Opposition — Maher v. Gagne

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PAICHAEL RODAK, 8, Cit}

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1978

NO. 78-1888

EDWARD MAHER, PETITIONER

V.

VIRGINIA GAGNE

PETITION FOR WRIT OF CERTIORARI

FROM THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

a

MOTION FOR LEAVE TO PROCEED IN

FORMA PAUPERIS

The respondent, Virginia Gagne, respectfully moves

pursuant to Rule 53, paragraph 1 of the Rules of this Court,

that she be allowed to proceed in forma pauperis. Her

affidavit is attached to this motion.

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Kh. PILVER

& VID C. SHAW

EGAL AID SOCIETY OF

HARTFORD COUNTY, INC.

525 MAIN S'KELT

HARVVORD, CH 94103

TEL. (203) 5€6-6360

COUNSEL FOR RESPONDENT

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1978

NO. 78-1888

EDWARD MAHER, PETITIONER

V.

VIRGINIA GAGNE

AFFIDAVIT

I, Virginia Gagne, being duly sworn, depose and say in

support of my motion for leave to proceed without being

required to pay costs or fees:

l. I am the respondent in the above entitled case.

2. Because of my poverty, I am unable to pay the costs

of said cause, pay for printing or give security for the same.

I am employed by the Bass Plating Co. and receive a weekly

net salary of $189.00, plus an additional $45 monthly from

State Welfare. Out of this sum, I must support three children,

two of whom are retarded, and provide partial support for a

fourth. I have no other income, assets or savings.

3. The nature of said cause is briefly stated as

follows: The petitioner claims in his petition for

certiorari that counsel in this case are not entitled to

attorneys fees under the Civil Rights Attorneys' Fees

Awards Act, 42 U.S.C. §1988 because the case was settled

in the district court by consent decree. The petitioner

argues that the anpellate court erred in holding that the

plaintiff was nevertheless a "prevailing party" within the

meaning of the Act and thus entitled to fees.

pene a. ee yao

7 ” @

VIRGINIA GAGNE ‘

4 -

vA

Subscribed and sworn to before me this if day of

BS CfHitti tS”

July 1979.

NOTARY PUBLIC

RECEIVE;

AUG = 6 1979

OFFICE OF THs CLK,

SUPREME Court, Ug.

ie

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

NO. 78-1888

EDWARD W. MAHER, COMMISSIONER OF

INCOME MAINTENANCE,

STATE OF CONNECTICUT,

Petitioner

Vv.

VIRGINIA GAGNE, INDIVIDUALLY AND

ON BEHALF OF OTHERS SIMILARLY SITUATED,

Respondent

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

RESPONDENT'S BRIEF IN OPPOSITION

JOAN E. PILVER

Legal Aid Society of

Hartford County, Inc.

525 Main Street

Hartford, Connecticut 06103

DAVID C. SHAW

Legal Aid Society of

Hartford County, Inc.

525 Main Street

Hartford, Connecticut 06103

l.

INDEX

<

Page

Reasons why the writ should be GENied..cccccccccevcvcegqeead

The Petitioner's First Question Presented

Ignores The Clear Precedent of This Court

and Is Inconsistent With Decisions of Every

United States Court of Appeals That Has

Considered The ISSUE. cc sccccccsvcccocsvesesesescceed

«

The Court Below Correctly Held That An

Award of Attorneys' Fees Against a State ¥.

Official Fits Within the "Ancillary-Effect" <

Exception to Edelman v. Jordan and Is Thus Not

Barred By the Eleventh Amendment....ccccccccccscvesesS

(1) Consideration of the second

Question Presented is unnecessary -

for resolution of the PONE sik ad vas 9s rag rycae sD

(2) The decision of the court of appeals

below was COSC Ss bb 46-b CREE 6 Che O CSN 8h Ra ewe

Conclusion errr eS. CER CERT TS TEER ET Te CE ee ee Oe

ii

CITATIONS

Cases: Page

Alyeska Pipeline Service Co. v.

Wilderness Society 421 OB. BOO CIDTB) ccocccpuatsssveves OF

Blau _v. _Rayette- Faner see Inc.

309 F. 2d 469 (2d Cle. 19GB) ..ccccccccccccscccccccsseces: §

Bond v. Stanton 528 F. 2d 688 (7th Cir. 1976),

remanded 429 U.S. 973 (1977); 555 F. 2d 172 (1977),

cert. denied 438 U.S. 916 (1978) wececeeeeecrecsecsernees 2, 10,

Boston Chapter, N.A.A.C.P., Inc. v. Beecher

504 F. Rn 1017 (ist Cir. Y “cert. denied

421 U. 910 (1975) oeereeeenevreeeeoe eee ee 7 ee ee eee ha

Brandenburger v. Thompson 494 F. 2d 885

(th Cir. 1974) eeeeveeveeeeveeaeeveeeeeeveeeeeeeeene ewe eeeeeeee * 12

Class v. Norton 505 F. 2d 123 (2d. Cir. 1974) ..... +. aoe ae

8, 9

Edelman v. Jordan 415 U.S. 651 (1974) ..sccsececcceeeenee QD], 12,

Ex parte Comm. of Virginia, 100 U.S. 339 (1879) .....-4.-2. 6

Ex parte Young 209 U.S. 123 (1908) eee eneeneeeeneeveeenee “wee &, 9

Fairmont Creamery Co. v. Minnesota

4239 U.S 70 (1927) ane eRe ee one’s BU es 6 oe 6aleee Cee Owe eK Oe

Fitzpatrick v. Bitzer 519 F. 2d 559 (2d Cir. 1975 )y re 8

aff"d in part, rev'd in part, 427 U.S. 445 (1976) wee Fe Al

Gagne v. Maher 455 F. Supp. 1344 (D. Conn. 1978),

aff'd, 594 F. 2d 336 (2d Cir. 1979) ....eeeee oe ee ees ewe . 2, 5,

Hagans v. Lavine 415 U.S. 528 (1974) ..... ‘ eceesseccns Sef

Hutto v. Finney, 437 U.S. 678 (1978) wssccseseeeeeereeres 6, 10,

Jordan v. Fusari 496 F. 2d 646 (2d Cir. 1974) ..eeeeeeeee 12

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

cert. denied, 421 U.S. 991 (1975) .weeeeeees were Ce so

Katzenbach v. Morgan 384 U.S. 641 (1966) ...... coveseccees Oe 7

Kimbrough v. Arkansas Activities Ass'n

574 F. 2d 423 (8th Cir. 1978) wrccceccevectecscveccscseee fe 3

Kopet_v. Esquire Realty Co.

523 Rid 2da_ 1005 “(2d Cixe 1975) eeeeveveeeeeeeneneee . 7 eee 3

Cases: Paye

Lund v. Affleck 587 F. 2d 75 (lst Cir. 1978) ....e0.. 2

Parker v. Matthews 411 F. Supp. 1059 (D.D.C. 1976),

aff'd sup. nom. Parker v. Califano 561 F. 2d 320

(D.C, Cie. 1977) eeeoeeeeseeeeveseeeveeeee eee eeveeeeeeseeneeee )

Seals v. Quarterly County Court, Etc.,

SOS EN ee Bee TOU CSN sc COTE): veadeees vas tedseccov'ss 2

Sims v. Amos 340 F. Supp. 691 (M.D. Ala.),

SEE ESOP U.Be BER (L97E). vcacccecoscsvess poneeseeb ae 9

Skehan v. Board of Trustees, 501 F. 2d 31 (3rd Cir. 1974),

vacated and remandcd, 421 U.S. 983 (1975), remanded,

538 F. 2d 53 (1976), (en banc), cert. denied,

Cae Wa Ba BIO: CPS) av ced oes cdnsene cas tacesseeebis voor Oe

Southeast Legal Defense Group v. Adams

Tae a es. ee Ae Gy: BOPAS «we.be s bb ewesee co ee 2

Souza v. Travisono 512 F. 2d 1137 (lst Cir.),

vacated and remanded, 423 U.S. 809 (1975) ............ Ji,

Spector Motor Co. v. McLaughlin

SES Wibs BUA CAPSS), den cecaveresses Sh ebenebeb-esebness °

Thonen v. Jenkins

517 Fs Za 6S (4th Crs. 1975) *eenereeieenreientenee7#+eeeerekee#eeeee#e%#« 12

Gnited Nips Workers v. Gibbs

FEE Pee FA CHEE Cet aeeawdad evcdceeseaetsacecnsiess 4

Miscellancous

Public Law 94-559, 90 Stat. 2641, The Civil Rights

Attorney's Fees Awards Act of 1976, codified in

42. U.S, Code Section LESS... cccsiavesvcceccccdsvcecs 2,

H.R. Rep. No. 1558, 94th Cong. 2d Sess. (1976) ...... 3

S. Rep. No. 1011, 94th Cong. 2d Sess. (1976);

U.S. Code, Congressional and Administrative News 5912-

PPP Ln 6 a 6wa.c oh a0 5.09 ON bes Vipide-s aNedbeo0 066.00 064 beeen 2

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

No. 78-1888

EDWARD W. MAHER, COMMISSIONER OF

INCOME MAINTENANCE,

STATE OF CONNECTICUT,

Petitioner,

Vv.

VIRGINIA GAGNE, INDIVIDUALLY AND

ON BEHALF OF OTHERS SIMILARLY SITUATED,

Respondent

ON PETITION FOR A WRIT OF CERTIORI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECCND CIRCUIT

RESPONDENT'S BRIEF IN OPPOSITION

The respondent, Virginia Gagne, respectfully requests

that this Court deny the petition for writ of certiorari,

secking review of the Second Circuit's opinion in this case,

entered March 9, 1979. That opinion is reported at 594

F.2d 336.

REASONS WHY Tl’ WRIT SHOULD BE DENIED

1. The Petitioner's First Question Presented Ignores

The Clear Precedent of This Court and Is Inconsistent With

Decisions of Every United States Court of Appeals That Has

Considered the Issue.

Petitioner's argument that the principles of sovereign

immunity embodied in the Eleventh Amendment to the United

States Constitution, prohibit fee awards against state

officials ander the Civil Rights Attorneys Fees Awards Act of

1976, 42 U.S.C. §1988, (hereinafter, the Fees Act), in cases

where the constitutional issues presented to the court

were never formally resolved, either because judgement

was entered on statutory grounds, or, as here, where the

case was settled by consent decree, has been rejected by

every court of apveals that has considered the issue. See,

Lund v. Affleck, 587 F.2d 75, 76-77 (1st Cir. 1978); Bond v.

Stanton 555 F.2d 172, 174-175 (7th Cir. 1977); cert. denied,

438 U.S. 916 (1978), Seals v. Quarterly County Court 562

a

F.2d 390, 393-294, (6th Cir, 1977), Kimbrough v. Arkansas

-“three-

, 1

Activities Association 574 F.2d 423, 426-427 (8th Cir. 1978).

The foundation of petitioner's contention is its

allegation that Congress did not intend to abrogate the

States' immunity in cases where a plaintiff prevails without

a judicial determination that plaintiff has a meritorious

constitutional claim, and alternatively, that if Congress

did so intend, it exceeded its express authority under

section 5 of the Fourteenth Amendment.

As regards petitioner's first claim, the legislative

history of the Fees Act indicates that Congress was aware

of and carefully evaluated competing considerations to reach

its conclusion that fee awards should be made in cases

terminated by consent decree, as well as in those cases

that proceed to judgement on a “non-fee claim."

Contrary to petitioner's assertions (see petitioner's

brief p. 6a), the legislative history is quite clear that

Congress intended fee awards in cases such as this. The

Senate es states that attorneys' fees should be awarded

in a wide variety of cases, including those terminated by

consent decree, citing, Kopet v. Esquire Realty Co. 523

1

Accord, Southeast Legal Defense Group v. Adans, 436

F, Supp. 891, 893-895, (D. Ore. 1977).

2

S. Rep. No. 1011, 94th Cong. 2nd Sess. 5 (1976) U.S.

Code Cong. & Admin. News at 5912-5913.

-four- iii

F.2d 1005 (2d Cir. 1975). In that case, and in Blau

v. Rayette - Faberge, Inc. 389 F.2d 469 (2a Cir. 1968),

the Court of Appeals for the Second Circuit held that counsel

fees could be awarded whenever plaintiffs' efforts confer

benefits on the class, including those obtained through

settlement,

The House Report, 3 on a bill that was identical in

every material respect to the Senate version of the Fees Act,

directly addresses the situation in which a constitutional

claim is joined with a non-fee statutory claim:

To the extent a plaintiff joins a claim

under one of the statutes enumerated in

[the Fees Act] with a claim that does not

allow attorney fees, that plaintiff, if it

prevails on the non-fee Claim, is entitled

to a determination on the other claim for

the purpose of awarding counsel fees.

-+++ In some instances, however, the claim

with fees may involve a constitutional

question which the courts are reluctant

to resolve if the non-constitutional claim

1s dispositive .... In such cases, if the claim

for which fees may be awarded meets the "sub-

Stantiality" test, see Hagans v. Lavine, [415

U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974)];

United Mineworkers v. Gibbs, 383 U.S. 715,

86 S.Ct. 1130, 16 L.Ed.2d 218 (1966),

attorney's fees may be allowed even though

the court declines to enter judgment for

the plaintiff on that claim so long as the

plaintiff prevails on the non-fee claim

arising out of a “common nucleus of oper-

ative fact".

3

H.R. Rep. No. 1558, 94th Cong. 2nd Sess. 4 n. 7 (1976).

-five-

Congress was aware that fee awards in such circumstances

further the Congressional goal of encouraging suits to

vindicate constitutional rights without undermining the

longstanding and deeply rooted judicial policies of avoiding

unnecessary decisionmaking of important constitutional

4

issues, as well as encouraging the settlement of litigation.

5

Congress has reasonably accommodated the competing interests

of the judicial and legislative branches of government, and

its judgment should be accorded the well-deserved deference

to which precedent indicates it is entitled.

*spectox Motor Co. v. McLaughlin 323 U.S. 101, 105 (1944).

Sthe Court below stated:

The State's interpretation of legislative intent

would encourage plaintiffs to try cases in which

reasonable settlement offers have been received,

merely to ensure a fee award. Cf. Parker v.

Matthews 411 F. Supp. 1059, 1062 (D.D.C.

aff'd sub. nom. ,Parker v. Califano, 561 F.2d

eae 40. Cs Cir. 1977); at 340 (citation omitted).

1976),

ae : , :

This same legislative history persuaded the court

below that:

‘

Given the legislative intent to authorize award of

attorneys' fees to the prevailing party in settled

cases and to avoid unnecessary decision of

constitutional issues, we think it clear that

Congress:.intended the test.set forth in the House

Report, to govern the award of attorneys' fees in

suits that are settled as well as those that proceed to

judgment on the “non-fee" claim.

594 F.2d at 340.

Petitioner alternatively contends, that even if

Congress did intend to allow the awarding of fees in cases

where the constitutional issues raised remained unresolved,

it exceeded its power under §5 of the Fourteenth Amendment,

in so acting. That argument, however, has already been

substantially rejected by this Court. In Hutto v. Finney

437 U.S. 678, 693 (1978), this Court held that: “Congress

has plenary power to set aside the states' immunity from

retroactive relief in order to enforce the 14th amendment, "

and that, "When it passed the [Fees] Act, Congress undoubtedly

intended to exercise that power and to authorize fee awards

payable by the states ," at 693-694. In Katzenbach v. Morgan,

384 U.S. 641 (1966), this Court, rejecting arguments identical

to those being made by the petitioner here, quoted from Ex

parte Comm. of Virginia, 100 U.S. 339, 345 (1879), in discussing

the effect of section 5:

‘It is the power of Congress which has been

enlarged. Congress is authorized to enforce

the prohibitions by appropriate legislation.

Some legislation is contemplated to make the

amendments fully effective,'

The Court then went on to dismiss what is the heart of

petitioner's argument:

A construction of §5 that would require

a judicial determination that the enforcement

of the state law precluded by Congress violated

the Amendment, as a condition of sustaining the

congressional enactment, would depreciate both

congressional resourcefulness and congressional

responsibility for implementing the amendment.

It is clear after Katzenbach v. Morgan, supra,

and Fitzpatrick v. Bitzer 427 U.S. 445, 453 -456 (1976),

that any appropriate means of implementing the Fourteenth

Amendment, overrides the State's Eleventh Amendment immunity,

and that great deference should be accorded Congress'

determination as to what measures are appropriate to that

end. Katzenbach v. Morgan, supra at 653.

As the court found below, Congress's approval of the

Hagans v. Lavine jurisdictional standard in determining

whether an award of fees should be made, effectively balances

the interests of Congress in promoting suits to further

constitutional rights, with the concern of the judiciary

regarding the unnecessary decision of constitutional questions,

and is thus an appropriate means of implementing the

Fourteenth Amendment.

Petitioner's arguments, sei thks novel nor unique,

have now been considered and rejected by this Court ‘and

every court of appeals that has considered them. The

petitioner's effort to have this clear precedent reversed

should therefore be rejected.

-eiyht-

2. The Court Below Correctly Held That An Award of Attorneys'

Fees Against a State Offical Fits Within the "Ancillary Effect"

Exception to Edelman v. Jordan and Is Thus Not Barred By the

Eleventh Amendment.

(1) Consideration of the second Question Presented is

unnecessary for resolution of the case.

As the court below found, and the discussion above supports,

The Civil Rights Attorney's Fees Awards Act, 42 U.S.C.§ 1988,

enacted by Congress pursuant to its power under section 5 of the

Fourteenth Amendment, provides the sasbiante statutory authoriz-

ation to abrogate the Eleventh Amendment and allow an award of

fees against a state official. It would thus be unnecessary for

this Court to consider petitioner's additional argument that the

fees in this instance, fits within the “ancillary effect"

exception to Edelman v. Jordan, 415 U.S. 651, 667 (1974), and is

thus not barred by the Eleventh Amendment.

In Fitzpatrick v. Bitzer, supra, this Court expressly refused |

|

court of appeals erred in holding that the award of attorneys'

|

|

to review that part of the holding of the court below which would —

have provided an alternate basis upon which to justify an award

of attorneys' fees against a state defendant. The Court said,

In «No. 75-283, the state officials

contest the Court of Appeals' con-

clusion that an award of attorneys'

state treasury and could therefore be

permitted as falling outside the

Eleventh Amendment under the doctrine

of Ex parte Young. We need not address

this question, Since, given the express

congressional authority for such an award

in a case brought under Title VII, it follows

necessarily from our holding in No. 75-251

that the Congress' exercise of power in this

respect is also not barred by the Eleventh

Amendment. :

427 U.S. at 456-457 (citations omitted)

Similarly, here, it would be a departure from customary

judicial procedure and precedent for this Court to decide the

issue presented by the petitioner, unnecessary as it is, to the

resolution of the case.

(2) The decision of the court of appeals below was correct.

Even if this Court were to break with precedent and consider

reviewing the question of whether an award of attorneys' fees

fit within the “ancillary effect" exception to Edelman, it is

clear that the Court would conclude that the appeals court below

was correct in its ruling that an award of attorneys' fees does,

in fact, fit within that exception.

In Edelman, although this Court held that the Eleventh

Amendment gave the States immunity from retroactive monetary

relief, it reasserted the rule declared in Ex parte Young, 209

U.S. 123 (1908), that state officers are nevertheless not immune

from prospective injunctive relief. Further, notwithstanding the

Eleventh Amendment, States may be obligated to comply with costly |

federal orders if the costs are only "ancillary" to such a pros-

pective order; "ancillary" being defined ‘in Edelman as "a permiss~

ible and often an inevitable consequence of the principle

announced in Ex parte Young, supra." at 667.

With particular regard to attorneys' fees, while this Court

has not decided the issue squarely, its previous decisions would

be consistent with a holding that attorneys' fees fit within the

“ancillary effect" exception to Edelman. In Sims v. Amos 340 F.

Supp. 691 (M.D. Ala.), aff'd 409 U.S. 942 (1972), the Supreme

Court summarily affirmed a decision of the district court

awarding attorneys' fees on the hasis that “the state has no

power to impart to its officers any immunity from such injunction

or from its consequences, including the court costs incident

thereto." 340 F. Supp. at 694 n.8. Although the later case of

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

269, mn. 44 (1975) may have undercut the value of this case some-

what, respondent would argue that it still retains precedential

value.’

In the recent case of Hutto v. Finney, supra, this Court

upheld an award of attorneys' fees against a state defendant who

had acted in bad faith, finding that it fit within the "“ancilliary

effect" exception to Edelman, inasmuch as the award was only a

part of a prospective order enforcing Setecni law. While the

award of fees here, was not made as a means of ee the

defendant for its failure to obey a court order, the respondent

nevertheless maintains, that the connection between an award of

fees for bad faith, and an aned auch as that made here, is so

strong, and so closely connected to orders enforcing prospective

relief, that if one is “ancilliary" so is the other.

One rationale used by the Supreme Court in Hutto to explain

its approval of an award of fees against a state defendant under

42 U.S.C. §1988, despite the statute's Seon of specific author-

ization for such an award, is the similarity it found between

The Court found support for its

attorneys' fees and costs.

holding allowing an award of fees "as a part of costs} under the

7 See,Gagne v. Maher,594 F. 2d at 342 n.5; Bond v. Stanton,

528 F. 2d 688 (1976), remanded, 429 U.S. 973 (1977);

Edelman _v. Jordan, supra, t 671, and n.13.

!

statute in the fact that costs have traditionally been awarded

by courts without regard for a state's Eleventh Amendment

immunity. Thus in Fairmont Creamery Co. v. Minnesota, 275 U.S.

70 (1927), the Supreme Court upheld an award of costs despite the

State's claim of immunity. An award of costs as authorized by

Fairmont did not conflict with Edelman, the Court explained in

Hutto, because:

Unlike ordinary “retroactive" relief such as

damages or restitution, an award of costs does

not compensate the plaintiff for the injury that

first brought him in to court. Instead, the award

reimburses him for a portion of the expenses he

incurred in seeking prospective relief.

437 U.S. at 695 n. 24.

The respondent, maintains, that an award of attorneys' fees

generally serves the same purpose as an award of costs and thus

should be treated the same. As the court stated in Souza v.

Travisono, 512 F. 2d 1137, 1140-1141 (lst Cir. 1975);

[Attorneys'] fees, to the extent allowable,

seem to us generically to be the same as court

costs. They are a part of the litigation expense

deemed, for whatever reason, recoverable by the

successful party or attorney. Any effort to distin-

auish for eleventh amendment purposes on the basis

of theories of award would invite endless confusion.

And to the extent states and state officials are,

under our federal system, amenable to suit in

federal courts, they should be responsible for costs

and fees incidental to litigation to the same degree

as others.

Like the Second Circuit Court of Appeals held in such cases

as Fitzpatrick v. Bitzer, 519 F. 2d 559, 571-72 (2d Cir. 1975),

aff'd in wart, rev'd in part, 427 U.S. 445 (1976);_Class v.~-

Norton 505 F. 2d 123, 126 (2d Cir. 1974), Jordan v. Fusari 496

F. 2d 646, 651 (2d Cir. 1974), and in this case, the First and

Fourth Circuits have also decided that an award of attorneys’

fees fits within the "ancilliary effect" exception to Edelman

when the award is incident to a judgement granting prospective

relict .®

While the Thiral! and sixthl2 circuits have disagreed, the

respondent maintains that logic and more recent authority, in

particular the Supreme Court decisions cited above, support the

position taken by the First, Second and Fourth Circuits.

8. Souza v. Travisono 512 F. 2d 1137 (lst Cir.) vacated and

remanded on other grounds, 423 U.S. 809 (1975); Boston

Chapter | N.A.A.C. P., Inc. v. Beecher 504 F. 2d 1017, 1028-

(Ist Cir.) cert denied, 421 U.S. 910 (1975); Thonen v.

Jenkins 517 F. 2d 3, 7-8 (4th Cir. 1975). See also,

Brandenburger v. Thompson 494 F. 2d 885, 888 (9th Cir. 1974),

and Bond v. Stanton 528 F. 2d 688, 689-692, vacated and

remanded in light of P.L. 94-559, 555 F. 2a 172 and n.1

(7th Cir. 1977).

ll. Skehan v. Board of Trustees, 501 F. 2d 31, 41-42, and n.7

(3rd Cir. 1974), vacated and remanded, 421 U.S. 983 (1975),

remanded, 538 F. 2d. 53 (1976) (en banc) cert. denied,

429 U.S. 979 (1976)

12. Jordan v. Gilligan 500 F. 2d 701, 705-10 (6th Cir. 1974),

cert. denied, 421 U.S. 991 (1975)

-thirteen-

CONCLUSTON

The Court should reject petitioner's arguments that

certiorari be granted in this case for at least two reasons.

First, petitioner's argument that an award of attorneys' fees

against the state conflicts with Edelman v. Jordan, supra, rests

on the erroneous conclusion that Congress cannot, consistent

with section 5 of the Four teenth Amendment, displace a state's

sovereign immunity in the absence of a judicial determination

that a meritorious constitutional claim exists. This argument

has previously been rejected by this Court and every court that

has considered it. Secondly, since this case can be resolved

without consideration of petitioner's second Question Presented,

it would be a departure from precedent to grant the petition

for certiorari to resolve any conflict among the various courts

‘

of appeals on this issue.

For these reasons, the petition for certiorari submitted

by the petitioner, Edward Maher should be denied.

Respectfully submitted,

JOAN ‘E. PILVER

al Aid § gciety of

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anit Aid Society of

Hartford County

525 Main St., Hartford, Ct.