Motion to Vacate Judgment

     [||1cb3a779-10b4-4333-a1c0-a797918c31c4||] IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF MISSISSIPPI 

WESTERN DIVISION 

DELORES NORWOOD, et al., 

PLAINTIFFS 

Vv. CIVIL ACTION 

NO. WC 70-53-K 

D. L. HARRISON, et al., 

DEFENDANTS 

MOTION TO VACATE JUDGMENT 
  

NOW COME defendants, by their attorneys, and pursuant 

to Rule 4(a) of the Federal Rules of Appellate Procedure, and Rule 

59(e) of the Federal Rules of Civil Procedure, and respectfully move 

the Court to vacate its judgment of January 3, 1978, and for grounds 

therefor state as follows: 

1. The Final Judgment entered by this Court on January 3, 

1978 makes it clear that the money judgment is to be paid by defendants 

in their official, not individual, capacities, and that such judgment 

will be paid by funds of the State of Mississippi or of the Mississippi 

State Textbook Purchasing Board, an agency of the State of Mississippi. 

Defendants have contended throughout the course of this litigation and 

continue to contend, that neither § 718 of the Emergency School Act of 

1972, 20 U.S.C. § 1617, nor the Civil Rights Attorney's Fees Award Act 

 



  

of 1976, P.L. 94-559, operates to abrogate the immunity of the State 

or its agencies to monetary judgments. 

2. The question of whether the Civil Rights Attorney's Fees 

Award Act of 1976 can be properly construed to abrogate the Eleventh 

Amendment immunity of the States to a monetary judgment for attorney's 

fees is currently under consideration by the Supreme Court of the United 

States. Hutto v. Finney, No. 76-1660. The Supreme Court granted 

certiorari in this case on October 17, 1977. Two of the questions pre- 

sented are whether the Act authorizes the awarding of attorney's fees 

to be paid by a State, which was not a party to the suit, and whether 

the Eleventh Amendment absolutely bars the awarding of attorney's fees 

to be paid by a State. The Petitioners in Hutto, being Arkansas 

prison officials, filed their brief on the merits in the Supreme Court 

on or about December 1, 1977. The brief of Respondents was due to 

be filed on January 2, 1978. The State of Mississippi filed an amicus 

curiae brief in support of the Petitioners in Hutto. To the best of our 

knowledge, the Supreme Court has not yet set the date for oral argu- 

ment in Hutto, but it is anticipated that the case will be set for argu- 

ment within the next 8 to 10 weeks. Counsel for defendants has a 

reasonable belief and expectation that the Supreme Court might decide 

Hutto prior to the conclusion of its current term. 

3. Counsel for defendants is of the opinion, based on ex- 

haustive research of the legal and constitutional issues presented by 

these attorney fees award cases, that the decision of the Supreme 

Court in Hutto will definitively settle the question of State liability to 

monetary judgments for the payment of these attorney's fees. 

 



  

4, Defendants submit that it would be in the interests of 

judicial economy, equity and justice for this Court to vacate its 

Final Judgment of January 3, 1978 and defer entry of a final judgment 

in this cause until the Supreme Court has disposed of Hutto v. Finney. 

If this case is appealed to the United States Court of Appeals for the 

Fifth Circuit in its present posture and the parties submit briefs to 

the Court of Appeals based on the present status of the law, the parties 

would then, in all likelihood be required to prepare and submit supple- 

mental briefs to the Court of Appeals after the decision of the Suprme 

Court in Hutto v. Finney. 

Respectfully submitted, 

A. F. SUMMER, ATTORNEY GENERAL 

STATE OF MISSISSIPPI 

PETER M. STOCKETT, JR. 

ASSISTANT ATTORNEY GENERAL 

= ts Theol TT 
PETER M. STOCKETT,: JR. 
    

Office of the Attorney General 

State of Mississippi 

P. O. Box 220 

Jackson, Mississippi 39205 

Telephone: (601) 354-7130 

 



  

CERTIFICATE OF SERVICE 
  

This is to certify that I, Peter M. Stockett, Jr., Assistant 

Attorney General of the State of Mississippi, have this day mailed by 

the United States mail, postage prepaid, a true and correct copy of 

my Motion to Vacate Judgment to: 

Melvyn R. Leventhal, Esq. 

10 Columbus Circle, Suite 2030 

New York, New York 10019 

Jack Greenberg, Esq. 

10 Columbus Circle, Suite 2030 

New York, New York 10019 

Pred L. Banks, Jr... Esq. 

538 1/2 North Farish Street 

Jackson, Mississippi 39202 

This the {y4) day of January, 1978. 

    npe——— 

3 Lis 

STOCKETT, JR.        PETER M. [||1cb3a779-10b4-4333-a1c0-a797918c31c4||]