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)
LOWER COURT:

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

ADVOCATES:
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.

Question

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?

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:

No.

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.

Marshall Coleman:

The very essence of our system of federalism and constitutional law is at issue because, then, the judge is not really in the position to exercise the kind of independent judgment that he ought to in trying cases and in making judicial rulings.

It’s interesting that when the doctrine of the case to which we all look for the best articulation of the Doctrine of Judicial Immunity, Bradley against Fisher, was a case that itself was involved with lawyer discipline.

That was a case, as the Court remembers, when the judge sought to remove a lawyer from the rolls and within his inherent authority to regulate the bar and the court found that he could not be moot for that decision because the Doctrine of Judicial Immunity was such an important one that has been there as long as we have had courts.

The lower district court seems to be saying that the priorities of our State Supreme Court should be its priorities, and its priorities apparently were that our Supreme Court should amend the rule immediately.

Many other states didn’t and still have not and our state has now changed that rule, but change it or not, there was no one who was at hazard in Virginia as a result of our not changing the rule because the law in the Bates case applied.

Now, we’re not talking about the assessment of cost or filing fees.

Obviously, that is not usually of great moment and, in the Fairmont Creamy case, the court was talking about the need to get it filing fees to continue in business.

We’re talking, in this case, of shifting the fee under the 1988 statute that was put there specifically for one purpose, which was to, at the invitation in part of this Court after the ruling in Iliescu, to permit attorney’s fees to be shifted not to create some new remedy, not to abolish judicial immunity or the other immunities that existed at the law or in the Constitution.

In fact, the report accompanying the bill said that it did not create any new substantive rights.

So, it is our position that, first of all, even if you look at a statutory construction without conceding a constitutional dimension to the right of judicial immunity that, certainly, in this case, our court is being fined because it had a rule that was part of our governance in Virginia that everyone thought was appropriate and valid and legal.

Our court should not be held to effect a punishment because that rule was there.

Special circumstances should indicate otherwise.

There’s no hint of any bad faith on the part of our court.

Secondly, looking at the statute itself and looking at the guidance that we have from several cases – Pierson against Ray and others, this Court has found that if the Congress is going to abolish immunity, that it ought to do it specifically and it ought to manifest that it wanted to do that.

There is no such evidence of that in the reports that accompanied the adoption of 1988.

And, finally, it would be our position that the entitlement to judicial immunity is so at much at the core and at the heart of a function of government that is necessary for our Virginia Supreme Court that the Congress ought not to be able to overrule it even if it wanted to do it.

This, in fact, poses a threat to the Doctrine of Judicial Immunity.

We’re not talking about prospective relief.

We’re talking about attorney’s fees that were awarded for something that happened several years ago, in 1970, when our court adopted this rule.

We’re not talking about a recalcitrance or bad faith on the part of the court in any respect, but we are talking about the inherent authority to manage, by rulemaking, the lawyers in Virginia which is an inherent function being in jeopardy and every other ruling of the court being in jeopardy if attorney’s fees could be assessed in this case.

It strikes me that, without an independent judiciary, we have to ask what our history be like, who would protect any of us.

It is something that is essential and is needful.

The question of who pays the assessments, whether it’s the state or whether it’s the court, whether it is an individual does not change the question before the court, and the question before the court simply is what chilling effect this decision, if it is upheld, would have on our jurisprudence, not only in Virginia, in the other states and, in view of Davis against Passman, what effect it would have on other judges, Certainly, in Stump against Sparkman this Court seemed to take the immunity issue to its very limit and to hold that, in that case, the judge could not be answerable for an act he did as a judicial officer.

Certainly, in this case, unlike the characterization in the opposing brief, we don’t have a court that was not sympathetic or sensitive to individual rights.

We don’t have a court that, in any way, attempted to trench on the constitutional guarantees of this Court and I think the three-judge panel certainly underestimated the difficulty and complexity of making a rule for the entire regulation of the bar consistent with Bates.

It underestimated the nature and extent of the job that was before it, but the Appellees in this case seem to argue that even if the rule had been changed, that that did not ch– alter the liability for the court in this case to pay attorney’s fees.

It’s our position that this trenching on judicial immunity is a threat.

That it would result in the intimidation of a judiciary which would certainly interfere with the functioning of our republican form of government and our system of governance.

Warren E. Burger:

Ms. Broadman.

Ellen Broadman:

Mr. Chief Justice and may it please the Court.

Ellen Broadman:

Virginia Supreme Court’s disciplinary rule which was at issue in this case is, without question, unconstitutional.

Although the Virginia Supreme Court now concedes this fact, it claims that it is immune from the underlying action in this case and claims immunities that would leave the public defenseless against its future incursions on constitutionally protected rights.

Here, the —

William H. Rehnquist:

Ms. Broadman, I take it, you do contend that the Supreme Court of Virginia, as an entity, is a person under Section 1983 and 1941?

Ellen Broadman:

Mr. Justice Rehnquist, we feel that this Court does not need to reach that question because we did name the chief justice in his official capacity as a defendant, so that we clearly do have a defendant who is a person within meaning of 1983.

It’s —

Potter Stewart:

But did the chief justice promulgate these rules?

Ellen Broadman:

He was —

William H. Rehnquist:

It was the court.

Ellen Broadman:

Well, it was the court but he is a member of the court.

Potter Stewart:

Yes, but he didn’t —

Warren E. Burger:

He’s not all of them.

Ellen Broadman:

No, he’s certainly not all of them.

Potter Stewart:

He was an appropriate defendant alone in this case, was he?

Ellen Broadman:

That’s correct.

William H. Rehnquist:

Suppose that you had sued just as the Supreme Court of Virginia.

Do you think the Supreme Court of Virginia, as an entity, is a person within 1983?

Ellen Broadman:

Well, when we refer to the Virginia Supreme Court, we intended to refer to each of the members of the Supreme Court in their official capacity, so when we refer to it as an entity, we’re really referring to each of the individual justices in their official capacity and they are persons.

So that, as an entity, we would argue that they are persons for purposes of the 1983.

Here, the consumer groups’ only means to protect their First Amendment freedoms was to institute this action.

The disciplinary rule at issue here prohibited attorneys from participating in an attorney directory that the consumer groups wanted to publish to educate the public about available legal services.

Here, the consumer groups could not appeal that rule in order to protect their First Amendment freedoms.

They could not publish that directory and challenge the disci — challenge the unconstitutional rule through disciplinary proceedings.

Their only recourse was to bring this action under 1983.

The consumer groups here needed to join the Virginia Supreme Court as a party in order to obtain complete relief against all entities who had authority to enforce the rule against attorneys who participated in the directory.

Byron R. White:

And what happened to– was there a damages claim in this case?

Ellen Broadman:

No.

The consumer groups here did not seek damages.

They solely sought–

Byron R. White:

But, I suppose if — I suppose that if you win, they could have and would — and should be entitled to damages under 1983?

Ellen Broadman:

Well, that would depend on whether or not this Court characterizes the issuance and enforcing of the disciplinary rules as judicial or as administrative in nature.

If they are judicial acts, it’s our contention that judicial immunity would protect the court from any damage claim.

However, it would not protect the court from prospective relief from declaratory —

Byron R. White:

Right.

Ellen Broadman:

— and injunctive relief that protects rights in the future.

Byron R. White:

Well, what about attorney’s fees for the injunction?

Ellen Broadman:

Okay, it’s our contention that Hutto v. Finney establishes that the attorney fee award in this case is correct.

The award upheld by this Court in Hutto is identical in all significant respects to the award that is now before the Court.

Both awards were granted against the state officers in their official capacity to be paid from state funds.

Congress, in passing the Civil Rights Attorney Fee Award Act intended to make reimbursement available from state funds where parties were forced to bring suit and forced to incur litigation expenses in order to vindicate their rights from — against infringement by the states.

And, Congress intended that where governmental immunities did not —

Byron R. White:

But not damages.

Ellen Broadman:

Not damages, no, attorney’s fees.

The Civil Rights Attorney Fee Award Act does not authorize damages.

William H. Rehnquist:

Well, then, Judge Stump, I take it, in Stump against Sparkman, would have been liable for attorney’s fees?

Byron R. White:

But not damages?

Ellen Broadman:

If the parties had won on the– had obtained declaratory and injunctive relief, yes.

Then, they would be entitled, under the Civil Rights Attorney Fee Award Act, to damages —

Byron R. White:

Yes, but they r —

Ellen Broadman:

To —

Byron R. White:

But they got sopped by immunity.

Ellen Broadman:

Well, there, the court —

Byron R. White:

And you — and I suppo — and I think you say that — and you say that action, on judicial capacity, a judge is immune for, at least from damages — for damages.

Ellen Broadman:

That’s right.

There’s an enormous body of case law —

Byron R. White:

Yes.

Ellen Broadman:

— that holds that judges are immune from damage liability.

Byron R. White:

Yes.

Ellen Broadman:

However, damages are very different than attorney’s fee.

In Hutto v. Finney, the court recognized that distinction and, moreover, Congress, in passing the Civil Rights Attorney Fee Award Act, merely intended to abrogate any immunities that might preclude a fee award.

William H. Rehnquist:

What do you rely on if a — other than the citation to the string of cases in the committee report that the Congress, in enacting the Civil Rights Attorney’s Fee Act, intended to at — abolish damages?

Ellen Broadman:

Okay, this language in the Senate report that was cited in Hutto v. Finney in which the Senate recognizes that, in this case, the state officers usually wi — or often will be the defendants and that, in order to assure that parties can protect their constitutional rights from infringement, Congress intends to provide for reimbursement from state funds.

William H. Rehnquist:

Certainly, there’s nothing in the Act itself that suggests that persons who have had immunity in the past should be liable for attorney’s fees, is there?

Ellen Broadman:

Yes.

Well, the statute authorizes —

William H. Rehnquist:

Until — people who have had, say, a judicial immunity.

Ellen Broadman:

Judicial immunity from prospective relief?

William H. Rehnquist:

Well, I don’t know that Pierson against Ray, for example, broke it down that way.

They just said the judges have been traditionally immune.

Ellen Broadman:

Okay, Pierson v. Ray was a damages case, as was Stump versus Sparkman.

The Civil Rights Attorney Fee Award Act authorizes attorney’s fees as part of costs.

So, the statute and cost traditionally have been awarded from state funds, so that the statutory language does provide for attorney’s fees from state funds.

And then, if you look at the legislative history, the legislative history generally says that Congress intends to make fee awards available against state officers in their official capacity from state funds, and the House report has a specific reference to Pierson v. Ray, a judicial immunity case, and specifically says this is one of several immunities that we do not intend to preclude fee awards in these cases.

Byron R. White:

But that’s in a House report, not in the statute, right?

Ellen Broadman:

That’s correct.

That’s in the House report.

It’s in the legislative history.

Potter Stewart:

The underlying lawsuit here was under Section 1983.

Ellen Broadman:

That’s correct.

Potter Stewart:

And its — in which the Plaintiffs prevailed?

Ellen Broadman:

Yes.

Potter Stewart:

And is the validity of that lawsuit now being attacked or the validity of that judgment or the validity of bringing a 1983 action against —

Ellen Broadman:

Well —

Potter Stewart:

— the court and its chief justice?

Ellen Broadman:

Okay, the Virginia Supreme Court now concedes that its rule was unconstitutional–

Potter Stewart:

Well, that’s not either —

Ellen Broadman:

And it’s the tenth —

Potter Stewart:

That’s neither here nor there.

You could — the Plaintiff could hardly sue a state legislature for passing concededly unconstitutional law, could it?

Ellen Broadman:

Okay, the Virginia Supreme Court–

Potter Stewart:

Under 1983?

Ellen Broadman:

The Sup– well, the Virgi–

Potter Stewart:

Could it?

Ellen Broadman:

Could it?

Potter Stewart:

Could a plaintiff sue a state legislature under Section 1983 for enacting a law that was allegedly and concededly unconstitutional?

Ellen Broadman:

No, they could not under Tenney versus Brandhove.

Potter Stewart:

Well–

Ellen Broadman:

Well, here —

Thurgood Marshall:

Couldn’t he —

Ellen Broadman:

The —

Thurgood Marshall:

— couldn’t he sue each one of them officially as you did here?

Ellen Broadman:

Each one of the legislators?

Thurgood Marshall:

Yes.

Ellen Broadman:

Well, no.

Tenney versus Brandhove seem to suggest that–

Thurgood Marshall:

Well, you sued each one of these judges, you say —

Ellen Broadman:

Yes.

Thurgood Marshall:

— in their official capacity.

Ellen Broadman:

That’s correct.

Thurgood Marshall:

And that’s okay.

Well, why couldn’t you sue each of the members of the legislature “in his official capacity”?

Ellen Broadman:

Well, legislative immunity protects legislators from suits that attempt to interfere with their speeches and debates, so that, if we try —

Potter Stewart:

Also, a le — a state legislature might not be a person within the meaning of 1983.

Ellen Broadman:

Well, that’s — yes, that’s a separate issue.

Potter Stewart:

That’s a separate issue.

Ellen Broadman:

Right.

Thurgood Marshall:

Was — I don’t see how you can make the court a person and can’t make the legislature a person.

Ellen Broadman:

Well, no.

I think you could sue the le — I think the legislature, individually, would be a person but legislative immunity would preclude the suit.

Potter Stewart:

Well, my —

Ellen Broadman:

Here —

Potter Stewart:

Going back to my original question, before we got a little feel —

Ellen Broadman:

Yes.

Potter Stewart:

— on my behest.

Is the validity of the 1983 judgment itself here under attack?

Ellen Broadman:

Yes.

The Virginia Supreme Court is attempting to defeat that judgment in order to defeat the fee award here.

It’s claiming that judicial immunity precludes the consumer groups from getting prospective relief —

Potter Stewart:

Any —

Ellen Broadman:

From —

Potter Stewart:

Any pre — quite apart from attorney’s fees which are —

Ellen Broadman:

That’s right.

Potter Stewart:

— auxiliary to this —

Ellen Broadman:

They are attempting to defeat that, but solely to defeat the fee award.

Never during the five year — four years of litigation that proceeded that granting of the fee award did the Virginia Supreme Court ever claimed that legislative or judicial immunity precluded them from the underlying action, protect it, immunizes that —

Potter Stewart:

Although, arguably, it could have defended on — the defendants could have defended on basis of judicial immunity, they could have defended on the basis on the fact that the defendants named were not a “person” within the meaning of 1983 —

Ellen Broadman:

They never —

Potter Stewart:

— or by the other defenses?

Ellen Broadman:

That’s right.

Potter Stewart:

They did not —

Ellen Broadman:

They never raised those.

Potter Stewart:

Defend this —

Ellen Broadman:

And, in fact, judicial immunity does not preclude declaratory and injunctive relief, prospective relief from constitutional wrongs.

The purposes for the Judicial Immunity Doctrine do not apply here.

Suits for prospective relief from unconstitutional acts are analogous to appeals, in that they merely ask a court with review authority to determine whether or not another court has properly applied the law.

William H. Rehnquist:

Are you suggesting that the three-judge district court has review authority over the Supreme Court of Virginia?

Ellen Broadman:

Under 1983, the three-judge district court does have authority to issue prospective relief from unconstitutional acts of the Supreme Court of Virginia.

Byron R. White:

Do you mean the administrative acts?

Ellen Broadman:

Well, that’s — well, either judicial or administrative.

It’s our contention that, here, the acts are not judicial in nature, in that, they —

Byron R. White:

Well, now, let’s just assume the Virginia Supreme Court decides the case that your clients were involved in and you happen to think it’s — it had been decided wrong under the federal constitution and, the su — that Supreme Court ordered some relief against you.

Ellen Broadman:

Yes.

Byron R. White:

Can you go into a three-judge court and —

Ellen Broadman:

No.

Byron R. White:

Get an injunction?

Ellen Broadman:

No.

That’s a very —

Byron R. White:

Well, you just said to Justice Rehnquist you could.

Ellen Broadman:

Okay, in that situation, the reason you could not do that is not because of judicial immunity, but because of the Doctrines of Comity and Res Judicata.

Byron R. White:

Well, that may be.

So, your answer to the question is, no, the three-judge court does not have reviewing authority over this —

Ellen Broadman:

Where —

Byron R. White:

Virginia Supreme Court.

Ellen Broadman:

— Where there is a right to appeal from an unconstitutional act, no.

Warren E. Burger:

You mean —

Byron R. White:

What do you mean where there’s a right to appeal?

Ellen Broadman:

Okay, the situation that we posit, where the highest court of the state rules against my client, there’s a right to appeal to this Court in order to correct.

Byron R. White:

Well, let’s assume that — let’s assume there’s a decision in the Virginia Trial Court against your client.

Ellen Broadman:

Yes?

Byron R. White:

And, there’s a right to appeal under the Virginia Supreme Court, you don’t appeal and you come to the three-judge court.

You want to —

Ellen Broadman:

There, also, the three-judge district court should not hear that case because of Doctrines of Comity.

The —

Byron R. White:

Of res judicata?

Ellen Broadman:

And– well, if it went up to the highest court, then it would be res judicata.

Byron R. White:

Well, it just stops there.

It didn’t go up to the highest court, but it’s been finally decided in the Virginia Supreme — Virginia court system.

Ellen Broadman:

Okay, their Doctrines of Comity would prevent a party from —

Byron R. White:

What doc —

Ellen Broadman:

Circumvented —

Byron R. White:

What doctrine are you talking about?

Ellen Broadman:

There are basic rights to appeal.

Where a judge enters a decision where there’s a right to appeal, that party must take that appeal if the appeal is adequate because, other — told otherwise, will completely disrupt our systems of appeal.

However, the Court need not reach that issue here because there was no right to appeal.

The act here was not a judicial act.

It shares none of the characteristics of judicial immunity.

Byron R. White:

That’s really your answer, isn’t it?

That’s your basic submission that this is an administrative act, not a judicial act.

Ellen Broadman:

That’s correct.

Byron R. White:

So, there’s no question of judicial immunity.

Ellen Broadman:

That’s correct.

Okay, that is one reason that we’re saying judicial immunity does not apply.

The second reason is that judicial immunity does not preclude suits for declaratory and injunctive relief, so that the parties are entitled to prevail on the underlying action and, therefore, entitled to attorney’s fees.

Byron R. White:

Well, you just said quite the contrary, just the contrary, just three minutes ago.

Ellen Broadman:

Well, let me try and clarify.

What I’m say —

Byron R. White:

Let’s say that the Virginia Supreme Court performed a judicial act.

Ellen Broadman:

Correct.

Byron R. White:

Finally.

Ellen Broadman:

Yes.

Byron R. White:

Now, are you going to go into a three-judge court and get a declaratory judgment against them?

Ellen Broadman:

Okay, it would depend.

Byron R. White:

Wha — on what?

Ellen Broadman:

Whether there was a right to appeal.

Byron R. White:

To where?

Ellen Broadman:

Okay.

Well, where there are appellant processes that a party sh — party can follow, Doctrines of Comity would prevent that party from circumventing those by going and suing a court in a three-judge district court rather than following the appeals.

So, basically, what I’m saying is that judicial immunity there would not prevent the party from bringing action —

Byron R. White:

I hope that’s not your strongest argument.

Ellen Broadman:

Let me go on to the administrative act or the non-judicial act argument.

Ellen Broadman:

Here, we don’t believe that there is a judicial act at issue because none of the characteristics typical of judicial acts exists.

The Virginia Supreme Court, in issuing its rules, is not resolving cases and controversies between the parties by applying relevant laws.

The court is not bound by case precedent in issuing its disciplinary rules and there’s no right to appeal.

None of the characteristics typical of judicial acts apply here.

William H. Rehnquist:

Would you call it a legislative act then?

Ellen Broadman:

No, we would not call it legislative.

William H. Rehnquist:

Because of —

Ellen Broadman:

The legislature —

William H. Rehnquist:

Because of Tenney against Brandhove?

Ellen Broadman:

Because, here, the Virginia Supreme Court has authority to enforce the rules.

It has enf — authority to enforce the rules independently of the state bar association.

It has inherent authority to enforce the rules and it also has express statutory authority under the Virginia Code Section 5474.

That section authorizes the Virginia Court to bring a disciplinary action whenever it observes an attorney engaging in unethical conduct.

We brought this action against the Virginia Court in its enforcement capacity.

William H. Rehnquist:

Well, su —

Ellen Broadman:

Legislative immunity —

William H. Rehnquist:

Supposing you have a case like the Chief Justice wrote in 1970 or 1971 involving the Rapley proceedings in the Wisconsin legislature where there the Wisconsin legislature had rules bringing somebody before the bar of the legislature and asking them questions or ordering them confined until the end of the session.

Would you say that was a legislative act?

Ellen Broadman:

I’m not familiar with the case.

They are basically just asking the state bar association for opinions?

William H. Rehnquist:

Well, no.

The —

Ellen Broadman:

Or —

William H. Rehnquist:

They were telling him that he was going to have to either desist from certain conduct or — I don’t remember the particular facts, but it was an action of the legislature enforcing its own rules.

Ellen Broadman:

Well, as far as where the legislature starts enforcing the rules, the purposes for legislative immunity no longer apply.

Legislative immunity is intended to protect legislators’ speeches and debates from interference by the Executive or Judicial Branch.

The le —

Warren E. Burger:

Are you saying that a legislative body doesn’t have the right to — and the power to protect the integrity of its own proceedings?

This is what Father Rapley was cited for, contempt for interfering with the proceedings of the legislature.

Are you — do you say that’s something —

Ellen Broadman:

Well —

Warren E. Burger:

That’s not a legislative act —

Ellen Broadman:

Well, enforcing —

Warren E. Burger:

When they found someone in contempt?

Ellen Broadman:

Well, enforcing their own proceedings is somewhat different than enforcing their own — the laws that they issue.

At the point where the legislature starts enforcing laws that it issues, it’s no longer acting in — within a legislative capacity.

Warren E. Burger:

Congress of United States, until recent times, enforced its contempt determinations by decreeing confinement of the person in contempt.

Because it was such a burdensome thing, they finally passed a statute giving that authority to the United States courts.

But, if they enforce that, if they enforce contempt orders, do you say that’s not a legislative act?

Ellen Broadman:

That is a legislative act because it’s inherently involved in permitting them to freely speak if they gather information in order to pass laws.

And, that whole process through which laws are passed is protected by legislative immunity.

But, once a law is passed, the minute the legislature assumes responsibility for enforcement, typically it’s not the legislature that enforces.

Legislative immunity no longer applies.

You’re no longer within the legislative realm.

It would be wholly contrary to the doctrine set forth in Ex Parte versus Young, 100 years ago, to apply legislative immunity here.

During the past 100 years, many times, this Court has held that enforcement entities are subject to actions for prospective relief from unconsti —

Byron R. White:

But did you ju – I — didn’t you just attack these rules on their face, or not?

Ellen Broadman:

That’s correct.

Byron R. White:

You said this rule that you’ve passed is unconstitutional.

Ellen Broadman:

That’s correct.

Byron R. White:

And the court had either inherent or delegated power from the legislature or from the vir — state constitution to pass these rules.

Ellen Broadman:

That’s correct, for the state constitution.

Byron R. White:

So, it had a brand of legislative power?

Ellen Broadman:

Well, its inherent authorities certainly are not legislative, and that —

Byron R. White:

Well, it may not be, but you do say that these weren’t judicial acts.

Ellen Broadman:

That’s —

Byron R. White:

These were something.

What do you say they were?

Ellen Broadman:

We characterize them as administrative to the extent that they are delegated —

Byron R. White:

Administrative, they made some rules.

Ellen Broadman:

That’s correct.

Byron R. White:

And that’s part of the administration — administrative?

Ellen Broadman:

That’s right.

The issuance of rules is administrative.

The enforcement of those rules is prosecutorial in nature.

Byron R. White:

What would be — suppose the Congress passes a law and you sued all 100 senators, for example, for having passed an unconstitutional Act which you claim is unconstitutional.

Would they have immunity from defending that suit?

Ellen Broadman:

Yes, they would, but that’s very different than the case before the Court now.

William H. Rehnquist:

Does your characterization, if this is administrative ver — and not judicial and not legislative, is that motivated in any way by our cases of Pierson against Ray and Tenney against Brandhove and Butz versus Economou?

Ellen Broadman:

Well, we argue that it’s administrative in nature because we believe it is administrative and it’s not necessarily motivated by all those cases.

We hear the Act just doesn’t — what the Virginia Supreme Court is doing does not look at all like a typical judicial act or typical legislative act.

It’s involved in enforcing disciplinary rules.

It’s involved in issuing rules regulating the legal profession.

If the Virginia Supreme Court regulated doctor participation in consumer directories, would it be judicially immune?

Would it be legislatively immune?

No.

William H. Rehnquist:

Well, what if the Virginia legislature had passed exactly this same set of standards governing lawyer conduct in the state.

Could you sue the members of the Virginia legislature?

Ellen Broadman:

No, that — we would sue whoever is responsible for enforcing that law, which is precisely what we did here.

We brought the action against one — the two entities with authority to enforce the unconstitutional disciplinary rules.

Byron R. White:

I suppose one easy way of — one certainly surefire way of raising the validity of the rule is if the Virginia court moved against somebody to enforce the rule.

Ellen Broadman:

We could not do that here.

None of the attorneys in Virginia were willing to participate —

Byron R. White:

Well, I know, but I —

Ellen Broadman:

In our directory.

Byron R. White:

I know, but let’s —

Ellen Broadman:

Yes.

Byron R. White:

Let’s assume —

Ellen Broadman:

Okay.

Byron R. White:

Let’s assume that the Supreme Court was enforcing the rule against some lawyer.

Byron R. White:

He could certainly raise then the constitutionality of the rule.

Ellen Broadman:

Sure.

Byron R. White:

He could resist on the grounds that it was unconstitutional.

Ellen Broadman:

That’s true.

Byron R. White:

And, I suppose, he — I suppose, if he want, he could get attorney’s fee.

Ellen Broadman:

If he prevailed, that’s correct.

But, I note, here, the consumer groups, because attorneys were unwilling to participate in the directory, their only means to challenge the rule was by instituting this suit.

In the record below, there’s documentary evidence that there were attorneys who wanted to participate in the directory but would not because that rule was in effect.

So, the consumer groups —

Harry A. Blackmun:

That’s what happened in Bates.

Ellen Broadman:

That’s —

Harry A. Blackmun:

In other words, Arizona attorneys are more enterprising than Virginia ones?

Ellen Broadman:

Well, in Virginia, the attorneys were not willing to participate in our directory.

In Bates, there were attorneys who were willing to advertise in order to challenge a rule, but that’s not the situation here.

If you —

John Paul Stevens:

Ms. Broadman, I understood you to say in answer to Justice White’s question, if you had the procedural question you had in Bates that the lawyers could get fees from the court, I don’t understand that to be the case.

Ellen Broadman:

Well, I guess, no.

That’s true because, there — well, in Bates, the —

John Paul Stevens:

It’s sort of ironic that where you have a clear case of standing, the lawyers get no fees when they have a less clear case as they do here, I’m not saying it’s adequate, they do get fees.

Ellen Broadman:

Well, in the Bates proceeding, you’re correct.

They would not have obtained fees against the Virginia court but against the bar association in that situation.

There, the —

John Paul Stevens:

Well, even against the bar association.

They resisted a disciplinary proceeding.

This was not a 1983 action or a federal action.

It was a state disciplinary proceeding.

Ellen Broadman:

You’re correct.

John Paul Stevens:

And they —

Ellen Broadman:

You’re correct.

John Paul Stevens:

They did not, I don’t know what basis they could get fees in that–

Ellen Broadman:

You’re correct.

That’s right.

I stand corrected.

They could not have gotten fees in that case.

John Paul Stevens:

Of course, Hutto on which you rely very heavily is a case in which, I suppose, it would have been appropriate to award damages against the — if the — against the prison officials, but I think you concede no damages could be awarded here.

Ellen Broadman:

We’re not seeking damages.

All we’re seeking is prospective, declaratory, and injunctive relief so that we can publish this consumer directory.

The —

John Paul Stevens:

To the extent that Hutto analogized the free recovery to punitive and all the rest of it, it analogizes that the damages, it seems to me, cuts against you to a certain extent.

Ellen Broadman:

Well, —

John Paul Stevens:

Because, here, I think you must concede that you could not get damages because of judicial immunity.

Ellen Broadman:

Well —

Potter Stewart:

You do concede that, don’t you?

Ellen Broadman:

We’re not seeking —

Potter Stewart:

Wel l–

Ellen Broadman:

Damages.

Potter Stewart:

Do you concede that you couldn’t?

Ellen Broadman:

Could not.

Yes, I’ll concede that we could not get damages here.

But, in Hutto v. Finney, there are two bases for awarding fees.

There are two fee awards.

The first was on the basis of bad faith and —

John Paul Stevens:

That basis of the opinion cuts against you, the basis of fees, as part of cost, cuts for you.

Ellen Broadman:

Well, the bad — my reading of the bad face sc– well, the Court need not reach that question because you’re deciding the case here on the basis of statutory interpretation of the Civil Rights Attorney Fee Award Act.

If that Act did not exist then we would argue that fee awards are ancillary to declaratory, injunctive, prospective relief and, therefore, wholly distinct from damages.

Damages are retroactive reimbursements.

Fee awards are merely awards which enable people to bring actions to obtain perspective relief to stop unconstitutional governmental acts.

John Paul Stevens:

But I — as I understand your brief, you do rely primarily on the federal statute, the Attorney’s Fee Award Act.

Ellen Broadman:

Entire–

John Paul Stevens:

In which —

Ellen Broadman:

Absolutely.

John Paul Stevens:

In which reliance, you don’t have to recover damages in the question of bad faith, and all the rest of it is totally irrelevant.

Ellen Broadman:

Exactly.

That’s correct.

Byron R. White:

Well —

Ellen Broadman:

There’s no —

Byron R. White:

If the Supreme Court of Virginia moved against a particular lawyer for violating one of its rules and the lawyer defended on the ground that the rule is unconstitutional.

He lost, the final judgment against him in the Virginia Supreme Court.

Then, your organization brings a suit against the individual justices of the Virginia Supreme Court for an injunction.

You sue in the federal court asking that those judges be enjoined from deciding cases that way because they’re wrong.

Could — would those judges — would they be immune from that kind of a suit?

Ellen Broadman:

I think, in that situation, what we’d be saying is not that they can’t decide the case that way.

Byron R. White:

Well, you —

Ellen Broadman:

But —

Byron R. White:

You’d say we want – we —

Ellen Broadman:

Would they be immune.

Byron R. White:

Your rules are unconstitutional and, therefore, you must not decide —

Ellen Broadman:

I think —

Byron R. White:

This is a —

Ellen Broadman:

I think that that’s a distinct situation because, there, the court is acting in a capacity of deciding cases in controversies.

Byron R. White:

It is.

It’s —

Ellen Broadman:

It’s not issuing regulations.

It’s not–

Byron R. White:

Well, it submits it’s — it issued a final judgment that the fellow violated the rule.

Now, can you su — are they immune then in your suit in federal court?

Ellen Broadman:

I think we might have standing.

You’re assuming now that that judgment somehow inferes on — interferes with our First Amendment rights?

Is that —

Byron R. White:

Well, you make the same claim as you do here.

Byron R. White:

Judge — you just upheld this —

Ellen Broadman:

Unconstitutional rule.

Byron R. White:

Rule of yours and you’re wrong.

We’re going to enjoin — we’re going to enjoin you from deciding cases like that anymore.

Ellen Broadman:

Well, I think in that– now, in that situation, the court is interpreting the rule.

It’s just enforcing the rule.

The rule on its face violates constitutional rights.

In that situation, consumer groups could sue the court only because it enforces an unconstitutional disciplinary rule, apart from deciding the cases in controversies, because that court could independently go out and initiate proceedings against attorneys in violation of constitutional rights.

So, I think, there, the consumer groups could bring an action if the court was applying an unconstitutional rule in a way that violated their constitutional rights.

Warren E. Burger:

Now, let me ask you a question that relates somewhat to that.

It’s clear that you brought the action against the Chief Justice I’Anson, including him because the court had adopted and promulgated this rule.

Is that correct?

Ellen Broadman:

That’s correct.

Warren E. Burger:

Now, suppose Chief Justice I’Anson had dissented from the rulemaking and the other justices were the only ones that were responsible for putting it into effect, could you have a joined Chief Justice I’Anson in this action?

Ellen Broadman:

That’s an interesting question.

I’m not sure that I know the answer to that.

I would — I suspect that we —

Warren E. Burger:

And he had a perfect defense that he had no part of this —

Ellen Broadman:

That’s right.

Warren E. Burger:

“Wrongful act.”

Ellen Broadman:

That’s right.

So, I suspect we could not have joined him, but I’m not —

Warren E. Burger:

Then, how would you get here?

Where would be the person?

Ellen Broadman:

Well, we would bring an action against the individual — the justices who had approved of and had voted for the rule.

Warren E. Burger:

You didn’t bring — you didn’t bring that kind of an action here, did you?

Ellen Broadman:

Yes, we —

Warren E. Burger:

Because the named party is the Supreme Court, not the —

Ellen Broadman:

Well, the chief justice is also a named party.

Warren E. Burger:

Yes, I know, but the name — the other justices are not named, are they?

Ellen Broadman:

No, they’re not.

Let me just point out that, in many situations, people will bring actions against a board, an administrative board, and they’ll bring it against the named head of the board and the whole board even though everyone on that board may not have voted in favor of a particular regulation.

So that, I don’t think this situation is all that different.

I think it was sufficient to name the chief justice and the court.

If I —

Thurgood Marshall:

Ms. Broadman.

Ellen Broadman:

Yes?

Thurgood Marshall:

Back up a minute.

You asked lawyers to take legal action on this on their own and they refused to.

Ellen Broadman:

We asked attorneys whether they’d be willing —

Thurgood Marshall:

Right.

Ellen Broadman:

Yes.

Thurgood Marshall:

Now, suppose they did advertise in your directory and they were ordered to be disbarred, and they sued the Supreme Court that disbarred them; one, could they sue the Supreme Court in the federal court?

Ellen Broadman:

Could consumers’ union sue?

Is that what you’re saying?

Thurgood Marshall:

Could the lawyer.

Ellen Broadman:

The Lawyers.

Well, there —

Thurgood Marshall:

The man that’s involved is the lawyer.

Ellen Broadman:

There, the procedure is for the lawyers.

The lawyers can appeal —

Thurgood Marshall:

But, my case is he had been disbarred.

The question is can you sue in the United States District Court in Virginia —

Ellen Broadman:

No.

Thurgood Marshall:

The lawyer, he can’t sue?

Ellen Broadman:

No because that lawyer —

Thurgood Marshall:

And, number two, therefore, he can’t get counsel fees.

Ellen Broadman:

That’s correct.

Thurgood Marshall:

Well, how does it so happen that you can?

Ellen Broadman:

Because the lawyer has procedures that the lawyer is supposed to follow to review that disciplinary proceeding.

Ellen Broadman:

It — the lawyer appeals from the disciplinary decision of the Virginia Bar into the Virginia Supreme Court and then it has a right to appeal up to the United States Supreme Court.

Potter Stewart:

Yes, but —

Ellen Broadman:

We don’t.

Potter Stewart:

Justice Marshall’s question is those procedures were all over and he’s been disbarred.

Ellen Broadman:

He’s already been disbarred and he appeals to the United States Supreme Court — and he appeals to the United States Supreme Court and the cert is denied?

Potter Stewart:

No.

Thurgood Marshall:

Yes.

Ellen Broadman:

Okay.

Thurgood Marshall:

And then, he goes into the United States District Court of Virginia.

Ellen Broadman:

Res adjudicata, he can’t do it.

Thurgood Marshall:

Is there any other reason he can’t do it?

Ellen Broadman:

Well, I would argue comity, both res adjudicate —

Thurgood Marshall:

Comity?

Ellen Broadman:

Well, because if the federal district court takes — well, really, res adjudicata is the main reason.

Thurgood Marshall:

Well, could he have filed the —

Ellen Broadman:

Yes.

Thurgood Marshall:

Could he have filed an action in the district court originally before he was disbarred?

Ellen Broadman:

No, and the reason for that is because of comity.

Once he’s filed through the appellate procedures, res adjudicata prevents him from turning around and suing the district court.

Where he hasn’t filed the —

Thurgood Marshall:

My new question is he wasn’t disbarred.

He heard he was about to be disbarred.

So, he went into the district court and asked for everything – damages, injunction, declaratory judgment, and that all things they used to have, enact the procedure, anything else the court, out of its good heart, would give him.

Ellen Broadman:

Okay, that raises a difficult question because, there, he could argue that the appellate procedures are inadequate, but somehow it could show that they were.

Thurgood Marshall:

My point was would he — win or lose, would he get counsel fees?

Ellen Broadman:

Well, if he brings an action and wins.

Thurgood Marshall:

I said win or lose.

Ellen Broadman:

Okay, if he loses, he’s not going to get counsel fees because counsel —

Thurgood Marshall:

But if he wins, he gets counsel fees.

Ellen Broadman:

That’s right.

Ellen Broadman:

If he wins, he can.

But, I’m — I don’t think, where there are proper appellate procedures and those procedures are adequate, that a party can turn around and sue a judge.

The only time that they can bring these kinds of actions is where there is no appeals, no other recourse.

Thurgood Marshall:

My point is that — aren’t you asking us the only door where anybody can do what a lawyer can’t do?

Ellen Broadman:

Well, no.

I think that you can assure that people follow proper appellate procedures if you clarify that, where they exist, they must be followed.

The Doctrines of Comity prevent people from bringing these actions to circumvent existing appellate procedures.

Thurgood Marshall:

But comity doesn’t apply to you.

Ellen Broadman:

To us, because there — that’s correct, because there was no other recourse that we had.

William H. Rehnquist:

I’m going to get just straight out.

If we agree with you this is an administrative action by the court and there’s no immunity, therefore — then you can get attorneys’ fees, you could also get damages.

Ellen Broadman:

Well, the standards applied to administrative officials are good faith immunity, so that where the court was acting in good faith, no damages could be obtained.

Now, for the — in general, damages will not be available.

William H. Rehnquist:

But just no judicial immunity.

Ellen Broadman:

That’s correct.

William H. Rehnquist:

Just administrative — the standards for administrative would apply.

Ellen Broadman:

If the Court finds this to be an administrative act.

The Court may want to characterize this as an administrative judicial act and preserve the immunities that exist for damages but not for declaratory and injunctive relief.

But, if the Court characterizes this as a wholly administrative act, then the same standards would apply as applied to other administrative officials.

Where courts are issuing disciplinary rules is going to — there really be any cases where people could obtain damages people aren’t going to be able to show that a panel of eight judges is acting in bad faith, but that —

Warren E. Burger:

But it’s really a qualified immunity that you would then grant.

Ellen Broadman:

That’s correct from damages.

If there are no further questions, thank you.

Warren E. Burger:

Do you have anything further, Mr. Attorney General?

Marshall Coleman:

Just a couple of comments, Mr. Chief Justice.

It’s our position that the remedy in a case like this would be an appeal, that that’s been the rule of this Court that, in the Virginia Supreme Court, the parties could have appealed petition to the Supreme Court to have a ruling on the question of the rule and if they had lost, they could have then appealed it to this Court, but it is not appropriate for them to go at this collaterally which, in effect, is review of what our highest district court has done.

There is nothing that the Supreme Court did in its capacity as a Supreme Court to deprive of them of any right.

In fact, they are not even the prosecutor in these cases.

They simply hear cases that are brought to them by the state bar.

So that, in this case, the Doctrine of Judicial Immunity is certainly at hazard whether you call this immunity legislative or judicial, and it has been well, I think, briefed that judicial immunity is the proper denomination here because it is an inherent right in the court to regulate the practice of law.

Marshall Coleman:

There’s also an argument that this is rulemaking that is legislative in nature, but whatever the immunity is identified as, it is one that should be absolute and that should be broached here.

The remedy should simply be a petition by a lawyer or by some other group to the court and, as I said in my opening remarks, there is no evidence.

There is no act at all done on the part of the court to the prejudice of the consumer u — consumers’ union and, despite the finding in Bates and the changing of the rule, this directory has not yet been published, but that is not because of anything that the Supreme Court of Virginia did.

It should be able to continue to operate on the basis that it is immune from its judicial acts and the judgment below should be reversed.

Thank you.

Warren E. Burger:

Thank you, counsel.

The case is submitted.