Opposition Brief — American Booksellers Ass'n v. Virginia

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Supreme Court, U.S,

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No. 89-1124 J WR + BR

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CLERK

In The :

Supreme Court of the United States

October Term, 1989

AMERICAN BOOKSELLERS ASSOCIATION, INC.,

ASSOCIATION OF AMERICAN PUBLISHERS, INC.,

COUNCIL FOR PERIODICAL DISTRIBUTORS

ASSOCIATION, INTERNATIONAL PERIODICAL

DISTRIBUTORS ASSOCIATION, NATIONAL

ASSOCIATION OF COLLEGE STORES, INC.,

BOOKS UNLIMITED, INC., AND AMPERSAND BOOKS

Petitioners,

COMMONWEALTH OF VIRGINIA

Respondent.

—

BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

—

Mary Sue TERRY

ATTORNEY GENERAL OF VIRGINIA

*RICHARD B. SMITH

Mark R. Davis

ASSISTANT ATTORNEYS GENERAL

101 North Eighth Street

Richmond, Virginia 23219

(804) 786-4624

*Counsel of Record for Respondent

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

AWW

QUESTION PRESENTED

CAN A LOSING PLAINTIFF OBTAIN ATTORNEY FEES

AS A “PREVAILING PARTY” UNDER 42 U.S.C. § 1988

WHEN HIS ARGUMENTS WERE REJECTED IN TOTO

AND HE OBTAINED NO RELIEF FROM HIS LAWSUIT?

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REASON FOR DENYING THE WRIT

The American Booksellers Association and several

other parties (“plaintiffs”) seek certiorari review of a

judgment of the United States Court of Appeals for the

Fourth Circuit denying them attorney fees from the Com-

monwealth of Virginia under 42 U.S.C. § 1988. Their

theory is that they should be considered “prevailing par-

ties” within “the spirit” of § 1988 because, but for their

meritless lawsuit, the Supreme Court of Virginia would

not have had the chance to hold that plaintiffs’ proffered

construction of the 1985 amendment to § 18.2-391(a) of

the Code of Virginia and its alleged impact on them was

totally wrong. Their argument is frivolous on its face.

In 1985, plaintiffs launched a pre-enforcement facial

attack under 42 U.S.C. § 1983 and the Declaratory Judg-

ment Act against a newly-enacted and never construed

amendment to Virginia Code § 18.2-391(a) concerning the

dissemination of pornography to children. They pre-

vailed in the district court and the court of appeals

where, as this Court has noted previously, the parties

painted “strikingly different” pictures of the amendment:

“[Plaintiffs] see the statute as a broad enactment, poten-

tially applying to a large number of works”; Virginia, on

the other hand, “argues that the statute’s coverage is

much narrower than plaintiffs allege. . . . It contends that

the statute covers only a very few ‘borderline’ obscene

works, and none of the exhibits introduced by plaintiffs.”

Virginia v. American Booksellers Ass'n, Inc., 108 S.Ct. 636,

643 (1988).

This Court, though, rejected the findings of the dis-

trict court and court of appeals: “This Court rarely re-

views a construction of a state law agreed upon by the

two lower federal courts. * * * However, this case presents

the rare situation in which we cannot rely on the con-

struction and findings below.” 108 S.Ct. at 643 (citations

omitted). Because the Court could not accept as binding

on state courts and local prosecutors the narrow inter-

pretation of the statute proffered by the Attorney General

of Virginia, however, it certified two questions to the

Supreme Court of Virginia concerning the amendment’s

scope and what compliance with it would require. Id.

The “strikingly different” views of the statute assert-

ed by the parties did not change one whit in the Supreme

Court of Virginia: plaintiffs continued to ascribe to the

amendment the broadest possible meaning and applica-

tion, while Virginia continued to argue as it had for

several years that the provision was extremely narrow in

scope and application. Rejecting in toto plaintiffs’ expan-

sive reading of the statute, the Supreme Court of Virginia

held that the Attorney General’s long-stated narrow view

of the provisions’ scope and compliance mechanism cor-

rectly stated the law. Commonwealth v. American Booksellers

Assoc., 236 Va. 168, 372 S.E.2d 618 (1988).

This Court thereafter vacated the decision of the

Fourth Circuit and remanded the case for reconsideration

in light of the state court’s construction of the statute.

Virginia v. American Booksellers Association, 109 S.Ct. 254

(1988). Plaintiffs even then continued to contend strenu-

ously on remand that the amendment was “unconstitu-

tionally vague even as interpreted by the Supreme Court

of Virginia.” American Booksellers Ass'n Inc. v. Common-

wealth of Virginia, 882 F.2d 125, 127 (4th Cir. August 16,

1989), rehearing and rehearing en banc denied (October 13,

1989). The court of appeals, however, rejected their con-

tention and found the State’s narrow view of the amend-

ment as adopted by the Virginia Supreme Court to be

constitutional and, accordingly, denied attorney fees to

plaintiffs. Id. at 127-28.

Incredibly, plaintiffs now contend that the denial of

attorney fees by the court of appeals conflicts with “the

spirit” of 42 U.S.C. § 1988 because the Supreme Court of

Virginia would not have had the opportunity to “authori-

tatively narrow the scope of the amendment” had plain-

tiffs not brought their lawsuit. (PL. BR. at 13). This

argument, of course, ignores the fact that the interpreta-

tion of the statute by the Supreme Court of Virginia was

the very one plaintiffs had fought against tooth and nail

for over four years. And this claim ignores further that

the Virginia Supreme Court did not “narrow the scope cf

the amendment” because that court did not give the

provision a new construction; the amendment had never

been construed previously by a Virginia court, and the

construction given it by the Supreme Court of Virginia

was exactly the same meaning the provision had had

since its enactment.

This Court has held that a plaintiff cannot be a pre-

vailing party for purposes of § 1988 attorneys’ fee award

unless he receives “at least some relief on the merits of

his claim.” Hewitt v. Helms, 482 U.S. 755, 760 (1987). The

plaintiffs here received no relief from their lawsuit. The

only thing they received was a finding that the 1985

amendment to Virginia Code § 18.2-391(a) meant exactly

what Virginia had said it meant from day one of the

litigation in this case. Contrast Texas State Teachers’ Asso-

ciation v. Garland Independent School District, 109 S.Ct. 1486

(1989) (plaintiff prevailing on significant, but not central,

issue and obtaining some relief sought can be “prevailing

party”); see also Rhodes v. Stewart, 109 S.Ct. 202 (1988)

(plaintiff obtaining declaratory judgment not “prevailing

party” if judgment does not affect defendant’s behavior

towards that plaintiff).

CONCLUSION

Plaintiffs’ argument is akin to a prospector drilling

for oil against all advice, hitting a “dry hole,” and then

claiming a finder’s fee for proving that there was nothing

there to begin with. To allow them to obtain § 1988

attorney fees as a “prevailing party” under the circum-

stances of this case would guarantee that every litigant

who files a frivolous lawsuit under § 1983 claiming that a

statute has an unconstitutional impact on him would be

entitled to attorney fees - even when the court, as here,

rejects every argument he makes and holds the impact

claimed by him to be totally nonexistent. Plaintiffs con-

cede implicitly that their claim is not within the letter of

§ 1988, and it just as surely is not within “the spirit” of

that provision either. This Court should deny the plain-

tiffs’ frivolous petition for a writ of certiorari.

Respectfully submitted,