Hutto v. Finney Brief of Respondents
Public Court Documents
January 1, 1978
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Brief Collection, LDF Court Filings. Hutto v. Finney Brief of Respondents, 1978. 3fdcedaf-b89a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/2b139c2f-8587-44fd-8d9c-acb7c376ce9f/hutto-v-finney-brief-of-respondents. Accessed April 27, 2025.
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IN THE
SUPREME COURT OF THE UNITED STATES
October Term., 1977
No. 76-1660
TERRELL DON HUTTO ., et al,
V Petitioners,
ROBERT
- v -
FINNEY, et al
On Writ of Certiorari to the United
States Court of Appeals for the
Eighth Circuit
BRIEF FOR RESPONDENTS
January 1978.
PHILIP E. KAPLAN
1650 Tower Building
Little Rock, Arkansas 72201
JACK HOLT, JR.
1100 North University
Evergreen Place
Little Rock, Arkansas
PHILIP E. McMATH
McMath, Leatherman & Woods, P.A
711 West Third Street
Little Rock, Arkansas 72201
JACK GREENBERG
JAMES M. NABRIT III
CHARLES STEPHEN RALSTON
STANLEY BASS
ERIC SCHNAPPER
LYNN WALKER
10 Columbus Circle
New York, New York 10019
t
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TABLE OF CONTENTS
p . g 9 , e
Opinions Below........... .... ................... 2
Questions Presented ......... 3
Constitutional and Statutory
Provisions Involved............. 4
Statement ........................ 6
A. Introduction............................ 6
B. Holt I and Previous Prison Suits....... 7
C. Holt II - Litigation During 1970
and 1971.................. 11
D. Holt III - Litigation in 1973 and
1974............................... 16
E. Graves v. Lockhart - 1973-1974
Proceedings............. 18
F. Finney v. Hutto - Proceedings
1975-1077................ 19
Summary of Argument............................... 34
Argument .......................................... 38
I. The District Court Properly
forbade the use of indefinite
punitive segregation as part of
its remedy for the unconstitutional
conditions in the punitive
facilities............................ 38
II. The District Court had the authority
to award counsel fees against the
Department of Corrections............ 58
A. Counsel fees may be awarded against
State officials or agencies which have
acted in bad faith........................... 58
B. The Civil Rights Attorney's Fees
Awards Act of 1976 Authorized Awards
of Counsel Fees Against States in
Actions Under 42 U.S.C. §1983..... 72
Conclusion..................................... 88
Appendix ................. 1A
i
Table of Cases
Alyeska Pipeline Service Co. v. The WildernessAlyeska Pipeline Service Co. v. The Wilderness
Society, 421 U.S. (1975) .................... 31, 33,35, 35,59,
60, 62, 72, 75
Bell v. School Board of Powhatan County, 321
F . 2d 494 (4th Cir. 1963) ................................. 58
Berenyi v. Immigration Service, 385 U.S. 630 (1967) ....... 60
Bitzer v. Matthews, No. 75-283, decided sub nom............. 62
Bradley v. Richmond School Board, 416 U.S. 696
(1974) .............................................. 37, 59,81,85,
86,87
Brandenburger v. Thompson, 494 F.2d 885 (9th Cir. 1974).... 62
Chisholm v. Georgia, 2 Dali. (2 U.S.) 419 (1798) ........... 63
City of Kenosha v. Bruno, 412 U.S. 507 (1973) .............. 76
Class v. Norton, 505 F.2d 123 (2d Cir. 1974) ............... 62
Coker v. Georgia, 53 L. Ed. 2d 982 (1977) 41
Costello v. Wainwright, 51 L. Ed. 2d 372 (1977) 39,44
Courtney v. Bishop, 409 F.2d 1184 (8th Cir. 1969) 8,9
Dick Press Guard Mfg. Co. v. Bowen, 229 F.193 (N.D.
N.Y.), aff'd, 229 F.575 (2d Cir.) cert, denied,
241 U.S. 671 (1915) ....................................... 75
Doe v. Poelker, 515 F.2d 541 (8th Cir. 1975) ............... 58
Eagle Mfg. Co. v. Miller, 41 F. 351 (S.D. Iowa 1890) ...... 75
Edelman v. Jordan, 415 U.S. 651 (1974) .............. 31, 61, 62,64,
65,66,67,70,
71, 79, 84
Employees v. Missouri Public Health Dept., 411 U.S.
279 (1973) ............................................ 63,83,84
Estelle v. Gamble, 50 L. Ed. 2d 251 (1977) ............. 34, 38,39,
40,43
Fairley v. Patterson, 493 F.2d 598 (5th Cir. 1974) ......... 59
Fairmont Creamery Company v. State of Minnesota, 275
U.S. 70 (1927) .................................... 33,35, 65, 79
Pages
ii
c t '
Table of Cases (Continued)
Pages
Finney v. Arkansas Board of Corrections, 505
F . 2d 194 (8th Cir. 1974) 2,6
Finney v. Hutto, 548 F .2d 740 (8th Cir. 1977) 32
Finney v. Hutto, 410 F. Supp. 251 (E.D. Ark.
1976) ................................................. Passim
Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) ...... 33,36,62,78
79,81,82,84
Flanders v. Tweed, 15 Wall (82 U.S.) 450 (1873) ...... 70
Fleischman Distilling Corp. v. Maier Brewing Co.,
388 U.S. 714 (1967) .................................. 68
Ford Motor Co. v. Department of Treasury, 323 U.S.
459 (1945) ............................................ 63
Fowler v. Schwarzwalder, 498 F.2d 143 (8th Cir.
1974) ................................................. 87
Goldberg v. Kelly, 397 U.S. 254 (1970) ................ 64
Graham v. Richardson, 403 U.S. 365 (1971) ............. 64
Gates v. Collier, 501 F .2d 1291 (5th Cir. 1974) 40,41,43,45,54
Graver Mfg. Co. v. Linde Co., 336 U.S. 271 (1949) ..... 60
Graves v. Lockhart, (E.D. Ark.) Civil Nos. PB-
74-C-81 .............................................. 2,24,26
Green v. School Board of New Kent County, 3S1 U.S.
430 (1968) 48
Gregg v. Georgia, 428 U.S. 153 (1976) ............ 38,41,42,54
Ex parte Young, 209 U.S. 123 (1908) ................. 15,63,67
Grimes v. Chrysler Motors Corp., __ F.2d __
(2d Cir. 1977) 75
Hagood v. Southern, 117 U.S. 52 (1886) . . 7 ............ 63
Hall v. Cole, 412 U.S. 1 (1973) ....................... 58
Hallmark Clinic v. North Carolina Dept, of Human
Resources, 519 F.2d 1315 (4th Cir. 1975) ........... 62
Hans v. Louisiana, 134 U.S. 1 (1890) 63
iii
%
Table of Cases (Continued)
Papes
Kankel v..Chicago, etc., R.R., 284 U.S. 444 (1932).. 65
Holt v. Hutto, 363 F. Supp. 194 (E.D. Ark. 1973) ,
reversed in part sub nom........................... 2,16
Holt v. Sarver, 300 F. Supp. 825 (E.D. Ark.
1969) .............................................. 2,9
Holt v. Sarver, 309 F. Supp. 362 (E.D. Ark. 1970),
affirmed and remanded, 442 F .2d 304 (8th Cir.
1971) .............................................. 2,11
Holt v. Sarver, 442 F .2d 304 (8th Cir. 1971) ...... 15
Illinois v. Allen, 397 U.S. 337 (1970) ............. 59
Imber v. Pachtman, 424 U.S. 409 (1976) ............. 83
Ingraham v. Wright, 51 L.Ed.2d 711 (1977) .......... 38,43
Jackson v. Bishop, 268 F. Supp. 804 (E.D. Ark.
1967) .............................................. 7,8,9
Jordan v. Fusari, 496 F.2d 646 (2d Cir. 1974) ..... 62
Jordan v. Gilligan, 500 F.2d 701 (6th Cir.
1974) .............................................. 62
Kelly v. Brewer, 525 F.2d 394 (8th Cir. 1975) ..... 29,30
LaReau v. MacDougal, 473 F .2d 974 (2d Cir. 1972)
cert, den., 414 U.S. 878 (1973) .................. 54
Matter v. Yamashita, 327 U.S. 1 1945) ............. 60
Maynard v. Wooley, __ F. Supp. __ (D.N.N.Y. 1977)... 75
McEnteggart v. Cataldo, 451 F.2d 1109 91st Cir.
1971) .............................................. 59
Milburn v. Huecker, 500 F .2d 1279 (5th Cir. 1974) ... 62
Milliken v. Bradley, 53 L.Ed.2d 745 (1977) ___ 35,53,64,70,76
Monnell v. Department of Social Services
No. 75-1914 ........................................ 76
Monroe v. Pape, 365 U.S. 167 (1961) ................ 76
Named Individual Member v. Texas Highway Dept.,
496 F . 2d 1017 (5th Cir. 1974) .................... 62
Newman v. Alabama, 559 F.2d 283 (5th Cir. 1977). .40,42,44,56,82
Newman v. Piggie Park Enterprises, 390 U.S. 400
1968) .............................................. 58,59
IV
Ocean Accident & Guarantee Corp. v. Felgemaker, 143
F . 2d 950 (6th Cir. 1944) ................................. 75
Pierson v. Ray, 386 U.S. 547 (1967) ......................... 83
Pittman v. Arkansas Department of Corrections,
PB-72-C-15 ................................................ 76
Procunier v. Martinez, 416 U.S. 396 (1974) ................. 40
F. D. Rich v. Industrial Lumber Co., 417 U.S. 116
(1974) 58,59
Richardson v. Communications Workers of America, 530
F . 2d 126 (8th Cir. 1976) 58
Robinson v. California, 370 U.S. 660 (1962) ......... 38,41,53,82
Rolax v. Atlantic Coast Line R. Co., 186, F.2d 473
(4th Cir. 1951) 58
Runyon v. McCrary, 427 U.S. 160 (1976) ................ 58, 60,72
Russell v. Arkansas Department of Corrections,
PB-72-C-15 5 ............................................... 76
Scheuer v. Rhodes, 416 U.S.232 (1974) .................... 76,83
Service v. Wilderness Society, 421 U.S. 240 (1975) ......... 70
Skehan v. Board of Trustees, 503 F.2d 31 (3d Cir. 1974) .... 62
Sims v. Amos, 340 F. Supp. 691 (N.D. Ala. 1972) ............59, 61
Sostre v. McGinnis, 442 F.2d 178 (1971) ............ 40,43,49,54
Souffront v. Compagnie des Suceries, 217 U.S.
475 (1910) ........................................... 36,75, 76
Souza v. Travisono, 512 F.2d 1137 (1st Cir. 1975)........... 62
Stanton v. Bond, No. 75-1413 ................................ 62
Talley v. Stephens, 247 F. Supp. 683 (E.D. Ark. 1965)...... 7,8
Taylor v. Perini, 501 F.2d 899 (6th Cir. 1974) ............. 62
Thonen v. Jenkins, 517 F.2d 3 (4th Cir. 1975) .............. 62
Trop v. Dulles, 356 U.S. 86 (1958) .......................... 38
Trustees v. Greenough, 105 U.S. 527 (1882) ................. 70
*
Table of Cases (Continued)
Pages
v
Table of Cases (Continued)
Universal Oil Products Co. v. Root Refining Co.,
328 U.S. 575 (1946) ............................... 59
Vaughn v. Atkinson, 369 U.S. 527 (1962) 58,59
Weems v. United States, 217 U.S. 349 (1910)......... 58
Williams v. Edwards, 547 F.2d 1206 (5th Cir. 1977).. 44
Wolff v. McDonnell, 418 U.S. 539 (1974) 21,52
Wood v. Strickland, 420 U.S. 308 (1975) 83
Wright v. McMann, 321 F. Supp. 127 (N.D.N.Y. 1970)
aff'd. 460 F .2d 126 (2d Cir. 1972), cert, den.
409 U.S. 885 (1972)................................ 42, 52
Pages
- vi -
Constitutional Provisions
Eighth Amendment .......................................... 34,38
Eleventh Amendment ........................................ 2,35,61
Fourteenth Amendment ...................................... 36
Legislative Materials
H.R. 7826, 94th Cong. Rec., 1st Sess..................... 73
H.R. 7828, 94th Cong. Rec., 1st Sess..................... 73
H.R. 7968, 94th Cong. Rec., 1st Sess..................... 73
H.R. 7969, 94th Cong. Rec., 1st Sess..................... 73
H.R. 8220, 94th Cong. Rec., 1st Sess..................... 73
H.R. 8221, 94th Cong. Rec., 1st Sess..................... 73
H.R. 8742, 94th Cong. Rec., 1st Sess..................... 73
H.R. 8743, 94th Cong. Rec., 1st Sess..................... 73
H.R. 8821, 94th Cong. Rec., 1st Sess..................... 73
H.R. 9552, 94th Cong. Rec., 1st Sess..................... 73
Hearings on Legal Fees Before the Sub-committee on
Representation of Citizen Interests of the Senate
Judiciary Committee, 93rd Cong., 1st Sess.
(1973) 78
Hearings Before the Sub-committee on Courts, Civil
Liberties and the Administration of Justice of the
House Committee on the Judiciary, 94th Cong.,
1st Sess. (1975) 78
S. Rep. No. 94-1011 ............................... 73, 77,79,80,81
H. R. Rep. No. 94-1558 ............................ 73, 78,80,81
112 Cong. Rec........................................ 74,78,79,80,81,86
Pages
- vii -
Other Authorities
American Correctional Association, Manual of
Correctional Standards (1972) .................... 39,45,46,49
American Bar Association, Tentative Draft of
Standards Relating to the Legal Status of
Prisoners (1977) 39,49
American Law Institute, Model Penal Code
(Proposed Official Draft)(1962) 49
Fourth United Nations Congress on Prevention
of Crime and Treatment of Offenders, Standard
Minimum Rules for the Treatment of Prisoners
(1955) 39
McCormick on Damages (1935) 70
Model Act for the Protection of Rights of
Prisoners (1972) 45
Model Penal Code .................................... 39
2A Moore's Federal Practice 1(12.13 ................. 76
National Advisory Commission on Criminal Justice
Standards and Goals, Corrections (1973) 39,49
National Council on Crime and Delinquency,
Model Act for Protection of Rights of
Prisoners (1972) 39
National Sheriff's Association, vanual on Jail
Administration (1970) 39
Goodhart, Costs, 38 Yale Law Journal 849 (1929).... 70
Rules
Federal Rules of Appellate Procedure, Rule 7 ....... 66
Federal Rules of Appellate Procedure, Rule 38 ...... 66
Federal Rules of Appellate Procedure, Rule 39 ...... 66
Federal Rules of Civil Procedure, Rule 30(g) 66
Federal Rules of Civil Procedure, Rule 37 (a) (4)..... 66
Federal Rules of Civil Procedure, Rule 41(d) ........ 66
Pages
- viii -
Rules (Continued)
Federal Rules of Civil Procedure, Rule 43(f) ......... 66
Federal Rules of Civil Procedure, Rule 54 ........... 66
Federal Rules of Civil Procedure, Rule 55(b)(1) ....... 66
Federal Rules of Civil Procedure, Rule 56 (g).......... 66
Federal Rules of Civil Procedure, Rule 65(c) .......... 66
Federal Rules of Civil Procedure, Rule 68 ............ 66
Federal Rules of Criminal Procedure, Rule 33(a)(3).... 66
Rules of the Supreme Court, Rule 14 .................. 66
Rules of the Supreme Court, Rule 18 .................. 66
Rules of the Supreme Court, Rule 36 (3) 66
Rules of the Supreme Court, Rule 57 ................... 66
Rules of the Supreme Court, Rule 60 .................. 66
Pages
- ix -
Page
Statutes and Treaties
5 U.S.C. § 552(a)2E .
7 U.S1.C. § 210 (f) . . .
7 U.S.C. § 499g(b) ..
15 U.S.C. §
15 U.S.C. §
15 U.S.C. §
15 U.S.C. §
15 U.S.C. §
17 U.S.C. §
18 U.S.C. §
20 U.S.C. §
28 U.S.C. §
28 U.S.C. §
28 U.S.C. §
28 U.S.C. §
28 U.S.C. §
28 U.S.C. §
28 U.S.C. §
28 U.S.C. §
33 U.S.C. §
33 U.S.C. §
42 U.S.C. §
42 U.S.C. §
42 U.S.C. §
42 U.S.C. §
42 U.S.C. §
42 U.S.C. §
42 U.S.C. §
45 U.S.C. §
46 U.S.C. §
47 U.S.C. §
49 U.S.C. §
15 ...___
72 ......
77k(e) ...
78i (e) . . „
78r(a) ...
116 .....
1964(c) ..
1617 ....
1 3 3 1 .....
1332 ....
1343 (3) ..
1446 ....
1911 ....
1923 ....
2101(f) ..
2103 ___ _
1365(d) ..
141(g) (4)
185 7h-2(d)
1983 ....
1988 .....
2000a-3 (b)
2000e-5 ..
2000e-5 (k)
4911(d) ..
153(p) ...
1227 ....
206 .....
8 ........
69
69
69
69
69
69
69
69
69
69
69, 81
66
66
15
66
66
68, 69
66
66
69
69
69
15, 76, 84
32, 72
69
81
69
69
69
69
69
69
- x -
Page
49 U.S.C. § 16(2) ......................
49 U.S.C. § 908(b) .....................
1 Stat. 73 .......................................... 65
1 Stat. 93 65/ 68
10 Stat. 161 (1853) ............................. ... 68
Civil Rights Act of 1964 ........................... 82
Civil Rights Attorney's Fees Awards Act
of 1976 ........ .................. 3, 32, 58, 62, 72, 77
Statute of Gloucester, 1278, 6 Edw. 1, c 1 .
2A Ark. Stat. Anno § 12-712 ................
4A Ark. Stat. Ann. § 46-116 ................
4A Ark. Stat. Anno. § 46-1201 (1975 Supp.) „
Act 543 of the Arkansas Acts of 1977
approved March 18, 1977 .............
New York Corrections Law § 137 (1977 Supp.)
6 United States Treaties 3317 (1949) ......
68
77
42
42
4, 35, 67, 68
42
39, 49
xx
CITATIONS TO OPINIONS BELOW
The opinions of the courts below are as follows:
1. Memorandum Opinion of June 20, 1969; Holt v .
Sarver, 300 F.Supp. 825 (E.D. Ark. 1969) hereinafter referred
* /to as HOLT I. (Appendix p. 22)—
2. Memorandum Opinion of February 18, 1970; Holt v.
Sarver, 309 F.Supp. 362 (E.D. Ark. 1970) (A. 34) affirmed and
remanded 442 F.2d 304 (8th Cir. 1971) (A. 67) hereinafter
referred to as HOLT II.
3. Memorandum Opinion of August 13, 1973; Holt v.
Hutto, 363 F.Supp. 194 (E.D. Ark. 1973) (A. 84), reversed sub
nom. Finney v. Arkansas Board of Correction, 505 F.2d 194 (8th
Cir. 1974) (A. 112) hereinafter referred as HOLT III.
4. Memorandum Opinion of March 19, 1976, Finney v.
Hutto, 410 F.Supp. 251 (E.D. Ark. 1976) (A. 141); Clarifying
Memorandum Opinion of April 2, 1976, unreported (A. 188);
affirmed 548 F .2d 740 (8th Cir. 1977) (A. 195).
5. The Memorandum Opinion of September 29, 1977 in
Graves v. Lockhart, E.D. Ark. Civil Nos. PB-74-C-81 and PB-74-C-
107, is unreported (A. 198).
*/ Appendix citations (hereinafter A. ____) are to the
Appendix .of Opinions, Decrees, Orders, and Pleadings prepared
by the Respondents and filed with the Court.
2
QUESTIONS PRESENTED
1. Did the District Court exceed its authority in
forbidding the use of indefinite punitive segregation as part
of its remedy for the unconstitutional conditions in the
punitive facilities?
2 Does the Eleventh Amendment preclude the award of
counsel fees from state funds where the unsuccessful state
defendants in a federal action have acted in bad faith,
vexatiously, wantonly, or for oppressive reason?
3. Does the Civil Rights Attorney's Fees Awards Act of
1976 authorize awards of counsel fees against state agencies in
actions under 42 U.S.C. §1983?
3
CONSTITUTIONAL AND STATUTORY PROVISIONS
INVOLVED
In addition to the statutes and constitutional provisions
cited in the brief for petitionersf the case also involves Act
543 of the Arkansas Acts of 1977 approved March 18, 1977. Act
543 provides as follows
ACT 543
"AN ACT Authorizing the State of Arkansas to Pay
Actual Damages Adjudged Under Certain Cir
cumstances Against Officers or Employees of
Arkansas State Government, or Against the
Estate of Such an Officer or Employee; Defin
ing the Extent of Applicability of the Act:
and for Other Purposes.
Be it Enacted by the General Assembly of the State
of Arkansas
SECTION 1. The State of Arkansas shall pay
actual, but not punitive, damages adjudged by a
state or federal court, or entered by such a court
as a result of a compromise settlement approved and
recommended by the Attorney General, against officers
or employees of the State of Arkansas, or against
the estate of such an officer or employee, based on
an act or omission by the officer or employee while
acting without malice and in good faith within the
course and scope of his employment and in the per
formance of his official duties.
SECTION 2. Upon the recommendation of the
Attorney General, the State of Arkansas shall
have authority to pay damages based on an act or
omission by an officer or employee of the State of
Arkansas while acting without malice and in good
faith within the course and scope of his employment
and in the performance of his official duties,
where the amount of damages is determined by
negotiated settlement before or after an action
had been commenced.
SECTION 3. Damages payable under this Act
shall be reduced to the extent that the officer
or employee has been indemnified or is entitled
to indemnification under any contract or insurance.
- 4 -
i
SECTION 4. A party desiring to make a claim for
indemnification under this Act shall notify the
Attorney General of the filing of a complaint
in any court or the making of any other form of
demand for damages promptly after it is filed or
made and permit the Attorney General to participate
in all trial or settlement negotiations or proceed
ings regarding the complaint or demand. Compliance
with all requirements of this Section shall be
prerequisite to payment of any claim under this
Act. Nothing in this Section shall be construed
to deny any party desiring to make a claim under
this Act from employing legal counsel of his
choosing to defend any lawsuit or other demand
for damages.
SECTION 5. The Arkansas State Claims Commis
sion shall have jurisdiction over all claims
for indemnification based on a judgment or nego
tiated settlement in conformity with Sections 1
and 2, and procedings for the recovery of such
claims, and the payment of such claims shall
be governed by the law governing proceedings before
the State Claims Commission and payment of claims
allowed by the Commission.
SECTION 6. Elected state officials and
members of commissions boards, or other govern
ing bodies of agencies are officers of the State
of Arkansas for the purpose of this Act.
SECTION 7 All laws and parts of laws in
conflict with this Act are hereby repealed.
SECTION 8. If any provision of this Act
or the application thereof to any person or circum
stances is held invalid, such invalidity shall
not affect other provisions or applications of
this Act which can be given effect without the
invalid provision or application, and to this
end the provisions of this Act are declared to
be severable.
SECTION 9. EMERGENCY. It is hereby found and
determined by the General Assembly that a number of
State officers and employees are being made defen
dants in lawsuits seeking damages for their acts or
omissions in the performance of their official
duties; that in many instances such lawsuits are
filed against the estates of such officers or
employees; and that it is essential that the State
of Arkansas offer protection for its officers
or employees against personal liability for perform
ing their official duties, and that the immediate
passage of this Act is necessary to accomplish this
purpose. Therefore, an emergency is hereby declared
to exist and this Act being necessary for the
immediate preservation of the public peace health
and safety shall be in full force and effect from
and after its passage and approved ."
APPROVED: March 18, 1977.
- 5 -
l
STATEMENT
A. Introduction
This is a consolidated group of cases in which prisoners
confined in the Arkansas State Prison system have complained
that conditions in the prisons violate their rights under
the Fourteenth Amendment. The case has been pending since 1969
and the decisions of the District Court - Circuit Court Judge
J. Smith Henley (formerly district judge) sitting by special
designation — have been reviewed by the Court of Appeals for
1/the Eighth Circuit on three occasions. The present peti
tion seeks review of two rulings contained in the District
Court's Third Supplemental Decree dated March 19, 1976 which
were affirmed on appeal. The first ruling complained of was
the District Court's decision limiting the amount of time
prisoners may be confined in punitive isolation cells at
Cummins and Tucker Prisons to a period of thirty days for a
single offense. This 30-day limitation was one of a number of
rulings ordering changes of rules and conditions in the puni
tive cells which were designed to comply with a prior mandate
of the Eighth Circuit, which had in 1974 directed the District
Court to formulate a remedy to "ensure that prisoners placed in
punitive solitary confinement are not deprived of basic necessi
ties including light, heat, ventilation, sanitation, clothing
and a proper diet." Finney v. Arkansas Board of Correction,
505 F .2d 194, 207-208 (8th Cir. 1974).
The second ruling complained of by the petitioners is the
District Court's award of a counsel fee of $20,000.00 to be
shared by three court-appointed attorneys (Messrs. Kaplan,
1/ The reported opinions occupy 129 pages in the official
reports. The Eighth Circuit has called the case "seemingly
endless." 548 F .2d at 741.
6
Holt and McMath) for services performed during the period from
1974 to 1976. The court ordered that this fee be paid from the
budget of the Arkansas Corrections Department.
In order that the present issues may be seen in their
complete context, we shall review proceedings from the incep
tion of the case in 1969, before giving a more detailed state
ment of the proceeding which led to the Third Supplemental
Decree. Throughout this statement of the case the facts regard
ing conditions and circumstances in the Arkansas prison system
as found by the District Court are set out in some detail with
references to appropriate parts of the record. It should be
noted that the findings of fact by the District Court through
out this litigation have not been challenged in this Court by
the petitioners and therefore are not at issue here. Thus, the
legal questions presented by the decision sought to be reviewed
must be judged in light of essentially undisputed facts.
B. Holt I and Previous Prison Suits
Litigation about prison conditions in Arkansas began in
1965 and has continued since that time, resulting in repeated
holdings of constitutional violations. In Talley v. Stephens,
247 F.Supp. 683 (E.D. Ark. 1965), and in Jackson v. Bishop,
268 F. Supp. 804 (E.D. Ark. 1967), reversed in part 404 F .2d
571 (8th Cir. 1968), the courts outlawed the whipping of
inmates with a strap and various tortures such as the "Tucker
Telephone" and the "teeter board." The court found that
Arkansas prisoners were being subjected to torture and "brutal
2/
and sadistic atrocities." In 1969 in Courtney v. Bishop,
409 F.2d 1185 (8th Cir. 1969), the Court held in an individual
case that solitary confinement did not violate a prisoner's
constitutional rights.
In each of these earlier cases plaintiffs were inmates
who filed pro se complaints and the cases were presented by
3/
court-appointed attorneys who served without compensation.
2/ In Jackson v. Bishop, 268 F.Supp. 804, 815 (E.D. Ark.
1967), the Court wrote:
"There can be no doubt that the brutal and sadistic
atrocities which were uncovered by the investigation
of the State police in August and September of 1966
cannot be tolerated. The Court has reference to the
use of a telephone shocking apparatus, the teeter
board, strapping on the bare buttocks and other
torturous acts of this nature."
Some criminal prosecutions of prison employees were brought
but few convictions were obtained. 309 F.Supp. at 368-369, note
4.
3/ The appointment of counsel was noted in each of the
opinions. In Talley v. Stephens, 247 F.Supp. 683, 685 (E.D.
Ark. 1965), the Court stated:
"Petitioners have been represented most capably by
Bruce T. Bullion of Little Rock and Louis L. Ramsay,
Jr. of Pine Bluff, appointed by the Court to repre
sent petitioners without charge. The Court is
grateful to Messrs. Bullion and Ramsay for their
services."
In Jackson v. Bishop, 268 F.Supp. 804, 806 (E.D. Ark. 1967) the
Court said:
"The court appointed Edward L. Wright of Little
Rock and William S.Arnold of Crossett, both highly
respected and experienced members of the Arkansas
bar, to represent the plaintiffs without charge.
They have done so most capably and the Court thanks
them for their services."
8
The Holt_I proceedings which are described in the Memoran
dum Opinion of June 20, 1969, Holt v. Sarver, 300 F.Supp. 825
(E.D. Ark. 1969), resulted from the consolidation of three pro
se prisoner complaints. The prisoners complained that confine
ment in isolation cells at Cummins Farm amounted to cruel and
unusual punishment, that they were denied adequate medical
care, and that the authorities fail to protect inmates from
assaults by other inmates. 300 F.Supp. at 826. The court-
appointed counsel for plaintiffs conducted an evidentiary
4/hearing. The Court rejected plaintiff's complaint about
3/ [Continued]
On Appeal in Jackson v. Bishop, 404 F .2d 571 (8th Cir. 1968),
the Court noted at p. 573:
"We initially commend Edward L. Wright of Little
Rock and William S. Arnold of Crossett, court-
appointed counsel for the plaintiffs and Don
Langston who argued the cases for the defen
dant for their candid, unemotional and fair
and able presentations. The services rendered
by Mr. Wright and Mr. Arnold, and the expenses
they have incurred, were without anticipation of
reimbursement."
In Courtney v. Bishop, 409 F .2d 1185, 1186 (8th Cir. 1969), the
Court stated:
"Phillip K. Lion and Robert L. Robinson, Jr.
lawyers of Little Rock, Arkansas, were
appointed to represent petitioner."
4/ The Court stated at 300 F.Supp. 827:
"The court-appointed Mr. Steele Hays of Little
Rock, an experienced and capable trial attorney, to
represent petitioners without charge. Mr Hays
accepted the appointment. He and one of his
associates, Mr. Jerry Jackson, without expectation
of compensation or reimbursement, proceeded
to the farm where they interviewed petitioners and
others and took photographs of the facilities.
Both Mr. Hays and Mr. Jackson vigorously repre
sented petitioners at a rather extended hearing
which consumed two full trial days and part of one
night. The Court is most grateful to Messrs. Hays
and Jackson for their services."
9
the food served to prisoners while in isolation. The Court
also found that the evidence about assaults on prisoners by
prison employees and trusty guards was not sufficient to
justify relief. However, the Court did find that the State
"has failed and is failing to discharge its constitutional duty
5/
with respect to the safety of certain convicts, and that the
conditions existing in the isolation cells, including overcrowd
ing, render confinement in those cells under those conditions
unconstitutional." 300 F.Supp. at 828. At the time of the
1969 decision, the isolation unit at Cummins was a one story
concrete block building with twelve cells which were 10 feet
long and approximately 8 feet wide. The Court found that the
isolation cells were dirty and unsanitary, pervaded by bad
odors, that the mattresses were uncovered and dirty and that
the cells were chronically overcrowded. The average number of
men confined in a single cell was four. 300 F.Supp. at
832.
Inmates in the isolation unit were served a food mixture
known as "grue", which consists of meat, potatoes, vegetables,
eggs, oleo, syrup and seasoning baked all together in a pan and
served in four-inch squares. The Court found that grue was not
appetizing and not served attractively but nevertheless found
it a "wholesome and sufficient diet for men in close confine-
5/ The Court particularly noted the problem of "Crawlers"
and "Creepers", inmates who have had feuds with other inmates
and who assaulted them while they were asleep. The Court noted
that inmate "floorwalkers" were ineffective in preventing such
assaults since they were either afraid to call guards or were
in league with the assailants. 300 F.Supp. at 830-831.
10
ment day after day." 300 F.Supp. at 832. In concluding that
the confinement in isolation as then practiced at Cummins
violated the Cruel and Unusual Punishment Clause, the Court
noted that "if confinement of that type is to serve any useful
purpose, it must be rigorous, uncomfortable and unpleasant."
Id. at 833. However, the Court found that the "prolonged
confinement of numbers of men in the same cell" under these
conditions to be "emotionally traumatic as well as physically
uncomfortable." Id. at 833. The Court said about the confine
ment in isolation: "It is hazardous to health. It is degrad
ing and debasing; it offends modern sensibilities, and, in the
Court's estimation, amounts to cruel and unusual punishment."
Id. at 833.
The relief granted however was quite limited. The Court,
rather than mandating specific changes, merely made "sugges
tions" to the defendants. 300 F.Supp. at 833-834. The
Court suggested that efforts be made to hold the number of
persons confined in a single isolation cell at one time to a
"minimum". Id!. at 834 . The Court suggested that inmates not
be long confined in isolation in advance of a hearing, and
stated .that the defendant "ought to be able at minimum expense
to do something about the sanitary conditions of the cells and
he might give consideration to doing so without much regard to
the attitudes of the inmates." Ibid. The Court directed the
defendants to report the changes made and retained jurisdiction.
C . Holt II - Litigation During 1970 and 1971
The Holt II proceedings are described in the Memorandum
Opinion of February 18, 1970; Holt v . Sarver, 309 F.Supp. 362
(E.D. Ark. 1970), affirmed and remanded 442 F .2d 304 (8th Cir.
11
1971). In December 1969 Judge Henley consolidated five addi
tional pro se prisoner complaints with the three cases which
were considered in the Holt I opinion. He also appointed new
counsel, Messrs. Kaplan and Holt, who have served since Decem
ber 1969 as counsel for members of a class of prisoners in the
6/Arkansas system. The appointed counsel filed a Consolidated
Amended and Substituted Complaint which prayed for declaratory
and injunctive relief. A. 208. The Complaint alleged that
the defendants violated the prisoners' rights under the Thir-
7/
teenth and Fourteenth Amendments.
The Court sustained the claim that the overall conditions
and practices of the Arkansas State Penitentiary system amounted
6/ The Court stated at 309 F.Supp. at 364:
"It appearing to the Court that consti
tutional questions raised by the petitions
submitted by the complaining inmates per
sese were substantial, the Court appointed
Messrs. Jack Holt, Jr. and Philip Kaplan of
the Little Rock Bar to represent Peti
tioners without charge. Messrs. Holt and
Kaplan accepted the appointments and have
done yeoman service on behalf of their
clients. The Court wishes to thank them for
their efforts.
2/ The claim is summarized in If20 of the Consolidated
Amended and Substituted Complaint:
"The actions of defendants have deprived members of
the plaintiff class of rights, privileges and
immunities secured to .them by the due process and
equal protection clauses of the Fourteenth Amendment
to the Constitution of the United States, including:
(a) the right not to be imprisoned without meaning
ful rehabilitative opportunities, (b) the right to be
free from cruel and unusual punishment, (c) the
right to be free from arbitrary and capricious
denial of rehabilitation opportunities, (d) the
right to minimal due process safeguards in decisions
12
to a violation of the Cruel and Unusual Punishment Clause. 309
F.Supp. at 365. The Court also sustained the claim that
unconstitutional racial discrimination and segregation was
being practiced in the system. Id̂ . at 366. The Court rejected
a claim that forced labor in the prisons violated the Thir
teenth Amendment. Id. at 365.
At the time of the 1970 decision the Arkansas prison
sytem was operated primarily with trusty prisoners serving as
guards and with very few free world employees. 309 F.Supp. at
373. The three principal units in the system were the Cummins
Farm, the smaller Tucker Intermediate Reformatory and the
small Women's Reformatory located on the Cummins Farm. Id. at
366. At the largest institution at Cummins only 35 free world
employees were in "ostensible charge of slightly less than a
thousand men." IR3. at 373. "Of those 35 only 8 were available
for guard duty, and only 2 of them were on duty at night."
Ibid. The trusty guard system, the confinement of inmates in
large open barracks, bad conditions in the isolation cells, an
absence of a meaningful program of rehabilitation and other
aspects of prison life were held in combination to create
an unconstitutional system. The Court said;
1_/ [Continued]
determining fundamental liber-ties, (e) the right to
be fed, housed and clothed so as not to be
subjected to loss of health or life, (f) the right
to unhampered access to counsel and the courts, (g)
the right to be free from the abuses of fellow
prisoners in all aspects of daily life, (h) the
right to be free from racial segregation, (i) the
right to be free from forced labor, (j) the right to
be free from the brutality of being guarded by fellow
inmates."
(309 F.Supp. at 364).
13
"For the ordinary convict a sentence to the Arkansas
Penitentiary today amounts to a banishment from
civiliz.ed society to a dark and evil world complete
ly alien to the free world, a world that is admin
istered by criminals under unwritten rules and
customs completely foreign to free world culture.
After long and careful consideration the Court
has come to the conclusion that the Fourteenth^
Amendment prohibits confinement under the conditions
that have been described at the Arkansas Peni
tentiary System as it exists today, particularly
at Cummins, is unconstitutional.
Such confinement is inherently dangerous. A
convict however cooperative and inoffensive he may
be, has no assurance whatever that he will not be
killed, seriously injured or sexually abused. Under
the present system the State cannot protect him.
Apart from physical danger, confinement in the
Penitentiary involves living under degrading and
disgusting conditions. ...
* * *
It is one thing for the State to send a man to
the Penitentiary as a punishment for crime. It is
another thing for the State to delegate the govern
ance of him to other convicts, and to do nothing
meaningful for his safety, well being, and possible
rehabilitation. It is one thing for the State not
to pay a convict for his labor; it is something else
to subject him to a situation in which he has to
sell his blood to obtain money to pay for his own
safety, or for adequate food, or for access to
needed medical attention." (309 F.Supp. at 381).
With respect to the isolation cells at Cummins the 1970
opinion found that while the overcrowding noted in Holt I
"seems to have been ameliorated; the other conditions still
exist." 309 F.Supp. at 378. The Court noted the planned con
struction of a new maximum security unit at Cummins, and stated
that the operation of the unit by trustys was a source of con
stant trouble. Ibid. However the Court concluded that since
overcrowding had been relieved and many of the conditions
14
were due to the conduct of the inmates, the isolation cells
were not as serious a constitutional problem as other aspects
of the penitentiary- The Court ordered an end to the system of
trusty guards in the isolation cells and in addition ordered
that food service be made more sanitary and palatable. 309
F.Supp. at 384-385.
On appeal by the defendants the Court of Appeals affirm
ed. Holt v. Sarver, 442 F .2d 304 (8th Cir 1971). The Court
of Appeals rejected the defendant's argument that the case was a
suit against the State barred by the Eleventh Amendment, the
Court relying on Ex parte Young, 209 U.S. 123 (1908). The
Court held that jurisdiction was properly invoked to enforce
the Eighth Amendment under 42 U.S.C.A. §1983 and 28 U.S.C.A.
§1343(3). The Court rejected the argument that the record did
not support the District Court's findings of an Eighth Amend
ment violation. On remand the District Court held further
hearings in November and December 1971 and entered a supple
mental decree dated December 30, 1971. A. 78. The Court
noted that there had been great progress in making the system a
consitutional one; that there were still problem areas and
that the court should retain jurisdiction. A. 78. The Court
supplemented the earlier injunctions by provisions which
enjoined any cruel and unusual punishments, enjoined inter
ferences with inmates' access to the courts and to counsel, and
enjoined reprisals against inmates for exercising their right
to access to the court. Ibid.
15
D. Holt III - Litigation in 1973 and 1974
The Holt III proceedings are described in the opinion of
August 13, 1973, Holt v. Hutto, 363 F.Supp. 194 (E.D. Ark.
1973), affirmed in part, reversed in part, sub nom. Finney v.
Arkansas Board of Corrections, 505 F.2d 194 (8th Cir. 1974).
On September 8, 1972 the Court filed a memorandum and order
noting that it was receiving a constant stream of complaints
which gave the court concern that inmates were beaten and abused
and otherwise mistreated in violation of the Court's prior
orders. A. 81. Ultimately the Court consolidated 34 indi
vidual and class actions with the pending Holt proceeding and
held evidentiary hearings in November and December 1972 and
January 1973.
In the opinion issued August 13, 1973, Judge Henley found
that the prison system had undergone substantial changes.
The trusty system had been essentially dismantled, and a new
maximum security building (the East Building) had been built at
Cummins. The Court held that a number of conditions at Cummins
and Tucker were undesirable but no longer unconstitutional and
that the main difficulties resulted from poor administration.
363 F.Supp. at 201-202. The Court did order further injunctive
relief to deal with various problems of racial discrimination
including prohibiting undue restrictions against Black Muslims,
prohibiting the continued racial segregation of inmates in the
maximum security unit at Cummins and issuing a general injunction
to attempt to deal with problems of race discrimination in job
assignments of blacks and in punishment of inmates within the
institution. 363 F.Supp. 203-205.
16
With respect to the maximum security unit, the Court
found that the cells were not overcrowded, that they were
properly lighted and ventilated and that their conditions did
not constitute a violation of the Eighth Amendment. 363 F.Supp.
at 208. The Court also refused to enjoin the. continued diet of
grue in the punitive isolation cells. Ibid. The Court concluded
that it was not necessary for it to continue to retain further
supervisory jurisdiction. 363 F.Supp. at 216.
The Court granted a request from Messrs. Holt and Kaplan
that they be awarded a counsel fee. The Court granted a fee of
$8,000 plus $502.80 to reimburse them for money paid to law
students and directed that the members of the Board of Correc
tions make those payments out of available department funds.
363 F.Supp. at 217. These orders were embodied in a Second
Supplemental Decree issued August 13, 1973. A. 109.
The plaintiffs appealed from the Second Supplemental Decree
and on appeal the Eighth Circuit found continuing constitutional
violations and ordered the District Court to continue to retain
jur isdiction:
"This Court recognizes the difficult issues
the District Court has passed upon since the
commencement of this litigation in 1969. We
are nevertheless compelled to find on the
basis of the overall record that there exists
a continuing failure by the correctional
authorities to provide a constitutional and,
in some respects, even a humane environment
within their institutions. As will be discuss
ed , we find major constitutional deficiencies
particularly at Cummins, in housing, lack
of medical care, infliction of physical and
mental brutality and torture upon individual
prisoners, racial discrimination, abuses of
solitary confinement, continuing use of trusty
17
guards, abuse of mail regulations, arbitrary-
work classifications, arbitrary disciplinary
procedures, inadequate distribution of food
and clothing, and total lack of rehabilitative
programs. We are therefore convinced that
present prison conditions, now almost five
years after Holt I, require the retention of
Federal jurisdiction in the granting of fur
ther relief." (505 F .2d at 200).
With respect to the punitive wing the Court noted that
prisoners were denied the regular prison diet and served grue
as a form of further punishment. The Court of Appeals noted
that while the District Court thought that grue constituted a
nutritionally sufficient diet, it found that conclusion "dubi
ous." 505 F .2d at 207. The Court directed the District Court to
ensure that prisoners in the punitive wing are "not deprived of
basic necessities including light, heat, ventilation, sanitation,
clothing, and a proper diet." 505 F .2d at 208.
E. Graves v. Lockhart - 1973-1974 Proceedings
Proceedings in the Graves Case are described briefly
in an unreported opinion filed on September 29, 1977. A. 198.
Graves was initiated in late 1973 and consisted of two consolidat
ed complaints filed by Willie Graves and other prisoners who
complained of race discrimination and other types of mistreat
ment in the punitive wing at the Cummins Prison. Graves was filed
during plaintiffs appeal from the Holt III determination that
there was no constitutional violation in the punitive wing. In
early 1974 the district court appointed Philip McMath, Esq. to
represent the prisoners in Graves, and conducted a trial of about
six days. (Only one day's testimony from this hearing has been
transcribed to date). The district court stated in the subse-
18
quent memorandum opinion of September 29, 1977 that, as the case
progressed "it became clear that the issues raised by petitioners
in these cases were in large measure the same issues that had
been raised and considered in Holt III which was then pending on
appeal, and that no useful purpose would be served by undertak
ing to decide these cases until the court of appeals should
decide that case." A. 200. After the Court of Appeals's
decision in Finney was announced in October, 1974 the district
court consolidated Graves with the Holt-Finney litigation. The
evidence in Graves was thus considered as a part of the record
in the subsequent Finney proceedings described below. Mr. Philip
McMath, the appointed attorney in Graves was awarded an attor
ney's fee in the subsequent Finney decision which is now being
reviewed in this Court. The injunctive relief granted in Finney-
Holt was considered applicable to the Graves case. The indi
vidual damage claims of the plaintiffs in Graves were subse
quently dismissed in the memorandum opinion of September 29,
1977. A. 204.
F. Finney v. Hutto, - Proceedings 1975-1977
The proceedings in the district court after the 1974
Eighth Circuit remand are described in the Memorandum Opinion of
March 19, 1976 reported as Finney v. Hutto, 410 F.Supp. 251
(E.D. Ark. 1976). See also the Clarifying Memorandum Opinion
filed April 2, 1976, which is unreported. A. 188.
These decisions were affirmed by the Eighth Circuit January 6,
1977, sub nom. Finney v. Hutto, 548 F.2d 740 (8th Cir. 1977).
The March 19, 1976 opinion reviews the evidence taken in
extensive hearings before the District Court and before a
19
United States Magistrate during 1975. Judge Henley stated
that the court "recognizes that it should not embroil itself
unreasonably in the affairs of the department" and that "much
must be left to the discretion of the prison administrators."
410 F.Supp. 254. However, the opinion stated that constitu
tional deprivations continued to exist and that the court must
grant appropriate relief. The opinion, which covers some 35
pages in the official reports, contains separate sections
discussing the following subjects: "Overcrowding", "Medical
Services and Health Care", "Rehabilitation", "Regulations as to
Mail and Visitors", "Legal Assistance to Inmates", "Inmate
Safety", "Race Relations in General", "Racial Discrimination",
"Grievance Procedure", "The Black Muslims", "Brutality",
"Disciplinary Procedures", "Punitive Isolation and Administra
tive Segregation", "The East Building at Cummins", "Attorney's
Fees and Expenses", and "Procedural Details". The court issued
its Third Supplemental Decree on March 19, 1976. A. 177. See
also the Clarifying Memorandum Opinion of April 6, 1976. A.
188.
With respect to overcrowding the Court found that condi
tions in 1975 were worse than in either 1973 or 1974, although
after the 1975 hearings conditions were alleviated substantially.
8/
8/ The hearing before the Magistrate was treated as depositions.
410 F.Supp. at 253 note 2. The hearings in open court in 1975
have not been transcribed by the court reporter. 410 F.Supp.
at 285, note 14. The same is true of most of the 1974 Graves
transcripts.
20
The court granted extensive additional injunctive relief as to
9/
a variety of prison conditions. 410 F.Supp. at 254-257.
With particular reference to the punitive isolation cells the
Court found that the East Building at Cummins was overcrowded,
that cells designed to house only one prisoner had been used to
house three or four men and that the East Building "has been
chronically overcrowded and that something must be done about
9/ With respect to health care, the Court ordered a new
study to be made by the Arkansas State Board of Health of
medical facilities at Cummins and Tucker, ordered the employment
of one or two full time psychiatrists or clinical psychologists
at the prison hospital, and issued an order prohibiting the
disciplinary committee from punishing inmates for malingering or
pretending illness to avoid work unless the disciplinary commit
tee had consulted with a doctor who examined the inmate prior to
making such a finding. 410 F.Supp. at 258.
The Court approved the changes made by the Corrections
Department in establishing a rehabilitation program, approved
the newly adopted regulations as to mail and visitors and the
procedure for furnishing legal assistance to inmates by a full
time legal adviser employed by the Department. Id. at 262.
The Court found inmates were no longer used as armed guards in
the State prison system and that inmate safety had been sub
stantially improved. Id. at 263. With respect to race rela
tions, the Court ordered a program to recruit more black
employees and put blacks in positions of meaningful authority
in the prison system. Id. at 265-268. In addition to the
previous orders prohibiting discrimination against Black
Muslims the Court enjoined the defendants from serving Muslims
any food which contained pork; this applied in maximum security
cells as well as in general population. Id. at 269-270. With
respect to brutality against inmates, the Court supplemented
its prior decrees prohibiting tortures and other brutal treat
ment by an additional injunction prohibiting empoyees of the
Department "from verbally abusing, or cursing, inmates, and
from employing racial slurs on epithets when addressing or
talking with inmates." Id. at 272. With respect to disci
plinary procedures adopted by the defendants to comply with
Wolf v. McDonnell, 418 U.S. 539 (1974), the Court added a
prohibition against a charging officer sitting in judgment on
his own complaint. _Id. at 272-274.
- 21 -
t
the situation" 410 F.Supp. at 257. The Third Supplemental
Decree set maximum capacity limits for Cummins and Tucker
prisons, and approved the capacities of individual housing
units at Cummins and Tucker as set forth in a report from
the defendants. For the maximum security cells at Tucker and
all cells in the East Building at Cummins the court entered an
injunction restraining defendants from confining more than two
persons in any maximum security cell at the same time, and
requiring that each person be provided with a bunk and mattress
on which to sleep at night, subject to exceptions for "cases of
serious emergencies involving large numbers of violent or
unruly inmates." A. 179. The Clarifying Memorandum Opinion
permitted full use of certain four-man cells, however, the
Court provided that inmates in "punitive isolation" should not
be confined with more than two men in a cell. A. 189.
10
10/ A report prepared by the defendants in response to
the Third Supplemental Decree issued by the court con
tains a description of the Cummins facility including the
East Building. The report states, "There are 22 rooms in
the punitive wing, designed to house one inmate per room,
but convertible to two-man rooms in an emergency." See,
Commissioners' Report to the Court- as directed in the
Third Supplemental Decree Attachment, .#8, p. 46 (July 14,
1976). In answers to interrogatories the defendants
acknowledged that each had one bunk, one toilet, and
one sink. See Answers to Interrogatories Propounded to
Defendants (May 3, 1974) at page 6, A. p. 226. The
defendants also admitted that up to three inmates were
confined in these one-man cells. See Defendants Response
to Request for Admissions of Fact (May 3, 1974) page 3,
A. 219.
- 22 -
Pursuant to the mandate of the Eighth Circuit, the Court
conducted an extensive further inquiry into conditions in puni
tive isolation in the East Building at Cummins. 410 F.Supp. at
274-281. The Court also examined conditions at Tucker Prison and
in the other two wings of the Cummins East Building where prison
ers are held in segregation pending trial in one wing and in
maximum secuirity in the third wing. After considering testimony
heard in Graves in 1974 and the consolidated cases in 1975 and
conducting the Court's own inspection of the punitive cells and
the administrative segregation cells of both Cummins and Tucker,
Judge Henley reversed his prior ruling and concluded that the
conditions were unconstitutional. Judge Henley decided that
either conditions were not as good in 1973 as he had thought at
that time or the conditions had deteriorated since that period.
410 F.Supp. at 275. "Whichever may be the case, the Court now
find from the evidence that unconstitutionalities now exist with
respect to both punitive isolation and administrative segrega
tion, ...." Ibid. The Court found that an inmate sentenced to
punitive isolation was confined "in an extremely small cell under
rigorous conditions for an indeterminate period of time with his
status being reviewed at the end of each fourteen day period."
Ibid. The Court found that while most inmates sentenced to
punitive isolation were released in less than fourteen days
"many remained in the status in question for weeks or months,
’ 11/depending upon their attitudes as appraised by prison personnel."
11/ The regulations of the Arkansas Department of Corrections
dealing with Disciplinary Procedures (see Enclosure #5 of the
Answer to Interrogatory #8, attached to the Answers to Interro-
garatories propounded to Defendants) provided:
- 23 -
t
Ibid.
in the
The Court found that such prisoners were rarely confined
cell alone and that at times three or more inmates were
11/ [Continued]
"Punitive Segregation
Punitive segregation is ordinarily used as punishment
when reprimands, loss of privileges, suspended sentences, and
similar measures have been tried without satisfactory results.
Punitive segregation is a major disciplinary measure and should
be used judiciously when all other forms of action prove
inadequate, where the safety of others is concerned, or when
the serious nature of the offense makes it necessary.
Forms of Segregation
Segregation may take any one of the following forms:
1. Punitive Segregation - special punishment -
Confined inmates in a punishment status,
placed on a restricted diet, with loss
of privileges and placed in special
facilities for a comparatively brief period.
Ordinarily no inmate should be retained in
punishment segregation on restrictive diet
more than 15 days, and normally a shorter
period is sufficient. Punitive segregation
is not for indefinite or permanent segrega
tion.
A. Regular punitive segregation procedures
(1) Period of Confinement:
Fifteen days should be the maximum time
spent in punitive segregation.
Recalcitrant inmates at the end of
this period should be fed a normal
diet. After two or three days,
depending upon physical condition, ^
he may be returned to a restricted
diet and the procedure continued."
Department of Corrections officials interpreted the regulation as
allowing an inmate to be kept in punitive isolation indefinite
ly as long as he was given regular meals for two days every
15 days. See, Testimony of A. L. Lockhart, Extract of Proceed
ings in Graves v ._Lockhart, pp. 95-96, 100.
- 24 -
kept in the small cell equipped with extremely limited facili
ties. Where three or more men were put in the same cell,
12/
one or two of them had to sleep on the floor. The mat
tresses were removed during the day. .Id. at 275-276.
The Court reviewed the diet of grue served as a punish
ment to inmates in punitive isolation in light of the Court of
Appeals remand and concluded that it should no longer be
served. JDi. at 270-277. Inmates were fed grue during each
fourteen day period, except that on every third day they were
supposed to receive one regular prison meal. Ibid. Many
inmates complained of short rations for this meal and of a
practice known "as shaking the spoon". _Id. at 276 , note 11.
At the end of each fourteen days inmates were weighed to
determined how much weight they had lost on the grue diet and
if returned to punitive isolation were given regular food for
two days before being returned to the grue diet on the seven-
11/teenth day. Virtually all inmates lost weight on this diet.
Id. at 276, note 12. Inmates were allowed very limited outdoor
exercise and left their cells on every third day to take a
shower. Inmates in punitive isolation were denied practically
all privileges; they could receive visits only from clergymen
12/ See Defendants' Response to Request for Admission of Fact
(May 3, 1974) page 3, A. 219.
13/ Defendants admitted that the caloric value of the grue
served each day was approximately 962 calories, Answers to
Interrogatories Propounded to Defendants (May 30, 1974), p. 7,
A. p. 227, and that "plaintiffs, while inmates in the 'punitive
wing' of the Cummins Prison Farm, have generally and uniformal-
ly [sic] suffered weight loss." Defendants Response to Request for
Admission of Fact (May 3, 1974) p. 2, A. p. 218.
25
which were very rare and could receive only "constitutionally
14/
protected" mail. The Court found the punitive wing was
frequently the scene of violence with prisoners screaming and
cursing at guards, attempting to assault and injure them and the
guards retaliating with night sticks and mace, frequently with
15/excessive responses. Id. at 276-277. The Court criticiz
ed the lack of professionalism and commonsense among the maximum
security personnel. Id. at 277. The Court agreed with the
testimony of Dr. Arthur Rogers, a clinical psychologist,
who testified as plaintiff's expert in the 1974 Graves hearings
that punitive isolation as practiced at Cummins "serves no
rehabilitative purpose, and that it is counterproductive. It
16/
makes bad men worse. It must be changed." id. at 277.
The Third Supplemental Decree prohibited the continued use
of grue and required that inmates be served food of the same quality
as that supplied to inmates in the general population. The
Court ordered that defendants provide inmates in punitive isolation
14/ It was admitted that inmates were not allowed to receive
personal mail while serving time in the punitive wing. Defen
dants' Response To Request For Admission of Fact (May 3, 1974),
p . 3, A. p . 219.
15/ Much of the testimony, including that of defendants'
witnesses, related to various incidents of violence in the
punitive wing. See, e.g., the testimony of A. L. Cummins,
in the Extract of Proceedings in Graves v. Lockhart, at pp.
47-53“
16/ See, generally, the testimony of Arthur Rogers, set out
in the Extract of Proceedings in Graves v. Lockhart at pages
3-20.
26
further opportunity for physical exercise outside their cells
Finally, the Court enjoined the confinement of inmates in pun
17/
tive isolation for indeterminate periods.The
17/ The Third Supplemental Decree provided (A. 183-185):
"Punitive Isolation.
Respondents will be, and they hereby are,
enjoined from sentencing inmates of the Depart
ments to confinement in punitive isolation for
indeterminate periods of time. In the future
an inmate who is convicted of a major dis
ciplinary infraction may be sentenced to
confinement in punitive isolation for a period
of not more than thirty days; at the end of that
maximum period he must be returned to general
population, or, if it be found necessary, he may
be held in a segregated status under maximum
security conditions other than punitive. No
disciplinary committee or panel is required to
sentence an inmate to confinement in punitive
isolation for as much as thirty days, and the
Superintendent of the institution or the
Commissioner is free to release an inmate from
punitive isolation at any time prior to the
expiration of his sentence.
Inmates who have been confined in punitive
isolation for more than thirty days when this
Decree is filed are to be released to population
or held in maximum security but under conditions
that are not punitive. Inmates who have not
been confined in punitive isolation for thirty
days or longer will be considered as serving
sentences of not more than thirty days. In
determining whether an inmate has been in
isolation for thirty days or longer, the two
day periods of "interruption" mentioned in the
Opinion will be included in the calculation.
Respondents will be, and they hereby are,
enjoined from supplying inmates confined in
punitive isolation with food and water inadequate
in quantity and quality to preserve their health,
and are further enjoined from serving such
inmates diets which differ qualitatively from
food supplied to inmates in general population.
Without limiting the generality of the fore
going, the use of the substance knows as
"grue", or any variant thereof, as a food for
inmates in punitive isolation is specifically
enjoined.
27
Court's decision was that indeterminate periods of confinement
under these conditions was unreasonable and unconstitutional.
410 F.Supp. at 278. The Court acknowledged that some inmates
must be segregated from the general population for various
reasons "and does not condemn that practice". Ibid. "But
segregated confinement under maximum security conditions is one
thing; segregated confinement under the punitive conditions that
have been described is quite another thing." Ibid. The Court
made clear that it was not prohibiting all segregation of unruly
prisoners from general population and referred to the Eighth
Circuit's controlling decision relating to so-called "administra-
17/ [Continued]
Respondents will be, and they hereby are,
directed and required to afford inmates in
punitive isolation reasonably adequate oppor
tunities for physical exercise outside their
cells, including reasonable amounts of out
door exercise when weather permits.
Lest there be any mistake about the matter,
respondents will be, and they hereby are, enjoined
from confining in any cell in any of the three
wings of the East Building at Cummins, in circum
stances other than exceptional and then for only
short periods of time, more than two men at the
same time, and respondents will be, and are,
required to provide each man so confined with a
bunk and mattress.
Respondents will be, and they hereby are,
directed and required to evaluate and periodically
re-evaluate the c-ases of inmates confined in what
the court has called the "third wing" of the East
Building, (Opinion page 60) as prescribed on
pages 62-64 of the Opinion, and to take appro
priate actions based on such evaluations and re-
evaluations.
28
tive segregation", e.g., Kelly v. Brewer, 525 F .2d 394 (8th Cir.
1975). See 410 F.Supp. at 278. Judge Henley based his decision
to limit the time in punitive isolation to thirty days on the
testimony of Mr. Hutto taken in conjunction with the
various changes that were ordered in conditions in that wing.
The Court stated:
"As to the length of the maximum sentences
that maybe imposed, the court notes that Mr. Hutto
is of the view that basically the maximum period
of time in which a man should be confined in puni
tive isolation with a restricted diet, with no
mattress in the daytime, and perhaps without a
bunk to sleep in at night is fourteen days.
In view of the changes in the confinement in
punitive isolation that the court is ordering,
the court feels that a maximum sentence of thirty
days is permissible. If at the end of that maxi
mum period, it is found that an inmate should
not be returned to population, he may be kept
segregated but under conditions which are
not punitive." (410 F.Supp. at 276).18/
The Court pointed out that less than thirty day sentences might
be imposed and also that inmates might be prosecuted for felonies
if they committed serious crimes while in prison. 410 F.Supp. at
278.
Judge Henley also used the thirty day limit on punitive
confinement as a part of the method of dealing with uncon
stitutional overcrowding. "As far as the punitive wing and
the administrative segregation wings of the East Building are
concerned, the directives of the Court in the immediately preced
ing section hereof ought to take care of the problem of overcrowd
ing." 410 F.Supp. at 278.
18/ Indeed, the report filed by the defendants following
the Third Supplemental Decree states that an inquiry showed
that there was no one at any institution on punitive isolation
who had been there for more than 30 days at the time of the
Court's Order. See, Response filed by the Defendants in Finney
v. Hutto, July 14, 1976, Commissioner's Report to the Court as
Directed in the Third Supplemental Decree at p. 5, dealing with
punitive isolation.
29
In the third wing, which would probably be called "adminis
trative segregation" in most institutions but in Arkansas was
merely referred to as the "third wing" or "maximum security
wing, the Court also ordered certain changes. Here the Court
ordered periodic evaluation of the situation of convicts who
could not be safely returned to the general population in accord
with the Eighth Circuit's ruling in Kelly v. Brewer, supra.
In the Clarifying Memorandum Opinion of April 2, 1976, the
Court responded to an inquiry from the defendants about how to
deal with prisoners who committed infractions while in punitive
isolation. The Court stated that if an inmate in punitive isola
tion commits a serious infraction he may be proceeded against in
a disciplinary proceeding just as though the offense had been
committed by an inmate in the general population. A. 190.
If an inmate is found guilty the Court stated he may be sentenced
to an additional time in punitive confinement beyond the basic
thirty day maximum period specified in the Third Supplemental
Decree. Ibid. The Court however warned the defendants to move
slowly and sparingly in this area, and not to use the major
disciplinary procedures followed by consecutive sentences as a
means of evading the prohibition againt indeterminate sentences.
The Court stated that if the imposition of consecutive sentences
became a matter of common practice it would be constitutionally
suspect and call for additional judicial attention. Ibid.
The Court also clarified its order with respect to food to
provide that inmates in punitive isolation not be required to be
served exactly the same food or the same size portions or have
30
the same choice of dishes as other inmates but the Court did
require that inmates be served adequate meals in punitive con
finement and warned against the practice of deliberately serving
short rations. A. 191-192.
The Court's ruling on attorneys' fees is set forth in 410
F.Supp. at 281-285. The Court noted that Mr. McMath who was
appointed in 1974 had received no fee for his work and that
Messrs. Holt and Kaplan had received no fee for their work on
the Holt III appeal or any subsequent work. The Court noted
that its 1973 award of fees had been based in part upon the
"private attorney general" theory and that Edelman v.
Jordan, 415 U.S. 651 (1974) and Alyeska Pipeline Service Co.
v. Wilderness Society, 421 U.S. 240 (1975) required a reexami
nation of the Court's power to award such a fee. The Court
concluded that the bad faith exception to the American Rule,
recognized in Alyeska, justified the award of a counsel fee in
this case. 410 F.Supp. at 284. The Court noted that the
attorneys involved had been in the protracted case only because
they had been appointed; that the litigation had been needed to
bring about the erratic course of improvement in the Arkansas
prison system from 1965 to date; that the litigation brought to
light problems which would have been otherwise overlooked; that
there had been a hardening of the previously cooperative
attitude of the prison administrators and an unwillingness to
go forward with necessary improvements; that at "practically
every stage of the litigation evidence has brought to light
practices of which those in higher prison authority were
ignorant, and which they eliminated when the facts were disclos
31
ed"; that the authorities should have themselves discovered
some of those practices without waiting for them to be develop
ed in the lawsuit by plaintiffs' attorneys. Id, at 284-285.
The Court stated that in fixing the amount of the fee it was
making no effort "to adequately compensate counsel for the work
that they have done or for the time that they have spent on the
case" because adequate compensation "would run into many
thousands of dollars." Id. at 285. The Court stated it
did wish to allow more than a nominal fee and accordingly
awarded $20,000.00 to be divided between the three attorneys
and to be paid out of Department of Corrections funds. The
Court also ordered the State to pay for the cost of a tran
script of depositions and testimony. The Court noted that much
of the testimony heard in 1974 and 1975 had not been tran
scribed. 410 F.Supp. at 285, note 14.
On appeal by the defendants the Eighth Circuit affirmed on
January 6, 1977. Finney v. Hutto, 548 F.2d 740 (8th Cir. 1977).
The defendants contested the aspects of the decree which pro
hibited indeterminate confinement in punitive isolation and which
awarded attorneys' fees and costs. The Eighth Circuit accepted
Judge Henley's description of the conditions in punitive isola
tion and affirmed his conclusion that indefinite confinement in
those conditions for more than thirty days was cruel and unusual
punishment. The Court affirmed the award of attorneys fees
reasoning that the award was justified by the recently
enacted Civil Rights Attorneys Fee Awards Act of 1976,
codified as 42 U.S.C. §1988. The Court reasoned that the award
was not barred by the Eleventh Amendment based upon this Court's
32
decision in Fitzpatrick v. Bitzer, 427 U.S. 445 (1976). The
Court also found that the record fully supported the District
Court's finding that the conduct of the defendants justified an
award under the bad faith exception enumerated in the Alyeska
case. 548 F .2d at 742, n.6. Finally, the Court found the award
of costs permissible under the Eleventh Amendment citing Fairmont
Creamery Company v. Minnesota, 275 U.S. 70 (1927). The Court of
Appeals awarded the appointed counsel an additional $2,500.00 for
their services on the appeal.
On October 17, 1977, this Court granted a petition for
certiorari filed by the defendants Hutto et al.
33
SUMMARY OF ARGUMENT
I. A. The Eighth Amendment limits the prison condi
tions in which an inmate may be confined. Because the prisoner,
by reason of the deprivation of his liberty, cannot provide for
himself, prison authorities must furnish such essentials as
food, clothing, shelter, sanitary facilities, and medical
treatment. Estelle v. Gamble, 50 L.Ed. 2d 251 (1977).
B. The disputed 30 day limitation on punitive
segregation was part of the court ordered remedy for the
unconstitutional conditions the District Court found in the
punitive facilities in 1976. Petitioners do not question the
holding of the lower courts that the 1976 conditions constit
uted cruel and unusual punishement. The principle elements
on which the District Court based its finding of a consti
tutional violation included severe overcrowding, the lack of an
adequate diet, and physical attacks on inmates by guards and
other inmates.
C. The District Court did not hold that indefinite
punitive segregation was a per se violation. The Court merely
imposed the 30 day limitation in light of the conditions at
the particular punitive facilities involved.
D. The 30 day limitation was reasonably adapted to
remedy the proven violation. The 30 day rule limited the
extent to which an inmate would be subject to the conditions
found by the District Court, many of which would have been
difficult to alter directly. The limitation also lowered the
average population in the punitive facilities and thus reduced
the degree of overcrowding. This was a less intrusive remedy
than attempting to regulate and monitor in great detail the
events and practices in the punitive facilities.
34
II.A. The District Court awarded respondents
counsel fees because the defendants had acted in bad faith
and directed that petitioners pay that award out of state
funds under their control.. The finding of bad faith was
affirmed by the Court of Appeals and is not questioned here.
The general authority of the federal courts to award fees in
light of such conduct is well established Alyeska Pipeline
Service Co. v . The Wilderness Society, 421 US. 240, 259
(1975).
The Eleventh Amendment does not preclude such
an award of counsel fees. State officials may be directed to
make expenditures from public funds under their control so long
as that expenditure is "ancillary" to the injunctive relief.
Milliken v. Bradley 53 L.Ed,2d 745 (1977). This Court, by its
decisions and practice, has long recognized that costs are
ancillary and thus may be awarded against a state. Fairmont
Creamery v. State of Minnesota, 275 U.S. 70. Counsel fees
where awardable are traditionally regarded as part of costs
Like costs counsel fees are not the gravamen of an action, are
not incurred to a significant degree if the action is resolved
immediately after filing- and are not measured in terms of the
monetary loss resulting from the defendant's violation of a
legal duty.
If, as petitioners contend, counsel fees
must be regarded as a form of damages, the state is obligated
by Arkansas Act 543 of 1977 to pay such award on behalf of
petitioner Hutto.
Respondents maintain that the enactment of
the Fourteenth Amendment worked a pro tanto repeal of the
Eleventh Amendment. If, however, the Court concludes that
counsel fee awards are not subject to the Eleventh Amendment,
this question need not be reached.
35
B. The Civil Rights Attorneys Fees Award Act of 1976,-
P.L.94-559, was adopted in the wake of the Alyeska decision to
provide in 42 U S C, §1983 cases an express congressional
authorization for awards of counsel fees to lawyers acting as
private attorneys general. The court of appeals upheld the
award of counsel fees in light of this statute.
Although P.L. 94-559 does not specify against whom fee
awards are to be made, such awards of costs are traditionally
made, not only against the named defendant, but also against an
interested party which interjects itself into the case and
controls the litigation _Souffront v. Compagnie des Suceries,
217 U.S. 475 (1910). In §1983 cases the city or state involved
commonly interjects itself into the case in this manner. The
House and Senate Reports regarding P.L. 94-559 expressly state
that city or state funds should be used to pay counsel fee
awards in civil rights actions in which the named defendant
is a city or state official
Congress has the authority under section 5 of the
Fourteenth Amendment to subject states to monetary awards in
federal court. Fitzpatrick v. Bitzer, 427 U.S. 445 (1976). The
legislative history demonstrates that Congress intended to
invoke that authority.
Despite the clear intent and authority of Congress,
petitioners urge that Congress failed to frame the statute
in a manner sufficient to*achieve, its purpose. The decisions
of this Court do not require that Congress exercise the power
recognized in Fitzpatrick through any special technical
language. It is sufficient that, as here, the intent of
Congress is clear. If petitioners' construction of P.L 94-559
were accepted state officials would be personally liable for
36
often substantial fees regardless of whether they had acted in
good faith or had any control over the conduct of the litigation.
The application of P L. 94-559 to the instant case
is reouired by the general rule that new legislation be applied
to pending litigation Bradley_v. School Board of the City
of Richmond, 416 U.S. 696 (1974), The legislative history of
the statute demonstrates that Congress intended that it be
so applied. The application of the law to this case involves
no "manifest injustice", since petitioners were on notice that
such fees might be awarded and do not claim they would have
operated the prisons differently had that not been the case.
- 37 -
\
ARGUMENT
I. THE DISTRICT COURT PROPERLY FORBADE THE USE OF
INDEFINITE PUNITIVE SEGREGATION AS PART OF ITS
REMEDY FOR THE UNCONSTITUTIONAL CONDITIONS IN
THE PUNITIVE FACILITIES
A. The Cruel and Unusual Punishment Clause of the
19/ 20/
Eighth Amendment, which limits both how long and whether
a person can be sentenced to jail, restricts as well the
treatment to which he can be subjected while so incarcerated.
The prohibition has not been confined to the barbarous methods
of torture and mutilation generally outlawed in the 18th
Century, but prohibits practices repugnant to "the evolving
standards of decency that mark the progress of a maturing
society." Trop v. Dulles, 356 U.S. 86, 101 (1958). Confinement
in a penitentiary necessarily entails a loss of most of the
comforts enjoyed by free men; the very purpose of such incar
ceration may require that it not be a pleasant experience. But
such punishment, if punishment be the goal of incarceration,
may not include "the unnecessary and wanton infliction of
pain". Gregg v. Georgia, 428 U.S. 153, 173 (1976). The Eighth
Amendment "cover [s] conditions of confinement which may make
intolerable an otherwise constitutional imprisonment." Ingra
ham v. Wright, 51 L.Ed.2d 711, 729, n. 38 (1977).
As this Court recognized in Estelle v. Gamble, 50 L.Ed.2d
251, precisely because an inmate is incarcerated he must rely
on prison authorities to meet his basic needs, for "if the
authorities fail to do so, those needs will not be met." 50
19/ Weems v. United States, 217 U.S. 349 (1910).
20/ Robinson v. California, 370 U.S. 660 (1962).
38
L.Ed.2d at 259. Estelle held that the Eighth Amendment re
quires the government "to provide medical care for those whom
it is punishing by incarceration." Ijd. In Costello v . Wain-
wr ight, 51 L.Ed.2d 372 (1977 ), the Court recognized that the
overcrowding of prison cells could reach such a degree that the
constitution would be violated. The obligation of prison
authorities recognized* by Estelle is not limited to the provi
sion of medical care, but includes all basic necessities of
life: food, clothing, shelter, sanitary and washing facilities,
and opportunity for a modicum of exercise. Modern standards of
decency, as reflected in the practices generally employed and
approved by prison authorities, correctional experts, and
21/
others insist that society "be required to care for the
21/ National Advisory Commission on Criminal Justice Standards
and Goals, Corrections, pp. 31 (clothing, bedding,1ight,
ventilation, food), 34 (shelter, heat, light, showers, exercise
(1973); American Bar Association, Tentative Draft of Standards
Relating to the Legal Status of Prisoners, §§6.9 (shelter,
physical safety), 6.12 (sanitation, heat, light, food, washing
facilities, bedding, exercise) (1977); American Correctional
Association, Manual of Correctional Standards, pp. 444-56
(food), 463 (bedding), 463-4 (washing facilities), 519-39
(exercise) (1972); National Council on Crime and Delinquency,
Model Act for the Protection of Rights of Prisoners, §l(b)
(food, shelter, physical safety, sanitation, ventilation,
light, exercise) (1972); Model Penal Code, §304.5(2)(food,
clothing); Fourth United Nations Congress on Prevention of
Crime and Treatment of Offenders, Standard Minimum Rules for
the Treatment of Prisoners, §§9 (shelter, overcrowding), 10
(heat, light, ventilation), 11 (sanitation), 13 (washing facili
ties), 19 (bedding), 20(1) (food), 21(1) (exercise) (1955).
National Sheriff's Association, Manual on Jail Administration,
§§ IX(5) (clothing) XIX (food), XX(ii) (sanitation)*, XX(12)
(washing facilities), XXI(8)(exercise) (1970).
The United States is committed by the Geneva Convention
to providing such necessities to prisoners of war. 6 United
States Treaties 3317, 3328 (humane treatment, protection
against violence), 3334 (food, water, clothing), 3336 (hygienic
and healthful shelter), 3338 (bedding, blankets, housing,
light, heat), 3340 (food, water, clothing), 3342 (sanitation),
washing facilities. 3348 (exercise) (1949).
39
prisoner, who cannot, by reason of the deprivation of his
liberty, care for himself." Estelle v. Gamble, 50 L.Ed.2d at
22/
260. A deprivation of such necessities, like a withholding of
medical care, is a form of punishment which cannot be resorted
23/
to for any offense or infraction.
Unlike other constitutional questions concerning the
operation of prisons, enforcing minimal standards of food,
clothing, shelter and the like will not ordinarily affect the
resonsibilities of prison administrators "for maintaining
internal order and discipline, for securing their institutions
against unauthorized access or escape, and for rehabilitating
... inmates placed in their custody." Procunier v. Martinez,
416 U.S. 396, 404 (1974). Any impact of the elimination
of brutalizing conditions is likely to be, as the District
Court found here, conducive to the increased efficiency
and safety of the institution. This is true, not only because
giving an inmate a wholesome diet or a bed to sleep on will not
encourage or facilitate a breach of security, but because
ordinarily a prison's failure to do so arises not from such
traditional administrative concerns but from a shortage
or misallocation of resources or a breakdown in centralized
22/ The lower Federal courts have concurred in that assessment.
See, e.g., Newman v. Alabama, 559 F .2d 283, 286, 291 (5th Cir.
1977); Gates v. Collier, 501 F .2d 1291, 1302, 1305 (5th Cir.
1974). Although these cases are primarily concerned with condi
tions which may produce physical suffering, Judge Feinberg has
correctly observed that "In this Orwellian age, punishment that
endangers sanity, no less than physical injury by the strap, is
prohibited by the Constitution." Sostre v._McGinnis, 442 F .2d
178, 208 (2d Cir. 1971) (dissenting opinion).
23/ Such a deprivation, like the use of torture, has no place
in any part of a prison. Thus it is of no significance to this
case that deprivations of this character occurred in punitive
isolation rather than in other parts of the prisons. Since
40
control of the prison staff. In the instant case, for example,
the uniquely deplorable conditions discovered in 1969, includ
ing the use of armed convicts as guards, was the result of the
refusal of the Arkansas legislature to appropriate any funds
whatever for the operation of the prison system, which was
forced to operate from the proceeds of convict labor. 309
F.Supp. at 372-381. The District Court proceedings and other
developments led to the appropriation of such funds which in
turn enabled the prison authorities both to comply with the
Constitution and to operate the prison in a manner more consis
tent with their professional judgment. The Constitution does
not require the states to establish and operate prisons, but
where they choose to do so they must provide the resources
necessary to fall within the limits set by the Eighth Amend
’ 24/
ment.
Neither this nor other cases concerning the provision of
basic necessities for prisoners involves a possible thwarting
of the judgment, of particular importance under Eighth Amend
ment, of the people or legislature of the State involved. See
Gregg v.Georgia, 428 U.S. 153, 186-87 (1976). No state statute
required the particular conditions found at Cummins or Tucker.
State laws touching on the conditions of confinement generally
set minimum, not maximum, standards; some like those of
23/ [Continued]
punishment of this sort is absolutely prohibited, the Court
need not consider whether it was an excessive sanction for any
class of disciplinary infractions, see Coker v. Georgia, 53
L.Ed.2d 982 (1977), or whether any particular_infractions^could
not constitutionally be punished at all. Robinson_v^— Cal ifornia
370 U.S. 660 (1962) .
24/ See Gates v. Collier, 501 F .2d 1291, 1319-22 (5th Cir.
1974).
41
Arkansas are generalized requirements of decent treat-
26/
ment, while others are more detailed. Where, as in
27/
Arkansas, those statutes are supplemented by administra
tive regulations, the regulations contain minimum rather
than maximum standards. Thus in litigation regarding the
constitutionality of prison conditions, those conditions do
not ordinarily come with the imprimatur of societal endorse
ments which exists in the case of punishments adopted by a
legislature. Gregg v. Georgia, 428 U.S. at 179-80. Because
prisons, unlike other institutions, are usually operated on
a closed basis with little opportunity for scrutiny by the
28/
public or legislature, the severity of those conditions
25/
25/ Ark. Stat. Ann.
to the institutional
humanely with efforts
§46-116 requires that "Persons committed
care of the Department shall be dealt with
directed to their rehabilitation"
26/ See, e.g., New York Corrections Law §137 (1977 Supp.).
27/ The operation of all jails and prisons, including those
under the control of the Department of Corrections, is subject
to the rules and regulations of the Arkansas Criminal Detention
Facilities Board, which is charged by statute with the obliga
tion "[t]o develop minimum standards for the construction,
maintenance and operation of such criminal detention facili
ties." 4A Ark. Stat. Anno. §§46-1201, 1204(f) (1975 Supp.).
The conditions condemned by the district court appear to have
violated the Board's standards as well as the Eighth Amend
ment. See. notes 30-32 infra. See also Wright v. McMann,
460 F . 2d 126, 131 (2d Cir. 1972), cert, denied 409 U.S.
885 (1972).
2 8 / See Newman v. Alabama, 559 F.2d 283, 288 (5th Cir. 1977)
("We cannot believe that the good people of a great state approved
the prison situation demonstrated by the evidence in this case").
42
is rarely tested against community standards, and the judicial
enforcement of the prohibition against cruel and unusual
punishment will frequently be the only meaningful check
on abuses inconsistent with the standards of decency embodied
in the Eighth Amendment and prevalent in the community in which
the prison operates. See Ingraham v. Wright, 51 L.Ed.2d 711,
729-30 (1977).
Application of the constitutional requirements to the
circumstances at a particular facility will raise a variety of
of factual and legal issues. Some practices, such as the
deliberate withholding of medical attention, are per se viola
tions of the Eighth Amendment. Estelle v.Gamble, 50 L.Ed.2d
251 (1977). Assessing other possible abuses, such as an
alleged inadequacy of food or heat, will involve a question of
degree. In other cases, although no single practice may
violate the Constitution, the combined effect of several prac
tices may do so. Gates v. Collier, 501 F .2d 1291, 1309 (5th Cir.
1974). Some conditions, while not unconstitutional as a general
practice, may be intolerable as applied to a particular inmate;
thus although there is nothing wrong in the abstract with prison
diet rich in sugar, it would be cruel and unusual punishment to
provide only such food to a diabetic inmate. See Sostre v .
McGinnis, 442 F.2d 178, 193, n.23 (2d Cir. 1971).
B. The District Court concluded that the conditions
which existed in 1976 in punitive segregation constituted cruel
and unusual punishment. That conclusion was reached reluctant
ly, and was based on many weeks of hearings over seven years
which, together with at least one personal inspection of the
prison facilities involved, gave the District Judge a unique
- 43 -
knowledge of the facts. The District Court's conclusions were
upheld by the Court of Appeals, which had also acquired a
familiarity with the Arkansas prisons through a series of
previous appeals in this and other cases. Petitioners do not
here challenge the concurrent determination of the two courts
below regarding the nature of punitive segregation as of 1976.
In order, however, to assess the propriety of the 30 day
limitation, it is necessary to review the circumstances
which gave rise to the finding of a constitutional violation.
The problems with which the District Court was particul-
29/
arly concerned were overcrowding, an inadequate diet and perva
sive violence. Although the cells in the punitive wing at
Cummins were originally designed for one inmate each, see n.19,
supra, and had at most two beds, id. at 275-276, they were at
30/
times used to house three or four inmates. Thus frequent
ly one or two inmates were required to sleep on the floor. The
Court noted that:
[convicts] being what they are, that means
that the stronger and more aggressive inmates
are going to occupy the bunks, and they are
also likely to persecute the weaker inmate or
inmates. A variant of this is that where
three convicts are confined in a single cell,
two of them are apt to team up against the
third one. 410 F.Supp. at 276.
29/ Overcrowding which serves no conceivable penological
purpose, is among the most common causes of unconstitutional
prison conditions. See, e.g., Costello v . Wainwright, 51 L.Ed.2d
372 (1977); Newman v. Alabama, 559 F .2d 283 (5th Cir. 1977);
Williams v. Edwards, 547 F .2d 1206, 1211, 1215 (5th Cir. 1977).
30/ The Adult Detention Facility Minimum Standards for long
term facilities, promulgated in December 1975 by the Arkansas
Criminal Detention Facilities Board, provided in part: "The
design of buildings should provide single occupancy rooms with
a floor area of at least (70) seventy square feet per room and
a clear floor-to-ceiling height of (8) eight feet in the
interior." §15-1023, p. 48. See n. 27, supra.
44
The "grue" fed to inmates was alleged to contain ingredients
sufficient for adequate nutrition, but the amount of grue
served together with 4 slices of bread provided only 962
31/
calories a day. Although this diet was supplemented every
third day with a regular meal, there was substantial evidence
that the guards deliberately gave only a partial serving of
that meal to some inmates. 410 F.Supp. at 276, n.ll. Prac
tically all inmates on a grue diet in punitive isolation lost
weight. The extent to which this loss was due to the nutritive
value of grue, and/or to the inability or unwillingness of
inmates to eat that deliberately unappetizing paste-like
32/
concoction, is unclear. Petitioners themselves recognized
that the actual nutritional intake of inmates in punitive
segregation was such as to require a thorough physical examina
tion every two weeks. 505 F.2d at 207. The Court of Appeals
had earlier compared grue to a bread and water diet which was
"not seriously defended as essential to security . . . [and]
amount [ed] therefore to an unnecessary infliction of pain." 505
F.2d at 207, n. 9. It is clear that the use of grue served no
purpose other than to punish inmates through a form of con-
31/ The average adult male needs between 2200 and 2900
calories a day. The American Correctional Association Manual
of Correctional Standards urges that prisoners in punitive
segregation receive at least 3,100 calories a day. P.420 (1972).
The National Council on Crime and Delinquency's recommended
standards for prisoners in solitary confinement would require at
least 2500 calories a day. Model Act for the Protection of
Rights of Prisoners, §3(a) (1972). See also Gates v. Collier,
501 F.2d 1291, 1305 (5th Cir. 1974) (requires at least 2000
calories a day for prisoners in solitary confinement.
32/ Section 10-1001 of the Adult Detention Facility Minimum
Standards, supra n. 27, states: "A good food program shall be
one of the Facility administrator's primary concerns; because
of its effect on health, welfare, discipline and morale. ...
The inmates' food shall provide the nutrients needed for optimum
health and should be plentiful and of a wide variety, well
prepared, and well served." P.37.
- 45 -
trolled but chronic malnutrition; the role of the medical
personnel was not to prevent this partial starvation., but
merely to assure that it did not cause death or permanent
33/injury.
The Court also found that its previous injunctive orders
had apparently been disobeyed. Despite an earlier prohibition
against brutality, it concluded prison guards continued
to use excessive force. 410 F.Supp. at 277. Notwithstanding a
prior directive that Muslim inmates enjoy the same right to
practice their religion, and meet with clergy, as inmates
of other faiths, there was substantial evidence that discrim
ination against them continued. 410 F.Supp. at 280-81. Al
though racial discrimination against inmates had already been
prohibited, the Court felt that covert discrimination had not
ended. 410 F.Supp. at 268. The District Court noted a number
of other practices which aggravated these more pronounced
abuses, including a lack of repairs, inadequate training and
rotation of guards, and the employment of an overwhelmingly
white work force to run the heavily black prisons. 410 F.Supp.
at 265-68, 277, 280. The Court also noted that the overcrowd
ing and sanitary conditions in the punitive wing contributed to
the spread of contagious diseases. 410 F.Supp. at 258-9.
33/ The special diet, even if nutritionally adequate, would
still present serious constitutional difficulty. Forcing
inmates to eat food deliberately prepared in an offensive or
unpalatable manner is a form of punishment offensive and
largely unknown to civilized practice. The "recipe" for grue
is similar to the practice condemned by the American Correctional
Association of "Mix[ing] several types of foods together in a
dish so that the prisoner's fare closely resembles a meal set
out for an animal to eat." Manual of Correctional Standards, p.
420. (1972).
- 46 -
t
The injunctive relief awarded by the District Court was
considerably narrower than the wide range of practices which
gave rise to the constitutional violation. The Court forbade
the housing of more than two men in a one-man cell except in an
34/emergency, stopped the serving of grue and directed the
petitioners to provide inmates with a nutritionally adequate
35/diet, and limited the period during which an inmate could
36/
be confined in punitive isolation to 30 days. The Court
reaffirmed, but did not significantly expand, its previous
injunction against racial and religious discrimination. The
petitioners were instructed to "do more" about recruiting
minority guards, but were left free to decide how this should
be done. The Court ordered the petitioners to arrange for a
study for the medical and sanitary conditions at the prisons,
including the punitive wing at Cummins, but again the peti
tioners were made initially responsible for framing the study
and implementing any resulting recommendations. Although the
District Judge made clear his concern that changes were neces
sary in other areas, the court's injunction did not require the
petitioners to take any specific action regarding the rotation,
training, or number of guards, or the repairing of broken or
worn out facilities, and merely noted the Court of Appeals'
concern about the levels of light, heat and ventilation. Thus,
34/ 410 F.Supp. at 277
35/ 410 F.Supp. at 277
36/ 410 F .Supp. at 278
47
to a substantial degree the District Court continued its
earlier approach of noting the existence of constitutionally
suspect practices but refraining from issuing detailed injunc
tive requirements in the hope that petitioners would act
37/
without them.
C. There are a number of important issues of consti
tutional law which, although suggested by petitioners' brief,
are not presented by this case and were not the subject of the
proceedings below.
This case does not present the question of whether
38/
indefinite punitive segregation is unconstitutional per se.
The district court was not asked to fashion, and did not
adopt, any such per se rule. Its opinion declared only that
"segregated confinement under the punitive conditions that had
been described" in its exhaustive opinion violated the Eighth
Amendment. 410 F.Supp. at 278. The primary if not exclusive
impact of this decision is on the operation of the East
39/
Building at the Cummins facility. While other lower
courts in other cases have been asked to declare such indefi-
37/ We do not suggest that this approach was necessary or
even proper. On the contrary, while a district court may
properly invite prison officials to submit a remedial plan, and
take note of their comments on plans that may be prepared by
another party or the court, the court must assure that some
plan to remedy the constitutional violation is put into effect
as soon as practicable after the finding of liability. See
Green v. School Board of New Kent County, 391 U.S. 430, 439°
(1968).
38/ The petition for writ of certiorari, and petitioners'
phrasing of the Third Question Presented, may have suggested
this was the substantive issue in controversy.
39/ At the time of the court's opinion only 3 inmates were in
punitive isolation at Tucker. See note 18 supra.
48
nite isolation impermissible in all cases, no such determina
tion was made in this case. Even those courts which have
addressed that issue and concluded that indefinite segrega
tion is not unlawful per se have emphasized that such segrega
tion might be unconstitutional "depending on the conditions of
segregation". Sostre v. McGinnis, 442 F .2d 178, 193, n.23 (2d.
Cir.1971).
There is no dispute in this case as to whether the 30
days of punitive isolation permitted by the District Court is
too short to serve as adequate punishment for any particular
40/
major infraction. If, as we urge infra, some limit on the
use of punitive segregation was appropriate, petitioners do not
urge that a period other than 30 days should have been
chosen. On the contrary, petitioners' own internal regula
tions prohibit the imposition for a particular offense of more
than 15 days of punitive isolation, See, note 11 supra.
The maximum period set by the District Court was consistent
41/with those suggested by corrections experts. As the
40/ Petitioners' Notice of Appeal limited the substantive
issue on which review was sought to those portions of the
district court orders which "prohibit the sentencing of inmates
to confinement in punitive isolation for indeterminate periods
of time for major disciplinary infractions." Although this
suggested that petitioners sought on appeal only the right to
impose a sentence over 30 days for a particular infraction,
petitioners, as we note, have never had such a practice.
4 1 / See, e.g., American Correctional Association, Manual
of Correctional Standard, 414—15 (maximum 15 days); American
Law Institute, Model Penal Code §304.7(3) (Proposed Official
Draft 1962) (Maximum 30 days); American Bar Association,
Standards Relating to the Status of Prisoners (Tentative
Draft), §3.2(a)(iii) (30 days). National Advisory Commission
Criminal Justice Standards and Goals, Corrections, p. 31 (10 days).
The maximum period of punitive confinement permitted by
the Geneva Convention Relative to the Treatment of Prisoners of
War is also 30 days. 6 United States Treaties 3317, 3364 (1949).
49
Distr ic
use of
punish
t Court noted, its order does not interfere with the
administrative segregation or criminal prosecution to
offenses in lieu of, or in addition to, up to 30 days of
punitive isolation. 410 F.Supp. at 278.
The District Court's order presents no significant
limitation on the ability of
major infractions. Ten days
the lengthy opinion of March
251, petitioners filed a Mot
that motion stated:
petitioners to punish a series of
after the District Court entered
19, 1976, reported at 410 F.Supp.
ion to Alter or Vacate. Item IV of
Respondents respectfully request that the Court
clarify its injunction prohibiting incarceration
of inmates on punitive [segregation] not to exceed
thirty days. The respondents are unclear as to
the proper procedure to follow if an inmate commits
a new disciplinary offense warranting an additional
sentence of punitive segregation while incarcerated
in punitive segregation.
The District Court issued a Clarifying Memorandum Opinion
on April 2, 1976, making clear that the petitioners could
impose successive sentences for successive major infractions:
If an inmate confined in punitive isolation
or punitive segregation commits while so confined
a serious or major disciplinary infraction, and
particularly one involving violence or attempted
violence directed at prison personnel or other
inmates or one involving serious vandalism directed
against state property, the inmate may be proceeded
against in a major disciplinary proceeding, with
notice and hearing, just as though the offense had
been committed by the inmate while living in general
population. And if he is found guilty he may be
sentenced to additional time in punitive confine
ment, which time may extend beyond the expiration of
the basic maximum thirty day period specified in
the court's Third Supplemental Decree.42/
The District Court cautioned that this authority was not to be
42/
abused to circumvent the 30 day limitation.
Clarifying Memorandum Opinion, April 2, 1976, p. 3. A. 188.
Id, pp., 3-4. A. 188.
42/
43/
50
The practice which was ended by the district court and
which is the subject of this appeal was one of confining an
inmate in punitive isolation for an indefinite period until prison
authorities were persuaded that the inmate had developed "the
proper attitude". The District Court found that
[w]hile most inmates sentenced to punitive isolation
are released to population within less than four
teen days, many remain in the status in question #
for weeks or months depending upon their attitudes
as appraised by prison personnel. 410 F.Supp. at
275.
The petitioners' written Disciplinary Procedures seem to
contemplate this exception to their usual 15 day limitation on
punitive segregation.
Ordinarily no inmate should be retained in punitive
segregation on restrictive diet more than 15
days, and normally a shorter period if sufficient.
Punitive segregation is not for indefinite or
permanent segregation. . . . Fifteen days should be
the maximum time spent in punitive segregation.
Recalcitrant inmates at the end of this period
should be fed a normal diet. After two or three
days, depending upon physical condition, he may be
returned to a restricted diet and the procedure
continued.44/
Petitioner Hutto testified that punitive isolation for more
than two weeks was used only for inmates who were "recalci-
45/
trant" and "hostile". The sole practical effect of the
contested portion of the District Court order was to restrict
this use of punitive isolation; that order did not prohibit
44/ Arkansas Department of Corrections, Disciplinary Proce
dures, p. 14.
45/ 1975 Transcript, Volume 23, , P- 47.
51
the use of any other methods for dealing with recalcitrant or
46/
hostile prisoners. 410 F.Supp. at 278.
We have grave doubts as to the constitutionality of
imposing any serious sanctions until an inmate changes a
"bad attitude". This Court in Wolff v. McDonnell, 418 U.S.
539, 571 (1974), held that an inmate was entitled prior to the
use of solitary confinement or other "major changes in the
conditions of confinement" to a written notice of charges,
a written statement of the evidence relied on, and an opportu
nity to call witnesses and present documentary evidence. These
procedures were not followed in making decision to retain for
longer than 15 days an inmate with a "bad attitude", and it is
difficult to see how they could have been in light of the
47/
vagueness of that standard. Unlike a civil contempt pro
ceeding, in which the incarcerated individual can obtain his
release by agreeing to perform some clearly specified act, an
inmate in punitive isolation may well have no idea what
he must do to win his release. Punitive sanctions have tradi
tionally been imposed in Anglo-American jurisdictions only for
46/ The District Court was not asked to consider and did not
decide whether the use of indefinite administrative segregation
for this purpose is constitutional. Although that question is
thus not before this Court, respondents believe that that
practice is also unlawful.
47/ For an example of the potential for abuse inherent in a
policy of using indefinite sanctions to make a prisoner "sub
servient and break him down", see Wright v. McMann, 321 F.Supp.
127 (N.D.N.Y. 1970), aff'd 460 F.2d 126 (2d Cir. 1972), cert
denied 409 U.S. 885 (1972).
52
a specific prohibited action; the imposition of such a sanction
for a "bad attitude" bears a great resemblance to the crime of
status condemned in Robinson v. California, 370 U.S. 660
(1962). In the instant case, however, the general validity of
this practice need not be decided, since the district court's
decision imposing a 30 day limit on punitive isolation has the
effect of precluding the use of punitive isolation for this
purpose.
D. The issue thus presented by the 30 day limitation
is whether the District Court exceeded its authority in includ
ing that provision in its order remedying the clear and undis
puted constitutional violation. In fashioning a remedy for a
constitutional violation "the scope of a district court's
equitable powers to remedy past wrongs is broad, for breadth
and flexibility are inherent in equitable remedies." Milliken
v. Bradley, 53 L.Ed.2d 745, 756 (1977). The District Court
enjoyed considerable discretion in fashioning a workable and
effective remedy so long as the means chosen was related
to the constitutional violation, was designed to restore the
victims to the position they would have occupied in the absence
of the violation, and did not unnecessarily interfere with
legitimate prerogatives of state or local authorities. Id. at
755-756. Those requirements were clearly met in the instant
case.
A violation of the constitutional prohibition against
cruel and unusual conditions of incarceration is often a
function of both the conditions of incarceration and the
length of time the inmate is subjected to them. See 410
F.Supp. at 275. Denial of a bed, nutritious food, medical
53
care, bathing facilities and/or exercise for several hours
would not ordinarily raise constitutional problems, but such a
denial for a period of weeks would amount to an impermissible
"wanton and unnecessary infliction of pain". Gregg v .
Georgia, 428 U.S. 153, 173 (1976). While other deprivations
might be lawful for even a period of weeks, "[i]n some in
stances, depending upon the conditions of the segregation, and
the mental and physical health of the inmate, five days or even
one day might prove to be constitutionally intolerable"
Sostre v. McGinnis, 442 F 2d 178, 193, n. 23 (2d Cir. 1971).
See also, LaReau v. MacDougal, 473 F .2d 974, 978 (2d Cir.
1972), cert den. 414 U.S. 878 (1973). Where, as here, the condi
tions and period of incarceration combine to create a consti
tutional violation, a district court may seek directly to remedy
that violation by ordering an amelioration of the intolerable
conditions, a shortening of the period during which they may be
endured, or both. In the instant case the district court acted
48/
reasonably in choosing the latter course.
The 30 day limitation served as well to remedy for all
inmates, however long their sentence to punitive segregation,
the unconstitutional egregious overcrowding. The total popula
tion in the punitive wing at Cummins on any given day is a
function of the number of inmates recently ordered into puni
tive segregation and of the length of each sentence. For
example, if on the average, ten inmates a day are remanded for a
48/ A similar remedy was employed in Gates v. Collier, 501 F .2d
1291, 1305 (1974).
54
period of 5 days, the average population in punitive will be
50; but if only one out of ten of these inmates is kept for 60
days rather than 5, the average population in-punitive isola
tion would be 105. For this reason the District Court properly
concluded that the 30 day limitation would greatly help to
"take care of the problem of overcrowding" 410 F.Supp. at
49/
278.
Many of the abuses which contributed to the unconstitu
tionality of the punitive conditions were practices which it
was particularly difficult for the District Court to detect
or directly change; the 30 day limitation diminished the impact
of these abuses in a manner more effective and less intrusive
on the activities of the petitioners than an attempt by the
district court to prescribe in great detail every operation
of the punitive wing. The District Court's previous general
injunctions against brutality and discrimination had not been
fully complied with. Some portions of the 1976 order, forbidding
certain practices for the first time, could not have been mean
ingfully monitored and enforced without a subtantial ongoing
_50/
federal effort. The District Court also noted a number of
practices, such as the training and deployment of guards, which
contributed substantially to the unconstitutional conditions, but
which it was understandably reluctant to directly interfere
with. The District Court could have issued detailed
49/ In the hypothetical case described in the text applica
tion of the 30 day limitation would reduce the average popu
lation in punitive confinement from 105 to 75.
50/ One of the more serious problems of which the inmates
complained was that at least one guard gave inadequate portions
of food to inmates he disliked by shaking the serving spoon. The
problems of enforcing a ban on this practice are obvious. See
410 F.Supp. at 276, n.ll.
55
orders regarding these and other practices of which inmates had
complained, enforcing those orders through reporting require-
51/ments, grievance machinery, or other means. The District
Court was free to choose, as it did, to reduce the unwarranted
suffering caused by these practices by the simple expedient
of reducing the amount of time any inmate could spend in the
punitive wing where the resulting conditions prevailed. That
choice was particularly appropriate in view of the difficulty
which the District Court had already experienced in learning from
the petitioners what they and their subordinates were doing in
the institutions that were the subject of the litigation. See
410 F. Supp. at 275, 281.
Through the seven years of litigation prior to the
1976 decree the District Court, ever hopeful that the peti
tioners would take voluntary corrective action if the court
brought the facts and laws to their attention, exhibited great
reluctance to directly order the petitioners to conform their
conduct to the constitutional requirements. That optimism,
regrettably, proved unjustified; the hearing in 1975 revealed
that the constitutional violations noted in earlier opinions,
particularly overcrowding, continued. After waiting in vain
for literally years for the petitioners to implement a plan of
their own to deal with these conditions, the District Judge had
51/ See Newman v. Alabama, 559 F.2d 283, 290 (5th Cir. 1977)
(authorizes appointment of a Federal monitor for each of the
state prisons).
56
no choice but to frame a remedy himself. That remedy, to a
substantial degree, merely bound the petitioners to observe
standards which they had established but not adhered to. The
cells at the Cummins punitive wing were generally designed for
one inmate each and had only two beds. 410 F.Supp. at 257.
Defendants' written procedures forbade the use of indefinite
punitive segregation and, provided, in light of the harsh
conditions involved, that no inmate should ordinarily be kept
there for more than 15 days. The District Court's Order,
including establishing a 30 day maximum, assisted petitioners
to bring their practices into conformity with their own princi
ples, was the least intrusive injunctive order that would have
remedied the constitutional violations, and was long overdue.
57
II. THE DISTRICT COURT HAD THE AUTHORITY TO AWARD
COUNSEL FEES AGAINST THE DEPARTMENT OF CORREC
TION
The District Court awarded counsel fees because the peti
tioners had acted in bad faith. 410 F.Supp. at 281-285. The
Court of Appeals held that such an award was also authorized by
the Civil Rights Attorney's Fees Awards Act of 1976. 548 F .2d at
742. Each of these grounds provides an independent basis for
sustaining the award.
A . Counsel Fees May Be Awarded Against State
Officials Or Agencies Which Have Acted In
Bad Faith
In Alyeska Pipeline Service Co. v. The Wilderness Society
421 U.S. 240 (1975), this Court reiterated the long standing
rule that a court may assess counsel fees in a case in which
the losing party has "acted in bad faith, vexatiously, wanton-
52/
ly, or for oppressive reasons . . .." 421 U.S. at 259.
This rule has been applied to a variety of forms of conduct,
including an intentional violation of the plaintiff's consti-
53/
tutional or statutory rights, an inexcusable default on
52/ See also Runyon v. McCrary, 427 U.S. 160, 183 (1976);
F.D. Rich v. v. Industrial Lumber Co., 417 U.S.
116, 129 (1974); Hall v. Cole, 412 U.S. 1, 5 (1973); Newman v .
Piggie Park Enterprises, 390 U.S. 400, 402, n.5 (1968).
53/ The seminal case is Rolax v. Atlantic Coast Line R. Co., 186
F.2d 473 (4th Cir. 1951), cited with approval in Rich, 40 L.Ed.2 at
714, n.17, Hall, 412 U.S. at 5, and Vaughn v. Atkinson, 369 U.S.
527, 530 (1962). See also Bell v School Bd. of Powhatan County,
321 F . 2d 494 ( 4th Cir. 1963 ), cited with approval in Rich and
Hall; Richardson v. Communications Workers of America, 530
F.2d 126, 132 (8th Cir. 1976); Doe v. Poelker, 515 F .2d 541,
547 ( 8th Cir., 1975) .
58
anan obligation to remedy a past or existing violation,
55/
unjustifiable defense of clearly unlawful conduct, or
dilatory, fraudulent, or otherwise improper litigation tac-
56/
tics. Each of these forms of bad faith unfairly burdens
not only the adverse party but also the federal courts. Cf.
Illinois v. Allen, 397 U.S. 337, 347 (1970).
In the instant case the District Court made a factual
finding that the petitioners "have acted in bad faith and
oppressively and that the case falls within the 'bad faith'
exception to the Alyeska rule." 410 F.Supp. at 284. The
District Court based this finding on several distinct grounds:
(1) petitioners had operated "a patently unconstitutional
prison system" prior to the commencement of this action (2) the
petitioners had shown persistent and increasing unwillingness
to remedy intolerable conditions unless ordered to do so by the
court, (3) although the plaintiffs repeatedly brought to light
through discovery patterns of misconduct so egregious that
petitioners recognized they had to be corrected, petitioners
inexplicably failed to make inquiries of their own into what
54/
54/ Bradley v. Richmond School Board, 416 U.S. 696, 707, n.
10 (1974); Vaughn v. Atkinson, 369 U.S. at 530-31; McEnteggart
v. Cataldo, 451 F.2d 1109, 1112 (1st Cir. 1971), cited with
approval in Rich, Sims v. Amos, 340 F.Supp. 691, 694 (N.D. Ala.
1972), aff'd 409 U.S. 942.
55/ Newman v. Piggie Park Enterprises, supra; Fairley v .
Patterson, 493 F .2d 598, 606 (5th Cir. 1974).
56/ Universal Oil Products Co. v. Root Refining Co., 328 U.S.
575, 580 (1946).
- 59 -
\
57/
was occurring in the prisons for which they were responsible,
(4) despite a series of hearings and written and oral orders
from the court over the course of the litigation, constitu
tional violations continued. 410 F.Supp. at 284-285. In view
of the District Judge's unique familiarity with the conduct
and attitude of the petitioners garnered over 7 years from
numerous hearings, his finding of bad faith is entitled
to particularly great weight.
The Court of Appeals, although relying primarily on the
Civil Rights Attorney's Fees Awards Act, concluded that "the
record fully supports the finding of the District Court that
the conduct of the state officials justified the award under
the bad faith exception enumerated in Alyeska Pipeline Service
Co. v. Wilderness Society." 548 F.2d at 742, n. 6. Such a
concurrent finding of fact by two courts below is not subject
to review in this Court in the absence of extraordinary circum
stances not present here. Berenyi v. Immigration Service, 385
U.S. 630, 635 (1967); Graver Mfg. Co. v. Linde Co., 336 U .S.
271, 275 (1949); see Runyon v. McCrary, 427 U.S. 160, 184
(1976). The correctness of this finding does not appear to be
questioned by petitioners.
The order of the district court provides
The court now awards counsel for petitioners
the sum of $20,000.00 as an attorneys' fee on
account of services performed by them in this
litigation since the remand resulting from
Finney v. Arkansas Board of Correction, 505
F.2d 194 (8th Cir. 1974). The court also
57/ Compare Matter of Yamashita, 327 U.S. 1, 14-16 (1945).
- 60 -
directs that counsel be reimbursed for the
reasonable and necessary expenses paid or in
curred by them, including the expenses of em
ploying law students to assist in the prepara
tion of the case, since the remand, but not to
exceed $2,000.00. Counsel should be able to
agree on the amount of the expenses; if not, they
can take up the matter with the court. These
awards are to be paid out of Department of
Correction funds.
Counsel for petitioners here objects to the last sentence
of this decree, directing that the fees and costs be paid out
of the funds of the Department of Corrections which are
under the control of the petitioners. If this objection is
sustained the rest of the order will stand, and the award will
still have to be paid by Mr. Hutto and the other petitioners,
58/
presumably out of their personal resources. Counsel for
petitioners asserts that, although petitioners may be directed
to pay the awarded sum, they may not be directed to do so out
of Department funds.
The question of whether counsel fees are among the
remedies ordinarily precluded by the Eleventh Amendment has
been before the Court on three previous occasions. In Sims v.
Amos, 340 F.Supp. 691, 695 (N.D. Ala. 1972), counsel fees were
awarded against elected Alabama state officals in their offi
cial capacity. The state attorney general appealed, claiming
such an award was tantamount to the award of a money judgment
against the State of Alabama in direct violation of the doc
trine of sovereign immunity, but this Court unanimously
58/ Unlike the situation in Edelman v. Jordan, 415 U.S. 651,
665 (1974), the payment of the award out of petitioners'
personal funds is both possible, in light of the amount in
volved, and entirely justifiable, since the bad faith relates
to the personal conduct of Mr. Hutto and his predecessors.
61
421
affirmed the award without opinion. 409 U.S. 942. In
Alyeska Pipeline Service Co. v. The Wilderness Society,
U.S. 240 (1975), the majority, while finding no occasion to
discuss the Eleventh Amendment issue 421 U.S. at 269, n.
44, noted that the award upheld in Sims rested in part, as
here, on the bad faith of the defendants. 421 U.S. at 270, n.
46. In Bitzer v. Matthews, No. 75-283, decided sub, nom.
Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), the majority again
did not reach the issue, 427 U.S. at 457, but Mr. Justice
Stevens concurred on the ground that counsel fees, like other
litigation costs, were not subject to the Eleventh Amendment.
427 U.S. at 460. Certiorari was granted to decide this issue
in Stanton v. Bond, No. 75-1413, but the case was subsequently
remanded for consideration of the Civil Rights Attornerys' Fees
Act of 1976. 50 L.Ed.2d 581 (1976). The courts of appeals are
60/
divided on this question.
As initially adopted section 2 of Article III provides in
part that "[t]he judicial Power shall extend to all cases, in
Law and Equity, arising . . . between a State and Citizens of
11/
59/ This issue was discussed as well at the oral argument in
Edelman v. Jordan, 415 U.S. 651 (1974), but was not mentioned
in the opinions.
60/ Three circuits have held such awards permissible. Souza
v. Travisono, 512 F .2d 1137 (1st Cir 1975); Class v. Norton,
505 F .2d 123 (2d Cir. 1974); Jordan'?. Fusari, 496 F .2d 646 (2d
Cir. 1974); Brandenburger v. Thompson, 494 F .2d 885 (9th Cir.
1974) . Two circuits have concluded that the Eleventh Amendment
applied to such awards. Jordan v. Gilligan, 500 F .2d 701 (6th
Cir. 1974); Taylor v. Perini, 501 F .2d 899 (6th Cir. 1974);
Skehan v. Board of Trustees, 503 F .2d 31 (3d Cir. 1974). Two
circuits are divided. Thonen v. Jenkins, 517 F .2d 3 (4th Cir.
1975) (awards permissible); Hallmark Clinic v. North Carolina
Dept, of Human Resources, 519 F .2d 1315 (4th Cir.(1975) (awards
prohibited); Milburn v. Huecker, 500 F .2d 1279 (5th Cir. 1974)
(awards permissible); Named Individual Member v. Texas Highway
Dept., 496 F .2d 1017 (5th Cir. 1974).
- 62 -
\
another state . . . and between a State . . . and foreign . .
Citizens or Subjects." In 1798, in the wake Chisholm v.
Georgia, 2 Dali. (2 U.S.) 419 (1798), the Eleventh Amendment
was adopted to repeal this language. Unchanged since then, the
Eleventh Amendment provides:
The judicial power of the United States shall
not be construed to exent to any suit in law
or equity, commenced or prosecuted against
one of the United States by Citizen of
another State or by Citizens or Subjects
of any Foreign State.
Although the amendment, read literally, merely deletes the
quoted language from Article III, it has been construed by this
Court also to limit the judicial power under other clauses of
Article III. In Hans v. Louisiana, 134 U.S. 1 (1890), the
Court extended the Eleventh Amendment immunity to suits against
61/
a state by its own citizens. In Hagood v. Southern, 117
U.S. 52 (1886), the Court held that the Eleventh Amendment
could be asserted to preclude relief against an individual
defendant where the "real" defendant affected by the order was
a State. 117 U.S. at 67. See also Ford Motor Co. v._Depart
ment of Treasury, 323 US. 459, 464 (1945). It is this latter
doctrine with which this case is concerned.
The fact that an order against a state official directs
the offical to use or disburse state funds within his or her
control does not, by itself, bring the order within the
prohibition of the Eleventh Amendment. Ex parte Young, 209
U.S. 123 (1908), held that the Eleventh Amendment did not
61/ In Employees v. Missouri Public Health Dept., 411 U.S.
279, 309-15 (1973) Justice Brennan, dissenting, expressed
the view that Hans was wrongly decided, and that the Eleventh
Amendment should not be applied to suits against state by
its own citizens. Although we believe that Justice Brennan's
analysis was correct, that issue need not be reopened in order
to resolve this case.
63
preclude the federal courts from directing state officals to
conform their conduct to the requirement of the Fourteenth
Amendment. In Graham v. Richardson, 403 U.S. 365 (1971) and
Goldberg v. Kelly, 397 U.S. 254 (1970), this Court upheld orders
directed to state welfare officials which clearly had substantial
fiscal consequences for the state treasuries involved.
In Edelman v. Jordan, 415 U.S. 651 (1974), this Court
explained that the validity of an order affecting the use of
state funds turned on whether the order was "in practical
effect indistinguishable . . . from an award of damages
against the State," 415 U.S. at 668, or was merely "ancillary"
to an order directing state officials to conform their present
and future conduct to the requirement of the federal Consti
tution and laws. In Edelman this rule was applied to preclude
the retrospective award of welfare payments which had been
unlawfully delayed or withheld; the Court emphasized that such
an award, however labeled, was indistinguishable from damages
since "measured in terms of a monetary loss resulting from a
past breach of a legal duty on the part of the defendant state
officals." 415 U.S. at 668. Three years later in Milliken v .
Bradley, 53 L.Ed.2d 745 (1977), this Court sustained an order
directing Michigan officials to pay over $5 million in state
funds to the Detroit School Board for the operation of certain
programs established to remedy past racial discrimination. The
order was deemed ancillary to and a necessary concomitant of
the district court injunction establishing those remedial
programs.
Although "the difference between the type of relief
barred by the Eleventh Amendment and that permitted under Ex
64
parte Young will not in many instances be that between day
and night," Edelman v. Jordan, 415 U.S. at 667, the application
of that distinction in this case is largely resolved by this
Court's decision in Fairmont Creamery v. State of Minnesota,
275 U.S. 70 (1927). In that case, arising out of a state court
prosecution of the Fairmont Creamery Company, this Court
overturned the Company's conviction and awarded it costs.
Subsequently the state filed a motion to retax costs on the
ground that such a monetary award violated the sovereignty and
immunity of the state. This Court unanimously upheld its
power to make such awards of costs against a state as "within
the inherent authority of the court in the orderly adminis
tration of justice as between all parties litigant." 275 U.S.
at 74. The Court noted that the exercise of this authority was
particularly appropriate and important where costs were awarded
because the action was "a 'litigious case,' so-called," i.e.
because the defendant had been unduly intransigent. Id.
As this Court noted in Fairmont Creamery, 275 U.S. at
77, the federal courts have traditionally awarded costs against
a state, directly or through its officials, when the state
becomes involved in litigation in a federal court in its own
name or on behalf of its officials. Since the Judiciary Act of
62/
1789 the federal courts have been expressly empowered to
award costs. Provisions authorizing, and at times requiring,
the award of costs and expenses are to be found throughout the
62/ 1 Stat. 73, 93; Henkel v. Chicago, etc., R.R., 284 U.S.
444 (1932).
65
Federal Rules of Civil Procedure, the Federal Rules of
64/
Criminal Procedure, the Federal Rules of Appellate
65/ 66/Procedure, the Rules of the Supreme Court, and the
67/
United States Code. These rules and statutes are literal
ly applicable to all federal litigation, regardless of the
identity of the parties, and have been uniformly applied even
where the party liable for costs is a state or a state offi
cial. The Clerk of this Court taxes costs against a losing
party without regard to the official status of that party.
Costs are routinely awarded by this Court against (a) state
agencies which are the defendants in federal civil actions for
injunctive relief, (b) state officials who are the defendants
in federal civil actions for injunctive relief, (c) state
officials who are the defendants in federal habeas corpus
actions, (d) state agencies which are the defendants in civil
actions originating in state court, and (e) states in criminal
prosecutions originating in state courts. A list of the cases
in which such awards were made in October Terms 1970-76 is set
out in the Appendix to this brief.
That awards of costs are not subject to the Eleventh
Amendment is consistent with the analysis in Edelman. The
63/
63/ Federal Rules of Civil Procedure, Rules 30(g), 37(a)(4),
41(d), 43(f), 54, 55(b)(1), 56(g), 65(c), 68.
64/ Federal Rules of Criminal Procedure, Rule 38(a)(3).
65/ Federal Rules of Appellate Procedure, Rules 7, 38, 39.
66/ Rules of the Supreme Court, Rules 14, 18, 36(3), 57, 60.
67/ See e.g. 28 U.S.C. §§1331, 1332, 1446, 1911-29, 2101(f),
2103.
66
amount of costs, unlike damages, are not measured by the
forseeable amount of harm caused by the defendant's violation
of its legal responsibilities. Costs are only ancillary to any
relief which may be prayed for in a complaint, and are not
considered in assessing whether a case presents the $10,000 in
controversy required by 28 U.S.C. §1331. If an action were won
by default, or settlement, immediately after filing, there
would be virtually no costs incurred. The ultimate award of
costs in an injunctive action is, like the expenses incurred by
the state's own counsel, an ancillary fiscal aspect of the
conduct of litigation for prospective relief.
Petitioners in this case do not appear to deny that, as
a general matter, the federal courts may award costs against
states and state officials. Such awards are the normal inci
dent of a successful action for declaratory or injunctive
relief, and their "ancillary effect on the state treasury is a
permissible and often an inevitable consequence of the princi
ple announced in Ex Parte Young." Edelman v. Jordan, 415 U.S.
651, 668 (1974). Were this Court to held such awards impermis
sible under the Eleventh Amendment, it would be required to
rule unconstitutional insofar as they apply to state officials,
every federal court rule and every provision of the United
States Code authorizing awards of costs.
Petitioners maintain, however, that counsel fees cannot
be included among the awardable costs, and that such fees are
really a form of damages. We note at the outset that if
petitioners' contention is sustained, then the award of counsel
fees in this case must be paid by Arkansas as a matter of
state law. Arkansas Act 543 of 1977, which became law on
67
March 18, 1977 provides in pertinent part that the State "shall
pay actual damages adjudged by a state or federal court . . .
against officers or employees of the State of Arkansas . . .
based on an act or omission by the officer or employee while
acting without malice and in good faith within the course and
scope of his employment and in the performance of his official
duties." Whatever the decision of this Court, the result in
this case will remain the same. If the Court concludes counsel
fees are awardable as costs, it will sustain the District Court
order directing the fee be paid from state funds; if the Court
concludes that counsel fees are "really" damages, it may
overturn the requirement that the fee be paid from state funds,
but the state will then pay it voluntarily in place of Mr.
Hutto pursuant to Act 543.
There is, we believe, no basis for distinguishing counsel
fees from other items of costs, such as transcripts, printing
expenses, filing or docketing fees, or the expenses of wit
nesses, experts or interpreters. Awards of counsel fees, where
proper, have long been regarded as a part of costs. The
earliest authority for such awards in England was contained in
a statute adopted in 1278 providing for taxation of "costs of
68/
his writ purchased." The first congressional enactments
regulating the award of counsel fees treated them as an item of
taxable costs. 1 Stat. 93, 332; 10 Stat. 161 (1853); see 28
U.S.C. §1923(a). In recent years Congress has adopted more
than a score of statutes authorizing awards of attorneys'
fees; in virtually every case that award was made an item
68/ Statute of Gloucester, 1278, 6 Edw. 1, c. 1; Fleischman
Distillinq Corp. v. Maier Brewing Co., 386 U.S. 714, 717, n.7
(1967).
68
to be included as part of the taxable costs. In England
69/
69/ See e.g. 5 U.S.C. §552(a)2E (court may assess "attorneys'
fees and other litigation costs"); 7 U.S.C. §210(f) (success
ful petitioner to be allowed "a reasonable attorney's fee to
be taxed and collected as part of the costs of the suit"); 7
U.S.C. §499g(b) (successful petitioner to be allowed "a
reasonable attorney's fee to be taxed and collected as a part
of the costs of the suit"); 15 U.S.C. §15 (plaintiff in anti
trust action to recover "the cost of suit, including a reason
able attorney's fee"); 15 U.S.C. §72 (person injured by illegal
importation to recover "the cost of the suit including a
reasonable attorney's fee"); 15 U.S.C. §77k(e) (court may
award to prevailing party "the costs of such suit, including
reasonable attorney's fee"); 15 U.S.C. §78i(e )_(court in
securities case may "assess reasonable costs, including
reasonable attorneys' fees"); 15 U.S.C. §78r(a) (court may
"assess reasonable costs incuding reasonable attorneys'
fees"); 17 U.S.C. §116 (court in patent action may award
"a reasonable attorney's fee as part of the costs"); 18 U.S.C.
§1964(c ) (person injured by racketeering may sue and recover
"the cost of the suit, including a reasonable attorney's fee");
20 U.S.C. §1617 (court in school desegregation case may allow
"a reasonable attorney's fee as part of the costs"); 33 U.S.C.
§1365(d) (court may award "costs of litigation (including
reasonable attorney and expert witness fees)"); 33 U.S.C.
§141(g)(4) (court may award "costs of litigation (including
reasonable attorney and expert witness fees)"); 42 U.S.C.
§1857h-2(d) (court may award "costs of litigation (including
reasonable attorney and expert witness fees)"); 42 U.S.C.
§2000a-3(b) (court in public accommodations case may allow
"a reasonable attorney's fee as part of the costs");
42 U.S.C. §2000e-5(k) (court in employment discrimination
case may allow "a reasonable attorney's fee as part of the
costs"); 42 U.S.C. §4911(d) (court may award "costs of
litigation (including reasonable attorney and expert witness
fees)"); 45 U.S.C. §153(p), (court in Railway Labor Act case
must allow prevailing employees "a reasonable attorney's
fee, to be taxed and collected as part of the costs of
the suit"); 46 U.S.C. §1227 (successful plaintiff to recover
"the cost of suit, including a reasonable attorney's fee"); 47
U.SC. §206 (court to award "reasonable counsel or attorney's
fee" which "shall be taxed and collected as part of the costs
in the case"); 49 U.S.C. §8 (court to award "reasonable
counsel or attorney's fees" which "shall be taxed and
collected as part of the costs of the case"); 49 U.S.C.
§16(2) (court to award "reasonable attorney's fee, to
be taxed and collected as part of the costs of the suit");
49 U.S.C. §908(b) (court to award "a reasonable counsel or
attorney's fee" which "shall be taxed and collected
as part of the costs in the case").
69
costs have traditionally included counsel fees; American
practice diverged from this rule in early 19th century when
Congress and the state legislatures adopted statutes severely
limiting the- amount of fees ordinarily includable as part of
70/
costs. Since 28 U.S.C. §1923 authorizes but so limits in
amount the award of counsel fees as costs, this Court in
Alyeska Pipeline Service v. Wilderness Society, 421 U.S. 240
(1975), concluded the statute precluded an open ended power to
award fees as a matter of equitable discretion. In Flanders v.
Tweed, 15 Wall (82 U.S.) 450 (1873), the Court held that a jury
could not award an fee in excess of that permitted by §1983 by
denoting the additional counsel fees as damages rather than
costs. 15 Wall at 452-53. See also, Trustees v. Greenough,
105 U.S. 527 (1882).
Counsel fees differ from other items of costs only in that,
because of the American Rule, 28 U.S.C. §1923, and the variety of
statutes noted at n.6j), whether counsel fees can be taxed varies
considerably from case to case, whereas docketing fees and
transcripts are ordinarily taxable costs in all cases. The
characteristics of other items of costs which render them
ancillary under the standard of Edelman are also true of
70/ Mr. Cormick on Damages, §60 (1935); Goodhart, Costs, 38
Yale Law Journal 849, 873 (1929). Professor Goodhart suggests
the statutory allowances for fees may have been a reasonable
approximation of actual fees when these statutes were first
enacted, but were rendered nominal by the decades of inflation
which followd. Id.
70
counsel fees. The amount of those fees are not measured by
some past injury, they are not the gravamen of the action, and
they will not, to a significant degree, be incurred or awardable
if the action is resolved immediately after it is commenced.
Frequently the fiscal impact of a counsel fee award will be minor in
comparison with that of the injunctive relief which is the
primary focus of the action. In the instant case, for example,
the litigation resulted in the constrution of a $ 546,000 building at
Cummins, the cost of which was 27 times greater than the fee
awarded. In light of these considerations the District Court
correctly concluded that the Eleventh Amendment does not affect
awards of counsel fees.
Respondents further maintain that the adoption of the
Fourteenth Amendment worked a pro tanto repeal of the Eleventh
Amendment, and that the Eleventh Amendment thus has no applica
tion in a Fourteenth Amendment case such as this. This Court
noted the existence of this question but did not decide it in
Milliken v. Bradley, 53 L.Ed.2d 745, 762, n.23 (1977); see also
Edelman v. Jordan, 415 U.S. 651, 694, n.2 (1974) (Marshall, J.,
dissenting). Repondents concur in the views as to the impact of
the Fourteenth Amendment are set out in the Brief Amicus Curiae
of the N.A.A.C.P. Legal Defense and Educational Fund, Inc. in
Edelman v. Jordan, No. 72-1410. If the Court concludes that the
Eleventh Amendment does not apply to awards of counsel fees it
will not be necessary to decide to what extent that Amendment was
modified by the subsequent enactment of the Fourteenth Amendment.
71
B. The Civil Rights Attorney's Fees Awards Act
of 1976 Authorized Awards of Counsel Fees
Against States In Actions Under 42 U.S.C.
§1983
The Civil Rights Attorney's Fees Awards Act of 1976,
Public Law 94-449, now codified in 42 U.S.C. §1988, was enacted
in response to this Court's decision in Alyeska Pipeline Service
Co. v. Wilderness Society, 421 U.S. 240 (1975). Prior to Alyeska
a number of lower courts had concluded that counsel fees could be
awarded to prevailing plaintiffs who, acting as "private attor
neys general", had vindicated important public policies; this
private attorney general rule was applied with particular fre
quency in civil rights cases. 421 U.S. at 270, n.46. In Alyeska
the Court held that the decision to award counsel fees under this
rationale was "a policy matter that Congress has reserved for
itself". Noting that "Congress itself presumably has the power
and judgment to pick and choose among its statutes and to allow
attorneys' fees in some, but not others", 421 U.S. at 264, the
majority held that counsel fees should only be allowed to
private attorneys general under statutes which Congress had
selected for such awards. In Runyon v. McCrary, 427 U.S. 160
(1976) decided prior to the passage of P.L. 94-449 the Court
ruled that 42 U.S.C. §1988 as then written did not provide
such congressional authorization for awards of counsel fees in
actions brought under 42 U.S.C. §1983. 427 U.S. at 182-86.
Within a few months of Alyeska numerous proposals was
introduced in Congress to provide for civil rights cases the
express congressional mandate for awards of counsel fees
72
required by that decision. Acting with unusual dispatch
21/Congress completed hearings within that year, The Senate
and the Senate and House Judiciary Committees reported out
73/
21/
similar bills in June and September of 1976. Both reports
emphasized that the basic purpose of the legislation was "to
remedy anomalous gaps in our civil rights laws created by the
74/
United States Supreme Court decision in Alyeska" and to
revive the practice sanctioned by numerous lower courts, but
disapproved by footnote 46 of the Alyeska opinion, of awarding
75/
fees to private attorneys general in civil
After debates emphasizing Congress' intent
authorization of fees required by Alyeska,
filibuster, both houses approved the bill,
76/
rights cases,
to supply the express
the Senate ended a
and it was signed into
law on October 19, 1976.
71/ H.R. 8726, 7828, 7968, 7969, 8220, 8221, 8821, 8742,
8743, 9552, 94th Cong., 1st Sess.
72/ Hearings on the Awarding of Attorneys' Fees Before the
Subcommittee on Courts, Civil Liberties and the Administration
of Justice of the House Judiciary Committee, 94th Cong., 1st
Sess. (1975). The Senate which had held extensive hearings on
the problem of counsel fees prior to Alyeska, did not hold
additional hearings. Hearings on Legal Fees Before one Sub
committee on Representation of Citizen Interests of the Senate
Judiciary Committee, 93rd Cong., 1st Sess. (1973).
73/ S. Rep. No. 94-1011; H.R. Rep. No. 94-1558.
74/ S. Rep. No. 94-1011, p. 1.
75/ H.R. Rep. No. 94-1558, p. 2.
76/ Representative Drinan, the House sponsor, explained:
"The Civil Rights Attorney's Fees Award Act of 1976,
S. 2278 (H.R. 15460) is intended to restore to the
courts the authority to award reasonable counsel
fees to the prevailing party in cases initiated
under certain civil rights acts. The legislation is
necessitated by the decision of the Supreme Court in
Alyeska Pipeline Service Corp against Wilderness
Society, 421 U.S. 240 (1975).
73
Public Law 94-559 provides:
"In any action of proceeding to enforce a
provision of Sections 1977, 1978, 1979, 1980,
and 1981 of the Revised Statutes [42 U.S.C.
§§1981-1983, 1985, 1986] , title IX of Public
Law 92-318 [20 U.S.C. §§1681, et seq.] or in
any civil action or proceeding, by or on
behalf of the United States of America, to
enforce, or changing a violation of, a provi
sion of the United States Internal Revenue
Code [26 U.S.C. §§ et seq.], or Title VI of
the Civil Rights Act of 1964 [42 U.S.C.
§§2000d et seq.], 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."
7 6 [Continued]
122 Cong. Rec. H12159 (daily ed. October 1, 1976); see also
id, pp. H12150 (remarks of Rep. Anderson), H12154 (remarks
of Rep. Railsback), H12155 (remarks of Rep. Seiberling),
H12181 (remarks of Rep. Railsback), H12162-63 (remarks of Rep.
Kastenmeier), H12163 (remarks of Rep. Fish), H12164 (remarks
of Rep. Holtzman), (remarks of Rep. Seiberling). Senator
Kennedy, the Senate manager of the bill, stated
" [t]he Civil Rights Attorneys' Fees Awards Act authorizes
Federal courts to award attorneys' fees to a prevailing party
in suits brought to enforce certain civil rights Acts. This
bill would close a series of loopholes in our civil rights
laws created by the Supreme Court's Alyeska decision last year,
and would reestablish a uniformity in the remedies available
under Federal laws guaranteeing civil and constitutional
rights."
122 Cong. Rec. S.16252 (daily ed., September 21, 1976).
Senator Tunney, the Senate sponsor, noted that the bill
"When enacted, will close a loophole in our present civil
rights enforcement laws.
In Alyeska Pipeline Service Corp. v. Wilderness
Society, 421 U.S. 240 (1975), the Supreme Court expressly
stated that the lower Federal courts had no inherent equity
power to award attorney's fees in civil rights cases absent
statutory direction. This bill creates the necessary authori
zation and is addressed to the key questions raised in the
opinion."
122 Cong. Rec. S.16491 (daily ed., September 23, 1976); see
also _id. at 51651 (remarks of Senator Mathias) (daily ed. ,
September 21, 1976 ), S. 16431 (remarks of Senator Hathaway
(daily ed., September 23, 1976).
74
The statute expressly modifies the remedies available in a
§1983 action, thus providing the congressional authorization for
private attorney general awards required by Alyeska and found
missing by Runyon.
While authorizing an award of counsel fees in favor
of "the prevailing party," Public Law 94-559 does not specify
against whom this or other awards of costs are to be made.
Ordinarily costs, like other relief, are awarded against the
named defendant in a civil action. In addition, a non-party
who has an interest in the outcome of litigation and who fully
participates therein is normally deemed liable to judgment
just as if it were a formal party. "(0)ne who prosecutes or
defends a suit in the name of another, to establish and protect
his own rights, or who assists in the prosecution or defense of
an action in aid of some interest of his own, and who does so
openly, to the knowledge of the opposing party, is as much bound
by judgment, ... as he would be if. he had been a party to the
record." Souffront v. Compagnie des Sucreries, 217 U.S. 475,
77/
486-87 (1910). A state or other entity may elect
77/ Grimes v. Chrysler Motors Corp., ____ F .2d ____ (2d
Cir. 1977); Dicks Press Guard Mfg. Co. v. Bowen, 229 F.
193, 196 (N.D. N.Y.), aff'd, 229 F.575 (2d Cir.) cert.
denied, 241 U.S. 671 (1915); Ocean Accident & Guarantee
Corp.-v. Felgemaker, 143 F .2d 950, 952 (6th Cir. 1944);
Eagle Mfg. Co. v. Miller, 41 F.351, 357 (S.D. Iowa 1890);
Maynard v. Wooley, ____ F.Supp. ____ (D.N. H. 1977).
- 75 -
\
to stand aloof from litigation against an official and to thus
seek to preserve intact any immunity it may enjoy, but if it
chooses to join in the litigation and to seek to win and enjoy
the benefits of a successful defense, it must run the same
risks, including the possibility of an award of costs, that must
be run by an ordinary party should that defense fail. Compare
2A Moore's Federal Practice 1(12.13.
The rule in Souffront is of obvious importance in
litigation under 42 U.S.C. §1983. Such actions must usually be
brought against a city or state official rather than against
the city or state itself. City of Kenosha v. Bruno, 412 U.S.
78/
507 (1973); Monroe v. Pape, 365 U.S. 167 (1961). In
most of these cases the city or state assumes control of
the defense of the litigation, either to vindicate the validity
of the challenged practice or to protect the defendant officials
from monetary awards. See Scheuer v. Rhodes, 416 U.S. 232
(1974). When that occurs it is the city or state, rather than
the individual defendants, whose unsuccessful defense of the
action requires the plaintiff to incur attorneys' fees and
78/ To what extent city or state agencies are immune from
suits remains an open question, as does the extent to which,
notwithstanding Kenosha and Monroe, a defendant official in a
section 1983 action can be directed to expend government funds.
See Monnell v. Department of Social Services, No. 75-1914;
Milliken v. Bradley, 53 L.Ed.2d 745 (1977). The instant
proceeding resulted from a consolidation of a substantial number
of prisoner suits filed in the District of Arkansas from 1969 to
1972. In two of these actions the Arkansas Department of
Corrections was a named defendant. Pittman v. Arkansas Depart
ment of Corrections, PB-72-C-15, Russell v. Department of
Corrections, PB-72-C-155.
- 76 -
l
costs.__In the instant case the Attorney General of Arkansas
assumed control of the litigation from the outset and conducted
79/
the lengthy and at times intransigent defense. Under such
circumstances, as here, any award of costs would properly be made
payable by the city or state rather than named defendants.
Public Law 94-559 includes counsel fees among the costs which may
be awarded against the named defendant or interceding interested
government, as justice may require.
The legislative history of Public Law 94-559 unambiguous
ly demonstrates that Congress intended that the statute be
applied in this manner, and that awards in cases such as this be
paid out of state funds. The Senate Report stated:
"As with cases brought under 20 U.S.C.
§1617, the Emergency School Aid Act of 1972,
defendants in these cases are often State
or local bodies or State or local officials.
In such cases it is intended that the
attorneys' fees, like other items of costs,
will be collected either directly from the
official capacity, from funds of his agency
or under his control, or from the State or
local government (whether or not the agency
or government is a named party)."
See Rep. No. 94-1011, p. 5. Similarly the House Report noted
that:
"governmental officals are frequently the
defendants in cases brought under the statutes
covered by [the bill]. See, e.g.., Brown v.
Board of Education . . . Such governmental
entities and officials have substantial re
sources available to them through funds in
the common treasury, incuding the taxes paid
by the plaintiffs‘themselves. ... The greater
79/2A Ark. Stat. Anno. §12-712 provides:
"The Attorney General shall maintain and defend the
interests of the State in matters before the United States
Supreme Court, and all other Federal courts, and shall be the
legal representative of all State officers, boards and commis
sioners, in all litigation where the interests of
the State are involved."
77
resources available to governments provide
an ample base from which fees can be awarded
to the prevailing plaintiff in suits against
government officials or entities.
H.R. Rep. No. 943-1558, p. 7.
In the Senate, Senator Helms offered an amendment to the
bar awards of counsel fees against "any territory or possession
thereof, or any State of the United States or any political
subdivision thereof incuding special purpose units of general
80/
local governments." Senator Helms urged that the amend
ment was necessary to "afford protection to financially
81/
pressed State and local governments." The Senate reject-
82/
ed the proposal by a vote of 59 to 28.
Congress was aware that the award of counsel fees against
states might raise a question under the Eleventh Amendment.
The Administrative Office of the United States Courts and two
other organizations expressly brought the issue to the atten-
83/
tion of the House Judiciary Committee. The House Report,
issued two months after the decision in Fitzpatrick v. Bitzer,
427 U.S. 445 (1976), expressly invoked that decision as uphold-
80/ 122 Cong. Rec. S. 16433 (daily ed. Sept. 22, 1976).
81/ Id., at S.16432, "This legislation provides that
State and local governments and their officials can be defen
dants in cases involving these statutes and that attorneys'
fees will be collected either directly from the official in his
official capacity, from funds of his agency or under his
control, or from the State of local government. Presently this
legislation potentially places a tremendous burden upon State
and local governments. In other public interest law suits
where the legal fees have been contested they have ranged from
$200,000 to $800,000. Certainly, it is unwise to provide
that liability in these amounts be assumed by already finan
cially hard-pressed State and local governments."
8 2 / Id., S.16434.
83/ Hearings Before the Subcommittee on Courts, Civil Liber
ties and the Administration of Justice of the Committee on the
Judiciary, 94th Cong., 1st Sess. pp. 36, 41, 268 (1975).
- 78 -
ing the power of Congress to subject a state to monetary
84/
liability despite the Eleventh Amendment. The Senate
85/
Report, written before Fitzpatr ick asserted that the
award of such fees were "in accordance with Congress' powers
under, inter alia, the Fourteenth Amendment, Section 5,"
insisted such fees were "ancillary and incident to securing
‘ 86/
compliance with" sections 1983, etc., noted that counsel
fees were properly regarded as "costs", and cited the deicsion
in Fairmont Creamery exempting counsel fees from the scope of
87/
the Eleventh Amendment. In the House debates Congressman
Drinan, the bill's sponsor, reiterated Congress' authority to
impose liability on a state notwithstanding the Eleventh
88/
Amendment.
84/ Id., p. 8, n.14. "Of course, the 11th Amendment is not a
bar to the awarding of counsel fees against state governments.
Fitzpatrick v. Bitzer."
85/ The report was filed on June 29, 1976, the day after the
decision in Fitzpatr ick.
86/ This was clearly an attempt to invoke the standard announc
ed by the Court in Edelman v. Jordan, discussed supra♦
87/ S. Rep. No. 94-1011, p. 5.
88/ "The question has been raised whether allowing fees
against State governments in suits properly brought under
the covered statutes woud violate the 11th Amendment. That
amendment limits the power of the Federal court to entertain
actions against a State. This issue is no longer seriously
in dispute after the recent Supreme Court decision in Fitz
patrick and Bitzer. Since this bill is enacted pursuant to the
power of Congress under section 2 of the 13th amendment and
section 5 of the 14th amendment, any question arising under the
11th amendment is resolved in favor of awarding fees
against State defendants." 121 Cong. Rec. H12160-61 (daily ed.,
October 1, 1976 ) .
79
Awards of fees from government funds are manifestly
necessary to carry out the fundamental purposes of the statute.
As the House Report explained:
The effective enforcement of Federal
civil rights statutes depends largely on the
efforts of private citizens. Although some
agencies of the United States have civil
rights responsibilities, their authority and
resources are limited. In many instances
where these laws are violated, it is nec
essary for the citizen to initiate court
action to correct the illegality. Unless
the judicial remedy is full and complete,
it will remain a meaningless right.
Because a vast majority of the victims
of civil rights violations cannot afford
legal counsel, they are unable to present
their cases to the courts. In authoriz
ing an award of reasonable attorney's
fees, H.R. 15460 is designed to give such
persons effective access to the judicial
process where their grievances can be
resolves according to law.
89/
H.R. Rep. No. 94-1558, p. 1. In any §1983 case involving
protracted litigation the amount of the fee to which a prevail
ing plaintiff would be entitled could easily exceed the per
sonal funds of the individual defendants. If the resources
of the city or state conducting the litigation could not be
reached the plaintiff could not receive the full redress
contemplated by Congress. Where, as commonly occurs, the actual
conduct of the litigation is controlled by the city or state,
immunity from an award of fees would encourage government
counsel to act in a dilatory manner unfair to plaintiff and
defendant alike. Under other counsel fee provisions, such
89/ See also S. Rep. No. 94-1011,pp. 2, 6; 122 Cong. Rec.
S16251 (remarks of Senators Scott and Mathias), S16242 (remarks
of Senator Kennedy) (daily ed. Septemer 21, 1976). S1643
(remarks of Senator Hathaway) (daily ed. Septemer 23, 1976),
S17051 (remarks of Senators Kennedy and Tunney), S17052 (re
marks of Senators Kennedy and Abourezk) (daily ed. September
29, 1976); H12155 (remarks of Rep. Sieberling), H12163 (remarks
of Rep. Fish), H12164 (remarks of Rep. Holtzman) (daily ed.
October 1, 1976).
80
as the Civil Rights Act of 1964 the Emergency School Aid
91/
Act of 1972, awards against cities and states are
92/
clearly authorized. The legislative history of Public Law
94-559 makes plain that Congress intended that that statute
"would achieve uniformity in the remedies provided by Federal
93/
laws guaranteeing civil and constitutional rights," and
94/
specifically referred to Civil Rights and Emergency
95/
School Aid Acts as establishing the standards it wished to
apply to litigation under 42 U.S.C. §1983. The intended uni
formity clearly requires that counsel fees be available against
cities and states in §1983 cases just as it is in Title VII
and school desegregation cases.
The power of Congress to impose monetary liability on a
state in connection with a violation of the Fourteenth
90/
90/ See, e.g., 42 U.S.C. §2000e-5.
91/ 20 U.S.C.§1617.
92/ Fitzpatrick v. Bitzer, 427 U.S. 445 (1977); Bradley v._
School Board of City of Richmond, 416 U.S. 696 (1974).
93/ H.R. Rep. No. 94-1558, p. 1; see also î d. , p. 8; S.
Rep. No. 94-1011, pp. 1, 4; 122 Cong. Rec. S16252 (remarks of
Senator Kennedy) (daily ed. Septemer 21, 1976);
H12151 (remarks of Rep. Anderson), H12159 (remarks of Rep.
Drinan), H12163 (remarks of Rep. Kastenmeier) (daily ed.
October 1, 1976 ) .
94/ S. Rep. No. 94-1011, pp. 4, 5; H.R. Rep. No. 94-1558, p.
6; 122 Cong. Rec. S16251 (remarks of Senator Scott (daily ed.
September 21, 1976), S16430-31 (remarks of Senator Hathaway
(daily ed. September 23, 1976), H12150 (remarks of Rep. Ander
son), H12159 (remarks of Rep. Drinan), H12163 (remarks of Rep.
Kastenmeier), H12165 (remarks of Rep. Seiberling) (daily
ed. October 1, 1976).
95/ S. Rep. No. 94-1011; p. 4; H.R. Rep. No. 94-1558, pp. 1,
3, 6.
81
Amendment is not disputed. In Fitzpatrick v. Bitzer, 427 U.S.
445 (1976), the Court rejected a challenge to the power of
Congress to subject states to awards of backpay and counsel
fees under Title VII of the 1964 Civil Rights Act. The Court
concluded that "[w]hen Congress acts pursuant to §5 [of the
Fourteenth Amendment], not only is it exercising legislative
authority that is plenary within the terms of the constitutional
grant, it is exercising that authority under one section of a
constitutional amendment whose other sections by their own
terms embody limitations on state authority. We think that
Congress may, in determining what is appropriate legislation for
the purpose of enforcing the provisions of the Fourteenth
Amendment, provide for private suits against States or state
officials which are constitutionally impermissible in other
contexts." 427 U.S. at 456. Provisions for awards of counsel
fees in Fourteenth Amendment litigation to redress cruel and
96/unusual prison conditions is clearly an appropriate
method of vindicating that constitutional prohibition. See
Newman v. Piggie Park Enterprises, 390 U.S. 400, 402 (1968).
Although the intent and authority of Congress is beyond
dispute, petitioners maintain that the Congress failed to
frame the statute in a manner sufficient to achieve its
purpose. Were this contention accepted, it would not only
frustrate the congressional purpose, but would render
counsel fee awards in section 1983 cases, which are
96/ The Eighth Amendment prohibition against cruel and unusual
punishment is incorporated in the due process clause of the
Fourteenth Amendment. Robinson v. California, 370 U.S. 660
(1962).
82
awarded without regard to the defendants' good faith, payable
exclusively from the personal resources of the defendant
official. That individual liability would exist even though
the official had no meaningful control of the litigation, and
would apply regardless of whether the defendant official were a
97/ 98/ 99/ 100/
governor, legislator, judge, police officer,
101/ 102/
school official, or prosecutor. In the instant case
petitioners' argument, if successful would shift the liability
for the counsel fee from the funds of the Board of Corrections
to the personal funds of Mr. Hutto.
Petitioners appear to urge that where Congress wishes to
exercise its authority under section 5 of the Fourteenth
Amendment to impose liability on a state it must do so in some
103/
special "express statutory language." Precisely
what language petitioners claim must be used is not clear.
The decisions of this Court support no such technical require
ment. In Employees v. Department of Public Health & Welfare,
411 U.S. 279 (1973), the "literal language" of the statute
rendered state agencies liable to suit in federal court. 411
97/ See Scheuer v. Rhodes, 416 U.S. 232 (1974).
98/ See Tenney v. Brandhove, 341 U.S. 367 (1951).
99/ See Pierson v. Ray, 386 U.S. 547 (1967).
100/ See Pierson v. Ray 386 U.S. at 555-57.
101/ See Wood v.Strickland, 420 U.S. 308 (1975).
102/ Imbler v. Pachtman, 424 U.S. 409 (1976).
103/ Brief for Petitioners, pp. 7-9.
83
U.S. at 283. The Court nonetheless concluded there was no such
jurisdiction because it could find "not a word in the history
of the 1966 amendments to indicate a purpose of Congress
to make it possible for a citizen of that State or another
State to sue the State in the federal courts." 411 U.S. at 285.
(Emphasis added) Similarly, in Edelman v. Jordan, 415 U.S. 651
(1974) the Court concluded that section 1983 did not authorize
monetary awards from state funds, not because of the language
of the statute, but because there was no evidence that section
1983 "was intended to create a waiver of a State's Eleventh
Amendment immunity merely because of action could be brought
against state officers, rather than against the State itself."
415 U.S at 676-77. (Emphasis added) The construction of
statutes touching on a State's Eleventh Amendment immunity
differs from that of other statutes, if at all, only to the
extent that, where the consequence of a loss of immunity
would be unusually harsh, the Court will not infer from a
silent legislative history an intent to so affect "the delicate
104/
federal-state relationship." Employees, 411 U.S. at 286.
104/ This is well exemplified by the circumstances of Employ
ees and Fitzpatrick. In both cases the statute involved
merely repealed a prior exclusion of state agencies from
an existing regulatory scheme. In Employees the legislative
history was silent, and federal jurisdiction would have subject
ed the states to an unusual provision for double damages; the
Court declined on the record to infer an intent to create
federal jurisidiction. In Fitzpatr ick coverage by Title VII
entailed only liability for injunctive relief, backpay, and
counsel fees; the Court in summarily construing the statute to
authorize suit in federal court did not bother to discuss the
statute's legislative history.
84
In the instant case that history is unambiguous, and the
resulting liability for counsel fees is an ordinary incident of
litigation, not the unique provision for double damages at
issues in Employees.
Petitioners further contend that Public Law 94-559 should
not be applied to litigation which was commenced prior to
October 19, 1976 though still pending on that date. Brief for
Petitioners, pp. 9-11. Assuming arguendo that this question is
"fairly comprised" within the question presented,
we believe it is manifestly unsound.
Bradley v. School Board of the City of Richmond, 416 U.S. 696
(1974), presents a situation indistinguishable from the instant
case. There, as here, a new statute expressly authorizing
counsel fees was enacted long after the commencement of the
action but while the propriety of such an award was still an issue
pending before the court of appeals. This Court upheld the
award of fees under the newly adopted statute in light of "the
principle that a court is to apply the law in effect at the
time it renders its decision, unless doing so would result in
manifest injustice or there is statutory direction or legisla
tive history to the contrary." 416 U.S. at 711. In Bradley the
legislative history was silent; in the instant case Congress
clearly indicated its intent that the statute be applied to
105/
pending cases.
105/ H.R. Rep. No. 94-1558, P. 4, n.6. "In accordance with
applicable decisions of the Supreme Court, the bill is in
tended to apply to all cases pending on the date of enactment as well
as all future cases. Bradley v. Richmond School Board,
416 U.S. 696 (1974)." The House manager, Congressman
85
Petitioners suggest that the application of Public Law
94-559 to this case would result in "manifest injustice."
Although they contend that an award of $20,000 will have
"tremendous" effect on "the budgetary and fiscal policy of the
State of Arkansas," this sum is clearly an insignificant
portion of the State's annual budget of $ 1 billion, and
is also insignificant in comparison with the funds required to
comply with undisputed portions of the injunctive relief.
Petitioners do not suggest that they would have acted any
105/ [Continued]
Drinan, explained "[T]his bill would apply to cases pending on
the date of enactment. It is the settled rule that a change in
statutory law is to be applied to cases in litigation. In
Bradley versus Richmond School Board, the Supreme Court
expressly applied that long-standing rule to an attorney fee
provision, incuding the award of fees for services rendered
prior to the effective date of the statute." 122 Cong. Rec.
H12160 (daily ed. October 1, 1976); see also _id. , pp. H12155
(remarks of Rep. Anderson). A motion by Representative Ash-
brook to recommit the bill with instructions to amend it to
apply "to cases filed only after the effective date of this
act" was decisively rejected. Id., p. H12166. Senator Abourezk,
one of the chief proponents of the bill, explained, "The Civil
Rights Attorneys' Fees Awards Act authorizes Federal courts to
award attorneys' fees to a prevailing party in suits presently
pending in the Federal courts. The application of this Act to
pending cases is in conformity with the unanimous decision of
the Supreme Court in Bradley v. School Board of City of Richmond,
416 U.S. 696 (1974 ) ."
This application is necessary to fill the gap created by the
Alyeska decision and thus avoid the inequitable situation of an
award of attorneys' fees turning on the date the litigation
was commenced." 122 Cong. Rec.-S17052 (daily ed. September
29, 1976).
86
differently had they been aware of their possible liability for
counsel fees; nor would such a contention be plausible in light
of the facts of this case, since the private attorney general
rule was applied by the Eighth Circuit prior to
106/
Alyeska, and the district court had previously made
another fee award of $8,000 payable from the funds of the
Department. See Bradley v. Richmond School Board, 416 U.S. at
720-22. Here, as in Bradley, the litigation assisted the
defendants in meeting their constutitional responsibilities.
416 U.S. at 717-20. This case presents no exceptional circum
stances which would warrant disregarding the plain intent of
Congress, and the rule in Bradley, that this newly enacted legisla
tion be applied to pending cases.
106/ Fowler v. Schwarzwalder, 498 F .2d 143 (8th Cir. 1974).
87
CONCLUSION
For the foregoing reasons it is respectfully submitted that
the Judgment of the courts below should be affirmed.
Respectfully submitted,
PHILIP E. KAPLAN
1650 Tower Building
Little Rock, Arkansas 72201
JACK HOLT, JR.
1100 North University
Evergreen Place
Little Rock, Arkansas
PHILIP E. McMATH
McMath, Leatherman & Woods, P.A.
711 West Third Street
Little Rock, Arkansas 72201
JACK GREENBERG
JAMES M. NABRIT, III
CHARLES STEPHEN RALSTON
STANLEY BASS
ERIC SCHNAPPER
LYNN WALKER
10 Columbus Circle
New York, New York 10019
Attorneys for Respondents
January 1978.
88
APPENDIX
APPENDIX
This Appendix sets forth cases in which the Clerk
of the Supreme Court has awarded costs against a state,
or a state official, during October Terms, 1970-76. With
regard to awards against state officials, the list is
limited to actions for injunctive relief against the de
fendant in his official capacity, in which the action was
defended by the state and where, as a consequence, there
was no suggestion that the costs would be paid by the
defendant personally. Costs have also been awarded in
damage actions against state officials, e.g. Scheuer v.
Rhodes, No. 72-914; these cases, however, are not included,
since, although the costs are in fact usually paid by the
state, the defendant officials were personally liable.
(a) Civil actions for injunctive relief against
states or state agencies, originating in federal court,
in which costs were awarded to plaintiffs:
Alamo Cattle Co. v. Arizona, No. 74-125;
Christian v. New York Department of Labor,
No. 72-5704;
Papish v. Board of Curators of University of
Mississippi. No. 72-794.
(b) Civil actions for injunctive relief against
state officials, originating in federal court, in which
costs were awarded to the plaintiff:
Connor v. Waller, No. 74-1509 (Defendant was
the Governor of Mississippi);
Meek v. Pittinger, No. 73-1765 (Defendants
were the Secretary of State and Treasurer of
Pennsylvania);
Chapman v. Meier, No. 73-1406 (Defendant was
the Secretary of State of North Dakota);
Hagans v. Levine, No. 72-6476 (Defendant was
-la-
the Commissioner of the New York State
Department of Social Services);
Communist Party of Arizona v. Whitcomb, No. 72-
1040 (Defendant was the Secretary of State of
Indiana and the members of the Indiana State
Election Board);
Committee for Public Education v. Nyquist.
No. 72-694 (Defendant was the New York Com
missioner of Education);
Norwood v. Harrison, No. 72-77 (Defendants
were the members of the Mississippi State
Textbook Purchasing Board);
Healy v, James, No. 71452 (Defendant was the
President of Central Connecticut State College);
Fuentes v. Shevin, No. 70-5039 (Defendant was
the Attorney General of Florida);
Taylor v„ McKeithen, No. 71-784 (Defendant was
the Governor of Louisiana);
Townsend v a Swank, No. 70-5021 (Defendant was
the Director of the Illinois Department of
Public Aid).
Great Atlantic and Pacific Tea Co. v. Cottrell,
No. 74-1148 (Defendant was the Health Officer
of Mississippi);
Yovakim v. Miller, No. 73-6935 (Defendant was
the Director of the Illinois Department of
Children and Family Services);
Planned Parenthood of Central Missouri v. Danforth,
Nos. 74-1151 and 74-1419 (Defendant was the
Attorney General of Missouri);
Craig v. Boren, No. 75-628 (Defendants included
the Governor of Oklahoma).
-2a-
(c) Civil Actions for injunctive or monetary relief,
against a state of state official, originating in state
court, in which costs were awarded to the plaintiff:
Austin v. New Hampshire. No. 73-2060;
Mescalero Apache Tribe v. Jones. No. 71-738;
McClanahan v. Arizona State Tax Commission.
No. 71-834;
Evco v. Jones. No. 71-857;
Matz v. Arnet, No. 71-1182;
Bonnelli Cattle Corp. v. Arizona. No. 72-397.
Local 76 v. Wisconsin Employment Relations
Commission, No. 75-185;
Boston Stock Exchange v. State Tax Commission,
No. 75-1019.
(d) Habeas corpus actions against state officials,
originating in federal court in which costs were awarded
to the petitioner:
Francisco v. Gathright, No. 73-5768;
Robinson v. Neil, No. 71-6272;
Peters v. Kiff. No. 71-5078;
Loper v. Beto, No. 70-5388;
Humphrey v. Rady, No. 70-5004;
Morrissey v. Brewer, No. 71-5103.
(e) Criminal prosecutions arising in state court in
which costs were awarded to the defendant:
Brown v. Illinois, No. 73-6650;
Faretta v. California, No. 5772;
Herring v. New York, No. 73-6587;
Bigelow v. Virginia, No. 73-1309;
Drepe v. Missouri, No. 73-6038;
Antoine v. Washington, No. 73-717;
Taylor v. Louisiana. No. 75-5744;
-3a-
t
1
Jenkins v. Georgia. No. 73-557;
Spence v. Washington, No. 72-1690;
Codispoti Vo Pennsylvania, No. 73-5615;
Davis v. Alaska, No. 72-5794;
Alexander v, Virginia, No. 71-1315;
Roaden v. Kentucky, No. 71-1134;
Chambers v. Mississippi, No. 71-5908;
Furman v. Georgia, No. 69-5003;
Jackson v. Georgia, No. 69-5030;
Branch v. Texas, No. 69-5031;
Turner v. Arkansas, No. 71-1309;
Brooks v. Tennessee, No. 71-5313;
Jackson v. Indiana, No. 70-5009;
Columbo v. New York, No. 71-352;
Smith v. Florida, No. 70-5055;
Rabe v. Washington, No. 71-247;
Alexander v. Louisiana, No. 70-5026;
Stanley v. Illinois, No. 70-5014;
Camp v. Arkansas, No. 70-353;
Santebello v. New York, No. 70-98;
McKinney v. Alabama, No. 74-532;
Doyle v. Ohio, Nos. 75-5014 and 75-5015;
Gardner v. Florida. No. 74-6593;
Roberts v. Louisiana, No. 76-5206;
Brown v. Ohio, No. 75-6933;
Hankerson v. North Carolina, No. 75-6568;
Coker v. Georgia, No. 75-5444.
-4a-