Orleans Parish School Board v. Bush Petition for a Writ of Certiorari to the US Court of Appeals for the Fifth Circuit

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

No. *74 -465$

LONNIE WILLIAMS and THELMA CRAIG,
for themselves and all others similarly
situated,

Plaintiffs-Appellants
v
PROBATE JUDGE E. MARK EZELL, CIRCUIT CLERK 
MURRAY H. GIBSON, and SHERIFF LEON CLARK 
in their official capacities as members of 
the Board of Supervisors of Elections of 
Choctaw County; MORRIS MEADORS, individually 
and as Chairman of the Choctaw County Democratic 
Executive Committee; and VIRGINIA OGLESBY,
GRADY MARTIN, HAYWOOD PHILLIPS, THOMAS DAVIS, PERCY 
BRELAND, individually and as members of the Choctaw 
County Board of Education,

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OF ALABAMA, SOUTHERN DIVISION

Defendants-Appellees

BRIEF OF APPELLANTS

Melvin L. Wulf
22 East 40th Street
New York, New York 10016

Of Counsel:
Neil Bradley 
Laughlin McDonald 
52 Fairlie Street, N.W 
Atlanta, Georgia 30303
American Civil Liberties Union 
Foundation, Inc.

American Civil Liberties 
Union Foundation, Inc.



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT
No. 74-4059

LONNIE WILLIAMS and THELMA CRAIG,
for themselves and all others similarly
situated,

Plaintiffs-Appellants
v.
PROBATE JUDGE E. MARK EZELL, CIRCUIT CLERK 
MURRAY H. GIBSON, and SHERIFF LEON CLARK 
in their official capacities as members of 
the Board of Supervisors of Elections of 
Choctaw County; MORRIS MEADORS, individually 
and as Chairman of Choctaw County Democratic 
Executive Committee; and VIRGINIA OGLESBY,
GRADY MARTIN, HAYWOOD PHILLIPS, THOMAS DAVIS, PERCY 
BRELAND, individually and as members of the Choctaw 
County Board of Education,

Defendants-Appellees
CERTIFICATE REQUIRED by FIFTH CIRCUIT 
LOCAL RULE 13(a):

The undersigned, counsel of record for appellants, 
certifies that the following listed parties have an in­
terest in the outcome of this case. These representations 
are made in order that Judges of this Court may evaluate 
possible disqualification or recusal pursuant to Local Rule
13(a).

All Parties listed in Title of Case 
J. Edward Thorton 
John Y. Christopher 
Jack Drake
Ralph I. Knowles, Jr.
W.E. Still, Jr.American Friends Service Committee

-i-



Western Surety Company
American Civil Liberties Union Foundation, Inc.

Neil Bradley ' :
Attorney of Record for Appellants

-ii-



TABLE OF CONTENTS

Rule 13(a) Certificate ....................  ^
Table of Authorities..................
Issues Presented for Review ................  1
Statement of the C a s e ......................  3
Statement of Facts ........................  5
Argument

S u m m a r y ........................  1
The Brodhead C a s e ............. ..  17
The Litigation Was a Reasonable 
Apportionment Suit Necessarily Brought to Vindicate the Rights of Black 
Electors in Choctaw County ............ 21
Defendants Were Not Entitled to
an Award of Attorneys' Fees Under
Applicable Law on the Facts Presented 29
Awarding Attorneys' Fees to Defendants 
Has a Deterrent Effect in Direct Con­flict With Public Policy... 33
Conclusion.................  35

Addendum
Act 454, 1951 Acts of Alabama . . .  1
42 U.S.C. §1971   2
42 U.S.C. §1983   8
42 U.S.C. §2000a— 3 ( b ).....  g

-iii-



TABLE OF AUTHORITIES

American Cyanamid Co. v. McGhee, 317 F.2d 295 
(5th Cir. 1963) ......................

Avery v. Midland County, Texas, 390 U.S. 474 
(1968) ................................

Bradley v. School Board of the City of
Richmond, 345 F.2d 310 (4th Cir. 1965)
(en banc) ............................

Brodhead v. Ezell, 348 F. Supp. 1244 (S.D.
Ala. 1972) ............................

Byram Concretanks, Inc. v. Warren Concrete 
Products Co., 374 F .2d 649 (3rd Cir.
1967) ................................

Davis v. United States, 422 F.2d 1139 (5th
Cir. 1970) ............................

Dusch v. Davis, 387 U.S. 112 (1967) . . . . .
Hall v. Cole, 462 F.2d 777 (2nd Cir. 1972),

412 U.S. 1 (1973) ....................
Harvey Aluminum v. American Cyanamid Co., 203 

F.2d 105 (2nd Cir. 1953) cert. den. 345 
U.S. 964 (1953) ......................

Johnson v. Georgia Highway Express, 488 F.2d 
714 (5th Cir. 1974) ..................

Keller v. Gilliam, 454 F.2d 55 (5th Cir. 1972)
Lee v. Southern Home Cites Corp., 444 F.2d

14 1 / C i.t  1 Qn*t \jlij Cjll - _L -/ / «L / 5 s * * « - - ; „ *
Long v. Georgia Kraft Co., 455 F.2d 331

(5th Cir. 1972) ......................

19, 21

29

passim

33

34 
22

32, 35 

25

12, 29
20, 22

*■% ̂n

30

25

-iv-



Table of Authorities (cont'd)
MacGuire v. Amos, 343 F. Supp. 119 (M.D. Ala.

1972) (three-judge court) .............  23
McGill v. Ryals, 253 F. Supp. 374 (M.D. Ala.

1966)(three-judge court) ..............  23
Medders v. Autauga County, ___ F. Supp.

(M.D. Ala. 1973) (No. 3805-N, Feb. iT T
1973)   19, 21

Miller v. Reddin, 422 F.2d 1264 (9th Cir.
1970) .......... ...................... 25

Mills v. Electric Auto-Lite Co., 396 U.S.
375 (1970)............................  30

Morris v. Sullivan, 497 F.2d 544 (5th Cir.
1974) ................................  23

NAACP v. Allen, 340 F. Supp. 703 (M.D. Ala.
1972) ................................  35

Newman v. Piggie Park Enterprises, 390 U.S.
400 (1968)............................  30

Nix v. Fulton Lodge No. 2, 452 F.2d 794 (5th
Cir. 1971) cert, den. 406 U.S. 946 (1972) 25

Peters v. Clark, 508 F.2d 267 (5th Cir. 1975) 20, 22
Plains Growers, Inc. v. Ickes-Braun Glass­

houses, Inc., 474 F .2d 250 (5th Cir.
1973) ................................  25

Reese v. Dallas County, Alabama, 505 F.2d 879
(5th Cir. 1974) (en banc), reversing, ___
F. Supp. ___ (S.D. Ala. 1973)(No. 7503-
7 3 - H ) ................................  20, 22

Reynolds v. Sims, 377 U.S. 533 (1964) . . . .  17

-v-



Table of Authorities (cont'd)
Richardson v. Hotel Corporation of America,

332 F. Supp. 519 (E.D. La. 1971), aff'd
468 F . 2d 951 (5th Cir. 1972)..........  32

Sailors v. Board of Education of County of
Kent, 390 U.S. 105 (1967) ............  19, 21

Salyer Land Co. v. Tulare Lake Water Storage
Dist., 410 U.S. 719 (1973)............  22

Sanders v. Russell, 401 F.2d 241 (5th Cir.
1 9 * 8 ) ...................................  35

Sims v. Amos, 340 F. Supp. 691 (M.D. Ala.
1972) (three-judge court) aff'd 409 U.S.
942 (1972)...............................  31

Sprague v. Ticonic National Bank, 307 U.S.
161 (1939)...............................  29

Trustees v. Greencugh, 105 U.S. 527 (1882) 29
Weight Watchers of Philadelphia, Inc. v.

Weight Watchers International, Inc., 455 
F . 2d 770 (2nd Cir. 1972)..............  26

Wilderness Society v.* Morton, 494 F.2d 1026 
(D.C. Cir. 1974) cert, granted No. 73- 
1977, 43 U.S.L.W. 3208 ................  33

Yelverton v. Driggers, 370 F. Supp. 612 (M.D.
Ala. 1974)............................  12, 32

Zimmer v. McKeithen, 485 F .2d 1297 (5th Cir.
1973) (en banc)........................  19, 20

-vi



Constitutional Provisions
Fourteenth Amendment ......................  1 , 2 , 6
Fifteenth Amendment ......................  1 , 2 , 6

Statutes and Rules
Act 454, 1951 Acts of Alabama..............  5, 23
28 U.S.C. §1331............................; 6
28 U.S.C. §1343 ...................... .. 6
28 U.S.C. §2201 ............................  6
28 U.S.C. §2202 ............................  6
42 U.S.C. §1971 .................  . . . . .  1, 6
42 U.S.C. §1983............................  1, 6
42 U.S.C. § 2 0 0 0 a ........................  . 32
42 U.S.C. §2000a— 3 (b) ....................  12, 13, 30, 32
42 U.S.C. §2000e— 5 (k) ....................  30
Title 52, §62, et seq., Code of Alabama . . .  19
F. R. Civ. P.

Rule 23 (c) (1)............................  26
Rule 23 (c) ( 3)............................  26
Rule 23(e) ..............................  26
Rule 41 (a) (1)............................  24, 25

Table of Authorities (cont'd)

• «-vxi-



F. R. Civ. P.
Rule 55 ............ • • • • • • • • •
Rule 66 ..........

Other Authorities

Wright & Miller, Federal Practice and Procedure 
Civil §2363, p. 157 ..............

Table of Authorities (cont'd)

-viii-



ISSUES PRESENTED FOR REVIEW

I. Whether in an action brought under §§1971 and 
1983, Title 42, United States Code, and the 
fourteenth and fifteenth amendments of the 
Constitution of the United States alleging denial 
of equal protection and the submergence of black 
electors' voting strength in the apportionment of a county 
school board, attorneys' fees and expenses may be
taxed against unsuccessful plaintiffs?

II. Whether there is any authority, statutory or judicial, 
permitting the award of attorneys' fees and expenses
to a county school board in an action brought under the 
civil rights acts involved here?

III. Whether there is any public policy supporting the awarding 
of attorneys' fees and expenses to a county school
board in an action brought under civil rights acts?

IV. Whether in an action brought under §§1971 and 1983,
Title 42, United States Code, and the fourteenth and 
fifteenth amendments of the Constitution of the United 
States alleging denial of equal protection and the 
submergence of black electors voting strength in the 
the apportionment of a county school board, the 
award of attorneys' fees and expenses against the 
plaintiff is a deterrent to the bringing of such 
actions and consequently in conflict

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with congressionally designated national policy?
V. Whether the evidence in this case shows the seeking 

and awarding of attorneys' fees and expenses 
against the plaintiffs were intended to and/or has the 
effect of deterring suits brought to vindicate 
rights guaranteed by civil rights acts and the fourteenth 
and fifteenth amendments of the Constitution of the 
United States?

2



STATEMENT OF THE CASE

This action was instituted on March 14, 1974, 
seeking to reapportion the Choctaw County, Alabama,
Board of Education. The relief sought was to have 
plaintiff Williams certified as a candidate, a primary 
was to be held in early May, and to permanently enjoin 
the existing apportionment of the board.

An emergency hearing was held on March 26,. 197 4, 
and, over plaintiffs' objection to consideration of 
permanent relief, the court two days later denied 
all relief, dismissed the complaint, and ordered costs taxed 
againfet plaintiffs.

Plaintiffs filed a motion for rehearing on April 1, 
1974, and after oral argument the court, on June 5,
1974, set aside its order denying permanent relief and
set pre-trial for July 31, 1974, ordering discovery 
completed by July 20, 1974. Pretrial was later 
reset for July 29, 1974.

On July 25, 1974, plaintiffs filed a motion for 
dismissal without prejudice. The court then denied the

4- "l /-\ n r» n i i c f» t.t i  t- n A iif  r> ■v* a i  n n  i  a  q  a a  ri »• a  i  a  nf-n  ̂  a a  ^  a  a
w \ y  v *  u t u j k  >_i u  n  j u  u  *  a w  m  w  £✓  j _  v _  j  u m  X U C  w a i U  U U  L  C U  L i i C

terms of its order of March 28, 1974.
On August 14, 1975, defendants filed a bill of 

costs listing $20.00 docket fee and $1,895 for attorneys' 
fees and expenses. The clerk declined to tax attorneys' 
fees and expenses, noting on the bill of costs, "Not

3



taxable as item of costs under court's order of 7/31/74 
but counsel for defendants may petition court for awarding 
of attorney's fees in this matter." Defendants thereafter, 
on August 20, 1974, filed a motion praying that the court 
award them $1,895 in fees and expenses. Plaintiffs 
served by mail on August 22, 1974 , an opposition to that 
motion and it was stamped filed by the clerk on Auqust 26, 
1974. A month later on September 26, 1974,idefendants filed 
a memorandum in support of their motion in response to 
plaintiffs' opposition.

The court, on October 1, 1974, entered an order 
granting the motion. The order recited that the amount 
of the fee would be determined by the court unless agreed 
on by the parties.

On the date the order was entered, plaintiffs served 
by mail a response to defendants' memorandum. This was 
not filed by the clerk until October 3, 1974, two days 
after the order. On October 9, 1975, plaintiffs filed 
a memorandum in opposition to award of attorneys' fees 
with supporting affidavit. On that date a hearing was 
held and the court entered an order setting the attorneys' 
fee at $2500.

Notice of appeal was filed by the plaintiffs 
on November 6, 1974, appealing from the orders of 
of October 1 and October 9, 1974, granting the award 
of attorneys' fees to defendants and setting the fee.

4



STATEMENT OF FACTS

The Choctaw County, Alabama, Board of Education 
is composed of five members, all of whom are elected at- 
large by the entire county. Four members must be residents 
of four separate districts and the fifth may reside anywhere 
in the county. This structure is established by §1, Act 454, 
1951 Acts of Alabama. Add. 1. The four districts are 
established by the following language:

One member of the Board of Education 
of Choctaw County shall be elected for each of 
the four commissioner's districts into which 
the county is now divided, I I !
(Empha sis added.)

The commission districts referred to and incorporated a~e the 
county commission districts. County Commissioners were 
elected by district, not at-large, and those districts 
were declared violative of the one-man one-vote principle 
in Brodhead v. Ezell, 348 F. Supp. 1244 (S.D. Ala. 1972), 
per Judge Pittman.

On February 27., 1974, plaintiff Lonnie Williams 
attempted to qualify in the Democratic Primary for place 
4 of the Board, but he resided in the new district 4 under 
Judge Pittman's order and not in the old district 4 established 
in 1951. (Defendant's exhibit 1.) Williams

5



was under the impression that Judge Pittman's order covered 
the board districts (R85). On March 11, 1974, the county 
Democratic executive committee chairman refused to certify 
Williams' candidacy to the probate judge. (Defendant's 
exhibit 2.) The reason for failure to certify was Williams' 
residence outside the old district 4.

Three days later Williams and Thelma Craig instituted
this suit seeking to represent the class of similarly 
situated citizens in Choctaw County who because of the 
electoral structure were alleged to be deprived of an 
equal ballot and the opportunity to qualify in Board 
elections (Rl, 2). Named as defendants were the election 
officials, chairman of the county Democratic executive 
committee, and members of the Board (R2). Plaintiffs alleged 
that the use of the at-large, majoritarian system discriminated 
against black voters by submerging their voting strength.
The relief sought was to have Williams certified as a candidate, 
an injunction prohibiting the use of the existing electoral 
structure, and consideration of a single member district 
plan or proportional representation. Plaintiffs also 
sought a reasonable attorneys' fee (R4-5).

Jurisdiction was based on the fourteenth ana fifteenth 
amendments of the Constitution of the United States, 28 
U.S.C. §§1331, 1343 2201 and 2202, 42 U.S.C. §§1971 and
1983 (Rl).

6



On the date suit was filed counsel for all parties 
were heard in chambers as to the granting of emergency re­
lief (R64, 68, 75). The court desired that the parties 
attempt to come to agreement (R 69, 70 ), and failing this 
the matter was set for a hearing on March 26, 1974.

The parties and court discussed the applicability of 
the Brodhead case (generally R61-76). The district judge 
recalled that he expressed the opinion that if Brodhead 
were applicable and did fit the facts of this case that he 
would follow the lead of Judge Pittman (R69).

The hearing notice stated that it was to be on tempo­
rary and permanent relief (R66). Plaintiffs objected to the 
consideration of permanent relief (R92). There is dispute 
in the record as to plaintiffs' efforts to advise the trial 
judge that they did not desire permanent relief be considered 
on such emergency basis (R67, 70-71).

At the March 26, 1974 hearing, the only witnesses were 
the two named plaintiffs who testified as to the facts of 
WiHi-ams attempt to qualify and generally their standing 
to bring suit. Two days later the court entered its order 
denying all relief (R8-14).

The court distinguished Brodhead as involving a govern­
mental body whose members had administrative duties for 
Particular parts of the county and general governmental



powers, whereas the school board "does not operate as a 
quasi-governmental function but is charged with the admini­
strative detail of the county school system which has county­
wide application" (Rll). The court found that there was no 
basis offered to find Act 454 unconstitutional nor uncon­
stitutionally applied under the fourteenth amendment (R12).

This is not an instance in which voters in 
sparsely populated areas elect their officials 
to a unit of government while voters in highly 
populated areas elect the same number of offi­
cials to the same unit. All members of the 
Board are elected at-large, thus the fundamental 
principal of representative government is ful­
filled in that each member's tenure is dependent 
upon the vote of all qualified voters. Such a 
scheme does not violate the one man one vote 
principle. Dusch, et al. v. Davis, et al., 387 
U.S. 112, 87 S.Ct. 1554, 18 L.Ed.2d 656. Since 

are elected at—large, the right of each voter 
in Choctaw County is given equal treatment.
Dusch. /. Davis, supra, Davis v. Thomas County, 
Georgia, et al., 380 F.2d 93; Goldblatt v. Citv 
of_Dallas, 414 F.2d 774; Hadley v. Junior College 
^̂ -strict Metropolitan Kansas City, Missouri 
397 U.S. 50, 90 S.Ct. 791, 25 L.Ed.2d 45.(R12)

Thelma Craig is neither disfranchised by the re- 
quired election process nor is her vote diluted
as compared with any other voter in the county. 
Lonnie Williams is not precluded from running for 
a position as a member of the Choctaw County 
School Board but is required to run in that elec- 
tion open for residents of his delineated school 
district. This Court is not a super legislature,nor wi. 1 1 t accnmo ~ -i- — -» —  —1- i----- -

—      ^  1 w i i u v ,  y w o  u u i .  c  u . n u i . i j  i  i t -M  :  r-y ii_ i_ g  m  w i  u [| u

citizen disagrees with a law. This Court is 
jealous to protect the Constitutional rights of 
all citizens and will move promptly where such are 
threatened, but none such is present here.

8



As found by Judge_Pittman in the Brodhead case, 
the districting lines employed in Choctaw County 
axe more than a century old and there is no basis 
for any finding that they were established for 
racial reasons for they essentially divide the 
county into four equal quarters and always have.
There is no basis to indulge a presumption that 
they have suddenly become racially motivated 
boundaries or that there is any subjugation of 
the black voters interests. Since it is apparent 
that each vote by each citizen of Choctaw County 
carries the same and equal weight in the election 
of members of the school commission, the require­
ments of this republican form of government as 
established and protected by the Constitution are 
fulfilled and no relief, injunctive or otherwise, 
is indicated in the premises.
For the reasons herein expressed the petition for 
temporary injunction is DENIED; the petition for 
permanent injunction is DENIED and this Court sees 
no basis for continued jurisdiction of the remain- 
ing prayer for relief; therefore, the cause is 
DISMISSED, costs taxed to the plaintiffs.(R13-14)

Plaintiffs filed a motion for rehearing (R18-20), alleging 
that they had relied on the Brodhead case for its findings
that the former commission districts discriminated in viola­
tion of the equal protection clause. Since the order of the 
court recited that no evidence of racial discrimination was 
introduced plaintiffs sought the opportunity to prove this 
element. The court ordered a hearing on May 2, 1974, on the 
motion. At the hearing all counsel and the court were in 
disagreement as to what had transpired in the meeting in 
chambers regarding what plaintiffs sought and what the effect 
of Brodhead was to be.

On June 5, 1974, the court entered an order granting

9



plaintiffs' motion in part:
[I]t is the opinion of the Court that the matters 
and things stated by the plaintiffs' attorney as 
grounds and reasons for a rehearing are not in 
accordance with this Court's understanding of 
the proceedings leading up to the Order of this 
Court of March 28, 1974, and the same are totally 
rejected. However, in order that the actions of 
this Court nor the actions of counsel for the 
plaintiffs might be considered as having deprived 
the plaintiffs of their day in Court, the Court 
will grant so much of the request of plaintiffs' 
attorney that the Order denying the permanent 
injunction be set aside and that this matter pro­
ceed for a hearing on so much of the petition 
wherein it is requested that the Court hold hear­
ings that a system of single member districts 
should be ordered for the election of the Choctaw 
County Board of Education.(R22)

The order of the court concluded setting the pretrial for 
July 31, 1974. An apparently standard pretrial order was 
entered on June 28, 1974 (R24-27) which reset the pretrial 
to July 29, 1974. The pretrial order directed the consulta­
tion among counsel for the preparation of a proposed pretrial 
order to be in the hands of the court one full week before 
the pretrial hearing. The order encouraged attempted settle­
ments, and included the following:

Failure of strict compliance with this Order in 
the form and under the terms contained herein shall 
automatically result in the offending party being 
held in contempt, and such contempt shall continue 
from day to day until the Order has been complied 
with- Failure to comply within a period of five 
days thereafter, and explanation satisfactory to 
the Court not having been given and accepted shall 
result in the cause being dismissed or default 
judgment being entered whichever is appropriate. (R27)

10



Thereafter, on July 25, 1974, plaintiffs filed a motion 
for dismissal which read: "Come now the Plaintiffs and move
the Court to dismiss this action without prejudice to any 
party." (R28) The court disposed of the matter in the 
following language:

On the occasion of the Pretrial Conference it 
was called to the attention of the Court that the 
plaintiffs had filed a Motion to Dismiss, without 
prejudice, on the 25th day of July, 1974. The 
requirements of the Pretrial Order issued on 
June 28, 1974 not having been complied with and 
this Court having been afforded no reason why the 
plaintiffs should have been excused from these 
requirements, and indeed the plaintiffs having 
made no contact with the Court concerning the 
Pretrial Conference nor the filing of the Motion 
to Dismiss, without prejudice, and this Court 
having previously entered an Order on the 28th 
day of March, 1974 disposing of the issue in its 
entirety and the matter not having been further 
prosecuted by the plaintiffs, the Motion to Dismiss, 
without prejudice, is therefore DENIED and this 
cause stands disposed of under the terms and con­
ditions of the Order entered on the 28th day of 
March, 1974, the same hereby being reinstated for 
want of further prosecution by the plaintiffs.
Costs of these proceedings are to be taxed to the 
plaintiffs. (R29-30)

After the clerk denied the bill of costs for attorneys' 
fees, defendants filed a motion therefore on August 20, 1974 
(R31-32). The motion recited that "[t]his was a class action 
against these- Defendants, and others, to vindicate alleged 
civil rights," that defendants were the "prevailing parties," 
that "counsel, after considering the criteria set out in

11



Johnson v. Georgia Highway Express, 488 F.2d 714 (C.A. 5th 
1974) billed these defendants for such services a reasonable 
fee and expenses, aggregating $1,895.00, which sum has been 
paid" (R31). Plaintiffs opposed the motion on the grounds 
that "Defendants have failed to show any statute or court 
decision which entitles them to the award of attorney's 
fees. . (R33). Plaintiffs further prayed the court "to
dismiss this Motion as insufficient or to place the Motion 
on motion docket for briefing, argument, and evidence" (R33).

Defendants filed a memorandum on September 26, 1974,
citing 42 U.S.C. §2000a--3(b) and Yelverton v. Driggers,
370 F. Supp. 612 (M.D. Ala. 1974), as authority for the
award. The memorandum concluded:

If cases reapportioning election districts are 
under this statute to award attorneys fees for 
those wrecking State election laws, then cer­
tainly this case which saved the State election 
laws is under this statute, and attorneys fees are required here.
On May 15, 1974, the Supreme Court of the United 
States in Bradley v. Richmond School Board, 40 
L.Ed.2d 476^ in an odd application of retroactivity 
to an Act of Congress, held school boards liable 
for attorneys fees in integration suits. Concern­
ing this, Jack Greenberg, attorney for the NAACP 
Legal Defense Fund was quoted in the Mobile Register of May 16, 1974:

"School boards, I would hope, would not be 
so free and easy to litigate if they know 
it's going to cost them something."

12



We agree with Mr. Greenberg, and request this 
Court to apply it in this case.(R37)

The court granted the motion insofar as entitlement to a 
fee on October 1, 1974, with the amount of the fee to be 
agreed upon or set by the court (R35). On October 3, 1974, 
plaintiffs filed a response served by mail on October 1, 
to defendant's memorandum arguing that 42 U.S.C. §2000a— 3(b) 
had no application here (R38).

On the date of the hearing on the amount of the fee, 
plaintiffs filed a further memorandum in opposition to the 
award (R40) and attached an affidavit of plaintiffs' counsel 
reciting the considerations of the motion to dismiss. The 
attorney recited that in his judgment the case could not be 
won before the trial judge and could probably not be reversed. 
The reasons for his opinion were the judge had already decided 
the case once and human nature operates against a change in 
position; he believed the judge was prejudiced against the 
case and the attorney because he had accused the attorney 
of trying to mount a revolution in Choctaw County through 
his potential proposal of a system of proportional represen-
t * a 4* 1  n n  • n o  r \ o ”  -I o t t o o  n  o  - i i i / i  « «  * • * »< -•  ~  ^  ^  a  ~  J  _  __ i _  1  ■*~ ^ v wu uuu j uvayc vyuo picj Uux^cQ ctgclinJDL. ail
civil rights actions because when the attorney told him he

13



was seeking a temporary restraining order or preliminary 
injunction, the judge grimaced and said the clerk sent him 
all these cases; the hearing for reinstatement had degener­
ated into a swearing contest between the judge and the 
attorney about efforts to contact each other by phone (R44-45) 

At the hearing the defendants' attorney, J. Edward 
Thornton, testified as to his expenses, fees, and those of 
co-counsel John Christopher. Records of time and expenses 
were introduced. A Mobile attorney testified as to customary 
fees in the area for the work done (R96-102), and in his 
opinion $50/hour was reasonable. Thornton set his fee at 
$30/hour and Christopher at $25/hour (R98). Mr. Thornton 
then argued to the court:

The right to a fee seems to be fairly well fixed.
The charges we actually made are below what would 
be a reasonable fee. We would think twenty-five 
hundred three thousand dollars would be an appro­
priate allowance in this case, and this we hope Your Honor will agree with us on (R103).

[W]e had assumed that quite possibly there would 
be no contest of the facts that the fee had been 
paid and what was actually paid was reasonable, 
and we were willing to proceed on that basis in 
view of the fact that it became necessary to es­
tablish this we feel that the appropriate fee 
would be at a $50.00 an hour basis, and that is 
substantially in excess of that which is set in
i 11 i r ih m t i r^n

(R103-04)

14



The court then noted that it had already determined that a 
fee was to be allowed (R105).

However, this Court does want to correct a couple 
of apparent misconceptions by the attorney re­
presenting the plaintiff, as contained in the 
^ffidavit and particularly those things set forth m  paragraph C thereof. This Court, I do not 
believe, made any reply that the assignment of 
the docket to this Judge was the fault of the 
Clerk. The Clerk does what the Clerk is instruct­
ed to do. The Court will not deny that it probab­
ly did grimace when the preliminary injunction was 
brought to the Court's attention, but not because 
it was of a civil rights nature, but because this 

this Judge seems to have a plethora of 
injunction type actions that are brought to its 
attention. And it is a standing joke in this 
^ ® 9 rict between the Clerk's Office, Judge Pittman's Office, and my office as to who gets what assign­
ments. But it is nothing more than that. There­
fore, I do not want this record to reflect that the 
Court itself has any fault to find with the opera­
tion of the Clerk's office or in the assignment 

cases and to disabuse counsel's mind that 
this Court does have some fault to find with that.
As to the other matters raised, I think the record 
in this case will reflect what actually transpired. 
The Court will award the attorney's fees and will 
allow the petitioner $2,500.00 in the way of attor­
ney s fees. The Clerk will draw an order according-
(R105-06)

15



ARGUMENT

Summary

This is a case of first impression. Two named plain­
tiffs who initiated a civil rights action seeking to repre­
sent a class of blacks had judgment entered against them for 
$2,500 in attorneys' fees and expenses when they were not 
successful. No reasons or authority were assigned therefore 
by the district court.

The suit was filed to reapportionment a school board.
In the same county a similar suit had been successful in 
reapportioning commission districts which used the same 
lines as the school board. Plaintiffs eventually sought to 
dismiss their complaint without prejudice. The district 
court refused to allow this and dismissed with prejudice 
and awarded attorneys' fees against plaintiffs.-

it is the award and setting of fees which is on appeal, 
not the dismissal. However, in order to argue the propriety 
of the award the litigation below must be discussed herein. 
Plaintiffs will araue that S U  "i TaJP Q r^r*r^T^or* 1 \ r  Kr*nn/^Vi4-

-* -    1Z —’ E"" — / — . W | W11W* W

the denial of dismissal without prejudice was unjustified, 
and that concomitantly the award of attorneys' fees was

16



unjustified, not authorized by statute or equitable con­
siderations, and was in fact intended to deter and will 
have the effect of deterring suits brought to vindicate 
rights guaranteed by the fourteenth and fifteenth amend­
ments of the Constitution of the United States.

The Brodhead Case

To understand the underlying reapportionment case, its 
companion, Brodhead v. Ezell, 348 F. Supp. 1244 (S.D. Ala. 
1972) , must be compared. Brodhead was filed by citizens 
seeking to apply Reynolds v. Sims, 377 U.S. 533 (1964), 
principles to the Choctaw County Commiss.i or. The 
Commission had four districts ranging in population 
from 3,100 to 5,138 persons, 348 F. Supp. at 1246, with a 
variation of 47 percent. Election was by district, not 
at-large. Thelma Craig, plaintiff herein, was an intervenor 
in Brodhead seeking to represent the class of black 
electors. 348 F.Supp. at 1245. The plaintiffs sought 
at-large elections, a prayer which intervenors adopted, 
but the two classes later split —  the intervenors, Craig 
included, offered a single-member plan. 348 F. Supp. 
at 1249. The Brodhead court said:

17



This court finds that those portions 
of Act 122 establishing the four commissioner 
districts complained of fail to satisfy 
the requirements of the Equal Protection 
Clause of the Constitution and are therefore null and void.
348 F. Supp. at 1248.

Further, the court in its remedy ordered, adjudged and 
decreed the apportionment by Act 122 for the commission 
unconstitutional and void. 348 F. Supp. 1252.

Because the act, involved here adopted the commission 
districts in existence in 1951 for the school board, the 
board's districts were unaffected by the Birodhead judgment.
The difference between the structures was that the board 
districts were for residence only, with election by the county 
at-large. The district court here disposed of the Brodhead 
consideration in its order of March 28, 1974 (R8-14).
Its treatment of Brodhead is revealing. It found that Craig 
had asked for at-large elections in Brodhead but not 
here (RIO-11). The court found this "strange" (R12).
To the contrary, Craig and the class asked for single- 
member districts and while their plan was not accepted, 
the court accepted the commissioner/defendants single-member 
plan. The court found the "school board here does not operate 
^ s u c[Ho. 3 x —ĉ overnirienuai £ uncuion iDuti is charged with the 
administrative detail of the county school system which

18



has county-wide application" (Rll). "In Brodhead the Court
was addressing itself to the election of persons having 
general governmental powers and here the school board mem­
bers do not" (R12). This effort to distinguish the powers 
of the governing body from Avery v. Midland County, Texas,
390 U.S. 474 (1968), was not accurate. The broad powers of 
Alabama school boards, Tit. 52, §62, et seq., Code of Ala­
bama, leave no doubt -that they fall under the Reynolds v.
Sims requirements. Compare, Avery v. Midland County, Texas, 
390 U.S. at 476; Cf_. Sailors v. Board of Education of the 
County of Kent, 387 U.S. 105 (1967) (since board was "admin­
istrative", its appointive selection method was constitu­
tional) . Absent some special circumstances not present 
here, elected school boards have been held to be under the 
one-man one-vote rule. E.g_. , Zimmer v. McKeithen, 485 F.2d 
1297 (5th Cir. 1973) (en banc); Medders v. Autauga County,
___ F. Supp. ___ (M.D. Ala. 1973) (No. 3805-N, Feb. 22, 1973).
Incredibly, the court here found that;

In Brodhead the Court did not find the Act of the 
Legislature unconstitutional, but did find that 
as applied it was violative of the 14th amendment 
in that it subverted the one man one vote rule 
(R12).

19



See, discussion supra, for the Brodhead holding.
Also,

As found by Judge Pittman in the Brodhead case, 
the districting lines employed in Choctaw County 
are more than a century old and there is no 
basis for any finding that they were established 
for racial reasons ... There is no basis to in­
dulge a presumption that they have suddenly become 
racially motivated boundaries or that there is 
any subjugation of the black voters' interests 
(R13).

Of course population shifts over a century could result in 
vote dilution and Brodhead found that dilution to exist, 
and found specifically, "Tô  order the County Commissioners 
to run at-large would effectively deny the sizeable black 
minority a political voice." 348 F. Supp. at 1251. (Empha­
sis added.)

In disposing of the case, the district court did not 
cite Keller v. Gilliam, 454 F.2d 55 (5th Cir. 1972), or 
Zimmer v. McKeithen, 485 F .2d 1297, 1305 (5th Cir. 1973) (en 
banc). More importantly neither the court nor counsel had 
benefit of Reese v. Dallas County, Alabama, 505 F.2d 879 
(5th Cir. 1974) (en banc); followed, Peters v. Clark, 508 F.2d 
267 (5th Cir. 1975).

20



THE LITIGATION WAS A REASONABLE 
APPORTIONMENT SUIT NECESSARILY 
BROUGHT TO VINDICATE THE RIGHTS 

OF BLACK ELECTORS IN CHOCTAW COUNTY

The purpose of this section is not to argue the decision 
on the merits of apportionment, for that was not appealed.
It is to show that plaintiffs did nothing to justify the 
punitive award of fees against them. %

A. The Litigation Had Merit.

The district lines attacked had been held by Brodhead 
v - Ezell, 348 F. Supp. 1244 (S.D. Ala. 1972) to violate the 
equal protection clause. More importantly Brodhead held 
that at-large elections in the county woald deny a political 
voice to the sizeable black minority. 348 F. Supp. at 1251. 
Reliance on the Brodhead decision, a decision from that dis­
trict pertaining to that county was well placed.

The one-man one-vote principle was more than fairly 
alleged to apply to the elected school board under case law. 
Avery v. Midland County, Texas. 390 U.S. 474 (1968); Medders
v. Autauga County, ___ F. Supp. ___ (M.D. Ala. 1973) (No.
3805-N, Feb. 22, 1973). There were not present any special 
non-elective factors such as found present in Sailors v.

21



Board of Education of the County of Kent, 390 U.S. 105 (1967), 
or Salyer Land Co. v. Tulare Lake Water Storage Dist., 410 U.S. 
719 (1973).

Plaintiffs challenged an at—large electoral structure 
w^t*1 residential districts. The constitutionality of such 
plans were not clear, Dusch v. Davis, 387 U.S. 112 (1967),
S i - ’ Keller v. Gilliam, 454 F .2d 55 (5th Cir. 1972)^ but in 
light of the Brodhead findings, the challenge was well taken.
At the time suit was filed, Reese v. Dallas County, Alabama,
505 F .2d 879 (5th Cir. 1974) (en banc), had not reached this 
court although it had been decided by the district court (by 
the same judge as here) adverse to plaintiffs' position.
Reese v. Dallas County, Alabama, ___F. Supp. ____ (S.D. Ala.
1973) (No. 7503-73-H, Oct.3, 1973). In fact, part of the 
opinion of the district court here tracked the district court 
opinion in Reese. Ibid., p. 3. Peters v. Clark, 508 F.2d 
267 (5th Cir. 1975), had been under consideration by this 
court for almost two years. Moreover, both Reese and Peters 
did not concern racial vote dilution by at-large/residential 
districts.

At the very worst, in seeking to dismiss their case

22



plaintiffs made a miscalculation of law, more particularly, 
how the law would develop. Morris v. Sullivan, 497 F.2d 544, 
546 (5th Cir. 1974).

B* The Litigation Was Not Unduly Delayed.
Suit was filed within three days after Williams was 

notified that his qualification was not being certified to 
the probate judge to be placed on the ballot. (Defendants' 
exhibit 2.) The mistake was in believing Brodhead had the 
effect of voiding the district lines for all purposes. How­
ever, the board statute, Act 454, 1951 Acts of Alabama, 
adopted the commissioner districts "into which the county 
is. now divided, i.- »  in 195i, nut as the districts may from 
time to time be altered. The county Democratic Executive 
Committee chairman recognized the problem and the source 
thereof, and consulted attorneys before his refusal to certi­
fy Williams. (Defendants' exhibit 2.) Williams made an 
understandable mistake (R83-85), and filed suit as soon as 
could be expected. Cf. McGill v. Ryals, 253 F. Supp. 374 
(M.D. Ala. 1966)(three-judge court); MacGuire v. Amos, 343 
F. Supp. 119 (M.D. Ala. 1972) (three-judge court).

23



c. Plaintiffs Were Entitled, to a Dismissal Without Prejudice
as a Matter of Law.

Plaintiffs' motion for dismissal without prejudice (R28) ,
was filed on July 25, 1974. At this time no responsive
pleading had been filed by any defendant. Indeed, none ever
was. Rule 41(a)(1), F. R. Civ. P. reads as follows:

(a) Voluntary Dismissal: Effect Thereof.
(1) By Plaintiff; by Stipulation. Subject to 
the provisions of Rule 23(e), of Rule 66, and of 
any statute of the United States, an action may 
be dismissed by the plaintiff without order of 
court (i) by filing a notice of dismissal at any 
time before service by the adverse party of an 
answer or of a motion for summary judgment, which­
ever first occurs, or (ii) by filing a stipulation 
of dismissal signed by all parties who have appeared 
in the action. Unlers otherwise stated in the no­
tice of dismissal or stipulation, the dismissal is 
without prejudice, except that a notice of dismissal 
operates as an adjudication upon the merits when 
filed by a plaintiff who has once dismissed in 
any court of the United States or of any state an 
action based on or including the same claim.

The dismissal is automatically without prejudice unless other­
wise stated.

Rule 41(a)(1) is the shortest and surest route to 
abort a complaint when it is applicable. So long 
as plaintiff has not been served with his adver­
sary's answer or motion for summary judgment he 
need do no more than file a notice of dismissal 
with the Clerk. That document itself closes the 
file. There is nothing the defendant can do to 
fan the ashes of that action into life and the

24



court has no role to play. This is a matter of 
running to the plaintiff and may not be 

extinguished or circumscribed by adversary or 
court. There is not even a perfunctory order of 
court closing the file. Its alpha and omega was 
the doing of the plaintiff alone. He suffers no 
impairment beyond his fee for filing.
American Cyanamid Co. v. McGhee, 317 F .2d 295, 
297 (5th Cir. 1963).

The right of plaintiff under the rule is absolute. Although
1

there is at least one case to the contrary, it has not been 
followed but rather the text of the rule is applied. Wright 
& Miller, Federal Practice and Procedure: Civil §2363, p. 157; 
Plains Growers, Inc, v. Ickes-Braun Glasshouses, Inc., 474 
F.2d 250 (5th Cir. 1973); Nix v. Fulton Lodge No. 2, 452 F .2d 
794 (5th Cir. 1971), cert, den. 406 U.S. 946 (1972); Miller v . 
Reddin, 422 F.2d 1264 (9th Cir. 1970)(where trial court 
announced orally how it was going to decide voluntary dis­
missal still allowed).

2Rule 41(a)(1) is subject to the provisions of Rule 66,

1. Harvey Aluminum v. American Cyanamid Co., 203 F .2d 
105 (2nd Cir. 1953), cert, den. 345 U.S. 964 (1953)(voluntary 
dismissal denied after hearing on preliminary injunction de­
nied when hearing took several days and yielded some 420 pages of record).

2. Concerning receivers and not applicable.

25



and Rule 23(e), F. R. Civ. P. This latter provides that
class actions should not be dismissed or compromised without
the approval of the court and notice to the class. Even
assuming Rule 23(e) applies to a Rule 23(b)(1) class (R2),
the suit was never certified as a class action pursuant to 

1
Rule 23(c)(1) and the judgment did not describe the class. 
Rule 23(c)(3). Moreover, since the notice contemplated is 
to protect the class, the district could hardly have refused 
dismissal without prejudice because of Rule 23(e) and then 
dismissed with prejudice. The latter would have been clearly 
detrimental to the class.

D. The Reasons Given By the District Court For Reinstating 
Its Order on the Merits Are Legally Insufficient.
The court assigned two reasons for reinstating its 

March 28, 1974, order— failure to comply with the pretrial 
order and failure to prosecute (R29-30).

1. Non-Compliance With the Pretrial Order 
The district did not state exactly how plaintiffs failed 

to comply with the pretrial order. It stated only that the

1. Cf. Weight Watchers of Philadelphia, Inc. v. Weight 
Watchers International, Inc., 455 F.2d 770, 773, n. 1 (2nd 
Cir. 1972).

26



requirements "not having been complied with" and "this Court 
having been afforded no reason why the plaintiffs should have 
been excused from these requirements", and recited that the 
plaintiffs made no contact with the Court concerning the 
Pretrial Conference nor the filing of the Motion to Dismiss." 
(R29)

The pretrial order directed counsel to confer and pre-
^ proposed pretrial order to be filed a week in advance 

of the pretrial hearing (R24). It also directed considera­
tion of settlement to avoid the "extensive labor of prepar­
ing the proposed Pretrial Order. Save your time, the Court's 
time, and the client's time." (R24)

Aside from the anomaly of apparently requiring plain­
tiffs to prepare a pretrial order even though they were dis­
missing the case, the "fault" is hardly properly ascribed to 
plaintiffs alone. The time records submitted in support of 
fees reveals that the only effort of defendants to confer 
with plaintiffs regarding pretrial was to write a letter on 
July 23, 1974, a date after the pretrial order was to be in 
the court's hands. (Defendants' exhibits 1 and 3 on motion 
for fees.)

27



There is no requirement in the pretrial order or law 
that plaintiffs contact the court to take the action they 
did, but failure to contact the court was a part of the 
district court's recited reasons for its decision.

Although the pretrial order provided penalties for 
both plaintiffs and defendants for "[f]ailure of strict 
compliance", the court imposed the penalty only on plain­
tiffs (R27) .

2. Failure to Prosecute
While declaring "want of further prosecution" as a 

reason for reinstating the order on the merits, the court 
ignored the fact that defendants had themselves failed 
to comply with the pretrial order equally as plaintiffs. 
Want of prosecution is hardly applicable when volun­
tary dismissal is sought. Moreover, defendants had failed 
to responsively plead to the complaint, or to plead at all.
Defendants were just as liable to have default judgment

1
entered, Rule 55, F. R. Civ. P., as were plaintiffs for 
dismissal with prejudice for failure to prosecute.

1. And the pretrial order.

28



DEFENDANTS WERE NOT ENTITLED TO 
AN AWARD OF ATTORNEYS' FEES UNDER 

APPLICABLE LAW ON THE FACTS PRESENTED

Contrary to Johnson v. Georgia Highway Express, Inc., 
488 F .2d 714, 720 (5th Cir. 1974), the district court gave 
no hint of what it might have considered to be the proper 
authority for the award nor the considerations which led 
-it to set the amount. There is no authority for such award, 
statutorily or judicially created.

A. Background of Law.

Federal courts have always had the equitable discretion
to award attorneys' fees in the absence of specific statu­
tory authorization, Sprague v. Ticonic National Bank, 307 
U.S. 161 (1939), but in actual practice this was a power 
rarely utilized. The American as opposed to the English rule
has always been that absent statutory or other specific 
authority attorneys' fees are not to be awarded even to the 
prevailing party. Fees were sometimes awarded where plain­
tiffs created a fund for the benefit of a class. Trustees v,
Greenough, 105 U.S. 527 (1882). r\ i. u i j i i i r - uumrm d'.VcltU“G
in early civil rights cases only where "obdurate obstinacy" 
was shown. Bradley v. School Board of the City of Richmond, 
345 F .2d 310 (4th Cir. 1965) (en banc).

The Civil Rights Act of 1964 provided for attorneys'

29



fees to the prevailing party in cases involving employment 
1 2 

discrimination and public accommodations. The Act was
applied in Newman v. Piggie Park Enterprises, 390 U.S. 400,
402 (1968):

When a plaintiff brings an action under ... Title 
[II], he cannot recover damages. If he obtains 
an injunction, he does so not for himself alone 
but also as a "private attorney general," vindi­
cating a policy that Congress considered of the 
highest priority. If successful plaintiffs were 
routinely forced to bear their own attorneys' fees, 
few aggrieved parties would be in a position to 
advance the public interest by invoking the in­
junctive powers of the federal courts. Congress 
therefore enacted the provision for counsel fees—  
not simply to penalize litigants who deliberately 
advance arguments they know to be untenable but, 
more broadly, to encourage individuals injured by 
racial discrimination to seek judicial relief under 
Title II.
(Footnotes omitted).

In light of Newman and Mills v. Electric Auto-Lite Co., 396 
U.S. 375 (1970), courts began awarding fees in cases based 
on statutes which set broad national policies but did not 
provide expressly for attorneys' fees. See, Long v. Georgia 
Kraft Co., 455 F.2d 331, 336 (5th Cir. 1972); Lee v. Southern

1. Title VII, 42 U.S.C. §2000e— 5 (k) .
2. Title II, 42 U.S.C. §2000a— 3 (b) .

30



Home Sites Corp., 444 F.2d 143 (5th Cir. 1971).

The blend of "private attorney general" and "benefit 
to the class concepts is certainly applicable to suits 
challenging apportionment statutes as discriminatory on the 
basis of race.

If/ pursuant to this action/ plaintiffs have 
benefited their class and have effectuated a 
strong congressional policy, they are entitled 
to attorneys' fees regardless of defendants' 
good or bad faith. See Mills v. Electric Auto- 
Lite Co., 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 
593 (1970). Indeed, under such circumstances, 
the award loses much of its discretionary charac­
ter and becomes a part of the effective remedy 
a court should fashion to encourage public-minded 
suits, id., and to carry out congressional policy. 
Lee v. Southern Home Sites, 444 F.2d 143 (5th Cir 1971).

The present case clearly falls among those meant 
to be encouraged under the principles articulated 
in Piggie Park Enterprises, Inc, and Mills, and 
expanded upon in Southern Home Sites and Bradley.
The benefit accruing to plaintiffs' class from 
the prosecution of this suit cannot be overempha­
sized. No other right is more basic to the in­
tegrity of our democratic society than is the 
right plaintiffs assert here to free and equal 
suffrage. In addition, congressional policy strong­
ly favors the vindication of federal rights violated 
under color of state law, 42 U.S.C. §1983, and, 
more specifically, the protection of the right to 
a nondiscriminatory franchise.
(Footnote omitted.)
Sims v. Amos, 340 F. Supp. 691, 694 (M.D. Ala. 1972) 
(three-judge court), aff'd, 409 U.S. 942 (1972).

31



The benefit of enforcing Congressional policy is strongly 
entrenched. Hall v. Cole, 412 U.S. 1 (1973)(union member 
allowed fee from union treasury for suing union to vindi­
cate right of free speech within union).

There Being No Statutory Authorization For Awarding Fees
Here, Defendants Must Rely on Judicially Developed Law.

This suit was brought under 42 U.S.C. §§1971 and 1983. 
Neither has a provision relating to attorneys' fees. Defen­
dants citation of 42 U.S.C. §2000a— 3(b), was completely 
erroneous since by its terms it applies only to the sub­
chapter it is a part of, 42 U.S.C. §2000a— public accom­
modations. Contrary to their citation of Yelverton v. 
Driggers, 370 F. Supp. 612 (M.D. Ala. 1974) as an example 
of attorneys' fees being awarded in a local apportionment 
case under 42 U.S.C. §2000a— 3(b), Judge Johnson in Yelverton 
cited Title II merely as an example of a civil rights statute 
providing for attorneys' fees. 310 F. Supp. at 620. Even if

defendants had available a statute providing for attorneys' 
fees to the "prevailing party", they have not established 
that as public defendants in a civil rights action that an 
award would be appropriate. Richardson v. Hotel Corporation 
of America, 332 F. Supp. 519 (E.D. La. 1971), aff'd, 468 F.2d 
951 (5th Cir. 1972).

- 32



AWARDING ATTORNEYS' FEES TO 
DEFENDANTS HAS A DETERRENT EFFECT 

IN DIRECT CONFLICT WITH PUBLIC POLICY

The converse of awarding fees to plaintiffs in civil 
rights actions, î .e. , to award fees against them, has an 
unarguable deterrent effect on the bringing of such suits.

This was acknowledged in Wilderness Society v. Morton,
495 F.2d 1026, 1032, n. 2 (D.C. Cir. 1974)(en banc), cert.
granted No. 73-1977, 43 U.S.L.W. 3208:

Had appellees been the prevailing parties and 
sought attorneys' fees from appellants, the pos­
sibility of deterrence would be significant and 
the rationale of the American rule would therefore 
bar recovery of fees. In this sense there is an 
admitted lack of reciprocity in granting attorneys' 
fees under a private attorney general theory.
The same lack of reciprocity, however, appears 
to be present in so-called "common benefit" cases.
In Hall v. Cole, 412 U.S. 1, 93 S.Ct. 1943, 36 
L.Ed.2d 702 (1973), for example, the successful 
plaintiff in a suit brought under §102 of the 
Labor-Management Reporting & Disclosure Act of 
1959 was awarded fees from the defendant union on 
the ground the suit benefitted all union members 
and reimbursement of attorneys' fees out of the 
union treasury would shift the costs of litigation 
to these beneficiaries. 412 U.S. at 7-8, 93 S.Ct. 
1943. Had the defendant union prevailed on the 
merits, however, it is doubtful that the same theory 
would have required awarding fees to defendant 
because of the risk of deterring plaintiffs from 
bringing suit.

And see, Byram Concretanks, Inc, v. Warren Concrete Products

33



Co^, 374 F.2d 649, 651 (3rd Cir. 1967), reversing an award of 
attorneys' fees to the defendant in a private anti-trust action 
because "[t]he incentive which the prospect of treble damages 
provides for instituting private anti-trust actions would 
be dampened by the threat of assessment of defendant's 
attorneys' fees and other costs as a penalty for failure."

in their pleadings admit that they seek to 
deter civil rights actions by the quotation from the NAACP 
attorney (R37). And they left no doubt by taking out a

garnishment against one of the plaintiffs employed
1

by the American Friends Service Committee while this matter 
is on appeal (R50-57, 59-60).

““ ' -- —3 ~~(Quakers) often in 
bama. E.cj_., Davis 
1970) .

r\ i- t- n /-< ij I i i  n _ _  ■ _ i  _ r  «   • ■»— j.wUo ouCie of r riends
conflict with the school systems of Ala- 
v. United States, 422 F.2d 1139 (5th Cir.

34



CONCLUSION

The two lawyers who submitted fees represented jointly 
the school board and the party chairman. They did not 
represent all defendants (R80). They sought and seek $2,500 
for litigating a case in which the first pleading they filed 
wae a biLl of costs. They argue that the fee is justified 
to deter such litigation and further that the court should 
award a fee at an hourly rate higher than they billed be­
cause plaintiffs did not acquiesce and pay their fee (R103- 
04) .

They filed no pleadings, answered no discovery, put on 
no witnesses on the merits, only as to fees. They suffered 
no ostracism for handling an undesirable case. Sanders v. 
Russell, 401 F.2d 241 (5th Cir. 1968); NAACP v. Allen, 340 
F. Supp. 703, 710 (M.D. Ala. 1972). The award is hardly 
justified as supporting any public policy necessary to be
certain that school boards are represented by counsel in 
civil rights actions. To the contrary, the action of the 
<̂ str-̂ct court goes beyond the concern expressed in Cole v. 
hail, 402 F.2d 777, 779-80 (2nd Cir. 1972), aff'd 412 U.S.
1 (1973), where the lone union member prevailed against his
union:



Not to award counsel fees in cases such as this 
would be tantamount to repealing the Act itself 
by frustrating its basic purpose ... Counsel 
fees in cases of this kind are not only appro­
priate, they are imperative to preserve the 
Congressional purpose ... Without counsel fees 
the grant of federal jurisdiction is but a 
gesture...

In comparison, the deterrent effect of awarding attorneys 
fees against plaintiffs in a civil rights action, without 
statutory authority, is clearly against the thrust of 
public policy. The grant of federal jurisdiction would 
indeed be a hollow promise if this is permitted.

For the foregoing reasons the orders of the district 
court of October 1 and October 9, 1974, should be reversed.

Respectfully submitted,

Of Counsel:
Melvin L. Wulf
22 East 40th Street
New York, New York 10016
American Civil Liberties 
Union Foundation, Inc.

Neil Bradley 
Laughlin McDonald 
52 Fairlie Street, N.W. 
Atlanta, Georgia 30303
American Civil Liberties 
Union Foundation, Inc.

36



Act 454, 1951 Acts of Alabama:

AN ACT
<or the 0,'"i0n lhe mem-

Be It Enacted by the Legislature of Alabama:

taw f w S  } '  u S ??  me1mbei: of the Board of Education of Choc- 
districts Ĵected for each of the f ° ur commissioner’s
member of t h T h ?  J hl  T ? ty J8 -divided, and the fifth 

°S the board shal1 be elected for the county at large
t K e d S  Sector of, and reside in
he bnmlnof ?  j hl,ch h° , ls elected, but all the-members shall 

fifK tCdiand ! Ie,cted by the elcctors of the county at large-
JesideinT h^rtT  “ r " 6 boardm ust be a clualificd elector of, and 
m e and h l = ta^  County Members of the board for districts 
one and two shall be elected at the general election in 1952 
and every a «  years thereafter. Members of the boaM from dS  
loafi thj  and tour shal1 be eIeated at the general election in
boardashaflVbeye r X, T ? T h e  fifth member of the Doard shall be elected at the general election in 1954 and everv
hnl/th™  tb®,r.eafter- The incumbent members of the ’board shall

C6S Until th6ir SUCCessors are elected as Provided in

Acfare^pealed!1 ^  °F ^  ° f laWS which c0nflict with this

a , Thc, Provisi?ns ° f  this Act are severable. If any 
ratin -^-ot1S declared invalid or unconstitutional, such decla­
ration shall not effect the part which remains.

Section 4. This Act shall become effective immediatelv nnnn

f c S I a  W . aPPr° Val ^  " ’ e GOVCm0r- “
Approved August 17, 1951.
Time: 8:11A .M .



42 U.S.C. §1971:

SUBCHAPTER I.—GENERALLY

Voting rights— Race, color, or previous condition 
not to affect right to vote; uniform standards for 
voting qualification; errors or omissions from 
papers; literacy tests; agreements between A t­
torney General and State or local authorities; 
definitions

(a )(1 ) All citizens of the United States who are otherwise quali­
fied by law to vote at any election by the people in any State, Terri­
tory, district, county, city, parish, township, school district, munici­
pality, or other territorial subdivision, shall be entitled and al­
lowed to vote at all such elections, without distinction of race, color, 
or previous condition of servitude; any constitution, law, custom, 
usage, or regulation of any State or Territory, or by or under its au­
thority, to the contrary notwithstanding.

(2) No person acting under color of law shall—

(A) in determining whether any individual is qualified under 
State law or laws to vote in any election, apply any standard, 
practice, or procedure different from the standards, practices, or 
procedures applied under such law or laws to ocher individuals 
within the same county, parish, or similar political subdivision 
who have been found by State officials to be qualified to vote;

(B) deny the right of any individual to vote in any election be­
cause of an error or omission on any record or paper relating to 
any application, registration, or other act requisite to voting, if 
such error or omission is not material in determining whether 
such individual is qualified under State law to vote in such 
election; or

(C) employ any literacy test as a qualification for voting in 
any election unless (i) such test is administered to each indi­
vidual and is conducted wholly in writing, and (ii) a certified 
copy of the test and of the answers given by the individual is 
furnished to him within twenty-five days of the submission of 
his request made within the period of time during which records 
and papers are required to be retained and preserved pursuant 
to sections 1974 to 1974e of this title: Provided, however, That 
the Attorney General may enter into agreements with appro­
priate State or local authorities that preparation, conduct, and 
maintenance of such tests in accordance with the provisions of 
applicable State or local law, including such special provisions 
as are necessary in the preparation, conduct, and maintenance of 
such tests for persons who are blind or otherwise physically

§ 1971.

Add. 2



handicapped, meet the purposes of this subparagraph and con­
stitute compliance therewith.

(3) For purposes of this subsection—
(A) the term “vote” shall have the same meaning as in 

subsection (e) of this section;
(B) the phrase “ literacy test” includes any test of the ability 

to read, write, understand, or interpret any matter.

latlm ldation , threat*, o r  coercion

(b) No person, whether acting under color of law or otherwise, 
shall intimidate, threaten, coerce, or attempt to intimidate, threaten, 
or coerce any other person for the purpose of interfering with the 
right of such other person to vote or to vote as he may choose, or of 
causing such other person to vote for, or not to vote for, any candi­
date for the office of President, Vice President, presidential elector, 
Member of the Senate, or Member of the House of Representatives, 
Delegates or Commissioners from the Territories or possessions, at 
any general, special, or primary election held solely or in part for 
the purpose of selecting or electing any such candidate.

Preventive re lie f) in junction ; rebuttable literacy  presum ption; 
liab ility  o f  United States fo r  costs ; State as party defendant

(c) Whenever any person has engaged or there are reasonable 
grounds to believe that any person is about to engage in any act or 
practice which would deprive any other person of any right or privi­
lege secured by subsection (a) or (b) of this section, the Attorney 
General may institute for the United States, or in the name of the 
United States, a civil action or other proper proceeding for preven­
tive relief, including an application for a permanent or temporary 
injunction, restraining order, or other order. If in any such nro- 
ceeding literacy is a relevant fact there shall be a rebuttable pre­
sumption that any person who has not been adjudged an incompe­
tent and who has completed the sixth grade in a public school in, or 
a private school accredited by, any State or territory, the District of 
Columbia, or the Commonwealth of Puerto Rico where instruction is 
carried on predominantly in the English language, possesses suffi­
cient literacy, comprehension, and intelligence to vote in any elec­
tion. In any proceeding hereunder the United States shall be liable 
for costs the same as a private person. Whenever, in a proceeding 
instituted under this subsection any official of a State or subdivi­
sion thereof is alleged to have committed any act or practice consti­
tuting a deprivation of any right or privilege secured by subsection 
(a) of this section, the act or practice shall also be deemed that of 
the State and the State may he ininpd as a party defendant and, if, 
prior to the institution of such proceeding, such official has re­
signed or has been relieved of his office and no successor has as­
sumed such office, the proceeding may be instituted against the 
State.

Add. 3



Jurisd iction ; exhaustion o l  other rem edies

(d) The district courts of the United States shall have jurisdic­
tion of proceedings instituted pursuant to this section and shall ex­
ercise the same without regard to whether the party aggrieved shall 
have exhausted any administrative or other remedies that may be 
provided by law.

Order qu a lify in g  ptraon to v ote ; applications hearings voting  
referee*; transm ittal o f  report and orders certifica te  

o f  qualifications defin itions

(e) In any proceeding instituted pursuant to subsection (c) of 
this section in the event the court finds that any person has been 
deprived on account of race or color of any right or privilege se­
cured by subsection (a) of this section, the court shall upon request 
of the Attorney General and after each party has been given notice 
and the opportunity to be heard make a finding whether such depri­
vation was or is pursuant to a pattern or practice. If the court 
finds such pattern or practice, any person of such race or color resi­
dent within the affected area shall, for one year and thereafter un­
til the court subsequently finds that such pattern or practice has 
ceased, be entitled, upon his application therefor, to an order declar­
ing him qualified to vote, upon proof that at any election or elec­
tions (1) he is qualified under State law to vote, and (2) he has 
since such finding by the court been (a) deprived of or denied un­
der color of law the opportunity to register to vote or otherwise to 
qualify to vote, or (b) found not qualified to vote by any person act­
ing under cnor of law. Such order shall be effective as to any 
election held within the longest period for which such applicant 
could have been registered or otherwise qualified under State law 
at which the applicant’s qualifications would under State law enti­
tle him to vote.

Notwithstanding any inconsistent provision of State law or the 
action of any State officer or court, an applicant so declared quali­
fied to vote shall be permitted to vote in any such election. The At­
torney General shall cause to be transmitted certified copies of such 
order to the appropriate election officers. The refusal by any such 
officer with notice of such order to permit any person so declared 
qualified to vote to vote at an appropriate election shall constitute 
contempt of court.

An application for an order pursuant to this subsection shall be 
heard within ten days, and the execution of any order disposing of 
such application shall not be stayed if the effect of such stay would 
be to delay the effectiveness of the order beyond the date of any 
election at which the applicant would otherwise be enabled tn vntp

The court may appoint one or more persons who are qualified vot­
ers in the judicial district, to be known as voting referees, who shall 
subscribe to the oath of office required by Revised Statutes, section

Add. 4



1757; to serve for such period as the court shall determine, to re­
ceive such applications and to take evidence and report to the court 
findings as to whether or not at any election or elections (1) any 
such applicant is qualified under State law to vote, and (2) he has 
since the finding by the court heretofore specified been (a) de­
prived of or denied under color of law the opportunity to register to 
vote or otherwise to qualify to vote, or (b) found not qualified to 
vote by any person acting under color of law. In a proceeding be­
fore a voting referee, the applicant shall be heard ex parte at such 
tunes and places as the court shall direct. His statement under oath 
shall be prima facie evidence as to his age, residence, and his prior 
efforts to register or otherwise qualify to vote. Where proof of lit­
eracy or an understanding of other subjects is required by valid 
provisions of State law, the answer of the applicant, if written, 
shall be included in such report to the court; if oral, it shall be tak­
en down stenographically and a transcription included in such re­
port to the court.

Upon receipt of such report, the court shall cause the Attorney 
General to transmit a copy thereof to the State attorney general and 
to each party to such proceeding together with an order to show 
cause within ten days, or such shorter time as the court may fix, 
why an order of the court should not be entered in accordance with 
such report. Upon the expiration of such period, such order shall 
be entered unless prior to that time there has been filed with the 
court and served upon all parties a statement of exceptions to such 
/eport. Exceptions as to matters of fact shall be considered only if 
supported by a duly verified copy of a public record or bv affidavit 
of persons having personal knowledge of such facts or by state­
ments or matters contained in such report; those relating to mat-
i ° L lawr Shal* be suPP°rted by an appropriate memorandum of 
law. The issues of fact and law raised by such exceptions shall be 
determined by the court or, if the due and speedy administration of 
justice requires, they may be referred to the voting referee to deter­
mine m accordance with procedures prescribed by the court. A 

earing as to an issue of fact shall be held only in the event that 
the proof in support of the exception disclose the existence of a 
genuine issue of material fact. The applicant’s literacy and under­
standing of other subjects shall be determined solely on the basis of 
answers included in the report of the voting referee.

The court, or at its direction the voting referee, shall issue to 
each applicant so declared qualified a certificate identifying the 
holder thereof as a person so qualified.

Any voting referee appointed by the court pursuant to this 
subsection snan to the extent not inconsistent herewith have all the 
powers conferred upon a master by rule 53(c) of the Federal Rules 
of Civil Procedure. The compensation to be allowed to any persons

Add. 5



appointed by the court pursuant to this subsection shall be fixed by 
the court and shall be payable by the United States.

Applications pursuant to this subsection shall be determined expe­
ditiously. In the case of any application filed twenty or more days 
prior to an election which is undetermined by the time of such elec­
tion, the court shall issue an order authorizing the applicant to vote 
provisionally: Provided, however, That such applicant shall be qual­
ified to vote under State law. In the case of an application filed 
within twenty days prior to an election, the court, in its discretion, 
may make such an order. In either case the order shall make appro­
priate provision for the impounding of the applicant’s ballot pend­
ing determination of the application. The court may take any other 
action, and may authorize such referee or such other person as it 
may designate to take any other action, appropriate or necessary to 
carry out the provisions of this subsection and to enforce its de­
crees. This subsection shall in no way be construed as a limitation 
upon the existing powers of the court.

When used in the subsection, the word “ vote” includes all action 
necessary to make a vote effective including, but not limited to, reg­
istration or other action required by State law prerequisite to vot­
ing, casting a ballot, and having such ballot counted and included in 
the appropriate totals of votes cast with respect to candidates for 
public office and propositions for which votes are received in an 
election; the words “ affected area” shall mean any subdivision of 
the State in which the laws of the State relating to voting are or 
have been to any extent administered by a person found in the pro­
ceeding to have violated subsection (a) of this section; and the 
words “ qualified under State law” shall mean qualified according to 
the laws, customs, or usages of the State, and shall not, in any 
event, imply qualifications more stringent than those used by the 
persons found in the proceeding to have violated subsection (a) of 
this section in qualifying persons other than those of the race or 
color against which the pattern or practice of discrimination was 
found to exist.

Contem pt) assignm ent o f  counsel; w itnesses

(f) Any person cited for an alleged contempt under this Act shall 
be allowed to make his full defense by counsel learned in the law; 
and the court before which he is cited or tried, or some judge there­
of, shall immediately, upon his request, assign to him such counsel, 
not exceeding two, as he may desire, who shall have free access to 
him at all reasonable hours. He shall be allowed, in his defense to 
make any proof that he can produce by lawful witnesses, and shall 
have the like process of the court to compel his witnesses to appear 
at. >ii<a trial nr hoaring an i<5 usually granted to Compel witnesses to 
appear on behalf of the prosecution. If such person shall be found 
by the court to be financially unable to provide for such counsel, it 
shall be the duty of the court to provide such counsel.

Add. 6



Three-judge district cou rt: hearing, determ ination, expedition  o f  action, 
eeriest by Supreme C ourt: s in g le -ju d ge  d istrict cou rt: hearing, 

determ ination, expedition  o f  action

(g) In any proceeding instituted by the United States in any dis­
trict court of the United States under this section in which the At­
torney General requests a finding of a pattern or practice of dis­
crimination pursuant to subsection (e) of this section the Attorney 
General, at the time he files the complaint, or any defendant in the 
proceeding, within twenty days after service upon him of the com­
plaint, may file with the clerk of such court a request that a court 
of three judges be convened to hear and determine the entire case. 
A copy of the request for a three-judge court shall be immediately 
furnished by such clerk to the chief judge of the circuit (or in his 
absence, the presiding circuit judge of the circuit) in w'hich the 
case is pending. Upon receipt of the copy of such request it shall 
be the duty of the chief judge of the circuit or the presiding circuit 
judge, as the case may be, to designate immediately three judges in 
such circuit, of whom at least one shall be a circuit judge and an- 

, other of whom shall be a district judge of the court in which the 
proceeding was instituted, to hear and determine such case, and it 
shall be the duty of the judges so designated to assign the case for 
hearing at the earliest practicable date, to participate in the hearing 
and determination thereof, and to cause the case to be in every way 
expedited. An appeal from the final judgment of such court will lie 
to the Supreme Court.

In any proceeding brought under subsection (c) of this section to 
enforce subsection (b) of this section, or in the event neither the 
Attorney General nor any defendant files a request for a three- 
judge court in any proceeding authorized by this subsection, it shall 
be the duty of the chief judge of the district (or in his absence, the 
acting chief judge) in which the case is pending immediately to des­
ignate a judge in such district to hear and determine the case. In 
the event that no judge in the district is available to hear and deter­
mine the case, the chief judge of the district, or the acting chief 
judge, as the case may be, shall certify this fact to the chief judge 
of the circuit (or, in his absence, the acting chief judge) who shall 
then designate a district or circuit judge of the circuit to hear and 
determine the case.

It shall be the duty of the judge designated pursuant to this sec­
tion to assign the case for hearing at the earliest practicable date
jlTlH tA PQ1KO tVlQ r»ooo Ir» Ko in *******■ - - ••• - — — ~ W »» KJ V, A 41 V, > Cl J »l MJ VA|>S,Ult,CUa

R.S. § 2004; Pub.L. 85-315. Pt. IV. § 131. Sept. 9, 1957, 71 Stat. 
637; Pub.L. 86-449, Title VI, § 601, May 6, 1960, 74 Stat. 90; Pub.L. 
88-352, Title I, § 101, July 2, 1964, 78 Stat. 241; Pub.L. 89-110, § 15, 
Aug. 6, 1965, 79 Stat. 445.

Add. 7



42 U.S.C. §1983:
Every person who, under color of any statute, 

ordinance, regulation, custom, or usage, of any State 
or Territory, subjects, or causes to be subjected, any 
citizen of the United States or other person within the 
jurisdiction thereof to the deprivation of any rights, 
privileges, or immunities secured by the Constitution 
and laws, shall be liable to the party injured in an 
action at law, suit in equity, or other proper pro­ceeding for redress.

42 U.S.C. §2000a— 3 (b):
In any action commenced pursuant to this subchapter, 

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, and the United States shall be 
liable for costs the same as a private person.

Add. 8



CERTIFICATE OF SERVICE

A certify that I have served two copies of the fore­
going on each party separately represented by airmailing two 
copies each, postage prepaid, to J. Edward Thornton, Esq. 
and John Y. Christopher.

Done this the 13th day of March 1975.

s/Neil Bradley_______________
Counsel for Appellants