Zessar, Bruce v. Keith, John R. ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 07-2899 & 07-2913
BRUCE ZESSAR,
Plaintiff-Appellee,
v.
JOHN R. KEITH, ET AL.,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 C 1917—David H. Coar, Judge.
____________
ARGUED APRIL 3, 2008—DECIDED AUGUST 6, 2008
____________
Before FLAUM, MANION, and TINDER, Circuit Judges.
MANION, Circuit Judge. After his absentee ballot was
rejected in the 2004 general election, Bruce Zessar filed
suit alleging that his due process rights were violated
because election officials failed to provide him with
notice and a hearing prior to rejecting his ballot. The
district court granted in part his motion for summary
judgment, but before it entered final judgment, the Illinois
General Assembly amended the portions of the state’s
Election Code addressing absentee voting. Notwithstand-
ing this amendment, the district court entered final judg-
ment in favor of Zessar declaring unconstitutional the
2 Nos. 07-2899 & 07-2913
Code as it stood prior to amendment. The district court
also deemed Zessar a prevailing party entitled to attorney’s
fees under 42 U.S.C. § 1988. The defendants appeal.
Because we conclude that the amendment of the Election
Code mooted Zessar’s challenge to the pre-amendment
Code, and that the district court’s conclusion that Zessar
was a prevailing party was in error, we vacate those
portions of the judgment and remand for partial dismissal.
I.
Bruce Zessar resides and is registered to vote in Lake
County, Illinois. Zessar submitted an absentee ballot
intending to vote absentee in the general election held
on November 2, 2004. His ballot was rejected because of a
belief that the signatures on his absentee ballot applica-
tion and ballot envelope did not match. Election officials
concede that Zessar’s vote was rejected in error, and did
not count in the election. Making matters worse, Zessar
was not notified that his ballot had been rejected until he
received a postcard explaining the basis for the rejection
in mid-January 2005. The parties agree that during the
period between election day and the canvass, which
was held on November 17, 2004, and rendered the elec-
tion results final, Zessar had no opportunity to challenge
the rejection or otherwise rehabilitate his ballot.
The circumstances surrounding the rejection of Zessar’s
ballot arose under Article Nineteen of the Illinois Election
Code, which covers absentee voting, as it stood in 2004. 10
ILCS 5/19-1 to 5/19-15 (2004). Voters began the process
of voting absentee by filing an application with local
election authorities for an absentee ballot. 10 ILCS 5/19-2
(2004). If the applicant was lawfully entitled to vote
Nos. 07-2899 & 07-2913 3
absentee in the requested location, election officials mailed
the applicant a ballot. 10 ILCS 5/19-4 (2004). A voter
who received an absentee ballot would fill it out, place it
in a certified envelope, and either mail it to the clerk’s
office or deliver it in person. The clerk would then see
that all such ballots were delivered to the appropriate
precincts. 10 ILCS 5/19-8 (2004). Absentee ballots were not
counted or otherwise verified before the evening of election
day. On election day, however, the absentee ballot count
began no later than 8:00 p.m. Id. Once the polls closed,
election judges in each precinct cast the absentee ballots by
opening the carrier envelopes containing the ballots,
announcing each voter’s name, and comparing the sig-
nature on the ballot envelope with that on the applica-
tion. 10 ILCS 5/19-9 (2004). A ballot would be rejected in
four circumstances: (1) if the signatures on the envelope
and application did not match; (2) if the voter was not
registered in the precinct; (3) if the envelope was open, or
had been opened and resealed; or (4) if the voter voted
in person during the day. Id. While the Election Code in
effect in 2004 required notification to absentee voters
whose ballots were rejected, 10 ILCS 5/19-10 (2004), there
was no requirement that the voters be notified in time to
challenge the rejection before the canvass. In other
words, sending Zessar notice in January 2005 that his
ballot was rejected at the beginning of November 2004
violated no portion of the Illinois Election Code.
Zessar filed a class action complaint on behalf of
himself and all other similarly situated voters against
Willard R. Helander, Lake County Clerk, the members
of the Lake County Board (“Helander,” collectively), and
the members of the Illinois State Board of Elections (“State
Board”). Zessar alleged that the Election Code’s failure to
4 Nos. 07-2899 & 07-2913
provide for notice and a hearing before the rejection of his
absentee ballot violated his due process rights as pro-
tected by the Fourteenth Amendment to the United States
Constitution.1 On March 13, 2006, the district court entered
an order denying the defendants’ motion for summary
judgment and granting, in part, Zessar’s motion for
summary judgment. The court determined that the Election
Code’s failure to provide for notice and a hearing vio-
lated the Due Process Clause, and that Zessar was entitled
to prospective injunctive relief. The court also held that
the economic damages Zessar sought were not an appro-
priate remedy, and that any equitable relief beyond
implementing a lawful absentee voting system was not
warranted. The district court did not enter judgment on
its ruling, however, instead directing the parties to file
proposed procedures for providing notice and a pre-
deprivation hearing to voters whose absentee ballots
were rejected.
Three days later, Zessar filed an emergency motion for
an injunction asking the district court to enjoin enforcement
of the unconstitutional portions of the Election Code in the
Illinois primary elections which were going to take place
on March 21, 2006. For reasons not appearing in the record
before us, that motion was denied on March 20, 2006. The
district court also denied motions by the State Board and
1
The district court certified both a plaintiffs’ class, made up of
Illinois registered voters whose submitted absentee ballots
were rejected prior to the canvass without notice and a
hearing, and a defendants’ class, made up of all Illinois county
election officials operating under the authority of the Illinois
Election Code. For ease of discussion, we will refer to Zessar,
the class representative, when speaking of the plaintiffs’ class.
Nos. 07-2899 & 07-2913 5
Helander to file interlocutory appeals of the ruling on the
summary judgment motion.
While the parties’ proposed procedures for handling
absentee balloting were under consideration by the dis-
trict court, the Illinois General Assembly passed Public
Act 94-1000 (“Act”) amending provisions of the Election
Code such as the procedure for selecting election judges,
10 ILCS 5/13-1 (2006), handling challenges at polling
places, 10 ILCS 5/18-5 (2006), and counting provisional
ballots, 10 ILCS 5/18A-15 (2006). See Ill. Public Act 94-1000,
§ 5 (2006). More significantly for this case, the Act also
amended the procedures for absentee voting. The amend-
ments, which took effect on July 3, 2006, provided that if
a mail-in absentee ballot was rejected for one of the rea-
sons stated above, the election authority had to notify the
voter of the rejection “within 2 days after the rejection but
in all cases before the close of the period of counting
provisional ballots.” 10 ILCS 5/19-8(g-5) (2006). This
notice had to state the reason for the rejection, and
notify the voter that he could appear before the election
authority on or before the fourteenth day after the elec-
tion to show cause why the ballot should not be rejected.
Id. Review of the voter’s challenge would be undertaken
by a panel of three judges appointed for that purpose.
Id. The judges could review the contested ballots, enve-
lopes, applications, and any other evidence submitted
by the voter. Id. The final determination on a ballot’s
validity was not reviewable, and ballots determined to be
valid were added to the vote tally for their precincts. Id.
The defendants moved to dismiss Zessar’s suit as moot
based upon these amendments. Zessar opposed dismissal,
and argued that the amendments did not moot the
suit because they still did not provide sufficient due
6 Nos. 07-2899 & 07-2913
process to absentee voters. The district court denied the
motion on October 10, 2006. In denying the motion, it
expressed concern regarding absentee voters who would be
absent from their precincts for an extended period of time,
due to overseas deployment or otherwise, because they
would be unable to appear in person before the three-judge
panel. The court was also concerned that local election
officials might not be prepared to implement the three-
judge panels. On October 20, 2006, in anticipation of the
upcoming election and echoing the concerns expressed by
the district court, Zessar moved for an emergency injunc-
tion prohibiting the defendants from rejecting any absentee
ballots under the Election Code as it then stood. This
motion was denied by the district court on October 26,
2006.
On June 11, 2007, the district court entered a final judg-
ment containing four conclusions. First, the district court
stated that “[t]he prior version of 10 ILCS 5/19-8 is uncon-
stitutional because it failed to provide due process to the
absentee voter.” Second, the court concluded that
Zessar qualified as a prevailing party based on its earlier
partial grant of Zessar’s motion for summary judgment
and the Illinois General Assembly’s subsequent amend-
ment of the Election Code. Next, the court cited statistics
from the 2006 election showing the large number of
challenges brought by absentee voters whose ballots
were rejected and the high rate of success they had in
challenging rejection. Even though the court still enter-
tained reservations about the sufficiency of the protec-
tions afforded to voters absent from their precincts for
extended periods, the statistics did not reveal that any
such voter attempted to challenge a ballot rejection.
Accordingly, the court expressly declined to enter judg-
ment that the post-amendment Election Code was uncon-
Nos. 07-2899 & 07-2913 7
stitutional. Finally, the court declined to enter judgment
that election officials were required to use every avail-
able address (i.e., mail, email, and fax) to notify voters that
their absentee ballot had been rejected, leaving to local
election officials the determination of reasonable notifica-
tion. The defendants filed motions for reconsideration of
the court’s determination that Zessar was a prevailing
party, but the district court denied those motions.
Helander and the State Board filed separate appeals
which have been consolidated for our review. Helander
challenges the district court’s substantive determination
that the pre-amendment Election Code violated the Due
Process Clause. The State Board argues that Zessar’s
challenge to the Election Code as it stood prior to its
amendment in July 2006 was mooted by the Code’s amend-
ment. This mootness, the State Board argues, left the
district court without jurisdiction to enter final judgment
on the constitutionality of the pre-amendment provisions.
Additionally, the State Board asserts that Zessar is not
a prevailing party under 42 U.S.C. § 1988, and that the
district court erred in declaring him such and awarding
him attorney’s fees. The district court’s conclusions re-
garding the post-amendment Election Code have not
been presented to us for review.
II.
It is fundamental to the exercise of judicial power under
Article III of the United States Constitution that “federal
courts may not give opinions upon moot questions or
abstract propositions.” Protestant Mem’l Med. Ctr., Inc. v.
Maram, 471 F.3d 724, 729 (7th Cir. 2006). Therefore, we
must consider whether Zessar’s due process challenge to
8 Nos. 07-2899 & 07-2913
the pre-amendment Election Code was rendered moot by
the Code’s amendment before taking up the issue of
whether those provisions comported with constitutional
due process requirements. Id. (“Mootness is one of
the concepts that comprise the threshold issue of
justiciability.”) “Whether a case has been rendered moot
is a question of law that we review de novo.” Fed’n of
Adver. Indus. Representatives, Inc. v. City of Chicago, 326
F.3d 924, 928-29 (7th Cir. 2003).
We have previously held that any dispute over the
constitutionality of a statute becomes moot if a new
statute is enacted in its place during the pendency of the
litigation, and the plaintiff seeks only prospective relief.2
See MacDonald v. City of Chicago, 243 F.3d 1021, 1025 (7th
Cir. 2001) (citing Kremens v. Bartley, 431 U.S. 119, 129 (1977)
(“[T]he enactment of the new statute clearly moots the
claims of the named appellees.”)); see also Rembert v.
Sheahan, 62 F.3d 937, 940 (7th Cir. 1995) (“When a chal-
lenged statute is repealed or significantly amended pend-
ing review, and a plaintiff seeks only prospective relief, a
question of mootness arises.”) (emphasis added). Thus,
absent a lack of genuineness to the amendment as ad-
dressed below, the enactment of Public Act 94-1000 mooted
the parties’ dispute over the pre-amendment Election
Code. In fact, that the dispute was moot seems to have been
2
Zessar sought damages in his complaint, and if that claim was
still pending it would have left alive the question of his entitle-
ment to damages based on enforcement of the pre-amendment
Code. However, the district court denied all relief other than
“implementing a constitutional absentee voting system” when
it granted in part Zessar’s motion for summary judgment. Zessar
did not appeal that decision.
Nos. 07-2899 & 07-2913 9
apparent to the parties and the district court during the
proceedings below. Once the Code was amended in July
2006, the parties’ motion practice turned to the constitu-
tionality of the post-amendment Code. Similarly,
the district court’s denial of the defendants’ motion to
dismiss for mootness was based on its concerns about the
constitutionality of the new provisions and whether
election officials were actually going to implement them.
The parties’ concern with the Election Code as it stood
when the suit was filed ceased until the district court
entered judgment declaring that version of the Code
unconstitutional.
What was true during the litigation below remains true
on appeal. “[The] case-or-controversy requirement
subsists through all stages of federal proceedings, trial
and appellate.” Lewis v. Cont’l Bank Corp., 494 U.S. 474, 477
(1990). Another way to state the justiciability principles
set forth above is that “Article III denies federal courts
the power to decide questions that cannot affect the
rights of the litigants in the case before them.” Id. If we
were convinced by Helander that the district court erred
in concluding that the pre-amendment Code was con-
stitutionally infirm, what relief could we afford the defen-
dants? It is not as though we could order future elections
to be carried out according to procedures the Illinois
General Assembly amended in July 2006. Similarly,
what benefit would Zessar gain by prevailing on his
argument that the district court was correct? The parties’
rights and obligations remain governed by the post-
amendment Code regardless of our opinion about the
constitutionality of provisions that ceased to have effect
more than two years ago.
There is an exception to the rule that legislative cor-
rection of a challenged statute moots a challenge to the
10 Nos. 07-2899 & 07-2913
statute as it stood prior to amendment. Amendment or
repeal of a challenged statute “ ‘does not deprive a
federal court of its power to determine the legality of the
practice’ unless it is ‘absolutely clear that the allegedly
wrongful behavior could not reasonably be expected to
recur.’ ” Buckhannon Bd. and Care Home, Inc. v. W. Va. Dep’t
of Health and Human Res., 532 U.S. 598, 609 (2001) (quoting
Friends of Earth, Inc. v. Laidlaw Envtl. Serv. (TOC), Inc.,
528 U.S. 167, 189 (2000)). In other words, “when an inter-
vening amendment provides no assurance that the
complained-of conduct will cease, the case is not moot.”
Rembert, 62 F.3d at 941. Usually, however, legislative ac-
tion will provide the assurance required by Buckhannon,
because “when the defendants are public officials . . . we
place greater stock in their acts of self-correction, so long
as they appear genuine.” Wis. Right to Life, Inc. v. Schober,
366 F.3d 485, 492 (7th Cir. 2004).
Zessar argues that his challenge to the pre-amendment
Election Code is not moot because there is no assurance
that Illinois will not reenact that version of the Code, and
because the new provisions retain some of the previous
infirmities. However, this case presents neither of the
features that normally lead courts to discount the gen-
uineness of an amendment, namely the enactment, or
intended enactment, of the same statute, or a statute
substantially similar to the one challenged. See N.E. Fla.
Chapter of the Assoc. Gen. Contractors of Am. v. City of
Jacksonville, 508 U.S. 656, 662 (1993) (concluding that the
plaintiffs’ challenge was not moot because the chal-
lenged statute was amended in insignificant ways and
still disadvantaged the plaintiffs); City of Mesquite v.
Aladdin’s Castle, Inc., 455 U.S. 283, 289 n.11 (1982) (noting
that at oral argument the defendant announced its inten-
Nos. 07-2899 & 07-2913 11
tion to reenact the challenged provision if the district
court’s decision was vacated). There is no evidence in the
record that the defendants are lying in wait for vacatur of
the district court’s judgment so that they can reenact
the Election Code as it stood prior to July 3, 2006.
Moreover, the amended Code is not substantially
similar to the challenged provisions of the pre-amend-
ment Code. The practice challenged by Zessar was the
rejection of absentee ballots without notice and a hearing at
which voters could challenge that rejection. That practice
is remedied under the new version of the code. Zessar
may disagree with the extent and sufficiency of the rem-
edy, but the district court concluded that there was no
ripe basis for challenging the new version of the Code,
and Zessar did not appeal that decision. Because the post-
amendment Code is not substantially similar to the provi-
sions Zessar challenged in bringing suit, and there is no
indication that the defendants plan to reenact the Code as
it stood prior to amendment, Zessar’s argument that his
challenge to the pre-amendment Code remains live fails.
See Fed’n of Adver. Indus. Representatives, 326 F.3d at 930(noting that “repeal of a contested ordinance moots a
plaintiff’s injunction request, absent evidence that the
[defendant] plans to or already has reenacted the chal-
lenged law or one substantially similar”).
We are cognizant of the resources that were invested,
both by the district court and the parties, in litigating
and ruling on Zessar’s challenge to the pre-amendment
Election Code. Those efforts, however, cannot maintain
the challenge as a live controversy where it involves a
statute no longer in existence and with no indication that
the challenged practice will continue. We conclude that
Zessar’s challenge to the pre-amendment Election Code is
12 Nos. 07-2899 & 07-2913
moot. The district court’s final judgment should be
vacated to the extent that it passes judgment on the pre-
amendment Election Code, and that portion of the case
below should be dismissed as moot. Miller v. Benson, 68
F.3d 163, 165 (7th Cir. 1995) (citing United States v.
Munsingwear, Inc., 340 U.S. 36, 39-41 (1950)).
With our conclusion that Zessar’s challenge to the pre-
amendment Election Code is moot, the only issue remain-
ing on appeal is whether the district court erred in
naming Zessar a prevailing party. Courts are authorized
to award reasonable attorney’s fees to prevailing parties
in suits, like this one, brought pursuant to 42 U.S.C. § 1983.
42 U.S.C. § 1988(b). It is well-established that “prevailing
party” as used in federal fee-shifting statutes like § 1988
includes only those parties that have achieved a “judicially
sanctioned change in the legal relationship of the parties.”
Buckhannon, 532 U.S. at 605. In other words, “to qualify
as a prevailing party, a civil rights plaintiff must obtain
a least some relief on the merits of his claim.” Farrar v.
Hobby, 506 U.S. 103, 111 (1992). While the district court’s
decision to award attorney’s fees under § 1988 is usually
reviewed for abuse of discretion, when that decision rests
on the application of a principle of law, our review is
de novo. Fed’n of Adver. Indus. Representatives, 326 F.3d at
932. We apply the latter standard here because we are
presented with the legal question of how broadly to
construe the statutory term “prevailing party.”
A party is considered prevailing for § 1988 purposes
when the court enters final judgment in its favor on some
portion of the merits of its claims. Buckhannon, 532 U.S. at605 (citing Farrar, 506 U.S. at 113). Settlement agreements
will not suffice to render a party prevailing unless they
are made enforceable under a consent decree. Id. (citing
Nos. 07-2899 & 07-2913 13
Maher v. Gagne, 448 U.S. 122 (1980)). Resolving a split
among the federal courts of appeals, the Supreme Court
in Buckhannon rejected as a basis for an award of fees the
“ ‘catalyst theory,’ which posits that a plaintiff is a ‘prevail-
ing party’ if it achieves the desired result because the
lawsuit brought about a voluntary change in the defen-
dant’s conduct.” Id. at 601. Rather, there must be a “judi-
cial imprimatur on the change”; in other words, the judi-
cial act must bring about “a corresponding alteration in
the legal relationship of the parties.” Id. at 605.
The heart of the parties’ dispute boils down to whether
or not this case is controlled by our application of these
principles in Palmetto Properties, Inc. v. County of DuPage,
375 F.3d 542 (7th Cir. 2004). The plaintiffs in Palmetto
sought to open an adult entertainment nightclub. However,
there were state and local zoning laws prohibiting opera-
tion of such an establishment within 1000 feet of, among
other places, forest preserves, and the plaintiffs’ proposed
site was 735 feet from just such a location. Palmetto, 375
F.3d at 544-45. The would-be proprietors sued county
officials alleging violations of the First and Fourteenth
Amendments. Id. at 545. The parties filed motions for
summary judgment, and the court issued an order conclud-
ing that the forest preserve portions of the zoning laws
were constitutionally infirm, and enjoining their enforce-
ment. Id. at 546. Instead of entering final judgment, how-
ever, the district court continued the case because the
defendant informed the court that it did not intend to
appeal the court’s decision, but would amend or repeal
the challenged provision. Id. The defendant made good
on its promise to repeal the forest preserve portion of the
zoning law, and the district court subsequently dis-
missed the case as moot. Id. The court then awarded the
14 Nos. 07-2899 & 07-2913
plaintiffs attorney’s fees as prevailing parties over the
objection of the defendant, and the defendant appealed.
We affirmed noting that
[i]t would defy reason and contradict the definition of
“prevailing party” under Buckhannon and our subse-
quent precedent to hold that simply because the district
court abstained from entering a final order formally
closing the case—a result of the Defendant’s assertions
that it would repeal the challenged portion of the
ordinance—Palmetto somehow did not obtain a
“judicially sanctioned change” in the parties’ legal
relationship.
Id. at 549-50.
While this case is distinct from Palmetto in a number
of ways which we address below, we begin with one
obvious way it is similar—after finding a statute unconsti-
tutional, the district court did not enter final judgment
before the challenged provision was amended or re-
pealed. This situation gives a plaintiff a hurdle to over-
come if he is to show that he is a prevailing party because
the Supreme Court has repeatedly held that, other than
a settlement made enforceable under a consent decree, a
final judgment on the merits is the normative judicial
act that creates a prevailing party. See Sole v. Wyner, 127
S. Ct. 2188, 2196 (2007) (declining to bestow prevailing
party status on a plaintiff whose motion for preliminary
injunction was granted but who failed to prevail on the
merits); Buckhannon, 532 U.S. at 605 (noting that the Su-
preme Court has “only awarded attorney’s fees where the
plaintiff has received a judgment on the merits, or obtained
a court-ordered consent decree”) (citations omitted); Hewitt
v. Helms, 482 U.S. 755, 758-62 (1987) (concluding on succes-
sive appeal that the plaintiff was not a prevailing party
Nos. 07-2899 & 07-2913 15
despite a court of appeals holding that his due process
rights were violated because the appellate court left it to
the district court to fashion relief and the district court
determined that the defendants were entitled to qualified
immunity).
We did not undercut this final judgment requirement
in Palmetto, but rather applied it based on the finality
surrounding the district court’s order granting a motion
for summary judgment. There, the court’s ruling was
succinct and easily enforceable—the forest preserve
provision was unconstitutional, and the defendants were
enjoined from enforcing it. Palmetto, 375 F.3d at 546.
Moreover, all parties were in agreement regarding the
finality of the court’s decision as evidenced by the defen-
dant’s statement of its intention not to appeal and its
request for a continuance to amend or repeal the stricken
provision. Finally, as we noted repeatedly throughout
our decision, the district court’s forbearance from entering
final judgment resulted from the defendant’s representa-
tion that it was going to repeal the forest preserve provi-
sion. See, e.g., id. at 549, 550, 551.
Here, the district court’s partial grant of summary
judgment lacked the finality exhibited in Palmetto. Upon
entering its decision regarding the constitutionality of
the pre-amendment Election Code, the district court
directed the parties to submit proposed procedures for
providing timely notice and pre-deprivation hearings to
absentee voters whose ballots were rejected. There was no
way to enforce this grant of partial summary judgment
because the defendants were not directed to do, or refrain
from doing, anything. See Farrar, 506 U.S. at 111-12 (holding
that a plaintiff prevails when the relief afforded modifies
“the defendant’s behavior in a way that directly benefits
16 Nos. 07-2899 & 07-2913
the plaintiff”). In fact, Zessar attempted to have
the decision enforced when he asked the court to enjoin
the defendants from rejecting absentee ballots, without
notice and a hearing, in the Illinois primary set to occur
on March 21, 2006. The district court denied the motion,
and the primary was held under the challenged proce-
dure. Moreover, the defendants here never indicated any
intention to implement the findings of the court through
amendment, repeal, or otherwise. Instead, they sought
leave from the district court to file an interlocutory
appeal of its order. The lack of enforceable terms and
disputed nature of the district court’s partial summary
judgment order distinguish it materially from that in
Palmetto.
Additionally, when the plaintiffs in Palmetto prevailed
at the summary judgment stage and the defendant repealed
the forest preserve provision, the defendant removed “the
only provision which effectively prevented [the plaintiffs]
from operating [their] nightclub,” Palmetto, 375 F.3d at 549,
leaving the plaintiffs free to move ahead with their plan. Id.
at 546. Here, Zessar himself did not believe the amend-
ments to the election Code afforded him the relief he
sought. He instead challenged the new Code’s constitution-
ality, asking the court to enjoin its enforcement in the 2006
election, and later seeking judgment that the new provi-
sions did not provide sufficient due process.
His dissatisfaction with the amendments notwithstand-
ing, Zessar argues that they qualified him as a prevailing
party because they were enacted not only following the
district court’s partial summary judgment order, but
because of it. In support, Zessar points to statements
made during the floor debate in the General Assembly
that the amendment originated “from clerks across the
Nos. 07-2899 & 07-2913 17
state,” and “comes from a court case held in Lake County.”
It is true that the district court’s partial summary judg-
ment order likely put the interested parties on notice that
a change in absentee voting was coming. However, as
we already noted, the defendants had not been ordered
to do, or refrain from doing, anything. Rather, at the time
the General Assembly enacted Public Act 94-1000,
which included other Election Code amendments unre-
lated to those of Article Nineteen, it was still acting on its
own volition in response to the proceedings in the law-
suit. See Buckhannon, 532 U.S. at 605 (“A defendant’s
voluntary change in conduct, although perhaps accom-
plishing what the plaintiff sought to achieve by the lawsuit,
lacks the necessary judicial imprimatur on the change.”).
In sum, our decision in Palmetto should be read in
conjunction with the principles set forth by the Supreme
Court and our prior cases for determining when a plain-
tiff is a prevailing party for the purpose of awarding
attorney’s fees under § 1988. Normally, such a deter-
mination will require a final judgment on the merits or a
consent decree. Id. Cases will sometimes arise where,
despite there being no final judgment or consent decree,
the legal relationship of the parties will be changed due
to a defendant’s change in conduct brought about by a
judicial act exhibiting sufficient finality. Palmetto was
such a case. This is not, and we therefore reverse the
district court’s determination that Zessar was a pre-
vailing party entitled to attorney’s fees under § 1988.
III.
We conclude that the amendment of the Illinois Election
Code by the Illinois General Assembly in Public Act 94-
18 Nos. 07-2899 & 07-2913
1000 mooted Zessar’s challenge to the Code as it stood
prior to the amendment. There is nothing in the record
indicating that the amendment was not genuine, nor
that the defendants intended to return to the challenged
practice. Additionally, we conclude that Zessar did not
achieve a judicially sanctioned change in his legal rela-
tionship with the defendants, and that the amendment of
the Election Code was a multi-faceted change initiated by
the General Assembly partially in response to Zessar’s
lawsuit. Accordingly, the district court’s judgment is
VACATED to the extent it passed on the constitutionality
of the Illinois Election Code as it stood prior to July 3,
2006, and to the extent it declares Zessar a prevailing
party entitled to fees under 42 U.S.C. § 1988. We REMAND
with instructions to dismiss Zessar’s challenge to the pre-
amendment Election Code as moot.
USCA-02-C-0072—8-6-08