Tasby v. Estes

• Decision Date: 20 July 1976
• Docket Number: No. CA 3-4211-C.,CA 3-4211-C.
• Citation: 416 F. Supp. 644
• Parties: Eddie Mitchell TASBY et al. v. Dr. Nolan ESTES, General Superintendent, Dallas Independent School District, et al. Donald E. Curry et al., Intervenors.
• Court: U.S. District Court — Northern District of Texas

416 F. Supp. 644

Eddie Mitchell TASBY et al. v. Dr. Nolan ESTES, General Superintendent, Dallas Independent School District, et al.

Donald E. Curry et al., Intervenors.

No. CA 3-4211-C.

United States District Court, N. D. Texas, Dallas Division.

July 20, 1976.

Edward B. Cloutman, III, Mullinax, Wells, Mauzy & Baab, Inc., Sylvia Demarest, Director, Dallas Legal Services Foundation, Inc., Dallas, Tex., Melvyn Leventhal, New York City, Vilma S. Martinez, Mexican American Legal Defense and Educational Fund, Inc., San Francisco, Cal., and Albert H. Kauffman, San Antonio, Tex., for plaintiffs.

Warren Whitham, Spafford, Gay & Whitham, and Mark Martin, Strasburger, Price, Kelton, Martin & Unis, Dallas, Tex., for defendants.

Robert H. Mow and Robert L. Blumenthal, Carrington, Coleman, Sloman, Johnson & Blumenthal, Dallas, Tex., for Donald E. Curry et al.

N. Alex Bickley, City Atty., Dallas, Tex., for City of Dallas.

James T. Maxwell, pro se.

Martin Frost, Barber & Frost and John W. Bryant, Dallas, Tex., for Dr. E. Thomas Strom et al.

E. Brice Cunningham, L. A. Bedford, Jr., and Fred Finch, Dallas, Tex., for Metropolitan Branches of NAACP.

James A. Donohoe and G. Duffield Smith, Jr., Gardere, Porter & DeHay, Dallas, Tex., for Brinegar et al.

MEMORANDUM OPINION

WILLIAM M. TAYLOR, Jr., Chief Judge.

Before the Court is the motion of plaintiffs' attorneys, Sylvia M. Demarest and Edward B. Cloutman, III, for an award of attorneys' fees and expenses incident to the trial and entry of a final order in this school desegregation case.

The history of the desegregation of the Dallas Independent School District (DISD) reveals a long and arduous struggle. No purpose would be served by the recitation of the individual cases that were filed, tried, appealed and reversed subsequent to Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) and prior to the filing of the instant case, other than to show that the establishment of a unitary system in the DISD was not accomplished on a purely voluntary basis. Rather, the minorities in the DISD found it necessary to resort to the courts time and again in order to secure their constitutional right to equal educational opportunity and a unitary school system.

This case was filed on October 6, 1970. Pending final trial there were numerous hearings on motions to dismiss, motions for discovery, and in one instance on application to enjoin the DISD's plans for site selection and construction of new schools.¹ Trial was commenced on July 12, 1971, and a final order was entered August 2, 1971.

Both parties appealed from this 1971 order, plaintiffs contending that the remedy ordered was inadequate, and the DISD contending that the finding that vestiges of a dual school system remained was not supported by the evidence. Finally on July 23, 1975, the Fifth Circuit Court of Appeals affirmed the finding that the DISD was not operating a unitary school system in 1970-71, but reversed and remanded the student assignment portion of this Court's 1971 Order.

During this past year the parties have pursued the case with utmost diligence, expending a great deal of time on motions, planning and preparation, and hearings. These activities culminated in the entry of a Memorandum Opinion and Order on March 10, and the Final Order on April 7, 1976. The NAACP, which was allowed to intervene in the case on August 25, 1975, as well as several of the named plaintiffs acting on their own and without the advice of their counsel, have filed notices of appeal with the Fifth Circuit from April 7, 1976, final order.

This abbreviated history is recited merely to indicate that this case has been complicated and prolonged, has involved substantial preparation of the factual and the legal issues both in 1970-71 and in 1975-76, and has involved a great deal of time in court as well as outside. In the historical context of this case and the DISD's conduct with regard to school desegregation since 1954, it is clear that the services of the plaintiffs' attorneys, Sylvia Demarest and Edward Cloutman, have been necessary and even essential in bringing the DISD into compliance with the constitutional requirement of operating a unitary system, and in securing for the community the benefits arising from a school system which provides equal educational opportunity for all students.

Section 718 of the Emergency School Aid Act of 1972, 20 U.S.C. § 1617 (Supp.1973),² authorizes a federal court to award reasonable attorneys' fees in a school desegregation case where a final order has been entered, the litigation is necessary and plaintiffs were the prevailing party. In construing this statute, the Supreme Court in Northcross v. Board of Education of the Memphis City Schools, 412 U.S. 427, 428, 93 S.Ct. 2201, 2202, 37 L.Ed.2d 48 (1973) ruled that:

the successful plaintiff should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust.

In Bradley v. School Board of the City of Richmond, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974), the Court further held that, where the case is pending on appeal on the effective date of the statute, i. e., July 1, 1972, the district court can and should award attorneys' fees for services rendered prior to the effective date as well as for services rendered afterwards, unless such an award would cause "manifest injustice."

This case was clearly pending on appeal on July 1, 1972. The DISD contends, however, that only where the propriety of an attorney's fee award is pending before the court at the effective date of the statute can there be retroactive application of the statute in issue. The Court is of the opinion that the plaintiffs' prayer for attorneys' fees in the Original Complaint of 1970, coupled with the entrance of a Final Order in April, 1976, in which plaintiffs prevailed, provide ample grounds for holding that this case falls within the purview of Bradley. See also Thompson v. Madison County Board of Education, 496 F.2d 682 (5th Cir. 1974) and Brewer v. School Board of City of Norfolk, 500 F.2d 1129 (4th Cir. 1974).

The DISD suggests next that plaintiffs are not the prevailing party in this litigation. The Court finds this assertion untenable. Plaintiffs prevailed on the liability issue when the Court held on July 16, 1971, that the DISD was not operating a unitary school system. On appeal to the Fifth Circuit from the Court's Order of August 2, 1971, the United States Court of Appeals sustained the plaintiffs' claims and rejected every contention of the DISD other than faculty assignment ratios. Finally, the plan adopted by the Court on March 10, 1976, and Ordered to be implemented on April 7, 1976, and April 15, 1976, incorporated almost every precept proposed by plaintiffs for both student assignment and non-student assignment remedies.

The DISD finally contends that "special circumstances" exist which render an award of attorneys' fees unjust. Bradley, supra, 416 U.S. 696, 710, 94 S.Ct. 2006, 40 L.Ed.2d 476; Northcross, supra, 412 U.S. 427, 93 S.Ct. 2201, 37 L.Ed.2d 48 (1973). The "special circumstances" advanced by the DISD are (1) the existence of the Legal Services Corporation Act of 1974, (2) the purported waiver of the right to attorneys' fees by Legal Services, and (3) the former employment of plaintiffs' counsel by Legal Services. These contentions will be discussed in that order in the following paragraphs.

Prior to the passage of the Legal Services Corporation Act of 1974, 42 U.S.C. §§ 2996 et seq., Legal Services was funded pursuant to provisions of the Economic Opportunity Act (EOA) of 1964, 42 U.S.C. § 2701 et seq. Neither the EOA, nor any amendments...