Supreme Court of Virginia v. Consumers Union of the United States, Inc.

PETITIONER: Supreme Court of Virginia, et al.
RESPONDENT: Consumers Union of the United States, Inc., et al.
LOCATION: Supreme Court of Virginia

DOCKET NO.: 79-198
DECIDED BY: Burger Court (1975-1981)

CITATION: 446 US 719 (1980)
ARGUED: Feb 19, 1980
DECIDED: Jun 02, 1980
GRANTED: Oct 15, 1979

Ellen Broadman - for appellees
Marshall Coleman - for appellants

Facts of the case

The Code of Virginia authorizes the Supreme Court of Virginia to regulate and discipline attorneys. Under this authority, the Virginia court promulgated the Virginia Code of Professional Responsibility (Bar Code), and the content makes it clear that the Virginia court holds all legislative and regulatory power over the legal profession in the state. The court also adjudicates alleged violations of the Bar Code.

In 1974, Consumers Union of the United States sought to prepare a legal directory designed to assist consumers in making informed decisions about legal representation. Consumers Union attempted to canvass all of the attorneys of Arlington County, Virginia, for the information for their directory. Many attorneys refused to provide the requested information for fear of violating the Bar Code’s prohibition against attorney advertising and providing the type of information the Consumers Union sought to publish.

On February 27, 1975, Consumers Union and the Virginia Citizens Consumer Council sued the Virginia Supreme Court, the Virginia State Bar, the American Bar Association, and other individuals. The plaintiffs alleged violations of their First and Fourteenth Amendment rights to gather, publish, and receive factual information concerning attorneys practicing in Arlington County. The plaintiffs sought a declaration and an injunction against the enforcement of the relevant section of the Bar Code.

The district court held that the section of the Bar Code unconstitutionally restricted access to information concerning the attorneys’ initial consultation fees, but did not enjoin the enforcement of the code as it relates to advertising. Consumers Union appealed to the U.S. Supreme Court, which held that the prohibition of attorney advertising violated the First and Fourteenth Amendments. The Court vacated the judgment and remanded the case. On remand, the district court held that the section of the Bar Code was unconstitutional in its entirety and enjoined its enforcement. Consumers Union moved for the awarding of attorneys fees, which the Virginia Court objected to on the grounds that it had judicial immunity. The district court awarded attorneys fees against the Supreme Court of Virginia.


Is the Supreme Court of Virginia immune from a suit brought under the Civil Rights Code of 1983?

Can the Supreme Court of Virginia be liable for attorney’s fees?

Media for Supreme Court of Virginia v. Consumers Union of the United States, Inc.

Audio Transcription for Oral Argument - February 19, 1980 in Supreme Court of Virginia v. Consumers Union of the United States, Inc.

Warren E. Burger:

We'll hear arguments next in Supreme Court of Virginia against the Consumers' Union.

Mr. Attorney General, I think you may proceed whenever you're ready now.

Marshall Coleman:

Mr. Chief Justice, if it may please the Court.

This is a case that arises from the holding in the Bates decision on lawyer advertising.

Now because the Virginia Supreme Court promulgated a rule that banned advertising prior to Bates, it was subject to an award of attorney's fees by a three-judge panel and so at issue in this case is whether judicial immunity will stand or fall.

We are at a period in our history of enormous harmony between the federal judiciary and the state judiciary.

But, this case is really an anomaly in that because we are confronted with a punitive measure against a court that did not act to the harm or determent of any party, intended no harm, and wished no harm to any party, but because it had a rule that was generally accepted to be valid throughout the country, at the time of the Bates decision in 1977, a three-judge panel has found that attorney's fees that could amount to $120,000 should be assessed against the Virginia Supreme Court and against our Chief Justice.

William H. Rehnquist:

Did you concede, General Coleman, that the Supreme Court of Virginia is a person under 1983?

Marshall Coleman:


We urged the-- below the question of a judicial immunity and we--

William H. Rehnquist:

I'm not talking about judicial immunity.

I thought that immunity was a defense that one raised.

I think, in order to have a lawsuit under 1983, you have to show that the person you are suing is a person for purposes of 1983 as defined by Congress under Monell and related cases.

Marshall Coleman:

Well, during the course of this litigation, which was quite protracted, there was, and I think in the record there is a proposed order that could give rise to the thought that there was a concession on that point.

But, during the case as it went forward, the state always took the position that it could not be -- the attorney's fees could not be assessed against.

They would like to settle the question and it was a matter that was of great moment and ought to be resolved by the federal courts, but --

Warren E. Burger:

Is there any connection between Mr. Justice Rehnquist's question, the subject he's bringing up, and the fact that the party named was -- the named parties are the Supreme Court, presumably as an entity, and Lawrence I'Anson, the Chief Justice?

Marshall Coleman:

Well, they were named, as was the state bar, and --

Warren E. Burger:

Clearly, he is a person.

He --

Marshall Coleman:

That's right.

The fees, of course, against him were in his official capacity, but he is a person.

Now, it's our position here that no one was harmed after Bates came down and I think it's a clear rule of this Court that when a rule or law is declared unconstitutional, then it has no force or effect, that it is not necessary for any party to take any action and I think it's, in fact, recent doctrine that if the court should change that rule and reverse Bates, for example, that that law could come back into effect.

But, there is no evidence in the record or any suggestion that the court or any officer of the court at any time sought to violate Bates or sought to enforce the rule.

They clearly did not.

What we tried to present to the court, and it refused to hear it below, was that the machinery was going forward through the offices of the state bar to amend and change the rule consistent with Bates.

That's not a matter that's free of difficulty, I might add and, after I took office, I issued an Attorney General's opinion for the bar which was published and promulgated to all lawyers saying what the impact of Bates was on the rule.

But, there was never any question involved in this case of our Supreme Court not acknowledging supremacy of this Court or ever trying to enforce a rule that was in violation of Bates, but the court below seemed to believe that because our Supreme Court did not, with greater haste, changed the rule subsequent to Bates, that these Attorney's fees should properly be assessed under 1988.

And, it is our position that, with today's practice, that the awarding of attorney's fees against a court or against the chief justice has an inhibiting effect that is just as severe as damages.

Certainly, if the court has to stand, when it is acting as a court in its judicial functions, against the dread of having attorney's fees assessed against it.