Sara Frankenstein, a Rapid City lawyer who represents the counties, said attempting to recover costs is common in federal lawsuits.
"It always happens," she said. "It's not something that anybody does to be vindictive or send a message."
The counties have declared themselves the prevailing parties because the lawsuit was dismissed. The winning side is permitted to ask for "certain allowable costs," South Dakota Attorney General Marty Jackley said in a statement.My biggest problem is that the Four Directions did win in the lawsuit. They forced the Secretary of State and the counties to establish early voting stations. It may not have been permanent, but it was a change form the status quo.
Under either standard, it is apparent that the Fees Awards Act requires a litigant to establish "some sort of clear, causalrelationship between the litigation brought and the practical outcome realized. '49 A similar element of causality has been adopted by the courts in construing other fee-shifting statutes. In the context of Title VII of the Civil Rights Act of 1964, for example, one court has stated that "to 'prevail' a party must establish . .. that the litigation activities served to establish the existence of the right or contributed to an enjoyment of the right. ' 50 Causality also is an element of a two-tier test which the courts have applied in deter- mining the eligibility of applicants for fee awards under the FOIA. As enunciated by Judge Friendly in Vermont Low Income Advo- cacy Council, Inc. v. Usery,51 the successful FOIA plaintiff must demonstrate, at a minimum, that "the prosecution of the action could reasonably have been regarded as necessary and that the ac- tion had substantial causative effect on the delivery of the information.The paper also talks about what is called the catalyst doctrine. The same legal paper states:
In addition to the basic standard of formal success on a cen- tral or significant issue in litigation,5" the federal courts have adopted a "catalyst" test which extends the prevailing party con- cept beyond the typical courtroom context. Pursuant to such "catalyst" doctrine, a plaintiff, although having failed in the litigation of his claim, may nevertheless be deemed to have prevailed if his lawsuit was a factor in the elimination of a challenged practice or procedure."4 Conceptually subsumed within this approach is the established rule that a plaintiff may prevail even when his suit had been mooted by a last-minute tender of the requested relief. difficult case arises, however, when the defendant claims to have "adopted" a new practice after the commencement of the plaintiff's action and denies that the suit played any part in the decision to provide such relief. In such cases, the courts have inquired into the nature and extent of the causative role performed by the plain- tiff's suit.58I am no lawyer, but if I was playing one on TV, I would look at suing the state for recovery of fees. It took the lawsuit to begin to change the discriminatory practice. The judge in the case confirmed it in the trials. In the end I think that the only thing Frankenstein and party will gain in doing this is even more bad blood with Native Americans in South Dakota.