Warren E. Burger: We will hear arguments next in 76-1660, Hutto against Finney. Mr. Taylor you may proceed whenever you are ready.
Garner L. Taylor, Jr.: Mr. Chief Justice and may it please the Court. This case presents fundamental issues for the Court's consideration, involving the Eighth and Eleventh Amendments to United States Constitution. The case arose out of litigation concerning the operation of the Arkansas prison system. A number of petitions that had been filed by inmates in the prison system were consolidated by the District Court. A counsel was appointed to represent them and an amended and substitute complaint was filed, seeking relief under title XXXXII of the United States Code, Section 1983. There are three issues which we ask the Court to consider. First of all, whether Congress in passing the Civil Rights Attorney's Fees Awards Act of 1976 abrogated the State's Eleventh Amendment Immunity and thereby authorized an award of Attorney's Fees to be paid from the funds of a State Agency, that was not made a party to the litigation. As a corollary to this first argument, we suggest that even if the Court should find that Congress did abrogate the State's Eleventh Amendment Immunity that, that Act should not be given retroactive application in this particular case because it would work in manifesting justice. Secondly, we ask the Court to consider whether the Eleventh Amendment bars an award of attorney's fees based upon a finding of bad faith, against the State or State Agency. Finally, we asked the Court to consider whether the lower courts were correct in ruling that indefinite punitive confinement of recalcitrant inmates is unconstitutional. The opinion of the District Court was entered on March 19th of 1976. It is found at page 141 in the Appendix. It awarded, the District Court awarded an attorney's fee of $20,000 to court appointed attorneys for the inmates and ordered that that fee be paid from the funds of the Department of Correction. Now, the Department of Correction had never been made a party to the litigation. The action was filed, of course, a 1983 action can be filed directly against the State under Court decisions, the action was filed against the Correction's Commissioner and the Members of the Board of Correction. The Court held that such an award would have only an ancillary effect on the State Treasury, citing this Court's opinion in the case of Edelman v. Jordan. Furthermore, the Court found that the award was justified under the bad faith exception to the American rule which was discussed by this Court in its recent opinion in Alyeska Pipeline Service Co. v. Wilderness Society. The Eighth Circuit affirmed this award and noted in its opinion that subsequent to the District Court's decision, the Civil Rights Attorney's Fees Awards Act of 1976 had been approved, that Act was approved on October 19th of 1976 and the Eighth Circuit held that the award of attorney's fees was proper under that Act and was not barred by the Eleventh Amendment Immunity of the State Arkansas. It is our contention that the Civil Rights Attorney's Fees Awards Act of 1976 did not operate to abrogate the Immunity of the State of Arkansas to monetary judgment. Because in passing the Civil Rights Attorney's Fees Awards Act of 76, Congress did not amend Section 1983 of Title XXXXII to include a State within the meaning of the term person. Therefore, the threshold fact of Congressional authorization which this Court found present in Fitzpatrick v. Bitzer, was not present in this particular case. The State was not a party to the action. The Department of Correction was not a party to the action and in effect the Court lacked jurisdiction over this Department of Correction and had no jurisdiction to order an award of attorney's fees. In Fitzpatrick, Title VII of the Civil Rights Act of 1964 had been expressly amended, to subject Governments and Governmental Agencies and political sub-divisions to suit under that Section. But the present case -- in the present case, 1983 was not specifically amended and this case more closely resembles the decision in Employees v. Missouri Public Health Department, a case in which this Court held that Congress had not abrogated the State's Immunity because it did not specifically amended Section 16 (b) of the Fair Labor Standards Act to include a State within the meaning of the term, any employer, when it enacted amendments in 1966. Even if Congress had tried to abrogate the State's Eleventh Amendment Immunity in passing the Act it failed to do so, because when Congress acts to abrogate a State's Immunity in a unilateral fashion, that is without a waiver on the part of the State, pursuant to the Section 5 of the Fourteenth Amendment, when Congress acts to abrogate a State's Immunity pursuant to Section 5, it should do so in explicit statutory language. The legislative history of this Act does not need to consulted because there is no ambiguity on the face of the Act. If --
William H. Rehnquist: Certainly, some of our cases have gone sufficiently as far as so as say that you look at everything you can in construing the statute, rather than the more traditional role, perhaps a while ago that only where the legislative language is unclear, do you resort to the history. I mean -- it seems to me if you look at the legislative history, the committee report in this case, it seems that the Officer's Committee Report pretty clearly thought that they were going to impose attorney's fees against Governmental Bodies, do not you think so?
Garner L. Taylor, Jr.: Yes sir, but it is our position that Congress simply misinterpreted the decision of this Court in Fitzpatrick v. Bitzer and Congress did not do what they had to do to abrogate the State's immunity. They did not amend Section 1983 to include a State within the meaning of the term person.
William H. Rehnquist: Well, is your point that, even if Congress had enacted the language that you find in the committee reports, it would have been insufficient or that the committee reports are not sufficiently weighty so as to affect the language that Congress did choose to enact?
Garner L. Taylor, Jr.: It is our position that the committee reports -- of course the Court can look at them and consider them, but there is really no need to because there is ambiguity on the face of this particular statute. If Congress was so certain that they had effectively abrogated the State's Eleventh Amendment Immunity, it seems strange that there is now Bill pending in the Senate, Senate Bill 35 which will specifically amend Section 1983, to define the term person as any individual state, municipality or any agency or unit of Government of the State.
Thurgood Marshall: Was that type of bill introduced before? When is that bill introduced?
Garner L. Taylor, Jr.: This is pending now Sir, it was introduced on January the 10th this year.
Thurgood Marshall: Was it introduced before then, while this legislation was pending?
Garner L. Taylor, Jr.: Sir, I am not certain whether or not the bill --
Thurgood Marshall: Well if it was not, could we assume that Congress assumed that it was covered, otherwise they would have introduced a Bill like that?
Garner L. Taylor, Jr.: Your Honor, I believe a more correct assumption might be that the fact that this bill pending now, indicates that Congress is not certain, that it followed the guidelines set forth by this Court when it --
Thurgood Marshall: You mean what citation --?
Garner L. Taylor, Jr.: In Fitzpatrick v. Bitzer, Your Honor, this Court held that Congress may act, but Congress in that instance acted by explicit statutory language, by explicitly --
Thurgood Marshall: (Inaudible).
Garner L. Taylor, Jr.: No Sir, I do not think it should because we are talking about a very fundamental concept of --
Thurgood Marshall: Then you just ignore what happened in Congress? You said we can look at the reports, but do we not have to look at them to interpret the statute, maybe you do not, but do we not have to look at it?[Laughter]
Garner L. Taylor, Jr.: Your Honor, as a general proposition there -- Court's hold that in statutory construction, it is not necessary to refer to the legislative history unless there is some ambiguity.
Thurgood Marshall: We do not have to look at the legislative history?
Garner L. Taylor, Jr.: No sir, although I suspect that the Court will look at the legislative history in this particular instance.
Thurgood Marshall: You may suspect that some will [Laughter] that you put your money on that?
Garner L. Taylor, Jr.: The legislative history does indicate the intent of Congress to abrogate Your Honor, but it is our position that Congress, even though it may have tried to abrogate the State's Immunity simply botched the job. They simply did not do what they had to do to abrogate the State's Eleventh Amendment Immunity because here we are dealing with some very fundamental constitutional issues in a very delicate balance of the relationship between the States and our National Government and our system of Government. The Eleventh Amendment is fundamental to that relationship and it is our position that when Congress acts to abrogate that immunity, it should do so in explicit statutory language, so there will be no confusion as it is now across our country as to whether or not States are liable for attorney's fees under the provisions of this Act. If Congress had acted by enacting a Statute with explicit language, there would not be the kind of confusion we see right now and in this case there is no waiver by the State of Arkansas, no waiver expressed or implied in Edelman v. Jordon. This Court held that the Eleventh Amendment barred an award of retroactive benefits under a Federal State Program for the aged blind and disabled and the term ancillary effect was discussed by the Court in that opinion. Ancillary Effect refers to the fiscal consequences that a State may expect in complying with injunctive relief granted by a Court in the future. It is a perspective effect. For example, in this particular case, an ancillary effect of the District Court's decree might be the fact that the State of Arkansas had to spend over half a million dollars to build a new maximum security unit, but an ancillary effect would not be the award of attorney's fees. That would be a direct effect upon the State Treasury. So the District Court's determination that the award of $20,000 in attorney's fees was an ancillary effect is misplaced under the decisions of this Court.
John Paul Stevens: General Taylor let me ask one question about the procedure. It is your view that the it was wrong to order the fees payed by the Department of Correction's funds, would you concede that the court had power order your clients, the individual defendants to pay the fee?
Garner L. Taylor, Jr.: Your Honor, I do not think so because the Attorney's Fees Awards Act had not been passed at the time this decision was made, the award was made.
John Paul Stevens: Well, if the Act applies, if the Act applies, your arguments about the State --
Garner L. Taylor, Jr.: Our argument will still be that it should not Your Honor because we do not feel like the Act should be applied retroactively because to do that will result in manifesting justice to the parties.
John Paul Stevens: Your argument strikes me as is, the Department of Correction is not the party to the case, is that right?
Garner L. Taylor, Jr.: That is right.
John Paul Stevens: And so how are your clients hurt by the order for the Department of Correction to pay the fees, the individual litigants here? Are they not really helped by having the Judge order that the department pay the fees instead of having them individually pay it?
Garner L. Taylor, Jr.: To them individually I do not suppose it makes a great deal of difference other than the fact that, well, of course we are talking about--
John Paul Stevens: Well, except that you put bail and went back to the trial judge, he may say, well, I think that the individual better pay the fee, is not that a possible consequence?
Garner L. Taylor, Jr.: If this is sent back to the trial judge?
John Paul Stevens: Yes.
Garner L. Taylor, Jr.: That is a possibility, but not under the Court's determination that we are, we have right now, The court --
John Paul Stevens: But if you prevail and it is sent back to the trial judge, so you cannot order to be paid by them and a different order is an entirely possible, he will say well the individual defendants have to pay this fee?
Garner L. Taylor, Jr.: Your Honor, I do not know what the Court would say in that instance because it ordered the fee to be paid out of the Departments of Correction's Funds and in effect made a finding of bad faith on the part of the department of Correction.
John Paul Stevens: Did the Department of Corrections intervene to object to that order? It did not, did it?
Garner L. Taylor, Jr.: No sir.
John Paul Stevens: I am just wondering whether you are really advancing the best interest of your clients in your arguments here. The litigants who are actually effected -- I mean, the individual defendants?
Garner L. Taylor, Jr.: Yes sir I think so because they were sued in their official capacity as well as individually and in their official capacities we have sued the Commissioner of Corrections and the Board of Corrections and the Court's order, order that the fees be paid out of the funds of the Department of Corrections, which they control in their official capacities. So we have to --
John Paul Stevens: Well if the statute applies would he have, would the Judge have power to order the fees paid by the individual defendants? If the statute applies that we agree with you that it cannot be applied against the state?
Garner L. Taylor, Jr.: Yes sir.
John Paul Stevens: Then could the Judge order the individuals to pay the fees?
Garner L. Taylor, Jr.: The judge could order the individuals to pay the fees, if the act applies, if the Court gives retroactive application to the Act, but to do that, would definitely result in a manifesting justices as you have just pointed out, to give retroactive affect to this Act under the holding of this Court in Bradley v. School Board, Bradley v. School Board of the city of Richmond.
John Paul Stevens: Whether manifest necessity determination I suppose would take into account the finding of bad faith, would it not?
Garner L. Taylor, Jr.: Yes sir and we can test that finding, bad faith does not just --
John Paul Stevens: (Voice Overlap) that two courts have agreed on that, the District Court and the Court of Appeals?
Garner L. Taylor, Jr.: The Court of Appeals footnoted it. The District Court held on the basis of the bad faith. The Eight Circuit, in the interim, the Civil Rights Attorneys Fees Act in 1976 was passed and the District Court or rather the Circuit Court of Appeals affirmed based upon that particular Act. Although, the Circuit Court did note in a footnote that they thought the finding of bad faith was justified. However, the District Court in its opinion, at page 174 of the appendix, notes that there had been any erratic, but a continuous course of improvement and a cooperative attitude of State Authorities, generally speaking. So when you read the Courts opinion, you -- it is difficult to read bad faith into it.
Thurgood Marshall: And the correctional provisions in Arkansas been under investigation by the Federal Government since around 1960?
Garner L. Taylor, Jr.: Yes sir, I am not sure exactly what date it started. This litigation begin in 1969.
Thurgood Marshall: Did it go back way before then?
Garner L. Taylor, Jr.: There has been litigation. This, this action has --
Thurgood Marshall: So by the investigation by the FBI?
Garner L. Taylor, Jr.: Your Honor to be honest with you I am not familiar with the courses of FBI investigations or whether there have been any in our prison system.
Warren E. Burger: You referred, the bad faith conclusions reached by the Court of Appeals and I guess by the District Court?
Garner L. Taylor, Jr.: Yes sir.
Warren E. Burger: You challenge those determinations, I take it?
Garner L. Taylor, Jr.: Yes sir. We challenge the determinations, but more that Your Honor, we also challenge the proposition that a court can make an award of attorney's fees payable out of the funds of State Agency which is not even a party to the litigation, based upon this Bad Faith Doctrine, which is an exception to the traditional American rule. But here, the court did not have jurisdiction over the Department of Correction. The Department of Correction was not a party and the State of Arkansas --
Warren E. Burger: Is the Department of Corrections here, is the department of party here?
Garner L. Taylor, Jr.: No sir, no sir.
Warren E. Burger: Did they try to intervene, the Department of Corrections try to intervene to challenge the Court's jurisdiction to enter a judgment against it, when it was not a party?
Garner L. Taylor, Jr.: No sir, but under the decisions of this Court the Attorney General may protect the interest of the State under the Eleventh Amendment Immunity, regardless of whether it is a party.
Thurgood Marshall: They did not file something?
Garner L. Taylor, Jr.: No sir that is not my understanding of the law under Ford v. Department of Treasury, if I am not mistaken here.
Speaker: Oh! You filed something. This is your --
Thurgood Marshall: But do not you have to file something more than that? Do you not have to file a paper that makes you party?
Garner L. Taylor, Jr.: No sir. No sir, I believe that the decisions of this Court held that the State Attorney General may protect the interest of the State pursuant to the Eleventh Amendment regardless of whether or not the State is a party to the action. That argument maybe made on the behalf of the State.
Thurgood Marshall: I am not saying that you are --
Garner L. Taylor, Jr.: But it is our contention that the bad faith Doctrine should not justify an award of attorney's fees against the Department of Correction in the State. Furthermore, this Act should not be applied retroactively because to apply this retroactively, to apply the Civil Tight Attorneys Fees Awards Act of 1976 in a retroactive fashion, will work a manifest in justice. Under the decision of this Court in Bradley V. School Board of the city of Richmond, the Court noted that generally a Court will apply the law in existence at the time it makes its decision unless to do so will result in a manifest in justice and what could be more unjust than to require the State to pay this award when funds have been appropriated, budgets have been made, the State had no notice or knowledge that this award would be assessed against them. It actually affects the heart of fiscal management of the State of Arkansas.
Speaker: Well, there is always another fiscal year around, is it not?
Garner L. Taylor, Jr.: Yes sir.
Potter Stewart: If the dependents had been assessed these attorney's fees, would they as matter of Arkansas Law been reimbursed by the State?
Garner L. Taylor, Jr.: Your Honor at that time there was no such law. Now, we have a law that provides for indemnification when officials are acting in good faith for actual damages.
Potter Stewart: But at the time there was no law -- you have any reason to it -- suppose it -- despite the absence of a law they would or would not have been reimbursed by the State, was there any? practice
Garner L. Taylor, Jr.: No sir, to my knowledge there is no practice that the State would actually pay the damages --
Potter Stewart: Attorney's fees?
Garner L. Taylor, Jr.: Attorney's fees, right.
Warren E. Burger: Even under your present statute, would the payment not, reimbursements should not be barred by the finding of bad faith?
Garner L. Taylor, Jr.: That is correct sir and under the present statute, the State indemnifies the officials for actual damages. There is no mention of attorney's fees in that Act. If this Court in Newman v. Piggy Park Enterprises recognized that a major purpose of providing for an award of attorney's fees was to encourage litigants to bring suits vindicate the public interest, a very valid reason, but as to pending cases, such an incentive is unnecessary because the case is already in litigation. So it seems to us that perspective application of this Act will accomplish this goal while at the same time enabling the States to better prepare for the increased financial burden that maybe placed upon them in the future. Our third point that we want the Court to consider, is whether the lower courts were correct in ruling that indefinite punitive confinement is unconstitutional. Punitive confinement is employed when an inmate simply will not abide by the rules of the institution to recalcitrant inmate. They have stripped him of other privileges, denied other benefits in minor disciplinary proceedings and it is generally employed in instances where there is an escape or an assault on someone or a refusal to work. This point does not concern the conditions of the confinement, but only the duration of confinement. The District Court found that the procedures employed in the disciplinary proceedings were consistent with the decision of this Court in Wolff's V. Mcdonnell and the Court also made specific ruling so that the inmates now have no more than two in a cell at a time. They have clothing, same diet, regular diet as the other inmates with the exception of dessert, they do not get any dessert. They have a bunk and a mattress. They are entitled to a shower three times a week, but the District Court ruled that they could not be held in punitive confinement for more than 30 days and it is our contention that this was erred on the part of the District Court and the Eight Circuit in placing a limit on the amount of punitive confinement.
Thurgood Marshall: Why? The State wants the right to keep a man as long as the State wants?
Garner L. Taylor, Jr.: No sir.
Thurgood Marshall: With no layer. Would no layer --
Garner L. Taylor, Jr.: No sir. The inmate holds the key to his own release. Anytime he wants he wants to conform to the rules and regulations of the institution, do what he is supposed to do and this is assuming that the rules and regulations are constitutional, the District Court found that, the rules and regulations were constitutional, but we have a situation where an inmate simply refuses to abide by the rules and regulations.
Warren E. Burger: Well, if the Court had found that the this violated the Eight Amendment, then do you say the Court would have no power to limit the solitary confinement, assuming the correct finding of violation of the Eight Amendment? Now, you told us that the Court did not find a violation, any constitutional violation here, have you not?
Garner L. Taylor, Jr.: The Court did find, did hold that it was unconstitutional to hold men in punitive confinement indefinitely and ruled that they could not held there for longer than 30 days at a time. At that time they would have to be transferred to the maximum security --
Warren E. Burger: My question was directed at your previous statement that the court had not found a constitutional violation and which does not seem to be consistent with the record?
Garner L. Taylor, Jr.: The Court did not find a constitutional violation in the conditions of confinement, Your Honor, only in the duration. The conditions of confinement meet constitutional muster under the course of decree at this point. The Court ruled that indefinite punitive confinement serves no rehabilitative purpose and simply makes bad man worse, but that argument is a phenological argument. That argument is directed towards the administration of the penitentiary.
Warren E. Burger: You wish to reserve any time for rebuttal, your signal is on for that --
Garner L. Taylor, Jr.: Your Honor, I will reserve the remainder of my time.
Warren E. Burger: Very well. Mr. Kaplan.
Philip E. Kaplan: Mr. Chief justice and may it please the Court. From the beginning of my participation in this case in December of 1969 until today, there have been three published District Court opinions, five additional unpublished interim memorandum orders of the District Court and three opinions in the Court of Appeals regarding the Arkansas Department of Corrections and the administration of the Arkansas prison system. All of the findings of unconstitutionality of the Arkansas prison system as cruel and unusual punishment by the District Court have either been affirmed by the Court of Appeals or never challenged. Not one of the District Court's most recent findings, either of fact or conclusions of law are challenged here. What is challenged is one small aspect of the remedial portion of the judge's order.
William H. Rehnquist: Well, that makes it a relatively easy case for both of you to focus on it, does not it?
Philip E. Kaplan: That is correct and I think that it is necessary for you to have a picture of what life was like in the punitive segregation section of maximum security in 1975.
Potter Stewart: Well now why, if the issue is as narrow as you just told us it is?
Philip E. Kaplan: So that focus can be directly related to the judge's power to impose that particular equitable remedy. It is not an isolation. This order --
Potter Stewart: You just told us it is?
Philip E. Kaplan: No, that here is the order of no more than 30 days is not an isolated remedy. It is in connection with a whole (Inaudible) of remedy and orders that the judge imposed with regard to the decision.
William H. Rehnquist: But none of which are challenged by your opponent?
Philip E. Kaplan: None of which are challenged. Now, with regard to that 30 days, recall that the record will demonstrate that persons who are kept in a cell nine-and-half-feet by seven feet designed for one person, frequently, most of it with three people in the cell --
Thurgood Marshall: I thought that has been limited to two as of now?
Philip E. Kaplan: It has now been limited to two.
Thurgood Marshall: Well, that is what we have?
Philip E. Kaplan: But that is what we had when the judge decided it.
Thurgood Marshall: That is what we have right now?
Philip E. Kaplan: Yes, but also the judge was deciding this case in a context of his having written decisions since 1968, before Mr. Holt and I entered this case, limiting overcrowding, prohibiting overcrowding and never once had he found those orders being complied with, never once and in the context of that series of evasions of court orders since 1968, he finally says, no indeterminate sentencing and only two in a cell. One pallet, one steel pallet --
Warren E. Burger: That is not true now, is it?
Philip E. Kaplan: Still true, one steel pallet, still true, one steel pallet with mattresses during the day only. No other furnishings except for a single unit, lavatory and commode. That is the entire furnishings of the cell. That was true in 1975 and remains true today.
Potter Stewart: No mattress, no blanket, no nothing?
Philip E. Kaplan: Not during the day time.
Potter Stewart: Well, at night?
Philip E. Kaplan: At night a person is furnished with a mattress and a blanket. An atmosphere, a pervasive atmosphere of brutality from 1968 on and he confirms it in 1975, between guards and inmates, between inmates and inmates, in this terribly overcrowded situation, just a pervasive atmosphere of brutality. No mail from anyone except the court. No family contact. No contact with anyone else. No visits from anyone except the occasional visit, perhaps, from a minister. No books. No law books, the only book permitted, The Bible, that is it, but no law books, unless he has been in there for in excess of 20 days. No exercise with the exception of every third day to the shower.
Speaker: Well, I repeat what everyone else has said, all this is admitted, is it not?
Philip E. Kaplan: All of this is clearly admitted and I am challenged, but the basis for the judge's order of no indeterminate sentencing and it is within that context that the order arises.
Speaker: Well, I am just suggesting, you are wasting your time. Maybe we all fully appreciative of this.
William H. Rehnquist: And also you suggested it is a part of the equitable remedy or the judge's holding was that this particular form of punitive segregation, violated the cruel and unusual punishments clause, did he not?
Philip E. Kaplan: He found that the entire conditions including the indefinite sentencing, violated the crew in unusual section.
William H. Rehnquist: And that is a substantiative determination, not is just a formulation of an equitable remedy?
Philip E. Kaplan: That is substantive determination, one aspect of the remedy meets that directly. It is within this context, that the judge says no indefinite sentencing and the State challenges nothing else. He relates the remedy exactly to the violation. He does not go beyond it. He does not go outside of it. He just says I am relating it to the remedy as part of an overall remedy. I eliminate grove and I eliminate more than two people. I require an appealing diet. I say no more brutality again for the fourth or fifth time and one of the other things is no more indeterminate sentencing and that does help, with the disease and communicable health problems that he finds in the other sections of the prison, it does help with the overcrowding.
Warren E. Burger: Well, are you arguing this now in the support of the bad faith finding or what is the purpose of --?
Philip E. Kaplan: Only for the cruel and unusual aspect.
Warren E. Burger: Well, (Inaudible) indicated that we did not need any more on that?
Philip E. Kaplan: Very well Your Honor. With regard to the attorney's fees issue.
Potter Stewart: Before you leave that point, do you agree that this so called indefinite or indeterminate sentencing, isolation is in fact sort of akin to civil commitment, i.e. that the inmate has the keys in his own pocket, if he agrees to abide by the rules and has he abide by the rules?
Philip E. Kaplan: No.
Potter Stewart: That is a disagreement of fact, which we -- it is very unfortunate if we have that here in this Court because generally we are not triers of the facts?
Philip E. Kaplan: I think the record is quite clear that the only way one can be sentenced to punitive segregation is for a violation of a prison rule after a due process hearing. And it has a specific relation.
Potter Stewart: Well, that does not solve the question. So it is there because of violation of a prison rule after due process hearing. Now, your brother on the other side says he can get out of there anytime he says, I will hereafter abide by the rule and then proceed to do so. Now, do you disagree with that as a matter of fact? If so may we better remand this case to have the facts determined, we are not affect determining body?
Philip E. Kaplan: I disagree with the issue that a person holds the key.
Potter Stewart: It is not a matter of a agreement or disagreement really, it is (Voice Overlap) agree or disagree about an idea or an opinion, this is a matter of fact?
Philip E. Kaplan: I disagree with the matter of fact.
Potter Stewart: You say he his factually mistakenly when told us that?
Philip E. Kaplan: That is correct.
John Paul Stevens: Counsel, did the District Judge make any finding of fact on the question of how an inmate terminates his independence, his indeterminate sentence.
Philip E. Kaplan: He did not.
John Paul Stevens: Did either side ask him to make a finding of fact on that issue?
Philip E. Kaplan: They did not.
John Paul Stevens: So, I suppose the question is who had the burden of establishing this fact, is it not?
Philip E. Kaplan: Well --
John Paul Stevens: If there is a factual dispute?
Philip E. Kaplan: There is in the sense that, Mr. Justice Stewart phrased the question, there is no real justice of -- and no real dispute of fact because the court below may -- did make certain findings with regard to actual sentencing to punitive isolation. Yet, the rules of the administration themselves say, there shall be no indefinite sentences. They say that and they are quite clear. There shall be none. Sentences were always imposed and the record show that from 1970 on, when there were written rules, sentences were always from 0 to 30 days or 1 to 30 days, that is all there ever was. There has never been -- you are sentenced until you decide to go to work, that has never been the situation. There was never a need for a finding because then factual setting never arose.
John Paul Stevens: Well, then there is no need for this relief, if that is correct?
Philip E. Kaplan: Well, there is because the judge also found that inmates such as Alfanso Graham were there for six months on a limited diet, in exactly this situation that I attempted to describe.
Potter Stewart: Is it going to be a limited diet now?
Philip E. Kaplan: Now, it will not be.
Potter Stewart: Well, therefore we have to know, is it not true that many of these horribles that you have paraded in front of us have now been ordered to be corrected?
Philip E. Kaplan: Many of the physical --
Potter Stewart: So, the punitive segregation does not involve the same conditions that you described to us?
Philip E. Kaplan: It does not involve the same, but what the judge described was a situation of evolving and changing horrors. This is the same judge who found horrible situations in Jackson v. Bishop with the strap and with a tucker telephone and here he finds himself 8 years later within a evolving kind of brutality, but the same, just in the same direct tradition.
Potter Stewart: Well, has he not ordered it to be corrected?
Philip E. Kaplan: He has always ordered it to be corrected.
Potter Stewart: And that has not been --
Philip E. Kaplan: He has never been met with compliance --
Potter Stewart: We do not have that before us, the -- at least for the purposes of present case, the -- your brother is not questioning those orders. Is that not correct?
Philip E. Kaplan: He has not questioned any of those orders.
Potter Stewart: And it is only this slight little slaver that you describe to us at the opening of your argument?
Philip E. Kaplan: That is correct.
John Paul Stevens: Mr, Kaplan, do you take the position, I am just quite not sure what your position is, if the prison officials comply with the judge's order with respect to the conditions of containment, but they then seek to impose indefinite sentences, would that be cruel and unusual punishment?
Philip E. Kaplan: It is not to be reached here, but it is our position that, that would be true. That is --
John Paul Stevens: Why is it not to be reached here because you say there was a more of a violation in the past which has now been corrected?
Philip E. Kaplan: I am saying that the -- that they are seeking to impose cruel and unusual punishment is not an issue, I am sorry, indefinite sentencing is not an issue. Their Rules suggest that they could not and they are not suggesting that they are now attempting to change the rule.
John Paul Stevens: I just really do not understand.
Thurgood Marshall: I do not understand either. You say, the judge says you can not keep them over 30 days, then you say indeterminate sentences are not involved, what is your problem?
Philip E. Kaplan: Well, what was happening was that the institution was keeping people and forgetting them.
Thurgood Marshall: Well what does the order now says, you cannot keep them over thirty days?
Philip E. Kaplan: You may not do it under any circumstances.
Thurgood Marshall: Well ,you say it has always been the Rule?
Philip E. Kaplan: I am sorry Your Honor, I did not hear you.
Thurgood Marshall: You say it has always been the Rule?
Philip E. Kaplan: It has always been the Rule.
Thurgood Marshall: That you could not keep them over thirty days?
Philip E. Kaplan: But you could not keep them over thirty days.
Thurgood Marshall: Oh! what are we spending our time about now?
Philip E. Kaplan: I have no idea, why the State has made that appeal we move to dismiss this improvidently granted on exactly that basis.
Speaker: Mr. Kaplan, you mentioned Jackson v. Bishop.
Philip E. Kaplan: Yes Your Honor.
Speaker: As I have some exposure to that case, are you intimating that the Tucker Telephone and the strap are still being used in these confinements?
Philip E. Kaplan: Oh no. Just that there has been an evolving kind of evasion of the same kinds of brutality.
Speaker: There is a difference in degree at least between the Tucker Telephone and what you are talking about now I would think maybe, maybe it is not very good but at least Tucker Telephone is gone?
Philip E. Kaplan: It is gone as is the strap. With regard to the award of counsel fees we advance --
William H. Rehnquist: Mr. Kaplan let me ask you one more question. If the State says that there have never been punitive confinements in excess of 30 days and you say you do not disagree with that, why on earth did the judge make a ruling on that point?
Philip E. Kaplan: Because the State does not say that there never have been any, that is their rule, they have actually confined people and the record here does show that they have confined people for five and six months.
William H. Rehnquist: Well then it is an issue?
Warren E. Burger: You may respond to that at 1 o' clock Counsel.[Recess] Mr. Kaplan you may resume your arguments.
Philip E. Kaplan: Thank you Mr. Chief Justice.
Warren E. Burger: There a question pending from the bench, I think?
Philip E. Kaplan: It was a question from Mr. Justice Rehnquist, I believe.
Warren E. Burger: Perhaps you better address that.
William H. Rehnquist: I am not sure I remember and perhaps you do not either.
Philip E. Kaplan: I do not Your Honor.[Laughter]
William H. Rehnquist: It was something in the nature of if in fact people are not confined more than 30 days, why did the District Court make a finding on the -- that it would be cruel and unusual punishment for them to be confined more than 30 days?
Philip E. Kaplan: Alright, I think I can address that and I have three specific items that I want to refer to, to address that question particularly. One, the judge did make a finding with regard to punitive segregation. It appears at 410 f's up 275, the specific finding his brief. It says while most inmates sentenced to punitive isolation are released to population within less than 14 days, many remain in the status in question for weeks or months depending upon their attitudes as appraised by prison personnel. So it is not the key that is in their hand. It is in someone else's hand that the judge has said is already poorly trained, response poorly, response inadequately and excessively. The record amply supports it.
Warren E. Burger: Who should decide the issue that you have just raised?
Philip E. Kaplan: Well, the judge has responded to that exactly. He said no more than 30 days deals with that whole issue and then he clarifies it and says if there is another rule violation, they maybe tried again for a separate rule violation and placed in punitive segregation again under the rules for that separate violation.
Warren E. Burger: In other words, a periodic re-examination?
Philip E. Kaplan: Well there are two things. He does also ask for a periodic re-examination, but then says if there is another serious violation, they be tried again under all of the other procedures and safeguards and rules that the prison has had. Now, that is the way the judge has dealt with it.
Warren E. Burger: But they still cannot impose the sentence of more than 30 days?
Philip E. Kaplan: That is correct. Their rule says and the rule is quoted at --
Warren E. Burger: But according to him, under the United States Constitution cruel and unusual punishment clause, they cannot impose this kind of sentence for more than 30 days?
Philip E. Kaplan: In the totality of the circumstances that he finds, he does say that under the Constitution he finds that in the totality here, in this case, in 1975, the way I find the conditions, not the way we look at them two years later and see that some of them have been ameliorated by some other conditions or some of his remedy, but as I find them here the totality of the circumstances, I find that more than 30 days is cruel and unusual.
Warren E. Burger: But do you think he made this cruel unusual punishment ruling on the assumption that the other parts of his order would not be carried out?
Philip E. Kaplan: On the fear that someone of them might not, but also in recognition of seven or eight years of history of dealing with the same people under circumstances where there was no carrying out of a remedy and I think that you cannot take one little part and say if the 30 days had been the only thing, the 30 days would have been appropriate. It would have relieved over crowding. It would have stopped inadequate or unappealing diet for a whole long period of time. It would have reached a number of these items.
Warren E. Burger: Well, if he wanted to limit the confinement, the solitary confinement to 30 days, was it necessary for him to reach the constitutional issue? Could he not have decided, for example, under the holding of this Court in the Service case that the State was obliged to live up to its own rules?
Philip E. Kaplan: I think perhaps he could have. He was, he had before him however a mountain of evidence of persons who have languished in punitive isolation.
Warren E. Burger: But the rule, the enforcement of the rules would take care of that, would it not?
Philip E. Kaplan: The enforcement of the rules would have taken care of it, if they would have enforced their own rule, but the rule was always observed in the breach as opposed to in the observants of the rule itself in particular to the rule. It was never adhere to, it was breached.
Byron R. White: Mr. Kaplan where is the rule in the record you try to tell us?
Philip E. Kaplan: Yes. Your Honor it is at page 24.
Byron R. White: Of what?
Philip E. Kaplan: Of the brief, of our brief, the rule which is taken directly from their disciplinary procedures is quoted and it is in footnote 11 and at the bottom of page 24 is the statement about 15 days in punitive segregation not being for indefinite or permanent. There, it continues in the footnote section of page 25.
Potter Stewart: But that assumes that it is going to be a restricted diet and the diet is no longer restricted except the absence of dessert?
Philip E. Kaplan: That is correct. It is no longer restricted, but again this was only one means of dealing with it.
Byron R. White: Mr. Kaplan that says ordinarily you should not be retained for more more 15 days and at page 25 it says the regular punitive segregation, either -- do the rules contemplate extraordinary punitive?
Philip E. Kaplan: Well, what the evidence shows is that Mr. Lockhart and Mr. Hutto, both the Commissioner and the Warden said that 14 days was the ordinary situation and almost all inmates were released in 14 days. The testimony also show that there was an inmate there for over six months, that the Warden never knew about until he heard about it in testimony in Court, so that perhaps --
Byron R. White: I may have just ask you a very narrow question, I do not read the rule as confining the period of punitive segregation to 15 days?
Philip E. Kaplan: The only exception is the next paragraph. It says where recalcitrant inmates are to be returned to ordinary diet. That is the only exception that we know about and that is the attitudinal problem that the judge was dealing with.
William H. Rehnquist: What do you do with Justice Stevens' inquiry about the second sentence of the Rule I at the bottom of Page 24 versus ordinarily no inmates should be remain in punishment as segregation or on unrestricted diet than more than 15 days?
Philip E. Kaplan: Well, the facts show and that is what I stated before, the facts show that there never had been a sentence for more than 30 days. That the only time that there was more than 30 days was this recalcitrant attitudinal problem that the judge specifically addresses.
William H. Rehnquist: Then you could not say was a violation of this particular rule, if the Prison Board found extraordinary circumstances to sentence them for than 30 days, could you?
Philip E. Kaplan: That is correct. I would like to pass on to the attorney's fees issue. With regard to the award of counsel fees, we advance two separate and independent arguments. First, we maintain as Justice Stevens has already urged in Fitzpatrick that awards --
Byron R. White: I just want to go back to this morning, has the judge as the District Court determine in the light of the present conditions in the prison whether the 30 day limit should be retained?
Philip E. Kaplan: There has never been a petition to modify or to be relieved from the provisions of the award, of that particular injunctive item. We have had in January of 1978, 15 more days of hearings and still have not rested and there has not been yet a motion to be relieved from the provisions of this award.
Byron R. White: On the grounds that conditions have so changed that the basis for the order has disappeared?
Philip E. Kaplan: That is correct, there has been no such motion.
Byron R. White: Thank you.
Philip E. Kaplan: The first again that counsel fees are not subject to the limitations of the Eleventh Amendment. If this contention is accepted by the Court it is dispositive of the award of counsel fees since the Court's award of counsel fees by -- on a basis of bad faith is expressly authorized in Alyeska and since it is not an unusual item to assess fees under the Suffront (ph) doctrine against the party.
Thurgood Marshall: Is it not a little out of the ordinary to assess fees against a non-party?
Philip E. Kaplan: No, I do not think so. I think that, that is the clearly the situation contemplated in Suffront that one who prosecutes or defends a suit in the name of another to establish or protect his own rights or assists in the prosecution is as much bound by the judgment as if he had been party to the record. Arkansas statute compels the Attorney General here to represent the interests of the State, that is not the indemnity Statute.
Thurgood Marshall: Was the State a party?
Philip E. Kaplan: The State was not a named party and could not --
Thurgood Marshall: Was the State a party?
Philip E. Kaplan: The State was a party by virtue in our view of having been there. The Attorney General has represented the State in connection with this pursuant to State law, the Attorney General shall maintain and defend interests of the State in matters before the Federal Courts and shall be the representative of all State officers, Boards and Commissioners in all litigation where the interests of the State are involved and I do not think that anyone disputes that, that is exactly the situation that has occurred in this case. Since the onset of the litigation in 1965 that is, that the Attorney General has been present, representing the interests of the State and indeed pursuant to the same statute, the State has paid the assessments of costs, both their attorney's fee's cost, other expenses of the case, including the law students that we hired over a period of years, including the transcripts for the proceedings before the Magistrate, sitting as the special master to hear the evidence, all of those have been paid as cost by warrant on the State treasury, pursuant to this statute.
Warren E. Burger: Where do we find that in this record?
Philip E. Kaplan: It is in the record of the court below when they satisfy the judgments, they satisfy them based on their drawing of a warrant on the treasury to us and we received all of those and checks in the course of the history of this litigation, drawn on the Auditor of the State of Arkansas.
Warren E. Burger: You are speaking now of fees, other than the ones that are before us?
Philip E. Kaplan: That is correct. The $8,000 awarded for the District Court proceedings in 1973. These fees to three lawyers for two-and-a-half year's work on this case that is everything from the appeal in the Court of Appeals in what is Finney one, that amounted to the $20,000.
Thurgood Marshall: Mr. Kaplan what paper do you have signed on behalf of the State of Arkansas, in this case, any place?
Philip E. Kaplan: No place except that all of the documents have been signed by the Attorney General representing everybody pursuant to the statute.
Thurgood Marshall: But to answer my question --
Philip E. Kaplan: There is none.
Thurgood Marshall: There is none?
Philip E. Kaplan: There is none.
Thurgood Marshall: And do you get Jurisdiction without that?
Philip E. Kaplan: We get Jurisdiction pursuant to 1983 and pursuant to the fact that we have all of the Board.
Thurgood Marshall: 1983 gives you a right of damages against State Law of Arkansas?
Philip E. Kaplan: No we are talking now about --
Thurgood Marshall: Well, that is what you are talking about?
Philip E. Kaplan: Well --
Thurgood Marshall: I am talking about counsel fee and I want to know what is there in this case that I can read which says the State of Arkansas --
Philip E. Kaplan: Nothing is in here that says the State of Arkansas is here. There are as it turns out, two cases that were consolidated in 1975 in which that the Department of Corrections is a named party. No one ever challenged the fact that they were named in those two cases. In 1975, Judge Henley consolidated approximately 70, 1983 petitions for hearing on the merits of those cases, at the same time as we heard Finney remand from the Circuit Court. Two of those cases, one of which is Pittman v. Others and the Department of Corrections names the Departments of Corrections as a State body. Now, that is the only thing in the record which indicates that the State is a party.
Thurgood Marshall: Is that in this case?
Philip E. Kaplan: That is in this case.
Thurgood Marshall: Where?
Philip E. Kaplan: Oh Yes.
Thurgood Marshall: Where?
Philip E. Kaplan: Well it is in the,it is in the docket entries of the District Court.
Thurgood Marshall: Well, you and I understand how much docket entries are representative of a lawsuit argument?
Philip E. Kaplan: Well, that is the actual pleading. The pleadings were all consolidated with this case and the judge issued his ruling --
Thurgood Marshall: I want a sub-rule in this record other than the docket entry?
Philip E. Kaplan: Well the pleading itself is in the record.
Thurgood Marshall: That speak for the State of Arkansas?
Philip E. Kaplan: That says that State of Arkansas is a named party was not moved out of the case, was not plead out of the case in anyway.
Thurgood Marshall: And where is that in?
Philip E. Kaplan: That is in Pittman against Others and Department Of Correction.
Thurgood Marshall: Well, I am talking about this case?
Philip E. Kaplan: That case is consolidated with this case by an order of consolidation.
Thurgood Marshall: Well, is it up here?
Philip E. Kaplan: It is up here as a consolidated matter, yes Your Honor.
Thurgood Marshall: Is it the record here?
Philip E. Kaplan: The record has been forwarded from the District Court, the entire record.
William H. Rehnquist: You said a minute ago the Department of Corrections than I think perhaps you said at another time the State of Arkansas, are you using them interchangeably?
Philip E. Kaplan: In that case in response to Mr. Justice Marshall's question, yes.
Potter Stewart: The who is then – which was the named party?
Philip E. Kaplan: The named party was the Arkansas Department of Corrections in the case that I referred to Justice Marshall and the second ground is that the award of counsel fees is authorized by the Civil Rights Attorney's Fees Act of 1976 which was adopted in response to Alyeska under Fitzpatrick and under the -- with a proper congressional exercise of power, not with the magic words amending, to say that we can say a named, that State may be sued, but the legislative history is quite clear, quite explicit that the Congress intended that States pay these fees. The Senate report is cited at page 78 of our brief as is the House report. Both of which are quite clear that these fees assessed against officials are to be collected from the State. And representative (Inaudible) report makes it clear or his statements make it clear, quoted at page 81 of the brief, that it is an enactment pursuant to Section 5 of the Fourteenth Amendment. There is no doubt what the legislative history in this case provides and that is that the States are to pay these awards. That $20,000 that the State says will be such a catastrophic on it, was assessed for three lawyer for two-and-half to three year's work in one billion dollar budget and it is clearly ancillary if anything is ancillary, the State paid over $500,000 to build the East Building in response to what the judge required and here we are not dealing with a catastrophic award, a fees is so going to seriously dehabilitate the State ability to function in that year or in any other year. Thank you.
Warren E. Burger: I think you have a few minutes left if you have anything further.
Garner L. Taylor, Jr.: With regard to the point made concerning our State statute requiring the Attorney General to appear, I would refer the Court to Ford Motor Company v. Department Of Treasury, a similar statute was involved in that particular case, it is in the footnote left of the Court's decision and in that case it was held that there was no waiver by the virtue of the fact that the Attorney General appeared and defended the action. I believe this Court acknowledged the fact when it decided the landmark case of Fitzpatrick v. Bitzer, it was breaking new ground that -- and setting forth the means by which Congress can act pursuant to Section 5 with the Fourteenth Amendment and abrogate a State's Eleventh Amendment Immunity without a wavier, express or implied on part of the State. The Court acknowledged that it was making new law and we urge the Court to adopt the position that when Congress acts pursuant to Section 5 of the Fourteenth Amendment it must do so in explicit statutory language and urge the Court to do decide in this case and to reverse the decision of the Court of Appeals.
Warren E. Burger: Thank you gentlemen. The case is submitted.