Amicus Brief — Stanton v. Bond

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Js. FIL D

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Iu the Supreme Cort

OF THE

United States

OcropeR TERM, 1975

No. 75-1413

Wayne A. Stanton, Administrator of the

Indiana State Dept. of Public

Welfare, et al.,

Petitioners,

vs.

Louise Bonn, et al.,

Respondents.

BRIEF OF THE STATE OF CALIFORNIA

AMICUS CURIAE

IN SUPPORT OF PETITIONERS

EVELLE J. YOUNGER

Attorney General of the State of California

Jack R. WINKLER

Chief Assistant Attorney General—

Criminal Division

Epwarp P. O'BRIEN

Assistant Attorney Genera!

Grorta F. DeHarr

Deputy Attorney General

Patrick G., GOLDEN

Deputy Attorney General

6000 State Building

San Francisco, California 94102

Telephone: (415) 557-2653

Attorneys for Amicus Curiae

State of California

PERNAU- WALSH PRINTING CO.~- 562 MISSION STREET - SAN FRANCISCO, CA 94108

Subject Index

Page

EO ORE ny ae 1

ey Ce Ss inns 04 <ddesductdsctecdcdedban > &

SE ctbedaatadendeienuduibdeddtidiusnediisawecns 3

I

Recovery of attorneys’ fees from the state is barred by

the Eleventh Amendment ...............cccceeeee: 3

II

An award of attorneys’ fees against a state may not be

predicated upon the common fund or bad faith excep-

tions to the American rule prohibiting an award of

SEY GED SHhc SARbD ch avWe 650s cceuceessicccuse 9

CID itceeicd eet ee ee Ui eee cu ee og oe lt 1l

Table oi Authorities Cited

Cases Pages

Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240

DEE s6ncdeeddeedaseduedundenees én cdesceedeecinséce 3,9

Bitzer, et al. v. Matthews, et al., No. 75-283, ........ US. .

— £m , 44 U.S.L.Week 5120, 5123 (June 28, 1976) 6

Class v. Norton, 505 F.2d 123 (2d Cir. 1974) ........... 6

Cohens v. Virginia, 6 Wheat. (19 U.S.) 264 (1821) ...... 8

Edelman v. Jordan, 415 U.S. 651 (1974) ...2,3, 4,5, 6,7, 8, 9,10

Ex parte Young, 209 U.S. 123 (1908) .................. 4,6

Fairmont Creamery Co. v. Minnesota, 275 U.S. 70 (1927) 7,8

Fitzpatrick, et al. v. Bitzer, et al., ....... _—_——a, = ==

neds , 44 U.S.L.Week 5120 (June 28, 1976) ............ 6,7

Hallmark Clinie v. North Carolina Dept. of Hum. Res.,

Se ee GU SEE bob dsbceccdccccessccecas 5, 6

ii TABLE oF AuTHORITIES CITED

Pages

Jordan v. Fusari, 496 F.2d 646 (2d Cir. 1974) .......... 6

Jordon v. Gilligan, 500 F.2d 701 (6th Cir. 1974), cert.

Gomes, GL US. GEE uccccicisceccesteseusaeeee 5

Murgia v. Commonwealth of Mass. Bd. of Retirement, 386

F.Supp. 179 (D.Mass. 1974), judgment affirmed, 421

DM GER co cccccececncese6e6ens aun uunneeee 6

Named Ind. Mem., San Antonio Con. Soe. v. Texas Hwy.

Dept., 496 F.2d 1017 (5th Cir. 1974), cert. denied, 420

Wie GED .ovccesess6bene6¢enenuenmeeen ae 5

Schuerer v. Rhodes, 416 U.S. 232 (1973) ............... 11

Skehan v. Board of Trustees, 501 F.2d 31 (1974), vacated

on other grounds, 421 U.S. 983 ............. cc cee eeeee 5

Souza v. Travisono, 512 F.2d 1137 (1st Cir. 1975), re-

manded on other grounds, 423 U.S. 809 .............. 6

Sprague v. Ticonic Bank, 307 U.S. 161 (1939) .......... 8

Swanson v. American Consumer Industries, Inc., 517 F 2d

Sem CHR Gan BRU) cecccossunsccauceanee 8

Taylor v. Perini, 503 F.2d 899 (6th Cir. 1974), vacated on

ether qreunta, G38 GE GED oocccccsccsutasscueeusen 5

Codes

Government Code, Sections 825, et seq. ........... 000005. 1

Constitutions

United States Constitution:

Eleventh Amendment ................ 2, 3, 4,5, 7, 8,9, 10,11

Wemmteenth AMMEN oo. cccccccescacceussssnanun 6,10

Rules

Federal Rules of Civil Procedure, Rule 25(d) ........... 10

Iu the Supreme Court

OF THE

Rnited States

OctoBeR TER™, i975

No. 75-1413

Wayne A. Stanton, Administrator of the

Indiana State Dept. of Public

Welfare, et al.,

Petitioners,

vs.

LovisE Bonp, et al.,

Respondents.

BRIEF OF THE STATE OF CALIFORNIA

AMICUS CURIAE

IN SUPPORT OF PETITIONERS

INTEREST OF AMICUS CURIAE

The State of California employs over 130,000 per-

sons and, under state law, defends any employee or

former employee against any claim or action arising

out of an act or omission occurring within the scope

of his employment. Calif. Gov. Code § 825, et seq.

Imposition of attorneys’ fees, even in a small per-

centage of cases, will have a direct and significant

2

impact on the funds and fiscal management of the

State of California. Resolution of the Eleventh

Amendment issue in relation to a federal court’s

power to grant attorneys’ fees against a state official

is, therefore, of significant interest to amicus.

SUMMARY OF ARGUMENT

The Eleventh Amendment to the United States

Constitution bars the recovery of attorneys’ fees from

a state treasury. Those circuits which have held oth-

erwise have misconstrued this Court’s opinion in

Edelman v. Jordan, 415 U.S. 651 (1974). This con-

clusion cannot be altered by labeling an award of

attorneys’ fees against the state an “equitable rem-

edy” or a “taxation of costs.”

An award of attorneys’ fees against the state offi-

cials cannot be predicated upon the common fund or

bad faith exceptions to the American rule prohibit-

ing the award of attorneys’ fees. The common fund

theory is inappropriate, because no fund will be avail-

able from which to reimburse litigants. The bad faith

exception cannot support an award of attorneys’ fees

against the state official in a suit seeking injunctive

relief, as the state is the real party in interest and

as any award of attorneys’ fees would have a direct

impact on the state treasury.

3

ARGUMENT

After this Court’s decision in Alyeska Pipeline Co.

v. Wilderness Society, 421 U.S. 240 (1975), attor-

neys’ fees may not be awarded by a federal court to

a prevailing party based on a private attorney gen-

eral theory. In dicta, this Court appeared to recognize

that attorneys’ fees can be awarded from a common

fund or when the losing party has acted in bad faith,

vexatiously, wantonly, or for oppressive reasons. Jd.

at 257-259. In the instant case, amicus submits that the

Eleventh Amendment bars an award of attorneys’

fees based on the “bad faith” rationale.

I

RECOVERY OF ATTORNEYS’ FEES FROM THE STATE IS

BARRED BY THE ELEVENTH AMENDMENT.

The Eleventh Amendment to the United States

Constitution, ratified in 1798, and unchanged since,

provides:

“The judicial power of the United States shall

not be construed to extend to any suit in law or

equity, commenced or prosecuted against one of

the United States by Citizens of another State,

or by Citizens or subjects of any Foreign State.”

This Court has consistently held that an uncon-

senting state is immune from suits brought in federal

courts by her own citizens as well as by citizens of

another state. Edelman v. Jordan, 415 U.S. 651, 662-

663 (1974). In the instant case, although the State of

Indiana was not named the defendant, any monetary

4

award for attorneys’ fees will obviously not be paid

out of pocket of the defendants, but will have a direct

impact on the funds and fiscal management of the

State of Indiana. See Edelman v. Jordan, supra

at 665.

In Edelman, this Court held that retroactive pay-

ment of welfare benefits wrongfully withheld by state

officials was barred by the Eleventh Amendment. Id.

at 662-669. In so holding, this Court stated:

““[ When the action is in essence one for the

recovery of money from the state, the state is

the real, substantial party in interest and is en-

titled to invoke its sovereign immunity from suit

even though individual officials are nominal de-

fendants.’ Thus, the rule has evolved that a suit

by private parties seeking to impose a liability

which must be paid from public funds in the

State treasury is barred by the Eleventh Amend-

ment.” (Citations omitted). Id. at 663.

In so ruling, this Court specifically distinguished

Ex parte Young, 209 U.S. 123 (1908):

“But the relief awarded in Ex parte Young

was prospective only; the Attorney General of

Minnesota was enjoined to conform his future

conduct of that office to the requirement of the

Fourteenth Amendment. Such relief is analogous

to that awarded by the District Court in the

prospective portion of its order under review in

this case.

“But the retroactive portion of the District

Court’s order here, which requires the payment

of a very substantial amount of money which

that court held should have been paid, but was

5

not, stands on quite different footing. These funds

will obviously not be paid out of the pocket of

petitioner Edelman.” Id. at 664.

_ This Court also held that labeling an award “equi-

table restitution” does not evade the Eleventh Amend-

ment bar. Jd. at 665-666. Further, it was held that the

State of Illinois did not waive its Eleventh Amend-

ment protection or consent to be sued because it had

participated in » federal AABD program. Id. at

671-677.

Amicus submits that the rationale of Edelman ap-

plies to respondents’ request for attorneys’ fees. There

is no doubt, as in Edelman, that petitioners will not

be held personally accountable for such award. De-

spite individual defendants named, an award of at-

torneys’ fees would have a direct impact upon the

funds and fiscal management of the State of Indiana.

Any award of attorneys’ fees against a state official

in such circumstances would impose an unconstitu-

tional burden on a state treasury.

Accordingly, it has been held that the Edelman

decision compels the conclusion that the Eleventh

Amendment bars the recovery of attorneys’ fees

against a state. Jordon v. Gilligan, 500 F.2d 701 (6th

Cir. 1974), cert. denied, 421 U.S. 991. Accord, Taylor

v. Perim, 503 F.2d 899, 901, 905 (6th Cir. 1974), va-

cated on other grounds at 421 U.S. 982; Skehan v.

Board of Trustees, 501 F.2d 31 (1974), vacated on

other grounds at 421 U.S. 983; Named Ind. Mem.,

San Antonio Con. Soc. v. Texas Hwy. Dept., 496 F.2d

1017 (5th Cir. 1974), cert. denied, 420 U.S. 926; Hall-

6

mark Clinic v. North Carolina Dept. of Hum. Res.,

O19 F.2d 1315, 1317 (4th Cir. 1975). Significantly,

this Court has summarily affirmed a decision of a

three-judge district court in the First Cireuit which

denied an award of attorneys’ fees both as a matter

of law and discretion. Murgia v. Commonwealth of

Mass. Bd. of Retirement, 386 F.Supp. 179 (D.Mass.

1974), judgment affirmed, 421 U.S. 972.

Amicus recognizes that some circuits have taken

the position that an award of attorneys’ fees is per-

missible, on the grounds that such an award has only

an “ancillary effect on the state treasury” resulting

from compliance with the order of injunctive relief,

Jordan v, Fusari, 496 F.2d 646 (2d Cir. 1974) ; Class

v. Norton, 505 F.2d 123 (2d Cir. 1974); Souza v.

Travisono, 512 F.2d 1137 (1st Cir. 1975), remanded

on other grounds, 423 U.S. 809.' However, an analysis

of Edelman does not support the conclusion of these

circuits. This Court in Edelman did not leave at

large what was meant by the phrase “ancillary effect.”

The phrase comes at the end of a paragraph at 415

U.S, 667-668 in which this Court discusses Ex parte

Young, 209 U.S. 123 (1908), as well as two of this

Court’s more recent welfare eases. and notes that the

decrees in those cases would have an effect on the

‘In Fitzpatrick, et al. v. Bitzer, et al., No. 75-251, and Bitzer,

et al. v. Matthews, et al., No. 75-283, _.. U.S. 0, S.Ct. ;

44 US.L.Week 5120, 5123 (June 28, 1976), this Court held that

it need not decide this question, as there was express congressional

authority for such an award, which authority was based on the

Fourteenth Amendment. In the instant case, there is no co

sional authority for the attorneys’ fees award, nor could there be

under the present Social Security Act. Id. at 5122.

7

states’ funds. “But,” this Court stated, “the fiscal

consequences to state treasuries in these cases were

the necessary result of compliance with decrees which

by their terms were prospective in nature.” 415 U.S.

at 667-668. This is the “ancillary effect” that this

Court describes as permissible.

In the next paragraph, this Court distinguished

the decree it was reviewing from those it had re-

ferred to:

“It requires payment of state funds, not as a

necessary consequence of compliance in the future

with the substantive federal-question determina-

tion, but as a form of compensation to those

whose applications were processed on the slower

time schedule at a time when petitioner was

under no court-imposed obligation to conform to

a different standard.” 415 U.S. at 668.

It can hardly be argued that an award of attorneys’

fees can be classified as a “necessary consequence of

compliance in the future with a substantive federal-

question determination. . . .”

The argument has also been made that since an

award of attorneys’ fees resembles more closely the

incidental costs sanctioned by this Court in Fair-

mont Creamery Co. v. Minnesota, 275 U.S. 70 (1927),

such an award is permitted by the Eleventh Amend-

ment. See Fitzpatrick v. Bitzer, supra, ........ a enn

cual S.Ct. ..., 44 U.S.L.Week at 5124 (concurring

opinion of Stevens, J.). However, this argument must

fail for several reasons. First, an award of attorneys’

fees has been regarded by this Court as quite unlike

8

an award of taxable costs. Sprague v. Ticonic Bank,

307 U.S. 161 (1939). This distinction has been fol-

lowed by circuit courts. See, e.g., Swanson v. Amer-

ican Consumer Industries, Inc., 517 F.2d 555, 559-

560 (7th Cir. 1975). Secondly, while it is quite true

that in Fairmont, supra, this Court held that costs

could be taxed against Minnesota, it is noteworthy

that in that case there is no mention of the Eleventh

Amendment. Fairmont involved review of a state

court decision affirming a criminal conviction. The

Eleventh Amendment was not discussed because it

had no possible application. The amendment sneaks

only to suits “commenced or prosecuted against one

of the united states... .” It does not reach a prose-

cution commenced by the state itself. A state cannot

insulate itself from review of its criminal convictions,

when they are attacked on federal constitutional

grounds, by arguing that under the Eleventh Amend-

ment this Court has no jurisdiction. This much has

been settled since the landmark case of Cohens v.

Virginia, 6 Wheat. (19 U.S.) 264 (1821). Unlike

Fairmont Creamery, the civil suit in the instant case

was commenced against Indiana. Fairmont Creamery

has no application to suits commenced against a state.

In any event, any argument that Fairmont Cream-

ery supports the imposition of attorneys’ fees against

the state has been put to rest by this Court in Edel-

man v. Jordan, supra, Labeling attorneys’ fees as

“costs” is as much an evasion of the Eleventh Amend-

ment as labeling retroactive damages “equitable resti-

tution.” Edelman, supra, at 665-666.

II

AN AWARD OF ATTORNEYS’ FEES AGAINST A STATE MAY

NOT BE PREDICATED UPON THE COMMON FUND OR BAD

FAITH EXCEPTIONS TO THE AMERICAN RULE PROHIBIT-

ING AN AWARD OF ATTORNEYS’ FEES.

In Alyeska Pipe Line Service Company v. Wilder-

ness Society, supra, 421 U.S. 240, this Court disap-

proved the “private attorney general” approach as a

basis for court-awarded attorneys’ fees in public in-

terest litigation unless authorized by statute. How-

ever, dicta in the opinion appears to recognize the

continuing validity of the “common fund” and “bad

faith” exceptions to the traditional American rule

limiting an award of attorneys’ fees. Id. at 257-259.

Amicus submits that the dicta in Alyeska has no ap-

plication in the instant case. The Eleventh Amend-

ment bars any such award against ¢ _ state.

The common fund theory is inapplicable since any

fund in a suit against a state official or state agency

would necessar:ly come from the state treasury. How-

ever, since Edelman, supra, precludes an award of

monetary relief from the state treasury, no fund

would be available from which to reimburse litigants.

The “bad faith” exception mentioned in Alyeska

is also inapplicable. This issue was not discussed in

Alyeska, supra, as the Court of Appeals deemed it

inappropriate to burden the State of Alaska with any

part of the award. 421 U.S. at 246. Amicus submits

that the Eleventh Amendment bars an award of at-

torneys’ fees when injunctive relief is sought against

a state official. In such a case, the purpose of the

10

action is to remedy a state practice, not to impose a

monetary liability against the state for past depriva-

tions of constitutional rights. A state official has both

the right and the duty to follow state law. When a

state law or procedure is alleged to conflict with a

constitutional right and a federal suit is filed, the

official, as an officer of the state, defends the state

interest and, as an officer of the state, will, if or-

dered, comply with the court order. In such a case

the state is the real party in interest. The official is

merely a nominal party.’ To award attorneys’ fees

on a bad faith theory and without Congressional au-

thority founded on the Fourteenth Amendment is

tantamount to an award of attorneys’ fees against the

state and is therefore barred by the Eleventh Amend-

ment. Granting attorneys’ fees in an injunctive suit

against a state official by labeling the conduct “bad

faith” is as much an evasion of the Eleventh Amend-

ment bar as labeling a retroactive monetary award

against a state “equitable restitution.” In both cases

the real party in interest, the state, is being ordered

by a federal court to hand over state funds to a

private party. In both cases, the Eleventh Amend-

ment, as explained in Edelman, prohibits such an

award.

This is not to say that an individual state official

cannnot be held personally responsible for a direct

and knowing contempt of a federal court order, or

that an individual state official cannot be personally

2This fact is recognized in Rule 25(d) of the Federal Rules of

Civil Procedure, which allows substitution of officials in suits seek-

ing injunctive relief.

ee eee

11

liable for damages in a proper suit in which the

plaintiff overcomes the official’s qualified executive

immunity. See Schuerer v. Rhodes, 416 U.S. 232, 238

(1973). However, amicus submits that in a contempt

proceeding or a damage suii, nlike his position in a

suit seeking injunctive relief, the state official is him-

self the real party in interest.

Redress for the personal acts of state officials dur-

ing the pendency of an injunctive suit may not be had

under the guise of an award of attorneys’ fees. Such

redress must be sought only in contempt proceedings

or a damage action.

CONCLUSION

Amicus submits that the Eleventh Amendment pre-

cludes a court ordered award of attorneys’ fees

against a state.

Dated, San Francisco, California,

July 14, 1976.

EVELLE J. YOUNGER

Attorney General of the State of California

Jack R. WINKLER

Chief Assistant Attorney General—

Criminal Division

Epwarp P. O’BrIEN

Assistant Attorney General

Guioria F, DeHart

Deputy Attorney General

Patrick G, GOLDEN

Deputy Attorney General

Attorneys for Amicus Curiae

State of California