United Mine Workers of America v. Faerber

McHUGH, Justice,

dissenting:

I respectfully dissent from the holding set forth in the second sentence of the syllabus in this case and the related discussion in the body of the majority opinion. The precedents cited by the majority do not support the sweeping conclusion that a public official is not ordinarily liable personally to pay the prevailing litigant’s reasonable attorney’s fees incurred in a civil contempt proceeding against the public official.

The principal case relied upon by the majority, namely, Hutto v. Finney, 437 U.S. 678 , 98 S.Ct. 2565 , 57 L.Ed.2d 522 (1978), does not stand for the proposition that there must be more egregious conduct than “bad faith” in order to impose upon a public official personal liability for reasonable attorney’s fees incurred by the prevailing litigant in a civil contempt proceeding against the public official.

In Hutto there were two court awards of reasonable attorney’s fees. First, the district court found that the state prison officials had acted in bad faith in failing to implement its earlier injunctive orders as to prison conditions. Based upon this bad faith the district court awarded reasonable attorney’s fees as part of its remedial order. These fees were expressly assessed against the Department of Correction’s funds. Second, upon appeal by the state prison officials, the court of appeals affirmed the district court’s order. The court of appeals imposed additional attorney’s fees against the state prison officials in their official capacities to cover services on appeal and based its award of additional attorney’s fees upon the Civil Rights Attorney’s Fees Awards Act of 1976, not upon the bad faith of the state prison officials. The court of appeals also noted that the record supported the district court’s award of reasonable attorney’s fees for the proceeding before the district court based upon the bad faith of the state prison officials.

The only argument raised before the Supreme Court was the assertion that the eleventh amendment barred the awards against the state in a federal court. The Supreme Court disagreed with this assertion. It analyzed separately the district court’s attorney-fee award and the court of appeals’ attorney-fee award.

With respect to the award by the district court, the Supreme Court in Hutto held that the award of reasonable attorney’s fees against a state in order to vindicate the injunctive powers of a federal court over the state as a recalcitrant (or “bad faith”) litigant was permissible as ancillary to prospective injunctive relief not barred by the eleventh amendment.

With respect to the award by the court of appeals, the Supreme Court in Hutto held that the award of reasonable attorney’s fees against a state under the Civil Rights Attorney’s Fees Awards Act of 1976 was permissible, as Congress had plenary power to enforce legislation under the fourteenth amendment by setting aside a state’s eleventh amendment immunity from retroactive monetary relief.

It is therefore clear that Hutto does not involve the personal liability of public officials. In discussing the district court’s award the Supreme Court in footnote 19 noted that “[wle do not understand the [state’s] Attorney General to urge that the fees should have been awarded against the officers personally; that would be a remarkable way to treat individuals who have relied on the Attorney General to represent their interests throughout this litigation.” This language in essence states that the litigation in Hutto was against the state officials in their official capacities. It certainly does not support the majority’s conclusion in the present case that a public official ordinarily is not liable personally for reasonable attorney’s fees incurred by *82 the prevailing litigant in a civil contempt proceeding against the public official.

In discussing the court of appeals’ statutory-based fee award the Supreme Court in footnote 32 observed again that “[t]he [state’s] Attorney General is hardly in a position to argue that the fee awards should be borne not by the State, but by the individual officers who have relied on his office to protect their interests throughout the litigation.” As seen above in the quotation of footnote 19, the state’s Attorney General was not arguing for the personal liability of the state prison officials. The statement in the majority opinion in the present case that the state in Hutto suggested that the fees should be paid by the correction officials personally is not accurate. Instead, as stated in footnote 32 in Hutto , the dissenters in Hutto made that suggestion.

In response to this suggestion of the dissenters, the majority in the same footnote mentioned the personal liability of the state officials, a question not before the court: “This is manifestly unfair when, as here, the individual officers have no personal interest in the conduct of the State’s litigation, ...” Personal responsibility for a successful adversary’s reasonable attorney’s fees incurred to remedy contumacious conduct should be triggered by the finding that the conduct was contumacious. The Supreme Court recognized as much in continuing in footnote 32 with this language: “[I]t [imposition of personal liability] defies this Court's insistence in a related context [that is, the context of qualified executive immunity] that imposing personal liability in the absence of bad faith may cause state officers to ‘exercise their discretion with undue timidity.’ ” (citation omitted) (emphasis added) This footnote occurs in the Supreme Court’s discussion of the court of appeals’ award under the Civil Rights Attorney’s Fees Awards Act of 1976, which, as footnote 32 itself states, “authorizes an attorney’s fee award even though the appeal was not taken in bad faith[.]” Thus, the Supreme Court at this point in its discussion was not addressing personal liability of public officials who had acted in bad faith.

Later in its opinion in Hutto the Supreme Court quoted legislative history showing that attorney-fee awards in any action or proceeding under the Act should be obtained generally against the official, in his official capacity, from government funds. The legislative history indicated, however, that awards against the official in his individual capacity were not to be affected by the Act; in injunctive suits they would continue to be awarded only under the traditional “bad faith” standard. The Supreme Court then observed that there was no indication in that case that the named defendants litigated in bad faith before the court of appeals. Consequently, the Department of Corrections was the entity intended by Congress to bear the burden of that attorney-fee award. Hutto, 437 U.S. at 700 , 98 S.Ct. at 2578 , 57 L.Ed.2d at 540 .

In section II of his dissenting opinion, then Associate Justice Rehnquist, joined by Justice White, criticized the majority opinion for affirming the two attorney-fee awards. The dissenting opinion stated that the effect of the district court award was to hold the taxpayers of the state responsible for the bad faith of their officials in the litigation before the district court. The dissenters also were not impressed with the rationale of footnote 32 of the majority opinion, which is quoted by the majority in the present case:

It [the majority of the Supreme Court] insists ... that it is ‘manifestly unfair’ to leave the individual state officers to pay the award of counsel fees rather than permitting their collection directly from the state treasury. But petitioners do not contest the District Court’s finding that they acted in bad faith, and thus the Court’s insistence that it is ‘unfair’ to impose attorney’s fees on them individually rings somewhat hollow. Even in a case where the equities were more strongly in favor of the individual state officials (as opposed to the State as an entity) than they are in this case, the possibility of individual liability in damages of a state official where the State itself could not be held liable is as old as Ex parte Young, 209 U.S. 123 [, 28 S.Ct. *83 441 , 52 L.Ed. 714 ] (1908), and has been repeatedly reaffirmed by decisions of this Court. Since the Court evidences no disagreement with this line of cases, its assertion of ‘unfairness’ is not only doubtful in fact but also irrelevant as a matter of law.

Hutto, 437 U.S. at 716-17 , 98 S.Ct. at 2587 , 57 L.Ed.2d at 551 (footnote and citations omitted). See also Ables v. Mooney, 164 W.Va. 19, 29 , 264 S.E.2d 424, 430 (1979):

[O]ur [state] constitutional immunity provision [W.Va. Const. art. VI, § 35] does not forbid suits against State agencies or officials where the claim is made that they are acting unconstitutionally or beyond their lawful powers, or have failed to perform a nondiscretionary duty imposed on them by law. In this type of suit, the issue centers on a declaration of the legality or legitimacy of their conduct. In this sense, the inquiry focuses on whether their action is beyond the legitimate scope of their office, and they become amenable to suit because the claim is that they have acted in a nonofficial capacity.

(emphases added) Certainly the respondent in the present case had the nondiscre-tionary duty to comply with this Court’s mandate as to the enforcement of full-roof bolting in all underground coal mines utilizing auger-type continuous coal mining equipment. It is equally certain that his contumacious failure to comply with such mandate was in his nonofficial capacity. Accordingly, he, not the taxpayers of this State, should bear the monetary burdens associated with this civil contempt.

None of the cases cited in the majority opinion in the present case which purportedly follow the Hutto rationale cite Hutto , and all of those cases fail to address the issue of personal, as opposed to official, liability of a public official for the reasonable attorney’s fees incurred by the prevailing litigant in a civil contempt proceeding against the public official.

While this issue is not precisely articulated in the following cases, several courts have apparently concluded that a public official may be personally liable for the reasonable attorney’s fees incurred by the prevailing litigant in a civil contempt proceeding against the public official. See, e.g., Wright v. Jackson, 522 F.2d 955 (4th Cir.1975) (federal prison officials; award based upon obstinacy in drafting rules and regulations and obstinacy or recalcitrance in otherwise carrying out final order of court) (prison officials represented by privately retained counsel, not by government counsel); Nelson v. Steiner, 279 F.2d 944 (7th Cir.1960) (District Director of Internal Revenue Service and Chief of Claims Section of Tax Division of Department of Justice; failure to comply with injunctive order as to recording of release of void tax liens and refunding certain tax collections) (both officials chastised personally); Lasky v. Quinlan, 426 F.Supp. 682 (S.D.N.Y.1976) (county sheriff; “stubborn resistance” in failing to comply with court order for jail improvements) (sheriff represented by privately retained counsel, not government counsel; no eleventh amendment defense asserted), vacated on other grounds, 558 F.2d 1133 (2d Cir.1977). In none of these cases was there even a hint that anything more than a finding of contempt was required to trigger personal liability for the adversary’s reasonable attorney’s fees associated with the contempt proceeding against the public official(s).

The proper perspective in this case takes into account a couple of important, fundamental principles, both of which are undermined by the majority opinion in this case. First, the executive branch of government has no right to treat with impunity the valid orders of the judicial branch. Nelson v. Steiner, 279 F.2d 944, 948 (7th Cir.1960). Second, “[i]n a democracy, power implies responsibility. The greater the power that defies law the less tolerant can this Court be of defiance.” United States v. United Mine Workers, 330 U.S. 258, 312 , 67 S.Ct. 677, 705 , 91 L.Ed. 884, 922 (1947) (Frankfurter, J., concurring). The contumacious conduct in the present case of a major department head whose primary function is to promote the health and safety of miners in this State should not be imputed to the taxpayers of this State by laying the costs of such conduct at their feet.

*84 For the foregoing reasons I must dissent. I am authorized to state that Chief Justice McGraw joins in this dissenting opinion.