Opinion
No. 72-1429.
Argued December 13, 1972.
Decided January 17, 1973.
John L. Dowling, Asst. Prosecuting Atty., for defendant-appellant; John T. Corrigan, Pros. Atty., Cleveland, Ohio, on brief.
Jack Schulman, Cleveland, Ohio, for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of Ohio.
Before WEICK, EDWARDS and McCREE, Circuit Judges.
In this case, following a successful suit by plaintiff Capers against the Cuyahoga County Board of Election resulting in a District Court order requiring the Cuyahoga County Board of Election to make provisions for the filing of the petitions allowing candidates independent of major parties to become candidates for mayor of the City of Cleveland in the 1971 mayoralty election, the District Judge found that the Board of Election's overturned action was taken in "bad faith" and awarded attorney's fees to the prevailing attorney in the sum of $2,160.
We indulge no speculation as to what in fact might have been the motivation of the decision of the Board of Election; all we can take into account on this appeal is the record in this case. On that record the District Judge's finding of "bad faith" is not supported, and as a consequence, must be held to be clearly erroneous.
The record in this case does not warrant a conclusion that the defendant's conduct was such willful and obdurate defiance of law as to warrant the award of attorney's fees here appealed from.
The judgment of the District Court is reversed.