Because this litigation was pending in 1976 when the statute was enacted, the attorneys' fee award provisions of
section 1988 apply retroactively to this case.
Morrow v. Dillard, 580 F.2d 1284, 1299-1300 (5th Cir. 1978). Appellees do not contest that the Loyalists constitute the prevailing party: the Loyalists won the central issue in this litigation when we declared the state exclusive registration statute unconstitutional, and this holding was expressly included in the agreed order of dismissal. See
Iranian Students Association v. Edwards, 604 F.2d 352, 353 (5th Cir. 1979) (“proper focus is whether the plaintiff has been successful on the central issue”);
Brown v. Culpepper, 559 F.2d 274, 277 (5th Cir. 1977) (plaintiffs constitute prevailing parties even though litigation concluded with voluntary settlement). Appellees do not contend that the principles of
Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978) (no award of attorneys' fees for civil rights defendant unless complaint was “frivolous, unreasonable or without foundation”) should apply to the Loyalists in this case; although technically defendants, the Loyalists constituted effective plaintiffs on the counterclaim, and they championed the principles protected by the Constitution. See
Kingsville Independent School District v. Cooper, 611 F.2d 1109, 1114 (5th Cir. 1980) (attorneys' fee award to civil rights defendant and counterclaimant);
S.Rep.No.94-1011, 94th Cong., 2d Sess. 4 n. 4, reprinted in (1976) U.S.Code Cong. & Admin.News, pp. 5908, 5912 (“in the procedural posture of some cases, the parties seeking to enforce such (constitutional) rights may be the defendants . . .”). As prevailing parties, the Loyalists and national party are entitled to an award of attorneys' fees under
section 1988 regardless of their ability to pay for counsel or the availability of free legal counsel.
Gore v. Turner, 563 F.2d 159, 164 (5th Cir. 1977). Although
section 1988 entrusts the award of fees to the discretion of the trial court, a prevailing party should recover attorneys' fees unless special circumstances would render such an award unjust.
Morrow v. Dillard, 580 F.2d at 1300.