Jenkins by Agyei v. State of Mo., 90-2895
| Decision Date | 30 June 1992 |
| Docket Number | No. 90-2895,90-2895 |
| Parties | 76 Ed. Law Rep. 42 Kalima JENKINS, by her next friend, Kamau AGYEI; Carolyn Dawson, by her next friend Richard Dawson; Tufanza A. Byrd, by her next friend Teresa Byrd; Derek A. Dydell, by his next friend Maurice Dydell; Terrance Cason, by his next friend Antoria Cason; Jonathan Wiggins, by his next friend Rosemary Jacobs Love; Kirk Allan Ward, by his next friend Mary Ward; Robert M. Hall, by his next friend Denise Hall; Dwayne A. Turrentine, by his next friend Shelia Turrentine; Gregory A. Pugh, by his next friend, David Winters; on behalf of themselves and all others similarly situated; Plaintiffs-Appellees, School District of Kansas City, Missouri; Claude C. Perkins, Superintendent thereof; Plaintiffs, American Federation of Teachers, Local 691, Intervenor below, v. STATE OF MISSOURI; Honorable John Ashcroft, Governor of the State of Missouri; Wendell Bailey, Treasurer of the State of Missouri; Missouri State Board of Education; Roseann Bentley, Member of the Missouri State Board of Education; Dan L. Blackwell, Member of the Missouri State Board of Education; Raymond McCallister, Jr., Member of the Missouri State Board of Education; Susan D. Finke, Member of the Missouri State Board of Education; Thomas R. Davis, presiding, Member of the Missouri State Board of Education; Cynthia B. Thompson, Member of the Missouri State Board of Education; Gary D. Cunningham, Member of the Missouri State Board of Education; Rebecca M. Cook, Member of the Missouri State Board of Education; Robert E. Bartman, Commissioner of Education of the State of Missouri, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Bart A. Matanic, Jefferson City, Mo., argued (Michael J. Fields, on the brief), for appellant.
Arthur A. Benson, II, Kansas City, Mo., argued (Dianne E. Moritz, on the brief), for appellee.
Before McMILLIAN, Circuit Judge, HEANEY, Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.
The State of Missouri appeals from a district court order in the Kansas City school desegregation case granting the plaintiff class attorneys' fees against the State for defending the remedial plan in this case from attacks by intervenors in the Jenkins suit and by plaintiffs in a collateral suit. Order of October 10, 1990, slip op. at 3-4. The State relies on inferences from Independent Federation of Flight Attendants v. Zipes, 491 U.S. 754, 109 S.Ct. 2732, 105 L.Ed.2d 639 (1989), in arguing that it cannot be liable for attorneys' fees the plaintiff incurred in litigation against other parties. The plaintiffs contend that Zipes does not govern this case, and that defending the chosen remedy in a desegregation case is an integral part of the plaintiffs' role in the private enforcement of civil rights laws. We conclude that the State can be required to pay fees attributable to litigation in the Jenkins suit against intervenors, but not to litigation in a collateral lawsuit. We affirm in part and reverse in part.
When the plaintiff class moved for the award of attorneys' fees for year V of the remedial plan, it included $9,280.25 for fees incurred in connection with three different attacks on the remedial plans adopted in this case. The first attack was launched by the Ronika Newton group, members of the Jenkins class, who moved in the main action to modify the racial admission requirements for the magnet schools. The district court denied the Newton group's motion and disqualified its counsel, and we affirmed. Jenkins v. Missouri, 931 F.2d 470, 483-86 (8th Cir.) (Jenkins IV ), cert. denied, --- U.S. ----, 112 S.Ct. 437, 116 L.Ed.2d 456 (1991). Thereafter, the Newton group's cause was shouldered by the Mark Anthony Nevels group, which unsuccessfully moved to modify the magnet plan. See Order of July 3, 1990, slip op. at 1.
The remedy was also challenged by Quinton Rivarde et alia, also members of the Jenkins class, who filed a separate suit against the Kansas City, Missouri School District and the State, alleging that the remedy in the main action had been ineffective and demanding that the State pay minority students' tuition at private schools as an alternative remedy. The State moved to dismiss the Rivarde suit, and the Jenkins plaintiffs sought to intervene to protect the magnet plan from the threat posed by the competing plan urged by the Rivarde plaintiffs. The district court dismissed Rivarde on the grounds that the Rivarde group was seeking modification of the Jenkins remedy and could not pursue its interests in a separate lawsuit from the Jenkins case. We affirmed. Rivarde v. Missouri, 930 F.2d 641 (8th Cir.1991).
Finally, the plaintiffs defended against a group that intervened in the main action to prevent the Paseo High School from being torn down, as called for in the capital improvement plan, adopted as part of the desegregation remedy. The district court denied the Paseo intervenors' motion to adopt a "Revitalization Plan" for the Paseo High building. Order of October 10, 1990, slip op. at 1 ("Paseo Order").
The district court found that the attorney time the plaintiffs claimed in connection with these three attacks was "reasonably expended," Order of October 10, 1990, slip op. at 4, and awarded the fees. Id.
The State first objects to the award of fees plaintiffs incurred in litigating against intervenors in the main action, relying on Zipes, 491 U.S. 754, 109 S.Ct. 2732. In Zipes, a sizable Title VII action, the intervenor unsuccessfully challenged the remedy the plaintiffs and defendant had adopted in their settlement agreement. The plaintiffs then petitioned for an award of attorneys' fees against the intervenor. 491 U.S. at 757-58, 109 S.Ct. at 2734-35. The Supreme Court, balancing the equities among the various parties to a Title VII suit, 1 held that courts should only award attorneys' fees against a losing intervenor if "the intervenors' action was frivolous, unreasonable, or without foundation." Id. at 761, 109 S.Ct. at 2736.
Since Zipes considered the liability of a losing intervenor, not that of a defendant, its holding obviously does not decide the issue in this case. 2 However, the Zipes Court's balancing of the equities involved in Title VII litigation guides us in determining who should bear liability for the fees in this desegregation litigation. In deciding not to award fees against the intervenor, Zipes relied heavily on two equitable considerations: (1) that the Title VII suit would result in a great enough fee award so that awarding fees to the Title VII plaintiffs against the intervenor was "not essential" to "vindicate the national policy against wrongful discrimination," 491 U.S. at 761, 109 S.Ct. at 2736; and (2) that the "losing intervenors ... have not been found to have violated anyone's civil rights." 491 U.S. at 762, 109 S.Ct. at 2737.
Both these factors cut in the opposite direction in this case. First, given the special nature of desegregation cases, withholding from the plaintiffs the means for paying their attorneys could be devastating to the national policy of enforcing civil rights laws through the use of private attorneys general. School desegregation cases can continue for years and affect nearly everyone in the community in one way or another. Various interventions and collateral attacks are not only predictable, but inevitable in litigation affecting so many people in so many different capacities. Furthermore, a school desegregation case differs from much other litigation in that the main action does not result in a monetary recovery that might enable plaintiffs to finance a defense against collateral attacks on their judgments. The only monetary award received by the plaintiffs in a desegregation case is simply payment of their attorneys' fees, and it is inequitable to require the attorney for the class to defend against collateral attacks on the...
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