The opinion of the court was delivered by: ZIEGLER
The Metropolitan Pittsburgh Crusade for Voters and nine individuals filed this civil action for declaratory and injunctive relief on January 22, 1986 on behalf of all black residents in the City of Pittsburgh. Upon the motion of plaintiffs, the court certified a class of "All black citizens of the City of Pittsburgh, Pennsylvania" pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure. At the commencement of this action, an estimated 24 percent of the population of the City of Pittsburgh was black, yet no black was serving on the City Council at that time.
Plaintiffs alleged in their complaint that the at-large elections of the City Council of Pittsburgh diluted black voting strength in violation of the Fourteenth and Fifteenth Amendments to the United States Constitution, Section 2 et seq. of the Voting Rights Act of 1965, as amended in 1982, 42 U.S.C. § 1973 et seq., and 42 U.S.C. § 1983. The class sought an injunction to enjoin defendants from conducting at-large elections and an order to adopt a by-district system for election of members of Council.
In 1981, a referendum was submitted to the voters of the City of Pittsburgh permitting them to choose between maintaining the nine member at-large system, changing to a nine member by-district system or establishing a seven member by-district and two member at-large system of electing City Council persons. The voters determined to maintain the at-large system by a margin of 289 votes. See Affidavit of Fontana, Exhibit D. The predominantly black wards with one exception voted to maintain the at-large system despite the fact that under that system, only six black persons had served on City Council since 1911.
In 1982, certain concerned voters petitioned the Allegheny County Department of Elections to place a referendum on the November, 1982 ballot authorizing a change to a by-district system of electing persons to City Council. Opponents of the referendum filed an action in the Court of Common Pleas of Allegheny County, Pennsylvania, alleging, inter alia, that the referendum failed to comply with the Home Rule Charter and Optional Plans Law, 53 P.S. § 1-101 et seq.
The Court of Common Pleas held that the proposed referendum could not be placed on the ballot because the referendum proposed a change in the form of government and state law did not authorize such a procedure. Rather, in order to effect a change, the voters were required to elect a government study commission with power to establish a council by districts pursuant to 53 P.S. § 1-207. In re: Petition for Referendum to Amend Home Rule Charter of City of Pittsburgh, 130 P.L.J. 466 (Allegheny County 1982).
City Council later raised the question whether it had the power to change the at-large system to by-district elections, but the Solicitor, Dante R. Pellegrini, concluded in a written opinion to Council that the change had to be implemented through the election of a government study commission in accordance with state law and the opinion of the Court of Common Pleas of Allegheny County. Affidavit of Fontana, Exhibit E.
In 1985, a community group was formed to advance the concept of electing council members by-district and on October 7, 1985, State Representative Thomas Murphy introduced House Bill 1731, which authorized the voters of the City of Pittsburgh and other home rule municipalities to change their system of electing council members without creating a government study commission to implement such a change. Affidavit of Fontana, Exhibit F. State Senator James Romanelli introduced an identical bill in the Senate. On January 22, 1986, plaintiffs filed the instant action. In the meantime, the Murphy-Romanelli Bill was enacted in November, 1986, effective January 1, 1987. 53 P.S. § 1-221(b).
A referendum was placed on the ballot for the primary election on May 19, 1987 and the voters elected to amend Section 302 of the Home Rule Charter to provide for by-district elections for Council. The trial on the merits of this action was scheduled to commence on June 1, 1987, but in light of the results of the referendum, the parties reached a settlement agreement on that date and executed a consent order on June 10, 1987. See Transcript of Hearing of June 4, 1987.
The consent order provided that defendants were admitting no liability for alleged violation of plaintiffs' voting rights. The parties further agreed that the Apportionment Commission formed pursuant to 53 P.S. § 1-221(d) would present its final apportionment proposal to this court, in writing, on or before February 15, 1988. At that time, the court would conduct a fairness hearing to insure compliance with Section 2 of the Voting Rights Act, the Fourteenth and Fifteenth Amendments, and to hear any objections to the proposed plan. At the urging of plaintiffs, the parties stipulated that this court would retain jurisdiction to review any reapportionment that takes place after the 1990 Census is completed, if necessary. After two fairness hearings, we determined that the redistricting plan provided the black citizens of the City of Pittsburgh with a proportionate opportunity to elect representatives of their choice to City Council. All objections were denied.
Presently before the court is the motion of plaintiffs for partial summary judgment on the issue whether they are prevailing parties within the meaning of 42 U.S.C. §§ 19731(e) and 1988. Although the statutes make fee awards discretionary, that discretion is limited. A prevailing party should ordinarily recover attorney fees "unless special circumstances would render such an award unjust." Hensley v. Eckerhart, 461 U.S. 424, 429, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983). Both statutes allow the court, in its discretion, to award reasonable fees and costs to the prevailing party in actions brought to enforce voting rights. Because the language and purpose of the two provisions are nearly identical, we will apply the same precepts for determining prevailing party status under either statute. Hensley v. Eckerhart, 461 U.S. 424, 433, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983).
Defendants argue that plaintiffs are not prevailing parties because "this lawsuit was not the catalyst for the Pennsylvania State legislature passing Public Law 1456, which enabled the City of Pittsburgh to implement by-district elections; nor was it the catalyst for City Council's actions." Defendants' Memorandum of Law in Opposition to Plaintiffs' Motion for Partial Summary Judgment at 8. Defendants further assert that the desire and efforts for change to by-district elections pre-date the filing of this action and the only barrier to implementing such elections was the absence of enabling legislation which, when enacted, resulted in the current system of electing City Council members by district.
The test established by the United States Court of Appeals for the Third Circuit to determine prevailing party status is "whether plaintiff achieved some of the benefit sought by the party bringing suit." NAACP v. Wilmington Medical Center, Inc., 689 F.2d 1161, 1167 (3d Cir. 1982), cert. denied, 460 U.S. 1052, 75 L. Ed. 2d 930, 103 S. Ct. 1499 (1983); Clark v. Twp. of Falls, 890 F.2d 625 (3d Cir. 1989). In applying this standard, we must follow two steps. We must compare the relief sought with that actually obtained and then determine the causal connection between the relief obtained and the litigation. Disabled in Action of Pennsylvania v. Pierce, 789 F.2d 1016 (3d Cir. 1986). "At a minimum, to be considered a prevailing party within the meaning of § 1988 the plaintiff must be able to point to a resolution of the dispute which changes the legal relationship between itself and the defendant." Texas State Teachers Association v. Garland Independent School District, 489 U.S. 782, 109 S. Ct. 1486, 1493, 103 L. Ed. 2d 866 (1989).
Defendants do not dispute that plaintiffs obtained the relief that they sought in this litigation, but strongly urge that plaintiffs failed to satisfy the causal connection requirement because the political agitation for change pre-dated this lawsuit. However, the fact that forces from without this litigation were working to abolish at-large elections in favor of district elections is not dispositive of the prevailing party issue because the litigation need not be the sole cause of relief. NAACP v. Wilmington Medical Center, Inc., 689 F.2d 1161 (3d Cir. 1982), cert. denied, 460 U.S. 1052, 75 L. Ed. 2d 930, 103 S. Ct. 1499 (1983).
"Plaintiffs in voting rights cases are entitled to a fee award even when subsequent remedial action by the defendant effectively moots the controversy after the lawsuit has been filed." Kirksey v. Danks, 608 F. Supp. 1448, 1453 (D.C.Miss. 1985); see also, Clark v. Twp. of Falls, 890 F.2d 625 (3d Cir. 1989). Thus, to determine whether the institution of this suit is causally related to the benefit obtained, we must decide "whether the litigation constituted a material contributing factor in bringing about the events that resulted in obtaining the desired relief. Institutionalized Juveniles v. Secretary of Public Welfare, 758 F.2d 897, 916 (3d Cir. 1985). An out of court settlement does not necessarily preclude a ...