Fоb JAMES, Jr., in his official capacity as Governor of the State of Alabama and as president of the State Board of Education, et al.
v.
ALABAMA COALITION FOR EQUITY, INC., an Alabama nonprofit corporation, et al.
Fob JAMES, Jr., in his official capacity as Governor of the State of Alabama and as president of the State Board of Education, et al.
v.
Mary HARPER, suing as next friend of Deion Harper and Perry Phillips, minors, et al.
ALABAMA COALITION FOR EQUITY, INC.
v.
Fob JAMES, Jr., et al.
ALABAMA COALITION FOR EQUITY, INC.
v.
Fob JAMES, Jr., et al.
Deion HARPER, et al.
v.
Fob JAMES, Jr., et al.
Deion HARPER, et al.
v.
Fob JAMES, Jr., et al.
STATE SUPERINTENDENT OF EDUCATION and State Board of Education
v.
ALABAMA COALITION FOR EQUITY, INC., et al.
STATE SUPERINTENDENT OF EDUCATION and State Board of Education
v.
ALABAMA COALITION FOR EQUITY, INC., et al.
Supreme Court of Alabama.
*940 Bill Pryor, atty. gen., and Brock B. Gordon, Mobile, for appellant Attorney General Bill Pryor.
M. Roland Nachman, Jr., Montgomery; and William P. Gray, Jr., legal advisor to the Governor for appellants Governor James and Finance Director Sage Lyons.
Michael R. White, general counsel, Department of Education; and Denise B. Azar and Ashley H. Hamlett, Office of General Counsel, Department of Education, for appellants State Superintendent of Education and State Board of Education.
Robert D. Segall of Copeland, Franco, Screws & Gill, Montgomery; and Christopher A. Hansen, American Civil Liberties Union Foundation, New York City, for Harper cross-appellants/appellees.
Reuben W. Cook, Alabama Disabilities Advocacy Program, Tuscaloosa, for Alabama Disabilities Advocacy Program and John Doe.
C.C. Torbert, Jr., of Maynard, Cooper & Gale, Montgomery; James Allen Main and L. Landis Sexton of Beasley, Wilson, Allen, Main & Crow, P.C., Montgomery; Michael D. Waters of Miller, Hamilton, Snider & Odom, Montgomery; and James G. Speake of Speake & Speake, Moulton, for appellees/cross appellants Alabama Coalition for Equity, Inc., et al.
COOK, Justice.
These cases arise out of the ongoing litigation known as the "Public School Equity Funding Case." See Ex parte James,
The judgment in the Liability Phase was entered on March 31, 1993. On June 9, 1993, the Honorable Eugene Reese, judge of the Montgomery County Circuit Court, acting pursuant to Ala. R. Civ. P. 54(b), certified that judgment as final. The same day, he entered a separate order stating in part:
"The plaintiffs are entitled and allowed their costs and expenses, including the award of reasonable attorneys' fees for the attorneys for the plaintiffs, in such amounts as the court shall hereafter determine upon application of the plaintiffs. The parties plaintiff may make application for interim attorneys' fees and interim costs and expenses by application to this *941 court, with notice to the parties defendant, on or before January 1, 1994, or upon application to this court, at some later date.
"This Order involves a final decision as to fewer than all of the claims of the plaintiffs, and there is no just reason for delay. Accordingly, pursuant to Rule 54(b) of the Alabama Rules of Civil Procedure, the court certifies this Order as a final judgment."
(Emphasis added.) No appeals were taken, either from the Liability Phase judgment, or, from the June 9, 1993, order involving attorney fees (the "Reese Fee Order").
In 1996, the plaintiffs-cross appellants petitioned the trial court for awards of attorney fees and expenses for their efforts through March 31, 1993, that is, for the litigation of the Liability Phase. On November 19, 1996, the Honorable Sarah M. (Sally) Greenhaw, judge of the Montgomery County Circuit Court, entered an order awarding fees in the amounts of $1,800,000; $1,564,375; and $235,360 to ACE, Harper, and ADAP, respectively (the "Greenhaw Fee Order"). Appeals and cross appeals followed. Appeals were filed in cases 1960327 and 1960328 by Governor Fob James, Jr.; State Finance Director Sage Lyons; and Attorney General Jeff Sessions (the "James Appellants"). Appeals were also filed in cases 1960489 and 1960490 by State Superintendent of Education Ed Richardson and the State Board of Education. Cross appeals were filed in cases 1960470 and 1960471 by ACE, and in cases 1960472 and 1960473 by Harper and ADAP.
On March 20, 1997, this Court issued an order to Judge Greenhaw, stating in pertinent part:
"It appearing to the Court that all claims have not been adjudicated, this cause is remanded to you for a determination as to whether to make the interlocutory order of November 19, 1996, awarding attorneys' fees, a final judgment pursuant to the provisions of Rule 54(b), Alabama Rules of Civil Procedure.
"If you elect to enter the 54(b) order, or any other final judgment, a supplemental record reflecting such action should be prepared and forwarded to this Court within fourteen (14) days from the date shown on this remand. The judgment will be considered final as of the date the new order is entered.
"Failure to respond to this remand within fourteen (14) days will result in dismissal of the appeal as being from a non-final order."
On March 26, 1997, Judge Greenhaw certified the Greenhaw Fee Order as a final judgment pursuant to Rule 54(b). We first address issues regarding the finality and appealability of these fee orders.
I. Finality and Appealability
At the outset, we note that none of the appellants challenges the specific amounts awarded the plaintiffs-cross appellants. They challenge only the entitlement vel non to an award of attorney fees in this action.
A. The Reese Fee Order
The appellants first contend that the Reese Fee Order was interlocutory and insist that, because it addressed only the liability for fees, but postponed until a future date the actual assessment of the fees, it was not such an order as could be made final pursuant to Rule 54(b). In other words, they contend, Rule 54(b) did not authorize the certification of the Reese Fee Order as a final judgment. We agree with this contention.
Not every order has the element of finality necessary to trigger the application of Rule 54(b). Tanner v. Alabama Power Co.,
The Sidag case arose out of an action commenced in 1979 by Sidag Aktiengesellschaft and Sicilia di R. Biebow & Co. ("Sidag") against, among others, Smoked Foods Products Company and Sales U.S.A., Inc. *942 ("Sales"). Id. at 82. On September 19, 1984, following a number of judgments adverse to Sidag, a magistrate ordered Sidag to "`pay the expenses and attorneys' fees incurred by' Sales `in obtaining [an] Order of Dismissal [in that stage of the litigation] and in continuing to defend against Plaintiffs' claims since July 28, 1982.'" Id. at 83. At that time, however, the magistrate merely "directed Sales to submit by affidavit an itemized list of its said costs, expenses, and attorneys' fees [within] thirty days." Id. Nevertheless, by an order dated September 26, 1984, the magistrate attempted to certify the September 19 order as a final judgment, stating in part: "Pursuant to Fed. R. Civ. P. 54, the court now expressly determines that there is no just reason for delay and hereby directs entry of separate final judgment ... awarding said dismissed parties costs and attorneys' fees against plaintiffs in accordance with the Order... dated September 19, 1984...." Id.
On the appeal of the judgment of dismissal, the Court of Appeals for the Fifth Circuit "affirmed ... the dismissal of all claims against Sales." Id. "Thereafter, Sales filed in the district court its itemized costs, expenses, and attorneys' fees." Id. "Subsequently, the magistrate, by order dated August 28, 1986 and entered August 29, 1986, approved a portion of the attorneys' fees and expenses claimed by Sales, in various amounts totaling $27,365.32." Id. Although the August 28, 1986, order awarding a definite sum in attorney fees was never certified as final, Sidag appealed.
The Court of Appeals for the Fifth Circuit dismissed the appeal as being from an interlocutory order. Id. at 84. In doing so, it explained:
"Rule 54(b) certification has no purpose other than to make final a given adjudication which would otherwise be nonfinal by reason of, but only by reason of, the continued presence in the same suit of other undisposed of claims or parties. Only a fully adjudicated whole claim against a party may be certified under Rule 54(b). See Liberty Mutual Ins. Co. v. Wetzel,424 U.S. 737 , 742-44,96 S.Ct. 1202 , 1206,47 L.Ed.2d 435 (1976).... If a purported Rule 54(b) certification of a ruling respecting a claim is not authorized by that rule, the certification is wholly ineffective....
"Here the magistrate's September 1984 Rule 54(b) certification purported to certify for appeal his ruling that Sidag was liable for Sales' attorneys' fees. The certification in respect to attorneys' fees was ineffective because the whole of Sales' claim against Sidag for attorneys' fees had not been adjudicated since the amount of recoverable fees remained undetermined (and, indeed, what the magistrate purportedly certified in this regard was not the whole attorneys' fees claim, but only the liability portion thereof).... Just as an order ... dismissing with prejudice all Sidag's claims against [one defendant] only, but not touching any of Sidag's claims against Smoked Foods or Sales' attorneys' fees claim against Sidag, would not be appealable in the absеnce of a Rule 54(b) certificate, so also the 1986 order fixing the amount of Sales' attorneys' fees was not appealable without such a certificate."
Sidag is substantively indistinguishable from this case. Both cases involve two separate attorney fee orders. There, as here, the trial court, in the first order, purported to certify a holding of fee liability without fixing the amount. In both cases, the trial court subsequently entered an order fixing the amount, but failed to certify the latter order as final pursuant to Rule 54(b). Here, as there, the order actually awarding fees was, without the requisite certification, not final and appealable. That, of course, is the reason this Court issued its March 20, 1997, order to Judge Greenhaw allowing further action.
In a related argument, the James Appellants contend that "even the liability order of March 31, 1993, was not a `final order'; could not be certified under Rule 54(b); and was not appealable to this Court, regardless of *943 such certification." Brief of [James] Appellants, at 9. In this way, theyonce again urge us to revisit and review the order entered in the Liability Phase, an order that became final pursuant to Rule 54(b) on June 9, 1993, and therefore appealable, and from which no appeal was taken.
This Court has been presented with arguments as to the reviewability of the Liability Phase judgment on no less than three prior occasions. First, Joyce Pinto and others (the "Pinto intervenors") strenuously urged us to review the Liability Phase on various grounds. Brief of Pinto Appellants (Case Nos. 1931030 & 1931031), at 41-49. We considered those arguments and rejected them without substantive discussion in Pinto v. Alabama Coalition for Equity,
In our opinion released on January 10, 1997, we clearly rejected that argument. Specifically, we stated: "[U]nlike the Liability Phase, which `ascertained and declared the rights of the parties,' Taylor v. Taylor,
"It is clear beyond question that the Liability Order became final under traditional, well-established principles of law. The following parties chose not to appeal from the Liability Order: then Governor of Alabama Guy Hunt; Speaker of the House of Representatives James Clark; then State Finance Director Robin Swift; and then Superintendent of Education Wayne Teague; and the members of the State Board of Education. It makes no legal difference to the finality of that order that other persons, who may disagree with that decision not to appeal, now hold those offices."
The James Appellants rely on Tanner v. Alabama Power Co.,
This Court "dismiss[ed] the appeals as premature," holding that the failure of the trial court to assess the damages to which the Tanners were entitled rendered ineffective its Rule 54(b) certification.
Indeed, the rule on which the James Appellants rely is properly stated as follows: "A judgment for damages to be final must ... be for a sum certain determinable without resort to extraneous facts." Jewell v. Jackson & Whitsitt Cotton Co.,
"Automatic" Sprinkler Corp. of America v. B. F. Goodrich Co.,
Similarly, Alldridge v. Metro Bank,
The Court of Civil Appeals, however, held that the judgment was "not such a final judgment under [Rule] 54(b) as [would] support an appeal."
This Public School Equity Funding Case is qualitatively different from these "damages" cases and is subject to the well-established rule stated in Ex parte Elyton Land Co.,
"The test of the finality of a decree to support an appeal is not whether the cause remains in fieri, in some respects, in the court of chancery, awaiting further proceedings, necessary to entitle the parties to the full measure of the rights it has been declared they have; but whether the decree which has been rendered, ascertains and declares these rightsif these are ascertained and adjudged, the decree is final and will support an appeal."
(Emphasis added.) The question in Elyton Land Co. was whether a decree entered in favor of Rebecca Denny, who had sought an assignment of her dower rights in real estate held by her late husband, was final and appealable.
"Whether dower should be assigned by metes and bounds; or whether compensation should be decreed in lieu of such assignment; which of the defendants should be charged with the payment of rents, for what parts of the lands, and what portions; whether the rents should be computed on the basis of the enhanced *945 value of the lands because of the improvements, or without regard to such improvements, were incidents, consequential to the decree the court had rendered, adjudging that the complainant was entitled to be endowed of the lands; essential to the execution of that decree, and to confer uрon her the possession and enjoyment of the rights, the decree adjudged she was entitled to have and enjoy."
This rule has been expressed and applied in recent cases. See, e.g., Taylor v. Taylor,
"Equity decrees may be partly final and partly interlocutory. A decree which ascertains and declares the rights of the parties and settles the equities is a final decree, although it provides for further proceedings under the direction of the court in order to carry the decree into effect. If there is a decree directing further proceedings under the direction of the court in order to make the final decree effective, such decree is interlocutory and remains within the control of the court because as to such decree and further proceedings thereunder the cause remains in fieri."
Even more significantly from the point of view of this case, "[i]n equity cases there can be more than one final judgment from which an appeal may be taken." Norris v. Norris,
Indeed, the Liability Phase order of this "bifurcated" action falls within this latter rule. This is because the Liability Phase order did nothing more than declare the challenged statutory scheme unconstitutional, and, in doing so, put to rest these constitutional issues. In that respect, it differed not at all from the approach adopted in Rose v. Council for Better Educ., Inc.,
That these "damages" cases, and the rule derived therefrom, are inapplicable to this case should be readily apparent. Unlike those cases, this case did not at any time anticipate the assessment of damages. It involved the plaintiffs' equitable and constitutional claims that Alabama's public school system "does not offer equitable and adequate educational opportunities to the schoolchildren of the state," as is constitutionally required, and the enforcement of the declaratory *946 and injunctive relief the plaintiffs requested. Opinion of the Justices No. 338,
B. The Greenhaw Fee Order
Although we agree with the appellants that Rule 54(b) did not authorize the certification of the Reese Fee Order as a final judgment, we cannot conclude, as they urge us to do, that the noncertifiability of the Reese Fee Order provides a basis for a reversal of the Greenhaw Fee Order, which has now been properly certified in accordance with our March 20, 1997, order. Specifically, they contend that Judge Greenhaw erroneously concluded that she could not revisit the issue of the entitlement vel non to an award of attorney fees, believing, incorrectly, that the Reese Fee Order had become final and unchallenged by a timely appeal. Thus, they argue, because the Greenhaw Fee Order is based on a false premise, the judgment on which it is based must be reversed and the cause remanded for consideration as to whether the plaintiffs-cross appellants are, in fact, entitled to any award of fees. In support of this proposition, they cite the following portion of the Greenhaw Fee Order:
"This matter is before the court on applications for attorneys' fees and expenses filed by Plaintiffs' attorneys and Defendants' responses and opposition thereto. On March 31, 1993, the trial court entered judgment granting Plaintiffs injunctive and declaratory relief in what is commonly referred to as the `liability order.' On June 9, 1993, this order was made final pursuant to Rule 54(b), A.R.C.P. and the judgment was not appealed. On the same day a separate order was entered, which was also certified as a final judgment pursuant to Rule 54(b), A.R.C.P., and no appeal was taken from it. This order provided, in part:
"`8. The plaintiffs are entitled and allowed their costs and expenses, including the award of reasonable attorneys' fees for the attorneys for the plaintiffs, in such amounts as the court shall hereafter determine upon application of the plaintiffs ....'
"The threshold issue is whether this court has authority to award attorneys' fees pursuant to this order. As stated these orders were made final, which is in marked contrast to the October 22, 1993, Remedy Order wherein the court specifically retained jurisdiction over the matter. Furthermore, the Petition For Writ of Prohibition, Or Alternatively, For a Writ of Mandamus, filed by defendants did not include the above referenced June 9, 1993 order. That petition involved the orders of March 31, 1993, October 22, 1993 and December 3, 1993. Moreover, the Supreme Court of Alabama in its order of April 10, 1995 denying the petition, again determined that final orders not appealed within the time allowed cannot be considered by that Court. Finally, on April 18, 1996, the Supreme Court lifted its stay with regard to the issue of attorneys' fees. Based on the foregoing, this court is of the opinion the June 9, 1993 order allowing an award of attorneys' fees is final and a determination may be made regarding entitlement to such fees."
(Emphasis added.)
We disagree with the appellants' arguments for reversal on this ground, for two reasons. First, this Court has written: "`Judgments are to be construed like other written instruments.' Hanson v. Hearn,
Particularly significant is Judge Greenhaw's statement: "The threshold issue is whether this court has authority to award attorneys' fees pursuant to [the Reese Fee] [O]rder." (Emphasis added.) She followed up this statement with thorough analyses of various theories under which attorney fees might be awarded. Eventually, she concluded that she had authority to award fees to Harper and ADAP pursuant to the Civil *947 Rights Attorney Fee Act of 1976, 42 U.S.C. § 1988, and to ACE pursuant to the "common fund" theory.[1]
Moreover, the amounts she awarded were substantialtotalling $3,599,735. Had she not concluded, based on an independent assessment of the right to attorney fees, that her "court [had] authority to award attorneys' fees," regardless of the Reese Fee Order, she would, it seems likely, have awarded only nominal sums. Suffice it to say that these factorsher detailed analyses and the substantial amount of fees she ultimately awardedare entirely inconsistent with the appellants' construction of her order, namely, that it did not constitute an independent assessment of the entitlement. The language in the Greenhaw Fee Order on which the appellants rely may be regarded as harmless surplusage.
This conclusion is fully consistent with the well-established rule that "[a] correct decision will not be disturbed even if the court gives the wrong reasons." Davison v. Lowery,
II. Section 1988 and Constitutional Bases for the Liability Phase Order
Judge Greenhaw's analysis of the theories under which the fees were sought and awarded began as follows:
"The attorneys claim fees under two different theories. The attorneys for the Alabama Coalition for Equity, Inc., (ACE) plaintiffs claim fees only under the common fund or benefit doctrine. The Harper attorneys contend they are entitled to fees under ... the common benefit doctrine and/or pursuant to 42 U.S.C. [§] 1988. The attorneys for the Alabama Disabilities Advocacy Program (ADAP) and John Doe plaintiffs claim fees only under Sec. 1988." Ultimately, she awarded fees on two of the theories argued by the parties. To ACE, she awarded fees pursuant to the "common fund" theory. To Harper and ADAP, she awarded fees pursuant to § 1988.
Section 1988(b) provides in pertinent part: "In any action or proceeding to enforce a provision of [42 U.S.C. §§] 1981, 1981a, 1982, 1983, 1985, and 1986 of this title, ... the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." (Emphasis added.) Section 1983 provides in pertinent part:
"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."
Section 1983 is a procedural deviceone of those specifically set forth in § 1988by which the substantive rights guaranteed by the Constitution and statutes of the United States may be enforced. Chapman v. Houston Welfare Rights Organization,
Section 1988 authorizes an award of attorney fees, "payable by the States when their officials are sued in their official capacities," Hutto v. Finney,
In this connection, Judge Greenhaw found that "[t]he ... plaintiffs in their complaints asserted federal constitutional claims under 42 U.S.C. [§] 1983." The pleadings and arguments of the parties bear out this finding. This action was initiated May 3, 1990, by ACE in a complaint seeking, among other things, a declaration that Ala. Const. 1901, amend. 111, violated "the Equal Protection Clause of the Fourteenth Amendment of the Constitution of the United States in that it has a racially discriminatory purpose and effect." It also sought a judgment declaring that "[t]he statutes, procedures and administrative determinations constituting the State funding structure for public education in the state ... deprive[d] the individual plaintiffs... of their rights to equal protection and due process of law as guaranteed by the Fourteenth Amendment...." On May 23, 1991, ACE moved to amend its complaint, alleging that the "[d]efendants, acting under color of state statute, ordinance, regulation, custom or usage, [had] subjected plaintiffs to the deprivation of rights, privileges or immunities secured by the United States Constitution and laws." ACE further moved to "amend paragraph 1 of [its] complaint to add 42 U.S.C. § 1983 as a jurisdictional ground for this action."
ADAP moved to intervene in the action on August 2, 1990, with a "Proposed Complaint of Intervenor-Plaintiffs." In an accompanying affidavit, an ADAP representative stated: "Plaintiffs' complaint seeks, among other remedies, a declaration that the funding structure for public education in the State of Alabama violates the State and Federal constitutional and statutory rights of the plaintiffs to equal protection and due process of law." (Emphasis added.) The ADAP complaint alleged in part: "The education of exceptional students in Alabama has been traditionally underfunded in violation of the Constitution and laws of the State of Alabama. These concerns are inextricably intertwined with the issues raised by the pursuit of equal educational opportunities by the existing Plaintiffs in this lawsuit."
The Harper plaintiffs sued on January 18, 1991, in a complaint alleging violations of the United States Constitution. More specifically, it stated:
"This suit is a civil rights action arising under the Constitution of Alabama, art. XIV, § 256; art. I, §§ 1, 6, 13, and 22; the Fourteenth Amendment to the U.S. Constitution; and 42 U.S.C. §§ 1983 and 1988.... This suit is to redress the deprivation under color of State law of rights, privileges, and immunities secured to Plaintiffs by the Constitution and laws of the State of Alabama and the United States."
(Emphasis added.)
Indeed, the appellants do not challenge the sufficiency of the pleadings to invoke §§ 1983 and 1988. They merely contend that the Liability Phase order was based entirely on the Constitution of Alabama. We disagree with this contention.
To be sure, in the Liability Phase order the trial court held that the system by which Alabama administered its public schools violated "`Ala. Const. art. I, §§ 1, 6, 13, and 22 [guaranteeing Alabama citizens equal protection of the laws] and art. XIV, § 256 [guaranteeing Alabama citizens access to a "liberal system of public schools"].'" Pinto,
"The legislature shall establish, organize, and maintain a liberal system of public schools throughout the state for the benefit of the children thereof between the ages of seven and twenty-one years. The public school fund shall be apportioned to the several counties in proportion to the number of school children of school age therein, and shall be so apportioned to the *949 schools in the districts or townships in the counties as to provide, as nearly as practicable, school terms of equal duration in such school districts or townships. Separate schools shall be provided for white and colored children, and no child of either race shall be permitted to attend a school of the other race."
(Emphasis added.) Amendment 111, which was ratified in 1956, provides in pertinent part (as an amendment tо § 256):
"It is the policy of the state of Alabama to foster and promote the education of its citizens in a manner and extent consistent with its available resources, and the willingness and ability of the individual student, but nothing in this Constitution shall be construed as creating or recognizing any right to education or training at public expense, nor as limiting the authority and duty of the legislature, in furthering or providing for education, to require or impose conditions or procedures deemed necessary to the preservation of peace and order.
"The legislature may by law provide for or authorize the establishment and operation of schools by such persons, agencies or municipalities, at such places, and upon such conditions as it may prescribe, and for the grant or loan of public funds and the lease, sale or donation of real or personal property to or for the benefit of citizens of the state for educational purposes under such circumstances and upon such conditions as it shall prescribe. Real property owned by the state or any municipality shall not be donated for educational purposes except to nonprofit charitable or eleemosynary corporations or associations organized under the laws of the state.
"To avoid confusion and disorder and to promote effective and economical planning for education, the legislature may authorize the parents or guardians of minors, who desire that such minors shall attend schools provided for their own race, to make election to that end, such election to be effective for such period and to such extent as the legislature may provide."
(Emphasis added.)
Amendment 111, on its face, purported to abrogate the provision of § 256 requiring the legislature to "establish, organize, and maintain a liberal system of public schools throughout the statе." In its place, it proposed to vest in the legislature absolute discretion as to the relative amounts of funding, if any, it would make available to the public schools in this state.
On January 22, 1991, and March 21, 1991, ACE and Harper, respectively, moved for summary judgments on their claims that Amendment 111 violated the Fourteenth Amendment. They supported their motions with briefs and extensive materials, including affidavits, which asserted, among other things, that Amendment 111 was submitted by the legislature in opposition to Brown v. Board of Education,
"1. Amendment 111 ... of the Alabama Constitution is declared and hereby is void ab initio and in its entirety under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
"2. The mandate of Section 256 of the Alabama Constitution of 1901 is declared, and hereby is, in effect to the extent that it provides: `The legislature shall establish, organize, and maintain a liberаl system of public schools throughout the state for the benefit of the children thereof between the ages of seven and twenty-one years.' The second and third sentences of Section 256 of the Alabama Constitution of 1901 are declared to be without force or effect under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution."
(Emphasis added; footnotes omitted.) On October 18, 1991, the trial court certified the August 13, 1991, judgment as final pursuant to Rule 54(b). That judgment, like the March 31, 1993, Liability Phase judgment, was never appealed.
In support of their contentions that the Liability Phase judgment was based entirely on the Constitution of Alabama, the appellants quote a portion of the Liability Phase judgment, stating: "Each of the state law *950 holdings in this decision `rest[s] on an adequate and independent state ground.'" (Quoted in Opinion of the Justices No. 338,
The James Appellants cite Ala. Const. 1901, § 14, which provides "[t]hat the State of Alabama shall never be made a defendant in any court of law or equity." They insist that § 14 "bars any award of attorneys' fees against the State of Alabama in favor of any of the plaintiffs-appellees in this action." However, as we have stated previously in this opinion, the doctrine of State sovereign immunity does not bar an award of attorney fees pursuant to §§ 1983 and 1988. Hutto v. Finney,
III. Applicability of the Common-Fund Doctrine
A. Harper and ADAP
In the trial court, Harper and ADAP sought fee awards under two theories: (1) § 1988, and (2) the common-fund/benefit theory. "The `common fund' doctrine is an equitable principle designed to compensate an attorney whose services on behalf of his client created a fund to which others may also have a claim." City of Ozark v. Trawick,
The trial court awarded these parties fees only pursuant to § 1988. Harper and ADAP do not challenge the amount of fees awarded; rather, they cross appeal only on the issue whether the trial court erred in refusing to base its award on the common-fund/benefit theory. We conclude that the trial court did not err in this respect.
"The recovery of attorney fees in Alabama is allowed `only where authorized by statute, when provided in a contract, or by special equity, such as in a proceeding where the efforts of an attorney create a fund out of which fees may be paid.'" Wiberg v. Sadoughian,
B. ACE
ACE's cross appeal presents two issues not presented in the cross appeals of Harper *951 and ADAP. First, the award to ACEunlike the awards to Harper and ADAPwas based, not on § 1988, but on the common-fund theory. The trial court concluded that a "common fund ha[d] been created," which fund was "comprised," it held, "of $18,300,000.00 [in] reallocation of funds to the ACE Plaintiffs' school systems from the 1994-1995 education appropriations." The court then held that ACE was entitled to $1,800,000, that is, approximately 10% of the $18,300,000.
Second, unlike Harper and ADAP, ACE does contend that its award was inadequate. In other words, it contends that it was due a larger percentage of a larger "common fund." Specifically, it contends that a common fund was created in an amount no less than $105,000,000 and that it was entitled to no less than 15% of that amount.
However, § 1988 is as applicable to the claims of ACE as it is to the claims of Harper and ADAP. The reasons why the award to ACE was not based on § 1988as were those of Harper and ADAPdo not appear to us in the Greenhaw Fee Order, or anywhere else. Indeed, the § 1983 and Fourteenth Amendment bases of the claims underlying the Liability Phase order were stated even more cogently in the pleadings of ACE than in those of the other plaintiffs-cross appellants. Because § 1988 was applicable, the fees should have been awarded under the statutory theory. Northcross v. Board of Educ. of Memphis City Schools,
IV. Conclusion
We have considered all arguments of the parties and find no reason to reverse the judgment. Therefore, the judgment is affirmed.
1960327AFFIRMED.
1960328AFFIRMED.
1960470AFFIRMED.
1960471AFFIRMED.
1960472AFFIRMED.
1960473AFFIRMED.
1960489AFFIRMED.
1960490AFFIRMED.
ALMON, SHORES, and KENNEDY, JJ., concur.
SEE, J., concurs in the result.
HOOPER, C.J., and MADDOX and HOUSTON, JJ., concur in the result but dissent from the rationale.
BUTTS, J., recuses himself.
MADDOX, Justice (concurring in the result but dissenting from the rationale).
No attorney for the plaintiffs or intervenors is entitled to attorney fees under 42 U.S.C. § 1988. To the еxtent the main opinion would authorize the payment of attorney fees under § 1988, I disagree with that opinion, and I specifically dissent from the reasoning of that portion of the opinion.
For the following reasons, I would affirm the trial court's determination that the attorneys for the plaintiffs-cross appellants are entitled to the attorney fees awarded, even though I disagree with the grounds used by the trial court and by today's main opinion to support the awards.[3]
Alabama generally follows the "American rule," which authorizes an award of attorney fees if they are provided for by statute or by contract, or when they are called for by a special equity, such as when litigation results in a benefit to the general public. See, Battle v. City of Birmingham,
In Battle, the plaintiff sued to enjoin what she claimed was an improper practice by the City in allowing a waste disposal company to construct and potentially operate a garbage transfer facility in violation of the City's zoning laws; the zoning laws required the approval of the Birmingham Planning Commission and the Birmingham City Council in order for the company to construct and operate the facility. She claimed that her lawsuit had resulted in a benefit to the general public. This Court stated the law as follows:
"Whether to award or to deny attorney fees lies within the sound discretion of the trial court. On appeal, the trial court's ruling on that question is subject to reversal only upon a showing of abuse of discretion. Advertiser Co. v. Auburn University,579 So.2d 645 (Ala.Civ.App.1991).
"Alabama follows the `American rule,' whereby attorney fees may be recovered if they are provided for by statute or by contract or if they are called for by special equity, such as in proceedings where the attorney's efforts create a `common fund' out of which fees may be paid. Reynolds v. First Alabama Bank of Montgomery, N.A.,471 So.2d 1238 (Ala.1985). As noted above, under the principles stated in [Bell v. Birmingham News Co.,576 So.2d 669 (Ala.Civ.App.1991), and Brown v. State,565 So.2d 585 (Ala.1990)], the fact that litigation has not produced a monetary recovery does not preclude an award of attorney fees, if the litigation results in a benefit to the general public."
This Court, in Reynolds, and Brown, supra, extended the "special equity" rule to apply to situations where litigation resulted in a benefit to the general public; in Brown it quoted Mills v. Electric Auto-Lite Co.,
"`While the general American rule is that attorney's fees are not ordinarily recoverable as costs, both the courts and Congress have developed exceptions to this rule for situations in which overriding considerations indicate the need for such a recovery. A primary judge-created exception has been to award expenses where a plaintiff has successfully maintained a suit, usually on behalf of a class, that benefits a group of others in the same manner as himself.
"`....
"`The fact that this suit has not yet produced, and may never produce, a monetary recovery from which the fees could be paid does not preclude an award based on this rationale. Although the earliest cases recognizing a right to reimbursement involved litigation that had produced or preserved a "common fund" for the benefit of a group, nothing in these cases indicates that the suit must actually bring money into the court as a prerequisite to the court's power to order reimbursement of expenses. "The foundation for the historic practice of granting reimbursement for the cost of litigation other than the conventional taxable costs is part of the original authority of the chancellor to do equity in a particular situation. Sprague v. Ticonic Nat. Bank,307 U.S. 161 , 166,59 S.Ct. 777 [780],83 L.Ed. 1184 , 1187 (1939)." ...'
"This litigation clearly resulted in a benefit to the general public. It is unquestionable that plaintiffs' attorneys rendered a public service by bringing an end to an improper practice. The public nature of the services rendered by these lawyers justifies an award of attorney fees. See Callahan v. Wallace, [466 F.2d 59 (5th Cir.1972)], at 62."
Brown,
In view of the principles of law this Court has set forth in the cases cited above, it appears to me that this State has adopted a rule that has been described as "one of equitable sharing according to the benefit, and not the presence of a fund vel non." James W. Moore, Moore's Federal Practice, 6 *953 § 54.78[3] (2d ed.1996). I believe that rule is particularly applicable in this case, which involves an issue of the right of a child to a public education, a right included in every state constitution since Alabama became a state, but, unfortunately, a right that has become embroiled in a debate about the doctrine of separation of powers among coordinate, independent branches of state government and about whether certain orders were "final" or not. Rule 1(c), Ala. R. Civ. P., states that the Rules of Civil Procedure "shall be construed and administered to secure the just, speedy and inexpensive determination of every action." Rule 1(c) would seem to be particularly applicable here, given that this case has been pending for years; that the original state defendants did not appeal; that the Alabama Senate asked the Justices of this Court, as it was then constituted, for an advisory opinion, which the Justices gave; and that a majority of this Court has refused to overturn the liability order.
Therefore, I would affirm the trial court's award of $1,800,000 to the attorneys for ACE; $1,564,375 to the attorneys for Harper; and $235,360 to the attorneys for ADAP. Thus, I concur in the result.
HOOPER, C.J., and HOUSTON, J., concur.
NOTES
Notes
[1] These theories we discuss in more detail in another section of this opinion.
[2] It is well settled that "[a] correct judgment ... will not be reversed even if the trial court has based it on the wrong reasons." Smith v. Scott Paper Co.,
[3] "A correct decision will not be disturbed even if the court gives the wrong reasons." Davison v. Lowery,