O'Connor v. Jones

• Decision Date: 17 October 1991
• Docket Number: No. 91-2693,91-2693
• Citation: 946 F.2d 1395
• Parties: James O'CONNOR, Appellee, v. Jim JONES, Superintendent, Missouri Training Center for Men, Dr. Chung, FCC Medical, Appellants, Avery Hutcheson, Sheriff of Mississippi County.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1395

946 F.2d 1395

James O'CONNOR, Appellee, v. Jim JONES, Superintendent, Missouri Training Center for Men Dr. Chung, FCC Medical, Appellants Avery Hutcheson, Sheriff of Mississippi County.

No. 91-2693.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 12, 1991.

Decided Oct. 17, 1991.

John Bardgett, Clayton, Mo., argued (Mark Levison, Nelson Mitten, Howard Smotkin, St. Louis, Mo., on brief), for appellants.

Jim Shoemake, St. Louis, Mo., argued, for appellee.

Before BOWMAN and LOKEN, Circuit Judges, and ROSS, Senior Circuit Judge.

BOWMAN, Circuit Judge.

This case is before the Court on interlocutory appeal from the District Court's determination that counsel representing appellants in the underlying cause should be disqualified. We reverse.

Appellee in this case is James O'Connor, plaintiff in a lawsuit brought under 42 U.S.C. § 1983 (1988) alleging that the medical treatment he received as a prisoner in the Missouri correctional system was inadequate. O'Connor was granted leave to proceed in forma pauperis and filed his section 1983 complaint pro se. He asked the court to appoint counsel to represent him in the case.

The law firm of Riezman & Blitz, P.C., entered its appearance on behalf of the defendant Missouri Department of Corrections employees, appellants here, identifying the attorneys signing the Entry of Appearance as "special assistant attorneys general." O'Connor filed a pro se motion to disqualify Riezman & Blitz on the grounds that the Missouri Attorney General's contracts with that firm and with other law firms, engaging their services for the defense of prisoner civil rights suits against state employees, violated the Sherman Antitrust Act, ¹ and that such contracts limited the number of attorneys available to represent indigent prisoners. Before ruling on that motion, the District Court appointed counsel for O'Connor, who then filed an amended motion to disqualify.

On June 5, 1991, the court granted O'Connor's motion to disqualify. The court held that O'Connor had standing to raise the issue by motion, apparently reaching that conclusion because O'Connor had standing to bring his civil rights claim in the first instance. O'Connor v. Hutcheson, No. 90-1374C(3) (E.D.Mo. June 5, 1991) (order granting motion to disqualify) (hereinafter "Order") reprinted in Appellants' Addendum at 1, 2-3 ("Both parties appear to agree that plaintiff and defendants have adverse legal interests in this matter and are true adversaries. Therefore, the Court concludes that plaintiff has satisfied Article III standing requirements.") (citation omitted). The court also determined that a motion to disqualify was the proper manner in which to raise O'Connor's claims concerning opposing counsel.

On the merits, the court held that Missouri's retention of private law firms to represent state employees in prisoner civil rights cases violates state law. The court further concluded that, even if such contracts are authorized by Missouri law, they are in conflict with 28 U.S.C. § 1915(d)(1988), the federal statute that empowers the federal courts to request the services of counsel to represent indigent parties in federal court. ² Thus, the court reasoned, such state law violates the Supremacy Clause of the United States Constitution and therefore is invalid.

The District Court granted defendants' unopposed motion for certification of its disqualification order for interlocutory appeal pursuant to 28 U.S.C. § 1292(b)(1988). Both parties have represented to this Court that hundreds of prisoner civil rights cases now pending in the United States District Court for the Eastern District of Missouri, where the state defendants are represented by private counsel retained by the Missouri Attorney General to act as special assistant attorneys general, have been stayed pending the outcome of this appeal. Thus the need for the prompt resolution of the question presented by this appeal is apparent.

"[W]e review de novo the questions of law certified by the district court." Simon v. G.D. Searle & Co., 816 F.2d 397, 400 (8th Cir.), cert. denied, 484 U.S. 917, 108 S.Ct. 268, 98 L.Ed.2d 225 (1987). Our review is not circumscribed by the certified question, however, as we may consider other questions necessary to the resolution of the precise question certified by the court. Id.

The District Court entered forbidden territory when it held that the Missouri Attorney General violates Missouri law when he contracts with private law firms to engage their attorneys' services as "special assistant attorneys general." This holding runs afoul of the Eleventh Amendment, as declared by the United States Supreme Court in Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). The Pennhurst Court "concluded ... that a claim that state officials violated state law in carrying out their official responsibilities is a claim against the State that is protected by the Eleventh Amendment," even if the state claim is in federal court under pendent jurisdiction. Id. at 121, 104 S.Ct. at 919. "[I]t is difficult to think of a greater intrusion on state sovereignty than when a federal court instructs state officials on how to conform their conduct to state law." Id. at 106, 104 S.Ct. at 911.

Even if it were constitutionally permissible for a federal court to conclude that the Missouri Attorney General is violating state law, it is by no means clear that such a violation has occurred here. The case primarily relied upon by the District Court in so holding and by O'Connor in his argument is State v. Crockett, 419 S.W.2d 22 (Mo.1967). In dicta, the Missouri Supreme Court said, "There is no statutory authority for 'special' assistant atttorneys [sic] general." Id. at 28. That comment, however, was not made in response to a party's challenge to the state attorney general's authority to make contracts with private law firms for legal representation. Further, if the Crockett dicta is in fact an accurate statement of Missouri law, that does not foreclose the possibility that the authority for such contracts is not statutory but derives from the common law of the state. If the District Court is correct in its conclusion, then its holding affects far more than civil rights cases brought against state correctional employees by indigent prisoners, as the record shows that the state relies with some frequency upon outside counsel in the prosecution and defense of other civil lawsuits in federal court. See Affidavit of James B. Deutsch (June 19, 1991) reprinted in Appellants' Addendum at 61, 61-71. Moreover, the District Court's holding presumes that the state official responsible for the enforcement of the state's laws is regularly and systematically violating those laws, a presumption in which we would be loath to indulge.

The court's holding that the Missouri Attorney General's retention of private counsel conflicts with 28 U.S.C. § 1915(d) and thus offends the Constitution's Supremacy Clause is equally unavailing. Under section 1915(d), "[t]he court may request an attorney to represent any such person [proceeding in forma pauperis] unable to employ counsel." The District Court here declared:

The majority of cases in which this Court appoints an attorney to represent an indigent litigant in a civil case are prisoner civil rights cases. The Court must maintain separate listings of attorneys who work for law firms designated as "special assistant attorneys general," and must bypass those attorneys in appointing an attorney to an indigent prisoner civil rights case. Thus, the Court concludes that the appointment of "special assistant attorneys general" interferes with the authority of this Court under 28 U.S.C. § 1915 to appoint attorneys to represent indigent litigants in civil cases.

Order at 6-7, reprinted in Appellants' Addendum at 6-7. ³ Therefore, according to the court, this state practice violates the Supremacy Clause and is unconstitutional.

We believe the District Court erred. This record simply does not support the conclusion that the Missouri Attorney General's hiring of private law firms as special assistant attorneys general to represent state employees in prisoner civil rights cases interferes in any significant way with the operation of 28 U.S.C. § 1915(d). There is neither any necessary conflict between this practice based on state law and section 1915(d) nor is there any showing that as a practical matter it renders section 1915(d) unworkable. At most, the record shows that some attorneys, their number small in comparison to the total number of attorneys in the relevant geographical area, who otherwise would be available for appointment under section 1915(d) must be bypassed, and that the District Court, at some apparent inconvenience to itself, must keep those attorneys on a list separate from the regular appointment list. This is watery broth indeed, and it is far from sufficient to pass for a Supremacy Clause stew.

At oral argument in this appeal, counsel for O'Connor, in response to a question from the bench, affirmed that his Supremacy Clause argument is really a preemption argument, so we now address that issue. If Congress "intends to pre-empt the historic powers of the States" (and we have no doubt that the power of a state to choose its own counsel to defend its interests is one of these historic powers), the language of the statute should make such intention " 'clear and manifest.' " Will v. Michigan Dept. of State Police, 491 U.S. 58, 65, 109 S.Ct. 2304, 2308, 105 L.Ed.2d 45 (1989) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947)); see also United States v. Bass, 404 U.S. 336, 349, 92 S.Ct. 515, 523, 30 L.Ed.2d 488 (1971) ("unless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance") (footnote omitted). Nothing could be less clear here: 28 U.S.C. § 1915(d...