500 F.2d 701 (6th Cir. 1974), 73-1973, Jordon v. Gilligan

Docket Nº:73-1973.
Citation:500 F.2d 701
Party Name:Samuel J. JORDON et al., Plaintiffs-Appellees, v. John J. GILLIGAN et al., Defendants-Appellants.
Case Date:July 18, 1974
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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500 F.2d 701 (6th Cir. 1974)

Samuel J. JORDON et al., Plaintiffs-Appellees,


John J. GILLIGAN et al., Defendants-Appellants.

No. 73-1973.

United States Court of Appeals, Sixth Circuit.

July 18, 1974

Argued Feb. 1, 1974.

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[Copyrighted Material Omitted]

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James A. Laurenson, Columbus, Ohio, for defendants-appellants; William J. Brown, Atty. Gen. of Ohio, Donald J. Guittar, Frank Josselson, Asst. Attys, Gen., Columbus, Ohio, on brief.

Albert J. Ortenzio, Youngstown, Ohio, for plaintiffs-appellees; Nathaniel R. Jones, New York City, Ortenzio & Pritchard, Youngstown, Ohio, on brief.

Before PECK, MILLER and LIVELY, Circuit Judges.

JOHN W. PECK, Circuit Judge.

This opinion is filed vice the opinion filed April 25, 1974, pursuant to an order entered herein of even date herewith granting defendants-appellants' motion for a rehearing and withdrawing the April 25, 1974 opinion.

This is an appeal from an order entered in the district court denying appellants' motion to vacate a prior order of that court awarding attorneys' fees against the State of Ohio. The appellants' principal assertion is that the award was void since, under the Eleventh Amendment to the Constitution of the United States, the State was immune from the award, and the court was without jurisdiction to make it.

The record establishes that in November of 1971, Samuel Jordon filed a class action suit against the members of the Ohio Apportionment Board, a state body responsible for the decennial reapportionment of the Ohio legislature. Included as defendants were state officials and members of the Mahoning County Board of Elections in their official capacities. The State of Ohio was not a named defendant. Plaintiff sought, on behalf of the class of all Ohio voters, a declaratory judgment that a reapportionment plan adopted by the Board was constitutionally infirm, and he asked that injunctions requiring the Board to establish a revised plan that would satisfy applicable requirements be issued. Plaintiff also prayed for an award of attorneys' fees against the defendants. Federal jurisdiction was invoked pursuant to 28 U.S.C. § 1343 for alleged violations of the Fourteenth and Fifteenth Amendments as implemented by 42 U.S.C. § 1983.

The Board's original plan was declared unconstitutional by the three-judge district court convened to hear the case under the terms of 28 U.S.C. § 2281. The district court ordered appellants to submit a new plan that would

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comply with state and federal constitutional demands. A revised plan was duly submitted to and approved by the court in December of 1971. After allowing appellees 60 days in which to file objections to the revised plan, the court entered a final order adopting it for the decennium.

Counsel for appellees filed applications for an award of attorneys' fees and expenses in the combined amount of $27,272.65. The district court, in the absence of any objections to the applications from appellants, entered the following order on May 19, 1972:

'Counsel for plaintiffs have made application for the allowance of attorney's fees and expenses to date. There is no opposition to the amounts requested and they seem reasonable on their face.

'Therefore, the State of Ohio, through John J. Gilligan, Governor; . . . collectively, in their official capacities, and as the persons responsible for apportioning the State of Ohio, are ordered and directed to pay attorney's fees . . ..'

Eight months passed and the judgment remained unpaid. On January 17, 1973, the district court ordered the award of attorneys' fees and expenses taxed as costs against the State of Ohio. 1 Appellees filed a praecipe for a writ of fieri facias against a bank account maintained by the State at a bank in Cleveland, Ohio, and the court acted to enforce it by ordering the bank to pay the contested monies to the clerk of the court. 2

The appellants filed a motion to vacate the award of attorney's fees based on Rule 60(b) of the Federal Rules of Civil Procedure, and simultaneously filed a motion for stay of execution pending disposition of the Rule 60(b) motion. Shortly thereafter, but before the writ was enforced, the State paid the $27,272.65 judgment. In response to the voluntary payment, the district court vacated, by order, the attachment of the State's bank account. The court also issued an order denying appellants' Rule 60(b) motion. It was from this denial that the present appeal was perfected.

Rule 60(b), Fed.R.Civ.P., provides in pertinent part as follows: 'On motion and upon such terms as are just, the court may relieve a party . . . from a final judgment, order, or proceeding for the following reasons: . . . (4) the judgment is void . . ..' If, as appellants assert, the award of attorneys' fees and expenses against the State of Ohio was void for lack of jurisdiction, we must reverse. A void judgment is a legal nullity and a court considering a motion to vacate has no discretion in determining whether it should be set aside. See generally, 7 J. Moore, Federal Practice, P60.25(2), at 301 (2d ed. 1973).

Before discussing the central issue in this case a few words of clarification are in order. This cause, insofar as the award of attorneys' fees is concerned, although nominally against the chief executive and other officials of the State of Ohio, in substance and effect was against the State. 3 Any award of

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attorneys' fees, whether against the State of Ohio or its officials, vitally affects the rights and interests of the State in preserving its revenues. according to the general rule 'a suit is against the sovereign if 'the judgment sought would expend itself on the public treasury . . ..' Land v. Dollar, 330 U.S. 731, 738, 67 S.Ct. 1009, 91 L.Ed. 1209 (1947) . . ..' Dugan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999, 1006, 10 L.Ed.2d 15 (1963); accord Dawkins v. Craig, 483 F.2d 1191 (4th Cir. 1973). And as this Court stated in Harrison Construction Co. v. Ohio Turnpike Com'n., 272 F.2d 337, 340 (6th Cir. 1959), 'When the action is in essence one for the recovery of money from the state, the state is the real, substantial party in interest and is entitled to invoke its sovereign immunity from suit even though individual officials are nominal defendants.'

Appellants do not contend that state officials are immune from suits brought to restrain unconstitutional acts undertaken in their official capacities. The law clearly recognizes the right of an interested party to force state officials to act in accordance with the Constitution. Georgia R.R. and Banking Co. v. Redwine, 342 U.S. 299, 72 S.Ct. 321, 96 L.Ed. 335 (1952); Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908); Lee v. Board of Regents of State Colleges, 441 F.2d 1257 (7th Cir. 1971); Samuel v. University of Pittsburgh, 56 F.R.D. 435 (W.D.Pa. 1972); Wright, Law of Federal Courts, § 48, at 183 (2d ed. 1970). Appellants do assert, however, that both a state and its officials are immune from monetary awards arising in connection with such a suit, even if the awards are for attorneys' fees.

To further sharpen the focus of this inquiry, we note that in the instant case the district court ordered the attorneys' fees taxed as costs, and ordered the State of Ohio to pay the costs. 4 We do not question the general principle that a court may tax attorneys' fees in the appropriate circumstances in cases involving private parties 5 or where sanctioned by statutory law, 6 but it seems basic that if a party is immune from an award of attorneys' fees as such, that immunity is not altered by taxing the fees as part of the costs. If the award is void in one form, it is void in the other.

Stripped of distracting shadow questions, the case before us presents a singular, although by no means simple, issue: Does a federal court have the power to award attorneys' fees against a state or its officials acting in their official capacities in a suit brought under 42 U.S.C. § 1983 to vindicate constitutional rights? To this inquiry we must respond in the negative.

The Supreme Court reviewed and clarified the principles under which a federal court may award attorneys' fees against an unsuccessful litigant in Hall v. Cole, 412 U.S. 1, 93 S.Ct. 1943, 36 L.Ed.2d 702 (1973). The Court recognized the existence of a 'class benefit' rationale for awarding fees where 'plaintiff's successful litigation confers 'a substantial benefit on the members of an ascertainable class . . .. ''

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Id. at 5, 93 S.Ct. at 1946. The basis of this theory is that because the efforts of the individual plaintiff benefited a group or class of persons, equity requires the group to share the financial burden of the plaintiff's litigation. In the instant case, that appellee's prosecution of this suit to bring Ohio's legislative districts within the requirements of the one man-one vote rule benefited every Ohio voter is not questioned. Implicit in the Court's holding was the fact that the class benefit theory can only be employed where a court has the requisite jurisdiction to make such an award. 412 U.S. at 5, 93 S.Ct. 1943. In this case the district court clearly had jurisdiction over the appellants insofar as the suit involved a plea for injunctive relief to force constitutional reapportionment.

The Eleventh Amendment, however, contains an express constitutional limitation on the power of the federal courts.

'The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.'

Through judicial interpretation, this amendment has been held to bar a citizen who...

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