Brief for Defendants-Appellants

     [||7ff6ee64-1f0b-4825-a32e-7922b5bb17b7||] IN THE UNITED STATES COURT OF APPEALS 

POR THE ‘PIFTH CIRCUIT 

  

X00. 76-1865 

  

DELORES NORWOOD, ET AL 

PLAINTIFFS-APPELLEES 

Vv. 

D, 1... HARRISON, SR., ET AL 

DEFENDANTS-APPELLANTS 

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

  

BRIEF FOR DEFENDANTS~-APPELLANTS 

  

A. F. SUMMER, ATTORNEY GENERAL 

STATE OF MISSISSIPPI 

PETER M. STOCKPETT, JR. 

SPECIAL ASSISTANT ATTORNEY GENERAL 

POST OFFICE BOX 220 

JACKSON, MISSISSIPPI 

ATTORNEYS FOR DEFENDANTS~-APPELLANTS 

 



  

I3pey 

QUESTIONS PRESENTID ov fv vin ranges we B87 es gin 

STATEMENT OF THRE CASE | oJ cabo sia ds Navas 

PROCEDURAL HISTORY eT ie a ee De ie i 

ARGUMENT. ls ah aie le vise oy a i ins 

TX. 

  

RECOVERY OF ATTORNEYS' FEES AND COSTS 

OF COURT IS BARRED BY THE IMMUNITY OF 

THE STATE OF MISSISSIPPI TO SUIT AND 

JUDGMENT. 

A. The Eleventh Amendment and Hans v. 

Loutsiaena, 134 U.S. 1, as interpreted 
by the Supreme Court in Edelman v. 
Jordan, 413 U.8. 631 prohibits the 
imposition of attorneys' fees and 
Cogte dn this case. . . . vite giant 

B. Attorneys' fees or court costs a- 
gainst a state cannot be imposed 
under. the "ancillary effect” lan~ 
guage in Fdelman. +. we D8 ass, 

THE DISTRICT COURT ERRED IN HOLDING 
THAT § 718 OF THE EMERGENCY SCHOOL 
AID ACT, 20 U.S.C. 1617, MANDATED THE 
AWARD OF PERS AND COSTS. vv iv vinnie 

A. Congress, in enacting §718 of the 
Emergency School Aid Act, did not 
intend to provide for the awarding 
of fees and costs against funds of 
a state, especially in the situation 
involved in this case. ' . . Lio. . 

10. - 

ig 

23 

No
 

18 

22 

29



  

B. §718 of the Emergency School Aid Act 
is uneongtiturional 4Ff lt is inter- 
preted to mandate the payment of attor- 

neys' fees from the funds of an un- 
CONSENtIiNng StALS es 'v vw. so wiv so oineiie 

711. THE STATE OF MISSISSIPPI IS AN ABSENT 

INDISPENSABLE PARTY TO THIS LITIGATION. 

CONCTLUSTON « viel vo me siiimis Sn icin ns dinies gitatin ow 

CERNIDICATE ov wiv 3 iv ie teal oi leiTe a feli atiy 

21. 

  

 



  

TABLE OF CASES 
  

Accord, Taylor v. Perini, 5063 F.24 899, 
901; :905 (6th Clr. 1978) ', . . vi vi viies 

Alyeska Pipeline Service Co., v. The 
Wilderness Society, _ U.S. 44 1L..F4 24, 

141 (1975) oie miiie iw iene BT Tra ee 

Arkansas v.. Pennessee, 246 U.S. 158, 176, 
38 S.Ct. 301, 62 LBA. B38 vu. .v "0 ‘ve 2 ia 

Bitzer v. Matthews, NO. 75-283 vs oi in wei 

Clork v. Barnard, 108 U.S. 436, 447, 2 5.Ct. 
878, 27 L.BA 780 + o indie ne cai whens ie 

Class v. Norton, 505 F.2d 123 (2nd Cir. 1974) 

Cohens v. Virginia, 6 Wheat (19 U.S.) 264, 
5B Le BA 257 vii iv uid ae ie Cee a ie 

Durfee v. Duke, 375 U.S. X06, 115; 
B48. Ce.» 242, 11 LBA 28 186 . . vitereie. 

Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 

1347, 39 L.BA 28 662 uv vo ivi. ieimiiniiin nite 

Ex Parte Young, 209 U.S. 123, 28 8.Ct. 441, 

2 LBA 708 oe ee er eer ee Gate 

Fairmont Creamery Co. v. Minnesota, 
275. 0.8.70, 47 8 Ct... 506, 7% L:E4..893 . . 

Fitzpatrick v., Bitzer, 317 ¥.2&4 559, 
B73 (208 Cir. 3978) .. ov sv vinnie se duis 

Ford Motor Co. v. Department of Treasury of 
the: State of Indiana, 323 U.S. 459, 65 S.Ct. 
347, 89 L.EQ 3B: ¢ v idie sie ino nin sek nie 

74%] 

PAGE 

  

15 

i7, 

18, 

16 

22 

21 

 



  

Gates p. 

Feb 3, 

Collier, 
1976). 

Gates v. Collier, 

Gates vv. Collier, 

aff'd, 
reh. 

{5th Cir. 1975) . 

».Supp. 

37). F. 
439 P.24 298 

en banc granted, 

522 P.24 81 

Supp. 

{5th Cir. 

ag {(N.D. Miss. 

(35th Cir. 

1368 
1973) pet. 

500 ¥.24:1382 

1572) . 

{(N.D. 

Gates v. Collier, No. 76-1549 . + 

Great Northern Life Ins. 
322 U.S. 47, 
112). ose 

Hallmark Clinic v. North Carolina Department of 

50-51, 

  

Hum. Res. ,»519 ¥.24 1315, 1317 
{4th Cir. 1975) iia el aay ee ee . 

Hans v. Loutetana, 134 U.8. 1, 18°8.Ct. 504, 
33 LBB. 842 Se he Ne as ee a ae 

Jordan v. Pusori, 496 ¥.24 646 {2nd Cir. 1974) 

Jordan v. Gilligan, 500 ¥.24 701, (6th Cir. 
1974), cert. denied, 421 U.8. 991 i i o« a's 'o 

Murgia v. 
Retirement, 
1974}, 

Named Ind. Mem., 
Texas Buy. Dept., 

1974) cert. denied,   

Northeross v. 

412 U.8. 427, 

Norwood v. 

874). (ieee, 

Norwood v. Harrison, 
{(N.D. Miss. 1972) 

Norwood v. Harrison, 
723 $1973) iain 

340 F.Supp. 1003, 

64 
Co. 

S. 
v. 

Ct. 

Commonwealth of Mass. 
386 P.Supp. 

Judgment aff'4 421 U.S. 
179, 

420 U.S. 

93 S.Ct. 

° 

413 U.S. 

iv. 

2201, 

San Antonio Con. 

496 F.24 1017 

926 

455, 

Bd. 
182 

972 

Read, 
873, 

of 

88 L. Ed. 

(D. Mass. 

Ld 

Soc. 

{5th Cir. 

y 

Memphis Board of Education, 
37 L.Ed. 

37 L.E4. 
a 

2d 48 

Miss.) 

for 

Harrieon, 382 F.Supp. 921 (N.D. Miss. 

PAGE 

  

20 

11 

13 

15 

16 

15 

29 

10 

 



  

Pardon v. Alabama Docks Department, 

Petty v. Tennessee-Missouri Bridge Com., 
359 U.S. 275, 276, 79 S.Ct. 785, 

3 L.Ed. 24 804 

Provident Bank & Trust Co. v. Patterson, 
390 U.S. D2, 88 .5.Ct. 733, 18% L.E4. 

Sehutten v.: Shell 011 Co., 42) P.24 569 
{58h Cir. 1070) « silva wie: a0 

Shields v. Barrow, 17 How. 130, 15 L.E4. 

Skehan v. Bd. of Trustees, 501 F.24 31, 

Souza vv.  Travieono, 512: F.24 1137 
{ISt Clive 975) oo afb ieiviinin Tae 

Vargas v. Trainor, 508 F.2d 485, 491 
(76h Clr. 1972) is ov oiurs nis te 

Western Union Telegraph Co. v. Pennsylvania, 
3683 U.S. 71, 75, 82 s.Ct. 199, 7 L.E4. 

OTHER AUTHORITIES: 
  

Unitted States Constitution +. + « 

  

LJ 

28 139 

 



  

® IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIQCUIY 

    

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DELORES NORWOOD, ET AL 

PLAINTIFFS-APPELLEES 

Ve. 

D. L., HARRISON, SR., ET AL 

DEFENDANTS~-APPELLANTS 

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

  

BRIEF FOR DEFENDANTS-APPELLANTS 

  

QUESTIONS PRESENTED   

The legal and constitutional question presented 

by this appeal are as follows: 

l. Was an award of attorneys' fees and costs 

against funds of the State of Mississippi barred by the 

states immunity to suit or judgment? 

 



  

» 2, Did the district court ery in holding that 

3 the award of fees and costs is mandated by §718 of the Emer- u 

gency School Aid Pa 20 UBC. 8168117." 

3. Is the State of Mississippi an absent 

indispensable party to the litigation? 

 



  

STATEMENT OF THE CASE   

1 This is an appeal from the order of the district 

court of March 2, 1976 awarding counsel for the plaintiff 

$23,852.00 as attorneys' fees (522,102.00 to Melvyn R. 

Leventhal, $1,750.00 to James M. Nabritt, II1), and $4599.44 

taxable costs incurred by plaintiffs, to be paid by "the 

members and Executive Secretary of the Mississippi State 

Textbook Purchasing Board, and their successors in office, 

vin edn thelr Official Anni (PR. pp. 107). This 

order was accompanied by a memorandum opinion (R. pp. 68- 

106) which elucidated the reasoning of the district court 

in making this award. 

The district court found that such an award 

was not barred by the Eleventh Amendment to the constitution 

of the United States as explicated by the Supreme Court of 

the United States in Edelman vo. Jordan, 415 U.S. 651, 94. 8S. 

Ct. 1347,:39 1... BEd. 28. 662. {R. pp. 70-72) The district 

court attached to its memorandum opinion, and incorporated 

therein, its memorandum opinion in the case of Gates v. Collier, 

P. Supp. = , (XN, D. Miss. Peb. 3, 1974). "The digtrict 

court, in its Gates opinion dealt at some length with the 

Eleventh Amendment issue (R. pp. 94-103). The district court 

also held that §718 of the Emergency School Aid Act, 20 U.S.C. 

 



  

§1617, mandated the awar fees and costs. 

68, 72-81) 

On March 17, 1976, defendants appealed 

of the district court awarding attorneys' fees and cos 

(Supp. R. 170) 

 



  

PROCEDURAL HISTORY 
  

On October 9, 1971, plaintiffs, black parents of 

public school students in Tunica County, Mississippi filed 

a class action complaint challenging the constitutionality 

of Miss. Code Annotated §6634 et seq. (1942), a statute 

providing for the state's distribution of free state-owned 

textbooks to all school children in all elementary and 

secondary grades in Mississippi, whether attending public 

or private SE Ty SR as defendants were the executive 

secretary and members of the Mississippi State Textbook 

Purchasing Board. The complaint was addressed particularly 

» to the statute's effect in providing state-owned textbooks 

to students attending schools alleged to be all-white or 

schools having racially discriminatory admission policies. 

(R. pp. 1-5) Since the complaint sought to enjoin enforce- 

ment of a statute of apparent statewide application a three 

judge court was convened which upheld the Act's constitu- 

tionality. / Jorvooed ve Harvisorn, 340 F. Supp. 1003 (MN. D. 
—f 

Miss. 1972) (three-judge court). 

On appeal, the Supreme Court of the United States 

reversed, holding that the Equal Protection Clause forbade 

direct or indirect state aid to private segregated schools, 

irrespective of the purpose of the assistance or whether 

 



  

the state aid gave any appreciable support to the main- 

tenance of segregated education. Norwood v. Harrison, 9g 

In
Y 413 0.8. 455, ‘37 L,. B84. 24 723 (1973). "Recognizing that 

all private schools in Mississippi could not be presumed 

guilty of racial discrimination, the Court remanded with 

instructions to the district court to determine, on a 

school-by-school basis, the eligibility wel nen of private 

schools in the State to receive continued state textbook 

aid. 

After remand, the three-judge court was dissolved 

and the case remanded to a single judge of the district court 

to establish an appropriate certification procedure. Pur- 

suant to the supreme court's directive, the district court 

conducted a school-by-school eligibility examination, com- 

pleting the process in Norwood v. Harrison, 382 F. Supp. 

921 (N.D. Miss. 1974). Immediatly thereafter, plaintiffs 

filed their motion for an attorneys' fee award and submitted 

their itemized cost bill. (R. p. 47, 60-63) Plaintiffs’ 

attorneys submitted affidavits in support of their motion 

for award of attorneys' fees. (R. pp. 52-59, 64-66) The 

district court deferred ruling on the motion for award of 

attorneys' fees and the taxing of costs because the constitu- 

tionality of a similiar award was pending before this court, 

 



  

9 NAL, nt 

Gates 2. Collier, 37% ¥. Supp. 1368 (XN. D. Miss.) aff’4g, 

48% TF. 3&8 298 (5 Cir. 1973), vet. for reh. en banc granted, 

500 'F. 24 1382 (5 Cir. 1975) This court remanded Gates to 

——— 

the district court for further consideration in light of 

Edelman, supra and Alyeska Pipeline Service Co. v. The 

Wilderness Society,  _U.8. , 44 L. Ed. 24 141, (1975). 

Cates v. Collier, 522 7. 28 .81,:(5 Cir. 1975} (en banc). 

After remand by this court in Gates, the parties 

in the case sub juduce, submitted a brief to the district 

court on the relevant issues, and that court on March 2, 

1976 entered the order from which this appeal is taken, 

awarding counsel for the plaintiffs, attorneys' fees in 

the sum of $23,852.00 and taxable costs in the sum of 

$4,999.44, to be paid by "the members and Executive Secretary 

of the Mississippi State Textbook Purchasing Board, and 

their successors in office, « +.» intheir official capacity”. 

(R. p. 107) This order was accompanied by a memorandum 

opinion (R. pp. 68-106) which set forth the district court's 

reasons for entering this docket. 

Defendants appealed the district court's award 

of fees and costs. (Supp. R. p. 107) 

 



  

Du Mma 
  

  

ARGUMENT 

rr—y 

{ The recovery of attorneys' fees and costs of 

court is barred by the immunity of the State of Mississippi + 

to a monetary judgment, as embodied in the Eleventh 

Amendment and the decision of the Supreme Court of the 

United States in Hans v. Louisiana, 134 UV.8. 1, 108. Ct. 

504,33 L. Ed. 842. | Such an award of attorney's fees 

and court costs will have direct fiscal impact on the funds 

of the State of Mississippi. The order of the district 

court awarding attorneys' fees was therefore in excess of 

its jurisdiction and must be reversed. This onciusion 

is compelled by Edelman v. Jordan, 415 U.S. 651, 94 S. Ct. 

1347, 39 L. Ed. 662 as interpreted by decisions of several 

circuits. Those decisions holding to the contrary have 

misinterpreted Edelman v. Jordan, and have attempted to 

evade the immunity Dog by labeling an award of attorneys’ 

fees and costs as 20 Yaneiitavy effect on the state 

treasury" ,/ 

| Defendants also submit that the district court 

erred in holding that § 718 of the Emergency School Aid 

Act 20 U.S.C. 1617 mandated the award of fees and costs. 

This contention is based upon two separate and independant 

premises: (1) That congress, in acting the statute, did 

 



  

  

NL [not intend fto provide for the awarding of fees and costs 
al 

against funds of a state especially in the situtation in- 
-   

  

volved here where state officials fairly and non-discrima- 

torily enforced a state stutute which they had reason to 

belleve was valid and constitutional;/f{(2) if congress 

did in fact intend for 20 U.8.C. 1617 to' apply £0 the 

facts and circumstances involved in the case sub juduce, 

then such statute is/ unconstitutional./ The relevant cases 

hold that only the state can waive its immunity to suit 
——— —————— — 

or judgment, either explicitly by the terms of a legislative 

Ri ai uit 1 1 by a courge of conduct. The hay 

Federal government has no power to waive the immunity of 

  
  

  

  

» the State of Mississippi, just as the State of Mississippi 

has no power to waive the immunity of the United States. 

 



  

I. 

RECOVERY OF ATTORNEYS' FEES AND COSTS 

OF COURT IS BARRED BY THE IMMUNITY OF 

THE STATE OF MISSISSIPPI 70 SUIT AND 

JUDGMENT. 

A. The Eleventh Amendment and Hans v. Louisiana, 
  

134 U.S. 1, as interpreted by the Supreme Court 
in Zdeliman v. Jordan, 415 U.8. 651 prohibits 

the imposition of attorneys' fees and costs in 
this case. 

  

  

  

  

The Eleventh Amendment to the United States 

Constitution, ratified in 1798 and unchanged since, pro- 

vides: 

The judicial power of the United 

States shall not be construed to 
extend to any suit in law or equity 
commenced or prosecuted against one 
of the United States by citizens of 
another state, or by citizens or sub- 

jects of any foreign state. 

While the amendment does not bar suits against a state by 

its own citizens, the United States. Supreme Court has con- 

sistently held that an unconsenting state is immune from 

suits brought in federal courts by her own citizens as well 

as by citizens of another state, Hans v. Louisiara, 134 U.S. 

1, 108. C+, 504, 33 1,. Bd. 842, In the instant case, 

though the State of Mississippi was not named a defendant, 

any monetary award for attorneys' fees and costs of court 

will obviously not be paid out of the pocket of defendants, 

but will have a direct impact on the funds and fiscal manage- 

ment of the State of Mississippi. The order of the district 

 



  

court of March 2, 1975, from which this appeal is taken, 

specifically provides that the money judgment for attorneys’ 

fees in the amount of $23,852.00 pavable to plaintiffs’ 

counsel, and $4,999.44 as taxable costs be assessed against 

"the members and Executive Secretary of the Mississippi 

State Textbook Purchasing Board and their successors in 

office; ... in their official capacity". This money judgment 

against State officials in their official capacity clearly 

runs against the State of Mississippi. State funds, not 

money of the individual defendants, will be used to pay 

such money judgment if it is ultimately enforced. The 

money judgment entered by the district court is a judgment 

 B against the State of Mississippi, and is barred by the State's 

immunity to suit or judgment. See Great Northern Life 

Insurance Co. v.uRead, 322 0.8.47, 50~51,-6%4 8. Ct. 873, 

88 YL. £4. 1121. 

The Supreme Court has reviewed its decisions 

relating to the immunity of the States to monetary judgment 

in Zdelman vu. Jordan, 415 0.8. 631, 94 8S. Ct. 1347, 391. 

Bd. 28. 662. In Fdelmar, plaintiffs had originally filed 

suit in United States District Court for the Northern District 

of Illinois, seeking declaratory and injunctive relief 

against two former state officials and two officials of Cook 

County, Illinois, alleging that the officials were improperly 

 



  

administering the federal-state programs of Aid to the 

Aged, Blind and Disabled. The district court held, inter 

alia, that the officials must release AABD ben=2fits which 

had been wrongfully withheld. Illinois appealed to the 

United States Court of Appeals for the Seventh Circuit, 

contending, inter alia, that the Eleventh Amendment barred 

the award of retroactive benefits. After the Court of 

Appeals affirmed the decision, certiorari was granted, in 

order to settle the Eleventh Amendment issue. 

The Supreme Court held that the retroactive pay- 

ment of benefits fromthe State Treasury was barred by the 

Eleventh Amendment. Id. at 662-669. In so holding, the 

court stated: 

'[Wlhen the action is in essence one 
for the recovery of money from the state, 
the state is the real substantial party 
in interest and is entitled to invoke 
its sovereign immunity from suit even 
though individual officials are nominal 
defendants.' Thus, the rule has evolved 

that a suit by private parties seeking to 
impose a liability which must be paid 
from public funds in the state treasury 
is barred by the Eleventh Amendment. (Ci- 
tations omitted.) Id. at 663, 

In its ruling, the court specifically distinguishes 

Zw Pave Young, 209 0.8. 123,: 28 8. Ct. 44), 52 L. Fé. 714: 

But the relief awared in Ex Parte Young   
was prospective only; the Attorney General 

of Minnesota was enjoined to conform his 
future conduct of that office to the require- 

 



  

ment of the Fourteenth Amendment. 
Such relief is analogous to that 
awarded by the review in this case. wr 

But the retroactive portion of the 
District Court's order here, which 

requires the payment of a very sub- 

stantial amount of money which that 
court held should have been paid, but 
was not, stands on quite different 
footing. These funds will obviously 
not be paid out of the pocket of pe- 
titioner Edelman. Id. at 664. 

The court also held that a monetary award against 

a state officer does not evade the Eleventh Amendment bar 

by labeling such award "equitable restitution." Id. at 

665-666. Further, the Supreme Court held that the State of 

Illinois did not waive the Eleventh Amendment bar or con- 

SS sent to be sued because it had participated in the federal 

AABD program... Id. at 671-677. 

Defendants submit that the rationale of Edelman 

applies to the money judgment for attorneys' fees and costs 

of court from which this appeal is taken. There is no doubt 

as in Edelman, that the State will be held accountable for 

such an award. Such a award would have direct impact upon 

the funds and fiscal management of the State of Mississippi. 

it is clear from a reading of Bdelman that the 

primary requirement of federal court relief granted against 

officers or agents of the State in their official capacity 

is that relief be prospective in nature. ' Retroactive re- 

 



  

lief, which would have a monetary impact on the state, is 

1 Clearly prohibited. The terms "prospective" and "retro- 

have no meaning or concrete application unless 
pi Evol 1 

active" 

applied to a fixed point of reference, or a specific date. 

Logic, common sense and the holding of relevant court de- 

cisions all compel the conclusion that the relevant date 

or fixed point of reference in determining prospectivity 

is the date of the entry of the court order. This is 

illustrated by the facts in fdelman, in that the date of 

the preliminary injunction issued by the district court 

(April 16, 1971) was the date which the Supreme Court held 

to be the cut-off’ point between permissable prospective 

» relief and impermissable retroactive relief. The Seventh 

Circuit, which might be adanodl to be acutely aware of the 

meaning of the opinion of the Supreme Court in reversing 

it in Edelman, has subsequently stated this principle quite 

explicitly. See Vargas vu. FPrainor, 508 7. 24 485, 491 

{7th Ciy. 1974). 

Applying this test to the case sub judice, it 

is clear that the monetary relief granted by the district 

court against the State is retroactive in nature. The 

order of the district court on the merits of the litigation 

was entered on July 12, 1974. The entire award of attorneys’ 

fees and costs made by the district court is based on services 

 



  

rendered by plaintiffs' counsel from the commencement of 

the sult in 1870 to the July 12, 1974 order and judgment 

Of the Court and 'on a bill of costs filed inithe district 

court August 19, 1974 which reflects that the most recent 

- 

date upon which itemized costs were incurred was April 3, 

1974. : 

The monetary relief granted by the district 

court was retroactive in nature and barred by the State's 

immunity to the suit or judgment. 

It has been held that the Fdelman decision com- 

pels the conclusion that the Eleventh Amendment bars the 

recovery of attorneys' fees against a state. Jordan v. 

Gilligan, 500 F24. 70) (6th Cir. 1974), cert. denied, 421 
  

U.8.:991., Aceord, Taylor v. Perini, 303 7.28. 899%, 901, 

905 (6th Cir. 1974), vacated on other grounds at 421 U.S. 

982; SBkehan v. Board of Tvrustees, 501 P.24 31 (1574), 

vacated on other grounds at 421 U.S. 983; Named Ind. Mem., 

San Antonio Con. Soe¢. v. Tewas Bvwy. Dept., 496 P. 24 1017 

{5th Cir. 1974), cert. denied, 420 U.8. 926; Hallmark Clinic   

Qe. North «Covoling Dept. of Bum. RBes., 319 %., 24.3315, 1317 

(4th Cir. 1975, Significantly, the Supreme Court has sum- 

marily affirmed a decision of a three-judge district court 

in the First Circuit which denied an award of attorneys’ 

fees both as a matter of law (on Eleventh Amendment grounds) 

 



  

and discretion. Murgia v. Commonwealth of Mass. Bd. of 

Retirement, 386 F.Supp. 179, 182 (D. Mass. 1974), judgment 

affirmed, 421 U.S. 972. 

The Supreme Court of the United States has co- 

gently stated the principle that monetary judgments against 

a state, or judgments to be paid from funds of the state, are 

impermissable as against a non-consenting state. In Ford 

Motor Co. v. Dept. of Treasury of the State of Indiana, 

3230.5. 459, 65 8.Ct.” 347, 89 L.Ed. 399, the Supreme Court 

stated: 

And when the action is in essence one 
for the recovery of money from the state, 
the state is the real, substantial party 

Ww in interest aNdis entitled to invoke its 
sovereign immunity from suit even though 
individual officials are nominal defendants. 
(323 U.S. at page 464.) 

If we substitute the word "judgment", for the 

words "action" and "suit", we have the case sub Jjudice. 

fin this case, the State of Mississippi was not sued, and 

has never been made a party to the litigation, but a money 

judgment has been entered against its funds. | This effort 

to circumvent the state's immunity to suit or judgment was 

forseen and dealt with by those who framed, proposed and 

ratified the Eleventh Amendment, which prohibits Federal 

jurisdiction to anv suit "commenced or prosecuted against Y 
  

one of the united states". (Emphasis added) This court should 

 



  

forthrightly overturn the judgment entered by the district 

court which is being prosecuted against the State of Mississippi. 

As to the taxing of court costs against the 

State of Mississippi, the argument has been made that 

this is sanctioned by the Supreme Court in Fairmont Creamer; 

Co. Vv, Minnesota, 275 U.8..70, 47 8.0. 506,-71 %.. 24. 8393. 

While it is quite true that in Fairmont, supra, 

the Supreme Court held that costs could be taxed against 

Minnesota, it is noteworthy that in that case there is no 

mention of the Eleventh Amendment. Fairmont involved re- 

view of a state court decision affirming a criminal convic- 

tion. The Eleventh Amendment was not discussed because it 

had no possible application. The amendment speaks only 

to suits "commenced or prosecuted against one of the united 

states. . . ." It does not reach a prosecution commenced 

by the state itself. A state cannot insulate itself from 

review of its criminal convictions, when they are attacked 

on federal constitutional grounds, by arguing that under 

the Eleventh Amendment the Supreme Court has no jurisdiction. 

This much has been settled since the landmark case of 

Cohens v. Virginia, B VWheat, {19 0.8.) 264, 5 L.Ed. 257. 

Unlike Fairmont Creamery, the civil suit in the instant case 

was commenced against Mississippi officials. 

 



  

On April 20 and 21, 1976, the Supreme Court 

heard oral argument in the case of Bitzer v. Matthews, 

No. 75-283. The principal issue involved in that case is 

whether the Eleventh Amendment prohibits an award of 

attorneys' fees against the defendant state officials 

because those fees are to be paid out of the state treasury. 

The decision of the Supreme Court in Bitzer will be rele- 

vant to the merits to this appeal and may be dispositive 

thereof. 

B. Attorneys' fees or court costs against a state 

cannot be imposed under the "ancillary effect" 
language in Edelman. 

  

  

  

Defendants recognize that some circuits have 

taken the position that an award of attorneys' fees is 

permissible, on the grounds that such an award has only 

an "ancillary effect on the state treasury" resulting from 

compliance with the order of injunctive relief. Fitzpatrick 

v. Bitmer, 517 F.2d 559, 571 (2nd Cir. 1975): Jordan wu. 

Fusari,496 ¥.24 646 (2nd Cir. 1974); Class v. Norton, 505 

F.24 123 (2nd Cir. 1974)» Bouzga iz. Travisono, 512 F.28 1137 

(lst Cir. 1975), remanded on other grounds,  . U.S. ’ 

S.Ck. , 44 U.S.L. Week 3198-3199. However, an analysis 

of Edelman does not support the conclusion of these circuits. 

The Supreme Court in Edelman did not leave at large what was 

meant by the phrase "ancillary effect". 

 



  

The phrase comes at the end of a paragraph at 415 U.S. 667- 

668 in which the Court discusses Ex Parte Young, supra, 

as well as two of the Court's more recent welfare cases, and 

notes that the decrees in those cases would have an effect 

on the states! funds. "Bul," the Court stated, "the fiscal 

consequences to state treasuries in these cases were the 

necessary result of compliance with decrees which by their 

terms were prospective in nature." 415 U.S. at 667-668. 

This is the “ancillary effect” that the Court described as 

permissable. 

In the next paragraph, the Court distinguished 

the decree it was reviewing from those it had referred to: 

It requires payment of state funds 
not as a necessary consequence of com- 

pliance in the future with the sub- 
stantive federal-question determination, 
but as a form of compensation to those 
whose applications were processed on 
the slower time schedule at a time 
when petitioner was under no court imposed 
obligation to conform to a different 
standard. 415 U.S. at 658. 

It can hardly be argued that an award of attorneys’ 

fees can be classified as a "necessary consequence of com- 

pliance in the future with a substantive federal-question 

n" 

Aetermination. «ss 

The district court in the case sub judice, in 

its Memorandum Opinion accompanying its order awarding 

 



  

v attorneys' fees and costs against the State of Mississippi, 

attached thereto a copy of its Memorandum Opinion in 

Gates v, Collier, FPF. Sup {(N.D. Miss,, Feb. 3, 

1976) ,1 which explicated its reasoning on the "ancillary 

effect” issue in the following language: 

Edelman reaffirmed that federal 
courts may lawfully direct relief 
which necessarily requires the ex- 
penditure of state funds, where 

such outlays are considered "ancil- 
lary” to the brincipal thrust of the 
litigation. No case could better 
illustrate this principal than this 
litigation affecting the Mississippi 
State Penitentiary. We have in our 
earlier orders granted relief which 
has required, and will continue to 
necessitate, the expenditure of 

substantially increased appropri- 
EE ations by the State to eradicate 

unconsitutional conditions at Parch- 
man. Such relief, the consitutionality 

of which has been finally upheld on 
appeal, has impact of such magnitude 
on the state fisc as to dwarf the award 
at issue today. 

In contrast, the constitutional pro- 
blem with the monetary claim in Edelman 
was that it provided a substantial por- 
tion of the raison d'etre of the lawsuit. 
Indeed, Edelman was conceived and pro- 
secuted as an action against the state 
treasury from the very beginning. In no 

  

  

1/ Defendant state officials have appealed the judgment 
in Gates awarding attorneys' fees and costs to this 
Court, Gates pv. Collier, 5 Cir. No. 76-1549, 

 



  

® sense could the retroactive payment of 
welfare benefits to the plaintiffs, by 
whatever name called, be said to be 

ancillary to the principal purpose of 
5.3 
the principal purpose of the litigation. 

It is apparent on which side of the 
Edelman line fall the attorneys' fees 
and costs before us today. This action 
was brought to seek injunctive and de- 
claratory relief from unconstitutional 
state actions; it was not an attempt to 
secure monetary damages for inmates. 
See Edelman, supra, 415 U.S. at 663. 
Likewise, plaintiffs' attorney fee claim 
is not a suit for money damages "mea- 
sured in terms of a monetary loss [to 
the Plaintiffs] resulting from a past 
breach of a legal duty on the part of 
the defendant state officials." Edelman, 

supra, 415 U.S. at 668. No claim for 
attorneys' fees or expenses existed at 
the commencement of this action, and neither 

element constituted the primary relief 
R 4 sought. Plaintiffs could not have invoked 

| this court's power to enjoin future il- 
legal conduct without incurring the 
expenses of costs and attorneys' fees. 
Fitzpatrick v. Bitzer, supra note 3, at 

571. Equally obviously, these expenses 
could not have accrued had the action not 
been brought. 

  

The attorneys' fees and costs here 
are therefore expenses incidental to 
this litigation seeking 'decrees which 
by their terms are prospective in nature." 
Edelman, supra, at 668. They "represent 
a cost achieving compliance with pro- 
spective decrees" as surely as do the 
substantive decrees we have already issued. 
They cannot in any way constitute a com- 
penpensatory award for past wrongs to the 
Plaintiff inmates, who are proceeding 
here in forma pauperis, and who will 
not receive any benefit, direct or in- 

direct, from such an assessment. Indeed 

 



  

the Supreme Court has already held 
that the Eleventh Amendment is no 

bar to an assessment of court costs 

it made such an award in Fairmont 

Creamery Co. v. Minnesota, 275 U.S. 
70, 72 L..F4. 168 {18 ) 

mentioned by Edelman. (R. p. 100-101) 

  

  

Defendants contend that the court below erred 

in confusing the alleged ancillary purpose of the litigation 

with the ancillary effect to its order upon the fiscal 

affairs of the state. The supreme court in Edelman mentioned 

nothing about the ancillary motive or purpose of the 1liti- 

gation being determinative of whether relief against the 

state is permissable. 

As to the effect on the Treasury of the State 

of Mississippi, it is difficult to imagine a more primary 

direct effect than the entry of a judgment in the sum of 

$28,851.44 payable by "the members and Executive Secretary 

of the Mississippi State Textbook Purchasing Board, and their 

successors in office. . . '. in their official capacity". 

 



    

IY. 

THE DISTRICT COURT ERRED IN HOLDING 

THAT §718 OF THE EMERGENCY SCHOOL 

AIpaCY, 20 U.8.C. 1617, MANDATED 

THE AWARD OF FEES AND COSTS. 

Congress, in enacting §718 of the Emergency 
  

Scnoot Ald ACE, UiG NOE heen to provide Tor 
  

the awarding of fees and cost against funds of 
  

a state, especially in the situation involved 
  

in this case. 
  

The sole and only basis of the district court 

for awarding attorneys' fees and costs against funds of 

the state is §718, which appears in the United States code 

as 20 U.9.C. 81617 provides as follows: 

"Upon entry of a final order by a court 
of the United States against a local educa- 
tional agency, a State (or any agency there- 

of), or the United States (or any agency 
thereof), for failure to comply with any pro- 
vision of this chapter of for discrimination 
on the basis of race, color, or national 
origin in violation of Title V1 of the Civil 
Rights Act of 1964, or the Fourteenth Amend- 

ment to the Constitution of the United States 
as they pertain to elementary and secondary 
education, the court, in its discretion, upon 
a finding that the proceedings were necessary 
to bring about compliance, may allow the pre- 
vailing party, other than the United States, 
a reasonable attorneys' fee as part of the 
costs.” 

The court below found that it had entered a 

final order against a state agency based on discrimination 

 



  

practiced by the defendants in violation of the Fourteenth 

Amendment. Defendants submit that the district court 

erroneously applied this statute in deciding this case. 

In interpreting the intent of Congress in 

enacting this statute, the district court resorted to its 

legislative hisotry. (R. p. 76-78) In footnote 5 of 

it's opinion (R. p. 78), the district court jusified 

reliance on the legislative history in the following 

language: 

"Although '[s]tatements by individual 

members of legislature as to the mean- 

ing of provisions in a bill subsequently 

enacted into law, made during the general 

debate on the bill on the floor of each 

legislative house following its presenta- 

tion by a standing committee, are generally 

held not to be admissable as aids in con- 

truing the statute . ., .  [tlhis. rule has 

been modified to permit consideration of 

explanatory statements by the sponsor Of a 

bill, or by the member of the standing 

committee who is in charge of its presenta- 

tion to the legislative house and leads 

the debate thereof. . . . Statements made 

by individual legislators during floor 

debates are also considered, along with 

information about contemporary conditions 

and events, when they tend to establish 

what problems or evils the legislature 

was undertaking to remedy by the statute 

being construed.'" 2A Sands, Statutes and 

Statutory Construction § 48.13-at 216-17 

(4th ed. 1973). 

Defendants agree that it will be most informative 

and useful to examine the relevant legislative history in 

 



  

order to ddtavuinel “hat problems or evils the legislature 

was undertaking to remedy." J 

The House version of the Emergency School Aid 

Act contained no attorney fee provisions. (1972 U.S. Code 

Cong. and Admin. New 2668.) In the Senate, Senator Mondale 

succeeded in having the Senate Committee adopt a provision 

that authorized the appropriation of Fifteen Million Dollars 

$15,000.000.00) in Federal funds to pay attorneys' fees to 

prevailing parties in school discrimination cases. This 

provision was the same as the one ultimately adopted. Except 

it provided that the United States should pay the attorney 

fees, not the losing party. 2 On April 19, 1971, Senator 

Dominick offered an amendment to strike §11 of the Bill, 

which was the provision for Federal payment foe attorney 

fees. There was a very brief debate on that date. On 

April 21 the debate resumed on the Dominick Amendment, 

and Senator Cook joined in the debate and made the point 

that Federal funds should not be used to pay lawyers' 

fees in school discrimination cases where the United States 

was not at fault, but that the losing parties in such 

litigation, being the local school districts should have 

to pay such attorney fees.> The Dominick Amendment to 

  

See individual views of Senator Dominick found at 117 Cong. 
Rec. 10,747-10748. ® i 

117 Cong. Rec. 11,341-11342 

 



  
4 4 

strike the provisions for Federal payment of attorney 

fees was adopted by a vote of 47 to 38 on April 21. 

117 Cong. Rec. 11345. On April 22, Senator. Cook introduced 

his amendment, which was adopted by the Senate, accepted 

by the House, and enacted into law. There was debate 

on the Cook Amendment on April 22 and April 23, after a very 

brief additional debate, the Cook Amendment was adopted 

4 
by a vote of 30 to 24. This is not a civics textbook 

example of how our laws should be made. The original 

Mondale proposal for Federal payment of attorney fees 

presented no constitutional problems, because Federal funds 

would pay the fees, and that a financial burden would not 

be placed upon unconsenting states or agencies thereof. 

Acting in great haste, and with little thoughtful consideration, 

the Senate revised this proposal into one which would ap- 

parently compel non-consenting states and their agencies 

to pay those attorney fees. Counsel for defendants is unable 

to find any discussion or mention in the debates on the 

Cook Amendment as to any legal or constitutional problems 

in casting this financial burden upon the states. f 
-— 

It is instructive to consider the remarks of 

Senator Mondale in stating the reasons why an attorney fee 

provision should be adopted: 

  

117 Cong. Rec. p. 11725 

 



  

"There have been allegations by the 
National Education Association that several 

thousand black teachers have been fired 

in the South, or demoted. I would like to 

to see lawsuits brought on that. There 
has been testimony that some schools have 
taken public property and given it away 
to segregated private academies. I would 
like to see some lawsuits on that. . . . 
Unfortunately they have not been forth- 
coming.” 117 Cong. Rec. 10,762 (1971) 

"We have had widespread reports of 
wholesale firing and demotion of blacks 
teachers. We have had reports of the 
transfer of public school property to 
segregation academies. We have had reports 
of segregation of schoolchildren by race 
in school rooms, and many other evidences 

of discriminatory practices which, in 
my opinion, clearly violate the proscrip- 
tion of the 14th Amendment." 117 Cong. 
Rec. 11339. | 

¢ E It is clear from reading the Senate debates that 

the evil which was sought to be remedied consisted of various 

acts of willful, purposeful discrimination on the part of local 

school districts and their officials. Bach of the above 

catagories of actions wag clearly discriminatory, and the 

defendant school officials who performed those actions knew, 

or should have known that such actions were discriminatory. 

These are clearly the types of cages which congress intended 

to be covered by Lt ee-shiftin 1S] of the law. 

How do the actions of defendants in the case 

sub juduce fit into this mold? The record is clear that 

the only thing done by defendants and their predecessors in 

 



  

® office was to administer in a neutral and non-discrimina- 

tory manner a Mississippi statute, enacted in 1940, for 

the loaning, without cost, of textbooks to public and 

private schools within the State. There was no reasonable 

= basis for defendants or their predecessors to believe that 

such enforcement and administration of the state statute 

was discriminatory. Indeed, the initial decision of the 

three-judge district court upheld the validity of the 

defendants' administration of the State statute. This 
——— \ 

situation 1s clearly distinguishable from the cases in | 
{ 
| 
| i 

which school officials persisted in enforcing state statutes 

compelling racial separation in the public schools after 

  

a the Supreme Court decisions in Brown I and Brown II. 

Defendants are not contending that good faith 

is a defense to the awarding of attorney fees under §718, 

but they do maintain that purposeful action with actual or 

constructive knowledge of its discriminatory impact, is 

a necessary ingredient of "discrimination on the basis of 

race, color, or national origin in violation OF iieiils 

the Fourteenth Amendment to the Constitution of the United 

States”. 

The category of situations mentioned by 

Senator Mondale relative to the transfer of textbooks to 

private schools quite nicely illustrate this key distinction. 

: NNNM~ SS TT — 

 



  

       He was referring to cases 

  

transferred property, including state owned textbooks 
aa 

    

       

  

    

td privees schools which were established to avoid the 
a — ee ————— = 

ation progress. Such action by local school 

NW RE of state law or reguldtion, 

and the persons who committed such acts were chargeable 

  

  

  

EE res of thetit 2Tlneat ras SterripiEator STERTAT, 

The conduct of the defendant in this case does 

not come within the ambit of "discrimination" as intended 

by Congress in enacting §718 of Emergency School Aid Act. 

Even if this court should disagree, the posture of defendants 

brings them within the "special circumstances" exception 

mentioned in Northeross v. Memphis Board of Education, 412 

v.85. 427, 428, 93 8. Ct. 2201, 37 L. Fd. 24 48. 

B. §718 of the Emergency School Aid Act is uncon- 
stitutional if it is interpreted to mandate 
the payment of attorneys' fees from the funds 
of an unconsenting state. 

  

  

  

  

The immunity of a state from suit or judgment 

is a privilege which it may waive at its pleasure by 

voluntary submission to suit (Clark »v. Bawmard, 108 U.S. 

436, 447, 2:8. Ct. B78, 27 1. Bd. 780), and by general 

law specifically consenting to suit in Federal courts. 

Such consent must be clear and specific and consent to 

suit in its own courts does not imply a waiver of immunity 

 



  

in Federal courts Murray v. Wilson Distilling £0. ,:213 

U.S. 1513,172,:28..8, Ct, 458, 53 L.. Bd 42; Cravens. v. Tex 

Company 298 U.8. 393, 403-404, 56 8.- Ct, 818, 80 L. Ed. 

1236. Such waiver of lmmunity must be made by the State 

either explicitly by the methods above noted, or implicitly 

through a course of conduct (Pardon V. Alabama Stat e Docks 

Deparinment, 3770.5. 184;-84 8. Ct. 1207,12 L. B&. 248 

233) 

It 1s clear that according to the controlling 

decision above cited and others that the State of Mississippi 

must have done something, either explicitly in its statutes 

or by a course of conduct, in order to effect a waiver of 

its immunity to suit or judgment. It is equally clear 

that the state in the case, sub juduce, has done absolutely 

nothing to male or effect such a waiver. If §7183 is con~- 

strued to apply to defendants in this case, it would by the 

device of the Congress of the United States undertaking 

to waive the immunity of the state. This would be no more 

constitutionally permissable than allowing the legislature 

of Mississippi to waive the immunity of the United States 

to suit or judgment. The Supremacy Clause of the United 

States Constitution, Article VI, Section 2, 1s not pertinent 

to this argument. Defendants concede the obvious, that 

the Constitution of the United States, and laws made 

pursuant thereto and all treaties made under the authority 

 



  

“ of the United States shall override any state enactments 

to the contrary. Rather, we are here discussing an 

essential attribute of an independant entity of government, 

tC make its own decision as to waiver of its immunity 

to suit or judgment. This is the corner stone of our dual 

system of government known as Federalism. 

Some highlights of controlling Supreme Court decisions 

reinforce the propositions above stated: 

Federal courts, sitting within 
states, are for many purposes courts 

OF that state, Madisonville Traction 

Co. Vv. B5t. Bernard Min. Co. 196 U.S. 
239, 255, 49 L.. Ba. 462, 468, 25 SS. 
Ct. 251, but when we are dealing with 
the sovereign exemption from judicial 
interference in the vital field of 

% financial administration a clear 

declaration of the state's intention 
to submit its fiscal problems to other 
courts than those of its own creation 
must be found. Great Northern Life 
Ina. Lo. ». Read, 322:U.85. 47, 54, 
64:S. Ct. 873, 88 IL... Ba, 112% 

These cases declare the rule that 

clear declaration of a state's con- 

sent [0 sult against itself in the 
federal court on fiscal claims is 

required. Xemmecott Copper Corp. v. 
State Tax Com.y 327 U.8.:573, 577, 

66S. Ck. 745,90. 1,. BEd. 862 

When the Court in 1793 held that a 
state could be sued in the federal courts 

by a citizen of another Statel (Chisholm 
Vv. Georgia {US) 2 Dall 419, 1 L. ed. 
440), the Eleventh Amendment“ was passed 

 



  

precluding it. But) this ls an 
immunity which a state may waive 
at its pleasure (Missouri v. Fiske 

290 U.,83.018,.24, 78 L. BE 1453, 148, 
7 

54 ‘8.°C 18) as by a general ap- 

gavance in litigation in a federal 

court {Clark v. Barnard, 108 U.S. 
236, 447%, 448, 27: L. Ba 780, 784, 

785,2.8.. Ct. 878) or hy stature, 

Ford Motor Co. v. Department of 

Treasury, 323 U.8, 459, 468-470, 89 

1. 24 389, 396, 65-8. Ct. 347. + The 
conclusion that there has been a 

waiver of immunity will not be lightly 

inferred. Murray v. Wilson Dis~- 

tilling Co. 213 U.8.-151, 171, .33 LL. 

Eq. 742, 753}, 29 8. Ct. 458. "Hor 

will a waiver of immunity from suit 

in state courts do service for a 
waiver of immunity where the liti- 
gation is brought in the federal 
court. Chandler v. Dix, 194 1.8. 
590, 5301, 592, 48 1L,, ed 1129, 1130 
131,524 8S. CL. 766.1359. 0.8. 277} 
And where a public instrumentality 
ig created with the right “to sue 
and be sued" that waiver of immunity 

in the particular setting may be 
restricted to suits or proceedings 
of a special character in the state, 
not the federal courts. Cf. Delaware 
River Joint Toll Bridge Com. v. 
Colburn, 310 U.S. 419,84 L.. Ed. 1287 
60. 8. Ct, 1039, Petty v. Tennessee~- 

Missouri Bridge Com., 359 0.8. 275, 

276, 79 SS. ct. 785; 3°... Bd. 24 804 

The decision of the Supreme Court in Parden v. 

Alabama Docks Department, supra, announced the principle 

that a state may implicitly waive its immunity to suit 

by a course of conduct. The actions taken by the State 

of Alabama in the case pursuant to a course of conduct 

 



  

X31. 

THE STATE OF MISSISSIPPI 15 AN 

ABSENT INDISPENSABLE PARTY TO 

THIS LITIGATION 

The defendants in this litigation are the members 

of the Mississippi State Textbook Purchasing Board and 

its Executive Secretary. The State of Mississippi has not 

been made a party to these proceedings. Any effort to make 

the State a party would defeat federal jurisdiction. Yet 

the order of the district court from which this appeal is 

taken enters a judgment in the sum of $28,851.44 to be 

Pal by nnSl Salmning SRNR Als panel or Signs. 
It is hornbook law that the rights, duties, 4 

obligations and liabilities of a state will not be adjudi- 

cated when the State is not a party to the proceedings. See 

Durfee uv. Duke, 375 0.8.:106, 115; 84 8S, Lt: 242, 11:4. Bd. 

24. 186, [Arkansas pv. Tennessee, 246 U.S. 158, 176, 38: S.Ct. 

301, 62 L. EA. 638, and Western Union Telegraph Company 

2. Pennsylvania, "368 U.8. 7%, 75, 82 8. Ct. 199, 7 L. Bd. 24. 

139. The court in Western Union Telegraph Company, supra, 

succinctly stated the proposition as follows: 

But New York was not a party to this 
proceeding and could not have been made 
a party, and, of course, New York's claims 

could not be cut off where New York was 
not heard as a party. - (368 U.8. at 

B.. 75) 

 



  

The above cited cases state the rule in situa- 

tions where there is reason to believe that an absent State 

would have an interest in the outcome of the litigation. 

A fortiori, this must be the rule where a money judgment 

is entered against the State who is not a party to the 

litigation. When the joinder of such an indispensable 

party would defeat federal jurisdiction the case must be 

dismissed. 

The Supreme Court of the United States and this 

court have interpreted Rule 19 of the Federal Rules of Civil 

Procedure dealing with parties, and synthesized the provisions 

of Rule 19 with the line of Supreme Court decisions relating 

to necessary and indispensable parties. 8See Provident Bank 

and “Trust Company: v.. Patterson,;::390 U.S. 102, 88 8.Ct. 733, 

19 L,.84.28. 936, and Schutter wv. Shell 01] Company, 421 7.24 

869 (5th Cir. 1970). The Supreme Court and this court made 

it plain that the line of cases beginning with Shields v. 

Barrow, 17 How. 130, 15 L.Ed. 158, dealing with necessary 

and indispensable parties is still the law, and that Rule 19 

is to be used as a guide in interpreting the principles 

enunciated by Shields and its progeny in specific cases. Rule 

19 (b) of the Federal Rules of Civil Procedure provides as 

follows: 

 



  

"Determination by Court Whenever 
Joinder not Feasible. If a person 
as described in subdivision (a) (1)- 
(2) hereof cannot be made a party, 
the court shall determine whether 
in equity and good conscience the 
action should proceed among the par- 

ties before it, or should be dis- 
missed, the absent person being thus 
regarded as indispensable. The fac- 
tors to be considered by the Court 
include: firslr, to what extent a 
judgment rendered in the person's 
absence might be prejudicial to him 
or those already parties; second, 
the extent to which, by protective 
provisions in the judgment, by the 
shaping of relief, or other measures, 
the prejudice can be lessened or 
avoided; third, whether a judgment 
rendered in the person's absence will 
be adequate; fourth, whether the 
plaintiff will have an adequate 
remedy if the action is dismissed for 
nonjoinder." (19 L.E4., p. 944) 

The very First factor mentioned in Rule 19(b), 

which takes precedence over the other factors, is "to 

what extent a judgment rendered in the person’s absence 

might be prejudicial to him or those already parties.” 

We submit that the State of Mississippi is extremely pre- 

judiced in having a judgment in the sum of $28,851.44 

entered against it without it being a party to the litigation 

which produced the judgment. This court, in Schutten, supra, 

held that the Board of Commissioners of the Orleans Levee 

District was an indispensable party to a suit to determine 

ownership of oil, gas and minerals. It is obvious that the 

 



  

State of Mississippi is an indispensable party to the 

judgment entered by the district court. This court should 

1 direct the district court to vacate its money judgment 

against the State. 

 



  

CONCLUSION   

A review of the record in this case and the application 

thereto of correct legal and constitutional principles com- 

pel the conclusion that the district court erred in awarding 

attorneys' fees and costs to be paid with funds of the 

State of Mississippi. Such an award of fees and costs is 

in clear violation of the States' immunity to suit or 

judgment. The district court also erred in holding that 

§ 718 of the Emergency School Aid Act mandates the award 

of attorneys' fees and costs against funds of the State of 

Mississippi. The State of Mississippi isan absent ‘indis- 

pensable party to this litigation and PAY Sadonent 

For the above reasons, and based on the foregoing 

authorities, defendants—-appeallants contend that this Court 

should reverse the order of the district court from which 

this appeal is taken and direct the district court to vacate 

such order. 

Respectfully submitted, 

A. FP. SUMMER, ATTORNEY GENERAL 

STATE OF MISSISSIPPI 

PETER M. STOCKETT, JR. 

SPECIAL ASSISTANT ATTORNEY GENERAL 

BY: 5 alain Ly ol FT — 
Peter M. Stockett, Jr. 
  

2 
DID) 

 



  

  

This is to certify that the undersigned has on 

this day caused to be mailed through the United States Mail 

postage prepaid, one copy of my Brief for defendants- 

appellants to the following: 

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

This the id day of July, 1976. 

A Sle 
  

2 VN SA ee 
PETER M. STOCKEIT, JR V - [||7ff6ee64-1f0b-4825-a32e-7922b5bb17b7||]