Transcript

IN THE SUPREME COURT OF THE UNITED STATES

KENTUCKY, DBA BUREAU OF STATE POLICE, Petitioner, v. JAMES E. GRAHAM, ET AL.

No. 84-849

April 16, 1985

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 1:54 o'clock p.m.

APPEARANCES:

GEORGE M. GEOGHEGAN, JR., ESQ., Assistant Attorney General of Kentucky, Frankfort, Kentucky; on behalf of the petitioner.

JACK M. LOWERY, JR., ESQ., Louisville, Kentucky; on behalf of the respondents.

PROCEEDINGS

CHIEF JUSTICE BURGER: We will hear arguments next in Kentucky doing business as Bureau of State Police against Graham, et al.

Mr. Geoghegan, I think you may proceed now whenever you are ready.

ORAL ARGUMENT OF GEORGE M. GEOGHEGAN, JR., ESQ., ON BEHALF OF THE PETITIONER

MR. GEOGHEGAN: Thank you.

Mr. Chief Justice, and may it please the Court, this case is here on Kentucky's petition for writ of certiorari to the United States Court of Appeals for the Sixth Circuit.

The State of Kentucky submits that the United States Court of Appeals for the Sixth Circuit erred when it affirmed the award of the attorneys' fees which was rendered to the United States District Court for the Western District of Kentucky.

After briefly summarizing the facts of this case, I intend to explain to this Court precisely why the court below erred in its construction of Hutto v. Finney, and why in any event 42 United States Code Section 1988 provided no authority for the award of attorneys' fees in this particular case.

QUESTION: You may assume that we are generally familiar with the facts as you have set them out in your brief.

MR. GEOGHEGAN: Yes, Your Honor.

Of course, Your Honors, this particular case arose as the result of a homicide which occurred in Kentucky. A search ensued after the homicide. The search was of the home of James E. Graham, which was the father of the chief suspect in the case. A complaint was filed in the United States District Court for the Western District of Kentucky. That was, of course, the aftermath of the search in this case.

In that complaint which was filed in the District Court, the State of Kentucky was named as a defendant, Kenneth Brandenburgh in his official capacity as commissioner of the state police and individually and the state and local police who were involved in the search in their individual capacities only. There also was an action against the cities of Hodgenville and Elizabethtown and Hardin County, Kentucky.

The crucial point here is that the complaint sought only damages for the injuries that occurred during the search of the home in question. It did not seek injunctive relief or declaratory relief.

The court below a couple of months after the action was filed dismissed the State of Kentucky as a party defendant citing --

QUESTION: You are referring to the District Court?

MR. GEOGHEGAN: Yes, Your Honor. The District Court dismissed the State of Kentucky as a party defendant based upon the Eleventh Amendment and upon citing Hutto v. Finney and in its order, which may be found at Page 14A of the petition for writ of certiorari, it indicates that the court felt that it was improper to award attorneys' fees against the State of Kentucky in this case when the relief sought on the merits was retrospective in nature.

Now, some nine months after the court dismissed Kentucky as a party defendant, they entered -- the remaining parties entered into settlement negotiations. The case was settled. The settlement provided -- and incidentally, the settlement was ordered filed in camera by the District Court.

The settlement provided $45,000 to the plaintiffs from Kenneth Brandenburgh personally and in his capacity as agent for the Kentucky State Police Legal Fund, which is a voluntary association, no connection with the Commonwealth of Kentucky.

They had previously settled with Hardin County and the City of Elizabethtown for some $15,000.

Now, simultaneously with the settlement in this case, the District Court entered an agreed order dismissing the parties in the case, and this order may be found at Page 15A of the appendix, petition for writ of certiorari, and the order indicated no fault was found on the part of any of the parties.

But Paragraph 15 of this order entertained an award of attorneys' fees against the State of Kentucky. Now, the State of Kentucky had not had any idea that there was going to be a request, or that anyone was going to look to it for attorneys' fees from the date of dismissal until the date of this order, which was about nine months later, I believe.

QUESTION: In this case I guess only damages were sought.

MR. GEOGHEGAN: Your Honor, that is correct.

QUESTION: Would your position be any different, and could the state be liable for attorneys' fees had injunctive relief been requested in the original action?

MR. GEOGHEGAN: Your Honor, had injunctive relief been requested in this action, it would seem to me to be in the same type situation as Hutto v. Finney, and in that case if prospective relief were awarded against a state officer acting in his official capacity, it would be permissible to award attorneys' fees ancillary to that. Assuming it --

QUESTION: If it were awarded, if injunctive relief were in fact granted.

MR. GEOGHEGAN: If injunctive relief were in fact awarded against a state officer in his official capacity.

Now, after the court entered this order -- I think we indicated on Page 10 of our brief that we didn't have notice about the request for attorneys' fees until September 2nd. That is not correct.

We did know about it as of July the 1st, 1982, because that is when the court entered the agreed order, and thereafter we responded some 13 days later to a motion for attorneys' fees from the plaintiffs.

We responded to that motion. The court then on September the 2nd entered an order awarding, and he did this without a hearing, the court ordered and directed that attorneys' fees be awarded against the State of Kentucky, but set a hearing to determine the amount of the fees later on.

Now, at this point the State of Kentucky filed two separate motions to vacate the order. One was filed by Justice, one by the Attorney General of Kentucky. And as a part of that motion to vacate that the Attorney General filed, he attached excerpts of a report conducted as the result of an extensive investigation of the search incident in question.

And those excerpts, which can be found at Pages 26A and 28A of the petition, the appendix to the petition for writ of certiorari, indicated that the officers at the scene of the search acted in an unprofessional manner and used excessive force.

The court, after holding a hearing to ascertain the amount of the fees, awarded costs to the plaintiff in the approximate amount of $64,000, including an attorney's fee of some $58,000.

The court appealed this case to the United States Court of Appeals for the Sixth Circuit, and that court affirmed in a concurring opinion.

The first point we raise before this Court today is the language of 42 United States Code Section 1988 itself provides no authority for attorney's fees.

QUESTION: Before you get into your argument, may I ask just one factual question --

MR. GEOGHEGAN: Yes, Your Honor.

QUESTION: -- about the order to dismiss the state as a party back in November. It ends up saying "This is not a final and appealable order." Does that mean that the parties contemplated that something might be revised with -- what -- does that have any significance at all?

MR. GEOGHEGAN: As far as I can see, Your Honor, that has no significance in the case.

QUESTION: Okay.

MR. GEOGHEGAN: Now, under the American rule, a prevailing party is not ordinarily entitled to a fee, the prevailing party is not, from the losing party under ordinary circumstances.

This Court has recognized two exceptions to the rule, the bad faith exception, which is not the situation here; the other exception is when Congress adopts the statute which does authorize the court to award attorneys' fees to a prevailing party.

This is the situation we have in this particular case. In 42 United States Code Section 1988 Congress provided the authority for a court to award attorneys' fees to a prevailing party, a party who prevails under, in this particular situation, it would be under 1983.

Now, the question before this Court on this issue is very narrow, and it is just this, whether the plaintiffs in this case were the prevailing parties as to the Commonwealth of Kentucky.

Now, we have a complaint that was filed in this case. The complaint sought no injunctive or declaratory relief. The agreed order entered by the court indicated that no fault was found on behalf of any of the parties. There is no evidence in this case which would indicate that the police on that incident following the homicide were following any policies of the State of Kentucky or custom of the State of Kentucky.

And in fact exactly the contrary is shown by the proof in the form of the report from the Attorney General. That indicates that the police were violating the policies of the State of Kentucky, and perhaps most importantly in this case, the District Court dismissed the State of Kentucky as a party defendant by virtue of the Eleventh Amendment. Kentucky --

QUESTION: Counsel, if this lawsuit had been on the state side in the commonwealth courts, would the commonwealth be a proper party defendant?

MR. GEOGHEGAN: Your Honor, we would contend had that occurred that under 1983 Kentucky would not be a proper party defendant, and secondly, there is no proof to indicate that the State of Kentucky was responsible for the policies that were followed by the police on this particular occasion.

QUESTION: Of course, the second stated reason doesn't go to whether it could be a defendant anyway, but you would say no under 1983?

MR. GEOGHEGAN: Your Honor, that would be our contention. You are correct. The Eleventh Amendment, of course, would not apply in state court.

Our point is that the State of Kentucky has prevailed in this case on absolutely every aspect on the merits, yet the state was saddled with the attorneys' fees. Now, it is our contention that although the plaintiffs were in fact the prevailing parties as to the remaining defendants in this case, they were not the prevailing party as to the Commonwealth of Kentucky, and the court erred by awarding attorneys' fees under that Section 1988.

The plaintiffs could have obtained attorneys' fees in this particular case from the remaining defendants, but they bargained away those rights in their settlement negotiations.

Now, the second issue that I would like to present to the Court today is concerned with the Eleventh Amendment, and it likewise is a very narrow issue as well. This Court has recognized that the Eleventh Amendment bars a suit in federal court against a state by a citizen of the same state or other states.

And in this particular case the trial court recognized this principle and accordingly dismissed the State of Kentucky. But this Court has also recognized that under the fiction in Ex Parte Young a court may award prospective relief against a state officer in his official capacity enjoining him from carrying out a policy of the state or a state statute which runs afoul of the Constitution.

If the court does that, is to award that kind of prospective relief, this Court has then recognized in Hutto v. Finney that it is permissible to award attorneys' fees ancillary to that type of prospective relief.

The reason for that is because the state is in fact for all purposes -- is for all practical purposes the party in the case, although not named as a party. This Court has not held likewise with regard to retrospective relief against a state. This Court has never held that 1983 abrogates the Eleventh Amendment so as to provide retrospective relief against the state.

The State of Kentucky would submit that that would apply likewise to 1988. Essentially what we are saying is that an attorney's fee has no greater status than the award on the merits that it is ancillary to. And in this case there was no award on the merits against the State of Kentucky. It was prohibited by the Eleventh Amendment.

The only award at all was against the remaining defendants in their individual capacities. Since there was no award on the merits against the State of Kentucky in this case, then an attorney's fee ancillary is prohibited in the case.

QUESTION: May I ask one more question?

MR. GEOGHEGAN: Yes, Your Honor.

QUESTION: Your brief recites that there were $64,870 some of costs, of which $58,000 were attorneys' fees. There were $10,000 in costs that were not attorneys' fees. What is your position with respect to the costs not the fees?

MR. GEOGHEGAN: Your Honor, my position would be the same as the attorneys' fees, but I am afraid that we did not appeal that part of the decision.

QUESTION: I see. You only appealed the fee part, so the other --

MR. GEOGHEGAN: Your Honor, that is correct.

QUESTION: I see.

MR. GEOGHEGAN: For these reasons, I submit that the judgment of the United States Court of Appeals for the Sixth Circuit should be reversed, and a reversal according to the arguments that I have made would require no modification of the existing case law of this Court.

Thank you.

CHIEF JUSTICE BURGER: Mr. Lowery.

ORAL ARGUMENT OF JACK M. LOWERY, JR., ESQ., ON BEHALF OF THE RESPONDENTS

MR. LOWERY: Mr. Chief Justice, and may it please the Court, I think it would be helpful at the outset to briefly review the two statutes that are involved in this appeal.

The first, of course, being 1983, simply provides that every person who subjects or causes to be subjected another person of a violation of his constitutional rights shall be liable to that person in an action in law, suit in equity, or other proper proceeding --

QUESTION: How did the state fit into that? How does the state fit into that statute?

MR. LOWERY: Judge, I guess the best you could say was that counsel named them improvidently. Probably the worst you could say is they named them ignorantly.

Actually, the truth falls somewhere in between. We were concerned at that point in the case that it might be necessary to make a record, that there might be an issue, the right to name a state, that the efficacy of the Eleventh Amendment could even be an issue.

And so, to make sure that the State of Kentucky received full notice, we named them as a party. Now, the District Court, we take no issue at all with the action of the District Court in dismissing them, but we do call to the attention of the Court that --

QUESTION: Well, if they had never been joined --

MR. LOWERY: If they had never been joined --

QUESTION: If they had never been joined, could a fee be assessed against them?

MR. LOWERY: Yes, sir. Hutto says, and the Senate reports and House reports say that a fee may be assessed against the state where they are not named as a party. Now, that is pure Hutto, as well Mayer against Gagney. That is well settled law, as far as I know, and is not disputed as far as I know.

So, we did name the state. We did think that it might be desirable to make a record. And as it turned out it was not, because the matter was settled and that issue was never raised on appeal.

The other part of the statute that I am referring to here, of course, is 1988, which simply provides that anyone who vindicates constitutional rights under '83 as the prevailing party shall be awarded a reasonable attorney's fee as part of the cost.

Now, as a very preliminary and basic response to the argument that only injunctive relief, retrospective relief will trigger the workings of 1988, I simply look at the wording of 1983.

And had I been requested by Congress to sit down and help them draft an all-inclusive provision, one not restricted to retrospective relief, but one that included a broad arsenal of legal remedies available to those whose constitutional rights were violated, I don't believe I could improve on this language.

I was taught that an action at law means to go into court and ask for damages, and a suit in equity is a suit where you undertake to get injunctive relief. We think it is self-evident as far as the wording itself of Section 1983 is concerned.

The real question, it seems to me, is what was the intent of Congress in enacting 1988? Did Congress intend to make it restrictive? Did they intend to make it all-inclusive?

QUESTION: Did they intend to amend the Eleventh Amendment?

MR. LOWERY: Well --

QUESTION: Well, while you are at it, why don't you bring that in?

MR. LOWERY: All right, sir. As far as the Eleventh Amendment is concerned, we are faced with Edelman, the Edelman case. The Edelman case was a case not brought under 1983. There was no attorney's fee involved in Edelman, but it was a case in which injunctive relief was approved. The Eleventh Amendment didn't bar injunctive relief, but it did bar retroactive damages.

Then comes along Fitzpatrick against Bitzner, written by the same Justice, of course, but it cast in my mind grave doubt on Edelman. It held just the opposite. That was a different statute, of course. It was a Title 7 statute, I believe, involved in Fitzpatrick, but Fitzpatrick awarded attorneys' fees, it awarded injunctive relief, it awarded damages.

Then you come along with Mayer against Gagney that says if the Eleventh Amendment ever barred suits of this nature, it was discharged by Congress in 1988. There is a concurring opinion in Hutto that suggests that that is a burning question now.

But in my view it is a question that does not have to be reached in this case because here we are dealing with attorneys' fees and attorneys' fees only, which are different. Attorneys' fees are different, because Hutto says, and it takes about two pages to say it, attorneys' fees are not damages. That is where the Attorney General confuses and conflicts his arguments.

QUESTION: Did I understand you to concede that the state was not a proper party?

MR. LOWERY: On the merits. Yes, sir.

QUESTION: Then suppose mistakenly, inadvertently, you included the State of New York as a party defendant. Then the court promptly dismissed them. Could you collect fees against the State of New York?

MR. LOWERY: No, sir. I think --

QUESTION: What is the difference?

MR. LOWERY: I beg your pardon?

QUESTION: What is the difference between Kentucky in New York in this setting and on this record?

MR. LOWERY: In my judgment, Your Honor, our naming the State of Kentucky was like suing the west wind with the law being as it was then. All it required was a motion to dismiss. If no motion had been made and some type of default action -- in the first place, I don't think a Distrtict Court could be found in this country that would enter one. At least they are no worse off --

QUESTION: I would like to see you collect one.

MR. LOWERY: Well, that is true. At least they are no worse off by being named than they would be if they were not even named.

MR. GEOGHEGAN: But how can you say you prevailed against them if you concede that you had nothing against them on the merits and the claim was dismissed?

MR. LOWERY: Because we never had any standing to proceed against them. That was not a matter in issue.

QUESTION: My question is, how can you say that you -- in order to get attorneys' fees under Section 98, you have to show that you as against the State of Kentucky are the prevailing party.

MR. LOWERY: Yes, sir.

QUESTION: How do you show that?

MR. LOWERY: In the case of a state, since you cannot name a party, the way you become a prevailing party is to name a policymaking official and sue him in his official capacity.

As recently as January, Branden against Holt, decided by this Court, said in three recent cases, we have suggested that a person becomes liable to his entity if he is named in his official capacity. We now make that point explicit.

QUESTION: Yes, but you didn't sue these people in their official capacity.

MR. LOWERY: Oh, yes, sir. We sued Commissioner Brandenburgh in his official capacity, and that is not contested.

QUESTION: But he was not defended by the State of Kentucky.

MR. LOWERY: No, sir, he was not. The State of Kentucky took the unusual position in this case that after the horse was out of the stable, and after the Attorney General in an independent investigation found out all these wrongdoings it cited in its brief, they decided that the best way out of the case was just to abandon Commissioner Brandenburgh, which is what they attempted to do, we think ineffectually. We don't think it is possible for a state to abandon a policymaking official.

QUESTION: Did you allege in your complaint in which you sued Brandenburgh that he was the authorized agent of the State of Kentucky?

MR. LOWERY: Oh, yes, sir, and as a matter of fact, we have cited the Kentucky Revised Statutes that spell out his authority. He was the Number One ranking police officer in the State of Kentucky.

QUESTION: Suppose the government of the state goes out and raises a lynch mob and then lynches somebody. Do you think you can recover some either damages or fees against the state?

MR. LOWERY: Yes, sir, I do, by suing the governor in his official capacity, he being official --

QUESTION: Don't you also have to prove that when he performed the lynching function, the lynch mob, he was acting in his official capacity, not outside his official capacity?

MR. LOWERY: Judge, in my view this is not a scope of employment type of situation. The governor is official policy. Commissioner Brandenburgh is official policy. That is why there is not going to be this huge floodgate of litigation that has been referred to by the amici.

QUESTION: On your theory, the governor shoot somebody in a dual, then it is the act of the state, too, isn't it?

MR. LOWERY: The state becomes liable.

QUESTION: In some states that is not true.

MR. LOWERY: I beg your pardon?

QUESTION: In some states you can't sue the governor. I will give you the citation. Volume I of the Arkansas Reports.

MR. LOWERY: Well, then, I don't know what you --

QUESTION: Page 1. You can't sue them.

MR. LOWERY: I would take it that you could under a 1983 in federal court in that state, however.

QUESTION: Well, that is different. You didn't have 1988 then.

MR. LOWERY: Right, sir.

QUESTION: When Arkansas started.

MR. LOWERY: Right. I am only referring to that situation.

QUESTION: What other route would you have other than to argue that you can get attorneys' fees out of the state? Give me one reason why they were included.

MR. LOWERY: Why they weren't what?

QUESTION: Why they were included other than that you wanted to do just what you are doing now, argue for attorneys' fees out of the state?

MR. LOWERY: Well, may I say this? May I cite the Court, to answer that question, an opinion, I believe, by Justice Powell in which he pointed out that the request for attorneys' fees is a uniquely separable inquiry that cannot even commence until after the merits are over .

There is not a prevailing party until the merits are over. Once the merits are over, for the first time now can be addressed the question of attorneys' fees.

QUESTION: Did he say that? Was that written in the context of the case where the party plaintiff did not prevail against the party against whom fees are sought?

MR. LOWERY: Judge, I won't quote the facts precisely, but I say the concept that the Commonwealth of Kentucky was a prevailing party simply because they were erroneously at that time and assuming the Eleventh Amendment continues to be in full efficacy --

QUESTION: Well, how can you get attorneys' fees for being "erroneous?"

MR. LOWERY: We get attorneys' fees, Your Honor, by --

QUESTION: You made a -- You put them in. It was a mistake. Right? Is that true?

MR. LOWERY: As it turned out. It might not have been a mistake.

QUESTION: But was it?

MR. LOWERY: Yes, we will say it was a mistake.

QUESTION: Can you give me any other case where any lawyer officially got a fee for making a mistake?

MR. LOWERY: Not for making a mistake. Fee entitlement comes in this case by the actions of a policymaking state official, the Commissioner of the Kentucky State Police, and our obtaining a settlement against him.

QUESTION: You say that if Kentucky had never been named as a party, you should, by naming the official in his official capacity, you are entitled to fees against the state.

MR. LOWERY: Yes, sir.

QUESTION: And you shouldn't be deprived of them because you made a mistake by naming the state commissioner.

MR. LOWERY: You say it better than I do, Judge. Ys, sir. That is my point.

To get back to this retroactive -- retrospective, I am reminded of an illustration that comes to my mind. Here is a commissioner of corrections. He puts ten prisoners per cell. He gives them 1,000 calories a day. He deprives them of medical attention. Hutto all over.

Is it a 1983 action? Yes. Would you be entitled to attorneys' fees if you prevailed? Yes. Would you be entitled to retrospective relief? Yes.

Now, the same commissioner of corrections, same penitentiary, same prisoner, even, and he overhears the two guards saying, we are going down and fix that guy for starting all this turmoil, and they go down and they beat the guard up.

Retrospective relief? No. It is already over with. It has already happened. It is not an ongoing thing, but it is a constitutional violation. And in our view Congress did not pick and choose.

Congress didn't say we want to grant certain amendments with an award of attorneys' fees.

QUESTION: Do you think you could have -- suppose you hadn't settled. Do you think you could have gotten an award for damages against the commissioner?

MR. LOWERY: Judge, when you are representing the plaintiff you always hope that.

QUESTION: Yes, but I mean, would there have been any legal barrier to getting a judgment against him in his official capacity?

MR. LOWERY: No, sir. No, sir.

QUESTION: If you could have gotten that sort of a judgment in his official capacity, could you have collected it from the State of Kentucky?

MR. LOWERY: Yes, sir. That is exactly what we are trying to do here.

QUESTION: Which of our cases support that rather surprising view?

MR. LOWERY: Brandon against Holt. Hutto against Finney.

QUESTION: Well, Hutto against Finney didn't involve retrospective damages.

MR. LOWERY: Well, Fitzpatrick against -- what is it, Fitzpatrick against --

QUESTION: Well, you know that 1983 did not deprive the states of their sovereign immunity.

MR. LOWERY: Oh, yes, sir, I know that.

QUESTION: Well, so this is a 1983 suit, and you say that just by the simple mechanism of suing an official in his official capacity, you can get a judgment for damages against the state?

MR. LOWERY: You don't do it that way.

QUESTION: All right, you get a judgment against the official in his official capacity, and then you collect it.

MR. LOWERY: Then you ask the District Judge to have a hearing on what you are entitled to.

QUESTION: And you say that in that way you avoid the sovereign immunity of the state.

MR. LOWERY: Yes, sir, because, Judge, and the reason you do, the reason you do is that attorneys' fees are not damages.

QUESTION: No, I am not -- I am talking about damages now.

MR. LOWERY: Well, no, no, sir. The state is still shielded from the award of damages.

QUESTION: But you still think you could get a judgment against the official in his official capacity.

MR. LOWERY: Yes, sir.

QUESTION: Well, it wouldn't do you any good because you couldn't collect it from the state.

MR. LOWERY: Sir?

QUESTION: You couldn't collect it from the state. You would have to collect it from him or no one.

MR. LOWERY: Well, I think you could collect it from the state.

QUESTION: What if the legislature just refused to appropriate any money? What are you going to do, levy on the state capitol?

MR. LOWERY: No, sir, I think the District Court would order the state to --

QUESTION: Under the legislature?

MR. LOWERY: No, sir. Would order in this case a commissioner, the present commissioner of the state police -- Hutto against Finney spells it out -- the agency involved. The District Court wouldn't have any problem.

QUESTION: What you say is that the plaintiff cannot name the state as a party in the 1983 action, but it can name a state official in his official capacity, get an award of damages against him, and then go into the District Court on a kind of supplemental proceeding, and the District Court will order the state to pay the damages?

MR. LOWERY: Within its discretion. If the District Court had been sitting there and supervising this entire thing, thinks the claim is spurious --

QUESTION: Then the Eleventh Amendment really is a matter of form, since there are very good ways of avoiding it.

MR. LOWERY: No, sir, because if Your Honor will refer to Hutto, Hutto takes about two pages saying that 1988 does not come under the Eleventh Amendment because attorneys' fees are not damages. Now, that distinction has to be made.

QUESTION: Is there anything that you can point to in Congress or any place under the sun that said that the Eleventh Amendment does not apply to 1988 except you? Now, name anything else, anybody else.

MR. LOWERY: All right, sir, Hutto --

QUESTION: Telephone conversations.

MR. LOWERY: Hutto against Finney.

QUESTION: Said that?

MR. LOWERY: Yes, sir.

QUESTION: Certainly there is language in Hutto against Finney that might lend some support perhaps to you position, but it didn't involve retrospective damages, did it?

MR. LOWERY: No, ma'am, it didn't, but Fitpatrick did.

QUESTION: Just --

MR. LOWERY: Fitzpatrick against Bitzer did.

QUESTION: Didn't Corey against White have something to day about getting relief directly from the state?

MR. LOWERY: I am not familiar with that case, Your Honor. Yes, Judge, to answer your question, the Mayer case, Mayer against Gagney, says --

QUESTION: You said Hutto didn't you?

MR. LOWERY: Both Hutto and Mayer.

QUESTION: Well, read me one of them now.

MR. LOWERY: All right, sir.

QUESTION: Don't paraphrase. Just read it. And I want it to say that the Eleventh Amendment is not precluded in 1988, end quote.

MR. LOWERY: If I can find it, Judge, I will read it to you.

QUESTION: All right.

MR. LOWERY: All right, sir. And here I am referring on Page 662. Now, this is the Lawyers' Edition that I have a copy of here. I trust that won't cause problems.

QUESTION: You are reading from what?

MR. LOWERY: The Lawyers' Edition, Second.

QUESTION: What case?

MR. LOWERY: Mayer against Gagney.

QUESTION: Oh, yes.

MR. LOWERY: And I am referring -- the US citation is 448 U.S. 132.

"Moreover, even if the Eleventh Amendment would otherwise present a barrier to an award of fees against the state, Congress was clearly acting within its power under Section 5 of the Fourteenth Amendment in removing that barrier.

"Under Section 5, Congress may pass any legislation that is appropriate to enforce the guarantees of the Fourteenth Amendent.

"A statute awarding attorneys' fees to a person who prevails on a Fourteenth Amendment claim" -- pardon my breathlessness -- "falls within the category of appropriate legislation."

QUESTION: It didn't say that the Eleventh Amendment was written out of it. You have got to consider the Eleventh Amendment.

MR. LOWERY: Oh, well, I don't dispute --

QUESTION: Well, that is what I asked you for, where it said that you couldn't consider the Eleventh Amendment.

MR. LOWERY: Judge, here is more language. Now, this is from Hutto, quoting that case. "This Court has never viewed the Eleventh Amendment as barring such awards, even in suits between states and individual litigants."

Now, that is another quotation of Hutto against Finney.

QUESTION: That is not this case. This is where you deliberately put somebody in there solely for the purpose of getting counsel fees out of the state.

MR. LOWERY: Judge, my putting them in at that stage of the proceedings --

QUESTION: You admitted you didn't mean to do it. You made a mistake.

MR. LOWERY: I don't think I made a mistake. I think I probably -- well, I made a mistake in the long run in doing it. I knew what I was doing when I did it. And I think perhaps had I to do it over, I wouldn't have done it. But at that stage I --

QUESTION: And then we wouldn't have had all of this, would we?

MR. LOWERY: Judge, at that point, on the merits, they weren't liable for attorneys' fees. They weren't liable at all for anything. They weren't liable on the merits. The question of attorneys' fees only came up after the merits was over.

QUESTION: Just to clarify it in my mind, your claim for fees would be precisely the same if you had never named the state as a defendant?

MR. LOWERY: Yes, sir. That's exactly right. And I wanted to mention this Brandon against Holt case. "In at least three recent cases arising under 1983, we plainly implied that a judgment against a public servant in his official capacity imposes liability on the entity that he represents, provided, "the Court goes on, "of course, the public entity received notice and an opportunity to respond."

QUESTION: That doesn't solve your Eleventh Amendment problem, because there you are talking about the City of Memphis.

MR. LOWERY: You are talking about a city here. However, the three cases that the Court relied on, two of them were a city and one was a state.

QUESTION: The one in the state was Hutto against Finney?

MR. LOWERY: Yes, sir.

QUESTION: What was the vote in Hutto against Finney?

MR. LOWERY: I beg your pardon?

QUESTION: How did the Court divide in Hutto against Finney?

MR. LOWERY: Judge, I don't recall. It was a divided Court.

QUESTION: Mr. Lowery, can I ask one other question?

MR. LOWERY: Yes, sir.

QUESTION: Because there is some confusion in my mind about the difference between suing one in his official capacity and one in his individual capacity.

MR. LOWERY: Right.

QUESTION: And you read the complaint clearly as saying you sued them in their official capacity, but may I direct your attention to the order in July of '82 when the individual defendants were dismissed and the District Judge said that no claims for attorneys' fees shall be made by any party plaintiff against any of the individual party defendants or the Kentucky State Police Legal Fund, a voluntary association.

Now, as I understand, they weren't ever even a party to the lawsuit, were they?

MR. LOWERY: No, they were not.

QUESTION: But does not that paragraph suggest that he thought they were being sued in their individual capacity?

MR. LOWERY: Well, Judge --

QUESTION: Or do I misread it?

MR. LOWERY: -- I don't have the complaint in front of me, but I think we probably did sue them in their individual capacity. Keep in mind, Your Honor, most of these defendants were not policymaking officials. They were sergeants and patrolmen, and they were this and that and the other. They --

QUESTION: Do you think the mere fact that you allege an officer is a policymaking official, that is sufficient to be an allegation that you are suing him in his official capacity?

MR. LOWERY: Yes, sir. Now, you have to go ahead and prove it.

QUESTION: Well, there wasn't much of a dispute about what the responsibilities of the --

MR. LOWERY: No, sir, and there has been no dispute in this case that he was a policymaking official.

Any others?

Thank you very much.

CHIEF JUSTICE BURGER: Do you have anything further?

ORAL ARGUMENT OF GEORGE M. GEOGHEGAN, JR., ESQ., ON BEHALF OF THE PETITIONER - REBUTTAL

MR. GEOGHEGAN: Mr. Chief Justice, may it please the Court, I will waive rebuttal, unless this Court has any questions.

QUESTION: May I just ask, I don't know, maybe this is out of line because of that order, but could these fees have been recovered from the individual defendants in their individual capacities?

Assume that they had gotten a judgment on the merits for the amount of the settlement and then went in for fees, and then the state takes a position. Now, would they have been able to get the same fee award from these individuals?

MR. GEOGHEGAN: Your Honor, our position is that they could get the fee awards, could have gotten the fee awards from the individuals, and I think we indicated earlier in the argument they had negotiated away those rights.

QUESTION: They stipulated that away, is your view, in the settlement.

CHIEF JUSTICE BURGER: Thank you, gentlemen. The case is submitted.

(Whereupon, at 2:33 o'clock p.m., the case in the above-entitled matter was submitted.)