Doe v. Heintz

Citation204 Conn. 17,526 A.2d 1318
Decision Date09 June 1987
Docket NumberNo. 13012,13012
CourtSupreme Court of Connecticut
Parties, Medicare & Medicaid Guide P 36,382 Rosie J. DOE et al. v. Stephen HEINTZ et al.

Richard T. Couture, Asst. Atty. Gen., with whom, on the brief, was Joseph I. Lieberman, Atty. Gen., for appellants (defendants).

Wesley W. Horton, with whom was Susan M. Cormier, Hartford, for appellees (named plaintiff et al.).

Dennis J. O'Brien, Willimantic, filed a brief for the Connecticut Legal Services, Inc., et al. as amici curiae.


SHEA, Associate Justice.

The defendants have appealed from a supplemental judgment of the trial court awarding attorneys' fees to the class of indigent women represented by the named plaintiff. 1 This class had prevailed in a suit challenging the validity of a regulation issued by the defendant commissioner of income maintenance 2 concerning state funding for abortions requested by women eligible for state medical assistance. The court had previously, on April 9, 1986, rendered judgment for the plaintiffs on the merits of the action, declaring the regulation invalid and enjoining its enforcement. Doe v. Maher, 40 Conn.Sup. 394, 515 A.2d 134 (1984). No appeal has been taken from that judgment. The claim of the plaintiffs for attorneys' fees and costs, which was raised in the complaint, was then heard at an additional proceeding and the court, on June 26, 1986, in the supplemental judgment appealed from, awarded to the class of indigent women plaintiffs their attorneys' fees and costs. The dispositive issue raised in the appeal is whether the sovereign immunity of the state bars such an award. We conclude that it does and, therefore, reverse the judgment.

On July 15, 1981, a regulation issued by the defendant commissioner became effective that authorized funding for abortion services under the Connecticut Medical Assistance Program (Medicaid); General Statutes §§ 17-134a through 17- 134l; only when the following condition was met: "On the basis of his professional judgment, the attending physician has certified in writing that the abortion is necessary because the life of the mother would be endangered if the fetus were carried to term." 3 The named plaintiff and her physician, on August 20, 1981, brought this class action challenging the regulation. On the following day the trial court issued, ex parte, a temporary injunction requiring the defendants to pay the cost of the named plaintiff's abortion, which was found to be medically necessary 4 although not necessary to save her life. After a hearing on October 9, 1981, the court certified two classes of plaintiffs: (1) indigent pregnant women eligible for Medicaid who seek a medically necessary abortion, represented by the named plaintiff; and (2) physicians certified by the state to provide medical care under Medicaid who agree to perform medically necessary abortions or advise women concerning them, represented by the named plaintiff's physician. The court then also expanded the scope of the existing temporary injunction in favor of the named plaintiff to include other members of her class and enjoined the enforcement of the regulation.

Almost five years later, on April 9, 1986, the court, after a trial on the merits, rendered a declaratory judgment that the regulation at issue was invalid because it contravened General Statutes §§ 17-134a through 17-134l and violated the rights to due process of both classes of plaintiffs under § 10 of article first of our state constitution as well as the right of the indigent women class to equal protection of the laws under §§ 1 and 20 of that article. The court also permanently enjoined the enforcement of the regulation and ordered the defendants to pay the cost of all medically necessary abortions to the same extent as other medical expenses are paid under the Medicaid program. In this appeal the state has not challenged the trial court's judgment of April 9, 1986, so we have no occasion to consider its merits.

The supplemental judgment that is the subject of this appeal was rendered on June 26, 1986, after a further evidentiary hearing pursuant to a bifurcation order on the claim made in the complaint for attorneys' fees. The court denied the request for attorneys' fees and costs made by the class of physicians, 5 but awarded to the class of indigent women the sum of $164,942.83 for attorneys' fees and costs. In appealing from that judgment the defendants claim that the award violates the sovereign immunity of the state, is not authorized by any statute, and is contrary to the established precedent that, in the absence of a special agreement or an applicable statute, each litigant must bear his own legal expenses. The defendants also contend that the award was excessive.


Before deciding whether the sovereign immunity of the state shields the defendants from liability for attorneys' fees and costs incurred by the plaintiff women as prevailing parties in this litigation, it is well to consider whether the circumstances would justify such an award in the absence of such an immunity. The plaintiffs as well as the trial court have relied for support of the award partly upon various exceptions, both statutory and nonstatutory, to the general disallowance of attorneys' fees to prevailing parties. 6 By statute of course, an unsuccessful litigant is obliged to pay the taxable costs of his opponent, which include not only disbursements actually made for such items as court filing fees, 7 but also small allowances intended to defray partially the cost of some services normally performed by attorneys, such as "[f]or all proceedings before trial, fifty dollars" and "for the trial of an issue of law or fact, seventy-five dollars." General Statutes § 52-257(a)(1) and (2). "[I]n difficult or extraordinary cases in the superior court, where a defense has been interposed, a further allowance, in the discretion of the court, not to exceed two hundred dollars" may be made. General Statutes § 52-257(a)(3).

Claims for attorneys' fees in the absence of statutory authority or contractual provision, however, have generally been rejected by the courts of this country, unlike those in England. 8 "In the United States, the prevailing litigant is ordinarily not entitled to collect a reasonable attorneys' fee from the loser." Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247, 95 S.Ct. 1612, 1616, 44 L.Ed.2d 141 (1975). This court has recently indicated our adherence to this so called "American rule." Brookfield v. Candlewood Shores Estates, Inc., 201 Conn. 1, 14-15, 513 A.2d 1218 (1986). There are, however, numerous statutory exceptions to the rule and also several others created by the courts without legislative authority. See Alyeska Pipeline Service Co. v. Wilderness Society, supra, 421 U.S. 275-59, 95 S.Ct. at 1621-22. Two of these court-authored exceptions are relied upon by the plaintiffs: (1) the private attorney general doctrine; and (2) the substantial benefit rule.


The private attorney general exception would authorize the court to award attorneys' fees to the successful litigant upon a determination that "the litigation has resulted in the vindication of a strong or societally important public policy, that the necessary costs of securing this result transcend the individual plaintiff's pecuniary interest to an extent requiring subsidization, and that a substantial number of persons stand to benefit from the decision...." Serrano v. Priest, 20 Cal. 3d 25, 45, 569 P.2d 1303, 141 Cal.Rptr. 315 (1977); see Miotke v. Spokane, 101 Wash.2d 307, 340-41, 678 P.2d 803 (1984). Although the trial court found that the plaintiffs had satisfied these criteria by "overwhelming evidence," it concluded that "such a broad rule is generally one for the legislature to consider" and rejected this basis for awarding attorneys' fees.

In Alyeska the two dissenting justices advanced the private attorney general theory to support an attorneys' fee award to an association of environmentalists, but the majority decided that adoption of that principle "would make major inroads on a policy matter that Congress has reserved for itself" in view of the existence of legislation authorizing attorneys' fees in many specified instances where public benefits flow from private enforcement of the law such as in antitrust suits, patent litigation and civil rights actions. 9 Alyeska Pipeline Service Co. v. Wilderness Society, supra, 421 U.S. 264-69, 95 S.Ct. at 1625-27. Like Congress, our legislature also has enacted statutes permitting attorneys' fees to be awarded to a successful litigant in particular instances where a significant public interest has been vindicated by the litigation. Some examples are antitrust suits by consumers where injunctions are granted; General Statutes § 35-34; claims for trade secret misappropriation that are made in bad faith; General Statutes § 35-54; and actions for damages resulting from unfair trade practices. General Statutes § 42-110g. Indeed, the legislature has specifically authorized the recovery of reasonable fees and expenses not exceeding $7500 against the state in a successful appeal of an administrative agency decision in a contested case for all but the most affluent of aggrieved persons. General Statutes § 4-184a. 10 In view of this legislative policy of selecting the special situations where attorneys' fees may be awarded, we agree with the trial court that it is inappropriate for the judiciary to establish under the private attorney general doctrine a broad rule permitting such fees whenever a private litigant has at substantial cost to himself succeeded in enforcing a significant social policy that may benefit others.


The substantial benefit doctrine advanced to support the award of attorneys' fees in this case is based upon the principle that, where a successful suit...

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