Partial Memorandum in Support of Intervenors Motion for Payment of Fees and Expenses

    Cv89-0360977S 

Milo Sheff, ET.AL. : Superior Court 

: Judicial District of 

VS. Hartford/New Britain 

: At Hartford 

William A. O'Neill, Et.Al. : April 24, 1995 

MEMORANDUM IN SUPPORT OF INTERVENORS MOTION FOR PAYMENT 
OF FEES AND EXPENSES PURSUANT TO 42 U.S.C. 8 1988 
  

  

I. Preliminary Statement 
  

This Declaratory Judgment action was brought on April 

28, 1989 alleging that the De Facto Segregation which exists 

in the Hartford Public School System violates the state con- 

stitutional guarantee of an equal education for all school 

children and that to correct this segregation the defendants 

which included the Governor, Commissioner of Education and 

the State Board of Education are required by state law to 

implement remedial measures which includes mandatory student 

reassignment across existing school boundaries to achieve a 

racial balance in each school and class room of between 20% 

and 32% in the city of Hartford and the 21 surrounding sub- 

urban school districts. No suburban school districts, Par- 

ent-Teacher Organizations or students in the 21 surrounding 

suburban school districts was named as a defendant. 

The legal position of both the Sheff plaintiffs and the 

Sheff defendants on the issue of the applicability of feder- 

al law to this action was identical. Both sides agreed that 

federal law had no application to either the issue of lia- 

bility or the issue of remedy requested in the Sheff case.  



  

2 

See Intervenors' Exhibit (hereinafter I.Ex.) 2, Answer at 

Fourth Special Defense (Any right to education which the 

[Intervenors] might have is a right guaranteed by state law, 

not federal law. The questions raised by the [Intervenors] are, 
  

at best, matters of state law.) and I.Ex. 5, Memorandum Op- 
  

  

posing Motion to Intervene at 2 (The proposed intervenors 
  

make only federal claims, which is not what the [Sheff] case 

is about.) 

The legal position of the Intervenors was egually clear 

that since the suburban school districts are independent 

school districts as that term is defined in Lee v. Lee Coun- 
  

Ly Board of Educ., 639 F.24 1243, 1256 (5th Cir.. 1981), with 
  

regard to remedy only, any attempt by this court to remedy 

"societal discrimination" as that term is used by Mrs. Just- 

ice O'Connor in Wygant v. Jackson Board of Educ., 476 U.S. 
  

267, 288 (1985)(0'Connor, J., concurring in part and concur- 

ring in judgment) by attempting to remove suburban school 

children from their local school districts and assigning 

them to other school districts on the basis of race for the 

purpose of racial balancing would violate the federal con- 

stitutional rights of the suburban parents and school child- 

ren under Brown v. Board of Educ., 347 U.S. 483 (1954) (Brown 
  

I) and Milliken v. Bradley, 418 U.S. 717 (1973)(Milliken I). 
  

The Intervenors had one purpose and one purpose only, to 

prevent the imposition of a remedial plan which would vio- 

late the federal constitutional rights of the suburban par- 

ents and school children in the suburban school districts. 

 



  

3 

On April 12, 1995, this court issued it's opinion in 

the Sheff case. That opinion which was a complete vindica- 

tion of the legal positions offered by the Intervenors and 

which can fairly be said to have shocked both the plaintiffs 

and defendants in Sheff, forms the basis for this Motion for 

Payment of Fees and Expenses under 42 U.S.C. § 1988. 

II. The Legal Justification for the Award of Fees & Expenses 
  

Although § 1988 is a federal statute designed to shift 

fees in favor of those who vindicate federal civil rights, 

there can be no doubt that where, as here, those federal 

civil rights are vindicated in a state court forum, § 1988 

provides for the payment of attorneys' fees and expenses at 

the direction of the state court. Maine v. Thiboutot, 448 
  

U.S. 1, 11 (1980). As the Second Circuit noted in Wilder v. 
  

Bernstein, 965 F.2d 1196 (2nd Cir.), cert. denied, U.S. ’ 
  

  

113 S.Ct. 410 (1992), "Although the statute expressly condi- 

tions the award of attorneys' fees upon the discretion of 

the court, the effect of this language has been interpreted 

to create a strong preference in favor of the prevailing 

party's right to fee shifting. Therefore, '[a] party seeking 

to enforce the rights protected by the statutes covered by 

[§ 1988], if successful, should ordinarily recover an attor- 

neys' fee unless special circumstances would render such an 

avard unjust." (citations omitted) Id4., at 1201 - 02. Under 

federal law, there can be absolutely no doubt that Inter- 

venors can recover attorneys' fees where they qualify as 

prevailing parties. Wilder v. Bernstein, supra., 965 F.2d at 
  

 



A 

  

1202; United States v. Board of Education of Waterbury, 605 

F.2d 573,876. -"77 {2nd ‘Cir. 197%}. 

This application is essentially the same as the one 

filed in United States v. Board of Education of Waterbury, 
  

supra. In that case an action was filed by the U.S. Attorney 

General alleging racial discrimination in the public schools 

of Waterbury. The defendant Board of Education entered into 

a consent decree which called for school desegregation 

thereby ending the liability aspect of the case and the par- 

ties began to draft various remedial proposals. The govern- 

ment submitted a proposal, Plan H, which called for the bus- 

ing of 65% of the Hispanic students but only 5% of the white 

students to achieve integration. A group called The South 

End Education Committee, an organization of Puerto Rican 

parents and community leaders along with several individuals 

was allowed to intervene in the case, "[fl]or the limited 

purpose of protecting the interests of the Hispanic commu- 

nity and participating in the development of remedial meas- 

ures under the consent decree." Id., at 574. Upon motion of 

the Intervenors, the court rejected Plan H and subsequently 

adopted Plan C upon finding, "[t]hat the plan 'would effect 

desegregation without disproportionately burdening any rac- 

jal group'." Id., at 575. The Intervenors then filed a mot- 

ioin for attorneys' fees and costs under § 718 of the Emer- 

gency School Aid Act of 1972, 20 U.S.C. § 1617. The district 

court denied the motion because, "[i]ntervenors were not a 

‘prevailing party' because they had not prevailed on the 

‘merits’ of the lawsuit ."wId.,.at 575.  



5 

This ruling by the district court was reversed by the 

Court of Appeals. As the Circuit Court reasoned: 

In concluding that intervenors were not a 'prevail- 
ing party' the district court rested its decision on 
the grounds that they were not a party when the consent 

decree was entered, that "in no area of the merits of 
the lawsuit did [they] prevail or succeed" and that 
while they were instrumental in opposing defendants’ 
plans, the plan ultimately adopted was not theirs. 

Intervenors entered this lawsuit to oppose a plan 
which unfairly burdened their constitutuency, and which 
was not being opposed by the government. In this they 

succeeded. They contested several later proposals, and 

worked in support of a plan which better served their 
valid interests...In light of the success of inter- 
venors in these respects, we conclude that they come 

within the meaning of the term "prevailing party". Id., 
at 576 - 77. 

The Intervenors in this case stand in the same position 

as the intervenors in the Waterbury case. Although the Sheff 
  

defendants contested liability, in this non-bifurcated pro- 

ceeding, they did not oppose the imposition of an interdis- 

trict remedial plan impacting the independent suburban 

school districts if the court found in favor of the plain- 

tiffs on the liability issue. The Intervenors herein did not 

wish to be heard on the issue of liability, their sole pur- 

pose was to "oppos2 a plan which unfairly burdened their 

constituency, and which was not being opposed by the govern- 

ment". 

Although the application in Waterbury was pursuant to 
  

a specific educational statute authorizing payment of attor- 

neys fees and expenses, in light of the Second Circuits' dec- 

ision in Wilder v. Bernstein, supra., there can be no doubt 
  

that Intervenors such as these qualify for payment of attor-  



  

6 

neys fees and expenses under 42 U.S.C. § 1988. Wilder invol- 

ved placement of children in child care facilities. The 

original parties to the action, the plaintiff Protestant 

Black children in need of care outside their homes, and the 

original defendants, City of New York and municipal offic- 

ials responsible for the City's child care system, began 

to negotiate a settlement and a formal proposal was drafted. 

At this point certain child care agencies who were not part 

of the action interposed objections to the proposed settle- 

ment. The Circuit Court's discussion of the precise status 

of the intervenors in Wilder is important in the context of 

this case. As the Circuit Court noted in its decision: 

We digress for a moment to discuss how leave to inter- 

vene came about. Although no petition for intervention 

was filed, letters, memoranda and affidavits objecting to 

the stipulation were submitted prior to the date inter- 

vention was ordered. The customery terms of either 

"plaintiff-intervenor" or "defendant-intervenor" were not 

used to refer to the intervenors. Nor does the district 

court's order set forth on what grounds and under which 

section of Fed.Civ.P. Rule 24 they were permitted entry 

into the action...The district court considered the 

intervenors "non-parties vis-a-vis the underlying consti- 

tutional claims in the lawsuit" and, despite their con- 

stitutional objections, stated the intervenors joined the 

lawsuit for the "sole purpose of objecting to the Stipu- 

lation on clinical grounds. 965 F.2d at 1199 - 1200. 

Despite their "non-party" status, because their compre- 

hensive objections had a significant impact upon the creat- 

jon of the ultimate remedy, the district court held that the 

intervenors were therefore prevailing parties entitled to an 

award of attorneys' fees and costs. Id., at 1201. In affirm- 

ing, the Circuit Court after ruling that a party may prevail 

when it vindicates rights regardless of whether there is a 

formal judgment, reasoned: 

 



7 

Actions alleging civil rights violations tradition- 

ally seek injunctive relief directly affecting not only 

the plaintiffs, but also certain non-participants anc 

less directly the public at large. In addition to per- 

mitting non-participants to protect their implicated in- 

terests, intervention furthers the goals of efficiency 

and uniformity. To forbid the shifting of attorneys' fees 

to intervenors, who could otherwise bring a separate act- 

ion later as plaintiffs alleging the same civil rights 

violations...defeats the goal of judicial economy. Hence, 

there is no reason why the present intervenors, whether 

they be styled intervenor-plaintiffs or intervenor-defen- 

‘dants, may not be prevailing parties for purposes of 

$1988, 1d4., at 1202. 

The Circuit Court then noted, "Waterbury presents ana- 
  

logous facts instructive on the resolution of the present 

cage". 14., at 1204. 

The activities of the Intervenors fall squarely within 

the Wilder rationale. The Sheff plaintiffs were seeking in- 

junctive relief. See Plaintiffs' Post Trial Brief dated 

April 19, 1993 at 108-09. The Remedial Plan offered by the 

plaintiffs would clearly impact the non-participating subur- 

ban school districts. 14. at 109-20. This remedial plan was 

not being opposed by the government. In fact, the defendant 

state officials testified in favor of the remedial plans be- 

ing put forward by the Sheff plaintiffs. See Plaintiffs’ 

Reply Brief dated August 16, 1993 at 51 (Defendants Ferandi- 

no and Tirozzi both support controlled choice plans.) The 

Intervenors could have allowed the Sheff proceedings to come 

to a conclusion and result in an interdistrict plan includ- 

ing state imposed racial balancing in the independent school 

districts and then have gone to federal court. Instead, in 

keeping with Wilder, they filed their federal action before 

this case reached its conclusion anc, after the federal  



  

8 

court refused to dismiss on the merits and denied the decla- 

ratory judgment motion without prejudice to renewal after 
  

this court rendered its decision, they intervened here 

to advise this court that its decision was subject to colla- 

teral attack in federal court and presented the reasons why 

granting the remedy requested by the Sheff plaintiffs would 

violate the Intervenors federal constitutional rights. 

The fact that after arguing their Motion to Intervene on 

December 14, 1993, the Intervenors voluntarily withdrew the 

Motion has no impact at all on this Motion for Fees. In 

Wilder, there was no clear discussion of who the intervenors 

were since there had been no motion to intervene and the 

district court described them as "non-parties", nevertheless 

both the district court and the circuit court ruled that 

they were the prevailing parties for the purposes of § 1988. 

Similarly, in cases such as Assoc. Builders & Contractors of 
  

La., Inc. v. Orleans Parish School Board, 919 F.2d 373 (5th 
  

Cir. 1990)(case dismissed as moot); Luethje v. Paevine School 
  

District of Adair County, 872 F.2d 352 (10th Cir. 1989)(vol- 
  

untary dismissal of the action); and Thomas v. Board of 
  

Trustees of Regional Comm. Colleges, 599 F.Supp. 331 (D.Conn 
  

1984) (voluntary dismissal of action), the courts have award- 

ed attorneys' fees and costs to the plaintiffs even where 

the action had been withdrawn or dismissed prior to any for- 

mal judgment based upon the finding by the court that the 

plaintiffs had been the prevailing party. As Judge Dorsey 

stated in Thomas, "A plaintiff will be considered a 'pre- 

 



9 

vailing party' entitled to such fees if the plaintiff has 

succeeded "'on any significant issue in litigation which 

achieves some of the benefit the part[y] sought in bringing 

the suit'"...[d]etermination as to whether or not a party 

has "prevailed" has been subjected to a two fold test:First, 

‘the plaintiffs] lawsuit must be causually linked to the 

achievement of the relief obtained', and second, 'the defen- 

dant must not have acted gratuitously, i.e. the plaintiff[s] 

claim[], if pressed, cannot have been frivolous, unreason- 

able, or groundless."(citations omitted) Id. at 334. 

III. The Intervenors were the "Prevailing Party". 
  

This court would be haré pressed to deny the impact of 

the actions and the legal arguments raised by the Interven- 

ors in the federal action and their Motion to Intervene 

which was clearly predicated upon the federal action. The 

legal issues they raised for the first time in both the fed- 

eral action and the Motion to Intervene are clearly reflect- 

ed in the subsequent statements and decision of this court 

in Sheff. 

1) The Sheff Parties as "Friendly Adversaries". 

The very first argument made by the Intervenors in the 

federal Memorandum in Support of Motion for Declaratory 

Judgment was that Sheff was not an adversary proceeding. The 

parties in this case, both plaintiffs and defendants, were 

acting as "Friendly Adversaries" as that term was used by 

Mr. Justice Kennedy in Missouri v. Jenkins, 495 U.S. 33, 59 
  

(1989) (Kennedy, J., concurring in part and concurring in  



  

10 

judgment). Essentially, the Friendly Adversaries in Sheff 

agreed among themselves as to what had to be done, however, 

they needed to harness the power of this court to overcome 

the resistance of the general assembly and the public. See, 

I.Ex. 7 at 10-15. The impact of this argument upon this case 

is undeniable. At the December 16, 1993 aborted first final 

arguments which occurred two days after the Intervenors Mot- 

ion to Intervene was argued and copies of the federal briefs 

and decision was presented to the court, this court engaged 

Attorney Horton in an extended discussion of the lack of ad- 

verseness in this action. This court itself noted that de- 

fendant Tirozzi had been the plaintiffs' best witness and 

that there was no dispute between the plaintiffs and the 

defendants. The real dispute lay between the parties in 

Sheff and the general assembly. The court, to its credit, 

then tried to inject adversity into this case by joining the 

general assembly offering to order them into the case that 

very day. The Friendly Adversaries, however, would have none 

of this adverseness business and convinced the court that 

joinder of the general assembly was not feasible. Neverthe- 

less, the court was painfully aware that there was a poten- 

tial constitutional taint on this record, one which the non- 

party suburban school districts would raise in defense to 

imposition of any interdistrict remedy. 

2) The Feasibility of a Collateral Challenge. 
  

The purpose of the Intervenors in going to federal 

court first was two fold. First and foremost, they wanted to 

 



11 

demonstrate in the clearest possible terms that in the wake 

  of the U.S. Supreme Court's decision in Martin Vv. Wilks, 490 

U.S. 755 (1989), the service of notice of this action upon 

the suburban school districts and their subsequent failure 

to intervene to protect their rights in this case would not 

preclude a subsequent collateral attack upon this court's 

judgment and remedy. Prior to the Motion to Intervene, the 

working procedural hypothesis of the court and the Friendly 

Adversaries was that the failure of the suburban school sys- 

tems to intervene constituted a waiver of any rights they 

might have had to collaterally challenge this court's ruling 

even if it impacted their rights. This in fact was the pre- 

Wilks rule in the Second Circuit. The Wilks decision, how- 

ever, completely vitiated this legal position. This concern 

with a successful collateral attack is clearly reflected in 

the court's comments in subsequent proceedings. During the 

September 22, 1994 status conference, the court expressed 

concern over whether the Hartford school district should be 

joined as a party defendant. During the September 28, 1994 

status conference, the court clearly expressed a desire not 

to reopen completed portions of the 5 year old file, never- 

theless, it was concerned over having its ruling overturned 

for procedural reasons and inquired again as to the adequacy 

of the notice sent to the 22 school districts involved even 

to the point of suggesting a new round of legal notices. And 

at the final arguments on November 30, 1994, the court spe- 

cifically noted for the record the federal action and that  



  

12 

the court and the parties agreed that the issues raised in 

that action would be dealt with at a later date. Clearly, 

the Intervenors interpretation and use of Wilks to open the 

door for a subsequent collateral attack became a principal 

concern when this court considered remedies which directly 

impacted the non-party school districts. 

3) The Predominance of Federal Constitutional Issues. 
  

One of the principal issues raised by the Intervenors 

in the federal case and which became part of the Motion to 

Intervene was the fact that the 14th Amendment of the U.S. 

Constitution preempts the entire area of state action and 

race. In their legal memorandum, I.Ex. 7 at 15 - 21, the 

Intervenors clearly argue that the issue of whether or not 

societal discrimination violates the state constitution is 

irrelevant to the authority of this court to redress socie- 

tal discrimination under the 14th Amendment. Even assuming 

arguendo that societal discrimination violated the state   

constitution, in the absence of de jure discrimination link- 

ed to the state, this court as a state actor is powerless to 

redress it. The Friendly Adversaries, on the other hand, 

both argued that there were no federal constitutional issues 

raised by the Sheff claims or remedies. 

On April 12,:1995, this court issued its decision in 

the Sheff case. The operative portion of that decision com- 

mences on page 60 and continues through the conclusion on 

page 72. In this section, the court focused exclusively on 

federal decisional law under the Equal Protection Clause of 

 



13 

the federal constitution. In this section, the court focused 

upon the Supreme Court opinions which were most favorable to 

the plaintiffs positions, those of Mr. Justice Douglas. Even 

Mr. Justice Douglas, whose opinions attempt to equate de 

jure and de facto segregation, recognized the limits of per- 

missible state action where the state had not contributed to 

the dual system. As the court noted at page 67: 

Justice Douglas [in Gompers v. Chase] then raised 

what he referred to as "another troublesome question", 
namely, the remedy that should be provided under equal 

protection analysis where the state is found not to be 

"implicated in the actual creation of the dual system." 

He answered his own question by stating that the only 
constitutionally appropriate "solution" in a situation 

where minority schools are not qualitatively equal to 
white schools would be to design "a system whereby the 
educational inequalities are shared by the several 
races." (emphasis added) (citations omitted) 

  

  

  

  

The court then goes on to find that the Sheff plain- 

tiffs had not met the minimum factual requirement of some 

state action, no mater how subtle, to justify any state im- 

posed remedy or solution in this case. 

The judgment of the court in Sheff is entirely consis- 

tent with the legal arguments made by the Intervenors. In 

the absence of some showing of state action, under equal 
  

protection analysis the solutions suggested by the Sheff 
  

plaintiffs and not objected to by the Sheff defendants are 

not constitutionally appropriate. This is the gravamen of 
  

the Intervenors position. 

4) The Privileges and Immunities of School Districts. 
  

Another main legal argument made by the Intervenors was 

that based upon the rationale of Milliken I, legally indep- 
   



14 

endent local school districts which had not been the cause 

of racial segregation could not be made the subject of any 

remedial action by the state. I.Ex. 7 at 30-40. The Court 

in Milliken I specifically addressed the argument made by 
  

the Detroit plaintiffs that school district lines are no 

more than arbitrary lines on a map drawn for political con- 

venience and rejected that argument in its entirety. As the 

Court stated, "Boundary lines may be bridged where there has 

been a constitutional violation calling for interdistrict 

relief, but the notion that school district lines may be 

casually ignored or treated as a mere administrative conven- 

ience is contrary to the history of public education in our 

country." Milliken v. Bradley, supra., 418 U.S., at 741-742. 
  

The Court more recently reiterated this statement in another 

case cited by the Intervenors. As the Court stated in Board 

of Education of Okla. City P. Sch. v. Dowell, U.S. 7-111 
  

S.Ct. 630, 637 (1991), "Local control over the education of 

children allows citizens to participate in decision making 

and allows innovation so that school programs can £1: local 

needs. The legal justification for displacement of local 

authority by an injunctive decree is a school desegregation 

case is a violation of the Constitution by local authori- 

ties." 

In reaching its decision in Sheff, this court did not 

cite Milliken I or Dowell. It reached the same result, how- 
  

ever, by citing another federal case, Spencer Vv. Kugler, 326 
  

F.Supp. 1235, affirmed, 404 U.S. 1027 (1072). As this court 
   



15 

stated in its decision, "[r]acially balanced municipalities 

are beyond the pale of either judicial or legislative inter- 

vention. Id., 1240" Memorandum of Decision at 71-72. Whether 

the citation is to Milliken I or to Spencer v. Kugler, the 
  

  

result is the same. Once again the court's decision directly 

paralleled the legal arguments presented by the Intervenors. 

IV. The Intervenors Should be Fully Reimbursed for 
Their Attorneys' Fees and Costs in This Case 

Turning to Judge Dorsey's two-fold test for determin- 

ing whether or not a party has "prevailed", the Intervenors 

do not believe that there is any serious question as to the 

second prong of the test, namely that the Intervenors' 

claims, if pressed, were not frivolous, unreasonable, or 

groundless. Thomas v. Board of Trustees, supra., 599 F.Supp. 
  

at 334. As to compliance with the first prong, that the 

Intervenors claims must be causually linked to the achieve- 

ment of the relief obtained, the key issue is the "provoca- 

tive" or catalytic role of the Intervenors' claims. e, 

Nadeau v. Helgemoe, 581 F.24 275, 280-81 (lst Cir. 1978). On 
  

this issue the Intervenors rely on the candor and courage of 

the court in making this decision. Did the Intervenors 

play a "provocative" or catalytic role in leading this court 

to its ultimate decision? Based upon the public statements 

of the court, the fact that the arguments urged by the 

Intervenors were entirely separate and distinct from the 

arguments raised by the Sheff defendants and the signifi- 

cance of those arguments in this court's Memorandum of Dec- 

ision, the Intervenors have no doubt of the role they played  



16 

in this litigation. They nov look to the court to confirm 

their role and grant this Motion. 

As Judge Dorsey noted in Thomas: 

Once a plaintiff is found to be a "prevailing party" 
it must be determined whether the plaintif has asserted 
any unsuccessful claims "distinctly different" from, 
i.e., based on "different facts and legal theories," 
than the successful claims...If plaintiff's successful 
and unsuccessful claims are a "common core of facts," 

or are based on "related legal theories," and if the 

results obtained are "excellent," all hours reasonably 
expended on the litigation are normally compensablz. 
500 F.Supb., at 334. 

In this case, the Intervenors results were excellent 

and all the fees and costs requested in Schedule A attached 

to the accompanying affidavit should be paid fully. With re- 

gard to the projected fees and costs related to the appeal 

of this court's decision, those estimates should be consid- 

ered the maximum and should be paid by the defendants only 

upon receipt of invoices tendered after completion of the 

legal work related to the appeal process. 

This Motion filed within 10 days of the successful 

decision of this court is timely. The fact that the Inter- 

venors did not cite either §1983 or § 1988 specifically in 

the Motion to Intervene does not in any way negate consider- 

ation of this motion at this time. In Americans United for 
  

Separation of Church and State v. School District of Grand 
  

Rapids, 835 F.2d 627 (6th Cir. 1987), the court was faced 

with the question of, "[w]hether plaintiffs who prevail in 

an action against the state authorities to vindicate rights 

secured by the Constitution must plead and rely specifically 

upon 42 U.S.C. § 1983 in order to be entitled to an award of