Motion to Alter or Amend Judgment; Memorandum of Defendants in Support of Motion to Alter or Amend Judgment

     [||c30f3a3f-f0b1-41f5-85fc-38555dec1dfe||] A.F. SUMMER 

ATTORNEY GENERAL December 14, 

Honorable William C. Keady, 
United States District Court for the 

Northern District of Mississippi 
P. O. Drawer 190 

Greenville, Mississippi 38701 

Re: et al., Vv. 

WC 70-53-K 
Delores Norwood, 

Civil Action No. 

D. L. Barrison, 

DEPARTMENT OF JUSTICE 

Dffice of the Attorney General 
JACKSON, M1ssi1ssiPPI 39205 

PETER M. STOCKETT 

SPECIAL ASSISTANT ATTORNEY GENERAL 1978 

Chief Judge 

Sr., et al., 

  

Dear Judge Keady: 

I am enclosing copy of Motion 
Notice of Motion in the above case. 
of these documents to the Clerk in 

enclose copy of transmittal letter 

Also enclosed is original and 
in Support of Motion to Alter or Amend Judgment. 
a copy of the Memorandum to Honorable Bill Lann Lee, 
Plaintiffs. 

With best wishes, 

to Alter or Amend Judgment and 
I am today mailing the original 

Oxford for filling, 
to Mrs. 

and I also 

Butts. 

copy of Memorandum of Defendants 
I am today mailing 

counsel for 

Very truly yours, 

(2k Ce , (} ~g 

Xo) f= Ni 

Seton" M. “Stockett, JIL. 

PMS, Jr/ch 
Enclosures 

Honorable Bill Lann Lee 

10 Columbus Circle, Suite 2030 
New York, New York 10019 

CC: 

Honorable Cliff Finch, Governor 
State of Mississippi 
Jackson, Mississippi 39205 

Honorable Edwin Lloyd Pittman 
Treasurer, State of Mississippi 

Jackson, Mississippi 39205 

Mr. Larry Tynes 

Durant High School 
Durant, Mississippi 39063 

Assistant Attorney General 

Mrs. Jean McCool 

Box 727 

Moss Point, Mississippi 39563 

Dr. Charles E. Holladay 
Superintendent of Education 
Jackson, Mississippi 39205 

Mr. W. A. Matthews 
Box 1075 
Jackson, Mississippi 39205 

Mr. T. M. Stone 

Potts Camp, 

Mississippi 38659 

 



State of Mississippi 

DEPARTMENT OF JUSTICE 

@ffice of the Attorney General 
JACKSON, MississiPrPl 39205 

  

A..F. SUMMER PETER M. STOCKETT 
ATTORNEY OENVRAL December 14, 1978 ASSISTANT ATTORNEY GENERAL 

Mrs. Katherine Butts 

Chief Deputy Clerk 
United States District Court 

Oxford, Mississippi 

Re: . Delores Norwood, ef al., v. D. IL. Harrison, Sr., et al., 

Civil Action No. WC 70~53-K 
  

Dear Katherine: 

I enclose Motion to Alter or Amend Judgment and Notice 
of Motion in the above case, which I would appreciate your filing. 

With very best wishes, 

Very truly yours, 

Clin © 0, 
(ade WM. lechoer, Jr. 
Assistant Attorney-General 

PMS,Jr/ch 

cc: Honorable William C. Keady Mr. Larry Tynes 
Chief Judge Durant High School 
United States District Court Durant, Mississippi 39063 

for the Northern District 
of Mississippi Mrs. Jean McCool 

P. O. Drawer 190 Box 727 
Greenville, Mississippi 38701 Moss Point, Mississippi 39563 

Honorable Bill Lann Lee Dr. Charles E. Holladay 
10 Columbus Circle, Suite 2030 Superintendent of Education 
New York, New York 10019 Jackson, Mississippi 39205 

Honorable Cliff Finch, Governor Mr. W. A. Matthews 

State of Mississippi Box 1075 
Jackson, Mississippi 39205 Jackson, Mississippi 39205 

Honorable Edwin Lloyd Pittman Mr. T. M. Stone 
Treasurer, State of Mississippi Potts Camp, 

Jackson, Mississippi 39205 Mississippi 38659 

 



  

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF MISSIS3IPrPl1 

WESTERN DIVISION 

DELORES NORWOOD, ET AL., 

Plaintiffs 

V. CIVIL ACTION 

NO. WC 70~-53-K 

D. 1L. HARRISON, SR., FET AL., 

Defendants. 

NOTICE OF MOTION 
  

TO: Bill Lann Lee, Esquire 

10 Columbus Circle 

Suite 2030 

New York, New York 10019 

Attorney for Plaintiffs 
  

PLEASE TAKE NOTICE that Defendants will bring on for 

hearing their Motion to Alter or Amend Judgment before the 

Honorable William C. Keady, United States District Judge, at 

a time and place to be set by the Court. 

A. F. SUMMER, ATTORNEY GENERAL 

STATE OF MISSISSIPPI 

PETER M. STOCRETT, JR., 

ASSISTANT ATTORNEY GENERAL 

STATE OF MISSISSIPPl 

Fann 

By: Aol cl len © 
  

“PETER M. STOCKETT, JR. 

 



  

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF MISSISSIPPI 

WESTERN DIVISION 

DELORES NORWOOD, ET AL., 

Plaintiffs 

Va. CIVIL ACTION 

NO. WC 70~-53-K 

D. LL. "HARRISON, SR., ET AL., 

Defendants. 

MOTION TO ALTER OR AMEND JUDGMENT 
  

NOW COME the Defendants, by their attorneys, and respect- 

fully move the Court, pursuant to Rule 59(e) of the Federal 

Rules of Civil Procedure, to alter or amend the Judgment signed 

in this cause by this Court on December 4, 1978 and filed in 

the office of the Clerk of the Court on December 5, 1978. 

Defendants specifically move the Court to alter or amend 

said Judgment in the following respects: 

(1) The Court should delete all provisions for the pay- 

ment of interest on the award of attorneys' fees before and af- 

ter December 1, 1978, so that the Judgment in favor of the 

NAACP Legal Defense Fund/Melvyn R. Leventhal, should be reduced 

to $22,102, without interest; the Judgment in favor of NAACP 

Legal Defense Fund/James M. Nabrit, III should be reduced to 

$1,750, without interest; and the Judgment in favor of the NAACP 

Legal Defense Fund should be reduced to $4,999.44, without inte- 

rest; 

(2) The Court should delete the final full paragraph of 

the Judgment, wherein it expressly reserved the power to issue 

writs of garnishment and/or execution against Honorable Edwin 

Lloyd Pittman, Treasurer of the State of Mississippi, attaching 

 



  

funds appropriated for the Mississippi State Textbook Purchasing 

Board and condemning same for the payment of amounts fixed in 

the Judgment. 

Upon consideration of this motion and accompanying memo- 

randum, Defendants respectfully move the Court to alter or amend 

its Judgment signed on December 4, 1978 and entered on December 

5, 1978 as specified above. 

Respectfully submitted, 

A. F. SUMMER, ATTORNEY GENERAL 

STATE OF MISSISSIPPI 

PETER M. STOCKET, JR., 

ASSISTANT ATTORNEY GENERAL 

STATE OF MISSISSIPPY 

Attorneys for Defendants 
  

ons 
By: N out, {Iy. af () ~~ 1. 
  

PETER M. STOCKETT) JR. 

 



  

CERTIFICATE OF SERVICE 
  

I, Peter M. Stockett, Jr., Assistant At{orney for the 

State of Mississippi and one of the attorneys for the De- 

fendants, do hereby certify that I have this day mailed via 

United States Mail, a true and correct copy of the foregoing 

Notice of Motion and Motion to Alter or Amend Judgment to 

the following counsel of record: 

Bill Lann Lee, Esquire 
10 Columbus Circle 
Suite 2030 

New York, New York 10019 

This, the /i.4f day of December, 1978. 
  

ya pz 

i x “a ii } ef fi 
Ne LA Hin <1 on} { 

p— 

at 
  PETER M. STOCKETT, JR. 

 



  

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF MISSISSIPPI 

WESTERN DIVISION 

DELORES NORWOOD, ET AlL., 

Plaintiffs 

Vv. CIVIL ACTION 

NO. WC 70-53-K 

D. L. HARRISON, SR., EFT AL., 

Defendants. 

MEMORANDUM OF DEFENDANTS IN SUPPORT OF 

MOTION TO ALTER OR AMEND JUDGMENT   

The Defendants moved this Court to alter or amend its 

Judgment signed December 4, 1978 and filed December 5, 1978 in 

this cause in the following particulars: 

(1) The Court should delete all provisions for the pay- 

ment of interest on the award of attorney' fees before and and af- 

ter December 1, 1978, so that the Judgment in favor of the NAACP 

Legal Defense Fund/Melvyn R. Leventhal, should be reduced to $22,102, 

without interest; the Judgment in favor of NAACP Legal Defense Fund/ 

James M. Nabrit, III should be reduced to $1,750, without interest; 

and the Judgment in favor of the NAACP Legal Defense Fund should be 

reduced to $4,999.44 without interest; 

(2) The Court should delete the final full paragraph of 

the Judgment, wherein it expressly reserved the power to issue writs 

of garnishment and/or execution against Honorable Edwin Lloyd Pittman, 

Treasurer of the State of Mississippi, attaching funds appropriated 

for the Mississippi State Textbook Purchasing Board and condemning 

same for the payment of amounts fixed in the Judgment. 

As to the first point, the awarding or taxing of interest 

on the attorneys' fees and costs of Court is contrary to the law of 

this Circuit as enunciated in Carpa, Inc. v. Ward Foods, Inc., 56%   

PF. 24 1316, 1321-1323 (5th Cir. 19738) In Carpa, supra, the Pifth 

 



  

Circuit was reviewing a Judgment of a District Court which added 

interest to an attorneys' fee award based on the attorneys' fee 

award provisions of the Clayton Act, 15 U.S.C. § 15. The perti- 

nent language of 15 U.85.C. § 15 provided that any person injured 

by reason of violation of the anti-trust laws "shall recover 

threefold the damages by him sustained, and the cost of suit, in- 

cluding a reasonable attorney's fee." In holding that the District 

Court erred in adding interest to the award of attorneys' fees, 

the Fifth Circuit stated: 

"Appellees do not contend that interest is pay- 
able on court costs as a general matter, and 
they fail to cite a single federal case in which 
interest was awarded on costs. Our own researches 
have also failed to uncover such a precedent. 
Against this background, it is significant that 
nothing in the statutory language or history of 15 
U.S.C. § 15 indicates that Congress recognized a 
distinction between attorney's fees and other costs. 

The only Fifth Circuit case touching on this issue 

  

is Duffer v. American Home Assurance Co., 512 r.2d4 

783 (5th Cir. 1975), which reaffirmed the traditional 

view that costs do not bear interest. Duffer was a 

diversity case which presented the question of whe- 
ther, under Texas law, attorneys' fees are part of 
the judgment, which bears interest, or are an item 
CF court costs, which do not bear interest. The 

controlling statute provided that 'such attorney's 
Fee shall be taxed as a part of the costs in the 
case,' and in the absence of a controlling decision 

by the Texas Supreme Court and in light of the 'un- 
equivocal language of the statute, 'we held that the 

trial court erred in awarding interest on the attorneys’ 
fee. 512 F. 24 at 800. ' Although Duffer was a diver- 
sity case applying state law, it is somewhat instruc- 
tive to note that faced with a statutory language 
similar to 15 0.8.C. § 15, and withont any controlling 
precedent to bind it, the court held that attorneys’ 
fees are an item of costs and as such do not bear in- 
terest, 

In holding that attorneys' fees in anti-trust cases 
may not bear interest, we are not unmindful that Con- 
gress manifested a strong remedial purpose in its de- 
cision to reverse the historical pattern and provide 
for the award of attorneys' fees to victorious plain- 
tiffs in anti-trust actions. However, congress did 
not see fit to reverse the traditional practice of not 
awarding interest on court costs, if indeed it considered 
the question of interest or the policies underlying the 
historical practice. In the absence of further Congres- 
sional guidance, and in light of the fact that the pro 
vision of treble damages as well as attorneys' fees in 

 



|g i.» 

  

the anti-trust laws affords sufficient scope 
to the remedial purposes of encouraging pri- 
vate enforcement of the anti-trust laws and 
facilitating the procuring of legal services, 
we see no basis for stretching the applicable 
statutory language to provide interest on the 
award of attorneys' fees to successful anti- 
trust plaintiffs.” (567 F., 24, pp 1322-1323). 

For a case giving the same interpretation to a similar 

attorneys' fee ‘award provision of Title VII of the Civil Rights 

Act of 1964, see Parker v. Califano, 443 F. Supp. 789, 794 (D.C., 
  

D.C., 1978) 

The statutory bases upon which this Court awarded attorneys’ 

fees and costs in the case sub judice are § 718 of the Emergency   

School Ald Act, 20 .U.8.C. §-1617 and the Civil Rights Arttornev's 

Faes Awards Act of 1976,-42 U.8.C. § 1988. This Court is well 

familiar with the provision of each of these two Acts of Congress, 

and we will not burden the Court with re-copying the text of these 

statutes here. suffice it to say, the operative language of each 

OF the statutes is that "the Court, in its discretion, may allow 

the prevailing party, other than the United States, a reasonable 

attorney's fee as part of the costs." The Supreme Court of the 

United States in Hutto v. Finney, : Uu.s. , 98 5. Ckt.   

2565, 57 L. Ed. 24. 522, clearly treated the award of attorneys’ 

fees pursuant to the Fees Awards Act as being part of costs. 57 

L..E&. 24 pp. 536~539. 

Thus, we respectfully submit that this Court erred in 

adding interest to the attorneys' fees and costs of Court in its 

Judgment of December 4, 1978, and that such provision should be 

stricken from the Judgment. 

On the second point, Defendants move the Court to delete 

from its Judgment the last full paragraph thereof, in which juris- 

diction is retained to issue process against Edwin Lloyd Pittman, 

 



  

Treasurer of the State of Mississippi in order to compel him to 

issue a warrant on State Funds in payment of the Judgment. To com- 

pel the Treasurer to issue such a warrant would force him to act 

in direct contravention of the laws of the State of Mississippi, 

placing him in an untenable position. The Legislature of the State 

of Mississippi has not made an appropriation for the payment of the 

Judgment of this Court signed December 4, 1978. § 11-45-5 of the 

‘Miss. Code 1972 Ann. provides: 

A judgment or decree against the State shall not 
be satisfied except by an appropriation therefor 
by the legislature, and an execution shall not be 

issued against the State. 

Section 7-9-13 of the Miss. Code states as follows: 

It shall not be lawful for the State Treasurer to 
pay Or receive any money on account of the State 

but on the warrant or certificate of the auditor, 
issued pursuant to law. When he shall make any 
disbursement, he shall write or stamp the word 

"paid" in large characters across the face of 
the warrant, and shall make an entry in his of- 
fice of the date of such warrant. The warrant 
thus cancelled shall be a sufficient voucher for 
the payment of the same. 

The first sentence of Section 7-9-9 of the Miss. Code which 

sets forth the duties of the Treasurer provides as follows: 

It shall be the duty of the State Treasurer to 
receive and keep the moneys of the State in the 
manner provided by law, to disburse the same 
agreeably to law, and to take receipts or vouchers 
for moneys which he shall disburse. (Emphasis 
added.) 

  

  

The question of whether funds of a State may be seized, exe- 

cuted upon, or levied against in satisfaction of a Judgment entered 

by a Federal Court for attorneys' fees pursuant to the Civil Rights 

Attorneys' Fees Award Act of 1976 is presently pending in the United 

States Court of Appeals for the Pifth Circuit. Gary HW. v. State of   

louisiana, 44) FP. Supp. 1121 (D.C., ®.D. 1a., 1977) 5th: Cir., No.   

77-3245. It would be imprudent and contrary to the principles of 

 



  

Judicial economy for this Court in the present proceeding to con- 

template issuing mandatory process to Treasurer Pittman to issue 

a warrant to pay the Judgment of the Court until the Court of Ap- 

peals has had an opportunity to decide Gary W., supra. The 

District Court held that the provisions of the Constitution and 

laws of the State of Louisiana which stated that no Judgment against 

the State or a State agency, should be paid except from funds ap- 

propriated therefor by the Legislature would be set aside or sus- 

pended in order that the Judgment of the Court awarding attorneys’ 

fees could be paid. The Defendants, officials of the State of lLouisi- 

and filed a Notice of Appeal from the Judgment of the District Court 

to the Court of Appeals for this Circuit. The undersigned counsel 

for the Defendants in the case .sub judice has obtained a copy of the 
  

Briefs filed by the parties in the Court of Appeals in Gary W. 

The Plaintiffs-Appellees in Gary W., in their Brief, filed a state- 

ment opposing oral argument. On December. 7, 1978, the undersigned 

counsel for Defendants was advised by the Office of the Clerk of the 

United States Court of Appeals for the Fifth Circuit that the case 

of Gary W. v. State of Louisiana has been placed on the oral argument 
  

docket of the Court of Appeals. 

In view of the fact of the pendency in Gary W. in the Court 

Of Appeals and of the fact that this Court will have jurisdiction in 

the future to enter such Order or Judgment or issue such process as 

might be necessary to enforce its Judgment of December 4, 1978, De- 

fendants submit that the last substantive paragraph of said Judgment 

of December 4, 1978 should be stricken. 

Respectfully submitted, 

A. F. SUMMER, ATTORNEY GENERAL 

STATE OF MISSIsSsirri 

PETER M. STOCRETT, JB. 

ASSISTANT ATTORNEY GENERAL 

STATE OF MISSISSIPPI 

. \ + i <= fo 4 em 

BY a > { Af AR Va i [i A Va 

STOCKETT} JR. 
  

PETER M. [||c30f3a3f-f0b1-41f5-85fc-38555dec1dfe||]