On petition for writ of certiorari to the United States Court of
Appeals for the Fourth Circuit.
The petition for writ of certiorari is denied.
Chief Justice BURGER, with whom Justice REHNQUIST joins,
dissenting from denial of certiorari.
This petition marks the third occasion this case has been before
us. The case arose in 1975 when respondent brought
Page 462 U.S.
1137 , 1138
a suit under 42 U.S.C. 1983 alleging that particular provisions
of the State Bar Code promulgated by the Virginia Supreme Court
violated respondent's rights under the First and Fourteenth
Amendments. Having prevailed in its 1983 suit for declaratory and
injunctive relief against the Virginia Supreme Court and its Chief
Justice (together, the "Virginia Court"), the issue now is whether
respondent is entitled to attorney's fees from that court 1 under
the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C.
1988. This was also the issue we addressed the last time this case
came before us, when we vacated an award of attorney's fees against
the Virginia Court on the ground that it "was premised on acts or
omissions for which [the Virginia Court] enjoyed absolute
legislative immunity." Supreme Court of Virginia v. Consumers Union
of the United States, Inc.,
446 U.S.
719, 738, 1977 ( 1980) (Consumers Union ).
Justice POWELL took no part in the consideration or decision of
this petition.
On remand, a divided three-judge District Court reinstated the
award of attorney's fees against the Virginia court,
505 F.
Supp. 822 (ED Va.1981 ), and a divided panel of the Court of
Appeals affirmed.
688 F.2d
218 ( CA4 1982). Because I believe that the District Court
misinterpreted our opinion in Consumers Union and erred in
reinstating the fee award, I would grant certiorari.
I
It is unnecessary to review here at length the prior history of
this case, which is set out in detail in Consumers Union. There,
two basic issues faced the Court:
"[W]hether the Supreme Court of
Virginia (Virgi ia Court) and its chief justice are officially
immune from
Page 462 U.S.
1137 , 1139
suit in an action brought under 42 U.S.C. 1983 challenging the
Virginia Court's disciplinary rules governing the conduct of
attorneys and whether attorney's fees were properly awarded under
the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C.
1988, against the Virginia Court and its chief justice in his
official capacity." 446 U.S., at 721.
With respect to the first issue, we held that the Virginia Court
was not subject to suit under 1983 for its legislative acts-such as
promulgating disciplinary rules-any more than state legislators
could be sued for their legislative acts: "[T]he Virginia Court and
its members are immune from suit when acting in their legislative
capacity." Id., at 734. However, the Court went on to hold that the
Virginia Court was a proper defendant in a coercive action brought
under 1983 because it possessed enforcement powers. "As already
indicated, 54- 74 [of the Code of Virginia (1978) ] gives the
Virginia Court independent authority of its own to initiate
proceedings against attorneys. For this reason the Virginia Court
and its members were proper defendants in a suit for declaratory
and injunctive relief, just as other enforcement officers and
agencies were." Id., at 736.
Turning to the second issue, we vacated the award of attorney's
fees against the Virginia Court. The District Court had awarded
fees against the Virginia Court because "it was the very authority
that had propounded and failed to amend the challenged provisions
of the Bar Code." Id., at 738. This was error because the Virginia
Supreme Court had legislative immunity for its acts in promulgating
disciplinary rules:
"We are unable to agree that
attorney's fees should have been awarded for the reasons relied on
by the District Court. Although the Virginia Court and its chief
justice were subject to suit in their direct enforcement role, they
were immune in their legislative roles. Yet
Page 462 U.S.
1137 , 1140
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." Ibid.
We explained that nothing in the legislative history of 1988
indicated that Congress "intended to permit an award of attorney's
fees to be premised on acts for which the defendants would enjoy
absolute immunity ." Ibid.
We then vacated the award of attorney's fees and remanded,
presumably to permit the District Court to determine whether the
role of the Virginia State Bar-the Virginia Court's codefendant in
the case-in enforcing the challenged rules justified an award of
attorney's fees against it.
On remand, the District Court interpreted Consumers Union as
holding that an award of attorney's fees against the Virginia Court
would be appropriate on the existing record "based solely on the
Virginia Court's enforcement role. . . ." 505 F.Supp., at 823. The
District Court reasoned that because the Virginia Court's
enforcement role rendered it liable to a coercive suit under 1983,
it was also liable for attorney's fees under 1988:
"It seems clear that 'in the
circumstances of this case, a sufficiently concrete dispute is made
out against the Virginia Court as an enforcer,' . . . not only for
amenability to suit, but also for the purpose of a fee award to
[respondent], the prevailing party." Id., at 823-824, quoting
Consumers Union, 446 U.S., at 737, n. 15, n. 15.
The District Court quoted Newman v. Piggie Park Enterprises,
Inc.,
390 U.S.
400, 402, 966 (1968), in arguing that 1988 ordinarily requires
an award of attorney's fees against a party properly sued under
1983 " 'unless special circumstances would render such an award
unjust.' " 505 F.Supp., at 824. It concluded that o such
circumstances existed here and so awarded fees against the Virginia
Court.
Page 462 U.S.
1137 , 1141
One judge dissented, arguing that the Virginia Court's
"enforcement role" was not established by the record and hence
could not serve as the basis for an award of attorney's fees.
A divided Court of Appeals affirmed, holding that the award of
attorney's fees against the Virginia Court was not an abuse of
discretion. The Court of Appeals interpreted Consumers Union as
holding that an award of attorney's fees would be justified on this
record. [
Footnote 2]
II
The immunity of judges from monetary judgments for their actions
as judges is deeply embedded in our legal system. E.g., Stump v.
Sparkman,
435 U.S.
349 (1978); Bradley v. Fisher, 80 U.S. (13 Wall.) 335 (1871);
Johnston v. Moorman, 80 Va. (5 Hans.) 131, 139-140 (1885). In
Pierson v. Ray,
386
U.S. 547, 554-555, 1217-1218 (1967), we refused, in the absence
of specific statutory language, to presume that Congress intended
by enacting Section 1 of the Civil Rights Act of 1871, 42 U.S.C.
1983, to displace the historic rule of judicial immunity; we held
that the doctrine of judicial immunity was applicable in suits for
damages under that section. The principles of Pierson apply with
full force to suits for attorney's fees under 1988.
Page 462 U.S.
1137 , 1142
Nothing in the language or legislative history of the Civil
Rights Attorney's Fees Awards Act of 1976 specifically indicates
Congress' intent to sweep away the historic immunity of judges from
monetary judgments. In Pierson, the Court explained that the
purpose of judicial immunity
" 'is not for the protection or benefit of a malicious or
corrupt judge, but for the benefit of the public, whose interest it
is that the judges should be at liberty to exercise their functions
with independence and without fear of consequences.' . . . Imposing
such a burden on judges would contribute not to principled and
fearless decisionmaking but to intimidation." 386 U.S., at 554, 87
S. Ct., at 1218 (citations omitted).
See also Dennis v. Sparks,
449 U.S.
24, 31, 188, 66 L. Ed. 2d 185 (1980). I fail to see how an
award of attorney's fees is any less of a threat to judicial
independence than an award of damages. An independent judiciary,
uncowed by fears of financial liability for its official acts, is
an integral aspect of state sovereignty and critical to the
security of our freedoms. I would not presume that Congress cast
this fundamental rule to the winds in the absence of specific
statutory language rendering judges liable for attorney's fees. No
such language is found in 1988.
Although judges are immune from monetary damages under 1983 for
their official acts, see, e.g., Stump v. Sparkman, supra, they are
nonetheless subject to suit for injunctive and declaratory relief
in their administrative capacities. E.g., Law Students Civil Rights
Research Council, Inc. v. Wadmond,
299 F.
Supp. 117, 123-124 (SDNY 1969) (three- judge district court)
(Friendly, J.), aff'd on other grounds,
401 U.S. 154 (1971).
However, it is beyond peradventure that the amenability of a judge
to suit for equitable relief for his role in enforcing or
administrating a statute does not render him liable for damages for
that same act. See, e.g., Slavin v. Curry,
574
F.2d 1256, 1264 (CA5 1978); Louis v. Supreme Court of Nevada,
490 F.
Supp. 1174, 1182 ( D Nev.1980). I do not understand how it can
be that a judge
Page 462 U.S.
1137 , 1143
should be liable for attorney's fees for performing the same act
for which he would be immune from damages. Here, the Virginia Court
was held subject to suit for injunctive and declaratory relief
because it possessed the power to enforce or administer
disciplinary rules against members of the State Bar. Consumers
Union, 446 U.S., at 736. Such liability no more entails liability
for attorney's fees than it does for damages.
The District Court and Court of Appeals purported to rely on
dictum in Consumers Union stating that a fee award against the
Virginia Court might be proper if made "because of its own direct
enforcement role." 446 U.S., at 739. Assuming arguendo that a fee
award could be made against a judge for his acts in an
administrative or enforcement capacity, the District Court still
erred.
We held in Consumers Union that the Virginia Court was a proper
defendant in a coercive 1983 suit because it had the potential
power to prosecute attorneys for disciplinary violations. However,
there was no evidence in the record that it had ever exercised its
enforcement powers. After vacating the award because it was
premised on acts-the promulgation and failure to amend the
challenged disciplinary rules-for which the Virginia Court was
entitled to absolute legislative immunity, we remanded the case. If
we had thought that the mere existence of enforcement authority
would support the award, there would have been no need to remand as
to the Virginia Court. Thus, we necessarily remanded for further
findings on the Virginia Court's actual exercise of its enforcement
powers, and for consideration of whether such acts justified a fee
award against the court.
On remand, the District Court took no evidence as to the
Virginia Court's actual role in enforcing the challenged rule; in
reinstating the award, it relied solely on the mere existence of
disciplinary authority. 505 F.Supp., at 823-824. In short, the fee
award rests on the same basis now-the Virginia Court's promulgation
of disciplinary rules-that it did
Page 462 U.S.
1137 , 1144
before. The District Court's reliance on the Virginia Court's
potential " disciplinary enforcement authority" cannot cover up the
utter lack of proof in the record that the Virginia Court ever did
anything to enforce the rule. Thus, the fee award cannot stand.
For all the foregoing reasons, I would grant certiorari to
consider the important question of whether an award of attorney's
fees against a judge may be premised solely on the existence of
enforcement authority.
Footnotes
Footnote 1 Respondent sued
the Supreme Court of Virginia, its Chief Justice, the Virginia
State Bar, and others. Petitioners in this case are the Supreme
Court of Virginia and its Chief Justice.
Footnote 2 In dissent, Judge
Chapman trenchantly pointed out that the ostensible purpose of this
suit-to force the Virginia Supreme Court and Virginia State Bar to
permit respondent to publish a directory of lawyers- had long been
submerged in the quest for attorney's fees:
"For the past three years this suit
has been nothing but an effort by the plaintiffs to establish a
theory upon which they could collect a fee. In the spring of 1979
the last possible impediment to gathering the information and
publishing the Attorney's Directory for Arlington County was
removed. However, when this case was argued in November 1981 the
directory had not been printed or distributed. As a result of
numerous questions by the court to the attorneys for Consumers
Union, the information has been gathered and the directory
published. A copy of the directory was forwarded to this court on
June 15, 1982. It contains the names of 78 attorneys in Arlington,
Virginia. This action has made three trips to the United States
Supreme Court, and is presently on its way back to the Supreme
Court, all to produce 78 names."
688 F.2d
218, 224 (CA4 1982) (Chapman, J., dissenting).