Amicus Curiae Brief — Kunstler v. Britt (Nos. 90-807, 90-802, 90-1094)

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No. 90-807

In The

Supreme Court of the United States

October Term, 1990

In re: WILLIAM M. KUNSTLER,

BARRY NAKELL, LEWIS PITTS,

Petitioners,

ROBESON DEFENSE COMMITTEE, ez al.,

Plainu/f{s,

JOE FREEMAN BRITT, ef al.,

Respondents.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Fourth Circuit

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE

and BRIEF AMICUS CURIAE OF NATIONAL COUNCIL

OF CHURCHES OF CHRIST, et ai.

IN SUPPORT OF PETITIONERS

Robert L. Hallman

Counsel of Record

for Amici Curiae

1400 Laurel Sireet

Columbia, SC 29201

(803) 252-7352

YW)

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MOTION FOR LEAVE TO FILE BRIEF AMICUS

CURIAE OF NATIONAL COUNCIL OF CHURCHES

OF CHRIST, ET AL. IN SUPPORT OF PETITIONERS

Petitioners and Respondents Hubert Stone and

Robeson County have consented to the filing of this brief

amicus curiae. Respondents Joe Freeman Britt, Richard

Townsend, Lee Edward Sampson, Lacy Thornburg, Robert

Morgan, James Bowman, James G. Martin, SBI Doe I, SBI

Doe II, SBI Doe III, Deputy Sheriff Doe I, Deputy Sheriff

Doe II, Deputy Sheriff Doe III, Deputy Sheriff Doe IV,

Deputy Sheriff Doe V, DA Doe I, DA Doe II, and DA

Doe III, through their counsel of record, David Roy

Blackwell, neither opposed nor consented to the filing of

this brief amicus curiae.

Pursuant to Rule 37 of the Rules of the Supreme

Court of the United States, amici curiae’ respectfully move

this Court to grant permission to file this brief amicus

curiae. The brief amicus curiae argues broadly that, as

applied below by the U.S. Court of Appeals for the Fourth

Circuit, Rule 11 contravenes both the spirit and letter of

the civil rights statutes pursuant to which the instant case

was brought. Because this is a perspective not addressed

in depth by the parties, amici believe that the Court and

’ Amici curiae herein consist of the following organizations:

National Council of Churches of Christ, Southern Christian

Leadership Conference, National Catholic Conference for

Interracial Justice, Souther. Organizing Committee for

Economic and Social Justice, Center for Democratic Renewal,

Clergy and Laity Concerned, Federation of Southern

Cooperatives/Land Assistance Fund, Gulf Coast Tenant

Organization, Highlander Research and Education Center,

Institute for Southern Studies, North Carolinians Against Racist

and Religious Violence, People’s Institute for Survival and

Beyond, Southern Rainbow Education Fund and Southeast

Center for Justice.

the interests of justice will be served by consideration of

this brief amicus curiae.

As strong advocates of social justice, amici curiae

believe that open access to the civil court system for

litigants challenging ill-conceived or illegal governmental

activity is central to the health and survival of the

democratic system of government.’ The ruling below --

specifically, the expansive interpretation given by the

district court to the sanctions provisions on which it

relied -- stands as a potentially serious barrier preventing

access to the courts for citizens who seek to vindicate their

constitutional rights.

Since the enactment of the Civil Rights Act of 1871, it

has been the concerted policy of Congress to encourage

access to the federal courts by individuals deprived, under

color of law, of their constitutional rights. Monroe v.

Pape, 365 U.S. 167, 171-187 (1960). As the brief amicus

curiae will demonstrate, civil rights litigants are being

disproportionately targeted by Rule 11, and as a

consequence access to the courts is being restricted.

Furthermore, the utilization of Rule 11 to award

attorney’s fees in the instant case alters the determination

of the allocation of attorney’s fees as mandated by the

Civil Rights Attorney’s Fees Awards Act of 1976. Such a

result violates the Rules Enabling Act, 28 U.S.C. Sec.

2072, which states that a procedural rule may not abridge,

enlarge or modify substantive law.

The more specific interests of each of the amici curiae are

set forth in Appendix A.

CONCLUSION

Because of the significance of this case to meaningful

access to the Federal Courts to vindicate constitutional

rights, amici curiae respectfully urge this Court to grant

their motion for leave to file this brief amicus curiae.

Respectfully submitted,

Robert L. Hallman

1400 Laurel Street

Columbia, S.C. 29201

(803) 252-7350

December 19, 1990 Counsel for Amici Curiae

No. 90-807

In The

Supreme Court of the United States

October Term, 1990

In re: WILLIAM M. KUNSTLER,

BARRY NAKELL, LEWIS PITTS,

Petitioners,

ROBESON DEFENSE COMMITTEE, et al.,

Plaintiffs,

wh

JOE FREEMAN BRITT, et al.,

Respondents.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Fourth Circuit

BRIEF AMICUS CURIAE

OF NATIONAL COUNCIL OF CHURCHES OF CHRIST,

et al. IN SUPPORT OF PETITIONERS

QUESTIONS PRESENTED

I. Did the district court impose Rule 11 sanctions

against Petitioners in derogation of Congressional intent to

encourage private civil rights litigants to act as "private

attorneys general" and to use the civil rights statutes as a

safeguard against governmental corruption?

II. In light of the prohibition in the Rules Enabling Act

that precludes this Court from issuing rules that "abridge,

enlarge, or modify any substantive right," may a district

court employ Rule 11 of the Federal Rules of Civil

Procedure in such a way as to alter the fee-shifting

balance struck by Congress in the Civil Rights Attorney's

Fees Act?

il

TABLE OF CONTENTS

I a ce 6 a eh a clk e ee i

een ee ea kad Wik ace meee il

Te ee ke iil

ee Oe ik eee a gh awe wn l

Ce en ee Le we we Ok |

pummmeety GE Ue Aenemt 2 ww. ees 6

ere ee ee a ee er eee eee 9

I. Application of Rule 11 in this case is

antithetical to civil rights statutes. ....... 9

II. The utilization of Rule 11 to award attorney’s

fees herein constitutes a violation of the Rules

8 PE TeTET TT Ce Teer 11

eta Tiel. ikea ieee ee a Pie Ae ae eae 16

TABLE OF AUTHORITIES

Cases

Arthur v. Starrett City Associates, 98 F.R.D. 500

GEees OO WU, GUD ccc eee cneeecen 14

Christiansburg Garment Co. v. EEOC, 434 U.S. 412

EMEA Se, AR len igh Errata ees ee 9, 14

City of Riverside v. Rivera, 477 U.S. 561 (1986) .... 13

Colombrito v. Kelly, 764 F.2d 122 (2nd Cir. 1985) ... 15

Commissioner, I.N.S. v. Jean, 110 S.Ct. 2316

IRR raed ak Ae Eee 14

Crawford Fitting Co. v. J.T. Gibbons, Inc., 482

I a hr oe tn ee oan ate eas 15

Hensley v.Eckerhart, 103 S.Ct. 1933 (1983) ........ 12

In Re: Kunstler, No. 89-2815 (4th Cir.

eS ee ey eres er er er eee 7, 14

Kaiser Aluminum & Chem. Co. v. Bonjorno,

Ce ah Ge SP CUO 6 ko vee eesesceennnas 15

Larchmont Engineering, Inc. v. Toggenburg Ski

Center, Inc., 444 F.2d 490 (2nd Cir. 1971) ...... 14

Marek v. Chesney, 473 U.S. 1 (1985) ............ 12

Mitchum v. Foster, 407 U.S. 225 (1972) ........... wy)

iv

N.A.A.C.P. v. Button, 371 U.S. 415 (1963) ........ 16

Newman v. Piggie Park Enters., 390 U.S. 400

at SNA ts ee ee eee Yy

Owen v. City of Independence, 445 U.S. 622 (1980) .. 10

Patsy v. Florida Board of Regents, 457 U.S. 496 (1982) 10

Richardson v. Hotel Corporation of America,

332 F.Supp. 519 (E.D. La. 1971),

ara, See Woe woe Coe CM, TS7E) wc ee ee 13

Roadway Express, Inc. v. Piper, 447 U.S. 752

NE ek ek a eae OO Oe oe oe 14

Robeson Defense Committee v. Britt, No. 89-06-Civ-3-8

a ee ee ere eee Tee eee 7

Statutes

Pe Mis GE PPE 6 he ccc eeweices anes 9, 11, 12

ey es Ek so 65 0 on oe hee ee ek os 10, 16

OS Geaies GR PE 6 ce tee kee 9, 11-13, 16, 17

Civil Rights Act of 1871, 17 Stat. 13 ............. 10

I Eo ec es 8 so x ka a Vo Be ew Oe oe 2

OS oe hg ye cee ck be bo be nb wee Sa

6 RE eh ere a ae ane ee 4

Vv

if pe | eee eee ee eee 4

Other Authority

efor 13

American Judicature Society, Rule 11 in Transition:

The Report of the Third Circuit Task Force on

Federal Rule of Civil Procedure 11 (1989) ....... 8

Burbank, Proposals to Amend Rule 68--Time to Abandon

Ship, 19 U. Mich. J.L. Ref. 425 (1986) ........ 16

Cong. Globe, 42d Cong., 1st Sess., App. 68

NR a a ae ee ew a ayo oe le 10

Fed. R. Civ. P. 11 advisory committee note ......... 6

Nelken, Sanctions Under Amended Rule 11 - Some

"Chilling" Problems in the Struggle Between

Compensation and Punishment, 74 Georgetown L. Rev.

PT ogee a ik ie ek boa Oe ae poe RO 8

Senate Report, U.S. Code Cong. & Admin.

CID -4)huk a oe ee 0s oe eee a 11-13

No. 90-807

_-———

In The

Supreme Court of the United States

October Term, 1990

In re: WILLIAM M. KUNSTLER,

BARRY NAKELL, LEWIS PITTS,

Petitioners,

ROBESON DEFENSE COMMITTEE, et ai.,

Plaintiffs,

V.

JOE FREEMAN BRITT, et al.,

Respondents.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Fourth Circuit

BRIEF AMICUS CURIAE OF NATIONAL COUNCIL

OF CHURCHES OF CHRIST, et al.

IN SUPPORT OF PETITIONERS

INTEREST OF AMICI CURIAE

Amici curiae are religious organizations and human

rights groups committed to working for a more just, equal

and humane society through peaceful and democratic

means. As strong advocates of social justice, amici curiae

believe that open access to the civil court system for

2

litigants challenging ill-conceived or illegal governmental

activity is central to the health and survival of the

democratic system of government. The ruling below--

specificaliy, the impermissible application of Rule 11 —

sanctions to the petitioners herein--stands as a potentially

serious barrier preventing access to the courts for citizens

who seek to vindicate their constitutional rights.

Because of the significance of this case to meaningful

access to the federal judiciary by victims of constitutional

violations, amici respectfully urge this Court to grant

Petitioner’s petition for a writ of certiorari to review the

judgment of the U.S. Court of Appeals for the Fourth

Circuit.

The more specific interests of each of the amici curiae

are set forth in Appendix A.

STATEMENT OF THE CASE

On February 1, 1988, in an act of avowed desperation,

Timothy Jacobs and Eddie Hatcher, held 20 hostages in

the offices of a local newspaper. Jacobs and Hatcher,

both Native Americans, sought to focus attention on

entrenched corruption, complicity with drug trafficking and

racial discrimination within Robeson County officialdom.

In return for the release of the hostages, the Governor’s

Office agreed to appoint a special Task Force to

investigate county authorities, including the Sheriffs Oftice

and the District Attorney’s Office. Jacobs and Hatcher

surrendered to the FBI and were subsequently indicted on

federal conspiracy, weapons, and hostage-taking charges.

The desperate conduct of Jacobs and Hatcher is a

paradigm for what happens when legal avenues of redress

3

appear closed to people who seek justice. When cries for

an end to corruption and discrimination were repeatedly

ignored by state and federal authorities, Robeson County

became a breeding ground for cynicism. The unresponsive

body politic engendered frustration, anger and, ultimately,

an act of desperation by two young men. Recognizing this

pattern, a federal jury acquitted Jacobs and Hatcher of all

charges.’ But the official complicity with corruption began

anew.

After the acquittal, Hatcher joined other citizens of

Robeson County in a petition drive to remove the Sheriff.

Whereupon, under the guise of an investigation initiated

by the District Attorney to determine if others were

involved in the conspiracy to take hostages, a campaign of

intimidation and harassment of those involved in the

petition drive began. The record below contains

considerable evidence that agents of the State Bureau of

Investigation (SBI), who were carrying out the putative

"conspiracy" investigation, engaged in interrogation and

surveillance of supporters of the petition drive in a manner

designed to intimidate them. Affidavits filed by plaintiffs

indicate that this harrassment did indeed have the effect of

frightening people away from the petition drive. Other

evidence demonstrates that officials in the Sheriff's office

exerted pressure on the public school system to deny

Plaintiff Robeson Defense Committee access to school

facilities for meetings.

Furthermore, plaintiffs reasonably believed that

defendants initiated state criminal prosecutions (on charges

‘Petitioner Lewis Pitts was one of Jacobs’ attorneys.

Hatcher was represented by Petitioners William Kunstler and

Barry Nakell.

4

arising Out of the same events for which plaintiffs Hatcher

and Jacobs had secured a federal acquittal) in bad faith.

Ample evidence also existed of a coordinated effort to

interfere with Timothy Jacob’s Sixth Amendment right to

counsel; e.g., a taped phone call to Jacob’s mother

recorded an SBI agent urging Ms. Jacobs to advise her son

to waive extradition, plead guilty, testify against Hatcher,

terminate petitioner Pitts and hire a local attorney.

Meanwhile, Governor Martin’s Task Force appointed

to investigate corruption stalled, claiming it lacked full

investigative authority. Citing "politics" as the basis of its

determination, the Attorney General’s office also refused

to become involved, despite its acknowledgment of the

seriousness of the problems in Robeson County. As a last

resort, plaintiffs decided to file a civil rights action,

alleging, inter alia, interference, under color of state law,

with plaintiffs’ First Amendment rights to petition and

organize and plaintiffs Hatcher and Jacobs’ Sixth

Amendment right to counsel.

The instant action was filed on January 31, 1989. The

principal relief sought by plaintiffs was injunctive. In

particular, plaintiffs sought (1) an injunction against the

pending state criminal prosecutions, (2) an injunction

against the campaign of harassment disguised as a

“conspiracy” investigation and (3) an injunction against

continued interference with the attorney-client relationship

established by Jacobs and Hatcher.

Plaintiffs immediately sought to begin discovery by

taking the deposition of a witness crucial to establishing

the key First and Sixth Amendment violations. However,

the district court stayed discovery. While discovery was

blocked, certain changes in circumstance rendered the

principal claims for injunctive relief moot. Thus, before

5

plaintiffs had an opportunity to present the requisite

admissible evidence to justify a TRO to enjoin the state

prosecutions, Jacobs negotiated a guilty plea. In the

process, the state appointed an attorney other than

petitioner Pitts to represent Jacobs in the plea bargaining,

thereby destroying both the joint defense of Hatcher and

Jacobs and the representation of Jacobs by petitioner Pitts.

Moreover, having succeeded in crushing the petition drive,

the SBI had terminated all overtly intimidating activity with

respect to the "conspiracy" investigation. Of the injunctive

relief sought, the only remaining issue was Hatcher’s

pending state prosecution.

The damage claims of course, also remained.

However, a deliberate and professional decision was

reached that the time expended on damage claims would

not warrant the extensive expenditure of public-interest

resources in light of the limited prospective monetary

liability. In essence, the plaintiffs voluntarily dismissed the

case because the defendants had accomplished the very

deprivation of rights which the plaintiffs had sought to

enjoin. Plaintiffs, in consultation with their attorneys

(petitioners), were clearly entitled to decide that the

pursuit of the damage claims alone did not warrant

continuation of the suit, particularly given the pending

prosecution of Hatcher and the need for resources tor

that.

The district court granted plaintiffs a voluntary

dismissal, unopposed by defendants, pursuant to Fed. R.

Civ. P. 41(a)(2) on May 2, 1989. Five months later, the

district court granted defendants’ motion for Rule 11

sanctions based upon the amended complaint. The court

levied a sanction of over $122,000 against plaintitts’

-attorneys, petitioners herein. The Court of Appeals upheld

the Rule 11 sanction but remanded for a redetermination

of an “appropriate” amount.

The sanction herein, by intention or not, sends the

message to civil rights plaintiffs and attorneys that the

judiciary is no longer a forum for the vindication of civil

rights. Indeed, this sanction embodies the abdication by

the judiciary of its role in the constitutional balance of

powers to register and respond to individual grievances

resulting from executive abuse of power. With this

sanction, the judiciary has, in effect, slammed the door in

the faces of those who sought justice at its entrance.

Plaintiffs’ legitimate attempts to resolve their grievances

were blocked at every pass - the petition drive was

subverted and appeals to executive authority fell on deat

ears. Finally, plaintiffs turned to the courts for vindication

of their rights. Although plaintiffs did not ultimately

prevail, the complaint was entirely warranted, both

factually and legally, and was filed for the sole purpose of

securing the vindication of plaintiffs’ constitutional rights.

SUMMARY OF THE ARGUMENT

No one quarrels with the stated goals of Rule 11 to

reduce abuse of the judiciary and improve the quality of

litigation. Fed. R. Civ. P. 11 advisory committee note.

But one suspects that the Rule 11 sanction in this case

was levied for a different reason--because the district court

disapproved of the idea of litigation as a vehicle for

redress of governmental abuses of power. Notwithstanding

the court’s claim that the complaint lacked adequate

inquiry into law and fact, neither of these issues is at the

heart of this sanction.”

The true jurisprudential debate underlying this case

concerns the definition of the proper role of the civil

justice system. The two principal parties to the debate are

(a) those who view courts as mediators of strictly private,

typically contractual or tortious, disputes and (b) those who

look to the judiciary as a means of vindicating the rights of

individuals and groups against governmental misconduct.

The debate is not new. The Judiciary has long struggled

with the question of the appropriate exercise of its own

authority. That very struggle, moreover, has redounded to

the benefit of society by striking a feasible balance

between the competing models.

However, the debate has acquired a new urgency due

to the expanded and improper use of Rule 11 sanctions by

members of the judiciary who would restrict access to the

? Indeed, the district court’s distaste for a reformist role

for the courts is evident; "The parties have attempted to lead

this court into a broader inquiry into alleged corruption in

Robeson County in general, and in Robeson County and North

Carolina law enforcement in particular. ... Even if it were later

determined that the allegations raised in those complaints were

true, this court finds that the conduct of plaintiffs’ counsel at

the time of the filing of the original and the amended complaint

is nonetheless sanctionable." Robeson Defense Committee v.

Britt, No. 89-06-Civ-3-8, slip op. at 21 (E.D.N.C. Sept. 29,

1989). The Panel evinces a similar disdain for the concept of

courts as arbiters of justice; it refers to “allegations of abusive

behavior against Blacks and Indians” as "irrelevant" and proceeds

to find the presence of such "irrelevant allegations” as evidence

that the complaint lacked adequate factual foundation. In Re:

Kunstler, No. 89-2815, slip op. at 15,16 (4th Cir. Sept. 18,

1990).

8

courts. Rule 11 is a potent weapon, increasingly used to

punish plaintiffs and attorneys who seek reform through

litigation.?_ It hangs like a Damoclean sword to deter

those contemplating public interest and civil rights

litigation.

Amici actively subscribe to the view of the courts as

guardians and arbiters of both individual and public justice.

The district court and the Panel may disagree, but by

upholding the sanction in this case the Panel does not

merely register a legitimate preference for one

jurisprudential model over another. By upholding the

sanction herein, the Panel contravenes clear Congressional

policy mandating open access to the courts for vindication

of claims of governmental malfeasance.

There exists a discernible and, in our opinion,

foreboding trend in the federal judiciary to restrict access

‘to the courts. Rule 11 has been applied disproportionately

against civil rights and public interest litigants in an effort

3 A study of the reported Rule 11 decisions between 1983

and 1985 reveal that although only 7.6% of the civil filings in

those years were civil rights cases, 22.3% of the Rule 11

decisions involve civil rights claims. Nelken, Sanctions Under

Amended Rule 11 - Some "Chilling" Problems in the Struggle

Between Compensation and Punishment, 74 Georgetown L. Rev.

1313, 1327 (1986). In addition, the vast majority of Rule 11

decisions were directed toward plaintiffs and their attorneys. Id.

Another study which examined all Rule 11 activity in the Third

Circuit between July 1, 1987 and June 30, 1988 determined that

civil rights plaintiffs and/or their attorneys were sanctioned "at a

rate (8/17 or 47.1%) that is considerably higher than the rate

(6/71 or 8.45%) for plaintiffs in non-civil rights cases."

American Judicature Society, Rule 11 in Transition: The Report

of the Third Circuit Task Force on Federal Rule of Civil

Procedure 11, at 69 (1989).

om es

9

to effectuate this policy. However, Rule 11 may not be

thus employed, where, as in the civil rights statute

pursuant to which the instant case was brought, Congress

has mandated that the federal courts exercise broad

remedial powers to redress injustice.

Further, the application of Rule 11 to civil rights cases

raises serious questions under the Rules Enabling Act, 28

U.S.C. Sec 2072. By enacting the Civil Rights Attorney’s

Fees Award Act, 42 U.S.C. Sec. 1988, Congress created

substantive rights. Pursuant to Rule 1i, the district court

awarded the respondents herein attorneys’ fees and

expenses, thereby altering the fee-shifting balance struck by

Congress in the Civil Rights Attorney’s fees Award Act.

But substantive rights may not be abridged, enlarged, or

modified by the Federal Rules. Rules Enabling Act, 28

U.S.C. Sec 2072.

ARGUMENT

I. Application of Rule 11 in this case is antithetical

to civil nghts statutes.

This Court has repeatedly emphasized that Congress

expressly intended that a plaintiff seeking relief in a civil

rights lawsuit "does so not for himself alone but also as a

‘private attorney general’, vindicating a policy that

Congress considered of the highest priority." Newman v.

Piggie Park Enters., 390 U.S. 400, 402 (1968); see also,

Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 418

(1977). Further, this Court has recognized that "[t]he very

purpose of Sec. 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 under color of state law, ‘whether

that action be executive, legislative, or judicial." Mitchum

10

v. Foster, 407 U.S. 225, 242 (1972) (quoting Ex parte

Virginia, 100 U.S. 339, 346 (1889)).

A review of the legislative history of Sec. 1 of the Civil

Rights Act of 1871, the precursor to 42 U.S.C. Sec. 1983,

demonstrates a clear Congressional intent to "throw open

the doors of the United States courts" to individuals

deprived of their constitutional rights. Patsy v. Florida

Board of Regents, 457 U.S. 496, 504 (1982) (quoting

Cong. Globe, 42d Cong., 1st Sess., 376 (1871)(remarks of

Rep. Lowe)). As was noted in Owen v. City of

Independence, 445 U.S. 622, 635 (1980), the congressional

debates surrounding the passage of the forerunner of Sec.

1983 confirm the expansive sweep and requisite broad

construction of the statute. Representative Sheilabarger,

the author and manager of the bill in the House, explained

his view of the Act’s broad remedy; "This act is remedial,

and in aid of the pieservation of human liberty and human

rights. All statutes and constitutional provisions

authorizing such statutes are liberally and beneficently

construed.... [T]he largest latitude consistent with the

words employed is uniformly given in construing such

statutes and constitutional provisions as are meant to

protect and defend and give remedies for their wrongs to

all the people." Cong. Globe, 42d Cong., Ist Sess., App.

68 (1871).4

* In fact, it was precisely the breadth of the remedy about

which the opponents of the bill were most vociferous; "[This

section’s}] whole effect is to give to the Federal Judiciary that

which now does not belong to it..... It authorizes any person

who is deprived of any right, privilege, or immunity secured to

him by the Constitution of the United States, to bring an action

against the wrong-doer in the Federal courts.... The deprivation

may be of the slightest conceivable character." Id., App. 216.

11

The Panel’s decision upholding the instant sanction

against petitioners will inevitably discourage petitioners and

other civil rights attorneys from accepting civil rights cases

on behalf of individuals deprived of their constitutional

rights. Such a result is fundamentally incompatible with

Congress’ intention that courts "use the broadest and most

effective remedies available to achieve the goals of our

civil rights laws." Senate Report, at 2, U.S. Code Cong. &

Admin. News 1976, p. 5910-11.

Il. The Utilization of Rule 11 to Award Attorneys’ Fees

herein Constitutes a Violation of the Rules Enabling Act.

The Federal Rules of Civil Procedure are promulgated

pursuant to the Rules Enabling Act, wherein Congress has

delegated its authority to this Court to "prescribe general

rules of practice and procedure" for cases in the U.S.

district courts. 28 U.S.C. Sec. 2072. This delegation is

limited, however, by the condition that "[s}uch rules shall

not abridge, enlarge or modify any substantive right." Ibid.

Rule 11 was amended in 1983 to expand the power of

judges to sanction litigants by permitting judges to make

ad hoc decisions about whether to award attorney's fees

and under what circums'ances. Pursuant thereto, the

district court ordered petitioners herein to pay all of the

attorneys’ fees and expenses of respondents. With no

discernibie consideration of the appropriateness of the

sanction, the court simply shifted the fees.

However, by enacting the Civil Rights Attorney's Fees

Act of 1976, 42 U.S.C. 1988, Congress reserved to itself

the allocation of attorney’s fees in civil rights cases.

Congress enacted Sec. 1988 specifically to give an

advantage to civil rights plaintiffs by spelling out the terms

12

and conditions under which attorney’s fees would be

awarded in civil rights litigation. The application of Rule

11 herein alters this congressionally prescribed allocation of

civil rights attorney’s fees. Such a result is forbidden by

the Rules Enabling Act, 28 U.S.C. Sec. 2072, because

provisions for civil rights attorney’s fees involve substantive

rights which may not be abridged, enlarged, or modified by

the Federal Rules.

As Justice Brennan noted in Hensley v. Eckerhart,

"[s]tatutory attorney’s fee remedies such as those created

by Sec. 1988 ... are far more like new causes of action tied

to specific rights than like background procedural rules

governing any and all litigation." Hensley v. Eckerhart,

461 U.S. 424, 443 n.2 (1983)(Brennan, J., concurring in

part and dissenting in part). See also Marek v. Chesney,

473 U.S. 1, 35 (1985)(Brennan, J., dissenting){ "The right

to attorney’s fees is ‘substantive’ under any reasonable

definition of that term.") Sec. 1988 was designed to

accomplish the substantive policy objective of compliance

with the civil rights laws, by authorizing the district courts

to award reasonable attorney’s fees to prevailing parties in

specified civil rights litigation.

With enactment of the Civil Rights Attorney’s Fees

Awards Act of 1976, Congress confirmed its conviction

that fee awards are an essential component of the

statutory structure enacted to promote the vindication of

civil rights. "All of these civil rights laws depend heavily

upon private enforcement, and fee awards have proved an

essential remedy if private citizens are to have a

meaningful opportunity to vindicate the important

Congressional policies which these laws contain." Senate

Report, at 2, U.S. Code Cong. & Admin. News 1976, p.

5910. Congress enacted Sec. 1988 because it recognized

that the vast majority of the victims of civil rights

13

violations cannot afford legal counsel and, absent

provisions for attorney’s fees, would be denied effective

access to the judicial process. See City of Riverside v.

Rivera, 477 U.S. 551, 576 (1986). "If the citizen does not

have the resources, his day in court is denied him; the

congressional policy which he seeks to assert and vindicate

goes unvindicated; and the entire Nation, not just the

individual citizen, suffers." 122 Cong. Rec. 33313

(1976)(remarks of Sen. Tunney).

Congress further expressed its solicitude for the role of

the civil rights plaintiff by disapproving the award of

attorney’s fees to a prevailing defendant unless bad faith is

evident.

Such ‘private attorneys general’ should not be

deterred from bringing good faith actions to

vindicate the fundamental rights here involved

by the prospect of having to pay their

opponent’s counsel fees should they lose.

Richardson v. Hotel Corporation of America,

332 F.Supp. 519 (E.D. La. 1971), aff'd, 468

F.2d 951 (Sth Cir. 1972) (A fee award to a

defendant’s employer was held unjustified where

a claim of racial discrimination, though

meritless, was made in good faith.) .... This bill

thus deters frivolous suits by authorizing an

award of attorneys’ fees against a party shown

to have litigated in ‘bad faith’...

Senate Report, at 5, U.S. Code Cong. & Admin. News

1976, p. 5912.

With respect to statutes similar to Sec. 1988, this Court

has likewise held that the award of fees to a successful

defendant requires a higher standard of proof than that for

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the prevailing plaintiff. Roadway Express, Inc. v. Piper,

447 U.S. 752, 762 (1980). Attorney’s fees are routinely

awarded prevailing civil rights plaintiffs, but prevailing

defendants are rarely awarded fees and then only when the

unsuccessful plaintiffs underlying claim is "frivolous,

unreasonable, or groundless." Christiansburg, 434 U.S. at

422. This distinction advances the Congressional policy to

remedy civil rights abuses. Accord Commissioner, I.N.S. v.

Jean, 110 S.Ct. 2316 (1990)("[t]he government's general

interest in protecting the federal fisc is subordinate to the

specific statutory goals of encouraging private parties to

vindicate their rights and ‘curbing excessive regulation and

the unreasonable exercise of Government authority”). But

the Panel reverses this policy by not only condoning the

award of attorneys’ fees to the non-prevailing defendants

herein, but doing so without any finding of bad faith.°

5 The Panel found that the complaint was filed for an

"improper purpose,” a less stringent standard than “bad faith.”

But the finding of "improper purpose” was itself wholly

unwarranted. The Panel wrongly infered from plaintiffs’ Rule

41 voluntary dismissal that plaintiffs never intended to litigate

the case and that it was thus filed for some other "improper

purpose.” In Re: Kunstler, No. 89-2815, slip op. at 26 (4th Cir.

Sept. 18, 1990). However, one of the principal purposes of Fed.

R. Civ. P. 41(a)(2) is to encourage plaintiffs to discontinue a

claim when circumstances so warrant. Plaintiffs should not be

punished for so utilizing Rule 41(a)(2). See, e.g., Larchmont

Engineering, Inc. v. Toggenburg Ski Center, Inc., 444 F.2d 490,

491 (2nd Cir. 1971) ("After pretrial discovery revealed the

weaknesses of its claims, Larchmont may well have decided in

good faith to minimize litigation expense by foregoing its claims

and by taking a voluntary dismissal. Such a move should not be

discouraged by the threat of imposing attorney fees."); Arthur v.

Starrett City Associates, 98 F.R.D. 500, 505 (E.D. New York,

1983) ("The burdens of lengthy litigation, changes in

circumstance, and other effects of time may reasonably persuade

‘

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The Panel obliterates the statutory distinction and thereby

undermines clear Congressional policy of solicitude for civil

rights plaintiffs. By thus altering the congressionaily

prescribed allocation of civil-rights attorney’s fees, the

application of Rule 11 herein violates the Rules Enabling

Act. Cf. Kaiser Aluminum & Chem. Co. v. Bonjorno, 110

S. Ct. 1570, 1576 (1990)("[T]he allocation of the costs

accruing from litigation is a matter for the legislature, not

the courts."); Crawford Fitting Co. v. J.T. Gibbons, Inc.,

482 U.S. 437, 444 (1987)("Congress meant to impose rigid

controls on cost-shifting in federal courts.”).

a plaintiff to discontinue a claim he or she once believed valid

and worth prosecuting. This option should exist without the

penalty of the imposition of a defendant’s litigation expenses.");

Colombrito v. Kelly, 764 F.2d 122, 134 (2nd Cir. 1985) (where

parties agreed to voluntary dismissal with prejudice, court held

that it "would not want to discourage such a salutary disposition

of litigation by threatening to award attorneys’ fees if a plainuff

did not complete a trial.").

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CONCLUSION

At the heart of the Rule 11 sanction in this case is a

fundamental hostility to use of the civil justice system to

vindicate civil liberties. The Panel’s affirmation of the

lower court’s order ignores a long line of Supreme Court

precedent condoning the concept of adjudication as an

institution for interpreting and enforcing civil liberties.

Indeed, as the Supreme Court observed nearly thirty years

ago, litigation may be a form of political expression;

"Groups which find themselves unable to achieve their

objectives through the ballot frequently turn to the

courts.... And under the conditions of modern

government, litigation may well be the sole practicable

avenue open to a minority to petition for redress of

grievances." N.A.A.C.P. v. Button, 371 U.S. 415, 429

(1963). Specifically, the ruling flouts the statutory

mandates of 42 U.S.C. Sec. 1983 and the clear intent of

Congress to provide judicial remedies for civil rights

abuses.

In order to further promote the vindication of civil

rights, Congress enacted Sec. 1988. Congress determined

therein that prevailing plaintiffs would ordinarily recover

attorney’s fees from the defendant, and a prevailing

defendant ought not ordinarily recover such fees. Sec.

1988 instituted a decided bias in favor of civil rights

plaintiffs. Plainly, Congress was making substantive policy

choices. "Moreover, they are choices ihat are informed by

an awareness of distributional inequalities--the effect of

which is inevitably to prevent many defendants from

recouping moneys spent on ‘unnecessary legal expense.”

Burbank, Proposals to Amend Rule 68--Time to Abandon

Ship, 19 U. Mich. J.L. Ref. 425, 436 (1986).

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Rule 11, enacted to advance the policy of avoiding

expense and delay, is indifferent to the inequities inherent

in a dispute or to the values of the substantive civil rights

laws. Imposing Rule 11 monetary sanctions in civil rights

litigation redefines the relevant objectives and empowers

judges to make policy decisions different from those

reached by Congress. Sec. 1988 controls the allocation of

attorney’s fees in the instant case. Modification of that

substantive law, pursuant to Rule 11, is a violation of the

Rules Enabling Act.

The sanction herein, representing an assault on the

remedial responsibilities of the civil justice system and a

violation of the Rules Enabling Act, is impermissible and

should be reversed.

Respectfully submitted,

Robert L. Hallman

1400 Laurel Street

Columbia, S.C. 29201

(803) 252-7350

Dated: December 19, 1990 Counsel for Amici Curiae

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APPENDIX

STATEMENTS OF INTEREST

1. The National Council of Churches of Christ

The National Council of Churches of Christ in the

U.S.A. is a community of communions composed of 33

national religious bodies, Protestant and Eastern Orthodox,

having an aggregate membership of more than 40 million

adherents in the United States. It is governed by a board

of some 260 members appointed by its member

denominations in proportion to their size and support of

the Council. The Council does not claim to speak for all

of those adherents, but seeks to carry out the wishes of

their representatives as expressed in the policies they

adopt through the Governing Board.

NCCC has a history of witness on issues of social

justice. More specifically, the Racial Justice Working

Group (RJWG), convened by the NCCC, has long

followed the community tensions and organizing efforts in

Robeson County. RJWG fact-finding teams sent into the

area documented a pattern of violence and racial

oppression. NCCC is thus convinced that the case on

which the sanctions were based was solidly grounded in

fact. Further, we fear that, in this case and throughout

the federal court system, Rule 11 is being used to penalize

lawyers who aggressively pursue civil rights charges against

public officials and institutions, with consequent erosion of

the already limited rights of the poor, people of color and

the politically disenfranchised.

2. Southern Christian Leadership Conference

This internationally renowned association, founded by

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the late Dr. Martin Luther King, Jr., has chapters

throughout the country. Their efforts are directed toward

working for civil rights and the interests of poor and

disenfranchised people, and with a special concern for

world peace and the impact of excessive military spending

on low-income communities.

3. National Catholic Conference for Interracial Justice

The National Catholic Conference for Interracial

Justice (NCCIJ), founded in 1960 as an umbrella group for

local Catholic Interracial Councils, is rooted in the

traditions, aspirations and social teaching of the Catholic

Church. The main focus of NCCIJ is the implementation

of Catholic Church teachings on racial justice and

promotion of the Church’s vision of multi-cultural, multi-

racial understanding, respect and collaboration for an

inclusive church and society. As such, NCCIJ is interested

in the underlying litigation because civil rights litigation is

an integral aspect of the struggle to attain racial and social

justice.

Open access to the courts for those citizen groups

challenging abuse of power and violations of the civil

rights of individuals and groups is an important aspect of

our democratic and judicial system. NCCIJ is concerned

that Rule 11 sanctions are being used, as in the case at

bar, to punish plaintiffs and attorneys who seek reform and

the vindication of civil rights through the courts.

4. Southern Organizing Committee for Economic and

Social Justice

The Southern Organizing Committee for Economic and

Social Justice (SOC) is a Southern-wide, multi-racial, multi-

issue network of individuals working in local communities

across the region against racism, war, and economic

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injustice. SOC and its predecessor organizations, the

Southern Conference Educational Fund (SCEF) and the

Southern Conference for Human Welfare, have a fifty year

history of supporting local grassroots movements fighting

racism and injustice, and of opposing repression that

threatens to crush these movements.

5. Center for Democratic Renewal

The Center for Democratic Renewal, headquartered in

Atlanta, Georgia, is a national Clearinghouse known for

efforts to counter hate group activity and bigoted violence

through public education, community response, leadership

training and research.

6. Clergy and Laity Concerned

Clergy and Laity Concerned is a national multi-race

network of people that exists to build a movement for

justice and peace by bringing moral, ethical, and religious

values io bear on issues of human rights and racial and

gender justice at home and abroad.

7. Federation of Southern Cooperatives/Land Assistance

Fund

Located in Epes, Alabama, the Federation of Southern

Cooperatives is a technical assistance, training, and

advocacy organization for 20,000 low-income families

organized into more than 100 co-op and credit unions in

the rural South (it is a leading advocate for addressing

problems of Black farmers who are losing their land at a

rapid rate.) The community organizing and land retention

advocacy efforts often rely on the courts as a last resort

for its members in their search for economic justice.

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8. Gulf Coast Tenant Organization

The Gulf Coast Tenant Organization, with its principal

office in New Orleans, is a federation of organized groups

of tenants in public and federally subsidized housing in

roughly 40 communities in the states of Louisiana,

Mississippi, and Alabama. The organization’s activities

seek full human rights for tenants, and public policies that

meet the needs of poor people.

9. Highlander Research and Education Center

Located in New Market, Tennessee, this non-profit

center conducts work on environmental issues, economic

and social justice, and civil rights in Appalachia and the

South (in the past year more than 2000 mostly low-income

people from 45 states took part in its programs.)

10. Institute for Southern Studies

This entity, based in Durham, North Carolina, is a

research, information, and organizing resource to grass-

roots and community-based organizations, leaders, scholars,

policy makers and others who are working to create lasting

social and economic change in the South.

11. North Carolinians Against Racist and Religious

Violence

This statewide organization based in Durham has

worked for six years to develop a comprehensive response

opposing the violence perpetrated by neo-Nazis and the

Klu Klux Klan in North Carolina.

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12. People’s Institute for Survival and Beyond

The People’s Institute for Survival and Beyond is an

organization that conducts workshops and training sessions

throughout the nation for people working for social justice

in their communities while stressing work against racism

and militarism, and knowledge of history and other

peoples’ cultures.

13. Southern Rainbow Education Fund

Located in Montgomery, Alabama, the Southern

Rainbow Education Fund is a free-standing, multi-racial

and multi-issue coalition dedicated to the principle that

grassroots people can act on their behalf, as their own

advocates.

14. Southeast Center for Justice

The Southeast Center for Justice is committed to

accompanying the self-determination of the poor in the

southeast toward a more just order. The Center works

with people who seek to change social structures which

cause or perpetuate exploitation and injustice.