Hutto v. Finney Brief for Respondents
Public Court Documents
January 24, 1978
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Brief Collection, LDF Court Filings. Hutto v. Finney Brief for Respondents, 1978. 9f02eca9-b89a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/30fe7996-5e1a-41dc-ba08-cd1ca3c25005/hutto-v-finney-brief-for-respondents. Accessed July 20, 2025.
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IN THE
S u p r e m e C o u r t of tbe E n i t r i r S ® B l ^ n r i
F I L E DOCTOBER TERM, 1977
No. 76-1660
JAN 24 1978
M ICHAEL RODAK, JR ., CLERK
TERRELL DON HUTTO, et a!.,
Petitioners,
v.
ROBERT FINNEY, et al.,
Respondents.
ON WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE
EIGHTH CIRCUIT
BRIEF FOR RESPONDENTS
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
Washington, D C. • C LB PU B L IS H ER S ' • LAW PR IN T IN G CO. • (202) 393 0625
TABLE OF CONTENTS
OPINIONS BELOW ....................................................................... 1
QUESTIONS PRESENTED ........................... 2
CONSTITUTIONAL AND STATUTORY PRO
VISIONS INVOLVED ......................... 3
STATEMENT .......................................................... 5
A. Introduction ............................................................. 5
B. Holt I and Previous Prison Suits ............... 7
C. Holt II — Litigation During 1970 and 1971 . . . . . . . 12
D. Holt III — Litigation in 1973 and 1974 ....................... 16
E. Graves v. Lockhart — 1973-1974 Proceedings . . . . . . 19
F. Finney v. Hutto - Proceedings 1975-1977 ...................20
SUMMARY OF ARGUMENT .......................................................34
ARGUMENT .................................................................................. 38
I. THE DISTRICT COURT PROPERLY FOR
BADE THE USE OF INDEFINITE PUNI
TIVE SEGREGATION AS PART OF ITS
REMEDY FOR THE UNCONSTITU
TIONAL CONDITIONS IN THE PUNITIVE
FACILITIES ............................................. 38
II. THE DISTRICT COURT HAD THE
AUTHORITY TO AWARD COUNSEL FEES
AGAINST THE DEPARTMENT OF COR
RECTIONS ........................................................................58
A. Counsel fees may be awarded against
State officials or agencies which have
acted in bad faith ...................................................... 59
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 ...................................... . . . 7 3
CONCLUSION ............................................................................... 90
APPENDIX ........................................................................... la
Page
(H)
TABLE OF AUTHORITIES
Cases: Page
Alyeska Pipeline Service Co. v. The Wilderness
Society, 421 U.S. (1975) ..............................................passim
Bell v. School Board of Powhatan County, 321 F.2d
494 (4th Cir. 1963) ............................................................... 59
Berenyi v. Immigration Service, 385 U.S. 630
(1967) ....................................................................................... 61
Bitzer v. Matthews, No. 75-283, decided sub nom................... . 63
Bradley v. Richmond School Board, 416 U.S. 696
(1974) 37,60,83,87,88,89
Brandenburger v. Thompson, 494 F.2d 885 (9th
Cir. 1974) 63
Chisholm v. Georgia, 2 Dali. (2 U.S.) 419 (1798) ............... .64
City of Kenosha v. Bruno, 412 U.S. 507 (1973) 77
Class v. Norton, 505 F.2d 123 (2d Cir. 1974) .......................... 63
Coker v. Georgia, 53 L.Ed.2d 982 (1977) ..................................40
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.), affd, 229 F.575 (2d Cir.) cert,
denied, 241 U.S. 671 (1915) ................................................. 77
Doe v. Poelker, 515 F.2d 541 (8th Cir. 1975) ......................... 59
Eagle Mfg. Co. v. Miller, 41 F.351 (S.D. Iowa 1890) ............. 77
Edelman v. Jordan, 415 U.S. 651 (1974) ......................... passim
Employees v. Missouri Public Health Dept., 411
U.S. 279 (1973) 64,85,86,87
Estelle v. Gamble, 50 L.Ed.2d 251 (1977) 34,39,40,43
Fairley v. Patterson, 493 F.2d 598 (5th Cir. 1974) 70
Fairmont Creamery Company v. State of Minnesota,
275 U.S. 70 (1927) .............................................. 33,35,66,81
(Hi)
Finney v. Arkansas Board of Corrections, 505 F.2d
194 (8th Cir. 1974) . . . ...................... ................... 2,6,16,61
Finney v. Hutto, 548 F.2d 740 (8th Cir. 1977) . . . . . . . 20,33
Finney v. Hutto, 410 F. Supp. 251 (E.D. Ark.
1976) ............................................. .................................. 2>20
Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) . . . . . . . . . . passim
Flanders v. Tweed, 15 Wall. (82 U.S.) 450 (1873) ............... 71
Fleischman Distilling Corp. v. Maier Brewing Co.,
388 U.S. 714 (1967) ........................................................... 69
Ford Motor Co. v. Department of Treasury, 323
U.S. 459 (1945) ....................... ................... ...................... 64
Fowler v. Schwarzwalder, 498 F.2d 143 (8th Cir.
1974) ................................ ............................. .............. .. • 88
Goldberg v. Kelly, 397 U.S. 254 (1970) . ............................ 65
Graham v. Richardson, 403 U.S. 365 (1971) ......................... 65
Gates v. Collier, 501 F.2d 1291 (5th Cir. 1974) 40,42,43,45,55
Graver Mfg. Co. v. Linde Co., 336 U.S. 271 (1949) ............. 61
Graves v. Lockhart, (E.D. Ark.) Civil Nos.
PB-74-C-81 ...................................... ....................... 2,25,26,27
Green v. School Board of New Kent County, 391
U.S. 430 (1968) .................... ............................................ 49
Gregg v. Georgia, 428 U.S. 153 (1976) .................. 38,42,43,55
Ex parte Young, 209 U.S. 123 (1908) .......................... 15,65,66
Grimes v. Chrysler Motors Corp., ____ F.2d -------
(2d Cir. 1977) ................................. ..................................... 77
Hagood v. Southern, 117 U.S. 52 (1886) .............................. 64
Hall v. Cole, 412 U.S. 1 (1973) ............... ............................. 59
Hallmark Clinic v. North Carolina Dept, of Human
Resources, 519 F.2d 1315 (4th Cir. 1975) 63
Hans v. Louisiana, 134 U.S. 1 (1890) . ............... 64
Henkel v. Chicago, etc., R.R., 284 U.S. 444 (1932) ............ 66
Page
(iv)
Holt v. Hutto, 363 F. Supp. 194 (E.D. Ark. 1973),
reversed in part sub nom...................................................... 2,lb
Holt v. Sarver, 300 F. Supp. 825 (E.D. Ark. 1969) .......... 1,9
Holt v. Sarver, 309 F. Supp. 362 (E.D. Ark. 1970),
affirmed and remanded, 442 F.2d 304 (8th Cir.
1971) .......... ................... - ............................................. 2 ’12
Holt v. Sarver, 442 F.2d 304 (8th Cir. 1971) ....................... ^
Illinois v. Allen, 397 U.S. 337 (1970) .................................... 6()
Imber v. Pachtman, 424 U.S. 409 (1976) ............................... 85
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) .................... 63
Jordan v. Gilligan, 500 F.2d 701 (6th Cir. 1974) .................. 63
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) ........................................ 55
Matter v. Yamashita, 327 U.S. 1 (1945) ................................. 60
Maynard v. Wooley,------ F. Supp.--------(D.N.N.Y.
1977) 77
McEnteggart v. Cataldo, 451 F.2d 1109 91st Cir.
1971) 60
Milburn v. Huecker, 500 F.2d 1279 (5th Cir. 1974) .......... 63
Milliken v. Bradley, 53 L.Ed.2d 745 (1977) . . . 35,54,65,72,77
Monnell v. Department of Social Services No.
75-1914 ......................... 77
Monroe v. Pape, 365 U.S. 167 (1961) 77
Named Individual Member v. Texas Highway Dept.,
496 F.2d 1017 (5th Cir. 1974) 63
Newman v. Alabama, 559 F.2d 283 (5th Cir. 1977) 40,43,44,57
Newman v. Piggie Park Enterprises, 390 U.S. 400
(1968) ...................................................................... 59,60,84
Page
Page
Ocean Accident & Guarantee Corp. v. Felgemaker,
143 F.2d 950 (6th Cir. 1944) ........................................... 77
Pierson v. Ray, 386 U.S. 547 (1967) ...................................... 85
Pittman v. Arkansas Department of Corrections,
PB-72-C-15 .................... ...................................................... 77
Procunier v. Martinez, 416 U.S. 396 (1974) ......................... 41
F.D. Rich v. Industrial Lumber Co., 417 U.S. 116
(1974) ............... 59,60
Richardson v. Communications Workers of America,
530 F.2d 126 (8th Cir. 1976) . ........................................... 59
Robinson v. California, 370 U.S. 660 (1962) . . . . 38,40,54,84
Rolax v. Atlantic Coast Line R. Co., 186, F.2d 473
(4th Cir. 1951) .............................. 59
Runyon v. McCrary, 427 U.S. 160 (1976) . . . . . . . . 59,61,73
Russell v. Arkansas Department of Corrections,
PB-72-C-155 77
Scheuer v. Rhodes, 416 U.S. 232 (1974) 78,85
Service v. Wilderness Society, 421 U.S. 240 (1975) ............... 71
Skehan v. Board of Trustees, 503 F.2d 31 (3d Cir.
1974) . . . . .......... 63
Sims v. Amos, 340 F. Supp. 691 (N.D. Ala. 1 9 7 2 ) .............60,62
Sostre v. McGinnis, 442 F.2d 178 (1971) .................. 40,44,50,55
Souffront v. Compagnie des Suceries, 217 U.S. 475
(1910) ............................................................................36,76,77
Souza v. Travisono, 512 F.2d 1137 (1st Cir. 1975) ............... 63
Stanton v. Bond, No. 75-1413 . ...............................................63
Talley v. Stephens, 247 F. Supp. 683 (E.D. Ark.
1965) 7,8
Taylor v. Perini, 501 F.2d 899 (6th Cir. 1974) ..............63
Thonen v. Jenkins, 517 F.2d 3 (4th Cir. 1975) .................... .63
Trop v. Dulles, 356 U.S. 86 (1958) .......................................... 38
Trustees v. Greenough, 105 U.S. 527 (1882) .......................... 71
Universal Oil Products Co. v. Root Refining Co.,
328 U.S. 575 (1946) .......................................................... 60
Vaughan v. Atkinson, 369 U.S. 527 (1962) .................... 59,60
Weems v. United States, 217 U.S. 349 (1910) ....................... 38
Williams v. Edwards, 547 F.2d 1206 (5th Cir. 1977)............. 44
Wolff v. McDonnell, 418 U.S. 539 (1974) ....................... 22,53
Wood v. Strickland, 420 U.S. 308 (1975) . ............................ 85
Wright v. McMann, 321 F. Supp. 127 (N.D.N.Y.
1970) a ff’d. 460 F.2d 126 (2d Cir. 1972), cert.
den. 409 U.S. 885 (1972) ............................................. 42,54
Constitutional Provisions:
Eighth Amendment ............................................................. passim
Eleventh Amendment ........................... passim
Fourteenth Amendment ........................... passim
Legislative Materials:
H.R. 7826, 94th Cong. Rec., 1st Sess.............................. 74
H.R. 7828, 94th Cong. Rec., 1st Sess......................................... 74
H.R. 7968, 94th Cong. Rec., 1st Sess......................................... 74
H.R. 7969, 94th Cong. Rec., 1st Sess......................................... 74
H.R. 8220, 94th Cong. Rec., 1st Sess......................................... 74
H.R. 8221, 94th Cong. Rec., 1st Sess............... ........................ 74
H.R. 8742, 94th Cong. Rec., 1st Sess........................................74
H.R. 8743, 94th Cong. Rec., 1st Sess.............................. .. 74
H.R. 8821, 94th Cong. Rec., 1st Sess......................... .............. 74
H.R. 9552, 94th Cong. Rec., 1st Sess.............................. .. 74
Hearings on Legal Fees Before the Sub-committee
on Representation of Citizen Interests of the
Senate Judiciary Committee, 93rd Cong., 1st
Sess. (1973) 74
(vi)
Page
(vii)
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) .................................................... 74,80
S. Rep. No. 94-1011 . ........................................... 74,79,81,82,83
H.R. Rep. No. 94-1558 ............................................. 74,79,82,83
122 Cong. Rec........................................................... 75,79,82,83,88
Other Authorities:
Page
American Correctional Association, Manual of Cor
rectional Standards (1972) ................................. 39,45,47,50
American Bar Association, Tentative Draft of
Standards Relating to the Legal Status of
Prisoners (1977) 39,50
American Law Institute, Model Penal Code (Pro
posed Official Draft) (1962) 50
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) 71
Model Act for the Protection of Rights of Prisoners
(1972) ................................................................................... 45
Model Penal Code ...................................................................... 39
2A Moore’s Federal Practice f 12.13 77
National Advisory Commission on Criminal Justice
Standards and Goals, Corrections (1973) .................... 39,50
National Council on Crime and Delinquency, Model
Act for Protection of Rights of Prisoners (1972) . . . 39,45
National Sheriffs Association, Manual on Jail
Administration (1970) 40
Goodhart, Costs, 38 Yale Law Journal 849 (1 9 2 9 ) ............... 71
(viii)
Rules:
Federal Rules of Appellate Procedure, Rule 7 ........................... 67
Federal Rules of Appellate Procedure, Rule 38 67
Federal Rules of Appellate Procedure, Rule 39 67
Federal Rules of Civil Procedure, Rule 30(g) .......................... 67
Federal Rules of Civil Procedure, Rule 3 7 (a )(4 )........................67
Federal Rules of Civil Procedure, Rule 41(d) 67
Federal Rules of Civil Procedure, Rule 43(f) . . . . . . . . . . . 67
Federal Rules of Civil Procedure, Rule 54 67
Federal Rules of Civil Procedure, Rule 55(b)(1) 67
Federal Rules of Civil Procedure, Rule 56(g) .......................... 67
Federal Rules of Civil Procedure, Rule 65(c) .......................... 67
Federal Rules of Civil Procedure, Rule 68 67
Federal Rules of Criminal Procedure, Rule 38(a)(3) . ............. 67
Rules of the Supreme Court, Rule 14 67
Rules of the Supreme Court, Rule 18 67
Rules of the Supreme Court, Rule 36(3) 67
Rules of the Supreme Court, Rule 57 67
Rules of the Supreme Court, Rule 60 67
Statutes and Treaties:
5 U.S.C. §552(a)2E ............................................................. .. . 70
7 U.S.C. §210(f) 70
7 U.S.C. §499g(b) 70
15 U.S.C. §15 ........................................................................... 70
15 U.S.C. §72 ........................................................................... 70
15 U.S.C. §77k(e) 70
15 U.S.C. §78i(e) ...... ............................................................... 70
15 U.S.C. §78r(a) ............................... 70
17 U.S.C. §116 70
Page
18 U.S.C. § 1964(c) 70
20 U.S.C. §1617 70,78,83
28 U.S.C. §1331 67,68
28 U.S.C. §1332 67
28 U.S.C. §1343(3) 15
28 U.S.C. §1446 67
28 U.S.C. §1911 67
28 U.S.C. §1923 69,71,72
28 U.S.C. §2101(f) • • ....................................................... • • • 67
28 U.S.C. §2103 .......................... .. ............. .................. . . . 67
33 U.S.C. § 1365(d) ....................................................... .. 70
33 U.S.C. § 141(g)(4) ....................... ............. . . . . . . . . . . 70
42 U.S.C. §1857h-2(d) ?0
42 U.S.C. §1983 passim
42 U.S.C. §1988 ............................................................. 33,13,1A
42 U.S.C. §2000a-3(b) 70
42 U.S.C. §2000e-5 83
42 U.S.C. §2000e-5(k) 70
42 U.S.C. §4911(d) 70
45 U.S.C. § 153(p) 70
46 U.S.C. §1227 71
47 U.S.C. §206 71
49 U.S.C. §8 .......................................................... .............. .. . 71
49 U.S.C. §16(2) ....................................................................... 71
49 U.S.C. §908(b) ............................................................... .. . 71
1 Stat. 73 ..................................................................................... 66
1 Stat. 93 ........................................................................ .. 66,69
10 Stat. 161 (1853) ..................................... ........................... 69
(ixj
Page
(X)
Civil Rights Act of 1964 . ................................................... 83,84
Civil Rights Attorney’s Fees Awards Act of 1976 . . . . passim
Statute of Gloucester, 1278, 6 Edw. 1, c. 1 ............................ 69
2A Ark. Stat. Anno. §12-712 ................................. 78
4A Ark. Stat. Anno. §46-116 ................................................... 42
4A Ark. Stat. Anno. §46-1201 (1975 Supp.) ........................... 42
Act 543 of the Arkansas Acts of 1977 approved
March 18, 1977 .................................................................. 3,69
New York Corrections Law §137 (1977 Supp.) .................. 42
6 United States Treaties 3317 (1949) .................. .. 40,50
Page
IN THE
Supreme Court of tlje fflnttrb ^tatrg
OCTOBER TERM, 1977
No. 76-1660
TERRELL DON HUTTO, et al.
Petitioners,
v.
ROBERT FINNEY, et al.,
Respondents.
ON WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE
EIGHTH CIRCUIT
BRIEF FOR RESPONDENTS
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)*
*Appendix citations (hereinafter A. ) are to the Appendix
of Opinions, Decrees, Orders, and Pleadings prepared by the
Respondents and filed with the Court.
2
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 o f
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).
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 petitioners, 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
Circumstances Against Officers or Employees of
Arkansas State Government, or Against the
Estate of Such an Officer or Employee; Defining
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 performance 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
4
duties, where the amount of damages is deter
mined 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.
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
proceedings 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 Com
mission shall have jurisdiction over all claims for
indemnification based on a judgment or negotiated
settlement in conformity with Sections 1 and 2,
and proceedings 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 governing 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.
5
SECTION 8. If any provision of this Act or the
application thereof to any person or circumstances
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 defendants 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 performing
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.
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
6
District Court — Circuit Court Judge J. Smith Henley
(formerly district judge) sitting by special designation —
have been reviewed by the Court of Appeals for the
Eighth Circuit on three occasions.1 The present petition
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 punitive
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 necessities
including light, heat, ventilation, sanitation, clothing
and a proper diet.” Finney v. Arkansas Board o f
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, 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.
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.
7
In order that the present issues may be seen in their
complete context, we shall review proceedings from the
inception of the case in 1969, before giving a more
detailed statement of the proceeding which led to the
Third Supplemental Decree. Throughout this statement
of the case the facts regarding 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
throughout 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 .H olt 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
8
and sadistic atrocities.”2 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 court-appointed attorneys who served
without compensation.3
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 represent 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.”
(continued)
9
The Holt I proceedings which are described in the
Memorandum 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 confinement 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 hearing.4 The Court rejected plaintiffs
(footnote continued from preceding page)
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 defendant 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 appoint
ment. 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 represented 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.”
10
complaint about 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 with respect to the
safety of certain convicts,5 and that the conditions
existing in the isolation cells, including overcrowding,
render confinement in those cells under those con
ditions 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
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.
confinement 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 confine
ment 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 confinement in isolation: “It is
hazardous to health. It is degrading and debasing; it
offends modem 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 “suggestions” 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.
12
C.H olt 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. 1971). In
December 1969 Judge Henley consolidated five ad
ditional 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 December 1969 as counsel for
members of a class of prisoners in the Arkansas
system.6 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 Thirteenth and Fourteenth Amendments.7
6The Court stated at 309 F. Supp. at 364:
“It appearing to the Court that constitutional 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 Petitioners without charge. Messrs. Holt
and Kaplan accepted the appointments and have done
yeomen service on behalf of their clients. The Court wishes
to thank them for their efforts.”
7The claim is summarized in 5120 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 meaningful rehabilitative opportunities, (b) the
right to be free from cruel and unusual punishment, (c) the
(continued)
13
The Court sustained the claim that the overall
conditions and practices of the Arkansas State Peni
tentiary system amounted 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. Id. at 366. The Court rejected a claim
that forced labor in the prisons violated the Thirteenth
Amendment. Id. at 365.
At the time of the 1970 decision the Arkansas prison
system 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.” Id. at 373. “Of
these 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
(footnote continued from preceding page)
right to be free from arbitrary and capricious denial of
rehabilitation opportunities, (d) the right to minimal due
process safeguards in decisions determining fundamental
liberties, (e) the right to be fed, housed and clothed so as
not to be subjected to loss of health or life, (t) 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).
14
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:
“For the ordinary convict a sentence to the
Arkansas Penitentiary today amounts to a banish
ment from civilized society to a dark and evil
world completely alien to the free world, a world
that is administered 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 Penitentiary 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
governance 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
15
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 construction of a new maximum
security unit at Cummins, and stated that the operation
of the unit by trustys was a source of constant trouble.
Ibid. However the Court concluded that since over
crowding had been relieved and many of the conditions
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
affirmed. 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 Amendment violation. On remand the
District Court held further hearings in November and
December 1971 and entered a supplemental decree
dated December 30, 1971. A. 78. The Court noted that
there had been great progress in making the system a
constitutional one; that there were still problem areas
16
and that the court should retain jurisdiction. A. 78. The
Court supplemented the earlier injunctions by provi
sions which enjoined any cruel and unusual punish
ments, enjoined interferences with inmates5 access to
the courts and to counsel, and enjoined reprisals against
inmates for exercising their right to access to the court.
Ibid.
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 o f 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 individual 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
17
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.
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. Flolt 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 Corrections 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 Supple
mental Decree and on appeal the Eighth Circuit found
continuing constitutional violations and ordered the
District Court to continue to retain jurisdiction:
“This Court recognizes the difficult issues the
District Court has passed upon since the com
mencement of this litigation in 1969. We are
18
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 discussed, 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 guards,
abuse of mail regulations, arbitrary work classifica
tions, 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 further 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 “dubious.” 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.
19
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 consolidated complaints filed by Willie Graves
and other prisoners who complained of race discrimina
tion and other types of mistreatment 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 subsequent
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
undertaking 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 attorney’s fee in the subsequent Finney
decision which is now being reviewed in this Court. The
injunctive relief granted in Finney-Holt was considered
20
applicable to the Graves case. The individual damage
claims of the plaintiffs in Graves were subsequently
dismissed in the memorandum opinion of September
29, 1977. A. 204.
F .Finney v. H utto, — Proceedings 1975-1977
The proceedings in the district court after the 1974
Eighth Circuit remand are described in the Memoran
dum 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 United States Magistrate during 1975.8
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 constitutional
deprivations continued to exist and that the court must
grant appropriate relief. The opinion, which covers
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.
21
some 35 pages in the official reports, contains separate
sections discussing the following subjects: “Overcrowd
ing” , “Medical Services and Health Care” , “Rehabilita
tion” , “Regulations as to Mail and Visitors” , “Legal
Assistance to Inmates” , “Inmate Safety”, “Race
Relations in General” , “Racial Discrimination” , “Griev
ance Procedure” , “The Black Muslims”, “Brutality” ,
“Disciplinary Procedures” , “Punitive Isolation and
Administrative 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
conditions in 1975 were worse than in either 1973 or
1974, although after the 1975 hearings conditions were
alleviated substantially. The court granted extensive
additional injunctive relief as to a variety of prison
conditions.9 410 F. Supp. at 254-257. With particular
9With 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 committee 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
(continued)
22
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 the situation” 410 F.
Supp. at 257.10 The Third Supplemental Decree set
(footnote continued from preceding page)
prison system and that inmate safety had been substantially
improved. Id. at 263. With respect to race relations, 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 treatment by an additional injunction
prohibiting employees 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 disciplinary procedures adopted by the defendants to
comply with Wolff 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.
10A report prepared by the defendants in response to the
Third Supplemental Decree issued by the court contains 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.
23
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.
Pursuant to the mandate of the Eighth Circuit, the
Court conducted an extensive further inquiry into
conditions in punitive 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
prisoners are held in segregation pending trial in one
wing and in maximum security 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 administra
tive 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.
24
“Whichever may be the case, the Court now find from
the evidence that unconstitutionalities now exist with
respect to both punitive isolation and administrative
segregation, . . Ibid. The Court found that an inmate
sentenced to punitive isolation was confined “in an
extremely small cell under rigorous conditions for an
indeterminative 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, depending upon their attitudes as
appraised by prison personnel.” 11 Ibid. The Court
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
Interrogatories propounded to Defendants) provided:
“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 o f 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 segregation.
(continued)
25
found that such prisoners were rarely confined in the
cell alone and that at times three or more inmates were
kept in the small cell equipped with extremely limited
facilities. Where three or more men were put in the
same cell, one or two of them had to sleep on the
floor.12 The mattresses were removed during the day. Id.
at 275-276.
The Court reviewed the diet of grue served as a
punishment to inmates in punitive isolation in light of
the Court of Appeals remand and concluded that it
should no longer be served. Id. 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 com
plained of short rations for this meal and of a practice
(footnote continued from preceding page)
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 indefinitely as
long as he was given regular meals for two days every 15 days.
See, Testimony of A. L. Lockhart, Extract of Proceedings in
Graves v. Lockhart, pp. 95-96, 100.
12See Defendants’ Response to Request for Admission of Fact
(May 3, 1974) page 3, A. 219.
26
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 seventeenth day. Virtually all inmates
lost weight on this diet.13 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
which were very rare and could receive only “constitu
tionally protected” mail.14 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 excessive
responses.15 Id. at 276-277. The Court criticized the
13Defendants 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 ‘pumhve
wing’ of the Cummins Prison Farm, have generally and
uniformally [sic] suffered weight loss.” Defendants’ Response to
Request for Admission of Fact (May 3, 1974) p, 2, A. p. 218.
14It was admitted that inmates were not allowed to receive
personal mail while serving time in the punitive wing.
Defendants’ Response To Request For Admission of Fact (May
3, 1974), p. 3, A. p. 219.
15Much 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.
27
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 plaintiffs expert
in the 1974 Graves hearings that punitive isolation as
practiced at Cummins “serves no rehabilitative purpose,
and that it is counterproductive. It makes bad men
worse. It must be changed.” 16 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
further opportunity for physical exercise outside their
cells. Finally, the Court enjoined the confinement of
inmates in punitive isolation for indeterminate periods.
The17 Court’s decision was that indeterminate periods
16See, generally, the testimony of Arthur Rogers, set out in
the Extract of Proceedings in Graves v. Lockhart, at pages 3-20.
17The Third Supplemental Decree provided (A. 183-185):
“Punitive Isolation.
Respondents will be, and they hereby are, enjoined from
sentencing inmates of the Departments to confinement in
punitive isolation for indeterminate periods of time. In the
future an inmate who is convicted of a major disciplinary
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.
(continued)
28
of confinement under these conditions was unreason
able and unconstitutional. 410 F. Supp. at 278. The
(footnote continued from preceding page)
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 foregoing, the use of the substance known
as “grue” , or any variant thereof, as a food for inmates in
punitive isolation is specifically enjoined.
Respondents will be, and they hereby are, directed and
required to afford inmates in punitive isolation reasonably
adequate opportunites for physical exercise outside their
cells, including reasonable amounts of outdoor 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 circumstances 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 cases
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 appropriate
actions based on such evaluations and re-evaluations.
29
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 segregating of unruly prisoners
from general population and referred to the Eighth
Circuit’s controlling decision relating to so-called
“administrative 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 punitive 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 maximum period,
it is found that an inmate should not be returned
to population, he may be kept segregated but
30
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 unconstitutional 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 preceding section hereof
ought to take care of the problem of overcrowding.”
410 F. Supp. at 278.
In the third wing, which would probably be called
“administrative 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.
18Indeed, 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.
3 J
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 isolation
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 Supple
mental 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 against 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 the same choice of dishes as
other inmates but the Court did require that inmates be
served adequate meals in punitive confinement 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
32
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
reexamination 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 “prac
tically 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 disclosed” ; that the authorities
should have themselves discovered some of those
practices without waiting for them to be developed 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
33
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 transcript of depositions and testimony. The Court
noted that much of the testimony heard in 1974 and
1975 had not been transcribed. 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 prohibited 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
isolation 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
Attorney’s 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 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.
34
On October 17, 1977, this Court granted a petition
for certiorari filed by the defendants Hutto et al.
SUMMARY OF ARGUMENT
I. A. The Eighth Amendment limits the prison
conditions in which an inmate may be confined.
Because the prisoner, by reason of the deprivation of
his liberty, cannot provide for himself, prison authori
ties 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 constituted cruel and unusual punishment.
The principle elements on which the District Court
based its finding of a constitutional 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
35
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.
II. A. The District Court awarded respondents coun
sel 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 Wilder
ness Society, 421 U.S. 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 o f
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.
36
Respondents maintain that the enactment of the
Fourteenth Amendment worked a pro tan to 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.
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.
37
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 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
required by the general rule that new legislation be
applied to pending litigation. Bradley v. School Board
o f the City o f 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.
38
ARGUMENT
I.
THE DISTRICT COURT PROPERLY FOR
BADE THE USE OF INDEFINITE PUNI
TIVE SEGREGATION AS PART OF ITS
REMEDY FOR THE UNCONSTITUTIONAL
CONDITIONS IN THE PUNITIVE FACILI
TIES
A. The Cruel and Unusual Punishment Clause of the
Eighth Amendment, which limits both how long19 and
whether20 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 incarceration 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.”
Ingraham v. Wright, 51 L.Ed.2d 71 1, 729, n. 38 (1977).
l9Weems v. United States, 217 U.S. 349 (1910).
20Robinson v. California, 370 U.S. 660 (1962).
39
As this Court recognized in Estelle v. Gamble, 50
L.Ed.2d 251, precisely because an inmate is incar
cerated 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 L.Ed.2d at 259. Estelle held
that the Eighth Amendment requires the government
“ to provide medical care for those whom it is punishing
by incarceration.” Id. In Costello v. Wainwright, 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 provision 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 others21
2National Advisory Commission on Criminal Justice Stand
ards and Goals, Corrections, pp. 31 (clothing, bedding, light,
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, § 1(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 facilities), 19
(continued)
40
insist that society “be required to care for the prisoner,
who cannot, by reason of the deprivation of his liberty,
care for himself.” Estelle v. Gamble, 50 L.Ed.2d at
2 60.* 22 A deprivation of such necessities, like a
withholding of medical care, is a form of punishment
which cannot be resorted to for any offense or
infraction.23
(footnote continued from preceding page)
(bedding), 20(1) (food), 21(1) (exercise) (1955). National
Sheriffs 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),
22The 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
conditions 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).
23Such 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 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. California, 370 U.S. 660 (1962).
41
Unlike other constitutional questions concerning the
operation of prisons, enforcing minimal standards of
food, clothing, shelter and the like will not ordinarily
affect the responsibilities 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 control of the prison staff. In the instant
case, for example, the uniquely deplorable conditions
discovered in 1969, including 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 consistent 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
42
resources necessary to fall within the limits set by the
Eighth Amendment.24
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 Amendment, 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 Arkansas25 are generalized requirements of
decent treatment, while others are more detailed.26
Where, as in Arkansas,27 those statutes are supple
mented by administrative regulations, the regulations
24See Gates v. Collier, 501 F.2d 1291, 1319-22 (5th Cir.
1974).
25Ark. Stat. Ann. §46-116 requires that “Persons committed
to the institutional care of the Department shall be dealt with
humanely with efforts directed to their rehabilitation.”
26See, e.g., New York Corrections Law §137 (1977 Supp.).
27The 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 obligation
“ [t] o develop minimum standards for the construction, mainten
ance and operation of such criminal detention facilities.” 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 Amendment.
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).
43
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 endorsements 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 public28 or legislature, the severity of
those conditions is rarely tested against community
standards, and the judicial enforcement of the prohibi
tion 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 factual and legal issues. Some practices, such as the
deliberate withholding of medical attention, are per se
violations 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 practices may do so. Gates v.
Collier, 501 F.2d 1291, 1309 (5th Cir. 1974). Some
28See 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”).
44
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 consti
tuted cruel and unusual punishment. That conclusion
was reached reluctantly, 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 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
particularly concerned were overcrowding,29 an inade
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).
45
quate diet and pervasive 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 times used to
house three or four inmates.30 Thus frequently 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.
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 calories a day.31 Although this diet
30The 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.
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 segrega
tion 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).
46
was supplemented every third day with a regular meal,
there was substantial evidence that the guards deliber
ately gave only a partial serving of that meal to some
inmates. 410 F. Supp. at 276, n. 11. Practically 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 concoction, is unclear.32 Petitioners them
selves recognized that the actual nutritional intake of
inmates in punitive segregation was such as to require a
thorough physical examination 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 secur
ity . . . [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 controlled but
chronic malnutrition; the role of the medical personnel
was not to prevent this partial starvation, but merely to
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 ol
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.
47
assure that it did not cause death or permanent
injury.33
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 discrimination against
them continued. 410 F. Supp. at 280-81. Although
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
overcrowding and sanitary conditions in the punitive
wing contributed to the spread of contagious diseases.
410 F. Supp. at 258-9.
33The 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 o f Correctional Standards, p. 420 (1972).
48
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 emergency,34 stopped
the serving of grue and directed the petitioners to
provide inmates with a nutritionally adequate diet,35
and limited the period during which an inmate could be
confined in punitive isolation to 30 days.36 The Court
reaffirmed, but did not significantly expand, its
previous injunction against racial and religious discrimi
nation. 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 petitioners were made
initially responsible for framing the study and imple
menting any resulting recommendations. Although the
District Judge made clear Iris concern that changes were
necessary 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, to a
substantial degree the District Court continued its
earlier approach of noting the existence of constitu
tionally suspect practices but refraining from issuing
^410 F. Supp. at 277.
3S410 F. Supp. at 277.
36410 F. Supp. at 278.
49
detailed injunctive requirements in the hope that
petitioners would act without them.37
C. There are a number of important issues of
constitutional law which, although suggested by peti
tioners’ 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
indefinite punitive segregation is unconstitutional per
se.38 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
Building at the Cummins facility.39 While other lower
courts in other cases have been asked to declare such
indefinite isolation impermissible in all cases, no such
determination was made in this case. Even those courts
37We 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 o f New
Kent County, 391 U.S. 430, 439 (1968).
38The petition for writ of certiorari, and petitioners’ phrasing
of the Third Question Presented, may have suggested this was the
substantive issue in controversy.
39At the time of the court’s opinion only 3 inmates were in
punitive isolation at Tucker. See note 18 supra.
50
which have addressed that issue and concluded that
indefinite segregation is not unlawful per se have
emphasized that such segregation might be unconstitu
tional “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 major infraction.40 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 regulations 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 with those suggested by corrections ex
perts.41 As the District Court noted, its order does not
^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.
41See, e.g., American Correctional Association, Manual of
Correctional Standards, 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).
51
interfere with the use of administrative segregation or
criminal prosecution to punish 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 petitioners to punish a series
of major infractions. Ten days after the District Court
entered the lengthy opinion of March 19, 1976,
reported at 410 F. Supp. 251, petitioners filed a
Motion to Alter or Vacate. Item I V of that motion
stated:
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 proceed
ing, 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
52
punitive confinement, 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 abused to circumvent the 30 day limitation.43
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 fourteen 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 segrega
tion. Recalcitrant inmates at the end of this period
should be fed a normal diet. After two or three
42Clarifying Memorandum Opinion, April 2, 1976, p. 3. A.
188.
43/d, pp. 3-4. A. 188.
53
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 “recalcitrant” and “hostile” .45 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 the use of any other methods for
dealing with recalcitrant or hostile prisoners.46 4 1 0 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 opportunity 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
^Arkansas Department of Corrections, Disciplinary Pro
cedures, p. 14.
451975 Transcript, Volume 23, , p. 47.
46The 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.
54
been in light of the vagueness of that standard,47 Unlike
a civil contempt proceeding, 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 traditionally
been imposed in Anglo-American jurisdictions only for
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
including that provision in its order remedying the clear
and undisputed 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 consider
able 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
47For an example of the potential for abuse inherent in a
policy of using indefinite sanctions to make a prisoner
“subservient and break him down” , see Wright v. McMann, 321
F. Supp. 127 (N.D. N.Y. 1970), a ff’d 460 F.2d 126 (2d Cir.
1972), cert, denied 409 U.S. 885 (1972).
55
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 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
IJ.S. 153, 173 (1976). While other deprivations might
be lawful for even a period of weeks, “ [i] n some
instances, 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 IJ.S. 878 (1973). Where, as here, the
conditions and period of incarceration combine to
create a constitutional 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
reasonably in choosing the latter course.48
48A similar remedy was employed in Gates v. Collier, 501
F.2d 1291, 1305 (1974).
56
The 30 day limitation served as well to remedy for
all inmates, however long their sentence to punitive
segregation, the unconstitutional egregious overcrowd
ing. The total population in the punitive wing at
Cummins on any given day is a function of the number
of inmates recently ordered into punitive segregation
and of the length of each sentence. For example, if on
the average, ten inmates a day are remanded for a
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 isolation 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 278.49
Many of the abuses which contributed to the
unconstitutionality 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 meaningfully monitored and
49In the hypothetical case described in the text application of
the 30 day limitation would reduce the average population in
punitive confinement from 105 to 75.
57
enforced without a substantial ongoing federal effort.50
The District Court also noted a number of practices,
such as the training and deployment of guards, which
contributed substantially to the unconstitutional condi
tions, but which it was understandably reluctant to
directly interfere with. The District Court could have
issued detailed orders regarding these and other
practices of which inmates had complained, enforcing
those orders through reporting requirements, grievance
machinery, or other means.51 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
petitioners would take voluntary corrective action if the
court brought the facts and laws to their attention,
50One 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. 11.
51See Newman v. Alabama, 559 F.2d 283, 290 (5th Cir.
1977) (authorizes appointment of a Federal monitor for each of
the state prisons).
58
exhibited great reluctance to directly order the
petitioners to conform their conduct to the constitu
tional 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 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 principles, was the least
intrusive injunctive order that would have remedied the
constitutional violations, and was long overdue.
II.
THE DISTRICT COURT HAD THE AU
THORITY TO AWARD COUNSEL FEES
AGAINST THE DEPARTMENT OF COR
RECTION
The District Court awarded counsel fees because the
petitioners had acted in bad faith. 410 F.Supp. at
59
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, wantonly, or for oppressive rea
sons. . . .” 421 U.S. at 2 5 9.52 This rule has been applied
to a variety of forms of conduct, including an
intentional violation of the plaintiffs constitutional or
statutory rights,53 an inexcusable default on an
52See also Runyon v. McCrary, 427 U.S. 160, 183 (1976);
F.D. Rich 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).
53The 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. o f Powhatan
County, 321 F.2d 494 (4th Cir. 1963), cited with approval in
Rich and Hall; Richardson v. Communications Workers o f
America, 530 F.2d 126, 132 (8th Cir. 1976); Doe v. Poelker,
515 F.2d 541, 547 (8th Cir., 1975).
60
obligation to remedy a past or existing violation,54 an
unjustifiable defense of clearly unlawful conduct,55 or
dilatory, fraudulent, or otherwise improper litigation
tactics.56 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 was occurring in the
prisons for which they were responsible,57 (4) despite a
series of hearings and written and oral orders from the
54Bradley 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), affd 409 U.S. 942.
55Newman v. Piggie Park Enterprises, supra; Fairley v.
Patterson, 493 F.2d 598, 606 (5th Cir. 1974).
56Universal Oil Products Co. v. Root Refining Co., 328 U.S.
575, 580 (1946).
57Compare Matter o f Yamashita, 321 U.S. 1, 14-16 (1945).
61
court over the course of the litigation, constitutional
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. Wilder
ness 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
circumstances 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 o f Correction, 505 F.2d 194
(8th Cir. 1974). The court also directs that counsel
be reimbursed for the reasonable and necessary
expenses paid or incurred by them, including the
expenses of employing law students to assist in the
preparation 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
62
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, presumably out of their
personal resources.58 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 Amend
ment 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 officials in their official 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 doctrine of sovereign immunity, but
this Court unanimously affirmed the award without
opinion. 409 U.S. 9 42.59 In Alyeska Pipeline Service
58Unlike 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 involved,
and entirely justifiable, since the bad faith relates to the personal
conduct of Mr. Hutto and his predecessors.
59This 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.
63
Co. v. The Wilderness Society, 421 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
Attorneys’ Fees Act of 1976. 50 L.Ed.2d 581 (1976).
The courts of appeals are divided on this question.60
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
60Three 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 v. 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 Amend
ment 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 o f 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, o f 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).
64
and Citizens of 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 extent 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 a state by its
own citizens.61 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. Department o f Treasury, 323 U.S. 459, 464
(1945). It is this latter doctrine with which this case is
concerned.
61In 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.
65
The fact that an order against a state official directs
the official 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 preclude the federal courts from
directing state officials 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 Constitution 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
officials.” 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
66
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 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 o f 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
administration 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 impor
tant 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 178 9 62 the federal
621 Stat. 73, 93; Henkel v. Chicago, etc., R.R., 284 U.S. 444
(1932).
67
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
Federal Rules of Civil Procedure,63 the Federal Rules of
Criminal Procedure,64 the Federal Rules of Appellate
Procedure,65 the Rules of the Supreme Court,66 and the
United States Code.67 These rules and statutes are
literally 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 official. 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.
63Federal Rules of Civil Procedure, Rules 30(g), 37(a)(4),
41(d), 43(f), 54, 55(b)(1), 56(g), 65(c), 68.
^Federal Rules of Criminal Procedure, Rule 38(a)(3).
65Federal Rules of Appellate Procedure, Rules 7, 38, 39.
66Rules of the Supreme Court, Rules 14, 18, 36(3), 57, 60.
67See e.g., 28 U.S.C. §§1331, 1332, 1446, 1911-29, 2101(f),
2103.
68
That awards of costs are not subject to the Eleventh
Amendment is consistent with the analysis in Edelman.
The 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 incident 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 principle announced in Ex Parte
Young.” Edelman v. Jordan, 415 U.S. 651, 668 (1974).
Were this Court to held such awards impermissible
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
69
Arkansas as a matter of state law. Arkansas Act 543 of
1977, which became law on March 18, 1977 provides in
pertinent part that the State “shall pay actual damages
adjudged by a state or federal cou rt. . . 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 witnesses, 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 his
writ purchased.”68 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
68Statute of Gloucester, 1278, 6 Edw. 1, c. 1; Fleischman
Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 717, n. 7
(1967).
70
Congress has adopted more than a score of statutes
authorizing awards of attorneys’ fees; in virtually every
case that award was made an item to be included as
part of the taxable costs.69 In England costs have
69See e.g., 5 U.S.C. §552(a)2E (court may assess “attorneys’
fees and other litigation costs”); 7 U.S.C. §210(f) (successful
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 antitrust action to recover
“the cost of suit, including a reasonable 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 including 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
(continued)
7!
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 includ
able as part of costs.70 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).
(footnote continued from preceding page)
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.S.C. §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”).
70Mr. 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 followed. Id.
72
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 .69, 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 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 construction 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 tan to repeal
of the Eleventh Amendment, and that the Eleventh
Amendment thus has no application 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). Respondents concur in
the views as to the impact of the Fourteenth
Amendment are set out in the Brief Amicus Curiae of
73
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.
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
attorneys general” , had vindicated important public
policies; this private attorney general rule was applied
with particular frequency 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)
74
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 required by that decision.71 Acting with
unusual dispatch Congress completed hearings within
that year,72 The Senate and the Senate and House
Judiciary Committees reported out similar bills in June
and September of 19 7 6.73 74 Both reports emphasized that
the basic purpose of the legislation was “to remedy
anomalous gaps in our civil rights laws created by the
United States Supreme Court decision in Alyeska'"14
and to revive the practice sanctioned by numerous
lower courts, but disapproved by footnote 46 of the
Alyeska opinion, of awarding fees to private attorneys
general in civil rights cases.75 After debates emphasizing
71H.R. 7826,7828, 7968, 7969, 8220, 8221, 8821, 8742,
8743, 9552, 94th Cong., 1st Sess.
72Hearings 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
Subcommittee on Representation of Citizen Interests of the
Senate Judiciary Committee, 93rd Cong., 1st Sess. (1973).
73S. Rep. No. 94-1011; H.R. Rep. No. 94-1558.
74S. Rep. No. 94-1011, p. 1.
75H,R. Rep. No. 94-1558, p. 2.
75
Congress’ intent to supply the express authorization of
fees required by Alyeska, the Senate ended a filibuster,
both houses approved the bill, and it was signed into
law on October 19, 1976.76
76Representative 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).”
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 authorization 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).
76
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 provision 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.”
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. “(O)ne who prosecutes or defends a suit
in the name of another, to establish and protect his
own rights, or who assists in the prosectuion 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, 486-87
77
(1910).77 A state or other entity may elect 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
1112.13.
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 o f Kenosha v.
Bruno, 412 U.S. 507 (1973); Monroe v. Pape, 365 U.S.
167 (1961).78 In most of these cases the city or state
11 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.), affd, 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).
78To 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 o f 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
Department o f Corrections, PB-72-C-15, Russell v. Department o f
Corrections, PB-72-C-155.
78
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 costs. In the instant case the Attorney General of
Arkansas assumed control of the litigation from the
outset and conducted the lengthy and at times
intransigent defense.79 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
unambiguously 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, defen
dants in these cases are often State or local bodies
792A 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
commissioners, in all litigation where the interests of the
State are involved.”
79
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 officials are frequently the defen
dants in cases brought under the statutes covered
by [the bill]. See, e.g., Brown v. Board o f
Education . . . Such governmental entities and of
ficials have substantial resources available to them
through funds in the common treasury, including
the taxes paid by the plaintiffs themselves. . . . The
greater 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 including special
purpose units of general local governments.”80 Senator
Helms urged that the amendment was necessary to
“afford protection to financially pressed State and local
80122 Cong. Rec. S. 16433 (daily ed. Sept. 22, 1976).
80
governments.” 81 The Senate rejected the proposal by a
vote of 59 to 28.82
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 attention of the House
Judiciary Committee.83 The House Report, issued two
months after the decision in Fitzpatrick v. Bitzer, 427
U.S. 445 (1976), expressly invoked that decision as
upholding the power of Congress to subject a state to
monetary liability despite the Eleventh Amendment.84
The Senate Report, written before Fitzpatrick85 as
81/d , at S. 16432, “This legislation provides that State and
local governments and their officials can be defendants 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 financially hard-pressed State and local governments.”
82M , S. 16434.
83Hearings Before the Subcommittee on Courts, Civil Liberties
and the Administration of Justice of the Committee on the
Judiciary, 94th. Cong., 1st Sess., pp. 36, 41, 268 (1975).
s4Id. , 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.”
85The report was filed on June 29, 1976, the day after the
decision in Fitzpatrick.
81
serted 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 compliance with”86
sections 1983, etc., noted that counsel fees were
properly regarded as “costs” , and cited the decision in
Fairmont Creamery exempting counsel fees from the
scope of the Eleventh Amendment.87 In the House
debates Congressman Drinan, the bill’s sponsor, reiter
ated Congress’ authority to impose liability on a state
notwithstanding the Eleventh Amendment.88
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
86This was clearly an attempt to invoke the standard
announced by the Court in Edelman v. Jordan, discussed supra.
87S. 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 would 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 Fitzpatrick 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).
82
instances where these laws are violated, it is
necessary 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 authorizing 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.
H.R. Rep. No. 94-1558, p. I.89 In any §1983 case
involving protracted litigation the amount of the fee to
which a prevailing plaintiff would be entitled could
easily exceed the personal 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
89See 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. September 21, 1976).
SI643 (remarks of Senator Hathaway) (daily ed. September 23,
1976), S17051 (remarks of Senators Kennedy and Tunney),
S17052 (remarks of Senators Kennedy and Abourezk) (daily ed.
September 29, 1976); H I2155 (remarks of Rep. Sieberling),
H12163 (remarks of Rep. Fish), H12164 (remarks of Rep.
Holtzman) (daily ed. October 1, 1976).
83
fee provisions, such as the Civil Rights Act of 196490
the Emergency School Aid Act of 1972,91 awards
against cities and states are clearly authorized.92 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 laws
guaranteeing civil and constitutional rights,”93 and
specifically referred to Civil Rights94 and Emergency
School Aid Acts95 as establishing the standards it
wished to apply to litigation under 42 U.S.C. §1983.
The intended uniformity 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
90See, e.g., 42 U.S.C. §2Q00e-5.
9120 U.S.C. §1617.
92Fitzpatrick v. Bitzer, 427 U.S. 445 (1977); Bradley v.
School Board o f City o f Richmond, 416 U.S. 696 (1974).
93H.R. Rep. No. 94-1558, p. 1; see also id., p. 8; S. Rep. No.
94-1011, pp. 1, 4; 122 Cong. Rec. S16252 (remarks of Senator
Kennedy) (daily ed. September 21, 1976); HI 2151 (remarks of
Rep. Anderson), H12159 (remarks of Rep. Drinan), H12163
(remarks of Rep. Kastenmeier) (daily ed. October 1, 1976).
94S. Rep. No. 94-1011, pp. 4, 5; H.R. Rep. No. 94-1558, p. 6;
122 Cong. Rec. S I6251 (remarks of Senator Scott) (daily ed.
September 21, 1976), S I6430-31 (remarks of Senator Hathaway)
(daily ed. September 23, 1976), H1215Q (remarks of Rep.
Anderson), H12159 (remarks of Rep. Drinan), H12163 (remarks
of Rep. Kastenmeier), H12165 (remarks of Rep. Seiberling)
(daily ed. October 1, 1976).
95S. Rep. No. 94-1011; p. 4; H.R. Rep. No. 94-1558, pp. 1, 3,
6.
84
Fourteenth 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 unusual96 prison condi
tions 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 awarded without regard to the defendants’
96The 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).
85
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
governor,97 legislator,98 judge,99 police officer,100 school
official,101 or prosecutor.102 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 special “express statutory
language.” 103 Precisely what language petitioners claim
must be used is not clear. The decisions of this Court
support no such technical requirement. In Employees v.
Department o f Public Health & Welfare, 411 U.S. 279
(1973), the “literal language” of the statute rendered
state agencies liable to suit in federal court. 411 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
97See Scheuer v. Rhodes, 416 U.S. 232 (1974).
"See Tenney v. Brandhove, 341 U.S. 367 (1951).
"See Pierson v. Ray, 386 U.S. 547 (1967).
1(XSee Pierson v. Ray, 386 U.S. at 555-57.
101See Wood v. Strickland, 420 U.S. 308 (1975).
102lmbler v. Pachtman, 424 U.S. 409 (1976).
103Brief for Petitioners, pp. 7-9.
86
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 federal-state
relationship.” 104 Employees, 411 U.S. at 286. In the
instant case that history is unambiguous, and the
resulting liability for counsel fees is an ordinary
104This is well exemplified by the circumstances of Employees
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 subjected the states to
an unusual provision for double damages; the Court declined on
the record to infer an intent to create federal jurisdiction. In
Fitzpatrick 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.
87
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 o f the
City o f 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 legislative 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
pending cases.105
105H.R. Rep. No. 94-1558, P. 4, n. 6. “In accordance with
applicable decisions of the Supreme Court, the bill is intended 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 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
(continued)
88
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 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 Alyeska,106
(footnote continued from preceding page)
long-standing rule to an attorney fee provision, including 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 Ashbrook 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 o f City o f 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. S I7052 (daily ed. September 29,
1976).
106Fowler v. Schwarzwalder, 498 F.2d 143 (8th Cir. 1974);
89
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 constitutional
responsibilities. 416 U.S. at 717-20. This case presents
no exceptional circumstances which would warrant
disregarding the plain intent of Congress, and the rule
in Bradley, that this newly enacted legislation be
applied to pending cases.
90
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,
711 West Third Street
Little Rock, Arkansas 72201
JACK GREENBERG
JAMES M. NABR1T, III
CHARLES STEPHEN RALSTON
STANLEY BASS
ERIC SCHNAPPER
LYNN WALKER
10 Columbus Circle
New York, New York 10019
Attorneys for Respondents
la
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 defendant 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 o f Labor, No.
72-5704;
Papish v. Board o f Curators o f University o f
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 Pennsyl
vania) ;
2a
Chapman v. Meier, No. 73-1406 (Defendant was
the Secretary of State of North Dakota);
Hagans v. Levine, No. 72-6476 (Defendant was the
Commissioner of the New York State Department
of Social Services);
Communist Party o f 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 Commis
sioner 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. 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 o f Central Missouri v. Dan-
forth, 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).
3a
(c) Civil Actions for injunctive or monetary relief,
against a state or 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. 72-39.7;
Local 16 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. Kady, 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;
4 a
Antoine v. Washington, No. 73-717;
Taylor v. Louisiana, No. 75-5744;
Jenkins v. Georgia, No. 73-557;
Spence v. Washington, No. 72-1690;
Codispoti v. 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;
Hanker son v. North Carolina, No. 75-6568;
Coker v. Georgia, No. 75-5444.