dissenting.
In awarding Miller her attorney fees the district court found that Miller had satisfied the “necessity for private enforcement” re*51quirement of the Private Attorney General Doctrine. Specifically, the district court found:
[T]his Court believes this lawsuit was the catalyst in pushing the Legislature to pass a reapportion plan. This Court believes there was a causal connection between the lawsuit and the plan and that the lawsuit had the effect of achieving what the Plaintiff desired.
Because there is no substantial competent evidence in the record to support this finding, I respectfully dissent. Miller failed to present any evidence that the Legislature passed its reapportionment plan on February 28, 1992, in order to avoid having the issue resolved by the court. In fact, the record shows that the Legislature, by resolution dated January 15, 1992, imposed on itself a deadline to have the reapportionment passed by January 31, 1992, not because of the threat of having the court take over the matter, but because failure to resolve reapportionment would impede passage of other legislation. In answering Miller’s complaint, the Legislature agreed that the court could proceed to determine reapportionment judicially if the Legislature could not accomplish it by the January 31 deadline. Although the Legislature missed its self-imposed deadline, the record shows that the Legislature proceeded to enact its own plan on February 28, 1992, long before its adjournment, and before the court commenced the proceedings which had been scheduled to determine reapportionment judicially. In the absence of any evidence in the record, we should not assume, or speculate, that the Legislature accomplished its legislative function as a result of fear that the court would take over the task, rather than because the Legislature was simply able to do its job.
However, even if we speculate that it was the threat of having reapportionment determined by the court that compelled the legislature to enact its own plan in due time, Miller did not present any evidence to show that a private enforcement action was required to raise the threat of judicial usurpation. It was incumbent on Miller to show that the Attorney General would not have pursued such an action on behalf of the people of Idaho, and that therefore private enforcement was necessary. The Attorney General did not bear the burden of proving he would have acted in the course of his normal duty. In any case, as the majority opinion notes, on January 24,1992, the Attorney General did file a complaint to intervene, asking the court to adopt a judicially imposed reapportionment plan. Miller, who filed her suit about six weeks before the Legislature even convened, and eight weeks before the Attorney General intervened, simply filed her private action prematurely. The same results could have been obtained through the Attorney General’s timely filing of an action in January, and Miller has failed to present any evidence that inaction by the Attorney General necessitated her private enforcement action. Because Miller failed to present substantial competent evidence that her private enforcement action was necessary to compel the legislature to accomplish a timely reapportionment, I would vacate the district court’s order awarding her attorney fees under the Private Attorney General Doctrine.