American Constitutional Party, Libertarian Party, Bicentennial Reality Party, and Socialist Workers' Party v. Ralph Munro, Secretary of State

650 F.2d 184 AMERICAN CONSTITUTIONAL PARTY, Libertarian Party, Bicentennial Reality Party, and Socialist Workers' Party, Plaintiffs-Appellants, v. Ralph MUNRO, Secretary of State, Defendant-Appellee. No. 79-4709. United States Court of Appeals, Ninth Circuit. May 5, 1981. Decided July 6, 1981. David F. Stobaugh, Bendich, Stobaugh & Strong, Seattle, Wash., for plaintiffs-appellants. Thomas R. Bjorgen, Olympia, Wash., for defendant-appellee. Appeal from the United States District Court for the Western District of Washington. Before WRIGHT and ANDERSON, Circuit Judges, and THOMPSON, Senior District Judge. * EUGENE A. WRIGHT, Circuit Judge: 1 Appellants seek attorney's fees for challenging a Washington statute which was amended, mooting their action, before the case was heard. We affirm the district court's denial of their motion for fees.I. FACTS 2 Four Washington minor political parties 1 (the minor parties) challenged the constitutionality of a Washington statute 2 which effectively prohibited members of minor political parties from voting in state primary elections. Their 1976 suit was preceded by meetings in 1971 with the Secretary of State and the introduction of corrective…

Appellants seek attorney’s fees for challenging a Washington statute which was amended, mooting their action, before the case was heard. We affirm the district court’s denial of their motion for fees.

*186 I. FACTS

Four Washington minor political parties 1 (the minor parties) challenged the constitutionality of a Washington statute 2 which effectively prohibited members of minor political parties from voting in state primary elections. Their 1976 suit was preceded by meetings in 1971 with the Secretary of State and the introduction of corrective bills in the Washington legislature. In 1977 the statute was amended to eliminate the objectionable provision. House and Senate Journals for the months during which the legislation was considered make no mention of the minor parties’ suit. 3

A legislator said in an affidavit made one year after the statute was amended:

Affidavit of State Representative Nelson.

After the Secretary sought dismissal of the suit for lack of a case or controversy, the minor parties moved for an award of fees pursuant to the Civil Rights Attorney’s Fees Award Act (Act), 42 U.S.C. § 1988 . 4 Without hearing oral argument, the district court found the subject…

concurring:

I concur and write separately only to emphasize that portion of 42 U.S.C. § 1988 which provides: “the court, in its discretion, may allow the prevailing party ... a reasonable attorney’s fee.... ” (Emphasis supplied). Judge Wright’s discussion of “Legislative Interpretation” plainly demonstrates that by court decision construing the perceived legislative will, the area of discretion has been narrowly circumscribed. I think it important to observe that the trial court exercises a normal discretion concerning the issue at hand. If appellants were “prevailing parties” it is because the lawsuit was a “significant catalyst” in effectuating the legislative change. This, at best, is an uncertain, elusive, and imponderable concept; the very kind of issue which cries for reliance on informed discretion.

Langnes v. Green, 282 U.S. 531, 541 , 51 S.Ct. 243, 247 , 75 L.Ed. 520 (1931). See also Stanton v. United States, 226 F.2d 822, 823 (9th Cir. 1955).

In the present case, the district court had before it the affidavit of State Representative Nelson which averred that “the lawsuit . .. was an important factor in leading the House to repeal the challenged former law.” The…