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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Motion to Dismiss
- **Published:** January 1, 1980
- **Citation:** 446 U.S. 719

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0689%3A05. Public record. Not legal advice.