Motion to Dismiss — Supreme Court of Va. v. Consumers Union of United States, Inc.

rm aera ae

i Supreme Court, U.S”

FILED

eae Oe ee 1979

I |

IN THE \

Supreme Court of the United Seucae arm |

OCTOBER TERM, 1979

No. 79-198

THE SUPREME COURT OF VIRGINIA

and

LAWRENCE W. I’ANSON,

In His Personal and Official Capacity

As Chief Justice of the Supreme Court of Virginia,

Appellants,

v.

CONSUMERS UNION

OF THE UNITED STATES, INC., et al.,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

MOTION TO DISMISS OR AFFIRM

ELLEN BROADMAN

ALAN MARK SILBERGELD

1714 Massachusetts Avenue, N.W.

Washington, D.C. 20036

(202) 785-1906

HENRY L. MARSH III

HILL, TUCKER & MARSH

509 North Third Street

Richmond, Virginia 23261

(804) 648-9073

eee

THE CASILLAS PRESS, INC.-1717 K Street. N. W.—Washington, 0. C.-223-1220

(i)

TABLE OF CONTENTS

QUESTION PRESENTED .

STATEMENT OF THE CASE

MOTION TO DISMISS .

I. This Court Lacks Jurisdiction Over the Chief

Justice’s Appeal in His Personal Capacity From

the Fee Award RO ee

Il. The Virginia Court Cannot Contest For the First

Time On Appeal An Order It Proposed To The

District Court . Ae ee eae

MOTION TO AFFIRM .

I. Judicial Immunity Does Not Shield Judges From a

Declaratory Judgment and ‘njunction Enjoining

Enforcement of an Unconstitutional Rule

II. The Civil Rights Attorney’s Fees Awards Act

Abolished Judicial Immunity .

III. The District Court Did Not Abuse Its Discretion

In Awarding Fees Against the Virginia Court

CONCLUSION

APPENDIX — Memorandum and Order of the United

States District Court for the Eastern

District of Virginia .

Page

la

(ii)

TABLE OF AUTHORITIES

Cases:

Adkins v. Underwood,

370 F. Supp. 510 (N.D. Ill. 1974), aff'd on other

grounds, 520 F.2d 890 (7th Cir. 1975), cert. denied,

423 US. 1017 (1975) . oan ae

Alsager v. District Court of Polk City, Iowa,

447 F. Supp. 572 (S.D. Iowa 1977)

Bates v. State Bar of Arizona,

433 U.S. 350 (1977)

Boddie v. State of Connecticut,

286 F. Supp. 968 (D. Conn. 1968), rev'd on other

grounds, 401 U.S. 371 (1970) ie

Bradley v. Fisher,

80 U.S. (13 Wall) 335 (1871).

Bramlett v. Peterson,

307 F. Supp. 1311 (M.D. Fla. 1969)

Brown v. Dunne,

409 F.2d 341 (7th Cir. 1969)

California v. Taylor,

353 U.S. 553 (1957)

Cassidy v. Ceci,

320 F. Supp. 223 (E.D. Wisc. 1970)

Cheramie v. Tucker,

493 F.2d 586 (Sth Cir. 1974)

Coates v. City of Cincinnati,

402 US. 611 (1971)

- 9,11

14

3,4, 6

- 9,10

10

(iii)

DeVita v. Sills,

422 F.2d 1172 (3rd Cir. 1970) .

Dombrowski v. Pfister,

380 U.S. 479 (1965)

Duignan v. United States

274 US. 195 (1927)

Ex Parte Virginia,

100 U.S. 339 (1879)

Falkner v. Blanton,

488 F.2d 551 (Sth Cir. 1974), cert. denied,

419 U.S. 1080, rehearing denied, 419 U.S.977 .

Fowler v. Alexander,

478 F.2d 694 (4th Cir. 1973)

Gay v. Heller,

252 F.2d 313 (Sth Cir. 1958)

Goldstein v. Cox,

396 US. 471 (1970)

Helvering v. Wood,

309 U.S. 344 (1940)

Hutto v. Finney,

437 U.S. 678 (1978)

Jacobson v. Schaefer,

441 F.2d 127 (7th Cir. 1971)

Larsen v. Gallogly,

361 F. Supp. 305 (D.R.I. 1973) , vacated as moot,

420 U.S. 904 (1975)

. 6, 8,12

6,7

10

10, 11

5,6

12

10

(iv)

Law Students Civil Rights Research Coun., Inc. v.

Wadmond, 299 F. Supp. 117 (S.D.N.Y. 1969)

(Friendly, J.), reversed on other grounds, 401

U.S. 154(1971) . ae Sn ea ee

Littleton v. Berbling,

468 F.2d 389 (7th Cir. 1972), rev'd on other

grounds sub nom. O'Shea v. Littleton, 414 US.

488 (1974) at ee ae

Lynch v. Johnson,

420 F.2d 818 (6th Cir. 1970) (cited with approval

in Stump v. Sparkman, 98 S.Ct. 1099 (1978)) .

MacKay v. Nesbett,

285 F. Supp. 498 (D. Ala. 1968), aff'd,

412 F.2d 847 (9th Cir. 1969)

Mirin v. Justices of the Supreme Court of Nevada,

415 F. Supp. 1178 (D. Nev. 1976)

Mitchum v. Foster,

407 U.S. 225 (1972)

Mudd v. Busse,

Civil No. F 75-12 (N.D. Ill, decided April 7, 1977) .

Newman v. Piggie Park Enterprises,

390 U.S. 400 (1968)

Peckham v. Scanlon,

241 F.2¢ 761 (7th Cir. 1957)

Phillips v. Cole,

298 F. Supp. 1049 (N.D. Miss. 1968) .

Pierson v. Ray,

386 U.S. 547 (1967)

ni J

8,12

10

10

11

14

14

8,12

(v)

Rakes v. Coleman,

318 F. Supp. 818 (E.D. Va. 1970) .

Roudebush v. Hartke,

405 U.S. 15 (1972) .

Singleton v. Wulff,

428 U.S. 106 (1976)

Smith v. California,

361 U.S. 147 (1959)

Staud v. Stewart,

366 F. Supp. 1398 (E.D. Pa. 1973), aff'd,

547 F.2d 1164 (3rd Cir. 1977) .

Stephen v. Drew,

359 F. Supp. 746 (E.D. Va. 1973) .

Stump v. Sparkman,

98 S.Ct. 1099 (1978)

Tate v. Arnold,

223 F.2d 782 (8th Cir. 1955)

Thornhill v. Alabama,

310 US. 88 (1940) .

United States v. Clark,

249 F. Supp. 720 (S.D. Ala. 1965) .

United States v. McLeod,

385 F.2d 734 (Sth Cir. 1967).

Wallace v. McDonald,

369 F. Supp. 180 (E.D. N.Y. 1973)

Youakim vy. Miller,

425 US. 231 (1976)

10

10

10

(vi)

Statutes:

42 U.S.C. Section 1983

42 U.S.C. Section 1988

Rules:

Disciplinary Rule 2-101(A)(6) of the Virginia Code of

Professional Responsibility

2,4

IN THE

Supreme Court of the United States

OCTOBER TERM, 1979

No. 79-198

THE SUPREME COURT OF VIRGINIA

and

LAWRENCE W. I’ANSON ge

In His Personal and Official Capacity

As Chief Justice of the Supreme Court of Virginia,

Appellants,

v.

CONSUMERS UNION

OF THE UNITED STATES, INC., et al.,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

MOTION TO DISMISS OR AFFIRM

Appellees move this Court to dismiss the appeal herein

or to affirm the judgment of the United States District

Court for the Eastern District of Virginia on the grounds

that the court lacks jurisdiction over some of the questions

2

raised on appeal and that all of the questions raised are

so unsubstantial as not to warrant further argument.

QUESTIONS PRESENTED

1. Can the Virginia Supreme Court raise new arguments

on appeal to the Supreme Court to overturn a district court

order which the Virginia Supreme Court itself proposed?

2. Does judicial immunity preclude a district court

from declaring Disciplinary Rule 2-102(A)(6) of the Vir-

ginia Code of Professional Responsibility unconstitutional

on its face and from enjoining the Virginia Supreme Court

from enforcing the Rule?

3. Did Congress abolish judicial immunity from awards

granted under the Civil Rights Attorney’s Fees Awards Act?

4. Did the District Court abuse its discretion by award-

ing fees against the Virginia Supreme Court, even though

no special circumstances render such an award unjust?

STATEMENT OF THE CASE

On February 27, 1975, Consumers Union of United

States, Inc. (“Consumers Union”’) and Virginia Citizens

Consumer Council, appellees, brought this suit under the

first and fourteenth amendments and 42 U.S.C. Section

1983. Their complaint alleged that Disciplinary Rule

2-102(A)(6) of the Virginia Code of Professional Responsi-

bility (“the Rule”) infringes on their rights to gather and

publish, and their members’ right to receive, important

factual information about services offered by individual

lawyers. They requested (1) the convening of a three-

judge court; (2) a declaratory judgment that the Rule is

unconstitutional on its face and as applied by defendants

3

to restrict the gathering of information for and publication

of plaintiffs’ proposed Arlington County, Virginia, direc-

tory of lawyers’ services, and (3) an injunction enjoining

the Virginia Supreme Court (“Virginia Court”) from enforc-

ing the Rule.

A three-judge district court was convened on April 14,

1975. On May 8, 1979, that court granted plaintiffs all

the relief sought in their complaint, with one exception.

Defendants were not enjoined from enforcing the rule with

respect to information on fees charged by attorneys, other

than an initial consultation fee. The Court explicitly en-

joined all defendants from enforcing the Rule to the ex-

tent that the Rule infringed on constitutional rights.

Both parties appealed. While the appeals were pending,

this Court decided Bates v. State Bar of Arizona, 433 U.S.

350 (1977), which established that the advertising of in-

formation regarding fees for routine legal services enjoys

constitutional protection. Two days after the Bates deci-

sion, this Court vacated the district court decision in this

case and remanded for a decision consistent with Bates.

On remand, defendants conceded plaintiffs’ entitlement

to the relief sought in their complaint and filed a pro-

posed Order (App. 1a) which stated:

ADJUDGED AND ORDERED that the

prayers of the complaint, as amended, as to the

State defendants, be and they are hereby granted

. and, to that extent, defendants, their suc-

cessors in office, their agents and attorneys, be

and they are hereby, permanently enjoined and

restrained from enforcement of rules and regula-

tions issued by defendants, insofar as such rules

and regulations prohibit lawyers practicing in the

4

Commonwealth of Virginia from providing such

information to plaintiffs for publication.

On May 8, 1979, the district court ruled that plaintiffs’

entire directory, as amended, is constitutionally protected

and that Disciplinary Rule 2-102(A)(6) is unconstitutional

on its face, and enjoined both defendants from enforcing

the Rule. After explaining its reasons for rejecting each

of defendants’ arguments that special circumstances

rendered an award against the Virginia Court unjust, the

Court directed the Virginia Court to pay plaintiffs’ costs

and reasonable attorneys’ fees. The court permitted

plaintiffs 30 days to file a motion claiming a specific

award of fees. No decision has yet been rendered on

plaintiffs’ motion which was pending when appellants’

jurisdictional statement was filed. No fees were awarded

against the Virginia Bar because the district court found

that the Bar had made efforts to amend the rule to con-

form to what the Bar perceived as constitutional require-

ments, but was unable to do so because of opposition

from the Virginia Court. The district court noted that

similar circumstances were not present to render an award

against the Virginia Court unjust. It observed, further,

that the Virginia Court had yet to amend the Rule to

conform with the clear constitutional requirements of

Bates, a decision handed down more than twenty months

earlier.

The Virginia Court petitioned the district court for a re-

hearing, claiming that “since Bates was decided the Vir-

ginia Court has been presented with no opportunity to

change the rules” because the Virginia Bar had submitted

no proposed amendments to the advertising provisions.!

The petition for rehearing was denied May 30, 1979.

l Memorandum in Support of Petition for Rehearing at 13.

5

MOTION TO DISMISS

I. THIS COURT LACKS JURISDICTION OVER THE

CHIEF JUSTICE’S APPEAL IN HIS PERSONAL

CAPACITY FROM THE FEE AWARD.

The district court awarded fees against the Chief Justice

of the Virginia Supreme Court in his official, but not in

his personal, capacity. Thus, the Chief Justice’s appeal in

his personal capacity from that award should be dismissed.

II. THE VIRGINIA COURT CANNOT CONTEST FOR

THE FIRST TIME ON APPEAL AN ORDER IT

PROPOSED TO THE DISTRICT COURT.

Throughout the more than four years of litigation that

preceeded the district court decision, the Virginia Court

never claimed or even suggested that judicial immunity

shields it from the declaratory or injunctive relief plain-

tiffs sought. To the contrary, the Virginia Court conceded

the propriety of such relief by submitting to the district

court a proposed order that, if adopted, would declare the

Rule unconstitutional on its face and enjoin the Virginia

Court from enforcing the Rule. After oral argument on

remand, at which defendants strongly urged the district

court to adopt their proposed order rather than plaintiffs’,

the district court issued an order that, like defendants’

Order, declares the Rule unconstitutional on its face and

enjoins the Virginia Court from enforcing the Rule. Now,

on appeal to the Supreme Court, the Virginia Court chal-

lenges the very order it proposed.

By failing to raise their defense earlier, and by propos-

ing the very relief they now contest, appellants waived

any immunity from declaratory or injunctive relief that

they might be held to enjoy.” See, Helvering v. Wood,

2 Appellees believe no such judicial immunity exists, see pp. 7-12,

infra.

6

309 U.S. 344, 348-9 (1940); California v. Taylor, 353

U.S. 553, 556 n. 2 (1957).

Moreover, they cannot raise new immunity defenses on

appeal to the Supreme Court, because, as explained in

Duignan v. United States, 274 U.S. 195, 200 (1927):

[t] his court sits as a court of review. It is only

in exceptional cases coming here from the fed-

eral courts that questions not pressed or passed

upon below are reviewed.

Accord, Helvering v. Wood, supra. See Youakim v. Miller,

425 U.S. 231, 234-235 (1976). See Singleton v. Wulff,

428 U.S. 106, 121 (1976). No extraordinary circumstan-

ces are presented by this case. No injustice will result if

this Court declines to review the decision below, because

the district court, without any doubt, properly found the

Rule to be unconstitutional on its face. See Coates vy.

City of Cincinnati, 402 U.S. 611 (1971) (See especially

the concurring opinion of Black, J.,); Bates v. State Bar

of Arizona, 433 U.S. 350 (1977)? The Rule, therefore,

cannot be enforced by the Virgiriia Court, Ex Parte

Virginia, 100 U.S. 339, 348 (1879), so that dismissal of

this appeal on the merits will merely require the Virginia

3 By permitting only ‘specified — very limited — information in

attorney directories, the Rule prohibits the publication of a signifi-

cant amount of constitutionally protected information regarding at-

torneys’ services, some of which was at issue in this case, and even

less of which was at issue in Bates. To declare the Rule unconsti-

tutional only as applied to plaintiffs would leave in effect a statute

capable of many unconstitutional applications, so that the district

court correctly found this overbroad Rule to be unconstitutional on

its face. Dombrowski v. Pfister, 380 US. 479 (1965); Smith v.

California, 361 U.S. 147, 151 (1959); Thornhill v. Alabama, 310

US. 88, 96-98 (1940).

7

Court to do that which it must do anyway to comply

with the U.S. Constitution.

Furthermore, as observed in Goldstein v. Cox, 396 U.S.

471, 478 (1970):

[t]his Court has more than once stated that its

jurisdiction under the Three-Judge Court Act is

to be narrowly construed since ‘any loose con-

struction of the requirements of [the Act]

would defeat the purposes of Congress . . . to

keep within narrow confines our appellate

docket.’

Thus, appellants’ new claims on appeal should be dis-

missed.

MOTION TO AFFIRM

I. JUDICIAL IMMUNITY DOES NOT SHIELD JUDGES

FROM A DECLARATORY JUDGMENT AND IN-

JUNCTION ENJOINING ENFORCEMENT OF AN

UNCONSTITUTIONAL RULE.

In any event, the district court’s declaratory judgment

and injunction are so eminently correct that appellants’

reversal of their previous position raises no substantial

questions. Although judges are absolutely immune from

4 The Virginia Court certainly does not enjoy judicial immunity

from the declaratory judgment that its Disciplinary Rule is uncon-

stitutional, because this Rule was the result of an administrative,

rather than judicial act. See Ex parte Virginia, 100 U.S. 339

(1879); Roudebush v, Hartke, 405 U.S. 15 (1972); Lynch v. John-

son, 420 F. 2d 818 (6th Cir. 1970) (cited with approval in Stump

v, Sparkman, 98 S. Ct. 1099 (1978). The Rule was not a decision

in a case litigated before the Court, but instead was issued pursuant

8

damage awards, Pierson v. Ray, 386 U.S. 547 (1967), they

are not immune from declaratory and injunctive relief en-

joining the enforcement of a statute or rule that is un-

constitutional on its face. See Dombrowski vy. Pfister, 380

U.S. 479 (1965).

Appellants mistakenly contend that the lower courts are

divided on this issue. Quite to the contrary, the lower

courts, in cases involving litigants who seek to enjoin the

enforcement of an unconstitutional statute, uniformly find

judicial immunity not to be a barrier to such relief.>

to regulatory powers the Virginia legislature delegated to the Vir-

ginia Court. (The Code of Virginia, Section 54-48, provides that

“[t]he Supreme Court may, from time to time, prescribe, adopt,

promulgate and amend rules and regulations: .... (b) Prescribing

a code of ethics governing the professional conduct of attorneys-at-

ee |

Amicus Conference of Chief Justices erroneously claims that the

Virginia Court was not a proper or necessary party to this suit.

However, just as administrative agencies are proper and necessary

parties to suits challenging their rules and regulations, so too is the

Virginia Court a necessary and proper party to this action contest-

ing the constitutionality of its Rule.

5 Law Students Civil Rights Research Coun., Inc. v. Wadmond,

299 F. Supp. 117, 123 (S.D.N.Y. 1969) (Friendly, J.), reversed on

other grounds, 401 U.S. 154 (1971). (“We fail to perceive what

interest would be served by holding federal courts to be powerless

to enjoin state officers from acting under a statute that allegedly

deprives citizens of rights protected by the Civil Rights Act or pro-

mulgating regulations that are alleged to have that result simply

because some of them are robed.”); Fowler y, Alexander, 478 F.

2d 694 (4th Cir. 1973); Cassidy v, Ceci, 320 F. Supp. 223 (E.D.

Wisc. 1970); Larsen v. Gallogly, 361 F. Supp. 305 (D.R.I. 1973),

vacated as moot, 420 U.S. 904 (1975); Rakes v. Coleman, 318 F.

Supp. 818 (E.D. Va. 1970); Boddie v. State of Connecticut, 286 F.

Supp. 968 (D. Conn. 1968), rev’d on other grounds, 401 U.S. 371

9

It is true that injunctive relief has been denied, in some

cases, to iitigants who raise uncertain constitutional claims

to obtain review in federal court of a state court decision

on matters committed to the discretion of state courts.®

(1970). Compare Adkins v, Underwood, 370 F. Supp. 510 (N.D.

Ill. 1974) affd on other grounds, 520 F. 2d 890 (7th Cir. 1975),

cert, denied, 423 U.S. 1017 (1975).

Lower courts also concur that judges may be enjoined 110m

violating well-established constitutional rights. United States v.

Clark, 249 F. Supp. 720, 727 (S.D. Ala. 1965) (State judge inter-

fered with rights of black citizens to register to vote and to use

public accommodations on equal basis with whites); Bramlett v.

Peterson, 307 F. Supp. 1311 (M.D. Fla. 1969) (State judge failed to

inform indigents of their sixth amendment right to court-appointed

counsel); Phillips v. Cole, 298 F. Supp. 1049 (N.D. Miss. 1968)

(State judge failed to inform juveniles of their sixth amendment

right to counsel). See also United States v. McLeod, 385 F. 2d

734 (Sth Cir. 1967). Compare Peckham y, Scanlon, 241 F. 2d 761

(7th Cir. 1957); Mirvin v, Justices of the Supreme Court, 415 F.

Supp. 1178, 1192 (D. Nev. 1976).

6 Mirin v. Justices of the Supreme Court of Nevada, 415 F. Supp.

1178 (D. Nev. 1976)-(after finding appellant’s constitutional claims

to be entirely without merit, court held that judicial immunity pre-

vented the federal court from reviewing state court decisions finding

that appellant had violated state taxicab licensing laws); Adkins v..

Underwood, 370 F. Supp. 510 (N.D. Ill. 1974) aff'd on other

grounds, 520 F. 2d 890 (7th Cir. 1975, cert. denied, 423 U.S. 1017

(1975) (plaintiff sought federal court order enjoining the enforce-

ment of a state court decision that plaintiffs wrongful death action

could not be brought in Illinois on grounds of forum non con-

veniens. After noting that the case did not involve a statute un-

constitutional on its face, but instead a ¢iscretionary state court

judgment, the federal court refused to intervene); Peckham vy.

Scanlon, 241 F, 2d 761 (7th Cir. 1957) (after finding a prisoner’s

constitutional claims to be dubious, court refused to interfere with

discretionary state court judgments); Brown v. Dunne, 409 F. 2d

341 (7th Cir. 1969) (federal court refused to determine if state

10

For example, in Cheramie v. Tucker, 493 F. 2d 586 (Sth

Cir. 1974), the plaintiff-appellant sought review of a state

court decision which, he alleged, had erroneously held that

the defendant was not negligent and had thereby derprived

the plaintiff of his due process rights. Refusing to interfere

with the discretion of the state court, the federal court

found judicial immunity to preclude the relief sought.’

court mishandled probate proceedings); Tate v. Arnold, 223 F. 2d

782 (8th Cir. 1955) (federal court refused to determine if state

judge impzoperly issued writs of garnishment against appellant);

Falkner v. Blanton, 488 F.2d 551 (Sth Cir. 1974), cert. denied, 419

U.S. 1080, rehearing denied, 419 U.S. 977 (Douglas, J. dissenting)

(federal court refimed to determine if probate judge erroneously

denied appellant property); MacKay v, Nesbett, 285 F. Supp. 498

(D. Ala. 1968), aff'd, 412 F. 2d 847 (9th Cir. 1969) (federal court

declined to review state court decision to suspend a member of the

bar from the practice of law for one year; Gay v. Heller, 252 F. 2d

313 (Sth Cir. 1958) (judicial immunity found to prevent review of

state court probate proceedings).

In some cases involving discretionary state court judgments, fed-

eral courts have found that judicial immunity does not prevent de-

claratory or injunctive relief. Littleton vy, Berbling, 468 F. 2d 389

(7th Cir. 1972), rev'd on other grounds sub nom, O'Shea y. Little-

ton, 414 US. 488 (1974); Stephen v, Drew, 359 F. Supp. 746

(E.D. Va. 1970); Wallace v, McDonald, 369 F. Supp. 180, i88

(E.D. N.Y. 1973); United States v, Clark, 249 F. Supp. 720, 727

(S.D. Ala. 1965); Bramlett v. Peterson, 307 F. Supp. 1311, 1321

(M.D. Fla. 1969); Phillips v. Cole, 298 F. Supp. 1049 (N.D. Miss.

1968); DeVita v. Sills, 422 F. 2d 1172 (3rd Cir. 1970); Staud v,

Stewart, 366 F. Supp. 1398 (E.D. Pa. 1973), aff'd, 547 F. 2d

1164 (3rd Cir. 1977). See also Jacobson y. Schaefer, 441 F.2d

127, 130 (7th Cir. 1971); United States v. McLeod, 385 F. 2d 734

(Sth Cir. 1967).

Thus, the lower courts are divided on whether discretionary state

court judgments may be enjoined, but not on whether judges can

be enjoined from enforcing unconstitutional statutes or rules.

” In Cheramie v, Tucker, e.g., 493 F. 2d 586, 588 (Sth Cir.

1974), the court acknowledged that other federal courts had issued

1]

And several federal courts, faced with similar suits, also

have found judicial immunity to bar injunctive relief where

it would disturb the normal processes for review of state

court errors.® As stated in Gay v. Heller, 252 F. 2d 313,.

315 (Sth Cir. 1958), “[t] he normal way to correct errors

in the trial or other disposition of a law suit is by appeal,

not by suing the judge.”

In contrast, the suit before this Court does not attempt

to interfere either with discretionary judgments of a state

court or with the normal procedures for review of those

judgments. Instead, it merely seeks an injunction enjoin-

ing the enforcement of a rule that is clearly unconstitu-

tional on its face. The decision, at issue, merely directs

the state court to perform a ministerial act required by

the U.S. Constitution. Judicial immunity does not prevent

such relief.?

Moreover, 42 U.S.C. Section 1983 further confirms that

judicial immunity does not lie against an injunction

issued pursuant to this Act. As explained in Mitchum py.

Foster, 407 U.S. 225 (1972), “‘[t] he very purpose of Sec-

tion 1983 was to interpose the federal courts between the

States and the people, as guardians of the people’s federal

rights — to protect the people from unconstitutional action

injunctions against judges which did not interfere with their discre-

tionary functions. However, the Cheramie court denied declaratory

and injunctive relief because “[i]n the instant case, the requested

relief would directly and irrebutably interfere with a discretionary

judicial function.” Jd at 588. (footnote omitted).

8 Adkins v, Underwood, 370 F. Supp. 510, 515 (N.D. Ill. 1974),

aff'd on other grounds, 520 F. 2d 890 (7th Cir. 1975), cert. denied,

423 US. 1017 (1975). Gay v. Heller, 252 F.2d 313, 315 (Sth Cir.

1958).

9 See n. 5, supra.

12

under color of state law, ‘whether that action be executive,

legislative or judicial.’ 407 U.S. at 242 (emphasis added).

An injunction enjoining the enforcement of a Rule that

is unconstitutional on its face, in violation of Section

1983, falls squarely within the relief authorized by Con-

gress in passing Section 1983. Law Students Civil Rights

Research Coun., Inc. v. Wadmond, 299 F. Supp. 117, 123

(S.D.N.Y. 1969) (Friendly, J.), reversed on other grounds,

401 U.S. 154 (1971). Thus, Section 1983 abolished any

judicial immunity which might exist against such injunctive

relief. Mitchum, supra.

In summary, because this Court’s decision in Dombrowski

establishes that judicial immunity does not shield a state

court from a declaratory judgment finding its Rules un-

constitutional and an injunction enjoining its enforcement

of those Rules, and because this Court’s decision in

Mitchum further establishes that 42 U.S.C. Section 1983

abolished any immunities that might preclude such relief,

the district court’s decision should be affirmed.

Il. THE CIVIL RIGHTS ATTORNEY’S FEES AWARDS

ACT ABOLISHED JUDICIAL IMMUNITY.

The appeal from the district court’s fee award similarly

raises no substantial issue. Hutto v. Finney, 437 U.S.

678 (1978), established that all state governmental im-

munities were abolished by Congress for awards granted

under the Civil Rights Attorney’s Fees Awards Act of

1976:

The Act itself could not be broader. It applies

to ‘any’ action brought to enforce certain civil

rights laws. It contains no hint of an exception

for States defending injunction actions.

13

The legislative history is equally plain: [I]t is

intended that the attorneys fees, like other items

of costs, will be collected either directly from

the official in his official capacity, from funds

of his agency or under his control, or from the

State or local government [whether or not the

agency or government is a named party].

437 US. at 694, citing S. Rep. No. 94-1011, at 5. (em-

phasis added).

In addition, the House Report specifically rejected ex-

tending Pierson v. Ray judicial immunity from damage

awards to fee awards under CRAFAA:!°

[I]n some cases, immunity doctrines and special

defenses, available only to public officials, pre-

clude or severely limit the damage remedy. !7

[citing Pierson v. Ray, 386 U.S. 547 (1967)].

Consequently awarding counsel fees to prevailing

plaintiffs in such litigation is particularly im-

portant and necessary if Federal civil and consti-

tutional rights are to be adequately protected.

To be sure, in a large number of cases . . . only

10 4 micus Conference of Chief Justices mistakenly suggests that

the House Report should not be used to determine Congressional

intent vecause the Senate Bill, rather than the House version, be-

came law. Brief Amicus Curiae on Behalf of the Conference of

Chief Justices in Support of the Jurisdictional Statement at 14.

However, the only difference between the two versions was the

statutes under which fees could be awarded. Each used identical

language to authorize courts to award fees (“the court, in its dis-

cretion, may allow the prevailing party, other than the United

States, a reasonable attorney’s fee as part of the costs.”) Thus,

the House’s statement that this language abolishes judicial immunity

is an expression of Congressional intent.

14

injunctive relief is sought, and prevailing plaintiffs

should ordinarily recover their counsel fees.

H.R. Rep. No. 94-1558, 94th Cong., 2d Sess. 9 (1976). !

Because Section 1988 awards are paid by the state,

rather than by judges, Congress’ abolition of judicial im-

munity against fee awards should neither instill fear of

personal consequences in judges nor interfere with impar-

tial judicial decisionmaking, and thus does not inteifere

with the purposes of judicial immunity. See Bradley v. Fisher,

80 U.S. (13 Wall) 335, 347 (1871). Instead, such awards

serve to assure that precious constitutional rights are

adequately protected and to fulfill the objectives of 42

U.S.C. Section 1988.

Ill. THE DISTRICT COURT DID NOT ABUSE ITS

DISCRETION IN AWARDING FEES AGAINST

THE VIRGINIA COURT.

Under 42 U.S.C. Section 1988, “the court in its discre-

tion, may allow the prevailing party, other than the United

States, a reasonable attorney’s fee as part of the costs.”

Because prevailing parties act as private attorneys’ general

vindicating important constitutional right, they are entitled

to an award under Section 1988 unless special circumstan-

ces would render an award manifestly unjust. S. Rep. No.

94-1011, 94th Cong., 2d Sess. 4 (1976) and H.R. Rep.

No. 94-1558, 94th Cong., 2d Sess. 9 (1976), citing Newman

v. Piggie Park Enterprises, 390 U.S. 400, 402 (1968).

1 Reviewing this legislative history, the lower courts have held

that judicial immunity does not apply to 42 U.S.C. Section 1988.

Alsager v. District Court of Polk City, Iowa, 447 F. Supp. 572

(S.D. Iowa 1977); Mudd v. Busse, Civil No. F 75-12 (ND. Ill,

decided April 7, 1977).

15

Appellants do not offer any facts that establish special

circumstances or suggest that the fee award they contest

is manifestly unjust. Instead, they claim that the district

court awarded fees solely because the Virginia Court failed

to amend its Rule for almost two years after Bates estab-

lished its unconstitutionality and argue that the fee award

is improper because they were under no obligation to

amend that Rule.!?

Appellants misread the district court opinion. It was

not their extraordinary delay, but the absence of special

circumstances, that persuaded the district court to award

fees. The district court decision reviews and rejects

each of the reasons given by the Virginia Court why an

award would be unjust. Finding no special circumstances,

the district court was required to and did award fees to

plaintiffs.

Indeed, the argument that the Virginia Court properly

delayed amending the Rule, even if correct, would not

render a fee award against appellants unjust. The district

court award falls well within its discretion and should be

summarily affirmed.

12 Jurisdictional Statement at 16.

13 Tq, at App. 10-12.

14 7g,

16

CONCLUSION

In conclusion, because appellants improperly raise new

arguments on appeal to contest a declaratory judgment

and injunction they proposed, their appeal should be

dismissed. Moreover, because the district court’s declara-

tory judgment, injunction, and award of attorneys fees

are so eminently correct, and appellants’ judicial immunity

arguments so contrary to previous decisions of this Court,

the district court’s decision should be summarily affirmed.

Respectfully submitted.

ELLEN BROADMAN

ALAN MARK SILBERGELD

1714 Massachusetts Avenue, N.W.

Washington, D.C. 20036

(202) 795-1906 °

HENRY L. MARSH, III

Hill, Tucker & Marsh

509 N. Third Street

Richmond, Virginia 23261

(804) 648-9037

ae

la

APPENDIX

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Richmond Division

CONSUMERS UNION OF UNITED STATES,

INC., et al.,

Plaintiffs,

v.

75-0105-R

)

)

)

)

: Civil Action No.

)

AMERICAN BAR ASSOCIATION, et al., )

)

)

Defendants.

MEMORANDUM AND ORDER

On June 29, 1977, the U.S. Supreme Court vacated the

judgment of this Court in the above-captioned case and

remanded the case to this Court for further consideration

in light of Bates v. State Bar of Arizona, 433 U.S. 350

(1977). Having reconsidered this matter as ordered by

the Supreme Court, Judges Bryan, Merhige and Warriner

unanimously adopt and reconfirm the Court’s previous

order in this case, except insofar as that order did not

permit publication by the plaintiffs of certain information

as to the fees charged by members of the Bar of Virginia

for services.

In light of the decision of the Supreme Court in Bates,

supra, the Court holds that, pursuant to the First and Four-

teenth Amendments, plaintiffs are entitled to gather and

publish, and their members are entitled to receive, truth-

ful information as to the fees at which lawyers will per-

2a

form legal services, so long as the information published

is not false, misleading or deceptive.

It is therefore now

ADJUDGED AND ORDERED that the prayers of the

complaint, as amended, as to the State defendants, be and

there are hereby granted; that accordingly the publication

described in Appendix A to the affidavit of Mark Silber-

geld, dated May 12, 1978, is approved by the Court, and

hereby is declared to be valid for publication; and, to that

extent, defendants, their successors in office, their agents

and attorneys, be and they are hereby, permanently enjoined

and restrained from enforcement of rules and regulations

issued by defendants, insofar as such rules and regulations

prohibit lawyers practicing in the Commonwealth of Vir-

ginia from providing such information to plaintiffs for

publication.

Let the Clerk send copies of this Memorandum and

Order to all counsel of record.

Done this day of , 1978,

at Richmond, Virginia.

United States District Judge

United States District Judge

United States District Judge