# State Bd. of Educ. v. Waldrop

> Supreme Court of Alabama · July 26, 2002 · 840 So. 2d 893

URL: https://www.frixlaw.com/law-library/cases/9938158

## Case

- **Full name:** State Board of Education v. Ronald Waldrop
- **Court:** Supreme Court of Alabama
- **Decided:** July 26, 2002
- **Citations:** 840 So. 2d 893; 2002 WL 1729555
- **Precedential status:** Published
- **Opinion:** Concurrence by Lyons
- **Judges:** Lyons, See, Stuart
- **Cited by:** 40 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9938158

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9938158. Public record. Not legal advice.