Spain v. Mountanos

• Decision Date: 21 October 1982
• Docket Number: No. 81-4173,81-4173
• Citation: 690 F.2d 742
• Parties: Johnny L. SPAIN, et al., Plaintiffs-Appellees, v. Louis MOUNTANOS, et al., Defendants, and Kenneth Cory, Controller, of the State of California, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 742

690 F.2d 742

Johnny L. SPAIN, et al., Plaintiffs-Appellees, v. Louis MOUNTANOS, et al., Defendants and Kenneth Cory, Controller, of the State of California Defendant-Appellant.

No. 81-4173.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 15, 1982.

Decided Oct. 21, 1982.

Gordon Zane, San Francisco, Cal., for defendant-appellant.

Paul Halvonik, Halvonik & Halvonik, Berkeley, Cal., for plaintiffs-appellees.

Appeal from the United States District Court for the Northern District of California.

Before GOODWIN, FLETCHER and POOLE, Circuit Judges.

POOLE, Circuit Judge.

This is an appeal by the Controller of the State of California, Kenneth Cory, from an order of the district court directing him to issue a warrant on the State Treasurer for payment of attorney's fees owed to appellees as the prevailing party under 42 U.S.C. § 1988. The district court issued the order after the State legislature refused to appropriate the money for the award. In this appeal Cory claims that the district court erred in invoking its equitable authority under Rule 70 of the Federal Rules of Civil Procedure to enforce the judgment, that State law prohibits the Controller from taking the action the court directed, and that the district court erred in awarding attorney's fees expended in collecting the original award as well as interest on the award. We affirm.

I. FACTS

Appellees brought this action in 1973 alleging unconstitutional conditions of confinement at San Quentin State Prison. After a lengthy trial, the district court entered a broad ranging injunction against certain prison practices. Spain v. Procunier, 408 F.Supp. 534 (N.D.Cal.1976). On appeal this court affirmed in part and reversed in part. Spain v. Procunier, 600 F.2d 189 (9th Cir. 1979). Upon remand, the parties entered into an agreement of settlement which included a provision that the defendants would pay fees to appellees' attorneys of $70,000.

Shortly afterwards, the State Attorney General submitted a claim to the State Board of Control requesting that the funds necessary to pay the attorney's fees be included in the next omnibus appropriations act. The Board of Control in turn submitted the claim to the State legislature. The California Assembly voted an appropriation to satisfy the award, but the California Senate specifically refused to do so, and a Conference Committee deleted the item from the money bill. Both houses approved an appropriations bill without the attorney's fees.

Appellees then filed a motion in the district court for orders adding certain State officials as party defendants and compelling them to pay the $70,000. On March 10, 1981, the district court entered an order making Kenneth Cory, Jesse Unruh, Treasurer of the State of California, and Ruth Rushen, Director of the California Department of Corrections, additional parties to the main action and ordering them served as parties. The order directed Rushen to submit a requisition within 30 days to Cory for the drawing of a warrant on the State Treasurer for the original $70,000 in attorney's fees, together with 8% interest from the date of the original order approving the settlement, and for another $6,318.00 attorney's fees expended in collecting the main award. It then directed Cory to issue the warrant to the State Treasurer, who was to pay the sums indicated to appellees' attorneys "out of funds appropriated for the support and operation of the California Department of Corrections or any other funds subject to the control of the State Treasurer." Cory took this appeal and shortly thereafter the district court stayed further proceedings pending the outcome here. ¹

II. The Order to State Officials

As the district court recognized, appellees are entitled to attorney's fees as the prevailing parties under 42 U.S.C. § 1988. In Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978), the Supreme Court held that the Eleventh Amendment does not bar an attorney's fee award against a state under that statute. In particular, the Court concluded that in enacting section 1988, Congress intended to invoke its enforcement power under section 5 of the Fourteenth Amendment to remove the states' protection under the Eleventh Amendment. 437 U.S. at 694, 98 S.Ct. at 2575; see also Maher v. Gagne, 448 U.S. 122, 132, 100 S.Ct. 2570, 2576, 65 L.Ed.2d 653 (1980). The Court also concluded that such an award was appropriately directed against the State even though the State or one of its departments was not named as a party, since the plaintiffs' suit was "for all practical purposes, (brought) against the State itself." 437 U.S. at 700, 98 S.Ct. at 2578.

The Attorney General of California, who has represented appellant Cory throughout this proceeding, generally recognizes the impact of Hutto v. Finney. ² However, he argues that appellees' exclusive means of enforcing the award is through a writ of execution pursuant to Rule 69 of the Federal Rules of Civil Procedure. Therefore he concludes that the court acted improperly in invoking its equitable authority under Rule 70 to attempt to enforce the judgment.

Ordinarily, the equitable remedies provided under Rule 70 are not appropriate in enforcing a monetary judgment. See Gabovitch v. Lundy, 584 F.2d 559, 560 n.1 (1st Cir. 1978); 7 J. Moore, Federal Practice P 69.03(2) (2d ed. 1978). However, under the extraordinary circumstances here where the judgment is against a state, which refuses to appropriate funds through the normal process provided by state law, the district court should not necessarily be reduced to satisfying a judgment through the cumbersome procedure of attempting to execute against state property or bank accounts. ³ It may, instead, pursue any remedy provided in Rule 69 or Rule 70 to enforce the award, including ordering state officials to pay the claim.

The legislative history of section 1988 supports this conclusion. The Senate Report on section 1988 states that the award should "be collected either directly from the official, from funds of his agency or under his control, or from the state or local government." S.Rep.No.1011, 94th Cong., 2d Sess. 5 reprinted in 1976 U.S.Code Cong. & Ad.News 5908, 5913. There is no suggestion in the report that a writ of execution is the only means of enforcing the award. Accordingly, those courts which have addressed this issue under circumstances similar to those involved here have specifically held that a district court may invoke its equitable authority under Rule 70 to enforce an attorney's fee award under section 1988 against the state. See Gary W. v. Louisana, 622 F.2d 804, 806-07 (5th Cir. 1980), cert. denied, 450 U.S. 994, 101 S.Ct. 1695, 68 L.Ed.2d 193 (1981); Gates v. Collier, 616 F.2d 1268, 1271 (5th Cir. 1980); see also Gilbert v. Johnson, 490 F.2d 827, 829 (5th Cir. 1970) (approving use of Rule 70 to enforce back pay award against the Veterans Administration.)

The Attorney General contends also that the order here is improper because it compels the Controller to act in violation of State law. The California Constitution provides that "money may be drawn from the Treasury only through an appropriation made by law." Cal.Const. Art. XVI, § 7 (West 1982). Section 4.5 of the 1980-81 California State Budget Act states that no funds appropriated by the Act may be used to pay an attorney's fee award unless the award is "specifically authorized and set forth in an item or section of this act or ... expressly authorized by a statutory provision other than Section 1021.5 of the Code of Civil Procedure." 1980 Cal.Stat. ch. 510, § 4.5. Finally, section 12440 of the California Government Code (West 1980) prohibits the Controller from drawing warrants on the treasury unless "authorized by law, and unless unexhausted specific appropriations provided by law are available to meet it." The Attorney General therefore concludes that since the legislature here specifically refused to pass the appropriation for the attorney's fees award, as required by the 1980 Budget Act, section 12440 prohibits the Controller from complying with the district court's order by issuing a warrant without violating State law.

The Attorney General's argument represents "a delicately wrought chain of apparent logic that leads to an ineluctably wrong conclusion." Gary W. v. Louisiana, 441 F.Supp. 1121, 1125 (E.D.La.1977), aff'd., 622 F.2d 804 (5th Cir. 1980). Under the Supremacy Clause of the United States Constitution, a court, in enforcing federal law, may order state officials to take actions despite contravening state laws. Thus in Washington v. Washington State Commercial Passenger Fishing Vessel Association, 443 U.S. 658, 99 S.Ct. 3055, 61 L.Ed.2d 823 (1979), this court had affirmed a district court order directing the Washington State Department of Fisheries to adopt regulations protecting Indian fishing rights. In a parallel State proceeding, the Washington Supreme Court had held that the Fisheries Department had no authority under State law to take the steps directed by the district court. Therefore the Washington Court concluded that the order was void since the federal court did not have the power to order state officials "to do any act which they were not authorized to do by laws of the state from which they derive their power." Puget Sound Gillnetters Association v. Moos, 88 Wash.2d 677, 684, 565 P.2d 1151, 1155 (1977).

The Supreme Court granted certiorari in both the State and federal court proceedings, affirming this court's decision and vacating the decision of the Washington Supreme Court. The Court specifically rejected the State court's conclusion regarding the State officials' capacity to act under State law:

State-law prohibition against compliance with the District Court's decree cannot survive the command of the Supremacy Clause of the United States Constitution. Cooper v. Aaron, 358 U.S. 1 (78 S.Ct. 1401, 3 L.Ed.2d 5); Ableman v. Booth, 21 How. 506 (16 L.Ed....