Slawik v. State

• Decision Date: 30 January 1984
• Citation: 480 A.2d 636
• Parties: Melvin A. SLAWIK, Plaintiff-Appellant, Cross-Appellee, v. STATE of Delaware and Pierre S. Dupont, IV, in his official capacity as Governor of the State of Delaware, Defendants-Appellees, Cross-Appellants. . Submitted:
• Court: United States State Supreme Court of Delaware

Page 636

480 A.2d 636

Melvin A. SLAWIK, Plaintiff-Appellant, Cross-Appellee, v. STATE of Delaware and Pierre S. Dupont, IV, in his official

capacity as Governor of the State of Delaware,

Defendants-Appellees, Cross-Appellants.

Supreme Court of Delaware.

Submitted: Jan. 30, 1984.

Decided: July 18, 1984.

Upon appeal from Superior Court. Reversed.

Jack B. Jacobs of Young, Conaway, Stargatt & Taylor, Wilmington, for plaintiff-appellant, cross-appellee.

John A. Parkins, Jr., Chief of Appeals Division, Dept. of Justice, Wilmington, for defendants-appellees, cross-appellants.

Before McNEILLY, HORSEY and MOORE, Justices.

HORSEY, Justice:

This appeal concerns an attorney's fee award under the Civil Rights Attorney's Fees Awards Act of 1976 (the "Act"), 42 U.S.C. § 1988. Appellant challenges the adequacy of the fee award and appellee-State cross appeals contesting the grant of any award under § 1988.

Melvin A. Slawik, plaintiff-appellant, while holding the elected office of County Executive for New Castle County, was convicted in March, 1976 in the United States District Court of Delaware of making false declarations before a Federal Grand Jury in violation of 18 U.S.C. § 1623. Two days later and prior to plaintiff's sentencing, the Governor of Delaware, acting under the provisions of Article XV, § 6 of the Delaware Constitution, ¹ removed Slawik from his office as County Executive, effective immediately. Six weeks after his removal from office, Slawik was sentenced in Federal Court; but following appeal, the United States Court of Appeals for the Third Circuit reversed Slawik's convictions. United States v. Slawik, et al., 3d Cir., 548 F.2d 75 (1977). Slawik then filed suit for damages in Superior Court against the State of Delaware, the former Governor of Delaware, and others. Plaintiff contended that he had been deprived of a "property" interest by not being permitted to complete his full term of office as County Executive. The Superior Court granted summary judgment for the defendants, holding that Slawik was "convicted" at time of his removal from office and hence was not wrongfully removed. Slawik v. Folsom, et al., Del.Super., 389 A.2d 775 (1978). On appeal, this Court reversed, ruling that Slawik's removal from office "on March 11, 1976, was invalid when effectuated, but became valid nunc pro tunc with the imposition of sentence on April 21, 1976." Slawik v. Folsom, Del.Supr., 410 A.2d 512, 514 (1979). ²

On remand, the Superior Court awarded Slawik's counsel a fee under 42 U.S.C. § 1988. Section 1988 provides that in any action to enforce § 1983, the Court may allow the prevailing party a reasonable attorney's fee as part of the costs. Finding that plaintiff Slawik had "prevailed" on the limited issue of premature removal from office, Superior Court (by unreported decision) granted Slawik's counsel a percentage of the monies recovered plus costs. ³

Plaintiff appeals from Superior Court's denial of his attorney's claim for a fee award equaling twice the "lodestar" or market value of time expended plus the value of the time required to prosecute the fee application. ⁴ The State, by cross appeal, argues that Superior Court was not authorized by § 1988 to award any fees against the State defendants in the absence of either: (1) a judicial determination that appellant's federal constitutional rights had been violated; or (2) a finding that plaintiff had presented a § 1983 claim which was sufficiently substantial to support federal jurisdiction under the reasoning of Hagans v. Lavine, 415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974).

The question presented is whether plaintiff's allegation of a deprivation of a Fourteenth Amendment "property" right in continuing in public office satisfies the substantiality test of Hagans v. Lavine. We find plaintiff to have not presented a constitutionally cognizable claim. Therefore, we reverse Superior Court's award of counsel fees to plaintiff; deny the appeal; grant the cross appeal; and hold that the Civil Rights Attorney's Fee Awards Act of 1976 does not authorize any award of fees in this case.

I

Under the so-called "American Rule," the remedy of fee shifting is ordinarily not available to a prevailing litigant absent statutory authority to award costs, including counsel fees. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). ⁵ Appellant seeks to invoke the congressional sanction of the Civil Rights Attorney's Fees Awards Act of 1976, 90 Stat. 2641, which provides 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.

42 U.S.C. § 1988.

Presumably to bring § 1988 into play, appellant has alleged that his removal from office by the Governor of Delaware denied him a Fourteenth Amendment "property" interest in completing his four-year term as County Executive. ⁶ The complaint claims that this deprivation violates both 42 U.S.C. § 1983 and the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Since suit is brought to enforce § 1983 rights, continues appellant, § 1988 authorizes recovery of fees for appellant's attorney.

We find appellant's argument to be flawed in two fundamental respects. First, any loss, however grievous, visited upon a person by the State is not, without more, sufficient to invoke the procedural protections of the Due Process Clause. Meachum v. Fano, 427 U.S. 215, 225, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1976). The determining factor is the nature of the interest involved, not its weight. Board of Regents v. Roth, 408 U.S. 564, 570-71, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972).

Second, § 1983 imposes civil liability only upon one

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....

(emphasis added). Section 1983 does not itself create substantive rights. Rather, the statute provides the method for vindicating federal rights elsewhere conferred either by the United States Constitution or the federal statutes therein described. See Maine v. Thiboutot, 448 U.S. 1, 9-10, 100 S.Ct. 2502, 2506-07, 65 L.Ed.2d 555 (1980); Maher v. Gagne, 448 U.S. 122, 129 n. 11, 100 S.Ct. 2570, 2574 n. 11, 65 L.Ed.2d 653 (1980); Baker v. McCollan, 443 U.S. 137, 144 n. 3, 99 S.Ct. 2689, 2694 n. 3, 61 L.Ed.2d 433 (1979). If, however, a party "prevails" solely on an issue of State law, the question becomes whether disposition of the case on State law enabled the Court to avoid decision on "substantial" constitutional questions. ⁷ See Maher v. Gagne, supra, 448 U.S. at 128, 100 S.Ct. at 2574.

We address these points in reverse order.

II

A

The legislative history to § 1988 makes clear that fees may be awarded in cases where a pendent constitutional claim is raised, even if the claim on which the party prevailed is wholly statutory and is one for which fees cannot be awarded under the Act. The Report of the Committee on the Judiciary of the House of Representatives accompanying H.R. 15460 states:

To the extent a plaintiff joins a claim under one of the statutes enumerated in H.R. 15460 with a claim that does not allow attorney fees, that plaintiff, if it prevails on the non-fee claim, is entitled to a determination on the other claim for the purpose of awarding counsel fees. Morales v. Haines, 486 F.2d 880 (7th Cir.1973). In some instances, however, the claim with fees may involve a constitutional question which the courts are reluctant to resolve if the non-constitutional claim is dispositive. Hagans v. Lavine, 415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974). In such cases, if the claim for which fees may be awarded meets the "substantiality" test, see Hagans v. Lavine, supra; United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), attorney's fees may be allowed even though the court declines to enter judgment for the plaintiff on that claim, so long as the plaintiff prevails on the non-fee claim arising out of a "common nucleus of operative fact." United Mine Workers v. Gibbs, supra, at 725, 86 S.Ct. at 1138.

H.R.Rep. No. 94-1558, p. 4, n. 7 (1976).

The substantiality doctrine of Hagans v. Lavine requires that petitioner establish a constitutional claim of sufficient substance to support jurisdiction in a federal court. To that end, pendent jurisdiction is said to exist whenever: (1) there is a claim "arising under [the] Constitution, the laws of the United States, and Treaties made, or which shall be made, under their authority ...," U.S.Const., Art. III, § 2; and (b) that claim, coupled with the pendent State claim, comprises but one constitutional "case" that derives from a common nucleus of operative fact. United Mine Workers of America v. Gibbs, 383 U.S. at 725, 86 S.Ct. at 1138.

It is well settled, however, that District Courts are without power to adjudicate claims otherwise within their jurisdiction if they are "so attenuated and unsubstantial as to be absolutely devoid of merit," Newburyport Water Co. v. Newburyport, 193 U.S. 561, 579, 24 S.Ct. 553, 557, 48 L.Ed. 795 (1904); "wholly insubstantial," Bailey v. Patterson, 369 U.S. 31, 33, 82 S.Ct. 549, 551, 7 L.Ed.2d 512 (1962); or "obviously frivolous," Hannis Distilling Co. v. Baltimore, 216 U.S. 285, 288, 30 S.Ct. 326, 327, 54 L.Ed. 482 (1910). Here, appellant's allegation of a constitutional deprivation must not be too insubstantial to confer subject matter jurisdiction on a federal court. See Maher v....