“Under the Supremacy Clause of the United States Constitution (Art. VI), in tandem with the Fourteenth Amendment, the attorney fees permitted by 42 U.S.C. § 1988 are recoverable, notwithstanding a provision of a state constitution that might otherwise afford immunity to the party against whom the fees are sought.”
How later courts described this case
- “Under the Supremacy Clause of the United States Constitution (Art. VI), in tandem with the Fourteenth Amendment, the attorney fees permitted by 42 U.S.C. § 1988 are recoverable, notwithstanding a provision of a state constitution that might otherwise afford immunity to the party against whom the fees are sought.”
- expressing concern as to whetherBrown v. State, 565 So.2d 585 (Ala. 1990), which awarded attorney fees against the State, was consistent with § 14
- '[A] decision on the merits disposing of all claims is a final decision from which an appeal must be timely taken, whether a request for attorney fees remains for adjudication.'
- "[W]e will not interpret the trial court's silence in its [final order] as to Waldrop's request for attorney fees as a denial of that request."
Written by the judges who cited it.
The opinion
I concur in the majority opinion. I write specially to note my reservations concerning the consistency of this Court's decision in Brown v. State , 565 So.2d 585 (Ala. 1990), with Art. I , § 14 , Alabama Constitution of 1901 ("That the State of Alabama shall never be made a defendant in any court of law or equity.").
The Board contends that sovereign immunity precluded the award of an attorney fee against it in this case. However, in its brief to this Court, the Board, while attempting to support its immunity argument by showing that Waldrop's claims sound in tort, correctly observed that the complaint asserted claims arising under the Civil Rights Act, 42 U.S.C. § 1981 et seq . Of course, 42 U.S.C. § 1988 , legislation implementing the Fourteenth Amendment, permits the prevailing party to recover an attorney fee.
Under the Supremacy Clause of the United States Constitution (Art. VI ), in tandem with the Fourteenth Amendment, the attorney fees permitted by 42 U.S.C. § 1988 are recoverable, notwithstanding a provision of a state constitution that might otherwise afford immunity to the party against whom the fees are sought. See Hensley v. Eckerhart , 461 U.S. 424 , 446 n. 7 (1983) ("Congress's imposition of liability for attorney's fees under § 1988 also represents a decision to abrogate the sovereign immunity of the States in order to accomplish the purposes of the Fourteenth Amendment. See Senate Report [No. 94-1011, 94th Cong., 2d Sess. 5 (1976)]; Fitzpatrick v. Bitzer , 427 U.S. 445 , 96 S.Ct. 2666 , 49 L.Ed.2d 614 (1976); Maher v. Gagne , 448 U.S. 122 , 128-129 , 100 S.Ct. 2570 , 2574-2575 , 65 L.Ed.2d 653 (1980)."). See also Larkins v. Department of Mental Health Mental Retardation , 806 So.2d 358 , 363
(Ala. 2001), noting that "the *Page 903 Fourteenth Amendment overrides the scheme of sovereignty of states as it existed at the time of the formation of the Union."
The question whether the liability of the State for payment of an attorney fee as recognized in Brown v. State is properly confined to cases arising under statutes such as 42 U.S.C. § 1988 must await another day.