Opposition Brief — Missouri v. Jenkins

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Tue STATE oF Missouri, et ai.,

¥. Petitioners,

KALIMA JENKINS, et al.,

and

Tue Kansas Crry, Missouri Scuoo. District,

Respondents.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Eighth Circuit

Davp 8. TATEL

ALLEN R. SNYDER *

Patricia A. BRANNAN

DANIEL B. KoHRMAN

HOGAN & HARTSON

555 18th Street, N.W.

Washington, D.C. 20004-1109

(202) 687-5741

SHIRLEY WARD KEELER

BLACKWELL SANDERS MATHENY

WEARY & LOMBARDI

Two Pershing Square

2300 Main Street, Suite 1100

Kansas City, Missouri 64141

(816) 274-6800

Attorneys for Respondent

Kansas City, Missouri School

District

* Counsel of Record

Wheon . Eres Pawrime Co inc - 78-0086 - Wasnimeron. 0 C 80001

QUESTION PRESENTED

Whether the Court of Appeals properly upheld the dis-

cretion of the District Court to apportion responsibility

for plaintiffs’ attorneys’ fees between the State of Mis-

souri and the Kansas City, Missouri School District based

on their relative culpability and the relative amount of

time required to litigate claims against them, which re-

sulted in an order that the State pay all such fees.

(i)

TABLE OF CONTENTS

nD «cnictnsncsncsscesssensnsmscssusteccssnenness

TABLE OF AUTHORITIES .......2.2.2..22022020002222-20000--

STATEMENT OF THE CASE ......................................

I. The Decision Below Apportioning Responsibility

for Plaintiffs’ Attorneys’ Fees to the State of

Missouri Is Not Contrary to This Court’s Deci-

sion in Kentucky v. Graham ....

II. The Decision Below Apportioning Responsibility

for Plaintiffs’ Attorneys’ Fees to the State of

_Missouri Is Consistent With Other Courts of

Appeals Rulings Upholding Factual Findings by

District Courts Concerning the Relative Culpa-

bility of Defendants and the Relative Time Re-

quired to Litigate Claims Against Them ............

Sil EEE SEE ae a

(iii)

Page

TABLE OF AUTHORITIES

CASES Page

Charles v. Coleman, 689 F.2d 774 (8th Cir. 1982) .... x

Council for Periodical Distributors Associations v.

Evans, 827 F.2d 1483 (11th Cir. 1987) —.............. 7,8,9

Grendel's Den, Inc. v. Larkin, 749 F.2d 945 (1st

BED exnirnstmesinttbnsintbindanadiiciiniasinmeeienntion 8-9

Jenkins v. State of Missouri, 593 F. Supp. 1485

C—O Se 2

Jenkins v. State of Missouri, No. 77-0420-CV-W-4

(8 G0) EES 3,4

Jenkins v. State of Missouri, No. 77-0420-CV-W-4

(W.D. Mo. June 25, 1988) ....................2---...-.----.. 5

Jenkins v. State of Missouri, 807 F.2d 657 (8th

Cir. 1986) (en banc), cert. denied, —— U.S.

——, 108 S. Ct. 70 (1987) ............--220--0-cccecceeeeeee-e 2,5

Jenkins v. State of Missouri, 838 F.2d 260 (8th

GR, Fe ccrcseeccntoensterescetemetemicetineenenns nietiahed passim

Jenkins v. State of Missouri, Nos. 86-1934WM, et

ee YF YS OO 5

Jose P. v. Ambach, 669 F.2d 865 (2d Cir. 1982)... x

Kentucky v. Graham, 473 U.S. 159 (1985)... 5-6

Liddell v. Board of Education of St. Louis, 491

F. Supp. 351 (E.D. Mo. 1980), aff'd, 667 F.2d

643 (8th Cir.), cert. denied, 454 U.S. 1081

a eee ee TT 4

Little Rock School District v. Pulaski County Spe-

cial School District, No. 1, 787 F.2d 372 (8th

Cir.), cert. denied, 476 U.S. 1186 (1986) ........... 8,9

Moore v. City of Des Moines, 766 F.2d 343 (8th ’

Cir. 1985), cert. denied, 474 U.S. 1060 (1986)... 7

Rogers v. International Paper Co., 510 F.2d 1340

(8th Cir.), vacated and remanded on other

grounds, 423 U.S. 809 (1975)... 7,8

Rose v. Nebraska, 748 F.2d 1257 (8th Cir. 1984),

cert. denied, 474 U.S. 817 (1985)... 8

School District of Kansas City, Missouri v. The

State of Missouri, 460 F. Supp. 421 (W.D. Mo.

1978), appeal dismissed, 592 F.2d 493 (8th Cir.

PED cenishienstenticsstniatl i siesusltensisiattvpenbiehintinidainints 2

TABLE OF AUTHORITIES—Continued

Southeast Legal Defense Group v. Adams, 657 F.2d

ERIE a

United States v. Arkansas, 791 F.2d 1573 (8th Cir.

SES SE Re eS re

FEE EEE EEE EEE EE EERE EERE EERE REE EERE

In THE

Supreme Court of the United States

OCTOBER TERM, 1988

No. 88-64

THE STATE OF MISSOURI, et al.,

Petitioners,

Vv.

KALIMA JENKINS, et al.,

and

THE KANSAS CiTy, MissourI SCHOOL DISTRICT,

Respondents.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Eighth Circuit

BRIEF IN OPPOSITION FOR RESPONDENT KCMSD

STATEMENT OF THE CASE

The attorneys’ fees issues which are the subject of the

State of Missouri's petition for certiorari arise out of a

school desegregation suit initiated in 1977 by the Kansas

City, Missouri School District (“KCMSD” or the “Dis-

trict”) in order to secure the civil rights of its students

and to enable the District to fulfill its constitutional re-

_—

sponsibilities. KCMSD’s Board of Directors determined

that the District, on its own, had neither the authority

nor the resources to overcome the legacy of nearly a cen-

tury of State-mandated racial segregation. Accordingly,

KCMSD and others, including several children in KCMSD

schools, filed suit alleging that the State of Missouri and

other government entities had operated a dual school

system that segregated students on the basis of their

race.

In 1978, the District Court realigned KCMSD as a

defendant and required the student plaintiffs to obtain

separate counsel, out of concern over potential conflicts

of interest. School District of Kansas City, Missouri v.

The State of Missouri, 460 F. Supp. 421, 435, 442 (W.D.

Mo. 1978), appeal dismissed, 592 F.2d 493 (8th Cir.

1979). The student plaintiffs retained as counsel Mr.

Arthur Benson, II, and, later, the NAACP Legal Defense

and Educational Fund, Inc. Plaintiffs filed an Amended

Complaint virtually identical to KCMSD’s original com-

plaint. Prior to trial, KCMSD filed cross-claims against

the State and stipulated to its own liability; a lengthy

trial ensued due to the refusal of the State to acknovvl-

edge its liability. See Jenkins v. State of Missouri, 838

F.2d 260, 266 (8th Cir. 1988); Jenkins v. State of

Missouri, 593 F. Supp. 1485, 1487-88 (W.D. Mo. 1984),

citing Stipulations of Fact filed February 21, 1984.

KCMSD cooperated with the plaintiffs throughout pre-

trial preparations and during the course of the trial it-

self. Jenkins v. State of Missouri, 838 F.2d at 266.

In 1984, the District Court ruled in favor of plaintiffs

against the State of Missouri and KCMSD, and in favor

of KCMSD on its cross-claims against the State. Jenkins

v. State of Missouri, 593 F. Supp. 1485 (W.D. Mo. 1984).

The U.S. Court of Appeals for the Eighth Circuit, sitting

en banc, affirmed those rulings of the District Court.

Jenkins v. State of Missouri, 807 F.2d 657 (8th Cir.

1986), cert. denied, -— U.S. ——., 108 S. Ct. 70 (1987).

Both the plaintiffs and KCMSD filed applications for

0420-CV-W-4 (W.D. Mo. May 11, 1987) (“Order of May

11, 1987”).* The Eighth Cireuit Court of Appeals unan-

imously affirmed the District Court’s ruling in all respects

and denied the State’s petitions for rehearing and rehear-

ing en banc. Jenkins v. State of Missouri, 838 F.2d 260

(8th Cir. 1988).

Respondent KCMSD files this brief in opposition

State of Missouri's Petition for Writ of Certiorari, State

of Missouri, et ai. v. Kalima Jenkins, et al., No. 88-64

(“State’s Petition for Certiorari”), for the sole purpose

of urging the Court to decline review of the second of the

five issues presented by the State. That portion of the

State’s petition asks the Court to reexamine the Eighth

Cireuit’s decision that the District Court was within its

discretion in ruling that the State should bear full re-

sponsibility for payment of plaintiffs’ attorneys’ fees and

that KCMSD is not obligated to pay any portion thereof.

State’s Petition for Certiorari at 7-8. The Eighth Cir-

cuit carefully reviewed the reasoning of the trial court

district

on the defendants’ relative degrees of culpability

‘A full enumeration of the fees requested by and granted to the

plaintiffs is set forth in plaintiffs’ petition for a writ of certiorari.

See Kalima Jenkins, et al. v. State of Missouri, et al., No. 88-50.

relied on “its earlier conclusion that the State of Mis-

souri was the primary constitutional violator.” Jd. at

266. The decision below also referred to the trial court’s

observation that the State of Missouri played a more ac-

tive role than KCMSD in segregation within the Dis-

trict. Id.’

With respect to the time plaintiffs had to devote to

their claims against the defendants in this case, the

Eighth Circuit relied on the District Court’s finding that

“KCMSD had cooperated with the plaintiffs and had con-

ceded liability prior to trial, while the State denied lia-

bility, thereby contributing to the necessity of a ten and

a half month trial.” 838 F.2d at 266.° Summarizing the

trial court’s findings, the Court of Appeals stated that

“in effect the district court concluded that KCMSD mini-

? The District Court described the State as primary constitutional

violator “because it had mandated separate schools for black and

white children prior to 1954, and after 1954 had failed to take any

affirmative action to eliminate the vestiges and devastating effects

of the dual school system it had created.” Order of May 11, 1987,

at 15. As the Court of Appeals noted, the District Court found that

“|b]y contrast KCMSD did not cause the unlawful segregation but

simply failed, as did the State, to disestablish the dual school system

created by the State of Missouri and adopted policies which were

ineffective in eliminating the unlawful segregation.” 838 F.2d at

266. See also Order of May 11, 1987, at 15. The District Court also

considered it significant that KCMSD was “originally a plaintiff in

this action [and] was involuntarily made a defendant by the Court.”

Id.

* The District Court also pointed out that the District originally

initiated this case as a plaintiff. Order of May 11, 1987, at 16.

Regarding the reasonableness of the State’s denial of liability and

of the resulting length of the liability proceedings, the District

Court viewed as important the fact that State of Missouri defend-

ants had previously been “adjudged ‘primary constitutional vio-

lators’ in the St. Louis school desegregation case on facts very

similar to those in the [Kansas City] case.” Jd. at 15-16. See

Liddell v. Board of Education of St. Louis, 491 F. Supp. 351, 359

(E.D. Mo. 1980), aff'd, 667 F.2d 643 (8th Cir.), cert. denied, 454

U.S. 1081 (1981).

mized the need for plaintiffs to incur attorneys’ fees,

while the State maximized the need.” Jd.

ARGUMENT

I. The Decision Below Apportioning Responsibility for

Plaintiffs’ Attorneys’ Fees to the State of Missouri Is

Not Contrary to This Court’s Decision in Kentucky

v. Graham.

Section B (Question No. 2) of the State of Missouri’s

Petition for Certiorari,® declares that the, Court of Ap-

peals’ decision allocating to the State all responsibility

for plaintiffs’ attorneys’ fees is “contrary to” this Court’s

decision in Kentucky v. Graham, 473 U.S. 159 (1985).

State’s Petition for Certiorari at 7. The Graham decision

does not concern the allocation of attorneys’ fees between

multiple defendants, however, and there is no reason to

* The attorneys’ fees at issue in the pending petitions for cer-

tiorari include work in the pending liability phase of this case and

-in proceedings to establish a remedy to eliminate the vestiges of

the State-mandated segregated school system within the KCMSD.

Throughout the remedy proceedings, the District has worked with

the plaintiffs to develop effective remedial programs, and the District

has been the moving party in establishing the principal components

of the remedy. The State, meanwhile, has opposed virtually every

program advanced by KCMSD and the plaintiffs, including those

that have been approved by the Eighth Circuit and the District

Court. See Jenkins v. State of Missouri, Nos. 86-1934WM, et al.

(8th Cir. Aug. 19, 1988) (affirming remedy decision providing

magnet schools and capital facilities) ; Jenkins v. State of Missouri,

807 F.2d 657, 684-686 (8th Cir. 1986), cert. denied, ———- U.S. ——,

108 S. Ct. 70 (1987) (affirming liability decision and educational

programs for remedy); Jenkins v. State of Missouri, No. 77-0420-

CV-W-4 (W.D. Mo. June 25, 1988) (order approving virtually all of

KCMSD’s desegregation budget for years 4 through 6 of remedial

plan).

5 KCMSD’s Brief in Opposition is addressed only to Section B of

the State’s Petition for Certiorari, which concerns Question No. 2

of the five questions posed by the State for review by this Court.

The remaining issues raised by the pending petitions for certiorari

present questions affecting only the plaintiffs and the State.

believe this Court intended its reasoning in Graham to

apply to such a case.

In Graham, this Court considered an attorneys’ fees

award against the Commonwealth of Kentucky arising

from a finding of liability against several state and local

law enforcement officers in a civil rights action. The

Court reversed the fee award on the grounds that the

Commonwealth of Kentucky was not a defendant in the

lawsuit and could not be held responsible simply because

it was the employer of the defendant individuals held per-

sonally liable. 473 U.S. at 167-69.

The Graham decision says nothing about how a trial

court should allocate a fee award between multiple de-

fendants. Rather, this Court’s opinion concerned the im-

propriety of an award against a non-party. In particu-

lar, the Court expressed its desire to clarify “once again

the distinctions between personal- and official-capacity

suits.” 473 U.S. at 163. Nevertheless, the State asks this

Court to apply certain broad language in Graham to the

question of fee apportionment in this case, and thus, to

adopt an interpretation of Graham that is wholly un-

warranted.* The State notes the Graham Court declared

that “liability on the merits and responsibility for fees

go hand in hand,” 473 U.S. at 165, but the State fails to

acknowledge the narrow context of this statement. The

Court should decline the State’s invitation to drastically

expand the holding in Graham to state that reflexively, in

every civil rights case, trial courts must allocate respon-

sibility for attorneys’ fees among co-defendants according

*A close reading of the State’s Petition for Certiorari reveals

that the State itself does not believe, as it suggests in its statement

of its argument, that Kentucky v. Graham requires the allocation

to KCMSD of some portion of plaintiffs’ attorneys’ fees. The State’s

petition argues merely that such a result is “[t]he logical extension”

of certain passages in Graham. State’s Petition for Certiorari at

7-8.

to their liability for the costs of a remedy, regardless of

the trial judge’s factual firdings concerning the relative

culpability of the defendants and the relative amount of

time required to litigate claims against them.

II. The Decision Below Apport.ioning Responsibility for

Plaintiffs’ Attorneys’ Fees to the State of Missouri Is

Consistent With Other Courts of Appeals Rulings Up-

holding Factual Findings by District Courts Concern-

ing the Relative Culpability of Defendants and the

Relative Time Required to Litigate Claims Against

Them.

It is undisputed that the Eighth Circuit properly held

that the District Court’s allocation of responsibility for

attorneys’ fees was “reversible only in the event of abuse

of discretion.” 838 F.2d at 267, citing Southeast Legal

Defense Group v. Adams, 657 F.2d 1118, 1125-26 (9th

Cir. 1981). See Council for Periodical Distributors Asso-

ciations v. Evans, 827 F.2d 1483, 1488 (11th Cir. 1987) ;

Rogers v. International Paper Co., 510 F.2d 1340, 1357

(8th Cir.), vacated and remanded on other grounds, 423

U.S. 809 (1975). See also Moore v. City of Des Moines,

766 F.2d 343, 346 (8th Cir. 1985), cert. denied, 474 U.S.

1060 (1986) (district courts have “wide discretion in the

award of attorneys’ fees” and an “appeal lies only where

the district court has abused its legal discretion’”’).

The Court of Appeals evaluated the factors considered

by the District Court in apportioning fees and reviewed

the evidence summoned by the District Court in its dis-

cussion of those factors. The State does not question the

holding in the decision below that the evidence relied on

by the District Court in apportioning fees, described

supra at 3-5, was adequate to support the District

Court’s “decision to place responsibility for the fees on

the State.” 838 F.2d at 267. Rather, the State challenges

the Eighth Circuit’s approval of the apportionment fac-

tors relied on by the trial court.

The Court of Appeals had ample authority for its rul-

ing that the District Court properly considered two par-

ticular factors with respect to the allocation of attorneys’

fees: “the defendants’ relative degree of culpability and

the time the plaintiffs were forced to spend litigating

against the respective defendants.” 838 F.2d at 266. As

the decision below recognized, consideration of defend-

ants’ degree of culpability in apportioning responsibility

for fees has repeatedly been approved in the Eighth Cir-

cuit. Jd. at 266-267, citing Rose v. Nebraska, 748 F.2d

1257, 1264 (8th Cir. 1984), cert. denied, 474 U.S. 817

(1985) ; Charles v. Coleman, 689 F.2d 774, 777 (8th Cir.

1982); Little Rock School District v. Pulaski County

Special School District No. 1, 787 F.2d 372, 374 (8th

Cir.) (Arnold, J., concurring and dissenting), cert. de-

nied, 476 U.S. 1186 (1986). See also Rogers v. Interna-

tional Paper Co., 510 F.2d 1340, 1357 (8th Cir. ), vacated

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

(trial court should weigh culpability of defendants,

among other factors, on remand).

The same rule has been followed in other Courts of

Appeals. See Council For Periodical Distributors Asso-

ciations v. Evans, 827 F.2d 1483, 1487 (11th Cir. 1987)

(“In cases such as the one now before the court, ..., it

may be appropriate for a district court to apportion fees

between the active instigator of a wrong and a more pas-

sive co-defendant who had a more peripheral role in the

wrong”); Jose P. v. Ambach, 669 F.2d 865 (2d Cir.

1982) (the trial judge’s “decision to apportion fees ac-

cording to relative culpability was within his discretion”).

In approving the District Court’s consideration of time

spent litigating against each defendant as a factor in

apportioning attorneys’ fees in this case, the Eighth Cir-

cuit relied primarily on decisions by other Circuit Courts

of Appeals favoring such a practice. 838 F.2d at 267,

citing Grendel’s Den, Inc. v. Larkin, 749 F.2d 945, 960

(Ist Cir. 1984); Southeast Legal Defense Group v.

Adams, 657 F.2d 1118, 1125-26 (9th Cir. 1981). See id.,

citing Judge Arnold’s concurring and dissenting opinion

in Little Rock School District v. Pulaski County Special

School District No. 1, 787 F.2d 372, 374 (8th Cir.), cert.

denied, 476 U.S. 1186 (1986). Accord Council for Peri-

odical Distributors Associations v. Evans, 827 F.2d 1483,

1488 (11th Cir. 1987). The importance of such consid-

erations in allocating fees was also recognized in United

States v. Arkansas, 791 F.2d 1573, 1577-78 (8th Cir.

1986), in which the court considered a situation similar

to that presented in this litigation. The Eighth Circuit

declared that when a state and local school districts are

co-defendants in a school desegregation case, and the

local districts undertake a more vigorous, extensive de-

fense, the state should not be required to pay the local

districts’ legal fees.

In light of these authorities, there is simply no basis

for the suggestion in Section B of the State’s Petition

for Certiorari that the District Court committed an abuse

of discretion by applying the wrong factors in apportion-

ing responsibility for plaintiffs’ attorneys’ fees in this

case. The State cites no authority for the proposition

that it is reversible error for a trial court not to allocate

responsibility for attorneys’ fees in a civil rights case ac-

cording to the extent of multiple defendants’ liability for

remedial costs, when that trial court, in apportioning

fees, has thoroughly considered the defendants’ relative

culpability and the relative time required to litigate

claims against them. There is accordingly no foundation

for the State’s position that the Court of Appeals erred in

upholding the trial court’s discretion to. determine that

the State of Missouri should bear all responsibility for

plaintiffs’ fees.

The decision below correctly applied existing law to the

facts presented to the District Court, and moreover, is

not in conflict with any other circuit court decision. The

Eighth Circuit’s ruling consequently presents no basis for

the Court to grant further review.

CONCLUSION

For the reasons set forth above, the State of Missouri’s

Petition for Writ of Certiorari should be denied.

Respectfully submitted,

DAvVD S. TATEL