Norwood v. Harrison, WC 70-53-K.

• Decision Date: 02 March 1976
• Docket Number: No. WC 70-53-K.,WC 70-53-K.
• Citation: 410 F. Supp. 133
• Parties: Delores NORWOOD et al., Plaintiffs, v. D. L. HARRISON, Sr., et al., Defendants.
• Court: U.S. District Court — Northern District of Mississippi

410 F. Supp. 133

Delores NORWOOD et al., Plaintiffs, v. D. L. HARRISON, Sr., et al., Defendants.

No. WC 70-53-K.

United States District Court, N. D. Mississippi, W. D.

March 2, 1976.

COPYRIGHT MATERIAL OMITTED

Melvyn R. Leventhal, New York City, for plaintiffs.

Ed Davis Noble and Giles W. Bryant, Asst. Attys. Gen., Jackson, Miss., for defendants.

MEMORANDUM OPINION

KEADY, Chief Judge.

Today we write a postlude to this protracted litigation involving Mississippi's program of furnishing state-owned textbooks to private as well as public schools by ruling on plaintiffs' motion for an award of attorneys' fees for legal services rendered since commencement of the case almost six years ago. We hold that an award is mandated here by § 718 of the Emergency School Aid Act, 20 U.S.C. § 1617, and also that the Eleventh Amendment, as explicated in Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), and other cases, does not require us to declare unconstitutional this Act of Congress.

This case began as a class action challenge by black citizens, as parents of public school students in Tunica County, Mississippi, to the constitutionality of Miss.Code Ann. § 6634 et seq. (1942), a statute providing for the State's distribution of free state-owned textbooks to all school children in all elementary and secondary grades in Mississippi, whether attending public or private schools. Named as defendants were the executive secretary and members of the Mississippi State Textbook Purchasing Board. The complaint was addressed particularly to the statute's effect in providing stateowned textbooks to students attending schools alleged to be all-white or academies having racially discriminatory admission policies. Since the complaint sought to enjoin enforcement of a statute of apparent statewide application, a three-judge court was convened which upheld the Act's constitutionality. Norwood v. Harrison, 340 F.Supp. 1003 (N.D. Miss.1972) (three-judge court).

On appeal, the Supreme Court of the United States reversed, holding that the Equal Protection Clause forbade direct or indirect state aid to private segregated schools, irrespective of the purpose of the assistance or whether the state aid gave any appreciable support to the maintenance of segregated education. Norwood v. Harrison, 413 U.S. 455, 93 S.Ct. 2804, 37 L.Ed.2d 723 (1973). Recognizing that all private schools in Mississippi could not be presumed guilty of racial discrimination, the Court remanded with instructions to the district court to determine, on a school-by-school basis, the eligibility vel non of private schools in the State to receive continued state textbook aid.

After remand, the three-judge court was dissolved and the case remanded to this court to establish an appropriate certification procedure. Pursuant to the Supreme Court's directive, we conducted a school-by-school eligibility examination, completing the process in Norwood v. Harrison, 382 F.Supp. 921 (N.D.Miss. 1974). Immediately thereafter, plaintiffs filed their motion for an attorneys' fee award and submitted their itemized cost bill. Since the motion and cost bill sought an assessment against defendant state officials which, if granted, would almost surely be satisfied with state funds, serious Eleventh Amendment questions were presented. Aware that the constitutionality of a similar award was pending before the Court of Appeals for the Fifth Circuit, sitting en banc in another case from this court, Gates v. Collier, 371 F.Supp. 1368 (N.D.Miss.) aff'd, 489 F.2d 298 (5 Cir. 1973), pet. for reh. en banc granted, 500 F.2d 1382 (5 Cir. 1975), we delayed our ruling here, hoping that the difficult constitutional issues would be resolved by the higher court. Instead, the Fifth Circuit chose not to dispose of the Eleventh Amendment question and remanded Gates for further consideration in light of Edelman and Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). Gates v. Collier, 522 F.2d 81 (5 Cir. 1975) (en banc).

Without reason for further delay, we proceed now to a ruling, conscious of two major issues which demand resolution. The first is, of course, whether the Eleventh Amendment to the United States Constitution bars federal courts from making assessments of attorneys' fees and costs against an unconsenting state defendant in litigation which seeks injunctive and declaratory relief from unconstitutional state action. If the Eleventh Amendment is not found to present a bar to the award of attorney fees and taxable costs here, we must confront the problem presented by Alyeska. There, the Supreme Court invalidated the "private attorney general" concept for the award of attorneys' fees and gave notice that, except in limited circumstances, no award of attorneys' fees to prevailing litigants is proper in the federal courts without express congressional authorization. Thus, before an award may be made in this case, the legal services rendered by plaintiffs' counsel must be compensable under an Act of Congress or fall within one of the narrow exceptions to the general rule enumerated in Alyeska.

The Eleventh Amendment Issue

On its face, the Eleventh Amendment appears to present a barrier to any award of attorneys' fees (or for that matter court costs) which will ultimately be paid from the coffers of a state treasury:

"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."

This Amendment has received increased attention since the Supreme Court, in Edelman, held that a retroactive award of wrongfully withheld state welfare benefits could not be made by the federal courts, since "a suit by private parties seeking to impose a liability which must be paid from public funds in the state treasury is barred by the Eleventh Amendment." Edelman, supra, 415 U.S. at 663, 94 S.Ct. at 1355, 39 L.Ed.2d at 672. Whether an attorney fee or cost award, liability for which accrues incidental to legitimate federal court litigation, may be imposed against the state treasury is a question which has split the courts of appeals¹ and has not been finally answered by the Supreme Court.

Only recently we addressed this important question and concluded that

"where, as here, an action is brought seeking prospective injunctive and declaratory relief which has only the `ancillary effect on the state treasury' permitted by Ex parte Young and expressly approved in Edelman, expenses incident to and arising from the prosecution of such litigation, including attorneys' fees and costs, may constitutionally be assessed against state defendants. Such awards are essential to the proper functioning of the federal judicial process and ensure that the protection of the constitutional rights afforded by Ex parte Young and its progeny does not become illusory." (Footnote omitted). Gates v. Collier, 70 F.R.D. 341 (N.D.Miss.1976).

It is unnecessary to here repeat the rationale set forth in our Gates opinion, but until the Fifth Circuit speaks otherwise, we adhere to the view that attorneys' fee and cost awards are both "ancillary" and "prospective" within Edelman's meaning and are not within the bar of the Eleventh Amendment.²

The Applicability of § 718 of the Emergency School Aid Act

As noted, Alyeska has sharply restricted the bases upon which awards of attorneys' fees can be made to prevailing litigants in constitutional litigation by eliminating the "private attorney general" concept for attorney fee grants. Plaintiffs urge alternate rationales upon which an award can be premised in this case without violating the directive of the Supreme Court in Alyeska.

First, it is contended that the defendants' conduct of this litigation fits within the "bad faith, vexatiously, wantonly, or for oppressive reasons" exception recognized by Alyeska, supra, 421 U.S. at 258, 95 S.Ct. at 1622, 44 L.Ed.2d at 154, as a case in which an attorneys' fee is allowable by a federal court even without express statutory authorization. This argument is patently without merit, however, and must be rejected. As exemplified by the first holding of the three-judge district court, this case, on its merits, was not one in which well-settled constitutional principles pointed unmistakably to only one sure result which defendants unreasonably resisted. To be sure, a vigorous defense was presented in favor of the challenged statute, and the State's administration of textbook aid, but the mere fact that textbook aid, as officially administered under the Act, was ultimately adjudged to be unconstitutional as applied to segregated, private schools with racially discriminatory admission policies does not bring the defendants' defense within the "bad faith" exception recognized by Alyeska. Moreover, once the Supreme Court spoke, the defendants posed no resistance whatever to the implementation of the Court's decree or to the case-by-case evaluation which this court subsequently made. Neither do we perceive that any other judicial exception recognized in Alyeska pertains here to authorize the imposition of an attorney fee upon the opposing litigant.

Alternatively, plaintiffs urge an attorneys' fee award in this case under § 718 of the Emergency School Aid Act of 1972, 20 U.S.C. § 1617, which provides:

"Upon entry of a final order by a court of the United States against a local educational agency, a State (or any agency thereof), or the United States (or any agency thereof), for failure to comply with any provision of this chapter or for discrimination on the basis of race, color, or national origin in violation of Title VI of the Civil Rights Act of 1964, or the Fourteenth Amendment to the Constitution of the United States as they pertain to elementary and secondary education, the court, in its discretion, upon a finding

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