Kirkland v. The New York State Department of Correctional Services Brief in Opposition for Rehearing

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OCTOBER TERM, 1975

No. 75-1631

EDW ARD L. KIRKLAND and N ATH AN IEL HAYES, each 
and on behalf o f all others similarly situated,

against

individually

Petitioners,

TH E NEW  YORK  ST ATE DEPARTM ENT OF CORRECTIONAL 
SERVICES; RUSSELL OSWALD, individually and in his capacity as 
Commissioner of the New York State Department of Correctional Serv­
ices; TH E NEW  YORK  STATE CIVIL SERVICE COM MISSION; 
ERSA POSTON, individually and in her capacity as President of the 
New York State Civil Service Commission and Civil Service Commis­
sioner; MICHAEL N. SCELSI and CHARLES F. STOCKMEISTER, 
each individually and in his capacity as Civil Service Commissioner,

and
Respondents,

ALBERT M. RIBEIRO and HENRY L. COONS,
Intervenors-Respondents.

♦
On P etition for a  W rit of Certiorari to the U nited States 

Court of A ppeals for the Second Circuit

BRIEF IN OPPOSITION TO PETITION 
FOR REHEARING

LOUIS J. LEFKOW ITZ 
Attorney General o f the State of New York 
Attorney for Respondents 

New York State Civil Service Commission, 
Poston, Scelsi and Stockmeister 

Two World Trade Center 
New York, New York 10047

SAMUEL A. H IRSH OW ITZ
First Assistant Attorney General

JUDITH A. GORDON 
Assistant Attorney General 

of Counsel



TABLE OF CONTENTS

PAGE

Preliminary Statement ..................... ............................. 1

Reasons for Denying Rehearing .................................  2



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OCTOBER TERM, 1975

No. 75-1631

*

EDW ARD L. KIRKLAND and N ATH ANIEL HAYES, each individually 
and on behalf of all others similarly situated,

Petitioners,
against

TH E NEW YORK STATE DEPARTM ENT OF CORRECTIONAL 
SERVICES; RUSSELL OSWALD, individually and in his capacity as 
Commissioner o f the New York State Department of Correctional Serv­
ices; TH E NEW  YORK  STATE CIVIL SERVICE COMMISSION; 
ERSA POSTON, individually and in her capacity as President of the 
New York State Civil Service Commission and Civil Service Commis­
sioner; MICHAEL N. SCELSI and CHARLES F. STOCKMEISTER, 
each individually and in his capacity as Civil Service Commissioner,

and
Respondents,

ALBERT M. RIBEIRO and HENRY L. COONS,
Intervenors-Respondents. 

--------------------------+-------------------------

On P etition for a W rit of Certiorari to the U nited States 
Court of A ppeals for the Second Circuit

-f

BRIEF IN OPPOSITION TO PETITION 
FOR REHEARING

Preliminary Statement

This brief is submitted in opposition to the petition for 
rehearing of this Court’s order of October 4, 1976. The 
October 4th. order denied a petititon for a writ of certiorari



2

to the United States Court of Appeals for the Second 
Circuit seeking review of that Court’s judgment o f August 
6, 1975 insofar as it reversed a district court mandate for 
quotas intended to achieve racial balance in the New York 
State Correction Officer and Correction Sergeant titles and 
reversed a district court award of attorneys’ fees to plain­
tiffs’ attorneys as private attorneys general. The petition 
for rehearing (p. 1) states that it is limited to the second 
ruling.

The Court is respectfully referred to the Statement of 
the Case at pp. 2-12 of the respondents’ brief in opposition 
to the petititon for a writ of certiorari for a description of 
the proceedings and rulings in the lower courts.

Reasons for Denying Rehearing

Rule 58(2) of the Rules of this Court allows only two 
bases for the rehearing of orders on petitions for writs 
of certiorari: “ intervening circumstances of substantial or 
controlling effect”  on the order sought to be reheard and 
“ other substantial grounds available to the petitioner 
although not previously presented.” Neither basis is 
alleged in support of the instant petition.

Petitioners’ argument relies exclusively on the enact­
ment of the Civil Rights Attorney’s Fees Awards Act of 
1976 on October 19, 1976, some fifteen days after this 
Court’s order denying the petition for certiorari.* While 
the enactment P.L. 94-559 intervened between the date 
certiorari was denied and the instant petition was filed, it 
is not an event or circumstance of “ substantial or control­
ling effect” with respect to the order sought to be reheard. 
Indeed, the enactment of P.L. 94-559 has no effect on this 
Court’s prior denial of certiorari.

* Given this limitation, petitioners must rely on the “ inter­
vening circumstances” provision of Rule 58(2).



3

Public Law 94-559 is a new remedial measure which 
authorizes the discretionary award of attorney’s fees to 
prevailing parties in appropriate cases brought under 42 
TT.S.C. §§ 1981 and 1983 and other civil rights statutes. 
The question of the new statute’s applicability to a given 
case and o f the appropriate exercise of discretionary au­
thority within the context of that case are matters properly 
confined to the jurisdiction of the lower courts in the first 
instance. Given the enactment of the fee statute after the 
denial of certiorari herein and necessarily after the entry 
of the judgment of the Court of Appeals sought to be re­
viewed on that writ, no prior ruling of any court restrains, 

| or could restrain, petitioners from making an application 
under P.L. 94-559 in a court of appropriate jurisdiction. 

/ Since the continuance of this Court’s order of October 4, 
| 1976 in no way forecloses or disables petitioners from mak­

ing an application under the new, statutory theory of 
I recovery, no relief against that order is necessary or ap­

propriate.
Petitioners themselves fail to attribute any “ substantial 

or controlling effect”  to P.L. 94-559 in relation to the 
denial of certiorari. They admit (p. 2) that “  [t]his case is 
still pending in the district court, so petitioners could move 
there for an awTard of attorneys’ fees.”  They refer only 
(pp. 2, 3) to “ the likelihood of protracted litigation over 
the effect of the denial of certiorari,”  and invoke “ the in­
terests of justice and judicial economy.”  The basis for 
petitioners’ expectation of protracted litigation is not 
articulated as is the basis for their belief that the interests 
of justice and judicial economy are served by initiating 
their claim for fees in this Court rather than in the lower 
courts to which they concede (p. 3) they must return.

In the absence of any demonstrable nexus between the 
denial of certiorari and the petitioners’ capacity to move 
for relief under P.L. 94-559, respondents submit that peti­
tioners’ only purpose in filing the instant petition is to lend



4

a color of pendency to their claims for fees and thereby 
enhance their chances of success on a subsequent appliea- 

\ tion under P.L. 94-559 in the lower courts. Since this 
\ purpose bears no relation to any authorized basis for 
| rehearing under Eule 58(2), the petition for rehearing 
j should be deemed to have been interposed in bad faith and 
1 double costs taxed in favor of respondents. Supreme 
j Court Rules 57(7), 58(2).

Dated: New York, New York, January 13, 1977.

Respectfully submitted,

Louis J. L efkow itz 
Attorney General of the 

State of New York 
Attorney for the Civil Service 

Respondents 
2 World Trade Center 
New York, New York 10047

S am uel  A. H irshow itz 
First Assistant Attorney General

J u dith  A. G ordon
Assistant Attorney General 

of Counsel



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