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SUPREME COURT VIRGINIA ET AL. v. CONSUMERS UNION UNITED STATES

June 20, 1983

SUPREME COURT OF VIRGINIA ET AL
v.
CONSUMERS UNION OF UNITED STATES, INC., ET AL.



C.A. 4th Cir. Reported below: 688 F.2d 218.

[ 462 U.S. Page 1137]

Certiorari denied. JUSTICE POWELL took no part in the consideration or decision of this petition.

CHIEF JUSTICE BURGER, with whom JUSTICE REHNQUIST Joins, dissenting.

This petition marks the third occasion this case has been before us. The case arose in 1975 when respondents brought

[ 462 U.S. Page 1138]

     a suit under 42 U.S.C. § 1983 alleging that particular provisions of the State Bar Code promulgated by the Virginia Supreme Code violated respondents' rights under the First and Fourteenth Amendments. Having prevailed in their § 1983 suit for declaratory and injunctive relief against the Virginia Supreme Court and its chief justice (together, the "Virginia Court"), the issue now is whether respondent Consumers Union is entitled to attorney's fees from that court*fn1 under the Civil Rights Attorney's Fees Awards Act of 1976, 90 Stat. 2641, 42 U.S.C. § 1988. This was also the issue we addressed the last time this case came before us, when we vacated an award of attorney's fees against the Virginia Court on the ground that it "was premised on acts or omissions for which [the Virginia Court] enjoyed absolute legislative immunity." Supreme Court of Virginia v. Consumers Union of United States, Inc., 446 U.S. 719, 738 (1980) (Consumers Union).

 On remand, a divided three-judge District Court reinstated the award of attorney's fees against the Virginia Court, Consumers Union v. American Bar Assn., 505 F. Supp. 822 (ED Va. 1981), and a divided panel of the Court of Appeals affirmed. Consumers Union v. Virginia State Bar, 688 F.2d 218 (CA4 1982). Because I believe that the District Court misinterpreted our opinion in Consumers Union and erred in reinstating the fee award, I would grant certiorari.

I

It is unnecessary to review here at length the prior history of this case, which is set out in detail in Consumers Union. There, two basic issues faced the Court:

"[W]hether the Supreme Court of Virginia (Virginia Court) and its chief justice are officially immune from

[ 462 U.S. Page 1139]

     suit in an action brought under 42 U.S.C. § 1983 challenging the Virginia Court's disciplinary rules governing the conduct of attorneys and whether attorney's fees were properly awarded under the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988, against the Virginia Court and its chief justice in his official capacity." 446 U.S., at 721.

With respect to the first issue, we held that the Virginia Court was not subject to suit under § 1983 for its legislative acts -- such as promulgating disciplinary rules -- any more than state legislators could be sued for their legislative acts: "[T]he Virginia Court and its members are immune from suit when acting in their legislative capacity." Id., at 734. However, the Court went on to hold that the Virginia Court was a proper defendant in a coercive action brought under § 1983 because it possessed enforcement powers. "As already indicated, § 54-74 [of the Code of Virginia (1978)] gives the Virginia Court independent authority of its own to initiate proceedings against attorneys. For this reason the Virginia Court and its members were proper defendants in a suit for declaratory and injunctive relief, just as other enforcement officers and agencies were." Id., at 736.

Turning to the second issue, we vacated the award of attorney's fees against the Virginia Court. The District Court had awarded fees against the Virginia Court because "it was the very authority that had propounded and failed to amend the challenged provisions of the Bar Code." Id., at 738. This was error because the Virginia ...


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