CONSUMERS UNION OF UNITED STATES, INC., et al. v. AMERICAN BAR ASSOCIATION et al.
Civ. A. No. 75-0105-R
United States District Court, E. D. Virginia, Richmond Division.
Jan. 8, 1981
505 F. Supp. 822
In this court‘s opinion on a prior motion to vacate, the court stated explicitly as follows:
“The prior armed robbery conviction, which was described and acknowledged on the record, was considered by the court in determining defendant‘s sentence. The court gave no consideration, however, to any unconstitutional prior convictions.” 4 (Emphasis supplied.)
This clear and explicit statement by the court outweighs defendant‘s contention that the court was impliedly swayed in passing sentence because the presentence report contained errors.
After a review of the file and records of this case, it appears that defendant is not entitled to a vacation of sentence.
An order will be entered denying the motion to vacate sentence.
Warriner, J., filed opinion in which he dissented in part and concurred in part.
Merhige, J., filed concurring opinion.
James W. Benton, Jr., Hill, Tucker & March, Richmond, Va., Ellen Broadman, Peter H. Schuck and Marsha N. Cohen, Washington, D. C., for plaintiffs.
Robert H. Patterson, Jr., Judith B. Henry, Randolph Rollins, Anne Marie Whittemore, Walter H. Ryland, Deputy Atty. Gen. of Va., John F. Rick, Asst. Atty. Gen., Richmond, Va., Robert D. McLean, H. Blair White, Sidley & Austin, Chicago, Ill., for defendant.
Before BRYAN, Senior Circuit Judge, and MERHIGE and WARRINER, District Judges.
This action has been pending since 1975 before us, sitting as a three-judge tribunal, with appeals at intervals to the Supreme Court of the United States. It has now been refined to the sole question of whether the plaintiff, Consumers Union of the United States, Inc. (Consumers), having prevailed under
Detailed reiteration of the earlier course of this litigation is rendered unnecessary by the comprehensive opinion of the United States Supreme Court in Supreme Court of Virginia v. Consumers Union of the United States, Inc., 446 U.S. 719, 100 S.Ct. 1967, 64 L.Ed.2d 641 (1980). Therein the Court relates the constituent facts, with the rulings of this Court thereon, that induced us to allow Consumers’ claim for attorney‘s fees against the Virginia Court, while disallowing a like claim against the Bar. See id. 446 U.S. at 721-734, 100 S.Ct. at 1969-74. The Supreme Court vacated the award of attorney‘s fees because it rested in part on consideration of the Virginia Court‘s adoption, and retention even after Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977), of the disputed disciplinary provision—actions the Supreme Court held to enjoy absolute legislative immunity. 446 U.S. at 736-37, 100 S.Ct. at 1977. On remand we again consider the propriety of a fee award against each defendant.
We adhere to the view, previously expressed in Consumers Union of United States, Inc. v. American Bar Association, 470 F.Supp. 1055 (E.D.Va.1979), that special circumstances exist in this case rendering a fee award against the Bar unjust. As before, this conclusion is grounded on the Bar‘s endeavors to have the Bar Code amended to conform to constitutional standards. See id. at 1062-63.
The Supreme Court, even as it vacated this Court‘s fee award, indicated that the Virginia Court‘s capacity as a State enforcement authority rendered it properly subject to suit in this case. 446 U.S. at 720-725, 729-737, 100 S.Ct. at 1968-71, 1973-77. Moreover, it emphasized that a fee award based solely on the Virginia Court‘s enforcement role would not be improper. Id. 446 U.S. at 736-37, 100 S.Ct. at 1977.
The Virginia Court is a fundamental source and conduit of disciplinary enforcement authority. Although the Bar may be more active in this sphere on a day-to-day basis, it acts merely as an “administrative agency of the Court.”3 It seems clear that “in the circumstances of this case, a sufficiently concrete dispute is . . . made out against the Virginia Court as an enforcer,” 446 U.S. at 737 n.15, 100 S.Ct. at 1977 n.15,
Nothing in the Supreme Court‘s opinion casts doubt on the propriety of this Court‘s earlier application of Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968), to this case.4 Under that standard, a court ordinarily should award reasonable attorney‘s fees to a prevailing civil rights plaintiff “unless special circumstances would render such an award unjust.” Id. at 402, 88 S.Ct. at 966.
Upon review of the record throughout this litigation, we conclude that no special circumstances have been shown that would render unjust an award of attorney‘s fees against the Supreme Court of Virginia. Accordingly, we will order the Supreme Court of Virginia and its Chief Justice, in their official capacities, to pay to Consumers reasonable attorney‘s fees for the services of its counsel in this action, insofar as such services were performed to prevent the enforcement of the Rule. The amount of the fees, if not agreed upon between the Supreme Court of Virginia and Consumers within 30 days from the date of our order, shall be determined by this Court directly, or after reference to and report thereon by a master.
WARRINER, District Judge, dissenting in part and concurring in part.
I dissent from the majority opinion with respect to its award of attorney‘s fees against the Supreme Court of Virginia.1 Insofar as the opinion speaks to the Virginia State Bar, I concur in the result only.
I.
My dissent with respect to the fee award against the Virginia Court can be understood best by examining the record. Plaintiffs sought a declaratory judgment that the Virginia Court and the State Bar had violated the First and Fourteenth Amendment rights of plaintiffs and their members to gather, publish, and receive information regarding lawyers in Arlington County, Virginia. Plaintiffs also sought an injunction against the enforcement of the rule prohibiting advertising by lawyers, DR2-102(A)(6) of the Code of Professional Responsibility of the Virginia State Bar. The Complaint alleged that the Virginia Court had promulgated the Code2 and that the State Bar had the delegated authority to enforce the Code. Consumers Union of United States, Inc. v. American Bar Ass‘n., 427 F.Supp. 506, 508 (E.D.Va.1976). The majority of this Court concluded in its original opinion that plaintiffs had a First Amendment right to gather, publish, and receive consumer information about lawyers, save for fee information.3 Id. at 523. Accordingly, the majority held that insofar as DR2-102(A)(6) prohibited the advertising of not inherently misleading or deceptive consumer information, with the above exception, the public‘s right to the information was paramount, and the rule was pro tanto invalid. Id. at 521-23. In addition to this declaratory judgment, the Virginia Court and State Bar were enjoined from enforcing the rule. Id. at 523.
All parties appealed to the United States Supreme Court. The majority opinion was vacated and the case was remanded for “further consideration in light of Bates v. State Bar of Arizona [433 U.S. 350, 97 S.Ct.
Plaintiffs then asked for an award of costs, including attorney‘s fees under
In my dissenting opinion I raised the argument that the promulgation of the Bar Code by the Virginia Court was not an act of adjudication but one of rulemaking. 470 F.Supp. at 1063-73. I concluded that the Virginia Court enjoyed absolute legislative immunity from suit in performing this rulemaking function. Thus, the Virginia Court was immunized from an award of attorney‘s fees. I concluded also that the Virginia Court should have been dismissed from the action entirely on the basis of its legislative immunity even though its counsel had not pled nor argued this defense. Id. at 1073 n. 6.
On appeal, the United States Supreme Court disagreed with the majority opinion that promulgation of the Code was a judicial act. “[P]ropounding the Code was not an act of adjudication but one of rulemaking.” Supreme Court of Virginia v. Consumers Union of United States, 446 U.S. 719, 729, 100 S.Ct. 1967, 1973, 64 L.Ed.2d 641 (2 June 1980). The Supreme Court agreed with the dissenting opinion that the Virginia Court was cloaked with absolute legislative immunity from suit itself for actions in its legislative capacity. 446 U.S. at 729-37, 100 S.Ct. at 1973-77.
Instead of dismissing the Virginia Court from the action at this point, the Supreme Court went further and concluded that “the Virginia Court and its Chief Justice properly were held liable in their enforcement capacities.” 446 U.S. at 734, 100 S.Ct. at 1975. The basis for this conclusion was apparently twofold. First, the Virginia Court had for some reason argued before the Supreme Court that it had inherent and statutory authority to discipline and regulate the Virginia Bar. The Supreme Court accepted this admission and held that this enforcement authority makes the Virginia Court a proper defendant in a suit under
With all respect I submit that the Supreme Court‘s ruling with respect to the Virginia Court is somewhat contradictory. The Court recognized at the outset of its opinion that plaintiffs’ complaint “alleged only that the court promulgated the Bar Code. The other defendants were alleged to have authority to enforce the Code.” 446 U.S. at 725-26, 100 S.Ct. at 1971. In addition, the Supreme Court recognized that the extent of the Virginia Court‘s statutory enforcement power is that it, along with all Virginia courts, may issue a rule against an attorney to show cause why his license to practice law should not be suspended or revoked. 446 U.S. at 721, 100 S.Ct. at 1969. Beyond this, the role of the Virginia Court or any other court of record is wholly and simply adjudicative. The actual prosecution is by the Commonwealth‘s attorney. See
With respect to attorneys fees, the Supreme Court pointed out that this Court had premised its award on acts or omissions for which the Virginia Court enjoyed absolute legislative immunity. 446 U.S. at 737, 100 S.Ct. at 1977. The Supreme Court held that this Court erred in basing the award of attorney‘s fees on the Virginia Court‘s failure to amend or repeal DR2-106(A)(6).
[I]t was an abuse of discretion to award fees because the Virginia Court failed to exercise its rulemaking authority in a manner that satisfied the District Court. Id.
By way of dictum, the Supreme Court stated that it would not be improper to award attorneys fees based upon the Virginia Court‘s enforcement role. Id.
The majority opinion of this Court on remand has accepted this dictum as a command. With dispatch, the majority has ordered the Virginia Court and its Chief Justice to pay plaintiffs’ reasonable attorney‘s fees, “insofar as such services were performed to prevent the enforcement of the Rule.” Ante, at 824. The majority finds support for its decision in its view that the Supreme Court vacated the award of attorney‘s fees because it rested in part on consideration of the Virginia Court‘s adoption, and retention
The District Court‘s award of attorney‘s fees in this case was premised on acts or omissions for which [the Virginia Court] enjoyed absolute legislative immunity. 446 U.S. at 732-34, 100 S.Ct. at 1975.
If the fee award had rested only “in part” on the Virginia Court‘s legislative role, the Supreme Court may not have vacated and remanded; it most properly would have affirmed, stating the correct basis for the award, e.g., the Virginia Court‘s enforcement role, and would have remanded only for a determination of reasonable fees.6 Because this Court‘s award of attorney‘s fees was wholly in error the judgment was vacated and remanded instead.
Admittedly, the Virginia Court possesses the inherent and statutory authority to discipline and regulate the Virginia Bar. It is also true that we, in our pre-Bates opinion, enjoined the Virginia Court together with the State Bar from enforcing DR2-106(A)(6). After Bates, the Virginia Court consented to the entry of a decree enjoining it and the State Bar from enforcing the invalid rule against lawyers who provided the information plaintiffs sought. Strictly speaking, then, it could be said that plaintiffs prevailed against the Virginia Court in its enforcement capacity.7 Consequently, the Supreme Court has concluded that we properly held the Virginia Court liable in its enforcement role under
The point of my dissent, then, is that we are not foreclosed from re-examining the nature and extent of the Virginia Court‘s
It is true that “[f]ee awards against enforcement officials are run-of-the-mill occurrences. . . .” 446 U.S. at 739, 100 S.Ct. at 1978. In fact, it is the general rule that attorney‘s fees are ordinarily awarded under
If this inquiry is needed, it should . . . be an intensely pragmatic one. Its focus is rightly upon the justice under the total range of circumstances of conferring the benefit and imposing the concomitant burden represented by the fee award. Bonnes v. Long, 599 F.2d 1316, 1319 (4th Cir. 1979). The court‘s discretion is to be exercised bearing in mind the purpose of
§ 1988 to encourage “private attorney general” suits.Id. It is inconsistent with the requirement of “an intensely pragmatic” inquiry to look at isolated phrases from the Supreme Court‘s opinion and pre-emptorily award counsel fees as the majority opinion has done. Instead, the inquiry must focus “upon the justice under the total range of
circumstances” of awarding attorney‘s fees in this case.
The most careful examination of the record reveals that the issue of the Virginia Court‘s enforcement role was never presented to us. Prior to Bates there were no allegations, no proffers of evidence, no briefs, no arguments, and no findings of fact by this Court with respect to the direct or even the indirect enforcement role of the Virginia Court. The allegations and proofs showed no more than that the Virginia Court had adopted the Bar Code and had promulgated a procedure for enforcement of the Code. In practice the Virginia Court‘s day-to-day enforcement authority had been delegated to the State Bar and the various district committees.
This is a significant factor in determining whether plaintiffs are entitled to attorney‘s fees because of their efforts, prior to Bates, to enjoin the enforcement of the rule by the Virginia Court. They made none.
After Bates, the issue of the Virginia Court‘s enforcement role again was not raised by plaintiffs. This is not at all surprising. At this time, plaintiffs, along with all informed attorneys in the United States, knew that lawyers were free to advertise so long as the information was not deceptive or misleading. No one reasonably would have contended that DR2-106(A)(6) could be enforced at that time.8
Plaintiffs argued for the first time on remand that the Virginia Court has a “direct” enforcement role. This contention obviously has been grasped by plaintiffs as a result of the Supreme Court‘s suggestion that an award of fees against the Virginia Court in its enforcement capacity would not be improper. The record indicates, as I have attempted to demonstrate above, that plaintiffs never alleged nor proved in this case that the Virginia Court had a direct enforcement role with respect to Virginia lawyers.9 As a practical matter plaintiffs
That the Virginia Court ever consented to be included in the injunction prohibiting enforcement of DR2-106(A)(6) was an error resulting entirely from this Court‘s and defense counsel‘s lack of assiduousness, and not from plaintiffs’ efforts to enjoin “enforcement” of the rule by the Virginia Court. Indeed, had the defense of legislative immunity raised in the initial stages of the law suit the Virginia Court would have been dismissed out of hand. The defense of legislative immunity was overlooked.11 As a result, the Virginia Court was permitted to be included as an injunctive defendant in both the majority‘s pre- and post-Bates injunction orders. This pleading lapse does not justify an award of attorney‘s fees against the Virginia Court. Indeed, such a circumstance is a “special circumstance” rendering an award of fees unjust.
In summary, I believe it is an abuse of discretion to award attorney‘s fees against the Virginia Court for not doing that which it was not alleged to have done; for not doing that which it was not proved to have done; for not doing that which, as against plaintiffs, it could not have done; and for not doing that which, in practice, it rarely does. Such an award would do nothing to further the purpose of
II.
With respect to the State Bar, I concur with the result in the majority opinion but for a different reason. The majority has concluded that “the Bar‘s endeavors to have the Bar Code amended to conform to constitutional standards . . .” constitute special circumstances rendering a fee award unjust. Ante, at 825. This conclusion slips into the same error as did the majority‘s earlier opinion.12 470 F.Supp. at 1058-63. It focuses on legislative rather than enforcement activity.
In addition, it would be unfair to award fees against the State Bar for dutifully defending DR2-106(A)(6). This might not be true if the rule had been widely perceived, pre-Bates, as unconstitutional. This was not the case, however. The ban on lawyer advertising was a time-honored and universally accepted regulation to the practice of law. Its constitutionality was not seriously questioned prior to Bates, in which the Supreme Court held, in a 5 to 4 decision, that attorneys have a First Amendment right to advertise truthful information about their profession. Before the Bates decision the State Bar could have avoided its duty to defend DR2-106(A)(6) only by pretending that this historical basis for the rule did not exist. Instead, the Bar did its best to defend the rule which it had not promulgated and did not fully support. To require the State Bar to pay plaintiffs’ counsel fees under these circumstances would be a warning to all defendants similarly situated that they defend at their peril. In doubtful, but expensive litigation, the courts will be witnessing a “dive,” in boxers’ parlance, rather than the vigorous defense our adversary system demands. Congress could not have intended this result when it enacted
These circumstances are also significant as they relate to the State Bar‘s “good faith.” Though the Supreme Court has ruled that “bad faith” is not necessary for an award of attorney‘s fee under
On the basis of these special circumstances, an award of attorney‘s fee against the Supreme Court of Virginia and against the Virginia State Bar would be unjust and properly should be denied.
MERHIGE, District Judge, concurring.
I concur with the views expressed in Judge Bryan‘s succinct and learned opinion and write briefly in response to the dissent of my colleague, Judge Warriner.
While concluding it fruitless to address in any detail the views expressed in the dissent, I suggest that adoption of those views would, to a great extent, represent a rejection of Virginia‘s highest court‘s expressed opinion of its statutory and inherent enforcement authority. See Button v. Day, 204 Va. 547, 132 S.E.2d 292.
I decline, out of respect for the opinions of the Supreme Court of Virginia and the Supreme Court of the United States, as well as a duty to follow the law as enunciated by the Supreme Court, to ignore that of which I have judicial notice. See Gormly v. Bunyan, 138 U.S. 623, 635, 11 S.Ct. 453, 457, 34 L.Ed. 1086 (1890); Mills v. Green, 159 U.S. 651, 657, 16 S.Ct. 132, 134, 40 L.Ed. 293 (1895).
Additionally, contra to Judge Warriner‘s expressed statements, the record amply supports and mandates the action the court this day takes.
Lest, however, one mistakenly attributes this response as a total rejection of the statements contained in the dissent, I acknowledge my concurrence with Judge Warriner‘s view that “Plaintiffs’ First Amendment rights were thwarted. . . .” The complete statement reads, “Plaintiffs’ First Amendment rights were thwarted, but were not ‘chilled’ “.1 If, as I conclude, it is intended to suggest that a “thwarting” of one‘s First Amendment rights is less onerous than the “chilling” of one‘s First Amendment rights, my rejection is total.