Opinion
Civ. No 00-0668-S-BLW
September 26, 2002
MEMORANDUM DECISION
The Court has before it: (1) plaintiffs' motion for further relief; (2) defendant's motion to stay; mid (3) plaintiffs' motion for attorney fees. In an earlier decision, this Court held unconstitutional various statutory provisions setting out Idaho's procedures for conducting initiative and referendum elections. Defendant Cenarrusa has appealed that decision to the Ninth Circuit Court of Appeals.
Plaintiffs' now seek further relief in the form of an injunction to ensure that Idaho election officials wilt not try to enforce unconstitutional provisions. The Court has received no indication, however, that election officials are either ignorant of, or intent on defying the Courts ruling. The Court will therefore deny the request for injunctive relief.
Cenarrusa has moved to stay that portion of the decision finding unconstitutional the requirement that petition sponsors obtain signatures equal in number to at least 6 percent of the qualified electors from each of 22 counties. For ease of reference, the Court will refer to this provision as the 6% rule. Cenarrusa claims that petition sponsors could be confused over the applicable law. There is no evidence, however, of confusion, A stay would allow the unconstitutional law to remain in place as the appeal is pursued, casting a chili over the initiative process that would last for years. That is simply unacceptable.
Cenarrusa filed the affidavit of his Chief Deputy, Ben Ysursa, stating that the sponsors of the Indian Gaining Initiative have told him that they are attempting to satisfy the unconstitutional 6% rule. Cenarrusa claims that this shows the need to have a single standard, The Court disagrees. Petition sponsors are free to "hedge their bets" on the success of the State's appeal and try to qualify their petitions under the stricter standard. That is simply a strategic decision they make voluntarily with full knowledge. There is no confusion here: Cenarrusa will quality the petitions without regard to the unconstitutional 6% county rule. If the sponsors want to do mare, there is no law in their way, and no confusion created. This situation does not warrant a stay.
Finally, plaintiffs seek attorney fees under 42 U.S.C. § 1988. The plaintiffs are clearly prevailing parties and hence entitled to a reasonable fee under that statute, In determining that fee, the Court finds that the $200 hourly rate of counsel, while high, is reasonable given the expertise necessary for this the of litigation, and the long experience of both counsel. In addition, the Court finds that the 175 total hours expended are also reasonable. The Court therefore finds that a reasonable fee in this case is $34,673.00. Plaintiffs have requested an upward adjustment in this sum, but the Court finds that inappropriate in this case.
Because the plaintiffs have sued Cenarrusa in his official capacity, the suit is essentially one against the State. See Hutto v. Finney, 437 U.S. 678 (1978). Thus, the award of fees runs against the State.
Plaintiffs have also requested discretionary costs in the sum of $1,863.01. The Court will deny that request. The Court will issue a separate Judgment as required by Rule 58.
In accordance with the Memorandum Decision filed with this Judgment,
NOW THEREFORE IT IS HEREBY ORDERED, ADJUDGED, AND DECREED, that the motion for further relief (docket no, 48) and the motion for stay (docket no. 57) are hereby DENIED.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the motion for fees and costs (docket no. 49) is hereby GRANTED IN PART AND DENIED IN PART. The motion is granted to the extent it seeks an award of attorney fees to plaintiffs from the State of Idaho in the sum of $34,673.00. The motion is denied in all other respects.