# Opposition Brief — Missouri v. Jenkins

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0229%3A04

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1989
- **Citation:** 491 U.S. 274

## Text

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

j

(iii)

Page

iv

iv

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

v

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).

3
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

s
a

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

oe
TH

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.

4

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).

5

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.

6

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.

7

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.

8

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

9

(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

10

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

ALLEN R. SNYDER *

PATRICIA A. BRANNAN

DANIEL B. KOHRMAN
HOGAN & HARTSON
555 13th Street, N.W.
Washington, D.C. 20004-1109
(202) 637-5741

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0229%3A04. Public record. Not legal advice.