US Supreme Court Briefs

No. 99-1848
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IN THE
SUPREME COURT OF THE UNITED STATES
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BUCKHANNON BOARD AND CARE HOME INC,
THE WEST VIRGINIA RESIDENTIAL
BOARD AND CARE HOME ASSOCIATION,
and on behalf of all Others similarly situated,
Petitioners,

v.

WEST VIRGINIA DEPARTMENT OF HEALTH AND
HUMAN RESOURCES, et al.,
Respondents.
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BRIEF FOR THE RESPONDENTS
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QUESTION PRESENTED

Under Supreme Court Rule 24.2, the Respondents restate the question presented:

Is the catalyst theory a viable approach to govern federal courts in awarding fees under federal fee-shifting statutes?


LIST OF PARTIES

The list of parties as set forth in the Petitioners' Brief is accurate and will not be restated here.


TABLE OF CONTENTS

QUESTION PRESENTED

LIST OF PARTIES

CITATION OF REPORTS

JURISDICTION

STATUTORY AND CONSTITUTIONAL PROVISIONS

STATEMENT OF THE CASE

SUMMARY OF ARGUMENT

ARGUMENT

  1. The language of fee shifting statutes is clear and supports the Court's conclusion in Farrar that prevailing party status is established only by a judgment, consent decree or settlement

  2. Farrar provides a sound rule for determining prevailing party that is simple, fair and expeditious and pays due respect for the need of the popular branches of government to function without fear that their decisions will be retroactively linked to litigation

    1. Catalyst theory requires proof of causation between a lawsuit and an act of government and that connection cannot be established when a change in conduct is effected by alegislature

    2. Farrar is consistent with the institutional concern this Court has shown for the effect that litigation has on government officials whose time and energies will be diverted from their public duties and whose decisions will be inhibited by the specter of the litigation

  3. The adoption of the Farrar approach will not adversely affect plaintiffs but will continue to provide a means of vindicating the interests of the individuals as private attorneys general

CONCLUSION


CITATION OF REPORTS

The citation of reports set forth in the Petitioners Brief is accurate and will not be restated here.

JURISDICTION

The Petitioners properly invoke the certiorari jurisdiction of this Court.

STATUTORY AND CONSTITUTIONAL PROVISIONS

The statutory provisions at issue in this case are accurately set forth in the Petitioners' Brief and will not be restated here.

STATEMENT OF THE CASE

The West Virginia Residential Board and Care Homes Statute (RUCH Statute), W. Va. Code § 16-51-1-1 to -18, empowers the Secretary of the West Virginia Department of Health and Human Resources (or his or her designee) to, inter alia, enforce rules and standards for residential board and care homes which the Secretary has adopted, promulgated, amended or modified, to exercise as sole authority all powers relating to residential board and care homes' license issuance, suspension and revocation; and to enforce rules adopted, promulgated, amended or modified by the Secretary governing the qualification of applicants for residential board and care home licenses, including, but not limited to, educational requirements,financial requirements, personal and ethical requirements. Id. § 16-5H-3(a)-(c).

The West Virginia Fire Control and Prevention Act, W. Va. Code §§ 29-3-1 to -25, creates the position of the West Virginia State Fire Marshal and the West Virginia State Fire Commission. The Fire Prevention and Control Act authorizes the Fire Commission to promulgate, amend and repeal regulations relating to the safeguarding of life and property from the hazards of fire and explosions. W. Va. Code § 29-3-5(a). The procedural mechanism for implementing this legislative directive is the West Virginia Administrative Procedures Act, found in Chapter 29A, Article 3 of the West Virginia Code (W. Va. APA).

Under the W. Va. APA, West Virginia's administrative agencies do not have the general and independent power to promulgate binding rules. Rather, with certain exceptions inapplicable here,[1] "legislative rules," (those having the force and effect of law) must be authorized by the West Virginia Legislature. See W. Va. Code § 29A-3-12. See generally 32 The Council of Slate Governments, The Book of the States, 122 nIl (1998) (explaining that in West Virginia "State agencies have no power to promulgate rules without first submitting proposed rules to the legislature which must enact a statute authorizing the agency to promulgate the rule. If the legislature, during a regular session disapproves all or part of any legislative rule, the

1See W. Va. Code §§ 29A-5-15 to -15b (discussing emergency rules"). For a general overview of the different types of rules in West Virginia, see A~,palachian Power Co. v. Tax Depart?nent, 466 S.E.2d 424, 434 (W. Va. 1995).

agency may not issue the rule nor take action to implement all or part of the rule unless authorized to do so. However, the agency may resubmit the same or a similar proposed rule to the committee.")[2]

Under this authority, and prior to 1998, the Fire Commission promulgated certain regulations in the West Virginia Fire Code which included the term "self-preservation." W. Va. Code of State Rules, tit. 87, ser. 1, § 14.7.1. "Self-preservation" was defined to mean "A person is capable of removing his or her physical self from situations involving imminent danger, such as fire." Id. § 14.7. The West Virginia Residential Board and Care Homes (RBCH) statute also contained "self-preservation" language. W. Va. Code § 16-5H-1 (noting a state policy to encourage and promote resourcing to ensure the effective care and treatment of the physically or mentally impaired who depend on the care of others and who are capable of self-preservation); id. § 1 6-SH-2(l) (defining self- preservation as meaning "that a person is, at least, capable of removing his or herself from situations involving imminent danger, such as fire.... "); id. § 16-5H-2(j).

The Petitioners challenged the RBCH statute's self-preservation language and the Fire Code's self-preservation regulations. The Petitioners alleged the "self-preservation" language violated, and was pre-empted by the federal Fair Housing Amendments Act (FHAA), 42

2Many states have mechanisms that provide for legislative review of administrative rules, although not necessarily of the same type as West Virginia's. Book of the States, supra n. I at Table 3.26.

U.S.C. §§ 3601-3619, and Titles II and Ill of the Americans with Disabilities Act (ADA).

During the pendency of the litigation in district court, the West Virginia Legislature amended portions of the West Virginia RUCH statute by deleting the "self-preservation" language at issue in the case below. See 1 1998 W. Va. Acts 983-986. The Legislature also amended the State Fire Code to delete any reference to "self-preser- vation." See II 1998 W. Va. Acts 1198-99. There is no evidence in the record to support petitioners' assertion that such changes were caused by the recognition that this lawsuit and persuasive expert discovery convinced the respondents that self preservation rules violated federal law.

The district court presiding over the litigation dismissed the case as moot in light of the legislative action. It also refused to award attorney's fees, considering itself bound by the Fourth Circuit precedent of S-I and S-2 v. State Board of Education, 21 F.3d 49 (4th Cir.) (per curiam) (en banc), cert. denied, 513 U.S. 876 (1994). A panel of the Court of Appeals for the Fourth Circuit affirmed the district court's refusal on the basis of S-I and S-2. The Court of Appeals subsequently refused the Petitioners' request for an en banc rehearing.

SUMMARY OF ARGUMENT

Although this Court has never spoken directly as to the validity of catalyst theory, the approach the Court took in Farrar v. Hobby, 506 U.S. 103, 111(1992) is the test most consistent with the language of federal fee shifting statutes, creates a proper respect for the Court's recognition that fee shifting statutes should be interpreted with an eye toward "easy administration," City of Burlington v. Dague, 505 U.S. 557, 566 (1992), recognizes the Court's admonition that the fee application "should not result in a second major litigation," Hensley v. Eckerhart, 461 U.S. 424, 437 (1983) and best harmonizes the public policies identified by this Court.

Farrar provides that to be a prevailing party:

a civil rights plaintiff must obtain at least some relief on the merits of his claim. The plaintiff must obtain an enforceable judgment against the defendant from whom fees are sought, Hewitt [v. Helms, 482 U.S. 755,] 760, 96 L Ed 2d 654, 107 S Ct 2672, [2675 (1987)], or comparable relief through a consent decree or settlement, Malier v. Gagne, 448 U.S. 122, 129, 100 5 Ct 2570, 2574, 65 L Ed 2d 653 (1980).

506 U.S. at 111.

The requirement of a judgment, consent decree or settlement makes judicial determination of prevailing party status easy and fair and avoids the possibility of prolonged and intrustive judicial examination of who is a prevailing party. A party under Farrar need only point to a judgment, consent decree, or settlement to establish prevailing party status.

Farrar's approach also protects the institutional interests of the popular branches of government. Public officials and legislators discharge their duties in light of multiple and varied considerations.

Catalyst theory discounts the interests these officials have in creating, implementing and administering publicpolicy in a political system that makes such officials accountable (either directly or indirectly) to the electorate. Catalyst theory risks subjecting public officials to intrusive, judicial inquiry concerning why they acted with the concomitant distraction of these officials from their duties and the chilling effect upon the exercise of their discretion. lt also avoids opening a new avenue into the public treasury that would result in a diminution of vital government services.

ARGUMENT

I. The language of fee shifting statutes is clear and supports the Court's conclusion in Farrar that prevailing party status is established only by a judgment, consent decree or settlement.

"[The catalyst theory] doctrine has not yet been explicitly approved or rejected by the Supreme Court." LaRouche v. Kezer, 20 [3d 68, 72 n.4 (2d Cir. 1994). This Court did not address the catalyst issue in Hewitt v. Helms, 482 U.S. 755, 763 (1987), saying, "We need not decide the circumstances, if any, under which this 'catalyst' theory could justify a fee award under § 1988.... 482 U.S. at 763 (emphasis added).[3] However, the

3Congress has enacted over one hundred fee-shifting statutes. Marek v. Cliesny, 473 U.S. 1, 43 (1985) (Brennan, J., dissenting) (appendix). When interpreting prevailing party statutes, this Court has concluded that they should all be given a common interpretation, Fogerty v. Fantasy, Inc., 510 U.S. 517, 538 (1994), a viewpoint shared by the Congress. See generally 2 Martin A. Schwartz & John E. Kirklin, Section 1983 Litigation: Claims, Defenses, and let's § 17.3 at 6 (2d ed. 1991) ("Congress and

language of federal fee shifting statutes establishes that they do not encompass catalyst theory.

In interpreting a statute, the starting point is the language of the statute itself. See, e.g., Williams v. Taylor, 120 5. Ct. 1479, 1487 (2000) ("We start, as always, with the language of the statute.") There are two fee shifting statutes at issue in this case -- the federal Fair Housing Amendments Act (FHAA) and the Americans with Disabilities Act (ADA). The FHAA provides, in pertinent part, "In a civil action under subsection (a) of this section, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee and costs." 42 U.S.C. § 3613(c)(2). The ADA provides, in pertinent part:

In any action or administrative proceeding commenced pursuant to this chapter, the court or agency, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee, including litigation expenses, and costs, and the United States shall be liable for the foregoing the same as a private individual.

42 U.S.C. § 12205. Each of these statutes authorizes the award of attorney's fees to "prevailing parties," not simply to anyone who acts as an agent for change or process or whose success comes in the political process -- even if the political success was a response to the litigation. Cf. Brown v. Local 58, I.B.E.W., 76 F.3d 762, 772 (6th Cir. 1996)

the Supreme Court alike have viewed § 1988 and other federal fee-shifting statutes that also provide for reasonable attorneys fees for the successful party in litigation as largely governed by the same interpretive standard.")

("We do not believe, however, that the catalyst theory was intended to allow recovery of fees for lawsuits that function as a kind of political advertisement.") Indeed, the legal term "prevailing party" is defined by one leading legal dictionary as "A party in whose favor a judgment is rendered, regardless of the amount of damages awarded. <in certain cases, the court will award attorney's fees to the prevailing party.>" Black's Law Dictionary 1145 (7th ed. 1999) (emphasis added). In short, a prevailing party is one who prevails in the litigation.

This Court has explained:

[I]n Texas State Teachers Assn. v. Garland Independent School Dist., 489 u.s. 782, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989), we synthesized the teachings of Hewitt [v. Helms, 482 U.S. 755 (1987)] and Rhodes [v. Stewart, 488 U.S. 1 (1988) (per curiam)]. "[Tb be considered a prevailing party within the meaning of § 1988," we held, "the plaintiff must be able to point to a resolution of the dispute which changes the legal relationship between itself and the defendant." 489 U.S., at 792, 109 S.Ct., at 1493. We reemphasized that "[tihe touchstone of the prevailing party inquiry must be the material alteration of the legal relationship of the parties.' Id., at 792-793, 109 S.Ct., at 1494.

Farrar v. Hobby, 506 U.S. 103, 111 (1992).

Farrar further explained that "to qualify as a prevailing party, a civil rights plaintiff must obtain at least some relief on the merits of his claim. The petitioner must obtain an enforceable judgment against the defendant from whom fees are sought, Hewitt Iv. Helms,] 482 U.S. [755,] 760, 107 S.Ct. [2672,] 2675 ((1987)], or comparable relief through a consent decree or settlement, Maher v. Gagne, 448 U.S. 122, 129, 100 S.Ct. 2570, 2574, 65 L.Ed.2d 653 (1980)." Id. "Only under these circumstances can civil rights litigation effect 'the material alteration of the legal relationship of the parties' and thereby transform the plaintiff into a prevailing party. Garland, supra, at 792-793, 103 L Ed 2d 866, 109 5 Ct, at 1486." Id. (emphasis added).

In short, a plaintiff prevails when the plaintiff achieves "a material alteration in the legal relationship of the parties." This material alteration must be accomplished in the litigation -- that is, the legal alteration is accomplished only when a federal court places the authority of the federal bench behind the alteration such that the failure of a defendant to follow through with the duties under the altered relationship is an affront to the authority of the federal court. Such judicial imprimatur is achieved only when there is a judgment, settlement or consent decree. See Farrar, 506 U.S. at 111.[4]

Because the language of the statutes at issue here is clear, the analysis should be at an end. See, e.g., Harris Trust Savings Bank v. Salomon Smith Barney, Inc., 120 5. Ct. 2180, 2191 (2000) (quoting Hughes Aircraft v. Jacobson, 525

4The Farrar characterization of prevailing party as requiring a judgment captured not simply an agreement of only a majority of the bench, but the assent of all nine justices of the Court. Joel H. Trotter, Comment, The Catalyst Theory of Fee Shifting After Farrar v. Hobby, 80 Va. L. Rev. 1429, 1447 (1994) ("And not merely a majority, but all nine of the Justices applied the enforceable judgment requirement.")

U.S. 432, 438 (1999)) (" 'in any case of statutory construction, our analysis begins with the language of the statute. . . And where the statutory language provides a clear answer, it ends there as well.' ") However, the Petitioners and their amici have cited both the House of Representative and Senate Committee Reports that accompanied § 1988. See, e.g., Brief of Friends of the Earth, et al., as Amici Curiae in Support of Petitioners' at 13-14 (citing and quoting S. Rep. No. 94-1001, at 5, reprinted in 1976 U.S.C.C.A.N. 5908, 5912; H.R. Rep. 94-1558, at 7 (1976)); Brief for I~ublic Citizen and the ACLU as Amici Curiae in Support of Petitioners at 11-12 (quoting H.R. Rep. 94-1588, at 7).

S. Rep. 94-1001, at 5, reads, in part, "[Flor purposes of an award of counsel fees, parties may be considered to have prevailed when they vindicate rights through consent judgment or without formally obtaining relief." H.R. Rep. 94-1558, at 7, read, in part:

"A 'prevailing' party should not be penalized for seeking an out of court settlement, thus helping to lessen docket congestion. Similarly, after a complaint is filed, a defendant might voluntarily cease the unlawful practice. A court should still award fees even though it might conclude, as a matter of equity, that no formal relief, such as an injunction, is needed."[5]

However, section "1988's legislative history does not demand a catalyst theory at all but instead can be read merely to emphasize that a plaintiff should be able to

5The bill that became 42 U.S.C. § 1988 was originally S. 2278, 94th Cong. (1976). The Senate bill passed in lieu of the House of Representatives bill. See 1976 U.S.C.C.A.N. at 5908.

recover fees 'without formally obtaining relief,'" and, of course, a "plaintiff may still do so under Farrar, for a favorable settlement will confer prevailing party status." Trotter, supra, note 4, at 1447 & n.136. Indeed, non-formal relief as cited in the Senate Report accompanying section 1988 would, of course, include a voluntary settlement. In short, Farrar clarifies the "prevailing party" inquiry by stressing that a voluntary change in conduct must be accompanied by an enforceable settlement agreement to transform a plaintiff into a prevailing party for purposes of fee shifting statutes.

Finally, the use of legislative history in interpreting legislation is, at best, an exercise in futility and, at worst, a judicial usurpation of the legislative function. When Congress members vote, they vote on language in a bill -- not upon committee reports. See, e.g., Hirschey v. F.E.R.C., 777 F.2d 1, 8 n.1 (D.C. Cir. 1985) (Scalia, J., concurring) (quoting 128 Cong. Rec. S8659) (daily ed. July 19, 1982) (statement of Sen. Armstrong) (" ... [Flor any jurist, administrator, bureaucrat, tax practitioner, or others who might chance upon the written record of this proceeding, let me just make the point that this is not the law, it was not voted on, it is not subject to amendment, and we should discipline ourselves to the task of expressing congressional intent in the statute.") "[D]eference to the supremacy of the Legislature, as well as recognition that Congressmen typically vote on the language of a bill, generally requires us to assume that 'the legislative purpose is expressed by the ordinary meaning of the words used.' " United States v. Locke, 471 U.S. 84, 95 (1985) (quoting Richards v. United States, 369 U.S. 1, 9 (1962)), and there is no evidence that the statements in the Committee reports were voted on by Congress.

2. Farrar provides a sound rule for determining prevailing party status that is simple, fair and expeditious and pays due respect for the need of the popular branches of government to function without fear that their decisions will be retroactively linked to litigation.

A. Catalyst theory requires proof of causation between a lawsuit and an act of government and that connection cannot be established when a change in conduct is effected by a legislature.

The bright line test Farrar articulated is in keeping with this Court's admonitions that the fee application "should not result in a second major litigation," Hensley v. Eckerhart, 461 U.S. 424, 437 (1983), and that fee-shifting statutes should be interpreted with an eye toward easy administrability. City of Burlington v. Dague, 505 U.S. 557, 566 (1992). ~fhe Farrar approach creates a bright line rule leading to ease of administration and conservation of scarce judicial resources. A prevailing party under the Farrar test is readily discerned by simple reference to a judgment, consent decree or settlement.

The dangers attendant to the catalyst theory are prodigious and risk the very results (long, drawn-out litigation that ensnares courts in complex legal and factual issues) which this Court's fee-shifting opinions have eschewed. Catalyst theory requires demonstration of a causal connection between a lawsuit and the action of the defendants. See, e.g., Foreman v. Dallas County, 193 F.3d 314, 323-24 (5th Cir. 1999). Catalyst theory is simply unworkable in cases such as this in which the change in conduct that forms the basis of the prevailing party claim consists of legislative action. Public officials act for a variety of reasons. Linking legislative action to a lawsuit fails to appreciate the diversity and dynamics that motivate legislators.

Causation in the law is the general concept that "there be some reasonable connection between the act ... of the defendant and the damage which the plaintiff has suffered." W. Page Keeton, et al., Prosser & Keaton on the Law of Torts § 41, at 263 (5th ed. 1984). "There is perhaps nothing in the entire field of law which has called forth more disagreement, or upon which the opinions are in such a welter of confusion." Id. This Court has recognized that the government's decision to settle a case (even if on unfavorable grounds) does not equate with being motivated by the suit. Other grounds, such as a change in policy instituted by a new administration, could just as easily account for the change. Pierce v. Underwood, 487 U.S. 552, 568 (1988). A judicially enforceable order placing judicial authority behind the resolution of the case negates any need for possibly expensive, time-consuming and intrusive judicial inquiry into who is a prevailing party.

Here, it was not a party who acted, but a state legislature.[6] When a representative governmental body acts, it

6The separation of powers it is an explicit constitutional command of West Virginia's organic charter. W. Va. Const. art. 5, § 1. See State ex ret. Meadows v. Hechler, 462 S.E.2d 586, 589 (W. Va. 1995) ("The separation of powers doctrine expressly stated In our constitution is a core principle of our system of government ..."). The West Virginia Constitution not only creates a tripartite governmental system, it creates a diffusion within the branches of government as well, establishing a bicameral legislature, W. Va. Const. art VI, § 1, and a non-

acts as a body, not a conglomeration of individuals. Cf. Bender V. Williams port Area School Dist., 475 U.S. 534, 545 (1986) (individual member of school board lacked standing to appeal an order when the board did not vote to appeal order). Indeed, this Court has recognized, "[ilnquiries into Congressional motives or purposes are a hazardous matter," United States v. O'Brien, 391 U.S. 367, 383 (1968), as legislators act for a variety of reasons. See Michael M. v. Sonoma County, 450 U.S. 464, 470 (1981) (plurality opinion). See also Foreman v. Dallas County, 193 F.3d 314, 321-22 (5th Cir. 1999) (recognizing that attribution of a causative relationship between a lawsuit and a legislative act is a hazardous undertaking as the legislative process is fraught with compromises, competing interests and unspoken motives). As this Court correctly observed more than a century ago, "[tihe diverse character of such motives, and the impossibility of penetrating

unitary executive. Id. art. VII, §§ 1 & 2. West Virginia, far from creating a monolithic governmental structure, has chosen to diffuse authority to prevent that "accumulation of all powers ... in the same hands ..." that "may justly be pronounced the very definition of tyranny." The Federalist No. 47, at 269 (James Madison) (Clinton Rossiter ed. Mentor 1999). This separation also enhances political accountability. If the divisions of government are blurred or erased, the citizenry will not be able to discern who is the responsible (and, hence, accountable) actor in the polity, further diluting government accountability to the electorate. Thus, when an actor of the state acts, it may act for the state, but only within the sphere of the state actor's authority. If, however, the Respondents are seen to act as the state in proposing legislation, they may be entitled to the cloak of absolute legislative immunity.

into the hearts of men and ascertaining the truth, precludes all such inquiries as impracticable and futile." Soon Fling v. Crowley, 113 U.S. 703, 710-11 (1885). See also Boos v. Barry, 485 U.S. 312, 336 (1988) (Brennan and Marshal, JJ., concurring) ("The ... analysis ... plunges courts into the morass of legislative motive, a notoriously hazardous and indeterminate inquiry ). Catalyst theory, however, directly places legislative motivation into issue before the courts, which is a result at odds with the recognitions of this Court and accepted rules recognizing the hazards of such inquiry.

As a general evidentiary matter, individuals are limited to giving testimony on matters of which they have personal knowledge. See Fed. R. Evid. 602. Thus, while an individual legislator may testify as to why he or she personally voted in a particular matter[7], that legislator is not competent to testify as to the motives of other legislators or, for that matter, the legislative body as a whole. Cf. State of Rhode Island v. Narragansett Indian Tribe, 19 F.3d 685, 699 (1st Cir. 1994) (recognizing, inter alia, that Congressmen "cannot be expected to be familiar ... with every other legislator's thoughts as to what the bill accomplishes (or stops short of accomplishing))." All of

7Of course, judicial inquiries into legislative motivation typically lead to dead ends. For example, in Hart Book Stores, Inc. v. Edinisten, 612 F.2d 821, 829 n.11 (4th Cir. 1979), the court of appeals explained that a bill's sponsor provided an affidavit attesting that he introduced the bill in the hope that it would ameliorate the conditions found in adult entertainment establishments. Two print reporters provided affidavits that attested the sponsor told them that the aim of the bill was to cut the profits of these businesses and drive them out of business.

which assumes legislators may be amenable to motivational inquiry by the judiciary -- a conclusion much at odds with the historic practice of the federal courts. "The holding of this Court in Fletcher v. Peck, 6 Cranch 87, 130, 3 L ed 162, 176 that it was not consonant with our scheme of government for a court to inquire into the motives of legislators, has remained unquestioned." Tenney v. Brandhove, 341 U.S. 367, 377 (1951). See also Bogan v. Scott-Harris, 523 U.S. 44, 54-55 (1998) (quoting Tenney, 341 U.S. at 377).

Likewise, after-the-fact affidavits are accorded no probative weight because "Isluch statements 'represent only the personal views of th[is] legislato[rl, since the statements were [madel after passage of the Act.' " Bread Political Action Committee v. F.E.C., 455 U.S. 577, 582 n.3 (1982) (quoting Regional Rail Reorganization Act Cases, 419 U.S. 102, 132, 95 S.Ct. 335, 42 L.Ed.2d 320 (1974), quoting National Woodwork Manufacturers Assn. v, NLRB, 386 U.S. 612, 639 n. 34, 87 S.Ct. 1250, 1265, 18 L.Ed.2d 357 (1967)). Even contemporaneous statements of legislative sponsors are of questionable value. Overseas Educ. Ass'n v. F.L.R.A., 876 F.2d 960, 975 (D.C. Cir. 1989) (Buckley & Starr, JJ., concurring) (emphasis in original) ("Far less reliable, as sources of statutory meaning, are remarks made during floor debate -. even 'authoritative' explanations offered by a bill's sponsors. While a sponsor's statements may reveal his understanding and intentions, they hardly provide definitive insights into Congress' understanding of the meaning of a particular provision.")[8] Catalyst theory

8And which presupposes that the speakers' views are even aired to his or her colleagues. See 112 Cong. Rec. 58795 (daily ed.

is simply unworkable in cases such as this where legislative action is the purported basis for prevailing party status. As Milton v. Shalala, 17 F.3d 812, 815 (5th Cir. 1994) incisively notes:

The mere possibility that Congress acted because of an individual claimant's suit (or reacted to a large number of similar suits) is too speculative in our view considering the many influences upon members of Congress in casting their votes. We agree with the cases that have refused to credit the change in law to a claimant's individual law suit and found the nexus between Congress's action and the law suit too attenuated.

See also Petrone v. Secretary of Health and Human Services, 936 F.2d 428, 430 (9th Cir. 1991) (per curiam); Hendricks v. l3owen, 847 F.2d 1255, 1258 (7th Cir. 1988); and Truax v. Bowen, 842 F.2d 995, 997 (8th Cir. 1988) (per curiam). Indeed, without evidence that the government actor who took the action that mooted the case even knew of the suit (much less was motivated by it), an award of attorney's fees is unsupportable. See New York State Ass'n of Career Schools v. State Educ. Dep't, 762 F. Supp. 1124, 1127 (S.D.N.Y. 1991).

July 25, 1996) (statement of Sen. McConnell) ("I do not see anyone on the Democratic side.") See also Overseas Educ. Ass'ii, Inc. v. F I.R.A., 876 F.2d at 975 (concurring opinion) ("Few of his fellow legislators will have been on hand to hear the gloss the sponsor may have placed on a particular provision.")

B. Farrar is consistent with the institutional concern this Court has shown for the effect that litigation has on government officials whose time and energies will be diverted from their public duties and whose decisions will be inhibited by the specter of the litigation.

This Court has recognized that litigation against government officers distracts them from their public duties, inhibits their discretionary actions and deters other able individuals from seeking public service. See, e.g., Harlow v. Fitzgerald, 457 U.S. 800, 816 (1982). While Harlow addressed immunity, its rationale should help to guide this Court in the resolution of the catalyst theory issue. Indeed, this Court has looked to the immunity doctrine for guidance in cases where the immunity doctrines themselves were not directly involved. Thus, in Spa hone v. United States, 493 U.S. 265, 278 (1990), this Court looked to the immunity doctrines as a guidepost governing the lower court's discretion in holding non-party city council members in contempt of court for failing to vote in favor of legislation to implement a consent decree entered into by the (party-defendant) city.

The dangers articulated in the immunity cases of distracting public officials from the discharge of the public weal are magnified when viewed in the context of directly representative bodies (such as the state legislature at issue in this case). The majority of state legislators serve only part time. See Rich Jones, State Legislatures, in 30 The Council of State Governments, The Book of the States 100 (1994) (citing a 1993 study by the National Conference of State Legislatures where 15% of legislators reported the legislature as their sole occupation, which would increase to 24% if other categories [such as student or homemaker] were included). If these legislators were compelled to submit to interrogation in fee determination litigation, they would either have to testify during the legislative session (distracting them from the high responsibility of representing their constituents) or during non-legislative time (distracting them from their other occupations and creating an additional disincentive to their service in the legislature). And, it is highly doubtful whether legislators could even be compelled to so testify. See, e.g., Bogan, 523 U.S. at 54-55.

Moreover, the specter of judicial interference in government programs is manifest. Catalyst theory discourages public officials from exercising their public trust to take the initiative in revising outmoded ordinances or statutes or in improving institutional conditions, that are indisputably core government functions because under the catalyst theory such actions could serve as a proper basis for a fee award. Catalyst theory empowers courts to award fees for any change in behavior occurring after a lawsuit is filed -- whether or not the court could have ultimately ordered that change in conduct or whether that conduct had previously survived judicial scrutiny. Thus, catalyst theory disables public officials, who may come to fear that worthwhile changes may be retroactively linked to a lawsuit and result in a hefty bill for attorney's fees. It is counterproductive to convert attorney's fees into a penalty on state and local officials for making salutary changes. As this Court has cogently emphasized, "any restriction on a legislator's freedom undermines the 'public good' by interfering with the rights of the people to representation in the democraticprocess." Spallone, 493 U.S. at 279 (citation omitted). While this Court, as an empirical matter, found it questionable whether loss of government entity funds due to judicial order would deter a public officer of a conscientious exercise of his or her duties, Owen v. City of mdc penden ce, 445 U.S. 622, 656 (1980, several dissenting justices noted that the government paralysis occasioned by judicially exacted payments from the public treasury would, indeed, act to chill the judgment of committed public servants. Id. at 668-69 (Powell, J., dissenting). Whether the money is called damages or fees, its effect is the same. Cf. Pulliam, 466 U.S. at 545 ("Such a judgment poses the same threat to independent judicial decisionmaking whether it be labeled 'damages' of $7,691.09 or 'attorney's fees' in that amount.").

Indeed, the perverse results of catalyst theory are evidenced by the decisions of some lower courts. For example, In DiMier v. Gondles, 676 F.2d 92 (4th Cir. 1982), a plaintiff sued a sheriff in Virginia over the Sheriff's strip search policy. The policy had recently survived a separate suit. Id. at 93. During pendency of the DiMier suit, the Sheriff agreed to a temporary cessation of the policy and, subsequently, the Virginia General Assembly voted into existence legislation curtailing the circumstances supporting strip searches. Id. at 92. In affirming an award of attorney's fees, the Court of Appeals concentrated its discussion not on the legal merits of the case but upon " ... the numerous exhibits of newspaper articles and editorials submitted by appellees," which evidenced that the "suit caused considerable publicity, both locally and nationwide, and 'increased political pressure' regarding the policy." id. at 93. The threat of retroactively enforced attorney fee awards after a government body acts as a result of the political process skews the relationship between the federal courts and the states and injects the federal judiciary into the popular and democratic political system which cannot help but "undermine[] the 'public good' by interfering with the rights of the people to representation in the democratic process." Spa llone, 493 U.S. at 279. Legislators must be "free to represent the interests of their constituents without fear that they will be later called to task in the courts for that representation." Powell v. McCormack, 395 U.S. 486, 503 (1969). Indeed, "harassing litigation and its potential for intimidation increases in suits where the prevailing plaintiff is entitled to attorney's fees." Pulliam v. Allen, 466 U.S. 522, 555 (1984) (Powell, J., dissenting).

3. The adoption of the Farrar approach will not adversely affect plaintiffs but will continue to provide a means of vindicating the interests of the individuals as private attorneys general.

The adoption of Farrar's well-reasoned and cogent approach to prevailing party analysis will not leave pre~railing plaintiffs without access to attorney's fees. Upon a judicial determination which vindicates their rights, as evidenced by a judgment, settlement or consent decree, plaintiffs will have established their status as prevailing parties with a concomitant entitlement to attorney's fees.

Further, there exist intrinsic and extrinsic political checks that would act as a brake upon a defendant simply deciding to cease the conduct at issue in the case in order to avoid attorney's fees. Intrinsically, when a governmentdefendant simply ceases a policy or program which is the subject of a suit, that defendant has surrendered the enforcement of a program to which he or she is politically committed. Such a surrender would necessitate a justification for the act before that defendant's constituency. The defendant's political accountability is a factor he or she would have to consider in their decision. Extrinsically, a government defendant not only has to justify his or her acts to their constituency, but will have to justify that act in simply abandoning a policy or program to either his or her political superiors (such as the executive or administrative agency heads) or the legislature or other representative body. A government defendants' continued political authority (or even continued political existence) is dependent upon the support of these other agents of government. The abdication of a policy, program or rule would necessitate justification extrinsic to the defendant through the defendant's superiors.[9]

9Most governments comprising the United States (states, counties and municipalities) live within budgets and lack the ability to confront fiscal shortfalls by printing money to supplement the public fisc. When faced with financial shortfalls, they must rely upon measures that either raise taxes or detrimentally affect the essential services of government upon which the population relies. See, e.g., Greg Moore, Goldman to Lay Off Eight City Workers, Official Says, Charleston (W. Va.) Gazette, Nov. 28, 2000, at Cl (detailing West Virginia Capitol City's budget shortfall and explaining that jobs would be cut, positions not filled and neighborhood and community centers would reduce their hours of operation).

CONCLUSION

For the foregoing reasons, the decision of the lower court should be affirmed.

Respectfully submitted,

Respondents,
 By counsel
DARRELL V. MCGRAW, JR.
Attorney General

DAVID P. CLEEKSenior Deputy Attorney General
Counsel of Record
SCOTT E. JOHNSON
Senior Assistant Attorney General
Office of the Attorney General
State Capitol, Room E-26
Charleston, West Virginia 25305
(304) 558-2021

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