Supplemental Brief of Defendants-Appellants

     [||105a19e6-d466-41e4-8e58-5bddf0ebd351||] IN THE UNITED STATES COURT OF APPEALS 

FOR THE PFPIPTH CIRCUIT 

  

NO. 76-1865 

  

DELORES NORWOOD, ET AL 
PLAINTIFFS-APPELLEES 

Vv. 

D. L. HARRISON, SR., ET AL 

DEFENDANTS-APPELLANTS 

On Appeal from the United States District Court 
for the Northern District of Mississippi 

  

SUPPLEMENTAL BRIEF OF DEFENDANTS-APPELLANTS 

  

A. FF. SUMMER, ATTORNEY GENERAL 

STATE OF MISSISSIPPI 

PETER M. STOCKETT, JR. 
SPECIAL ASSISTANT ATTORNEY GENERAL 

POST OFFICE BOX 220 
JACKSON, MISSISSIPPI 

ATTORNEYS FOR DEFENDANTS~APPELLANTS 

 



  

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SUMMARY OF ARGUMENT ©, 0. . i. Jat Cap dag. 3 - 4 

ARGUMENT TY vom Deli el 5 =" 

ARGUMENT IX: 5 i ie ar anal Eh LE 8.7185 

ARGUMENT TIT ©, waa LT 16 - 

CONCLUSION «fe al wiry iniiy saw nv Ja io difiel in” win rem 

CERPIRPICATE. tv viv vs nile i¥ eGo wis ihe lie ini es nie 

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- Arkansas v. 

38is.Ct. 

Belknap v. 
40 L.Ed. 

Tennessee, 

301, 

Schild, 
599. 

Bry-Man's Ine. v. 

Christian v. 

62 L.Ed. 

Stute 

TABLE OF CASES 
  

246 U.S. 
638». 

161. U.S. 11, 
° LJ ° » Ld 

(1963), 

Atlantic and North 
Railroad Company, 

158, 175, 

16 S.Ct. 

312 F.24 585 

Carolina 

133 U.8...233, 10 S.Ct. 260, 

° Ld 

1951) 
* 

33 L.74. 589 .. . . . iis 

City of Kenosha v. Bruno, 412 U.8. 507, 
93 S.Ct... 2222, 37 1,.E4 24 109 Te 

Clark v. Washington, 366 F.24 678 
{9th Cir. 1966) vbw mie ae bie 

Durfee v. Duke, 375 U.S. 106, 115, 
84 S.Ct... 242, 11 L.Ed. 247186 .. . 

FPitapatyick v. Bitsmer, U.S. 
96 S.Ct. 2666, 49 1L..Fd.: 24 1976 

Bale vv ie ve ne Be we es . 

Bevitt vw, City of Jacksonville, (5th Cir. 
188 F.24.423 . Cala ele ie 

Jagnandan v. Giles, No. 74-3467 «7s 

King v. Finch, (1970) 428 F.2d 709 . . 

Monroe v. Pape, 365 U.S5.:167, 81 '8.Ct. 473, 

5 L.B0.20, 292 oi. teat Me an LT, 

Olson v. California Adult Authority, 
(+h Cir. 1970), 423 F.28 1326 y 

Ld 

PAGE 

  

11 

10 

 



  

- PAGE 
  

Provident Bank and Trust Company v. Patterson 
390 U.8+.+102, 83 S.Cte 733,19 L.Ed. 284° 936 . .... 8 

Schutten v. Shell 011 Company, 
421 P.24. 869 (5th Cir. 1970) wv oii vin wien 9, 13 

Shields v. Barrow, l1l7 How. 130, 
OE Td FRY TREE Bs WYER i Se Se PE RA A aE LN Ri i TENET SH 8 

United States v. Nixon, 418 U.S. 683, 
94 S.Ct. 3000, 41 L.EQ. 24 1039 "iui oa ode ite ia 33 

United ‘States v. Romana): :382 U.S. 136, 
86 S.Ct. 279, 15 L.BA.: 24 210 0 . ota Gan 14 

Western Union Telegraph Company v. 
» Pennsylvania, 368 U.S. 71, 75, 82:8.Ct. 199, 

J: L.Ed. 24 139 40 oii ein . luted ’ “oie 8 

OTHER AUTHORITIES   

Civili Right Act of 1964, 42 U.S.C. 
2000la) 0... oi ee eae eee eee le ae el he 6 

Civil Rights Attorneys' Fees Award Act of 
2976 «ie see ee wie «eatin «Liam a ee 1::3;°5, 

8,:9,:13 

Rule 19 of the Federal Rules of Civil 

PrOCOOUYE vio viihiie: vin vile Sie Sh WEL SRE 9 

ii. 

 



  

IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

  

NO. 76-1865 
  

DELORES NORWOOD, ET AL 
PLAINTIFFS-APPELLEES 

VY. 

D. L. HARRISON, SR., ET AL 

DEFENDANTS-APPELLANTS 

On Appeal from the United States District Court 
for the Northern District of Mississippi 

  

SUPPLEMENTAL BRIEF OF DEFENDANTS~-APPELLANTS 

  

This supplemental brief will be addressed to two issues 

which have supervened since the filing of our main Brief and 

our Brief in Opposition to Motion for Summary Affirmance. 

One of these issues is legal; the enactment of the Civil 

Rights Attorneys' Fees Award Act of 1976. The other issue 

 



  

to be discussed in this brief is factual in nature; the 

admission into the record on this appeal of the deposition 

of M. A. Snowden, with its attached exhibit. 

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SUMMARY OF ARGUMENT 
  

As to the effect on this case of the enactment 

of the Civil Rights Attorneys' Fees Awards Act of 1976, 

sometimes hereinafter referred to as "the Act", appellants 

contend that: (1) The Act did not amend the definition 

of "person" under 42 U.S5.C. 1983 to include States or 

State agencies; nor did said Act itself make such entities 

suable. Therefore, under the holding of the Supreme 

Court in Fitzpatrick. v, Bitzer, uw ~~ U.85. 98 8.CL. 

2666, 49 L.Ed.2d (1976), as interpreted by this 

Court in Jagnandarn v. Giles, No. 74-3467, decided September 

20, 1976, the attorneys' fees and costs involved in the 

case sub juduce can not be recovered from funds of the 

State of Mississippi; and (2) appellants maintain their 

position as expressed in their brief (Pages 34-37) that 

the State of Mississippi is an absent indispensable party 

to this litigation. Appellants would further state that 

if the Civil Rights Attorneys' Fees Award Act of 1976 is to 

be construed to legislatively determine that the State of 

Mississippi is not an indispensable party to this litiga- 

tion, then said Act is unconstitutional on the grounds 

of being an invasion of the judicial power of Courts of 

 



    

the United States. 

As to the deposition of M. A. Snowden, appellants 

submit that a reading of that deposition to which an 

exhibit is attached which appellees say demonstrates that 

appellants were "active participants in the transfer of 

textbooks to private academies" (Motion for Summary 

Affirmance and Brief for Plaintiffs-Appellees, page 6), 

defendants submit that a reading of that deposition 

clearly reveals that all that was done by Mr. Snowden, 

then Executive-Secretary of the Textbook Board, was to 

implement the long standing practice under then valid 

State law-of allowing the "textbooks to follow the 

student”. 

CT EW IR SAT PINT 

 



  

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ARGUMENT 
  

I. 

THE CIVIL RIGHTS ATTORNEYS 
FEES AWARD ACT OF 1976 DID 

NOT AMEND THE DEFINITION OF 

"PERSON" 

In their brief in Opposition to Motion for Summary 

Affirmance previously filed in this cause, appellants 

expounded at length (Pages 3-9) as to the conditions and 

circumstances under which Congress might permit a monetary 

award from the funds of an unconsenting State, as expli- 

cated by the decisions of the Supreme Court of the United 

States in Fitzpatrick v. Sehier, U.S, 06 BCE, 

2666, __ L.Ed.2d___ , and of this Court in the case of 

Jagnandan v. Giles, decided September 20, 1976. In order 

to avoid repetitious argument, reference is hereby made 

to that portion of our brief, and appellants request the 

Court to take the arguments there made ino: consideration 

in deciding this issue. 

The question arises, does the enactment of the 

Civil Rights Attorneys' Fees Award Act of 1976 make the 

State of Mississippi liable to a monetary judgment in the 

case sub juduce? We believe that the answer is clearly



     

   
   
   
    

     

     

  

   
   

         

    

   
    
    
   
   
   

    

in the negative. The Act, provides in pertinent part: 

"In any action or proceeding to enforce 
a provision of sections 1977, 1978, 1979, 
1980, and 1981 of the Revised Statutes, 
or Title VI of the Civil Rights Act of 
1964, the Court, in its discretion, may 
allow the prevailing party, other than 
the United States, a reasonable attorneys’ 
fee as part of the costs". 

The Act does not specifically include States 

pursuant to Fitzpatrick v. Bitzer, supra, and therefore, 

does not act to permit fees in this case. In Bitzer 

the award of fees was made pursuant to an express statu- 

tory provision, 42 U.S.C. 2000e-5(k), part of the statute 

| that originally permitted the lawsuit. That section pro- 

vides as follows: 

"In any action or proceeding under this 
subchapter the court, in its discretion, 
may allow the prevailing party, other 
than the Commission or the United States, 
a reasonable attorneys' fee as part of the. 
costs, and the Commission and United States 
shall be liable for costs the same as a 
private person". 

That statute however, must be read in conjunction with 

another section of Title VII of the Civil Rights Act of 

1964, 42 U.S.C. 2000e(a) which provides that the definition 

of "person" includes "governments, governmental agencies 

[and] political subdivision." 

Of critical importance here is the fact that the 

Act does not amend the definition of "person" found in   



    

42 U.S.C. 1983 to cover States. It is well settled that 

States or State agencies are not "persons" under §1983, 

Monroe v.. Pape, 355 U.S. 167, 81 8.Ct, 473, 5 1L.E4.28 492, 

City of Sneath v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 

37 L.Ed.2d 109; Clark v. Washington, 366 F.2d 678, (9th 

Civ.y 1966); Olson v. California Adult Authority, (9th 

Cir., 1970), 423 F.2d 1326, and therefore, are not subject 

to suit and an award of attorney fees pursuant to that 

statute. Thus, an attempt to pass a general amendatory 

statute to cover states in contravention of a Constitutional 

righty. must fail, 

2 zt 73 N13 #f



  

It. 

THE STATE OF MISSISSIPPI 1S 
AN ABSENT INDISPENSABLE PARTY 
TO THIS LITIGATION NOTWITH- 
STANDING THE ENACTMENT OF THE 
CIVIL RIGHTS ATTORNEYS' FEES 

AWARD ACT OF 1976 

Appellants have previously taken the position 

that the State of Mississippi is an absent indispensable 

party to this litigation. See Brief for Defendants- 

Appellants, pages 34-37 and Brief of Defendants—-Appel- 

lants in Opposition to Motion for Summary Affirmance, 

pages 13-14. We maintain this position in light of the 

enactment _of the Act. 

made in our previous briefs. 

We will not reiterate the arguments 

previously cited by appellants in this connection are: 

Durfee v. Duke, 375 U.S. 106, 115; 
84 8.Ct. 242, 11L.EAd.24 186 

Arkansas v. Tennessee, 246 U.S. 158, 
76, 38 8.Ct 301, 62 L.P4A. 638 

Western Union Telegraph Company v. 
Pennsylvania, 368 B.S. 71, 75, 
82. 83.Ct. 199, 7 L.B8.24 139. 

Provident Bank and Trust Company v. 
Patterson, 390 U.S5.:102, 88 S. 
Ct. 733, 

Shields v. 

L.EA. 153 

19 ..E4.28 936 

Barrow, 17 Bow.130, 15 

  

The cases and other authorities



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Schutten v. Shell 011 Company, 
421 ¥.28 869 (5th Cir. 1970) 

Olson v. California Adult Authority 
{9 Cir, 1970) 423 P.24 1326 

Hewitt v. City of Jacksonville 
{5 Cir. 1951) 188 7,24 423 

Rule 19 of the Federal Rules of 
Civil Procedure 

The answer of appellees to this argument appears 

to be two-fold: (1) None of the above cases cited by 

“appellants involved cases in which the relevant State 

or any of its agencies were parties defendant; thus, 

1 to the case sub Jjuduce; and (2) they are inapplicable 

The legislative history of the Act, as shown by language 

in the report from the Senate Judiciary Committee indicates 

congressional intent to vest Federal Court jurisdiction 

to award judgments for attorneys' fees against a State or 

local government, whether or not the agency or government 

is a named party. Appellees take the position that Congress 

has legislatively decided that the State of Mississippi is 

not an indispensable party in this case. In the alternative 

appellees contend that the District Court has definitely 

1/ Motion for Summary Affirmance and Brief for Plaintiffs- 
Appellees, page 8. 

 



    

disposed of this issue in the concluding paragraph of 

its Gates opinion, which was incorporated into its 

decision in the instant case.? 

Appellants would respond to the two-fold 

argument of appellees as follows: 

Further research relating to the decisions of 

the Courts as to the indispensability of an unconsenting 

State as a party to a suit seeking to recover State 

monies demonstrates that states are, indeed, indispensable 

parties to such suits even when State officers or agencies 

are named defendants to the action. For example, see 

the decision of the Supreme Court of the United States in 
re 

Christian v. Atlantic and North Carolina Railroad Company, /6 

133 v.98. 233, 10 8.Ce. 260, 33 1.24. 539, in which the 

Treasurer of the State of North Carolina was named as a 

defendant. The ' relevant Yancanse of the Supreme Court 

: \ 
stades: \ 

S . QA "How the dividends due to the State 
v/s can be seized and appropriated to the 
py? payment of the bonds, or how the stock 

held and owned by the State can be 
sold and transferred through the medium 

2/ Letter from Melvyn R. Leventhal, Esquire, Counsel for 
appellees to Honorable Edward W. Wadsworth, Clerk 
Of this Court, dated October 6, 1976, pags 2.  



    

of a suit in equity, without making 
the State a party to the suit, it is 
difficult to comprehend. The general 
rule certainly is, that all persons 
whose interests are directly to be 
affected by a suit in chancery must 
be made parties. 

* %*% 

The State has a direct interest to be 
affected by such a proceeding. The 
proposal is to take the property of the 
State and apply it to the payment of 
its debts due to the plaintiffs, and 
to do it through the instrumentality 
Of a court of equity. 

* x % 

There is a class of cases, undoubtedly, 
in which the interests of the State 
may be indirectly affected by a judicial 
proceeding without making it a party. 

*k*k 

Such cases do not affect the present, 
in which the object is to take and 
appropriate the State's property for 
the purpose of satisfying its obliga- 
tions." | 

(33 L.Ed 592-593) 

40 L.Ed. 599, the Supreme Court stated the rule; thusly: 

"In a suit to which the state is neither 
formally nor really a party, its officers 
although acting by its order and for its 
benefit, may be restrained by injunction, 
when the remedy at law is inadequate, from 
doing positive acts for which they are 

And, in Belknap v. Schild, 161 U.S. 11, 16 S.Ct. 44s, 

18906



  

personally and individually liable, b 
taking or injuring the plaintiff's 
Property, contrary to a plain official 
duty requiring no exercise of dis- 

  

cretion and in violation of the | 
Constitution or laws of the United | 
States. 

¥ | | | * % % 3 

But no injunction can be issued a- 
i ainst officers of a state, to re- i 

strain or control the use of property | 
already in the. possession of.the 

| state, or money in its treasury-when 
the suit—is_ commenced; or to compel 
the state to perform its obligations; | 
or where the state has otherwise such | 
an interest in the object of the suit 

i as to be a necessary party." 

J (40 L.Ed. 602) 

® The State of Mississippi is an indispensable party : ] | 

| to this suit which seeks to obtain a money judgment ! 

; against State funds. 4 

: As the holdings of the Supreme Court and this Court 2 

i make clear, the determination of whether a party to a sult 

i is indispensable is strictly a function of the Courts, and 

: any effort by the Legislative or Executive branches of ; 
i | : 

the government to intrude in the making of this determination ; 

i must be rejected as a violation of the principle of separation 

; of powers. This Court has exercised its' judicial power on 

i numerous occasions to determine whether a person or an i 

i entity is a necessary or indispensable party to the main- 
i 

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a De 5 CS OE RECT TS ENT Rv et i i i a EE i a Sa ait oe ot CBRE ERE 

 



  

tenance of a suit. See Schutten v. Shell 0il Company, 

supra; Bry-Man's Inc. v. Stute, (1963), 312 F.2d 585; 

and King v. Finch, (1970) 428 F.2d 709. In King v. 

Finch, supra, this Court made the following statement: 

"We must reject the argument that 
a law that does not affect the com- 
position, nature, jurisdiction or 
even procedure of the courts, but 
only affects the substantive rights 
of a litigant, violates the separa- 
tion of powers under the facts of 
this case." 

{428 F.24 713) 

The correlative to this principle is that any law 

that does affect the "composition, nature, jurisdiction, 

or even procedure of the Courts" would violate the prin- 

ciple of separation of powers. If the language contained 

in the Report of the Senate Judiciary Committee is to be 

engrafted upon provisions of the Act so as to mandate a 

Congressional determination that the State of Mississippi 

is not an indispensable party to the case sub Jjuduce, 

then the Act would run afoul of the strictures of the 

Supreme Court of the United States and of this Court above 

cited. 

The Supreme Court of the United States, in its' 

decision in United States v. Nixon, 418 U.s. 683, 94.8.0. 

3090, 41 L.Ed.2d 1039, has recently reminded us that: 

 



  

"Notwithstanding the. deference each 
branch must accord the others, the 
'judicial power of the United States’ 
vested in the federal courts by Art 
III, §1, of the Constitution can no 

"more be shared with the Executive 
Branch than the Chief Executive, for 
example, can share with the Judiciary 
the veto power, or the Congress share 
with the Judiciary the power to over- 
ride a Presidential veto. Any other 
conclusion would be contrary to the 
basic concept of separation of powers 
and the checks and balances that flow 
from the scheme of a tripartite govern- 
ment." : 

(41 L.Ed.2d 1062) 

By the same token, the judicial power of the United 

States cannot be shared with the Legislative branch, as 

su the Suprefie Court has held in United States v. Romana, 

382 U.S, 135, 86 .8.Ct. 279, 15 L.Bd.24 210, and numerous 

other cases. | 

As to the alternative position of appellees that the 

District Court in the case sub juduce has definitively 

disposed of the issue of the Lndlspansatiiliey of the State 

of Mississippi in the concluding paragraph of its' Gates 

opinion, which was incorporated into its decision in the 

instant case, (A., pages 105-106), a reading of the language 

used by the District Court shows that it made no mention 

as to whether or not the State of Mississippi was an in- 

dispensable party to the suit, but dealt chiefly with 

 



    

stating equitable considerations and other reasons why, 

as between assessing the award of attorneys' fees and costs 

against the defendants in their individual, personal 

capacities or against monies of the State, the State 

should have to bear the financial burden. If the decision 

of the District Court can be read so as to hold that the 

State of Mississippi is not an indispensable party to 

this action, then appellants submit that said decision 

is clearly erroneous. 

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ARGUMENT III 

THE DEPOSITION OF M. A. SNOWDEN 

AND ITS' ATTACHED EXHIBIT DOES 

NOT SUPPORT THE CONCLUSION THAT 

APPELLANTS WERE ACTIVE PARTICI- 

PANTS IN THE TRANSFER OF TEXT- 

BOOKS TO PRIVATE ACADEMIES 

Appellees interpret the memorandum attached as 

Exhibit I to the deposition of M. A. Snowden, formally 

Executive-Secretary of the Textbook Board, which was 

recently admitted into the record on this appeal, 

to mean that appellants, or their predecessors in office 

were "active participants in the transfer of textbooks 

to private academies" .3 

Appellants submit that a reading of that deposition 

clearly reveals that all that was done by Mr. Snowden 

was to implement the long standing practice under then 

valid State law of allowing the "textbooks to follow 

the student". 

In the first place, the memorandum itself, states 

that: 

"It will be necessary for the super- 
intendents to transfer books with the 
student as he transfers to the private 
school.” 

3/ Motion for Summary Affirmance and Brief for Plaintiffs- 
Appellees, page 6 

- 16 - 

 



   

   
This was in furtherance of long standing State 

policy embodied in the free textbook program since 1940 

and certainly did not direct the transfer of textbooks 

to private schools, but merely stated that the textbooks 

should follow the student, Mr. Snowden, in giving his 

testimony, gave his interpretation of Mississippi law 

as meaning that the Textbook Board could loan a student 

a textbook without distinction as to whether he attended 

a public or private school. 

Under questioning from counsel for appellees as 

to the meaning and implementation of the memorandum which 

was attached as Exhibit I to his deposition, Mr. Snowden 

stated: 

Q. Mr. Snowden, did any children take 

textbooks directly from a public 

school to a private school? 

A. Not that I know of; they may have. 

We have had some that entered school 

school and took them home with them 

and never showed up again. 

0. Did you authorize superintendents to 

permit children to take textbooks with 

4/ Deposition of M. A. Snowden, page 8 

    

   



      

    

   
    

  

     

   

  

    
   

  

them from public to private schools. 

A. Yes, but on a transfer basis; check 

them in to him and check them out to 

the others. 

Q. If any child took a textbook with him 

directly from public to private school, 

how would that have occurred? 

A. It would have been Xind of poor administra- 

tion on the part of the school. 

Q. You don't read this memorandum as authori- 

zing that; this plaintiff's Exhibit One? 

" A No, sir." 

A fair reading of Mr. Snowden's deposition supports 

‘our position and he was not quilty of the requisite wilful, 

purposeful act of discrimination in issuing this memorandum. 

pe, 5/ Deposition, page 29 

6/ Brief for defendants-appellants, pages 26-29 for 

a discussion of the proposition that proof of a 
wilful, purposeful act of discrimination is a 
requisite condition to the invocation of §718 of 
the Emergency School Aid Act. 

  

    
      

    
    

   
   

  

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CLES FES PS NE RIT POS BEF SPR J i 

CONCLUSION 
  

For the reasons cited, ante, appellants contend 

that the Civil Rights Attorneys' Fees Award Act of 1976 

is not applicable to this action, which seeks a judg- 

ment Suaingt funds of the State of Mississippi to pay an 

award of Attorneys' fees and costs of the Court. Like- 

wise, we believe that the deposition of M. A. Snowden 

and the memorandum attached thereto as Exhibit I are 

not persuasive evidence to condemn appellants or their 

predecessors as being guilty of wilful, purposeful 

acts of discrimination. 

For the reasons herein stated, and as stated in 

the previous briefs of appellants filed in this cause, 

this Court should reverse the judgment of the District 

Court. 

Respectfully submitted, 

A. F. SUMMER, ATTORNEY GENERAL 
STATE OF MISSISSIPPI 

PETER M. STOCRETT, JR. 

SPECIAL ASSISTANT ATTORNEY GEN ERAL 

By { 2 Lm Shad otf , 

PETER M. STOCKETT, R) .  



    

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CERTIFICATE 
  

This is to certify that the undersigned has on 

this day caused to be mailed through the United States 

Mail postage prepaid, one copy of .gny Supplemental Briel... 

of Defendants-Appellants to the following: 

Melvyn R. Leventhal 
10 Columbus Circle 
Suite 2030 
New York, New York 10019 

Fred L. Banks, Jr. 

538 1/2 North Farish Street 
Jackson, Mississippi 39202 

This the 2449 day of November, 1976. 

PETER M. STOCKETT') 
ML Een Elle [||105a19e6-d466-41e4-8e58-5bddf0ebd351||]