Elected Officials Not Prevailing Parties in Voting Rights Case

, Texas Lawyer

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Joe Nixon, of counsel at Beirne, Maynard & Parsons in Houston
Joe Nixon, of counsel at Beirne, Maynard & Parsons in Houston

Seven elected officials in Galveston County and a Galveston citizen were not prevailing parties in a voting right case, so not entitled to attorney fees, a three judge panel of the Fifth U.S. Circuit Court of Appeals decided on Dec. 17.

The district judge who presided over the voting rights litigation had awarded them attorney fees, an award opposed by Galveston County.

"We hold that the Plaintiffs are not prevailing parties because the injunctive relief the Plaintiffs achieved was not material to the outcome of this case, and, alternatively, nor did this relief directly or materially benefit the Plaintiffs," Judge E. Grady Jolly wrote in the opinion joined by judges Harold DeMoss Jr. and Leslie Southwick.

The Fifth Circuit reversed the judgment of the district court and remanded the case for entry of judgment for Galveston County.

Joe Nixon, who argued the appeal for Galveston County, said the Dec. 17 opinion "nails down the definition of prevailing party."

"It creates a hard litmus test. No longer is there really going to be an issue of what is a technical victory that might subject a jurisdiction that might have to pay legal fees to the other side," Nixon, a partner in Beirne, Maynard & Parsons in Houston, said.

"Quite frankly it removes the cloud of expense from jurisdictions who might otherwise want to adopt some policy reason for altering election laws or jurisdictional laws of some kind," Nixon said.

However, Jose Garza of San Antonio, who represents two of the plaintiffs and argued before the panel, said the decision is "a lot disappointing."

"Over the last 10 years or so, the courts have really rolled back when you can recover attorney fees when you file one of these cases. This is kind of incremental erosion for the ability to recover fees in voting rights cases that really could have a negative impact on private attorneys doing these cases," he said.

Garza said he and his co-counsel and their clients will discuss the decision, and decide whether to seek cert before the U.S. Supreme Court.

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