Gumbhir v. Kansas State Bd. of Pharmacy

• Decision Date: 11 June 1982
• Docket Number: No. 53610,53610
• Parties: Ashok K. GUMBHIR, Appellant, v. KANSAS STATE BOARD OF PHARMACY, Appellee.
• Court: Kansas Supreme Court

Page 1078

646 P.2d 1078

231 Kan. 507

Ashok K. GUMBHIR, Appellant, v. KANSAS STATE BOARD OF PHARMACY, Appellee.

No. 53610.

Supreme Court of Kansas.

June 11, 1982.

Syllabus by the Court

1. Actions to enforce 42 U.S.C. § 1988, the Civil Rights Attorney's Fees Awards Act, may be brought in state court.

2. A state agency is considered a "person" under the provisions of 42 U.S.C. § 1983.

3. 42 U.S.C. § 1983 need not be specifically pled in the original pleadings in order for a court to award attorney fees under 42 U.S.C. § 1988. Although the better practice is to specifically plead § 1983, it is enough if the original action is within the spirit of 42 U.S.C. § 1983.

4. A request for attorney fees is not a motion to alter or amend the judgment and need not be filed within the time period applicable thereto. In the future, motions for attorney fees should be filed within thirty (30) days after the entry of final judgment.

5. A person is a "prevailing party" within the context of 42 U.S.C. § 1988 when he essentially succeeds in obtaining the relief he seeks in his claims on the merits.

6. Under 42 U.S.C. § 1988 the prevailing party should ordinarily be awarded attorney fees unless there are special circumstances making such award unjust.

7. The test for determining whether a statute is unconstitutionally vague is whether an ordinary person exercising ordinary common sense can understand and comply with the statute.

8. K.S.A. 1979 Supp. 65-1631(a) is not based on the trait of alienage. The practice of pharmacy is not a fundamental interest. Any equal protection analysis of the statute is thus based on the "rational relation" test. Since the classification made by K.S.A. 1979 Supp. 65-1631(a) is rationally related to the state's interest in ensuring a competent field of practicing pharmacists, the statute does not deny equal protection.

9. In a request for costs pursuant to 42 U.S.C. § 1988 it is held: the trial court did not err in denying appellant's motion for attorney fees.

J. Nick Badgerow, of McAnany, Van Cleave & Phillips, P.A., Kansas City, argued the cause and was on the brief for appellant.

Robert E. Davis, of Davis, Davis, McGuire & Thompson, Chartered, Leavenworth, argued the cause and John F. Thompson, Leavenworth, of the same firm, was with him on the brief for appellee.

HERD, Justice:

This is an action for attorney fees under authority of 42 U.S.C. § 1988, growing out of this court's previous opinion in Gumbhir v. Kansas State Board of Pharmacy, 228 Kan. 579, 618 P.2d 837 (1980).

Ashok K. Gumbhir received a bachelor's degree in pharmacy from Punjab University in Chandrigarh, India. Later he immigrated to the United States where he now resides. After moving to this country, Gumbhir earned a masters degree in pharmacy from the University of Minnesota. He subsequently obtained his Ph.D in pharmacy administration from Ohio State University and was registered as a pharmacist in Ohio. Appellant made application for such registration in Kansas. His application was denied by the Kansas State Board of Pharmacy. He appealed the Board's ruling to the district court, alleging K.S.A. 1979 Supp. 65-1631(a), the registration statute, was unconstitutional on the following grounds:

"(a) The statute contains an impermissible, unconstitutional and undue delegation of authority to some private body or entity other than the Kansas State Board of Pharmacy, and does not require nor permit defendant to exercise its own judgment;

"(b) the statute is violative of the Commerce Clause, Art. 1, § 8 of the Constitution of the United States;

"(c) because the American Council on Pharmaceutical Education does not accredit nor approve colleges or universities other than those in the United States of America, the statute is discriminatory and violative of the First, Fifth and Fourteenth Amendments of the Constitution of the United States, and is an improper delegation of authority;

"(d) the statute is unconstitutionally vague, ambiguous and susceptible of various interpretations."

The district court upheld the Board's decision, but on appeal the Supreme Court reversed. This court held K.S.A. 1979 Supp. 65-1631(a) was violative of the Kansas Constitution, Article 2, § 1, in that it resulted in an unconstitutional delegation of legislative authority to a non-governmental agency. Thus, the court found it unnecessary to reach the other constitutional issues raised by appellant. Gumbhir v. Kansas State Board of Pharmacy, 228 Kan. at 588, 618 P.2d 837. In light of this decision Dr. Gumbhir became registered as a pharmacist in Kansas on February 8, 1981.

In April of 1981, Dr. Gumbhir filed a "Motion for Assessment of Costs," requesting that the district court assess all costs and attorney fees incurred in this matter against the appellee pursuant to the authority of 42 U.S.C. § 1988, the Civil Rights Attorney's Fees Awards Act. The district court denied the motion and Dr. Gumbhir has appealed.

The sole issue on this appeal is whether the district court erred in denying appellant's request for attorney fees under the provisions of 42 U.S.C. § 1988.

First let us examine the provisions of 42 U.S.C. § 1988 (Supp. IV 1980), which provide in pertinent part:

"In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318, or title VI of the Civil Rights Act of 1964, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs."

Appellant claims his original action qualifies as one "to enforce a provision of § 1983." 42 U.S.C. § 1983 (Supp. IV 1980), provides:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia."

As a preliminary matter, the propriety of state courts enforcing federal civil rights statutes should be examined. In Martinez v. California, 444 U.S. 277, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980), the court held actions under 42 U.S.C. § 1983 may be brought in state courts. Similarly, in Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980), the court applied § 1988 to a civil rights action brought in state court. Thus, it is apparent federal civil rights statutes are enforceable by state courts.

In considering the full import of this case it is necessary to bear in mind the history and purpose of the Civil Rights Attorney's Fees Awards Act. It was signed into law October 19, 1976, by President Gerald Ford for the purpose of rescuing more than a decade of judicial decision making which had, prior to May 12, 1975, made attorney fees available in most public interest cases. Prior to the late 1960's the practice of allowing attorney fees as a part of the costs in public interest litigation was virtually unheard of. Civil rights plaintiffs were required to obtain counsel pro bono publico, to pay from their own pockets for litigating cases, usually resulting in injunctive relief of value to large numbers of people with no damages from which a fee could be extracted, or to forget the rights existed because enforcement was too expensive. Civil rights were luxuries, not rights.

The situation changed in 1964. The Comprehensive Civil Rights Act passed. It provided for fee shifting upon proof of discrimination in public accommodations and employment. Realizing the federal government would be unable to handle all the cases involving this type of discrimination, the right to bring private enforcement actions was included in the act. It also provided for attorney fees as a vehicle for private enforcement because the beneficiaries generally lack the means to bring private suits.

The Supreme Court in Newman v. Piggie Park Enterprises, 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968), expanded the legislative scheme by ruling even though Congress had made fee awards in discrimination cases in public accommodations technically "discretionary," it would be a rare case in which fees would not be automatic. The court reasoned plaintiffs in such cases were "private attorneys general," and it would be unfair to tax such plaintiffs with the cost of doing the work benefiting the whole country. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975); Jeanty v. McKey & Poague, Inc., 496 F.2d 1119 (7th Cir. 1974); Northcross v. Memphis Board of Education, 412 U.S. 427, 93 S.Ct. 2201, 37 L.Ed.2d 48 (1973). In 1970, the Supreme Court again expanded the concept of fee shifting in Mills v. Electric Auto-Lite, 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970), where the plaintiff proved the use of misleading proxy statements. Because plaintiffs had benefited the corporation, shareholders and general public by disclosing the corporation's lawlessness, the court reasoned it would be unfair for plaintiffs to bear the cost of the litigation. Following the foregoing cases, lower courts began to award fees in cases of all kinds, reasoning that whenever a private citizen sues to prevent a violation of the law, and thus provides the benefit of therapeutic enforcement for others as well as himself, he should not have to pay.

Attorney fee awards became increasingly common in suits involving school desegregation, jury discrimination, teacher dismissal, first amendment violations, unreasonable searches, legislative redistricting, prisoners' rights, union matters, police...