., Defendants-Intervenors

The opinion of the court was delivered by: FISHER

As a result of the 1980 decennial census, the New Jersey Legislature was required to reapportion the state's congressional districts from 15 to 14. Eventually, the legislature enacted what has been referred to as the "Feldman Plan," which was signed into law by the then Governor of New Jersey on January 19, 1982. Quickly, several individuals, including the incumbent Republican members of Congress, filed suit declaring that the Feldman Plan violated article I, section 2 of the United States Constitution. Named as defendants were Governor Kean, Attorney General Kimmelman, and Secretary of State Burgio (State Defendants). The New Jersey Legislature and the incumbent Democratic members of Congress (Legislature-Intervenors and Congressional-Intervenors, respectively) intervened to defend the constitutionality of the Feldman Plan.

 After conducting a hearing on March 3, 1982, a three-judge district court, by a two-to-one vote, issued an opinion and order declaring the Feldman Plan unconstitutional. Daggett v. Kimmelman, 535 F. Supp. 978 (D.N.J. 1982). The three-judge court enjoined the State Defendants from conducting elections under the Feldman Plan, but on application of the Legislature-Intervenors and Congressional-Intervenors, Justice Brennan, as Circuit Justice, stayed the district court's order pending appeal to the Supreme Court. Karcher v. Daggett, 455 U.S. 1303, 71 L. Ed. 2d 635, 102 S. Ct. 1298 (1982). Plaintiffs' motions to vacate the stay and expedite the docketing of the appeal were denied, 456 U.S. 901, 102 S. Ct. 1745, 72 L. Ed. 2d 157 (1982), and probable jurisdiction was noted at 457 U.S. 1131, 102 S. Ct. 2955, 73 L. Ed. 2d 1347 (1982). The Supreme Court's affirmance of the district court's holding by a five-to-four vote, 462 U.S. 725, 103 S. Ct. 2653, 77 L. Ed. 2d 133 (1983), restored the injunction.

 When the New Jersey Legislature failed to enact a constitutional congressional redistricting plan by February 3, 1984, the three-judge district court held a hearing for further relief and unanimously adopted the plan submitted by plaintiffs because it achieved the lowest population deviation and most compact districts. Daggett v. Kimmelman, 580 F. Supp. 1259 (D.N.J. 1984). The intervenors presented Justice Brennan with an application for a stay; he referred the application to the entire Court and, on March 30, 1984, by a six-to-three vote, the application was denied. Karcher v. Daggett, 466 U.S. 910, 104 S. Ct. 1691, 80 L. Ed. 2d 165 (1984). A few days later the Court denied intervenors' motion to expedite consideration of the statement as to jurisdiction, 466 U.S. 923, 104 S. Ct. 1703, 80 L. Ed. 2d 177 (1984), and in a memorandum decision dated June 4, 1984, over three dissenting justices who would have noted probable jurisdiction and set the case for oral argument, the Supreme Court affirmed the three-judge district court's adoption of the redistricting plan submitted by plaintiffs. Karcher v. Daggett, 467 U.S. 1222, 104 S. Ct. 2672, 81 L. Ed. 2d 869 (1984).

 Two motions emanating from this litigation are now before this court. On November 15, 1984, plaintiffs filed an application for an attorney's fee award of nearly $ 600,000 under 42 U.S.C. § 1988. Two weeks later the State Defendants served interrogatories upon plaintiffs, which remained unanswered as of January 15, 1985, the hearing date of plaintiffs' attorney's fee application. At the hearing, plaintiffs' law firm represented that the interrogatories which State Defendants claimed were due by late December 1984 would be answered. On February 21, 1985, because the answers to the interrogatories were still outstanding, the State Defendants filed a motion, returnable March 11, 1985, to dismiss plaintiffs' application for an attorney's fee or, in the alternative, for discovery. The motion was carried by the court at the parties' request, as they attempted to work out the discovery problems; answers to most of the interrogatories have now been provided.

 With respect to the pending motions, the court now has before it documents and additional information supplied by plaintiffs in support of their fee application: the affidavit and a supplemental affidavit filed by State Defendants in support of their motions to dismiss or, in the alternative, to compel discovery; all of the parties' briefs; and the almost weekly submissions by plaintiffs and State Defendants. Moreover, the court entertained additional oral argument on July 30, 1985. Notwithstanding the State Defendants' position, this court is of the view that there is enough information and documentation to decide the fee application without further submissions or an evidentiary hearing. Compare O'Bryan v. County of Saginaw, Mich., 722 F.2d 313, 314 (6th Cir. 1983); Jose P. v. Ambach, 669 F.2d 865, 871 (2d Cir. 1982).

 The court will deny as moot the State Defendants' motion and turn its attention to the issues of liability for fees and the amount to be awarded. Plaintiffs seek an award against the State Defendants and the Legislature-Intervenors, but not against the Congressional-Intervenors. The two branches of the state government contend that they are not liable for an assessment, but that if they are, then only for a small portion of that which plaintiffs have requested. All of the arguments have been considered by the court and, for the reasons expressed herein, plaintiffs are entitled to an award to be assessed against the Legislature-Intervenors, but not the State Defendants, in the amount of $ 253,461, which amount includes costs and disbursements.

 The threshold issue is whether the constitutional violation involved in this case is cognizable under 42 U.S.C. § 1983, because if the constitutional issue does not secure rights cognizable under section 1983, then there cannot be a basis for an attorney's fee award under 42 U.S.C. § 1988. The State Defendants especially have emphasized that this court and the Supreme Court found that the redistricting plan violated article I, section 2 of the United States Constitution, but made no mention of a violation under section 1983. Furthermore, defendants have pointed out that not every right secured by the Constitution has been incorporated into the sphere of fourteenth amendment protection and have suggested that article I, section 2 is only concerned with promoting the national interest over the state interest respecting a method of allocating power between the state and federal governments. Finally, defendants have observed that a statutory scheme for challenging congressional redistricting plans exists, but these statutes make no mention whatsoever of an attorney's fee award. Therefore, defendants have contended that article I, section 2 does not provide a basis for a section 1983 lawsuit and no attorney's fee pursuant to section 1988 may be awarded.

 The majority opinion of the three-judge district court and the Supreme Court in this case held that the congressional redistricting plan was unconstitutional under article I, section 2 as interpreted by the Court in Wesberry v. Sanders, 376 U.S. 1, 7-8, 11 L. Ed. 2d 481, 84 S. Ct. 526 (1964). See Daggett, 535 F. Supp. at 981; 462 U.S. at 730. Writing for the Court in Wesberry, Justice Black held that, construed in its historical context, article I, section 2, which provides that representatives of Congress be chosen "by the People of the several States," means that as nearly as practicable, one person's vote in a congressional election is worth as much as another person's vote. Wesberry, 376 U.S. at 7-8. In powerful language, the Court concluded

no right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined. Our Constitution leaves no room for classification of people in a way that unnecessarily abridges this right.

 Id. at 17-18.

 Although the Wesberry court did not reach the arguments that the challenged districting statute violated the equal protection and other clauses of the fourteenth amendment, id. at 8 n.10, the overriding constitutional principle of equal representation espoused and vindicated in Wesberry is basically the same principle enunciated in cases holding that "the Equal Protection Clause requires that the seats . . . of a bicameral state legislature . . . be apportioned on a population basis." Reynolds v. Sims, 377 U.S. 533, 568, 12 L. Ed. 2d 506, 84 S. Ct. 1362 (1964); see Baker v. Carr, 369 U.S. 186, 207-08, 7 L. Ed. 2d 663, 82 S. Ct. 691 (1962). The problem faced by the Wesberry and Reynolds Courts was the same -- under the existing apportionment schemes, votes in some thinly populated districts were given equal or greater weight than the value given votes in larger districts. Reynolds, 377 U.S. at 545-46; Wesberry, 376 U.S. at 8.

 The State Defendants concede that the state legislative districting cases, grounded on the equal-protection clause, secure individual rights protected by 42 U.S.C. § 1983. Nevertheless, these defendants argue that congressional districting cases, grounded on article I, section 2, do not secure individual rights protected by section 1983. Their argument is that article I, section 2 is a method of allocating power between the state and national governments, and was intended to promote federal interests over state interests. Thus, just as is the case with the supremacy and commerce clauses, article I, section 2 is not the kind of constitutional claim for which section 1983 provides a remedy. See Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 612-15, 60 L. Ed. 2d 508, 99 S. Ct. 1905 (1979); Consol. Freightways Corp. of Del. v. Kassel, 730 F.2d 1139, 1144-45 (8th Cir.), cert. denied, 469 U.S. 834, 105 S. Ct. 126, 83 L. Ed. 2d 68 (1984).

 Moreover, defendants have pointed out, Congress has enacted relevant statutes that provide a mechanism for challenging the constitutionality of apportionment of congressional districts and for states' conducting at-large elections if necessary. 2 U.S.C. § 1 et seq.; 28 U.S.C. § 2284(a). These statutes are comprehensive and silent as to attorney's fees, so that Congress must have intended that an award of attorney's fees should not be available with regard to article I, section 2 claims. Cf. Smith v. Robinson, 468 U.S. 992, 104 S. Ct. 3457, 3468-74, 82 L. Ed. 2d 746 (1984) (EHA is comprehensive and exclusive statutory scheme, silent as to attorney's fee, through which a plaintiff may assert denial of free appropriate public education claims; action may not be maintained under section 1983 or Rehabilitation Act, both of which provide for an award of attorney's fees).

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