# Amicus Brief — Stanton v. Bond > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2223%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Brief - **Published:** January 1, 1976 - **Citation:** 426 U.S. 905 ## Text | _ Supreme Court, U. & Js. FIL D { 16 197! 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 & 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2223%3A02. Public record. Not legal advice.