# Hutto v. Finney/Dissent Rehnquist

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Brennan
* Concurrence/Dissent Powell
* Dissenting Opinion Rehnquist
MR. JUSTICE REHNQUIST, dissenting.
The Court's affirmance of a District Court's injunction against a prison practice which has not been shown to violate the Constitution can only be considered an aberration in light of decisions as recently as last Term carefully defining the remedial discretion of the federal courts. Dayton Board of Education v. Brinkman, 433 U.S. 406 (1977); Milliken v. Bradley, 433 U.S. 267 (1977) (Milliken II). Nor are any of the several theories which the Court advances in support of its affirmance of the assessment of attorney's fees against the taxpayers of Arkansas sufficiently convincing to overcome the prohibition of the Eleventh Amendment. Accordingly, I dissent. [p711]

## I

No person of ordinary feeling could fail to be moved by the Court's recitation of the conditions formerly prevailing in the Arkansas prison system. Yet I fear that the Court has allowed itself to be moved beyond the well-established bounds limiting the exercise of remedial authority by the federal district courts. The purpose and extent of that discretion in another context were carefully defined by the Court's opinion last Term in Milliken II, supra, at 280–281:
   "In the first place, like other equitable remedies, the nature of the desegregation remedy is to be determined by the nature and scope of the constitutional violation. Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. [1,] 16 [(1971)]. The remedy must therefore be related to 'the condition alleged to offend the Constitution . . . .' Milliken [v. Bradley], 418 U.S. [717,] 738 [(1974)]. Second, the decree must indeed be remedial in nature, that is, it must be designed as nearly as possible 'to restore the victims of discriminatory conduct to the position they would have occupied in the absence of such conduct.' Id., at 746. Third, the federal courts in devising a remedy must take into account the interests of state and local authorities in managing their own affairs, consistent with the Constitution." (Footnotes omitted.)
[p712] The District Court's order limiting the maximum period of punitive isolation to 30 days in no way relates to any condition found offensive to the Constitution. It is, when stripped of descriptive verbiage, a prophylactic rule, doubtless well designed to assure a more humane prison system in Arkansas, but not complying with the limitations set forth in Milliken II, supra. Petitioners do not dispute the District Court's conclusion that the overcrowded conditions and the inadequate diet provided for those prisoners in punitive isolation offended the Constitution, but the District Court has ordered a cessation of those practices. The District Court found that the confinement of two prisoners in a single cell on a restricted diet for 30 days did not violate the Eighth Amendment. 410 F. Supp. 251, 278 (ED Ark. 1976). While the Court today remarks that "the length of confinement cannot be ignored," ante, at 686, it does not find that confinement under the conditions described by the District Court becomes unconstitutional on the 31st day. It must seek other justifications for its affirmance of that portion of the District Court's order.
Certainly the provision is not remedial in the sense that it "restore[s] the victims of discriminatory conduct to the position they would have occupied in the absence of such conduct." Milliken v. Bradley, 418 U.S. 717, 746 (1974) (Milliken I). The sole effect of the provision is to grant future offenders against prison discipline greater benefits than the Constitution requires; it does nothing to remedy the plight of past victims of conditions which may well have been unconstitutional. A prison is unlike a school system, in which students in the later grades may receive special instruction to compensate for discrimination to which they were subjected in the [p713] earlier grades. Milliken II, supra, at 281–283. Nor has it been shown that petitioners' conduct had any collateral effect upon private actions for which the District Court may seek to compensate so as to eliminate the continuing effect of past unconstitutional conduct. See Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 28 (1971). Even where such remedial relief is justified, a district court may go no further than is necessary to eliminate the consequences of official unconstitutional conduct. Dayton, supra, at 419–420; Pasadena Board of Education v. Spangler, 427 U.S. 424, 435–437 (1976); Swann, supra, at 31–32.
The Court's only asserted justification for its affirmance of the decree, despite its dissimilarity to remedial decrees in other contexts, is that it is "a mechanical - and therefore an easily enforced - method of minimizing overcrowding." Ante, at 688 n. 11. This conclusion fails adequately to take into account the third consideration cited in Milliken II: "the interests of state and local authorities in managing their own affairs, consistent with the Constitution." 433 U.S., at 281. The prohibition against extended punitive isolation, a practice which has not been shown to be inconsistent with the Constitution, can only be defended because of the difficulty of policing the District Court's explicit injunction against the overcrowding and inadequate diet which have been found to be violative of the Constitution. But even if such an expansion of remedial authority could be justified in a case where the defendants had been repeatedly contumacious, this is not such a case. The District Court's dissatisfaction with petitioners' performance under its earlier direction to "make a substantial start," Holt v. Sarver, 300 F. Supp. 825, 833 (ED Ark. 1969), on alleviating unconstitutional conditions cannot support an inference that petitioners are prepared to defy the specific orders now laid down by the District Court and not challenged by the petitioners. A proper respect for "the interests of state and local authorities in managing their own [p714] affairs," Milliken II, 433 U.S., at 281, requires the opposite conclusion.
The District Court's order enjoins a practice which has not been found inconsistent with the Constitution. The only ground for the injunction, therefore, is the prophylactic one of assuring that no unconstitutional conduct will occur in the future. In a unitary system of prison management there would be much to be said for such a rule, but neither this Court nor any other federal court is entrusted with such a management role under the Constitution.

## II

The Court advances separate theories to support the separate awards of attorney's fees in this case. First, the Court holds that the taxpayers of Arkansas may be held responsible for the bad faith of their officials in the litigation before the District Court. Second, it concludes that the award of fees in the Court of Appeals, where there was no bad faith, is authorized by the Civil Rights Attorney's Fees Awards Act of 1976. Pub. L. No. 94-559, 90 Stat. 2641, 42 U.S.C. § 1988 (1976 ed.). The first holding results in a totally unnecessary intrusion upon the State's conduct of its own affairs, and the second is not supportable under this Court's earlier decisions outlining congressional authority to abrogate the protections of the Eleventh Amendment.

### A

Petitioners do not contest the District Court's finding that they acted in bad faith. For this reason, the Court has no [p715] occasion to address the nature of the showing necessary to support an award of attorney's fees for bad faith under Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 258–259 (1975). The only issue before us is whether a proper finding of bad faith on the part of state officials will support an award of attorney's fees directly against the state treasury under the ancillary-effect doctrine of Edelman v. Jordan, 415 U.S. 651, 668 (1974).
The ancillary-effect doctrine recognized in Edelman is a necessary concomitant of a federal court's authority to require state officials to conform their conduct to the dictates of the Constitution. "State officials, in order to shape their official conduct to the mandate of the Court's decrees, would more likely have to spend money from the state treasury than if they had been left free to pursue their previous course of conduct." Id., at 668. The Court today suggests that a federal court may impose a retroactive financial penalty upon a State when it fails to comply with prospective relief previously and validly ordered. "If a state agency refuses to adhere to a court order, a financial penalty may be the most effective means of insuring compliance." Ante, at 691. This application of the ancillary-effect doctrine has never before been recognized by this Court, and there is no need to do so in this case, since it has not been shown that these petitioners have "refuse[d] to adhere to a court order." A State's jealous defense of its authority to operate its own correctional system cannot casually be equated with contempt of court.
[p716] Even were I to agree with the Court that petitioners had willfully defied federal decrees, I could not conclude that the award of fees against the taxpayers of Arkansas would be justified, since there is a less intrusive means of insuring respondents' right to relief. It is sufficient to order an award of fees against those defendants, acting in their official capacity, who are personally responsible for the recalcitrance which the District Court wishes to penalize. There is no reason for the federal courts to engage in speculation as to whether the imposition of a fine against the State is "less intrusive" than "sending high state officials to jail." Ibid. So long as the rights of the plaintiffs and the authority of the District Court are amply vindicated by an award of fees, it should be a matter of no concern to the court whether those fees are paid by state officials personally or by the State itself. The Arkansas Legislature has already made statutory provision for deciding when its officials shall be reimbursed by the State for judgments ordered by the federal courts. 1977 Ark. Gen. Act No. 543.
The Court presents no persuasive reason for its conclusion that the decision of who must pay such fees may not safely be left to the State involved. It insists, ante, at 699 n. 32, that it is "manifestly unfair" to leave the individual state officers to pay the award of counsel fees rather than permitting their collection directly from the state treasury. But petitioners do not contest the District Court's finding that they acted in bad faith, and thus the Court's insistence that it is "unfair" to impose attorney's fees on them individually rings somewhat hollow. Even in a case where the equities were more strongly in favor of the individual state officials (as opposed to the State as an entity) than they are in this case, [p717] the possibility of individual liability in damages of a state official where the State itself could not be held liable is as old as Ex parte Young, 209 U.S. 123 (1908), and has been repeatedly reaffirmed by decisions of this Court. Great Northern Life Insurance Co. v. Read, 322 U.S. 47 (1944): Ford Motor Co. v. Department of Treasury, 323 U.S. 459 (1945); Edelman v. Jordan, supra. Since the Court evidences no disagreement with this line of cases, its assertion of "unfairness" is not only doubtful in fact but also irrelevant as a matter of law. Likewise, the Court's fear that imposition of liability would inhibit state officials in the fearless exercise of their duties may be remedied, if deemed desirable, by legislation in each of the various States similar to that which Arkansas has already enacted.

### B

For the reasons stated in the dissenting portion of my Brother POWELL'S opinion, which I join, I do not agree that the Civil Rights Attorney's Fees Awards Act of 1976 can be considered a valid congressional abrogation of the State's Eleventh Amendment immunity. I have in addition serious reservations about the lack of any analysis accompanying the Court's transposition of the holding of Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), to this case. In Fitzpatrick, we held that under 5 of the Fourteenth Amendment Congress could explicitly allow for recovery against state agencies without violating the Eleventh Amendment. But in Fitzpatrick, supra, there was conceded to be a violation of the Equal Protection Clause which is contained in haec verba in the language of the Fourteenth Amendment itself. In this case the claimed constitutional violation is the infliction of cruel and unusual punishment, which is expressly prohibited by the Eighth but not by the Fourteenth Amendment. While the Court has held that the Fourteenth Amendment "incorporates" the prohibition against cruel and unusual punishment, it is not at all clear to me that if follows that Congress has the same enforcement power [p718] under § 5 with respect to a constitutional provision which has merely been judicially "incorporated" into the Fourteenth Amendment that it has with respect to a provision which was placed in that Amendment by the drafters.
I would therefore reverse the judgment of the Court of Appeals in its entirety.
* ↑ MR. JUSTICE WHITE joins Part II of this opinion.
* ↑ The Court suggests, ante, at 687 n. 9, that its holding is consistent with Milliken II, because it "was not remedying the present effects of a violation in the past. It was seeking to bring an ongoing violation to an immediate halt." This suggestion is wide of the mark. Whether exercising its authority to "remed[y] the present effects of a violation in the past," or "seeking to bring an ongoing violation to an immediate halt," the court's remedial authority remains circumscribed by the language quoted in the text from Milliken II. If anything, less ingenuity and discretion would appear to be required to "bring an ongoing violation to an immediate halt" than in "remedying the present effects of a violation in the past." The difficulty with the Court's position is that it quite properly refrains [p712] from characterizing solitary confinement for a period in excess of 30 days as a cruel and unusual punishment; but given this position, a "remedial" order that no such solitary confinement may take place is necessarily of a prophylactic nature, and not essential to "bring an ongoing violation to an immediate halt."
* ↑ I reserve judgment on whether such a precautionary order would be justified where state officials have been shown to have violated previous remedial orders. I also note the similarity between this decree and the "no majority of any minority" requirement which was found impermissible in Pasadena Board of Education v. Spangler, 427 U.S. 424 (1976), even though it too might have been defended on the theory that it was an easily enforceable mechanism for preventing future acts of official discrimination.
* ↑ In any event, it is apparent that the District Court did not consider its order a form of retroactive discipline supporting its previous orders. The court concluded that the allowance of the fee "may incline the Department to act in such a manner that further protracted litigation about the prisons will not be necessary." 410 F. Supp. 251, 285 (ED Ark. 1976). It does not appear to me that the court's desire to weaken petitioners' future resistance is a legitimate use of the Alyeska doctrine permitting the award of attorney's fees for past acts of bad faith.
* ↑ It is true that fees may be awarded under 42 U.S.C. § 1988 (1976 ed.) even in the absence of bad faith. But that statute leaves the decision to award fees to the discretion of the district court, which may be expected to alleviate any possible unfairness.