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Mar 20 17

Georgia Ante-Litem Notices Are Not Needed for § 1983 Actions

by merlin

In an action involving 42 USC § 1983, it is unnecessary to provide the antelitem notice that is called for by the Georgia Code (§ 36-33-5), according to relevant law on the topic.  The Code section that requires that notice be given to bring an action that overcomes the sovereign immunity enjoyed by a governmental unit reads as follows:

“(a) No person, firm, or corporation having a claim for money damages against any municipal corporation on account of injuries to person or property shall bring any action against the municipal corporation for such injuries, without first giving notice as provided in this Code section.

(b) Within six months of the happening of the event upon which a claim against a municipal corporation is predicated, the person, firm, or corporation having the claim shall present the claim in writing to the governing authority of the municipal corporation for adjustment, stating the time, place, and extent of the injury, as nearly as practicable, and the negligence which caused the injury. No action shall be entertained by the courts against the municipal corporation until the cause of action therein has first been presented to the governing authority for adjustment.

(c) Upon the presentation of such claim, the governing authority shall consider and act upon the claim within 30 days from the presentation; and the action of the governing authority, unless it results in the settlement thereof, shall in no sense be a bar to an action therefor in the courts.

(d) The running of the statute of limitations shall be suspended during the time that the demand for payment is pending before such authorities without action on their part.

(e) The description of the extent of the injury required in subsection (b) of this Code section shall include the specific amount of monetary damages being sought from the municipal corporation. The amount of monetary damages set forth in such claim shall constitute an offer of compromise. In the event such claim is not settled by the municipal corporation and the claimant litigates such claim, the amount of monetary damage set forth in such claim shall not be binding on the claimant.

(f) A claim submitted under this Code section shall be served upon the mayor or the chairperson of the city council or city commission, as the case may be, by delivering the claim to such official personally or by certified mail or statutory overnight delivery.”

However, if an action is brought pursuant to 42 USC § 1983, it does not require this notice be provided, since that section does not recognize or address that notice.  The case that talks about this is Armour v. Davidson, 203 Ga.App. 12, 416 S.E.2d 92 (1992), which involved a lawsuit brought for redress from a warrantless arrest, in which the plaintiffs wanted to prove a policy or custom by the municipality or warrantless arrests.  One of the arguments used by the City against the breaching of sovereign immunity was the failure of the plaintiffs to give the notice required by statute (described above), but the Court noted that “Plaintiff correctly contends the trial court erred in holding that plaintiff’s action against the City is barred by plaintiff’s failure to give ante item notice pursuant to OCGA § 36-33-5. The notice provisions of that statute do not apply to actions filed pursuant to 42 USC § 1983.”

The opinion is as follows:


John L. Watson, Jr., Jonesboro, for appellant.

        Mullins, Whalen & Shepherd, Andrew J. Whalen III, Oliver, Duckworth, Sparger & Winkle, David P. Winkle, Jonesboro, for appellees.

        POPE, Judge.

        On February 9, 1988, plaintiff/appellant Alonzo S. Armour and his wife went to the City of Fayetteville (the “City”) to register to vote. They originally went to a portion of City Hall where the voter registrar was not located. They were informed that they could not register there and would need to go to another building. Before plaintiff left that building, however, he had a heated argument with defendant/appellee John Davidson, the director of the water and sewer department for the City. The parties dispute the degree of physical contact associated with that altercation, but not that an altercation ensued.

        Plaintiff and his wife then went to the proper place to register to vote and were in the process of registering when plaintiff was approached by two City policemen. The policemen arrested plaintiff, without a warrant, on the charge of simple battery against defendant John Davidson. A warrant was presented at the jail for his arrest approximately two hours later. While plaintiff was being booked and fingerprinted, he suffered a heart attack and required hospitalization for his condition. A grand jury considered the simple battery charge against plaintiff and returned a no bill.

        Plaintiff brought this action against defendants Davidson and the City pursuant to 42 U.S.C. § 1983 contending that the acts of defendants denied plaintiff his statutory and constitutional rights. Defendants filed a motion for summary judgment, which the trial court granted. Plaintiff appeals the trial court’s grant of summary judgment in favor of the City.

        1. Plaintiff correctly contends the trial court erred in holding that plaintiff’s action against the City is barred by plaintiff’s failure to give ante litem notice pursuant to OCGA § 36-33-5. The notice provisions of that statute do not apply to actions filed pursuant to 42 U.S.C. § 1983. City of Atlanta v. J.A. Jones Constr. Co., 195 Ga.App. 72, 78(6), 392 S.E.2d 564, rev’d on other grounds, 260 Ga. 658, 398 S.E.2d 369 (1990), cert. denied, 500 U.S. 928, 111 S.Ct. 2042, 114 L.Ed.2d 126 (1991).

        2. We conclude, however, that the trial court correctly granted summary judgment to the City on the basis of sovereign immunity. In Pembaur v. Cincinnati, 475 U.S. 469, 480-83, 106 S.Ct. 1292, 1298-1300, 89 L.Ed.2d 452 (1986), the Supreme Court set forth a three-part test for determining when the acts of a municipal officer subjects a municipality to liability under section 1983: (1) the municipality officially sanctioned or ordered the act; (2) the actor was a municipal officer with final policy authority; or (3) the action was taken pursuant to a policy adopted by officials responsible under state law for making policy in that area. If none of these theories are satisfied, the municipality may not be held liable pursuant to Section 1983.

        While plaintiff’s allegations against the City are vague, it appears that plaintiff alleges the City sanctioned the actions of the police officer making his arrest. In support of its motion for summary judgment, the City submitted the affidavit of its City Manager which stated inter alia that “the City of Fayetteville has adopted a policy for its Police Department based upon the Fourth Amendment to the United States Constitution arrest and detention standard, which provides that no person shall be arrested without a warrant unless the officer has probable cause to believe a criminal offense occurred within his presence or otherwise falls within an exception prescribed by law. This policy is made known to all police officers who are trained in said policy and expected to abide therewith.” In response to the defendants’ motion for summary judgment, plaintiff stated in his affidavit that “it is the policy, custom, usage and regulation of the City of Fayetteville, Georgia, that when a person is arrested without a warrant for their arrest that they are immediately taken to the City Jail of the City of Fayetteville, Georgia and held there awaiting the issuance of an arrest warrant.”

        Essentially, plaintiff argues that it is the custom of the City to allow for warrantless arrest and then to detain the arrestee for a period of time until a warrant can be obtained. To meet its burden of showing such a policy, when the municipality has moved for summary judgment on the basis that the City had no such custom or policy, the plaintiff must allege a “series of incidents of unconstitutional conduct suggesting ‘the existence of a widespread practice that … constitute[s] a “custom or usage” with the force of law.’ [Cits.]” Jacobs v. Paynter, 727 F.Supp. 1212, 1216 (N.D.Ill.1989) (quoting City of St. Louis v. Praprotnik, 485 U.S. 112, 108 S.Ct. 915, 926, 99 L.Ed.2d 107 (1988)). The allegations in plaintiff’s affidavit only allege proof of a single incident of errant behavior, which cannot constitute a sufficient basis for imposing liability on the City. Merritt v. County of Los Angeles, 875 F.2d 765, 770 (9th Cir.1989); Tokuhama v. City & County of Honolulu, 751 F.Supp. 1385 (10) (D.Hawaii 1989). The City may not be held liable for the negligent acts of a police officer. See OCGA [203 Ga.App. 14] § 36-33-3; City of Cave Spring v. Mason, 252 Ga. 3, 310 S.E.2d 892 (1984).

        Judgment affirmed.

        BIRDSONG, P.J., and COOPER, J., concur.

Mar 1 17

Child Support Modification Dates From the Petition’s Service, Not From the Involuntary Loss of Income

by merlin

Something needs to be clarified, because there appears to be some confusion about the issue of exactly when a downward modification of a monthly child support obligation due to an involuntary loss of income begins to accrue.

Initially, I wrote about this issue when certain key cases on the last major revision of Georgia’s child support guidelines occurred, and there was, perhaps, some confusion about the proper implementation of a potential downward modification.  The subsection at issue is OCGA Section 19-6-15(j), which reads as follows:

“Involuntary loss of income.

(1) In the event a parent suffers an involuntary termination of employment, has an extended involuntary loss of average weekly hours, is involved in an organized strike, incurs a loss of health, or similar involuntary adversity resulting in a loss of income of 25 percent or more, then the portion of child support attributable to lost income shall not accrue from the date of the service of the petition for modification, provided that service is made on the other parent. It shall not be considered an involuntary termination of employment if the parent has left the employer without good cause in connection with the parent’s most recent work.

(2) In the event a modification action is filed pursuant to this subsection, the court shall make every effort to expedite hearing such action.

(3) The court may, at its discretion, phase in the new child support award over a period of up to one year with the phasing in being largely evenly distributed with at least an initial immediate adjustment of not less than 25 percent of the difference and at least one intermediate adjustment prior to the final adjustment at the end of the phase-in period.”

I have emphasized the language “…shall not accrue…” in subsection (j)(1), above, because this is very different from the idea that a downward modification is meant to be retroactive.  It isn’t, but the difference is not something folks appreciate without having it pointed out to them.  This means that the same child support award they had will keep on, month to month.  However, it won’t accrue (if the involuntary termination of employment or involuntary loss of income is recognized by the trial court that hears the case) from the date of service of the petition for modification.  This means, of course, that the petition for downward modification needs to be done ASAP, because that debt will just keep growing bigger until it’s addressed!

The following case discusses this, and also discusses what has to be done to collect that deficit (it cannot be done during a downward modification petition hearing, but instead requires that the person to whom the child support is owed move for contempt on the amount that was unpaid).  This is Marlowe v. Marlowe, 297 Ga. 116 (Ga. 2015), in which the husband petitioned for a downward modification based on involuntary loss of income and the wife counterclaimed for an upward modification.

“Nathaniel Michael Smith, McDonough, for appellant.

Gregory A. Futch, McDonough, for appellee.


BENHAM, Justice.

The parties to this case were divorced in 2007, and a child support order was entered as part of the final judgment pursuant to which appellee Joseph Andrew Marlowe (Husband) was to pay appellant Ronni Green Marlowe (Wife) $992 per month for support of their three children. In 2013, Husband filed a petition to modify the original child support award downward on the ground that his income had diminished. Wife counterclaimed, seeking an upward modification on the ground that she now had work-related child care expenses that were not considered in the original child support award since at the time of the original award the children were not attending daycare. The trial court modified Husband’s child support obligation downward to $771 per month. This Court granted Wife’s application for discretionary appeal for the purpose of determining whether the trial court abused its discretion in determining the amount of child support due in light of OCGA § 19–6–15. For the reasons set forth below, we affirm in part and vacate in part.

  • Wife first asserts the trial court applied the wrong figure from the Georgia Schedule of Basic Child Support Obligations, set forth at OCGA § 19–6–15(o ), for the support of the three children. We agree. The Child Support Addendum attached to the trial court’s order recites that support is to be provided for three children. Applying the schedule for the combined gross income of these parents for three children, the basic child support obligation from the table in OCGA § 19–6–15(o ) is $1,316. The worksheet on which the trial court’s award is based shows a figure of $1,135, which is the figure from the table for two children. This portion of the order is vacated and, on remand, the trial court is instructed to revise its child support award accordingly by considering the proper basic child support for three children and any other relevant factors that may impact its final child support determination.

We find no error, however, in the trial court’s adjustments for work-related child care expenses entered on Schedule D of the Child Support Worksheet.1 Testimony at the hearing established that the oldest child did not require work-related child care expenses because he received after-school and summer day care from Husband and his family. Testimony also showed that Wife received assistance from a government program for part of the child care expenses, after which she paid the remaining $65 per week out-of-pocket for child care expenses for both the younger children during the school year, and $105 per week for both children during the summer months. Accordingly, the evidence shows the trial court’s figure of $4,020 for annual child care costs used in calculating the child support award was supported by the evidence and did not prejudice Wife.2

  • Wife asserts the trial court abused its discretion by failing to impute income to Husband or to find he was willfully underemployed. Indeed, “the trial court is empowered to impute income for willful or voluntary unemployment or underemployment. See OCGA § 19–6–15(f)(4)(D)….” Friday v. Friday, 294 Ga. 687, 689(1), 755 S.E.2d 707 (2014). Evidence was presented that Husband had earned significantly more in wages in past jobs than in his current employment. At the time the original child support order was entered, Husband’s adjusted gross monthly income was found to be $2,904, whereas in the modification order now on appeal, his income was found to be $2,166.67. Husband testified that, since the divorce, he had earned as much as $22.00 per  hour, at which point he was employed as an electronic access control systems technologist. Testimony also established he was a certified law enforcement officer, at which he would earn significantly more than he currently earns, and that in the past he made money on the side by repairing computers and installing electronic equipment for small businesses. The evidence shows Husband voluntarily terminated some of the jobs he has held in the time since the original child support order was entered.

Relying upon Galvin v. Galvin3 , Wife asserts that even if Husband’s loss of income was involuntary, this alone is insufficient to prevent the trial court from imputing income to him where, as here, she claims, “there is evidence of prolonged unemployment and a dearth of evidence of [Husband’s] efforts to obtain employment.” In Galvin, this Court affirmed the trial court’s modification order that was based, in part, upon the imputation of income to a father who had remained unemployed for over two years.4 The record in this case, however, fails to show prolonged unemployment and, in fact, Husband was employed at the time of the hearing in a job he had held for over one year. The record contains evidence of Husband’s efforts to obtain employment at those times in the past in which he had been unemployed either voluntarily or involuntarily.

By way of explaining his employment choices, Husband testified that, as a result of the economic downturn since the date of the final divorce decree, the last job he held in the access control systems industry paid only $2.50 more per hour than his current job, and that he had voluntarily resigned from that position because the job required him to work out of state, thus requiring him to travel to Georgia on weekends at his own expense in order to spend time with his children. He testified, without dispute, that employment in this field was currently difficult to find. He further testified that his current position, paying $12.50 per hour, offered him a steady and stable job with normal working hours and weekends off, allowing him to spend time with his children and relieving him from worry about being laid off for lack of work. According to Husband’s testimony, he had not pursued a job in law enforcement because he did not expect he would be able to control his schedule. He offered no reason for not pursuing additional income by repairing computers in his spare time, other than to point out that he was employed full time.

Past income, alone, is not conclusive evidence of earning capacity. See Herrin v. Herrin, 287 Ga. 427, 428, 696 S.E.2d 626 (2010) (reversing the trial court’s upward modification of child support based upon a finding of underemployment that was not supported by the evidence). Other factors to be considered include a party’s education, training, and specialized skill; evidence of suppression of income; the party’s assets and liabilities; and other funds available to the party for paying child support. Id. Arguably, in this case conflicting evidence was presented relating to other factors the trial court could consider when making its determination on the parties’ requests for modification. Evidence was presented regarding Husband’s training and skills from which it could be found that Husband was capable of earning more income than he was currently making, in a job that did not appear to require any specialized skill. No evidence was presented regarding other assets or funds available to Husband from which he could continue to pay the original amount of monthly child support award. And Husband’s testimony regarding the reasons for his career choices and the decline in his earnings refuted Wife’s assertion that he had intentionally suppressed his income in order to avoid his child support obligation. “[T]his Court will not set aside the trial court’s factual findings [in a child support proceeding] unless they are clearly erroneous, and this Court properly gives due deference to the opportunity of the trial court to judge the credibility of the witnesses.” (Citation and punctuation omitted.) Autrey v. Autrey, 288 Ga. 283, 284–285(2), 702 S.E.2d 878 (2010) ; see also Walton v. Walton, 285 Ga. 706(2), 681 S.E.2d 165 (2009). Given the evidence presented in this case, we cannot say that the trial court’s findings regarding Husband’s earning capacity were clearly erroneous. Instead, record evidence supports these findings and no abuse of discretion in granting Husband’s petition for downward modification is shown. See Strunk v. Strunk, 294 Ga. 280, 282(1), 754 S.E.2d 1 (2013).

Judgment affirmed in part and vacated in part, and case remanded with direction.

All the Justices concur.



1 At least, we find no error to Wife’s disadvantage; Husband asserts that an error was made in Wife’s favor with respect to adjustments for work-related child care expenses, but he does not challenge this finding on appeal.

2 If, in the future, Wife receives less in child care assistance as a result of her no longer meeting the criteria for assistance, as her testimony showed she surmised, then avenues are available to Wife to seek a further modification of the child support award. At the time of the trial court’s order, however, the award appears to meet or exceed the evidence presented of current out-of-pocket child care costs.

3 288 Ga. 125, 126(2), 702 S.E.2d 155 (2010).

4 Id. at 125 n. 1, 702 S.E.2d 155.


Feb 25 17

Initial Word on Class Actions in Georgia Under the Civil Practice Act

by merlin

Class actions under State law in Georgia are controlled by Chapter 11 of Title 9, the Civil Practice Title.  Specifically, they are provided for by Section 9-11-23, which reads as follows:

“(a) One or more members of a class may sue or be sued as representative parties on behalf of all only if:

(1) The class is so numerous that joinder of all members is impracticable;

(2) There are questions of law or fact common to the class;

(3) The claims or defenses of the representative parties are typical of the claims or defenses of the class; and

(4) The representative parties will fairly and adequately protect the interests of the class.

(b) An action may be maintained as a class action if the prerequisites of subsection (a) of this Code section are satisfied, and, in addition:

(1) The prosecution of separate actions by or against individual members of the class would create a risk of:

(A) Inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class; or

(B) Adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests;

(2) The party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or

(3) The court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include:

(A) The interest of members of the class in individually controlling the prosecution or defense of separate actions;

(B) The extent and nature of any litigation concerning the controversy already commenced by or against members of the class;

(C) The desirability or undesirability of concentrating the litigation of the claims in the particular forum; and

(D) The difficulties likely to be encountered in the management of a class action.

(c)(1) As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained. An order under this subsection may be conditional, and may be altered or amended before the decision on the merits.

(2) In any class action maintained under paragraph (3) of subsection (b) of this Code section, the court shall direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice shall advise each member that:

(A) The court will exclude the member from the class if the member so requests by a specified date;

(B) The judgment, whether favorable or not, will include all members who do not request exclusion; and

(C) Any member who does not request exclusion may, if the member desires, enter an appearance through counsel.

(3) The judgment in an action maintained as a class action under paragraph (1) or (2) of subsection (b) of this Code section, whether or not favorable to the class, shall include and describe those whom the court finds to be members of the class. The judgment in an action maintained as a class action under paragraph (3) of subsection (b) of this Code section, whether or not favorable to the class, shall include and specify or describe those to whom the notice provided in paragraph (2) of subsection (b) of this Code section was directed, and who have not requested exclusion, and whom the court finds to be members of the class.

(4) When appropriate:

(A) An action may be brought or maintained as a class action with respect to particular issues; or

(B) A class may be divided into subclasses and each subclass treated as a class, and the provisions of this rule shall then be construed and applied accordingly.

(d) In the conduct of actions to which this rule applies, the court may make appropriate orders:

(1) Determining the course of proceedings or prescribing measures to prevent undue repetition or complication in the presentation of evidence or argument;

(2) Requiring, for the protection of the members of the class or otherwise for the fair conduct of the action, that notice be given in such manner as the court may direct to some or all of the members of any step in the action, or of the proposed extent of the judgment, or of the opportunity of members to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, or otherwise to come into the action;

(3) Imposing conditions on the representative parties or on intervenors; and

(4) Requiring that the pleadings be amended to eliminate therefrom allegations as to representation of absent persons, and that the action proceed accordingly.

The orders may be combined with other orders, and may be altered or amended by the court as may be desirable from time to time.

(e) A class action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs.

(f)(1) After the commencement of an action in which claims or defenses are purported to be asserted on behalf of or against a class, the court shall hold a conference among all named parties to the action for the purpose of establishing a schedule for any discovery germane to the issue of whether the requested class should or should not be certified. At this conference, the court shall set a date for a hearing on the issue of class certification. Except for good cause shown, such hearing may not be set sooner than 90 days nor later than 180 days after the date on which the court issues its scheduling order pursuant to the conference. If evidence is presented by affidavit, the parties shall have an opportunity to cross-examine affiants as to such testimony offered by affidavit.

(2) Except for good cause shown, the court shall stay all discovery directed solely to the merits of the claims or defenses in the action until the court has issued its written decision regarding certification of the class.

(3) When deciding whether a requested class is to be certified, the court shall enter a written order addressing whether the factors required by this Code section for certification of a class have been met and specifying the findings of fact and conclusions of law on which the court has based its decision with regard to whether each such factor has been established. In so doing, the court may treat a factor as having been established if all parties to the action have so stipulated on the record.

(4) Nothing in this Code section shall affect, or be construed to affect, any provision of Code Section 9-11-12 or Code Section 9-11-56.

(g) A court’s order certifying a class or refusing to certify a class shall be appealable in the same manner as a final order to the appellate court which would otherwise have jurisdiction over the appeal from a final order in the action. The appellate courts shall expedite resolution of any appeals taken under this Code section. Such appeal may only be filed within 30 days of the order certifying or refusing to certify the class. During the pendency of any such appeal, the action in the trial court shall be stayed in all respects.”


As the Code section indicates, this is a really complex procedure that is very, very carefully spelled out!  I have written concerning this matter once before, when I wrote concerning a family law seminar in 2014, but it was only one provision (subsection (f)), mentioned in passing, and only in terms of the stay of Discovery mentioned above as regards that area of law.

An important thing to keep in mind is that even if litigation has the ability to affect a large class of persons, it will not be “certified as a class action” unless there is a motion made to do so.  The case below describes just such a situation (in passing, because it took the Court no more than a moment to rule on error for which there was no evidence).  The case is Estate of J.O. Seamans v. True, 247 Ga. 721, 279 S.E.2d 447 (Ga. 1981), which involved a dispute over a summary judgment that was issued on a clubhouse fence in an alleged common area in Glynn County:

Q. Robert Henry, Atlanta, for The Executrix of the Estate of J. O. Seamans, et al.

 M. Fleming Martin, Brunswick, for Mary D. True, et al.

        JORDAN, Chief Justice.

        The Executrix of the Estate of J. O. Seamans, et al., as owners of lots in the Village Bluff subdivision, St. Simons Island, filed a complaint in the Glynn Superior Court alleging that the Georgia-Kentucky Co. had recorded the Village Bluff Subdivision Plat in 1922 designating an area of the subdivision as a “Club Reservation”; that, as a result of the recording of the plat and “recitals” in their deeds, the plaintiffs were entitled to the full use of the “Club Reservation” except for its use as a clubhouse for the benefit of the purchasers of subdivision lots; that the Georgia-Kentucky Co. had sold part of the “Club Reservation” to an individual to whose title the defendants, Mary D. True and Arthur True had succeeded; that said defendants had attempted to erect a fence barring the plaintiffs from access to their part of the “Club Reservation”; and, that the plaintiffs were entitled to an injunction against the defendants’ violating their rights to the “Club Reservation”.

        The plaintiffs also alleged that they were entitled to an injunction against the defendants’ barring their access to the defendants’ part of the “Club Reservation” because the Georgia-Kentucky Co. had sold the subdivision lots on the “representation” that the area designated as the “Club Reservation” would be a site for the benefit of purchasers of subdivision lots.

        Mary D. True and Arthur True filed a motion for summary judgment which the trial court granted. Plaintiffs appeal. We reverse.

        1. The plaintiffs argue that the trial court erred in failing to certify the present cause of action as a class action.

        A trial court does not abuse its discretion in failing to certify, as a class action, a cause of action (such as the present cause of action) in which the plaintiffs do not file a motion to have the action so certified.

        This enumeration of error is without merit. See, Code Ann. § 81A-123(a); Hill v. General Finance Corp. of Georgia, 144 Ga.App. 434, 241 S.E.2d 282 (1977).

        2. The plaintiffs argue that the trial court erred in granting the defendants’ motion for summary judgment.

        The plaintiffs’ complaint states a claim for the enforcement of both an express and an implied easement upon which relief can be granted. Regarding implied easements, see, Walker v. Duncan, 236 Ga. 331, 332, 223 S.E.2d 675 (1976); Stanfield v. Brewton, 228 Ga. 92, 184 S.E.2d 352 (1971).

        The defendants argue however that the evidence offered in support of their motion for summary judgment sustains the trial court’s grant of said motion because it establishes, without contradiction, that the plaintiffs abandoned the alleged easements by non-use; that the plaintiffs were divested of title to the alleged easements by the defendants’ adverse possession of the easements for seven years, and that the plaintiffs were barred from enforcing the alleged easements by laches.

        “(M)ere non-user (of an easement) for twenty years affords a presumption, though not a conclusive one, of extinguishment, even in cases where no other circumstances indicating an intention to abandon appears….” Gilbert v. Reynolds, 233 Ga. 488, 493, 212 S.E.2d 332 (1975).

        The defendants swore that “no public use has ever been made of the … ‘Club Reservation’, other than casually and intermittently”; and that “since (their) acquisition of the property in 1958, (they) have exercised the prerogatives of ownership in regard to (their part of the Club Reservation) by fencing in said property, cleaning it up periodically, and depositing concrete blocks and other items along the edge of the bluff on Village Creek so that said bluff will not erode.”

        The defendants’ evidence does not demand a finding either that the plaintiffs had not used their alleged easements or that non-use had continued for the necessary twenty years.

        Accordingly, we hold that the defendants’ evidence does not demand a finding that the plaintiffs had abandoned their alleged easements.

        “Possession to be the foundation of a prescription must be in the right of the possessor, and not of another; must not have originated in fraud; must be public, continuous, exclusive, uninterrupted, and peaceable, and be accompanied by a claim of right.” Code Ann. § 85-402.

        The defendants’ evidence does not demand a finding that the defendants have possessed the alleged easement either exclusively or continuously or for the necessary period of years.

        Finally, “(T)he extraordinary equitable relief of injunction will be denied a party where, with full knowledge, he has been guilty of delay in asserting them, and has allowed large expenditures to be made by another party on whom great injury would be inflicted by the grant of the injunction.” Bacan v. Edwards, 234 Ga. 100, 102, 214 S.E.2d 539 (1975).

        The defendants’ evidence does not demand a finding either that the plaintiffs delayed in filing their complaint on July 27, 1979, or that the plaintiffs allowed large expenditures to be made by another party on whom great injury would be inflicted by the grant of the injunction.

        Accordingly, we hold that the defendants failed to pierce the plaintiffs’ complaint and that the trial court erred in granting the defendants’ motion for summary judgment.

        3. The defendants note the absence of a transcript of the hearing on the motion for summary judgment and argue that this court must assume that evidence was presented at said hearing and that said evidence was sufficient to support the trial court’s grant of summary judgment.

        The trial court’s order granting the defendants’ motion for summary judgment states that the grant was based upon the pleadings of the parties and the affidavit of Arthur True. Accordingly, we do not assume that evidence was presented at the motion for summary judgment hearing. This argument is without merit.

        4. The defendants argue that the trial court’s grant of their motion for summary judgment was warranted by either Code Ann. § 29-301 (“covenants restricting lands to certain uses shall not run for more than twenty years in municipalities which have adopted zoning laws, nor in those areas in counties for which zoning laws have been adopted”) or Code Ann. § 3-717 (“all actions for breach of any covenant restricting lands to certain uses shall be brought within two years after the right of action shall have accrued.”).

        These Code Sections limit the enforceability of restrictive covenants and hence are inapplicable to the present cause of action which is based upon the alleged existence of easements.

        Judgment reversed.

        All the Justices concur.

Feb 16 17

Nuts and Bolts of Civil Appellate Practice (Continuing Legal Education Notes)

by merlin

Nuts and Bolts of Civil Appellate Practice

Thursday, February 16, 2017

State Bar Headquarters

A.  Jennifer Jordan Preservation of Error

Must remember – need to preserve the issue for appeal on the trial record (I have learned this issue by experience, and she repeats it here)

Evidence and Objections

Voir Dire: GET IT TAKEN DOWN (preserve the error if it arises)

Get a Motion In Limine regarding demonstrative exhibits used in opening/closing up front (Powerpoints might use otherwise forbidden evidence).

Objecting during opening/closing – it is good to get it on the record, but maybe you don’t want to bring attention to it in front of the jury.

Remember: If there is an important piece of evidence that the other side wants to get in, they will find a way to get it in (even if it is OBJECTIONABLE) – BE PREPARED!!!



Remember that the standard in a civil case to overturn on appeal is ABUSE OF DISCRETION (in other words, it is really difficult to overturn the trial judge)

Directed Verdict

As a matter of law, if you didn’t move for directed verdict on the specific issue you complain about, the only relief you get is a new trial.

Jury Charges

Normally, need to make the CORRECT objection


  • 5-6-36, but be aware of § 5-5-21 (Motion for New Trial is so important when the weight of the evidence is completely on your side; when it is a matter of law, that’s different. If it is about weight of the evidence, the trial judge has sole discretion
  • Sufficiency DOES NOT MEAN weight; “Is there enough evidence to support the verdict?”

B.  Michael Terry – Effective Oral Advocacy

Most important thing for oral argument before Appellate Court: PREPARATION OF THE ARGUMENT

1. Know your Court

2. Know your judges

3. Know your material

4. Know you technology

5. Know yourself

6. Organize your time

7. Anticipate questions

8. Practice

9. Remove unnecessary words

10. Practice AGAIN!

  1. Avoid distracting attention from your argument itself by NOT KNOWING THE GENERAL DYNAMIC.
  • In the Supreme Court, remember that you don’t get notified when your time is up even if you saved time for rebuttal; THAT’S ON YOU.
  1. Know if the Justice is a former trial judge (they tend to defer more to the discretion of the trial judge) or former trial attorney; know if the Justice is a former legislator (they my or may not have greater deference to the Legislature consequentially).
  • What about the geographical environment where they actually practiced? Does that influence the situation?
  1. Know your record well – where in the record was something brought up? Maybe you can’t remember page numbers, but you can remember when that came up (and if you really think it’s coming up, it helps if you know the page number, too)
  • Be conversant in the law and the law’s evolutionary history, if possible
  • This ties into KNOWING YOUR JUDGE (if they have written on a particular topic, you need to know it!!!!)
  1. Your time starts running as soon as you walk up to the podium to argue, so any confusion with your or their technology is TIME WASTED.
  • You can even go to the Court on a day in which they aren’t in session and practice at the podium if you ask them in advance
  • Be comfortable with using visual aides (better tool to help Justices memorize)
  1. Remember: just because you tried a case with co-counsel doesn’t mean you can do that same thing yourself.
  1. Remember your time limits and PRACTICE BEFOREHAND (so you don’t screw it up); you don’t have to argue every issue in your brief!!!!!
  • If the issue is in your brief, it has been preserved and the Courts decide the majority of cases that way!
  1. Remember that you need to answer the Justices’ questions, so there may be NO REBUTTAL
  • You need to ask 5 days in advance for more time for oral argument; you can also ask the presiding Justice for more time (but it IS total discretion)
  1. Gets more necessary every day; write down the 10 most anticipated questions AND the 10 questions from the case you CANNOT ANSWER
  • Then, have another lawyer read your brief and make a list of 10 questions, too.
  • Practice them out loud!!!! Practice transitioning back to argument
  1. Take out the adjectives. Remember: THEY WILL CHARACTERIZE IT THEMSELVES, right?

     10. Don’t just read the brief – have everything MEMORIZED and KNOWN

In analyzing whether to seek oral argument or not, it is wise to consider whether the opposition is a better brief-writer or a better oral advocate (then, go the opposite direction).

C. Drafting the Appellee Brief – Ben Perkins

 Notice of Appeal is filed: what did they ask to be omitted from the record (or specifically designated for inclusion)?

  • See the materials for a CROSS DESIGNATION OF RECORD
  • Go to the courthouse and check the record material, to be sure (make sure what you believe the record to be is actually the case)
  • Double-check the INDEX, too.
  • See materials for a Motion to Supplement the Record – this is very important if the material was not in the record at all

Within 30 days of notice, must pay the assessed cost.  As the Appellee, watch that clock (can move to dismiss the appeal at the trial court level if it is late)

Deadline to request oral argument starts at docket notice – see materials for a sample form to request (MUST request in the Court of Appeals or it is not automatically granted).

When you receive Appellant’s brief, ask yourself: DO YOU NEED MORE TIME?

  • See materials for sample motion for more time (2 weeks is generally considered reasonable)

Then remember you have to file YOUR BRIEF – no longer a 30-page limit in the Court of Appeals, but instead now a word count limit (can do a different font, if needed)

Standard of Review: Cite it with CASES, to be sure that proper standard is used for EVERY issue that is being appealed.

LIBERALLY cite the record

It is not required, but SMART – write a summary of your argument as a forerunner to the brief itself.

Versus RESPONDENT’S BRIEF – When you already won in the Court below, make it clear that this is nothing Earth-shattering

D. Inner workings of the Georgia Court of Appeals – Judge Stephen Dillard (Georgia Court of Appeals)

 The case is assigned AS SOON AS IT IS DOCKETED.

Each Judge is about 45-48 opinions per year (used to be 60).

Rule 36 opinions – a one-page Order that affirms or denies the ruling (you are entitled to appellate review, but NOT to an appellate opinion) – THERE MAY BE A 20-PAGE MEMO EXPLAINING INTERNALLY WHAT APPROACH THEY ARE TAKING

He gives tips to the SUMMARY OF THE ARGUMENT and to PINPOINT CITATIONS in the material.

Oral argument is requested in only about a third of the cases, and granted in about a third of those requests.

The Two-Term Rule:      eight and a half months is PRETTY QUICK

Understand PHYSICAL PRECEDENT  (when a case is PERSUASIVE but not MANDATORY), unless it is adopted, and a special concurrence can have no value at all unless it makes a statement that it agrees with the main opinion on every point

Interlocutory Applications – they have a first, second, and third reader, but it only takes one of them to grant it.

E. Writing the Appellant’s Brief – Darren Summerville

  • The rules change ALL THE TIME
  1. What issues will you enumerate as errors?

A good guideline is ONE to FOUR errors

  • How harmful is the issue?
  • Frame them by the standard of review!


 17% of the civil cases that are appealed are reversed.

For the reply brief – remember to point out what the Appellee omitted or misrepresented.

ORAL ARGUMENT – Remember to address the PRIMARY POINT the Court granted cert on, and ALSO bring up the other points made in your brief that are worth arguing.

  • If appeal is docketed, notice of docketing will have a panel for judges that would hear oral argument if requested – RESEARCH THEM!
  • Need to make sure you ask for what specific relief you want (more than just reversal, of course)

Do the simplest issue in your favor first, even if it is not the longest and ugliest that you must address.

F. Criminal Appeals – R. Alexander Susor

 State gets to appeal if judge dismisses prosecution prior to trial, as well as Motion to Suppress.

Attach a proposed Order if the judge reverses an issue

Supreme Court’s jurisdiction comes from Constitution, and all cases in which Constitutionality of a statute is challenged must go there.

By law, ONLY the evidence is required to be transcribed in a felony case – MAKE IT A PRACTICE TO FILE MOTION IN EVERY CRIMINAL CASE FOR FREE TRANSCRIPTION OF ALL PROCEEDINGS.

  • Transcribe voir dire, jury charges, ALL OF IT!!!!

Judgment in trial court in a criminal case is not actually final until after sentencing report is filed and stamped in Clerk’s office.

If “ineffective assistance of counsel” is the argument, MUST have a new lawyer, and one basis is the failure to do something important, procedurally, and it can be cured by a successful motion for new trial (can at least cover your bases by hitting each procedural point and filing a general form motion for new trial within 30 days after sentence announced).

If handling post-conviction work, MUST honor the strict time limits.

Remember that Defendant is ENTITLED to an appeal bond for misdemeanors, and the judge can still CONSIDER an appeal bond for everything but the “seven deadly sins”.


In criminal cases, an interlocutory appeal decision CAN be appealed to a higher court.  Can this be done with civil appeals, also?

G. Federal Appeals – Douglas Dumont

  1. Get admitted to that Court.
  2. Know the court’s rules, as well as the applicable federal rules!
  3. There IS a Nutshell about Federal Appeals
  4. uscourts,gov/briefing-filing-instructions
  5. Timing ; Civil cases are 30 days after the Order, with certain named exceptions but CRIMINAL CASES are 14 days after the latest of entry of judgment OR government’s notice of appeal
  6. MAKE SUFFICIENT COPIES (and pay fees to District Court clerk)
  7. Must include “Certificate of Interested Person” in proper color and format
  8. Must include also a Certificate of Compliance about formatting compliance
  9. Must provide an index (check online at
  10. Must do an APPENDIX, also. Every Circuit has different preferences on the format, etc.

Can petition after a loss to have it heard en banc.  Cases are decided in the 11th Circuit: reversal is about 14.2%.  Mediation, especially!  Also, oral argument – if approved, then assigned to a NEW PANEL.

Remember: you cannot bring ANYTHING (phones, etc.) in to mediation building!

  • Might be best, if you think case is amenable to mediation, to hire a PRIVATE mediator (instead of the assigned one)


If decision is not unanimous, case then gets oral argument (if requested).  Granted less and less over the past two-three decades.

Remember the “Daubert cocktail” – once expert is kicked out under Daubert, they also win on summary judgment because without expert, cannot prove their case and it must be reviewed under abuse of discretion standard.

H. Judge Ellington – Interlocutory and Discretionary Appeals

Remember: there are NO substitutes for truth, honesty, and integrity.

  2. Purposes: Discretionary Appeals are for something that has ALREADY BEEN DECIDED (versus Interlocutory Appeals) – standard is DEFERENTIAL and rate of reversal isn’t great; Interlocutories require it being worth interrupting the Court below to have a ruling
  3. The PROCESS: When final Order is stamped and filed, 30-day clock on either Discretionary or Direct appeal starts running, but filing a discretionary application without complying with direct appeal procedure will screw you over (don’t do both to be safe, because if you are actually entitled to direct appeal but your discretionary application is denied, then it is “a decision on the merits” and THAT’S IT). YOU MUST FOLLOW THE CORRECT PROCEDURE (direct versus discretionary – §§ 5-6-35 & 5-6-36)
  4. Only takes ONE judge out of THREE JUDGE panel to get a discretionary application granted

 He THINKS there is one more appeal after an adverse decision in the Court of Appeals on a civil interlocutory appeal, BUT YOU SHOULD MOVE FOR RECONSIDERATION FIRST.

I. Judicial Panel – Judge McFadden (CAp), Judge Doyle (Chief Judge – CAp), Judge Pryor (11th Circuit), and Judge Barnes (CAp)

Position on oral argument – they are an educated audience, but no decision has been issued yet.  Don’t forget that the request for oral argument is part of the brief in federal court.

DO include a summary of the argument – doing an “introduction” has value, because the whole thing leading to no good conclusion is a letdown.  Specify WHAT EXERCISE OF POWER BY THE TRIAL COURT are you asking them to reverse!!!!

Detail on enumeration of errors: make it a simple sentence that is ALSO fully explanatory.

Remember: Correction of ERROR and not (perceived) inequity!

Every time there is an assertion of FACT, cite to the record!  Every time you make a direct legal assertion, cite to authority!  The only things un-cited should be your conclusions.

The panel said that they think you can seek a writ of certiorari from the higher court if your interlocutory appeal is denied.


Feb 14 17

Genuine Valentine’s Day Surprise!

by merlin

This morning, while doing some research before I turned to Valentine’s Day celebrations with my wife, I stumbled across the case that I have been trying to find!


This case found against the Appellant who sought damages under the federal Civil Rights statute, 42 USC 1988, in Georgia courts (it was an alleged election law violation), but it is important precisely because those damages allowable under federal law are also permitted under State law.  The United States Code section in question reads as follows:

“(a) Applicability of statutory and common law

The jurisdiction in civil and criminal matters conferred on the district courts by the provisions of titles 13, 24, and 70 of the Revised Statutes for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause, and, if it is of a criminal nature, in the infliction of punishment on the party found guilty.

(b) Attorney’s fees

In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92–318 [20 U.S.C. 1681 et seq.], the Religious Freedom Restoration Act of 1993 [42 U.S.C. 2000bb et seq.], the Religious Land Use and Institutionalized Persons Act of 2000 [42 U.S.C. 2000cc et seq.], title VI of the Civil Rights Act of 1964 [42 U.S.C. 2000d et seq.], or section 13981 of this title, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity such officer shall not be held liable for any costs, including attorney’s fees, unless such action was clearly in excess of such officer’s jurisdiction.

(c) Expert fees

In awarding an attorney’s fee under subsection (b) in any action or proceeding to enforce a provision of section 1981 or 1981a of this title, the court, in its discretion, may include expert fees as part of the attorney’s fee.”

This is not a statute that would necessarily jump out at someone as being appropriately considered under State law, but for the 1982 Logan v. Johnson case (162 Ga.App. 777):

       “Charles O. Logan, pro se.

        Thomas R. Burnside, Augusta, for appellee.

       SHULMAN, Presiding Judge.

        This appeal emanates from an action brought by appellant Logan pursuant to 42 U.S.C. § 1983 and Code Ann. § 34-1704, alleging that appellee election officials of Warren County had committed civil rights violations. The trial court denied appellant’s election contest petition, and the Supreme Court dismissed his appeal from that judgment as moot. Logan v. Johnson, 247 Ga. 640, 277 S.E.2d 913. The present appeal is from the further finding of the trial court that appellees reasonably incurred out-of-pocket expenditures and costs of litigation in the amount of $147.80, as well as reasonable attorney fees of $2,448, all of which the appellees were entitled to recover from appellant under the applicable provisions of 42 U.S.C. § 1988. Appellant asks this court, without benefit of transcripts of either the trial or the evidentiary hearing conducted on appellees’ motion to assess attorney fees, to reverse this ruling on the ground that there was no evidence of “vexatious, frivolous or groundless litigation” so as to warrant assessment of attorney fees.

        The trial court’s order in fact does recite that appellant’s allegations of unconstitutional civil rights violations were frivolous, unfounded and not supported by the evidence. In any action to enforce 42 U.S.C. § 1983, “the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” 42 U.S.C. § 1988. The provisions of this section are applicable to state courts and the trial judge had discretion to award attorney fees. Thiboutot v. State, 405 A.2d 230 (Me.1979); affd. 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed. 555. We must presume, from the failure of appellant to affirmatively show error by the record, that there was sufficient evidence before the trial court to support its findings of fact and judgment. McRae v. Smith, 159 Ga.App. 19, 282 S.E.2d 676; Brown v. Capitol Fish Co., 159 Ga.App. 45, 282 S.E.2d 694.

        Judgment affirmed.

        QUILLIAN, C. J., and CARLEY, J., concur.”


Of course, that case seems to indicate that section 42 USC 1983 needs to be at least referenced, but it is definitely a point to remember!

Feb 9 17

Attorney Fees in Class Actions – General Concepts

by merlin

Today, I had the good fortune of encountering an old friend, who told me that he reads this blog and approves of the work I am pursuing; this was heartening news, because I sometimes feel hopeless.

This case is a good general introduction to the negative world of attorney’s fees in class action cases.  I endorse the reasoning of the dissent, but the opinion itself does outline a possible recovery method for an action that I am currently contemplating, in the form of the “common fund” idea.  The cases give the impression that the Courts are generally only willing to grant attorney’s fees to the prevailing party when certain conditions are airtight, and one of the main requirements appears to be the determination of a precise mathematical number (hence, the use of a common fund).

Also – this case may provide some cynical guidance to the DAPL protesters.  I found it notable that Congress decided to change the law when oil pipeline money was defeated in Court, rather than change the methodology they used.

Lastly – be advised that this is a very long opinion (including the dissent, which is worth reading).


421 U.S. 240

95 S.Ct. 1612

44 L.Ed.2d 141





No. 73—1977.

Argued Jan. 22, 1975.

Decided May 12, 1975.


          Under the ‘America Rule’ that attorneys’ fees are not ordinarily recoverable by the prevailing litigant in federal litigation in the absence of statutory authorization, respondents, which had instituted litigation to prevent issuance of Government permits required for construction of the trans-Alaska oil pipeline, cannot recover attorneys’ fees from petitioner based on the ‘private attorney general’ approach erroneously approved by the Court of Appeals, since only Congress, not the courts, can authorize such an exception to the American rule. Pp. 247-271.


          161 U.S.App.D.C. 446, 495 F.2d 1026, reversed.


          Robert E. Jordan, III, Washington, D.C., for petitioner.


          Dennis M. Flannery, Washington, D.C., for respondents.

           Mr. Justice WHITE delivered the opinion of the Court.

          This litigation was initiated by respondents Wilderness Society, Environmental Defense Fund, Inc., and Friends of the Earth in an attempt to prevent the issuance of permits by the Secretary of the Interior which were required for the construction of the trans-Alaska oil pipeline. The Court of Appeals awarded attorneys’ fees to respondents against petitioner Alyeska Pipeline Service Co. based upon the court’s equitable powers and the theory that respondents were entitled to fees because they were performing the services of a ‘private attorney general.’ Certiorari was granted, 419 U.S. 823, 95 S.Ct. 39, 42 L.Ed.2d 47 (1974), to determine whether this award of attorneys’ fees was appropriate. We reverse.


          A major oil field was discovered in the North Slope of Alaska in 1968. In June 1969, the oil companies constituting the consortium owning Alyeska submitted an application to the Department of the Interior for rights-of-way for a pipeline that would transport oil from the North Slope across land in Alaska owned by the United States, a major part of the transport system which would carry the oil to its ultimate markets in the lower 48 States. A special interdepartmental task force studied the proposal and reported to the President. Federal Task Force on Alaskan Oil Development: A Preliminary Report to the President (1969), in App. 78—89. An amended application was submitted in December 1969, which requested a 54-foot right-of-way, along with applications for ‘special land use permits’ asking for additional space alongside the right-of-way and for the construction of a road along one segment of the pipeline.

          Respondents brought this suit in March 1970, and sought declaratory and injunctive relief against the Secretary of the Interior on the grounds that he intended to issue the right-of-way and special land-use permits in violation of § 28 of the Mineral Leasing Act of 1920, 41 Stat. 449, as amended, 30 U.S.C. § 185, and without compliance with the National Environmental Policy Act of 1969 (NEPA), 83 Stat. 852, 42 U.S.C. § 4321 et seq. On the basis of both the Mineral Leasing Act and the NEPA, the District Court granted a preliminary injunction against issuance of the right-of-way and permits. Wilderness Society v. Hickel, 325 F.Supp. 422 (DC 1970).

          Subsequently the State of Alaska and petitioner Alyeska were allowed to intervene. On March 20, 1972, the Interior Department released a six-volume Environmental Impact Statement and a three-volume Economic and Security Analysis. After a period of time set aside for public comment, the Secretary announced that the requested permits would be granted to Alyeska. App. 105—138. Both the Mineral Leasing Act and the NEPA issues were at that point fully briefed and argued before the District Court. That court then decided to dissolve the preliminary injunction, to deny the permanent injunction, and to dismiss the complaint.

          Upon appeal, the Court of Appeals for the District of Columbia Circuit reversed, basing its decision solely on the Mineral Leasing Act. 156 U.S.App.D.C. 121, 479 F.2d 842 (1973) (en banc). Finding that the NEPA issues were very complex and important, that deciding them was not necessary at that time since pipeline construction would be enjoined as a result of the violation of the Mineral Leasing Act, that they involved issues of fact still in dispute, and that it was desirable to expedite its decision as much as possible, the Court of Appeals declined to decide the merits of respondents’ NEPA contentions which had been rejected by the District Court. Certiorari was denied here. 411 U.S. 917, 93 S.Ct. 1550, 36 L.Ed.2d 309 (1973).

          Congress then enacted legislation which amended the Mineral Leasing Act to allow the granting of the permits sought by Alyeska and declared that no further action under the NEPA was necessary before construction of the pipeline could proceed.

          Congress then enacted legislation § 1651 et seq. (1970 ed., Supp. III).

          With the merits of the litigation effectively terminated by this legislation, the Court of Appeals turned to the questions involved in respondents’ request for an award of attorneys’ fees. 161 U.S.App.D.C. 446, 495 F.2d 1026 (1974) (en banc). Since there was no applicable statutory authorization for such an award, the court proceeded to consider whether the requested fee award fell within any of the exceptions to the general ‘American rule’ that the prevailing party may not recover attorneys’ fees as costs or otherwise. The exception for an award against a party who had acted in bad faith was inapposite, since the position taken by the federal and state parties and Alyeska ‘was manifestly reasonable and assumed in good faith . . ..’ Id., at 449, 495 F.2d at 1029. Application of the ‘common benefit’ exception which spreads the cost of litigation to those persons benefiting from it would ‘stretch it totally outside its basic rationale . . ..’ Ibid. The Court of Appeals nevertheless held that respondents had acted to vindicate ‘important statutory rights of all citizens . . .,’ id., at 452, 495 F.2d, at 1032; had ensured that the governmental system functioned properly; and were entitled to attorneys’ fees lest the great cost of litigation of this kind, particularly against well-financed defendants such as Alyeska, deter private parties desiring to see the laws protecting the environment properly enforced. Title 28 U.S.C. § 2412 was thought to bar taxing any attorneys’ fees against the United States, and it was also deemed inappropriate to burden the State of Alaska with any part of the award. But Alyeska, the Court of Appeals held, could fairly be required to pay one-half of the full award to which respondents were entitled for having performed the functions of a private attorney general. Observing that ‘(t)he fee should represent the reasonable value of the services rendered, taking into account all the surrounding circumstances, including, but not limited to, the time and labor required on the case, the benefit to the public, the skill demanded by the novelty or complexity of the issues, and the incentive factor,’ 161 U.S.App.D.C., at 456, 495 F.2d, at 1036, the Court of Appeals remanded the case to the District Court for assessment of the dollar amount of the award.


          In the United States, the prevailing litigant is ordinarily not entitled to collect a reasonable attorneys’ fee from the loser. We are asked to fashion a far-reaching exception to this ‘American Rule’; but having considered its origin and development, we are convinced that it would be inappropriate for the Judiciary, without legislative guidance, to reallocate the burdens of litigation in the manner and to the extent urged by respondents and approved by the Court of Appeals.

          At common law, costs were not allowed; but for centuries in England there has been statutory authorization to award costs, including attorneys’ fees. Although the matter is in the discretion of the court, counsel fees are regularly allowed to the prevailing party.

          During the first years of the federal-court system, Congress provided through legislation that the federal courts were to follow the practice with respect to awarding attorneys’ fees of the courts of the States in which the federal courts were located, with the exception of district courts under admiralty and maritime jurisdiction which were to follow a specific fee schedule. Those statutes, by 1800, had either expired or been repealed.

          In 1796, this Court appears to have ruled that the Judiciary itself would not create a general rule, independent of any statute, allowing awards of attorneys’ fees in federal courts. In Arcambel v. Wiseman, 3 U.S. (3 Dall.) 306, 1 L.Ed. 613, the inclusion of attorneys’ fees as damages was overturned on the ground that ‘(t)he general practice of the United States is in oposition (sic) to it; and even if that practice were not strictly correct in principle, it is entitled to the respect of the court, till it is changed, or modified, by statute.’ This Court has consistently adhered to that early holding. See Day v. Woodworth, 13 How. 363, 14 L.Ed. 181 (1852); Oelrichs v. Spain, 15 Wall. 211, 21 L.Ed. 43 (1872); Flanders v. Tweed, 15 Wall. 450, 21 L.Ed. 203 (1873); Stewart v. Sonneborn, 98 U.S. 187,  25 L.Ed. 116, 40 L.Ed.2d 703 (1879); Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 717—713, 87 S.Ct. 1404, 18 L.Ed.2d 475 (1967); F.D. Rich Co., Inc. v. United States ex rel. Industrial Lumber Co., Inc., 417 U.S. 116, 126—131, 94 S.Ct. 2157, 2163—2166 (1974).

          The practice after 1799 and until 1853 continued as before, that is, with the federal courts referring to the state rules governing awards of counsel fees, although the express legislative authorization for that practice had expired.  By legislation in 1842, Congress did give this Court authority to prescribe the items and amounts of costs which could be taxed in federal courts but the Court took no action under this statutory mandate.

See S. Law, The Jurisdiction and Powers of the United States Courts 271 n. 1 (1852).

          In 1853, Congress undertook to standardize the costs allowable in federal litigation. In support of the proposed legislation, it was asserted that there was great diversity in practice among the courts and that losing litigants were being unfairly saddled with exorbitant fees for the victor’s attorneys. The result was a far-reaching Act specifying in detail the nature and amount of the taxable items of cost in the federal courts. One of its purposes was to limit allowances for attorneys’ fees that were to be charged to the losing parties. Although the Act disclaimed any intention to limit the amount of fees that an attorney and his client might agree upon between themselves, counsel fees collectible from the losing party were expressly limited to the amounts stated in the Act:

          ‘That in lieu of the compensation now allowed by law to attorneys, solicitors, and proctors in the United States courts, to United States district attorneys, clerks of the district and circuit courts, marshals, witnesses, jurors, commissioners, and printers, in the several States, the following and no other compensation shall be taxed and allowed. But this act shall not be construed to prohibit attorneys, solicitors, and proctors from charging to and receiving from their clients, other than the Government, such reasonable compensation for their services, in addition to the taxable costs, as may be in accordance with general usage in their respective States, or may be agreed upon between the parties.’ Act of Feb. 26, 1853, 10 Stat. 161.

          The Act then proceeds to list specific sums for the services of attorneys, solicitors, and proctors.

          The intention of the Act to control the attorneys’ fees recoverable by the prevailing party from the loser was repeatedly enforced by this Court. In The Baltimore, 75 U.S. (8 Wall.) 377, 1 L.Ed. 613 (1869), a $500 allowance for counsel was set aside, the Court reviewing the history of costs in the United States courts and concluding:

          ‘Fees and costs, allowed to the officers therein named, are now regulated by the act of the 26th of February, 1853, which provides, in its 1st section, that in lieu of the compensation now allowed by law to attorneys, solicitors, proctors, district attorneys, clerks, marshals, witnesses, jurors, commissioners, and printers, the following and no other compensation shall be allowed.

          ‘Attorneys, solicitors, and proctors may charge their clients reasonably for their services, in addition to the taxable costs, but nothing can be taxed as cost against the opposite party, as an incident to the judgment, for their services, except the costs and fees therein described and enumerated. They may tax a docket fee of twenty dollars on a final hearing in admiralty, if the libellant recovers fifty dollars, but if he recovers less than fifty dollars, the docket fee of the proctor shall be but ten dollars.’ Id., at 392 (footnotes omitted).

          In Flanders v. Tweed, 15 Wall. 450, 21 L.Ed. 203 (1872), a counsel’s fee of $6,000 was included by the jury in the damages award. The Court held the Act forbade such allowances:

          ‘Fees and costs allowed to officers therein named are now regulated by the act of Congress passed for that purpose, which provides in its first section, that, in lieu of the compensation previously allowed by law to attorneys, solicitors, proctors, district attorneys, clerks, marshals, witnesses, jurors, commissioners, and printers, the following and no other compensation shall be allowed. Attorneys, solicitors, and proctors may charge their clients reasonably for their services, in addition to the taxable costs, but nothing can be taxed or recovered as cost against the opposite party, as an incident to the judgment, for their services, except the costs and fees therein described and enumerated. They may tax a docket fee of twenty dollars in a trial before a jury, but they are restricted to a charge of ten dollars in cases at law, where judgment is rendered without a jury.’ Id., at 452—453 (footnote omitted).

          See also In re Paschal, 10 Wall. 483, 493—494, 19 L.Ed. 992 (1871).

          Although, as will be seen, Congress has made specific provision for attorneys’ fees under certain federal statutes, it has not changed the general statutory rule that allowances for counsel fees are limited to the sums specified by the costs statute. The 1853 Act was carried forward in the Revised Statutes of 187426 and by the Judicial Code of 1911.27 Its substance, without any apparent intent to change the controlling rules, was also included in the Revised Code of 1948 as 28 U.S.C. §§ 192028 and 1923(a). Under § 1920, a court may tax as costs the various items specified, including the ‘docket fees’ under § 1923(a). That section provides that ‘(a)ttorney’s and proctor’s docket fees in courts of the United States may be taxed as costs as follows . . ..’ Against this background, this Court understandably declared in 1967 that with the exception of the small amounts allowed by § 1923, the rule ‘has long been that attorney’s fees are not ordinarily recoverable . . ..’ Fleischmann Distilling Corp., 386 U.S., at 717, 87 S.Ct., at 1407. Other recent cases have also reaffirmed the general rule that, absent statute or enforceable contract, litigants pay their own attorneys’ fees. See F. D. Rich Co., 417 U.S., at 128—131, 94 S.Ct., at 2164—2166; Hall v. Cole, 412 U.S. 1, 4, 94 S.Ct. 1943 1945, 36 L.Ed.2d 702 (1973).

          To be sure, the fee statutes have been construed to allow, in limited circumstances, a reasonable attorneys’ fee to the prevailing party in excess of the small sums permitted by § 1923. In Trustees v. Greenough, 105 U.S. 527, 26 L.Ed. 1157 (1882), the 1853 Act was read as not interfering with the historic power of equity to permit the trustee of a fund or property, or a party preserving or recovering a fund for the benefit of others in addition to himself, to recover his costs, including his attorneys’ fees, from the fund or property itself or directly from the other parties enjoying the benefit. That rule has been consistently followed. Central Railroad & Banking Co. v. Pettus, 113 U.S. 116, 5 S.Ct. 387, 28 L.Ed. 915 (1885); Harrison v. Perea, 168 U.S. 311, 325—326, 18 S.Ct. 129, 134—135, 42 L.Ed. 478 (1897); United States v. Equitable Trust Co., 283 U.S. 738, 51 S.Ct. 639, 75 L.Ed. 1379 (1931); Sprague v. Ticonic National Bank, 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184 (1939); Mills v. Electric Auto-Lite Co., 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970); Hall v. Cole, supra; cf. Hobbs v. McLean, 117 U.S. 567, 581—582, 6 S.Ct. 870, 876—877, 29 L.Ed. 940 (1886). See generally Dawson, Lawyers and Involuntary Clients: Attorney Fees From Funds, 87 Harv.L.Rev. 1597 (1974). Also, a court may assess attorneys’ fees for the ‘willful disobedience of a court order . . . as part of the fine to be levied on the defendant(,) Toledo Scale Co. v. Computing Scale Co., 261 U.S. 399, 426—428, 43 S.Ct. 458, 465—466, 67 L.Ed. 719 (1923),’ Fleischmann Distilling Corp. v. Maier Brewing Co., supra, 386 U.S., at 718, 87 S.Ct., at 1407; or when the losing party has ‘acted in bad faith, vexatiously, wantonly, or for oppressive reasons . . ..’ F. D. Rich Co., 417 U.S., at 129, 94 S.Ct., at 2165 (citing Vaughan v. Atkinson, 369 U.S. 527, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962)); cf. Universal Oil Products Co. v. Root Refining Co., 328 U.S. 575, 580, 66 S.Ct. 1176 1179, 90 L.Ed. 1447 (1946). These exceptions are unquestionably assertions of inherent power in the courts to allow attorneys’ fees in particular situations, unless forbidden by Congress, but none of the exceptions is involved here. The Court of Appeals expressly disclaimed reliance on any of them. See supra, at 245.

          Congress has not repudiated the judicially fashioned exceptions to the general rule against allowing substantial attorneys’ fees; but neither has it retracted, repealed, or modified the limitations on taxable fees contained in the 1853 statute and its successors. Nor has it extended any roving authority to the Judiciary to allow counsel fees as costs or otherwise whenever the courts might deem them warranted. What Congress has done, however, while fully recognizing and accepting the general rule, is to make specific and explicit provisions for the allowance of attorneys’ fees under selected statutes granting or protecting various federal rights. These statutory allowances are now available in a variety of circumstances, but they also differ considerably among themselves. Under the antitrust laws, for instance, allowance of attorneys’ fees to a plaintiff awarded treble damages is mandatory. In patent litigation, in contrast, ‘(t)he court in exceptional cases may award reasonable attorney fees to the prevailing party.’ 35 U.S.C. § 285 (emphasis added). Under Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a—3(b), the prevailing party is entitled to attorneys’ fees, at the discretion of the court, but we have held that Congress intended that the award should be made to the successful plaintiff absent exceptional circumstances. Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968). See also Northcross v. Board of Education of the Memphis City Schools, 412 U.S. 427, 93 S.Ct. 2201, 37 L.Ed.2d 48 (1973). Under this scheme of things, it is apparent that the circumstances under which attorneys’ fees are to be awarded and the range of discretion of the courts in making those awards are matters for Congress to determine.

          It is true that under some, if not most, of the statutes providing for the allowance of reasonable fees, Congress has opted to rely heavily on private enforcement to implement public policy and to allow counsel fees so as to encourage private litigation. Fee shifting in connection with treble-damages awards under the antitrust laws is a prime example; cf. Hawaii v. Standard Oil Co., 405 U.S. 251, 265—266, 92 S.Ct. 885, 892—893, 31 L.Ed.2d 184 (1972); and we have noted that Title II of the Civil Rights Act of 1964 was intended ‘not simply to penalize litigants who deliberately advance arguments they know to be untenable but, more broadly, to encourage individuals injured by racial discrimination to seek judicial relief under Title II.’ Newman, supra, 390 U.S., at 402, 88 S.Ct., at 966 (footnote omitted). But congressional utilization of the private-attorney-general concept can in no sense be construed as a grant of authority to the Judiciary to jettison the traditional rule against nonstatutory allowances to the prevailing party and to award attorneys’ fees whenever the courts deem the public policy furthered by a particular statute important enough to warrant the award.

          Congress itself presumably has the power and judgment to pick and choose among its statutes and to allow attorneys’ fees under some, but not others. But it would be difficult, indeed, for the courts, without legislative guidance, to consider some statutes important and others unimportant and to allow attorneys’ fees only in connection with the former. If the statutory limitation of right-of-way widths involved in this case is a matter of the gravest importance, it would appear that a wide range of statutes would arguably satisfy the criterion of public importance and justify an award of attorneys’ fees to the private litigant. And, if any statutory policy is deemed so important that its enforcement must be encouraged by awards of attorneys’ fees, how could a court deny attorneys’ fees to private litigants in actions under 42 U.S.C. § 1983 seeking to vindicate constitutional rights? Moreover, should courts, if they were to embark on the course urged by respondents, opt for awards to the prevailing party, whether plaintiff or defendant, or only to the prevailing plaintiff? Should awards be discretionary or mandatory?  Would there be a presumption operating for or against them in the ordinary case? See Newman, supra.

          As exemplified by this case itself, it is also evident that the rational application of the private-attorney-general rule would immediately collide with the express provision of 28 U.S.C. § 2412.40 Except as otherwise provided by statute, that section permits costs to be taxed against the United States, ‘but not including the fees and expenses of attorneys,’ in any civil action brought by or against the United States or any agency or official of the United States acting in an official capacity. If, as respondents argue, one of the main functions of a private attorney general is to call public officials to account and to insist that they enforce the law, it would follow in such cases that attorneys’ fees should be awarded against the Government or the officials themselves. Indeed, that very claim was asserted in this case. But § 2412 on its face, and in light of its legislative history, generally bars such awards, which, if allowable at all, must be expressly provided for by statute, as, for example, under Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a—3(b).

          We need labor the matter no further. It appears to us that the rule suggested here and adopted by the Court of Appeals would make major inroads on a policy matter that Congress has reserved for itself. Since the approach taken by Congress to this issue has been to carve out specific exceptions to a general rule that federal courts cannot award attorneys’ fees beyond the limits of 28 U.S.C. § 1923, those courts are not free to fashion drastic new rules with respect to the allowance of attorneys’ fees to the prevailing party in federal litigation or to pick and choose among plaintiffs and the statutes under which they sue and to award fees in some cases but not in others, depending upon the courts’ assessment of the importance of the public policies involved in particular cases. Nor should the federal courts purport to adopt on their own initiative a rule awarding attorneys’ fees based on the private-attorney-general approach when such judicial rule will operate only against private parties and not against the Government.

          We do not purport to assess the merits or demerits of the ‘American Rule’ with respect to the allowance of attorneys’ fees. It has been criticized in recent years, and courts have been urged to find exceptions to it.  It is also apparent from our national experience that the encouragement of private action to implement public policy has been viewed as desireable in a variety of circumstances. But the rule followed in our courts with respect to attorneys’ fees has survived. It is deeply rooted in our history and in congressional policy; and it is not for us to invade the legislature’s province by redistributing litigation costs in the manner suggested by respondents and followed by the Court of Appeals.

          The decision below must therefore be reversed.

          So ordered.


          Mr. Justice DOUGLAS and Mr. Justice POWELL took no part in the consideration or decision of this case.


           Mr. Justice BRENNAN, dissenting.

          I agree with Mr. Justice MARSHALL that federal equity courts have the power to award attorneys’ fees on a private-attorney-general rationale. Moreover, for the reasons stated by Judge Wright in the Court of Appeals, I would hold that this case was a proper one for the exercise of that power. As Judge Wright concluded:

          ‘Acting as private attorneys general, not only have (respondents) ensured the proper functioning of our system of government, but they have advanced and protected in a very concrete manner substantial public interests. An award of fees would not have unjustly discouraged (petitioner) Alyeska from defending its case in court. And denying fees might well have deterred (respondents) from undertaking the heavy burden of this litigation.’ 161 U.S.App.D.C. 446, 456, 495 F.2d 1026, 1036.

           Mr. Justice MARSHALL, dissenting.

          In reversing the award of attorneys’ fees to the respondent environmentalist groups, the Court today disavows the well-established power of federal equity courts to award attorneys’ fees when the interests of justice so require. While under the traditional American Rule the courts ordinarily refrain from allowing attorneys’ fees, we have recognized several judicial exceptions to that rule for classes of cases in which equity seemed to favor fee shifting. See Sprague v. Ticonic National Bank, 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184 (1939); Mills v. Electric Auto-Lite Co., 396 U.S. 375, 391—392, 90 S.Ct. 616, 625, 24 L.Ed.2d 593 (1970); Hall v. Cole, 412 U.S. 1, 5, 9, 93 S.Ct. 1943, 1946 1948, 36 L.Ed.2d 702 (1973). By imposing an absolute bar on the use of the ‘private attorney general’ rationale as a basis for awarding attorneys’ fees, the Court today takes an extremely narrow view of the independent power of the courts in this area—a view that flies squarely in the face of our prior cases.

          The Court relies primarily on the docketing-fees-and-court-costs statute, 28 U.S.C. § 1923, in concluding that the American Rule is grounded in statute and that the courts may not award counsel fees unless they determine that Congress so intended. The various exceptions to the rule against fee shifting that this Court has created in the past are explained as constructions of the fee statute. Ante, at 257. In addition, the Court notes that Congress has provided for attorneys’ fees in a number of statutes, but made no such provision in others. It concludes from this selective treatment that where award of attorneys’ fees is not expressly authorized, the courts should deny them as a matter of course. Finally, the Court suggests that the policy questions bearing on whether to grant attorneys’ fees in a particular case are not ones that the Judiciary is well equipped to handle, and that fee shifting under the private-attorney-general rationale would quickly degenerate into an arbitrary and lawless process. Because the Court concludes that granting attorneys’ fees to private attorneys general is beyond the equitable power of the federal courts, it does not reach the question whether an award would be proper against Alyeska in this case under the private-attorney-general rationale.

          On my view of the case, both questions must be answered. I see no basis in precedent or policy for holding that the courts cannot award attorneys’ fees where the interests of justice require recovery, simply because the claim does not fit comfortably within one of the previously sanctioned judicial exceptions to the American Rule. The Court has not in the past regarded the award of attorneys’ fees as a matter reserved for the Legislature, and it has certainly not read the docketing-fees statute as a general bar to judicial fee shifting. The Court’s concern with the difficulty of applying meaningful standards in awarding attorneys’ fees to successful ‘public benefit’ litigants is a legitimate one, but in my view it overstates the novelty of the ‘private attorney general’ theory. The guidelines developed in closely analogous statutory and nonstatutory attorneys’ fee cases could readily be applied in cases such as the one at bar. I therefore disagree with the Court’s flat rejection of the private-attorney-general rationale for fee shifting. Moreover, in my view the equities in this case support an award of attorneys’ fees against Alyeska. Accordingly, I must respectfully dissent.



          Contrary to the suggestion in the Court’s opinion, our cases unequivocally establish that granting or withholding attorneys’ fees is not strictly a matter of statutory construction, but has an independent basis in the equitable powers of the courts. In Sprague v. Ticonic National Bank, supra, the lower courts had denied a request for attorneys’ fees from the proceeds of certain bond sales, which, because of petitioners’ success in the litigation, would accrue to the benefit of a number of other similarly situated persons. This Court reversed, holding that the allowance of attorneys’ fees and costs beyond those included in the ordinary taxable costs recognized by statute was within the traditional equity jurisdiction of the federal courts. The Court regarded the equitable foundation of the power to allow fees to be beyond serious question:

          ‘Allowance of such costs in appropriate situations is part of the historic equity jurisdiction of the federal courts.’ 307 U.S., at 164, 59 S.Ct., at 779. ‘Plainly the foundation for the historic practice of granting reimbursement for the costs of litigation other than the conventional (statutory) taxable costs is part of the original authority of the chancellor to do equity in a particular situation.’ 307 U.S., at 164, 166, 59 S.Ct., at 780.

          In more recent cases, we have reiterated the same theme: while as a general rule attorneys’ fees are not to be awarded to the successful litigant, the courts as well as the Legislature may create exceptions to that rule. See Mills v. Electric Auto-Lite Co., 396 U.S., at 391—392, 90 S.Ct., at 625; Hall v. Cole, 412 U.S., at 5, 93 S.Ct., at 1946. Under the judge-made exceptions, attorneys’ fees have been assessed, without statutory authorization, for willful violation of a court order, Toledo Scale Co. v. Computing Scale Co., 261 U.S. 399, 426—428, 43 S.Ct. 458, 465—466, 67 L.Ed. 719 (1923); for bad faith or oppressive litigation practices, Vaughan v. Atkinson, 369 U.S. 527, 530—531, 82 S.Ct. 997, 999, 8 L.Ed.2d 88 (1962); and where the successful litigants have created a common fund for recovery or extended a substantial benefit to a class, Central Railroad & Banking Co. v. Pettus, 113 U.S. 116, 5 S.Ct. 387, 28 L.Ed. 915 (1885); Mills v. Electric Auto-Lite Co., supra. While the Court today acknowledges the continued vitality of these exceptions, it turns its back on the theory underlying them, and on the generous construction given to the common-benefit exception in our recent cases.

          In Mills, we found the absence of statutory authorization no barrier to extending the common-benefit theory to include nonmonetary benefits as a basis for awarding fees in a stockholders’ derivative suit. Discovering nothing in the applicable provisions of the Securities Exchange Act of 1934 to indicate that Congress intended ‘to circumscribe the courts’ power to grant appropriate remedies,’ 396 U.S., at 391, 90 S.Ct., at 625, we concluded that the District Court was free to determine whether special circumstances would justify an award of attorneys’ fees and litigation costs in excess of the statutory allotment. Because the petitioners’ lawsuit presumably accrued to the benefit of the corporation and the other shareholders, and because permitting the others to benefit from the petitioners’ efforts without contributing to the costs of the litigation would result in a form of unjust enrichment, the Court held that the petitioners should be given an attorneys’ fee award assessed against the respondent corporation.

          We acknowledged in Mills that the common-fund exception to the American Rule had undergone considerable expansion since its earliest applications in cases in which the court simply ordered contribution to the litigation costs from a common fund produced for the benefit of a number of nonparty beneficiaries. The doctrine could apply, the Court wrote, where there was no fund at all, id., at 392, 90 S.Ct., at 625, but simply a benefit of some sort conferred on the class from which contribution is sought. Id., at 393—394, 90 S.Ct., at 626. As long as the court has jurisdiction over an entity through which the contribution can be effected, it is the fairer course to relieve the plaintiff of exclusive responsibility for the burden. Finally, we noted that even where it is impossible to assign monetary value to the benefit conferred, ‘the stress placed by Congress on the importance of fair and informed corporate suffrage leads to the conclusion that, in vindicating the statutory policy, petitioners have rendered a substantial service to the corporation and its shareholders.’ Id., at 396, 90 S.Ct., at 627. The benefit that we discerned in Mills went beyond simple monetary relief: it included the benefit to the shareholders of having available to them ‘an important means of enforcement of the proxy statute.’ Ibid.

          Only two years ago, in a member’s suit against his union under the ‘free speech’ provisions of the Labor-Management Reporting and Disclosure Act, we held that it was within the equitable power of the federal courts to grant attorneys’ fees against the union since the plaintiff had conferred a substantial benefit on all the members of the union by vindicating their free speech interests. Hall v. Cole, 412 U.S. 1, 93 S.Ct. 1943, 36 L.Ed.2d 702 (1973). Because a court-ordered award of attorneys’ fees in a suit under the free speech provision of the LMRDA promoted Congress’ intention to afford meaningful protection for the rights of employees and the public generally, and because without provision of attorneys’ fees an aggrieved union member would be unlikely to be able to finance the necessary litigation, id., at 13, 93 S.Ct., at 1950, the Court held that the allowance of counsel fees was ‘consistent with both the (LMRDA) and the historic equitable power of federal courts to grant such relief in the interests of justice.’ Id., at 14, 93 S.Ct., at 1950.

          In my view, these cases simply cannot be squared with the majority’s suggestion that the availability of attorneys’ fees is entirely a matter of statutory authority. The cases plainly establish an independent basis for equity courts to grant attorneys’ fees under several rather generous rubrics. The Court acknowledges as much when it says that we have independent authority to award fees in cases of bad faith or as a means of taxing costs to special beneficiaries. But I am at a loss to understand how it can also say that this independent judicial power succumbs to Procrustean statutory restrictions—indeed, to statutory silence—as soon as the far from bright line between common benefit and public benefit is crossed. I can only conclude that the Court is willing to tolerate the ‘equitable’ exceptions to its analysis, not because they can be squared with it, but because they are by now too well established to be casually dispensed with.


          The tension between today’s opinion and the less rigid treatment of attorneys’ fees in the past is reflected particularly in the Court’s analysis of the docketing-fees statute, 28 U.S.C. § 1923, as a general statutory embodiment of the American Rule. While the Court has held in the past that Congress can restrict the availability of attorneys’ fees under a particular statute either expressly or by implication, see Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 87 S.Ct. 1404, 18 L.Ed.2d 475 (1967), it has refused to construe § 1923 as a plenary restraint on attorneys’ fee awards.

          Starting with the early common-fund cases, the Court has consistently read the fee-bill statute of 1853 narrowly when that Act has been interposed as a restriction on the Court’s equitable powers to award attorneys’ fees. In Trustees v. Greenough, 105 U.S. 527, 26 L.Ed. 1157 (1881), the Court held that the statute imposed no bar to an award of attorneys’ fees from the fund collected as a result of the plaintiff’s efforts, since:

          ‘(The fee bill statute addressed) only those fees and costs which are strictly chargeable as between party and party, and (did not) regulate the fees of counsel and other expenses and charges as between solicitor and client . . .. And the act contains nothing which can be fairly construed to deprive the Court of Chancery of its long-established control over the costs and charges of the litigation, to be exercised as equity and justice may require . . ..’ Id., at 535—536.

          In Sprague, supra, the Court again applied this distinction in recognizing ‘the power of federal courts in equity suits to allow counsel fees and other expenses entailed by the litigation not included in the ordinary taxable costs recognized by statute.’ 307 U.S., at 164, 59 S.Ct., at 779. The Court there identified the costs ‘between party and party’ as the sole target of the 1853 Act and its successors. The award of attorneys’ fees beyond the limited ordinary taxable costs, the Court termed costs ‘as between solicitor and client’; it held that these expenses, which could be assessed to the extent that fairness to the other party would permit, were not subject to the restrictions of the fee statute. Id., at 166, and n. 2, 59 S.Ct., at 779—780. Whether this award was collected out of a fund in the court or through an assessment against the losing party in the litigation was not deemed controlling. Id., at 166—167, 59 S.Ct., at 779—780; Mills, 396 U.S., at 392—394, 90 S.Ct., at 625—626.

          More recently, the Court gave its formal sanction to the line of lower court cases holding that the fee statute imposed no restriction on the equity court’s power to include attorneys’ fees in the plaintiff’s award when the defendant has unjustifiably put the plaintiff to the expense of litigation in order to obtain a benefit to which the latter was plainly entitled. Vaughan v. Atkinson, 369 U.S. 527, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962). Distinguishing The Baltimore, 8 Wall. 377, 19 L.Ed. 463 (1869), a case upon which the Court today heavily relies, the Court in Vaughan noted that the question was not one of ‘costs’ in the statutory sense, since the attorneys’ fee award was legitimately included as a part of the primary relief to which the plaintiff was entitled, rather than an ancillary adjustment of litigation expenses.

          Finally, in Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 87 S.Ct. 1404, 18 L.Ed.2d 475 (1967), the Court undertook a comprehensive review of the assessment of attorneys’ fees in federal-court actions. While noting that nonstatutory exceptions to the American Rule had been sanctioned ‘when overriding considerations of justice seemed to compel such a result,’ id., at 718, 87 S.Ct., at 1407, the Court held that the meticulous provision of remedies available under the Lanham Act and the history of unsuccessful attempts to include an attorneys’ fee provision in the Act precluded the Court’s implying a right to attorneys’ fees in trademark actions. The Court did not, however, purport to find a statutory basis for the American Rule, and in fact it treated § 1923 as a ‘general exception’ to the American Rule, not its statutory embodiment. 386 U.S., at 718 n. 11, 87 S.Ct., at 1407.

          My Brother WHITE concedes that the language of the 1853 statute indicating that the awards provided therein were exclusive of any other compensation is no longer a part of the fee statute. But we are told that the fee statute should be read as if that language were still in the Act, since there is no indication in the legislative history of the 1948 revision of the Judicial Code that the revisers intended to alter the meaning of § 1923. Yet even if that language were still in the Act, I should think that the construction of the Act in the cases creating judicial exceptions to the American Rule would suffice to dispose of the Court’s argument. Since that language is no longer a part of the fee statute, it seems even less reasonable to read the fee statute as an uncompromising bar to equitable fee awards.

          Nor can any support fairly be drawn from Congress’ failure to provide expressly for attorneys’ fees in either the National Environmental Policy Act or the Mineral Leasing Act, while it has provided for fee awards under other statutes. Confronted with the more forceful argument that other sections of the same statute included express provisions for recovery of attorneys’ fees, we twice held that specific-remedy provisions in some sections should not be interpreted as evidencing congressional intent to deny the courts the power to award counsel fees in actions brought under other sections of that Act that do not mention attorneys’ fees. Hall v. Cole, 412 U.S., at 11, 93 S.Ct., at 1949; Mills v. Electric Auto-Lite Co., 396 U.S., at 390—391, 90 S.Ct., at 625 626. Indeed, the Mills Court interpreted congressional silence not as a prohibition, but as authorization for the Court to decide the attorneys’-fees issue in the exercise of its coordinate, equitable power. Id., at 391, 90 S.Ct., at 625. In rejecting the argument from congressional silence in Mills and Hall, the Court relied on the established rule that implied restrictions on the power to do equity are disfavored. Hecht Co. v. Bowles, 321 U.S. 321, 329, 64 S.Ct. 587, 591, 88 L.Ed. 754 (1944).5 The same principle applies, a fortiori, to this case, where the implication must be drawn from the presence of attorneys’ fees provisions in other, unrelated pieces of legislation.

          In sum, the Court’s primary contention—that Congress enjoys hegemony over fee shifting because of the docketing-fee statute and the occasional express provisions for attorneys’ fees—will not withstand even the most casual reading of the precedents. The Court’s recognition of the several judge-made exceptions to the American rule demonstrates the inadequacy of its analysis. Whatever the Court’s view of the wisdom of fee shifting in ‘public benefit’ cases in general, I think that it is a serious misstep for it to abdicate equitable authority in this area in the name of statutory construction.


          The statutory analysis aside, the Court points to the difficulties in formulating a ‘private attorney general’ exception that will not swallow the American Rule. I do not find the problem as vexing as the majority does. In fact, the guidelines to the proper application of the private-attorney-general rationale have been suggested in several of our recent cases, both under statutory attorneys’ fee provisions and under the common-benefit exception.

          In Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968), we held that successful plaintiffs who sue under the discretionary-fee-award provision of Title II of the Civil Rights Act of 1964 are entitled to the recovery of fees ‘unless special circumstances would render such an award unjust.’ 390 U.S., at 402, 88 S.Ct., at 966. The Court reasoned that if Congress had intended to authorize fees only on the basis of bad faith, no new legislation would have been required in view of the long history of the bad-faith exception. Id., at 402 n. 4, 88 S.Ct., at 966. The Court’s decision in Newman stands on the necessity of fee shifting to permit meaningful private enforcement of protected rights with a significant public impact. The Court noted that Title II did not provide for a monetary award, but only equitable relief. Absent a fee-shifting provision, litigants would be required to suffer financial loss in order to vindicate a policy ‘that Congress considered of the highest priority.’ 390 U.S., at 402, 88 S.Ct., at 966. Accordingly, the Court read the attorneys’-fee provision in Title II generously, since if ‘successful plaintiffs were routinely forced to bear their own attorneys’ fees, few aggrieved parties would be in a position to advance the public interest by invoking the injunctive powers of the federal courts.’ 390 U.S., at 402, 88 S.Ct., at 966.

          Analyzing the attorneys’-fee provision in § 718 of the Education Amendments Act of 1972, the Court in Bradley v. School Board of the City of Richmond, 416 U.S. 696, 718, 94 S.Ct. 2006 2019, 40 L.Ed.2d 452 (1974), made a similar point. There the school board, a publicly funded governmental entity, had been engaged in litigation with parents of schoolchildren in the district. The Court observed that the two parties had vastly disparate resources for litigation, and that the plaintiffs had ‘rendered substantial service both to the Board itself, by bringing it into compliance with its constitutional mandate, and to the community at large by securing for it the benefits assumed to flow from a nondiscriminatory educational system.’ Id., at 718, 94 S.Ct., at 2019. Although the analysis in Newman was directed at construing the statutory-fees provision and the analysis in Bradley went to the question of whether the fees provision should be applied to services rendered before its enactment, the arguments in those cases for reading the attorneys’ fee provisions broadly is quite applicable to nonstatutory cases as well.

          Indeed, we have already recognized several of the same factors in the recent common-benefit cases. In Mills, we emphasized the benefit to the class of shareholders of having a meaningful remedy for corporate misconduct through private enforcement of the proxy regulations. Since the beneficiaries could fairly be taxed for this benefit, we held that the fee award should be made available. Similarly, in Hall, we pointed to the imbalance between the litigating power of the union and one of its members: in order to ensure that the right in question could be enforced, we held that attorneys’ fees should be provided in appropriate cases. Additionally, we noted that the enforcement of the rights in question would accrue to the special benefit of the other union members, which justified assessing the attorneys’ fees against the treasury of the defendant union.

          From these cases and others, it is possible to discern with some confidence the factors that should guide an equity court in determining whether an award of attorneys’ fees is appropriate. The reasonable cost of the plaintiff’s representation should be placed upon the defendant if (1) the important right being protected is one actually or necessarily protected is one actually or necessarily shared by the general public or some class thereof; (2) the plaintiff’s pecuniary interest in the outcome, if any, would not normally justify incurring the cost of counsel; and (3) shifting that cost to the defendant would effectively place it on a class that benefits from the litigation.

          There is hardly room for doubt that the first of these criteria is met in the present case. Significant public benefits are derived from citizen litigation to vindicate expressions of congressional or constitutional policy. See Newman v. Piggie Park Enterprises, supra. As a result of this litigation, respondents forced Congress to revise the Mineral Leasing Act of 1920 rather than permit its continued evasion. See Pub.L. 93—153, 87 Stat. 576. The 1973 amendments impose more stringent safety and liability standards, and they require Alyeska to pay fair market value for the right-of-way and to bear the costs of applying for the permit and monitoring the right-of-way.

          Although the NEPA issues were not actually decided, the lawsuit served as a catalyst to ensure a thorough analysis of the pipeline’s environmental impact. Requiring the Interior Department to comply with the NEPA and draft an impact statement satisfied the public’s statutory right to have information about the environmental consequences of the project, 83 Stat. 853, 42 U.S.C. § 4332(C), and also forced delay in the construction until safeguards could be included as conditions to the new right-of-way grants.

          Petitioner contends that these ‘beneficial results . . . might have occurred’ without this litigation. Brief for Petitioner 11, 36—42. But the record demonstrates that Alyeska was unwilling to observe and the Government unwilling to enforce congressional land-use policy. Private action was necessary to assure compliance with the Mineral Leasing Act; the new environmental, technological, and land-use safeguards written into the 1973 amendments to the Act are directly traceable to the respondents’ success in this litigation. In like manner, continued action was needed to prod the Interior Department into filing an impact statement; prior to the litigation, the Department and Alyeska were prepared to proceed with the construction of the pipeline on a piecemeal basis without considering the overall risks to the environment and to the physical integrity of the pipeline.

          The second criterion is equally well satisfied in this case. Respondents’ willingness to undertake this litigation was largely altruistic. While they did, of course, stand to benefit from the additional protections they sought for the area potentially affected by the pipeline, see Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), the direct benefit to these citizen organizations is truly dwarfed by the demands of litigation of this proportion. Extensive factual discovery, expert scientific analysis, and legal research on a broad range of environmental, technological, and land-use issues were required. See Affidavit of Counsel (Re Bill of Costs), App. 213—219. The disparity between respondents’ direct stake in the outcome and the resources required to pursue the case is exceeded only by the disparity between their resources and those of their opponents—the Federal Government and a consortium of giant oil companies.

          Respondents’ claim also fulfills the third criterion, for Alyeska is the proper party to bear and spread the cost of this litigation undertaken in the interest of the general public. The Department of the Interior, of course, bears legal responsibility for adopting a position later determined to be unlawful. And, since the class of beneficiaries from the outcome of this litigation is probably coextensive with the class of United States citizens, the Government should in fairness bear the costs of respondents’ representation. But, the Court of Appeals concluded that it could not impose attorneys’ fees on the United States, because in its view the statute providing for assessment of costs against the Government, 28 U.S.C. § 2412, permits the award of ordinary court costs, ‘but (does) not includ(e) the fees and expenses of attorneys.’ Since the respondents did not cross-petition on that point, we have no occasion to rule on the correctness of the court’s construction of that statute.

          Before the Department and the courts, Alyeska advocated adoption of the position taken by Interior, playing a major role in all aspects of the case.  This litigation conferred direct and concrete economic benefits on Alyeska and its principals in affording protection of the physical integrity of the pipeline. If a court could be reasonably confident that the ultimate incidence of costs imposed upon an applicant for a public permit would indeed be on the general public, it would be equitable to shift those costs to the applicant. In this connection, Alyeska, as a consortium of oil companies that do business in 49 States and account for some 20% of the national oil market, would indeed be able to redistribute the additional cost to the general public. In my view the ability to pass the cost forward to the consuming public warrants an award here. The decision to bypass Congress and avoid analysis of the environmental consequences of the pipeline was made in the first instance by Alyeska’s principals and not the Secretary of the Interior. The award does not punish the consortium for these actions but recognizes that it is an effective substitute for the public beneficiaries who successfully challenged these actions. Since the Court of Appeals held Alyeska accountable for a fair share of the fees to ease the burden on the public-minded citizen litigators, I would affirm the judgment below.

  1. For a discussion and chronology of the events surrounding this litigation, see Dominick & Brody, The Alaska Pipeline: Wilderness Society v. Morton and the Trans-Alaska Pipeline Authorization Act, 23 Am.U.L.Rev. 337 (1973).
  2. In 1968, Atlantic Richfield Co., Humble Oil & Refining Co., and British Petroleum Corp. formed the Trans-Alaska Pipeline System, and it was this entity which submitted the applications for the permits. Federal Task Force on Alaskan Oil Development: A Preliminary Report to the President (1969), in App. 80; Dominick & Brody, supra, n. 1, at 337—338, n. 3. In 1970, the Trans-Alaska Pipeline System was replaced by petitioner Alyeska. Alyeska’s stock is owned by ARCO Pipeline Co., Sohio Pipeline Co., Humble Pipeline Co., Mobil Pipeline Co., Phillips Petroleum Co., Amerada Hess Corp., and Union Oil Co. of California. See id., at 338 n. 3; App. 105.
  3. The application requested a primary right-of-way of 54 feet, an additional parallel, adjacent right-of-way for construction purposes of 46 feet, and another right-of-way of 100 feet for a construction road between Prudhoe Bay on the North Slope to the town of Livengood, a distance slightly less than half the length of the proposed pipeline. See Wilderness Society v. Morton, 156 U.S.App.D.C. 121, 128, 479 F.2d 842, 849 (1973).
  4. The amended application asked for a single 54-foot right-of-way, a special land-use permit for an additional 11 feet on one side and 35 feet on the other side of the right-of-way, and another special land-use permit for a space 200 feet in width between Prudhoe Bay and Livengood. Id., at 128—129, 479 F.2d, at 849—850; App. 89—98.
  5. Title 30 U.S.C. § 185 provided in pertinent part:

‘Rights-of-way through the public lands, including the forest reserves of the United States, may be granted by the Secretary of the Interior for pipe-line purposes for the transportation of oil or natural gas to any applicant possessing the (prescribed) qualifications . . . to the extent of the ground occupied by the said pipe line and twenty-five feet on each side of the same under such regulations and conditions as to survey, location, application, and use as may be prescribed by the Secretary of the Interior and upon the express condition that such pipe lines shall be constructed, operated, and maintained as common carriers and shall accept, convey, transport, or purchase without discrimination, oil or natural gas produced from Government lands in the vicinity of the pipe line in such proportionate amounts as the Secretary of the Interior may, after a full hearing with due notice thereof to the interested parties and a proper finding of facts, determine to be reasonable: . . . Provided further, That no right-of-way shall hereafter be granted over said lands for the transportation of oil or natural gas except under and subject to the provisions, limitations, and conditions of this section. Failure to comply with the provisions of this section or the regulations and conditions prescribed by the Secretary of the Interior shall be ground for forfeiture of the grant by the United States district court for the district in which the property, or some part thereof, is located in an appropriate proceeding.’

  1. The Court of Appeals described the heart of respondents’ NEPA contention to be that the Secretary did not adequately consider the alternative of a trans-Canada pipeline. 156 U.S.App.D.C., at 166—168, 479 F.2d, at 887—889.
  2. The interventions occurred in September 1971, approximately 17 months after the District Court had granted the preliminary injunction preventing issuance of the right-of-way and permits by the Secretary.
  3. The Department of the Interior had released a draft impact statement in January 1971.
  4. The decision is not reported. See id., at 130, 479 F.2d, at 851.
  5. At the same time, the Court of Appeals upheld the grant of certain rights-of-way to the State of Alaska. Id., at 158—163, 479 F.2d, at 879—884. It also considered a challenge to a special land-use permit issued by the Forest Supervisor to Alyeska’s predecessor, but did not find the issue ripe for adjudication. Id., at 163—166, 479 F.2d, at 884—887.
  6. Pub.L. 93—153, Tit. I, § 101, 87 Stat. 576, 30 U.S.C. § 185 (1970 ed., Supp. III).
  7. Trans-Alaska Pipeline Authorization Act,


  1. Respondents’ bill of costs includes a total of 4,455 hours of attorneys’ time spent on the litigation. App. 209—219.
  2. ‘(T)his litigation may well have provided substantial benefits to particular individuals and, indeed, to every citizen’s interest in the proper functioning of our system of government. But imposing attorneys’ fees on Alyeska will not operate to spread the costs of litigation proportionately among these beneciaries . . ..’ 161 U.S.App.D.C., at 449, 495 F.2d, at 1029.
  3. See n. 40, infra.
  4. ‘In the circumstances of this case it would be inappropriate to tax fees against appellee State of Alaska. The State voluntarily participated in this suit, in effect to present to the court a different version of the public interest implications of the trans-Alaska pipeline. Taxing attorneys’ fees against Alaska would in our view undermine rather than further the goal of emsuring adequate spokesmen for public interests.’ 161 U.S.App.D.C., at 456 n. 8, 495 F.2d, at 1036 n. 8.
  5. The Court of Appeals also directed that ‘(t)he fee award need not be limited . . . to the amount actually paid or owed by (respondents). It may well be that counsel serve organizations like (respondents) for compensation below that obtainable in the market because they believe the organizations further a public interest. Litigation of this sort should not have to rely on the charity of counsel any more than it should rely on the charity of parties volunteering to serve as private attorneys general. The attorneys who worked on this case should be reimbursed the reasonable value of their services, despite the absence of any obligation on the part of (respondents) to pay attorneys’ fees.’ Id., at 457, 495 F.2d, at 1037.
  6. ‘As early as 1278, the courts of England were authorized to award counsel fees to successful plaintiffs in litigation. Similarly, since 1607 English courts have been empowered to award counsel fees to defendants in all actions where such awards might be made to plaintiffs. Rules governing administration of these and related provisions have developed over the years. It is now customary in England, after litigation of substantive claims had terminated, to conduct separate hearings before special ‘taxing Masters’ in order to determine the appropriateness and the size of an award of counsel fees. To prevent the ancillary proceedings from becoming unduly protracted and burdensome, fees which may be included in an award are usually prescribed, even including the amounts that may be recovered for letters drafted on behalf of a client.’ Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 717, 87 S.Ct. 1404 1406, 18 L.Ed.2d 475 (1967) (footnotes omitted). See generally Goodhart, Costs, 38 Yale L.J. 849 (1929); C. McCormick, Law of Damages 234—236 (1935).
  7. The Federal Judiciary Act of Sept. 24, 1789, 1 Stat. 73, touched upon costs in §§ 9, 11—12, 20, 21—23, but as to counsel fees provided specifically only that the United States Attorney in each district ‘shall receive as a compensation for his services such fees as shall be taxed therefor in the respective courts before which the suits or prosecutions shall be.’ § 35. Five days later, however, Congress enacted legislation regulating federal-court processes, which provided:

‘That until further provision shall be made, and except where by this act or other statutes of the United States is otherwise provided . . . rates of fees, except fees to judges, in the circuit and district courts, in suits at common law, shall be the same in each state respectively as are now used or allowed in the supreme courts of the same. And . . . (in causes of equity and of admiralty and maritime jurisdiction) the rates of fees (shall be) the same as are or were last allowed by the states respectively in the court exercising supreme jurisdiction in such causes.’ Act of Sept. 29, 1789, § 2, 1 Stat. 93. That legislation was to be in effect only until the end of the next congressional session, § 3, but it was extended twice. See Act of May 26, 1790, c. 13, 1 Stat. 123; Act of Feb. 18, 1791, c. 8, 1 Stat. 191. It was repealed, however, by legislation enacted on May 8, 1792, § 8, 1 Stat. 278.


Prior to the time of that repeal, other legislation had been passed providing for additional compensation for United States Attorneys to cover traveling expenses. Act of Mar. 3, 1791, c. 22, § 1, 1 Stat. 216. That legislation was also repealed by the Act of May 8, 1792, supra. The latter enactment substituted a new provision for the compensation of United States Attorneys; they would be entitled to ‘such fees in each state respectively as are allowed in the supreme courts of the same . . .’ plus certain traveling expenses, § 3, 1 Stat. 277. That provision was repealed on February 28, 1799. § 9, 1 Stat. 626. That same statute provided new, specific rates of compensation for United States Attorneys. See § 4. See also § 5.

On March 1, 1793, Congress enacted a general provision governing the awarding of costs to prevailing parties in federal courts: ‘That there be allowed and taxed in the supreme circuit and district courts of the United States, in favour of the parties obtaining judgments therein, such compensation for their travel and attendance, and for attornies and counsellors’ fees, except in the district courts in cases of admiralty and maritime jurisdiction, as are allowed in the supreme or superior courts of the respective states.’ § 4, 1 Stat. 333.

This provision was to be in force for one year and then to the end of the next session of Congress, § 5, but it was continued in effect in 1795, Act of Feb. 25, 1795, c. 28, 1 Stat. 419, and again in 1796, Act of Mar. 31, 1796, 1 Stat. 451, for a period of two years and then until the end of the next session of Congress; at that point, it expired.

After 1799 and until 1853, no other congressional legislation dealt with the awarding of attorneys’ fees in federal courts except for the Act of 1842, n. 25, infra, which gave this Court authority to prescribed taxable attorneys’ fees, and for legislation dealing with the compensation for United States Attorneys. See the Act of Mar. 3, 1841, 5 Stat. 427, and the Act of May 18, 1842, 5 Stat. 483. See the summary of the legislation dealing with costs throughout this period, in S. Law, The Jurisdiction and Powers of the United States Courts 255—282 (1852).

  1. By the legislation of September 29, 1789, the federal courts were to follow the state practice with respect to rates of fees under admiralty and maritime jurisdiction. See n. 19, supra. The Act of Mar. 1, 1793, § 1, 1 Stat. 332, established set fees for attorneys in the district courts in admiralty and maritime proceedings. As with § 4 of that Act, n. 19, supra, this provision had expired by the end of the century. See The Baltimore, 75 U.S. (8 Wall.) 377, 390—392, 19 L.Ed. 463 (1869).
  2. The Circuit Court had allowed $1,600 in counsel fees under its estimate of damages and $28.89 as costs. Record in Arcambel, 56.
  3. See 2 T. Street, Federal Equity Practice § 1986, pp. 1188 1189 (1909); Law, supra, n. 19, at 279; Costs in Civil Cases, 30 Fed.Cas. 1058 (No. 18,284). (CCSDNY 1852).
  4. ‘That, for the purpose of further diminishing the costs and expenses in suits and proceedings in the said courts, the Supreme Court shall have full power and authority, from time to time, to make and prescribe regulations to the said district and circuit courts, as to the taxation and payment of costs in all suits and proceedings therein; and to make and prescribe a table of the various items of costs which shall be taxable and allowed in all suits, to the parties, their attorneys, solicitors, and proctors, to the clerk of the court, to the marshal of the district, and his deputies, and other officers serving process, to witnesses, and to all other persons whose services are usually taxable in bills of costs. And the items so stated in the said table, and none others, shall be taxable or allowed in bills of costs; and they shall be fixed as low as they reasonably can be, with a due regard to the nature of the duties and services which shall be performed by the various officers and persons aforesaid, and shall in no case exceed the costs and expenses now authorized, where the same are provided for by existing laws.’ Act of Aug. 23, 1842, § 7, 5 Stat. 518.

The brief legislative history of this section indicates that, as its own language states, its purpose was to reduce fee-bills in federal courts. Cong.Globe, 27th Cong., 2d Sess., 723 (1842) (remarks of Sen. Berrien). One of its opponents, Senator Buchanan, said the following:

‘If Congress conforms the fee-bills of the courts over which it has control, to the fee-bills of the State courts, that is all that can be expected of it . . .. But the great and main objection was, its transfer of the legislative power of Congress to the Supreme Court.’ Ibid.

  1. See the remarks of Senator Bradbury, Cong.Globe App., 32d Cong., 2d Sess., 207 (1853):

‘There is now no uniform rule either for compensating the ministerial officers of the courts, or for the regulation of the costs in actions between private suitors. One system prevails in one district, and a totally different one in another; and in some cases it would be difficult to ascertain that any attention had been paid to any law whatever designed to regulate such proceedings. . . . It will hence be seen that the compensation of the officers, and the costs taxed in civil suits, is made to depend in a great degree on that allowed in the State courts. There are no two States where the allowance is the same.

‘When this system was adopted, it had the semblance of equality, which does not now exist. There were then but sixteen States, in all of which the laws prescribed certain taxable costs to attorneys for the prosecution and defense of suits. In several of the States which have since been added to the Union, no such cost is allowed; and in others the amount is inconsiderable. As the State fee bills are made so far the rule of compensation in the Federal courts, the Senate will perceive that totally different systems of taxation prevail in the different districts. . . . It is not only the officers of the courts, but the suitors also, that are affected by the present unequal, extravagant, and often oppressive system.

‘The abuses that have grown up in the taxation of attorneys’ fees which the losing party has been compelled to pay in civil suits, have been a matter of serious complaint. The papers before the committee show that in some cases those costs have been swelled to an amount exceedingly oppressive to suitors, and altogether disproportionate to the magnitude and importance of the causes in which they are taxed, or the labor bestowed. . . .

‘It is to correct the evils and remedy the defects of the present system, that the bill has been prepared and passed by the House of Representatives. It attempts to simplify the taxation of fees, by prescribing a limited number of definite items to be allowed. . . .’ See also H.R.Rep.No.50, 32d Cong., 1st Sess. (1852); 2 Street, supra, n. 22, § 1987, p. 1189.

  1. ‘Fees of Attorneys, Solicitors, and Proctors. In a trial before a jury, in civil and criminal causes, or before referees, or on a final hearing in equity or admiralty, a docket fee of twenty dollars: Provided, That in cases in admiralty and maritime jurisdiction, where the libellant shall recover less than fifty dollars, the docket fee of his proctor shall be but ten dollars.

‘In cases at law, where judgment is rendered without a jury, ten dollars, and five dollars where a cause is discontinued.

‘For scire facias and other proceedings on recognizances, five dollars.

‘For each deposition taken and admitted as evidence in the cause, two dollars and fifty cents.

‘A compensation of five dollars shall be allowed for the services rendered in cases removed from a district to a circuit court by writ of error or appeal. . . .’ 10 Stat. 161—162.

  1. ‘The following and no other compensation shall be taxed and allowed to attorneys, solicitors, and proctors in the courts of the United States, to district attorneys, clerks of the circuit and district courts, marshals, commissioners, witnesses, jurors, and printers in the several States and Territories, except in cases otherwise expressly provided by law. But nothing herein shall be construed to prohibit attorneys, solicitors, and proctors from charging to and receiving from their clients, other than the Government, such reasonable compensation for their services, in addition to the taxable costs, as may be in accordance with general usage in their respective States, or may be agreed upon between the parties.’ Rev.Stat. § 823. For the schedule of fees, see § 824. The schedule remained the same as the one in the 1853 Act, n. 25, supra.
  2. Revised Stat. §§ 823 and 824 were not repealed by the Judicial Code of 1911 and hence were to ‘remain in force with the same effect and to the same extent as if this Act had not been passed.’ § 297, 36 Stat. 1169. When the Judicial Code was included under Title 28 of the United States Code in 1926, these sections appeared as §§ 571 and 572 with but minor changes in wording, including the deletion from the latter section of the compensation for services rendered in a case which went to the circuit court on appeal or writ of error.
  3. ‘A judge or clerk of any court of the United States may tax as costs the following:

‘(5) Docket fees under section 1923 of this title.’ 28 U.S.C. § 1920 (1946 ed., Supp. II).

  1. ‘(a) Attorney’s and proctor’s docket fees in courts of the United States may be taxed as costs as follows:

‘$20 on trial or final hearing in civil, criminal, or admiralty cases,


except that in cases of admiralty and maritime jurisdiction where the libellant recovers less than $50 the proctor’s docket fee shall be $10;

‘$20 in admiralty appeals involving not over $1,000;

‘$50 in admiralty appeals involving not over $5,000;

‘$100 in admiralty appeals involving more than $5,000;

‘$5 on discontinuance of a civil action;

‘$5 on motion for judgment and other proceedings on recognizances;

‘2.50 for each deposition admitted in evidence.’ 28 U.S.C. § 1923(a) (1946 ed., Supp. II).

The 1948 Code does not contain the language used in the 1853 Act and carried on for nearly 100 years that the feed prescribed by the statute ‘and no other compensation shall be taxed and allowed,’ but nothing in the 1948 Code indicates a congressional intention to depart from that rule. The Reviser’s Note to the new § 1923 states only that the ‘(s)ection consolidates sections 571, 572, and 578 of title 28, U.S.C., 1940 ed.’ Section 571 was the provision limiting awards to the fees prescribed by § 572. See n. 27, supra. Our conclusion that the 1948 Code did not change the longstanding rule limiting awards of attorneys’ fees to the statutorily provided amounts is consistent with our established view that ‘the function of the Revisers of the 1948 Code was generally limited to that of consolidation and codification. Consequently, a well-established principle governing the interpretation of provisions altered in the 1948 revision is that ‘no change is to be presumed unless clearly expressed.” Tidewater Oil Co. v. United States, 409 U.S. 151, 162, 93 S.Ct. 408, 415, 34 L.Ed.2d 375 (1972) (footnote omitted). As Mr. Justice Marshall noted for the Court id., at 162 n. 29, 93 S.Ct., at 415, the Senate Report covering the new Code observed that ‘great care has been exercised to make no changes in the existing law which would not meet with substantially unanimous approval.’ S.Rep.No.1559, 80th Cong., 2d Sess., 2 (1948).

The Reviser’s Note to § 1920 explains the shift from the mandatory ‘shall be taxed’ to the discretionary ‘may be taxed’ as made ‘in view of Rule 54(d) of the Federal Rules of Civil Procedure, providing for allowance of costs to the prevailing party as of course ‘unless the court otherwise directs.” Note following 28 U.S.C. § 1920 (1946 ed., Supp. II).

  1. Mr. Justice Bradley, writing for the Court in Greenough, said the following of the 1853 Act:

‘The fee-bill is intended to regulate only those fees and costs which are strictly chargeable as between party and party, and not to regulate the fees of counsel and other expenses and charges as between solicitor and client, nor the power of a court of equity, in cases of administration of funds under its control, to make such allowance to the parties out of the fund as justice and equity may require. The fee-bill itself expressly provides that it shall not be construed to prohibit attorneys, solicitors, and proctors from charging to and receiving from their clients (other than the government) such reasonable compensation for their services, in addition to the taxable costs, as may be in accordance with general usage in their respective States, or may be agreed upon between the parties. Act of Feb. 26, 1853, c. 80, 10 Stat. 161; Rev.Stat., sect. 823. And the act contains nothing which can be fairly construed to deprive the Court of Chancery of its long-established control over the costs and charges of the litigation, to be exercised as equity and justice may require, including proper allowances to those who have instituted proceedings for the benefit of a general fund.’ 105 U.S., at 535 536.

Sprague v. Ticonic National Bank, 307 U.S. 161, 165 n. 2, 59 S.Ct. 777, 779, 83 L.Ed. 1184 (1939), might be read as suggesting that the Court in Greenough said that a federal court could tax against the losing party ‘solicitor and client’ costs in excess of the amounts prescribed by the 1853 Act. But any such suggestion is without support either in the opinion in Greenough, which was limited to a common-fund rationale, or in the express terms of the statute. Those costs were simply left unregulated by the federal statute; it did not permit taxing the ‘client-solicitor’ costs against the client’s adversary. See The Baltimore, 8 Wall. 377, 19 L.Ed. 463 (1869); Flanders v. Tweed, 15 Wall. 450,  21 L.Ed. 203 (1872); 1 R. Foster, Federal Practice §§ 328—330 (1901); A. Conkling, The Organization, Jurisdiction and Practice of the Courts of the United States 456—457 (5th ed. 1870); A. Boyce, A Manual of the Practice in the Circuit Courts 72 (1869). Cf. United States v. One Package of Ready-Made Clothing, 27 Fed.Cas. 310, 312 (No. 15,950) (CCSDNY 1853). Mr. Justice Marshall’s reliance upon Sprague for the proposition that ‘client-solicitor’ costs could be taxed against the client’s opponent, see post, at 278-279, is thus misplaced and conflicts with any fair reading of Greenough, supra, and the 1853 Act.

  1. A very different situation is presented when a federal court sits in a diversity case. ‘(I)n an ordinary diversity case where the state law does not run counter to a valid federal statute or rule of court, and usually it will not, state law denying the right to attorney’s fees or giving a right thereto, which reflects a substantial policy of the state, should be followed.’ 6 J. Moore, Federal Practice 54.77(2), pp. 1712—1713 (2d ed. 1974) (footnotes omitted). See also 2 S. Speiser, Attorneys’ Fees §§ 14:3, 14:4 (1973) (hereinafter Speiser); Annotation, Prevailing Party’s Right to Recover Counsel Fees in Federal Courts, 8 L.Ed.2d 894, 900—901. Prior to the decision in Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), this Court held that a state statute requiring an award of attorneys’ fees should be applied in a case removed from the state courts to the federal courts: ‘(I)t is clear that it is the policy of the state to allow plaintiffs to recover an attorney’s fee in certain cases, and it has made that policy effective by making the allowance of the fee mandatory on its courts in those cases. It would be at least anomalous if this policy could be thwarted and the right so plainly given destroyed by removal of the cause to the federal courts.’ People of Sioux County v. National Surety Co., 276 U.S. 238, 243, 48 S.Ct. 239, 241, 72 L.Ed. 547 (1928). The limitations on the awards of attorneys’ fees by federal courts deriving from the 1853 Act were found not to bar the award. Id., at 243—244, 48 S.Ct., at 241. We see nothing after Erie requiring a departure from this result. See Hanna v. Plumer, 380 U.S. 460, 467—468, 85 S.Ct. 1136, 1141—1142, 14 L.Ed.2d 8 (1965). The same would clearly hold for a judicially created rule, although the question of the proper rule to govern in awarding attorneys’ fees in federal diversity cases in the absence of state statutory authorization loses much of its practical significance in light of the fact that most States follow the restrictive American rule. See 1 Speiser §§ 12:3, 12:4.
  2. See nn. 26—29, supra.
  3. See Amendments to Freedom of Information Act, Pub.L. 93 502, § 1(b)(2), 88 Stat. 1561 (amending 5 U.S.C. § 552(a)); Packers and Stockyards Act, 42 Stat. 166, 7 U.S.C. § 210(f); Perishable Agricultural Commodities Act, 46 Stat. 535, 7 U.S.C. § 499g(b); Bankruptcy Act, 11 U.S.C. §§ 104(a)(1), 641—644; Clayton Act, § 4, 38 Stat. 731, 15 U.S.C. § 15; Unfair Competition Act, 39 Stat. 798, 15 U.S.C. § 72; Securities Act of 1933, 48 Stat. 82, as amended, 48 Stat. 907, 15 U.S.C. § 77k(e); Trust Indenture Act, 53 Stat. 1176, 15 U.S.C. § 77www(a); Securities Exchange Act of 1934, 84 Stat. 890, 897, as amended, 15 U.S.C. §§ 78i(e), 78r(a); Truth in Lending Act, 82 Stat. 157, 15 U.S.C. § 1640(a); Motor Vehicle Information and Cost Savings Act, Tit. IV, § 409(a)(2), 86 Stat. 963, 15 U.S.C. § 1989(a)(2) (1970 ed., Supp. II); 17 U.S.C. § 116 (copyrights); Organized Crime Control Act of 1970, 18 U.S.C. § 1964(c); Education Amendments of 1972, § 718, 86 Stat. 369, 20 U.S.C. § 1617 (1970 ed., Supp. II); Norris-LaGuardia Act, § 7(e), 47 Stat. 71, 29 U.S.C. § 107(e); Fair Labor Standards Act, § 16(b), 52 Stat. 1069, as amended, 29 U.S.C. § 216(b); Longshoremen’s and Harbor Workers’ Compensation Act, § 28, 44 Stat. 1438, as amended, 86 Stat. 1259, 33 U.S.C. § 928 (1970 ed., Supp. II); Federal Water Pollution Control Act, § 505(d), as added, 86 Stat. 888, 33 U.S.C. § 1365(d) (1970 ed., Supp. II); Marine Protection, Research, and Sanctuaries Act of 1972, § 105(g)(4), 33 U.S.C. § 1415(g)(4) (1970 ed., Supp. II); 35 U.S.C. § 285 (patent infringement); Servicemen’s Readjustment Act, 38 U.S.C. § 1822(b); Clean Air Act, § 304(d), as added, 84 Stat. 1706, 42 U.S.C. § 1857h—2(d); Civil Rights Act of 1964, Tit. II, § 204(b), 78 Stat. 244, 42 U.S.C. § 2000a—3(b), and Tit. VII, § 706(k), 78 Stat. 261, 42 U.S.C. § 2000e—5(k); Fair Housing Act of 1968, § 812(c), 82 Stat. 88, 42 U.S.C. § 3612(c); Noise Control Act of 1972, § 12(d), 86 Stat. 1244, 42 U.S.C. § 4911(d) (1970 ed., Supp. II); Railway Labor Act, § 3, 44 Stat. 578, as amended, 48 Stat. 1192, as amended, 45 U.S.C. § 153(p); The Merchant Marine Act of 1936, § 810, 49 Stat. 2015, 46 U.S.C. § 1227; Communications Act of 1934, § 206, 48 Stat. 1072, 47 U.S.C. § 206; Interstate Commerce Act, §§ 8, 16(2), 24 Stat. 382, 384, 49 U.S.C. §§ 8, 16(2), and § 308(b), as added, 54 Stat. 940, as amended, 49 U.S.C. § 908(b); Fed.Rules Civ.Proc. 37(a) and (c). See generally 1 Speiser §§ 12:61—12:71; Annotation, supra, n. 31, at 922—942.


  1. ‘Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor . . . and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney’s fee.’ 15 U.S.C. § 15 (emphasis added). Other statutes which are mandatory in terms of awarding attorneys’ fees include the Fair Labor Standards Act, 29 U.S.C. § 216(b); the Truth in Lending Act, 15 U.S.C. § 1640(a); and the Merchant Marine Act of 1936, 46 U.S.C. § 1227.
  2. ‘In any action commenced pursuant to this subchapter, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs, and the United States shall be liable for costs the same as a private person.’

Other statutory examples of discretion in awarding attorneys’ fees are the Securities Act of 1933, 15 U.S.C. § 77k(e); the Trust Indenture Act, 15 U.S.C. § 77www(a); the Securities Exchange Act of 1934, 15 U.S.C. §§ 78i(e), 78r(a); the Civil Rights Act of 1964, Tit. VII, 42 U.S.C. § 2000e—5(k); the Clean Air Act, 42 U.S.C. § 1857h—2(d); the Noise Control Act of 1972, 42 U.S.C. § 4911(d) (1970 ed., Supp. II).

  1. Quite apart from the specific authorizations of fee shifting in particular statutes, Congress has recently confronted the question of the general availability of legal services to persons economically unable to retain a private attorney. See the Legal Services Corporation Act of 1974, Pub.L. 93—355, 88 Stat. 378, 42 U.S.C. § 2996 et seq. (1970 ed., Supp. IV). Section 1006(f), 42 U.S.C. § 2996e(f) (1970 ed., Supp. IV), addresses one type of fee shifting: ‘If an action is commenced by the Corporation or by a recipient and a final order is entered in favor of the defendant and against the Corporation or a recipient’s plaintiff, the court may, upon motion by the defendant and upon a finding by the court that the action was commenced or pursued for the sole purpose of harassment of the defendant or that the Corporation or a recipient’s plaintiff maliciously abused legal process, enter an order (which shall be appealable before being made final) awarding reasonable costs and legal fees incurred by the defendant in defense of the action, except when in contravention of a State law, a rule of court, or a statute of general applicability. Any such costs and fees shall be directly paid by the Corporation.’

On the other hand, remarks made during the debates on this legislation indicate that there was no intent to restrict the plaintiff’s recovery of attorneys’ fees in actions commenced by the Corporation or its recipient where under the circumstances other plaintiffs would be awarded such fees. 120 Cong.Rec. 15001 (1974) (Rep. Meeds); id., at 15008 (Rep. Steiger); id., at 24037 (Sen. Cranston); id., at 24052 (Sen. Mondale); id., at 24056 (Sen. Kennedy). Thus, if other plaintiffs might recover on the private-attorney-general theory, so might the Corporation. Congress itself, of course, has provided for counsel fees under various statutes on a private-attorney-general basis; and we find nothing in these remarks indicating and congressional approval of judicially created private-attorney-general fee awards.

  1. Congress in its specific statutory authorizations of fee shifting has in some instances provided that either party could be given such an award depending upon the outcome of the litigation and the court’s discretion, see, e.g., 35 U.S.C. § 285 (patent infringement); Civil Rights Act of 1964, 42 U.S.C. §§ 2000a—3(b), 2000e—5(k), while in others it has specified that only one of the litigants can be awarded fees. See, e.g., the antitrust laws, 15 U.S.C. § 15; Fair Labor Standards Act, 29 U.S.C. § 216(b).
  2. Congress has specifically provided in the statutes allowing awards of fees whether such awards are mandatory under particular conditions or whether the court’s discretion governs. See nn. 34 and 35, supra.
  3. Mr. Justice MARSHALL, post, at 284-285, after concluding that the federal courts have equitable power which can be used to create and implement a private-attorney-general rule, attempts to solve the problems of manageability which such a rule would necessarily raise. To do so, however, he emasculates the theory. Instead of a straightforward award of attorneys’ fees to the winning plaintiff who undertakes to enforce statutes embodying important public policies, as the Court of Appeals proposed, Mr. Justice MARSHALL would tax attorneys’ fees in favor of the private attorney general only when the award could be said to impose the burden on those who benefit from the enforcement of the law. The theory that he would adopt is not the private-attorney-general rule, but rather an expanded version of the common-fund approach to the awarding of attorneys’ fees. When Congress has provided for allowance of attorneys’ fees for the private attorney general, it has imposed no such common-fund conditions upon the award. The dissenting opinion not only errs in finding authority in the courts to award attorneys’ fees, without legislative guidance, to those plaintiffs the courts are willing to recognize as private attorneys general, but also disserves that basis for fee shifting by imposing a limiting condition characteristic of other justifications.

That condition ill suits litigation in which the purported benefits accrue to the general public. In this Court’s common-fund and common-benefit decisions, the classes of beneficiaries were small in number and easily identifiable. The benefits could be traced with some accuracy, and there was reason for confidence that the costs could indeed be shifted with some exactitude to those benefiting. In this case, however, sophisticated economic analysis would be required to gauge the extent to which the general public, the supposed beneficiary, as distinguished from selected elements of it, would bear the costs. The Court of Appeals, very familiar with the litigation and the parties after dealing with the merits of the suit, concluded that ‘imposing attorneys’ fees on Alyeska will not operate to spread the costs of litigation proportionately among these beneficiaries . . ..’ 161 U.S.App.D.C., at 449, 495 F.2d, at 1029. Mr. Justice MARSHALL would apparently hold that factual assessment clearly wrong. See post, at 288.

If one accepts, as Mr. Justice MARSHALL appears to do, the limitations of 28 U.S.C. § 2412, which in the absence of authority under other statutes forbids an award of attorneys’ fees against the United States or any agency or official of the United States, see nn. 40 and 42, infra, it becomes extremely difficult to predict when his version of the private-attorney-general basis for allowing fees would produce an award against a private party in litigation involving the enforcement of a federal statute such as that involved in this case—all in contrast to the typical result under those federal statutes which themselves provide for private actions and for an award of attorneys’ fees to the successful private plaintiff as, for example, under the antitrust laws. There remains the private plaintiff whose suit to enforce federal or state law is pressed against defendants who include the State or one or more of its agencies or officers as, for instance, the typical suit under 42 U.S.C. § 1983. Even here Eleventh Amendment hurdles must be overcome, see n. 44, infra, and if they are not, there may be few remaining defendants who would satisfy the dissenting opinion’s description of the litigant who may be saddled with his opponent’s attorneys’ fees.

We add that in the three-part test suggested by Mr. Justice MARSHALL, post, at 284-285, for administering a judicially created private-attorney-general rule, the only criterion which purports to enable a court to determine which statutes should be enforced by application of the rule is the first: ‘the important right being protected is one actually or necessarily shared by the general public or some class thereof . . ..’ Absent some judicially manageable standard for gauging ‘importance,’ that criterion would apply to all substantive congressional legislation providing for rights and duties generally applicable, that is, to virtually all congressional output. That result would solve the problem of courts selectively applying the rule in accordance with their own particular substantive-law preferences and priorities, but its breadth requires more justification than Mr. Justice MARSHALL provides by citing this Court’s common-fund and common-benefit cases.

Mr. Justice MARSHALL’s application of his suggested rule to this case, however, demonstrates the problems raised by courts generally assaying the public benefits which particular litigation has produced. The conclusion of the dissenting opinion is that ‘(t)here is hardly room for doubt’ that respondents’ litigation has protected an ‘important right . . . actually or necessarily shared by the general public or some class thereof . . ..’ Post, at 285. Whether that conclusion is correct or not, it would appear at the very least that, as in any instance of conflicting public-policy views, there is room for doubt on each side. The opinions below are evidence of that Fact. See 161 U.S.App.D.C., at 452—456, 495 F.2d, at 1032 1036 (majority opinion); id., at 459—461, 495 F.2d, at 1039—1041 (MacKinnon, J., dissenting); id., at 462—464, 495 F.2d, at 1042 1044 (Wilkey, J., dissenting). It is that unavoidable doubt which calls for specific authority from Congress before courts apply a private-attorney-general rule in awarding attorneys’ fees.

  1. ‘Except as otherwise specifically provided by statute, a judgment for costs, as enumerated in section 1920 of this title but not including the fees and expenses of attorneys may be awarded to the prevailing party in any civil action brought by or against the United States or any agency of official of the United States acting in his official capacity, in any court having jurisdiction of such action. A judgment for costs when taxed against the Government shall, in an amount established by statute or court rule or order, be limited to reimbursing in whole or in part the prevailing party for the costs incurred by him in the litigation. Payment of a judgment for costs shall be as provided in section 2414 and section 2517 of this title for the payment of judgments against the United States.’
  2. See supra, at 246.
  3. The Act of Mar. 3, 1887, which provided for the bringing of suits against the United States, covered the awarding of costs against the Government in the following section:

‘If the Government of the United States shall put in issue the right of the plaintiff to recover the court may, in its discretion, allow costs to the prevailing party from the time of joining such issue. Such costs, however, shall include only what is actually incurred for witnesses, and for summoning the same, and fees paid to the clerk of the court.’ § 15, 24 Stat. 508.

The same section was included in the Judicial Code of 1911, § 152, 36 Stat. 1138. In 1946, the Federal Tort Claims Act provided: ‘Costs shall be allowed in all courts to the successful claimant to the same extent as if the United States were a private litigant, except that such costs shall not include attorneys’ fees.’ § 410(a), 60 Stat. 844. The 1948 Code provided in 28 U.S.C. § 2412(a) (1946 ed., Supp. II) that ‘(t)he United States shall be liable for fees and costs only when such liability is expressly provided for by Act of Congress.’ The Reviser observed: ‘(Section 2412(a)) is new. It follows the well-known common-law rule that a sovereign is not liable for costs unless specific provision for such liability is made by law.’ Noting that many statutes exempt the United States from liability for fees and costs, the Reviser concluded that ‘(a) uniform rule, embodied in this section, will make such specific exceptions unnecessary.’ In 1966, § 2412 was amended to its present form. 80 Stat. 308. The Senate Report on the proposed bill stated that ‘(t)he costs referred to in the section do not include fees and expenses of attorneys.’ S.Rep.No.1329, 89th Cong., 2d Sess., 3 (1966), U.S.Code Cong. & Admin.News 1966, pp. 2527, 2529. See also H.R.Rep.No.1535, 89th Cong., 2d Sess., 2, 3 (1966). The Attorney General, in transmitting the proposal for legislation which led to the amendment, said that ‘(t)he bill makes it clear that the fees and expenses of attorneys . . . may not be taxed against the United States.’ Id., at 4, U.S.Code Cong. & Admin.News 1966, p. 2531. See Pyramid Lake Paiute Tribe of Indians v. Morton, 163 U.S.App.D.C. 90, 499 F.2d 1095 (1974), cert. denied, 420 U.S. 962, 95 S.Ct. 1351, 43 L.Ed.2d 439 (1975).

Without departing from this pattern, the Federal Tort Claims Act of 1946 in addition limited the fees which courts could allow and which attorneys could charge their clients and provided that the fees were ‘to be paid out of but not in addition to the amount of judgment, award, or settlement recovered, to the attorneys representing the claimant.’ § 422, 60 Stat. 846. See also § 410(a). Section 422 was maintained in the 1948 Code as 28 U.S.C. § 2678 (1946 ed., Supp. II), and the percentage limitations were raised in 1966. 80 Stat. 307.


  1. See n. 35, supra. See also Amendments to Freedom of Information Act, Pub.L. 93—502, § 1(b)(2), 88 Stat. 1561 (amending 5 U.S.C. § 552(a)).
  2. Although an award against the United States is foreclosed by 28 U.S.C. § 2412 in the absence of other statutory authorization, an award against a state government would raise a question with respect to its permissibility under the Eleventh Amendment, a question on which the lower courts are divided. Compare Souza v. Travisono, 512 F.2d 1137 (CA1 1975); Class v. Norton, 505 F.2d 123 (CA2 1974); Jordan v. Fusari, 496 F.2d 646 (CA2 1974); Gates v. Collier, 489 F.2d 298 (CA5 1973), petition for rehearing en banc granted, 500 F.2d 1382 (CA5 1974); Brandenburger v. Thompson, 494 F.2d 885 (CA9 1974); Sims v. Amos, 340 F.Supp. 691 (M.D.Ala.), summarily aff’d, 409 U.S. 942, 93 S.Ct. 290, 34 L.Ed.2d 215 (1972), with Jordon v. Gilligan, 500 F.2d 701 (CA6 1974); Taylor v. Perini, 503 F.2d 899 (CA6 1974); Namel Individual Members v. Texas Highway Dept., 496 F.2d 1017 (CA5 1974); Skehan v. Board of Trustees of Bloomsburg State College, 501 F.2d 31 (CA3 1974). In this case, the Court of Appeals did not rely upon the Eleventh Amendment in declining to award fees against Alaska, see n. 16, supra, and therefore we have no occasion to address this question.
  3. See, e.g., McLaughlin, The Recovery of Attorney’s Fees: A New Method of Financing Legal Services, 40 Ford.L.Rev. 761 (1972); Ehrenzweig, Reimbursement of Counsel Fees and the Great Society, 54 Calif.L.Rev. 792 (1966); Stoebuck, Counsel Fees Included in Costs: A Logical Development, 38 U.Colo.L.Rev. 202 (1966); Kuenzel, The Attorney’s Fee: Why Not a Cost of Litigation?, 49 Iowa L.Rev. 75 (1963); McCormick, Counsel Fees and Other Expenses of Litigation as an Element of Damages, 15 Minn.L.Rev. 619 (1931); Comment, Court Awarded Attorney’s Fees and Equal Access to the Courts, 122 U.Pa.L.Rev. 636, 648—655 (1974); Note, Attorney’s Fees: Where Shall the Ultimate Burden Lie?, 20 Vand.L.Rev. 1216 (1967). See also 1 Speiser § 12.8; Posner, An Economic Approach to Legal Procedure and Judicial Administration, 2 J.Legal Studies, 399, 437—438 (1973).
  4. In recent years, some lower federal courts, erroneously, we think, have employed the private-attorney-general approach to award attorneys’ fees. See, e.g., Souza v. Travisono, supra; Hoitt v. Vitek, 495 F.2d 219 (CA1 1974); Knight v. Auciello, 453 F.2d 852 (CA1 1972); Cornist v. Richland Parish School Board, 495 F.2d 189 (CA5 1974); Fairley v. Patterson, 493 F.2d 598 (CA5 1974); Cooper v. Allen, 467 F.2d 836 (CA5 1972); Lee v. Southern Home Sites Corp., 444 F.2d 143 (CA5 1971); Taylor v. Perini, supra; Morales v. Haines, 486 F.2d 880 (CA7 1973); Donahue v. Staunton, 471 F.2d 475 (CA7 1972), cert. denied, 410 U.S. 955, 93 S.Ct. 1419, 35 L.Ed.2d 687 (1973); Fowler v. Schwarzwalder, 498 F.2d 143 (CA8 1974); Brandenburger v. Thompson, supra; La Raza Unida v. Volpe, 57 F.R.D. 94 (N.D.Cal.1972). The Court of Appeals for the Fourth Circuit has refused to adopt the private-attorney-general rule. Bradley v. School Board of the City of Richmond, 472 F.2d 318, 327—331 (1972), vacated on other grounds, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974). Cf. Bridgeport Guardians, Inc. v. Members of Bridgeport Civil Service Comm’n, 497 F.2d 1113 (CA2 1974).

This Court’s summary affirmance of the decision in Sims v. Amos, supra, cannot be taken as an acceptance of a judicially created private-attorney-general rule. The District Court in Sims indicated that there was an alternative ground available—the bad faith of the defendants—upon which to base the award of fees. 340 F.Supp., at 694. See also Edelman v. Jordan, 415 U.S. 651, 670 671, 94 S.Ct. 1347, 1359—1360, 39 L.Ed.2d 662 (1974).

  1. The Senate Subcommittee on Representation of Citizen Interests has recently conducted hearings on the general question of court awards of attorneys’ fees to prevailing parties in litigation and attempted ‘to ascertain whether ‘fee-shifting’ affords representation to otherwise unrepresented interests, whether some restriction or encouragement of the development is needed, and what place, if any, there is for legislation in this area.’ Hearings on Legal Fees before the Subcommittee on Representation of Citizen Interests of the Senate Committee on the Judiciary, 93d Cong., 1st Sess., pt. III, p. 788 (1973) (Sen. Tunney). As Mr. Justice Marshall said for the Court in F. D. Rich Co., Inc. v. United States ex rel. Industrial Lumber Co., 417 U.S. 116, 94 S.Ct. 2157, 40 L.Ed.2d 703 (1974), with respect to fee-shifting under the Miller Act, 49 Stat. 793, as amended, 40 U.S.C. § 270a et seq., ‘Congress is aware of the issue.’ 417 U.S., at 131, 94 S.Ct., at 2166 (footnote omitted). As in that case, ‘arguments for a further departure from the American Rule . . . are properly addressed to Congress.’ Ibid.
  2. See also Kansas City Southern R. Co. v. Guardian Trust Co., 281 U.S. 1, 9, 50 S.Ct. 194, 197, 74 L.Ed. 659 (1930); Universal Oil Products Co. v. Root Refining Co., 328 U.S. 575, 580, 66 S.Ct. 1176 1179, 90 L.Ed. 1447 (1946).
  3. On several recent occasions we have recognized that these exceptions are well established in our equity jurisprudence. See F. D. Rich Co., Inc. v. United States ex rel. Industrial Lumber Co., 417 U.S. 116, 129—130, 94 S.Ct. 2157, 2165—2166, 40 L.Ed.2d 703 (1974); Hall v. Cole, 412 U.S. 1, 5, 93 S.Ct. 1943 1946, 36 L.Ed.2d 702 (1973); Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 718—719, 87 S.Ct. 1404 1407, 18 L.Ed.2d 475 (1967). See also Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402 n. 4, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968); 6 J. Moore, Federal Practice 54.77(2), p. 1709 (2d ed. 1974).
  4. In F. D. Rich Co., Inc. v. United States ex rel. Industrial Lumber Co., 417 U.S. 116, 94 S.Ct. 2157, 40 L.Ed.2d 703 (1974), we held that attorneys’ fees should not be granted as a matter of course under the provision of the Miller Act that granted claimants the right to ‘sums justly due.’ 49 Stat. 794, as amended, 40 U.S.C. § 270b(a). To overturn the American Rule as a matter of statutory construction would be improper, we held, with no better evidence of congressional intent to provide for attorneys’ fees, and in the context of everyday commercial litigation such as that under the Miller Act. 417 U.S., at 130, 94 S.Ct., at 2165—2166.
  5. Although Vaughan was an admiralty case and therefore subject to the possibly narrow reading as a case evincing a special concern for plaintiff seamen as wards of the admiralty court, we have not given the case such a narrow construction. See Hall v. Cole, 412 U.S., at 5, 93 S.Ct., at 1946; F. D. Rich Co., Inc. v. United States ex rel. Industrial Lumber Co., supra, 417 U.S., at 129 n. 17, 94 S.Ct., at 2165. Indeed, the Vaughan Court itself relied on Rolax v. Atlantic Coast Line R. Co., 186 F.2d 473 (CA4 1951), a nonadmiralty case in which the plaintiff was awarded attorneys’ fees as an equitable matter because of the obduracy of the defendant in opposing the plaintiff’s civil rights claim.
  6. The words of the Hecht Court apply well to the case at hand: ‘The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould each decree to the necessities of the particular case. Flexibility rather than rigidity has distinguished it. The qualities of mercy and practicality have made equity the instrument for nice adjustment and reconciliation between the public interest and private needs as well as between competing private claims. We do not believe that such a major departure from that long tradition as is here proposed should be lightly implied.’ 321 U.S., at 329—330, 64 S.Ct., at 592.
  7. The Court makes the further point that 28 U.S.C. § 2412 generally precludes a grant of attorneys’ fees against the Federal Government and its officers. Even if this is true, I fail to see how it supports the view that the private-attorney-general rationale should be jettisoned altogether. There are many situations in which other entities, both private and public, are sued in public interest cases. If attorneys’ fees can properly be imposed on those parties, I see no reason why the statutory immunity of the Federal Government should have any bearing on the matter.
  8. These teachings have not been lost on the lower courts in which the elements of the private-attorney-general rationale have been more fully explored. See, e.g., Souza v. Travisono, 512 F.2d 1137 (CA1 1975); Hoitt v. Vitek, 495 F.2d 219 (CA1 1974); Knight v. Auciello, 456 F.2d 852 (CA1 1972); Cornist v. Richland Parish School Board, 495 F.2d 189 (CA5 1974); Fairley v. Patterson, 493 F.2d 598 (CA5 1974); Cooper v. Allen, 467 F.2d 836 (CA5 1972); Lee v. Southern Home Sites Corp., 444 F.2d 143 (CA5 1971); Taylor v. Perini, 503 F.2d 899 (CA6 1974); Morales v. Haines, 486 F.2d 880 (CA7 1973); Donahue v. Staunton, 471 F.2d 475 (CA7 1972), cert. denied, 410 U.S. 955, 93 S.Ct. 1419, 35 L.Ed.2d 687 (1973); Fowler v. Schwarzwalder, 498 F.2d 143 (CA8 1974); Brandenburger v. Thompson, 494 F.2d 885 (CA9 1974); La Raza Unida v. Volpe, 57 F.R.D. 94 (NDCal.1972). Wyatt v. Stickney, 344 F.Supp. 387 (MDAla.1972); NAACP v. Allen, 340 F.Supp. 703 (MDAla.1972).
  9. See S.Rep.No.93—207, p. 18 (1973); H.R.Rep.No.93—414, p. 14 (1973); Hearings on S. 970, S. 993, and S. 1565 before the Senate Committee on Interior and Insular Affairs, 93d Cong., 1st Sess., pt. 4, pp. 56, 127 (1973).
  10. The statute, construed in light of the rule against implied restrictions on equity jurisdiction, may not foreclose attorneys’ fee awards against the United States in all cases. Section 2412 states that the ordinary recoverable costs shall not include attorneys’ fees; it may be read not to bar fee awards, over and above ordinary taxable costs, when equity demands. In any event, there are plainly circumstances under which § 2412 would not bar attorneys’ fee awards against the United States, see, e.g., Natural Resources Defense Council, Inc. v. Environmental Protection Agency, 484 F.2d 1331 (CA1 1973).
  11. In requiring Alyeska to pay only half of the fee, the Court of Appeals correctly recognized that, absent the statutory bar, the Government would have been in an equal position to shift the costs to the public beneficiaries.
  12. See Dawson, Lawyers and Involuntary Clients in Public Interest Litigation 88 Harv.L.Rev. 849, 902—905 (1975).



I am aware of the editing mistakes in this post, but will finish correcting it at a later date (the program forces me to do the corrections manually, and I have to move on to other tasks right now).

Jan 24 17

Redacted Reply Brief (Georgia Sex Offender Registry)

by merlin

As is my policy, once a document has been served and filed (though my submission is still awaiting approval by the Georgia Court of Appeals, and a rejection will cause me to scramble to submit a revised version by tomorrow’s deadline), I post it electronically for the benefit of anybody in a similar situation, whether it succeeds or fails.






COMES NOW Applicant XXXXX XXXXX, by and through counsel Merlinus Monroe, and makes and files this, his Appellant’s Reply Brief, rebutting the material inaccuracies in Appellee’s misstatement of the procedural history of the case, Appellee’s misunderstanding of the difference between the legal interpretation Appellant seeks as opposed to the application of an entirely different legal theory, and further elaborating on the fairness concerns that this interlocutory appeal embodies, and in support thereof respectfully states the following:


Until the request of Appellant for the application of civil procedure to his petition for removal from the Georgia Sex Offender Registry (hereinafter referred to as the “registry”) is determined by the appellate courts to whom the trial judge has consigned it, no Discovery documents of any kind – civil or criminal – have been filed, contrary to Appellee’s false assertion.  However, proposed examples of potential civil Discovery documents were submitted as exhibits to Appellant’s Supplemental Brief Illustrating Application of Civil Practice Act to Sex Offender Registry, filed with the trial court on XXXXX XX, 20XX, including proposed First Continuing Interrogatories, First Continuing Requests to Admit, and First Continuing Notice to Produce, and these were expressly brought to the attention of the court below during the hearing from which this interlocutory appeal arises (see hearing tr., ps. 4-5, 25, 1-3, XXXXX XX, 20XX), but it appeared that it had not been reviewed by the trial judge prior to the hearing, despite a copy having been provided (see hearing tr., p. 5, 2-3, XXXXX XX, 20XX).

Appellant has given the trial court examples of the kind of information he would seek from Discovery in this kind of case, included in the record as exhibits to the pleadings that Appellant submitted, and touched on this issue at the hearing on the matter.  See hearing tr., p. 5, 3-21, XXXXX XX, 20XX.  As he told the Court at the time, he seeks the sort of “specialized knowledge” that would tend to show evidence of a policy or prejudice against Appellant and his general class of offenders, such as would explain the behavior of trial counsel for the State and the refusal of the State to honor the statutory remedy that it has provided.  Id.  Contrary to the misstatement of counsel for Appellee in the erroneous recitation of the Procedural History of this case in the Brief of Appellee, these documents were never submitted by themselves but were instead exhibits to other documents.  The motion to apply civil procedure provisions was itself filed as a prerequisite to the use of civil Discovery mechanisms.

Even before substantial argument could be had on the issue of applicability of the Civil Practice Act and civil law provisions in general to the issue of removal from the Georgia Sex Offender Registry, the trial judge ruled against Appellant.  See hearing tr., ps. 12-13, 25, 1-4, XXXXX XX, 20XX.  The situation was complicated by the fact that Appellant would merely have been regurgitating arguments already made before the Court in greater detail in the pleadings that had been submitted already, referred to above and apparently unreviewed by the trial judge at the time of the hearing, and that are part of the record in this interlocutory appeal.  The Court said it was unfamiliar with them, indicating that this refusal to consider the points that Appellant was attempting to raise was in place before the point was even made, and his observations fell on deaf ears.  See hearing tr., p. 4, 23-24, XXXXX XX, 20XX.


A.     The Georgia Sex Offender Registry can be interpreted through the use of civil procedural mechanisms as easily as it can be using criminal procedural methodology, and it is more logical to do so.

`”[T]he Constitution extends less procedural protection to an imprisoned human being than is required to test the propriety of garnishing a commercial bank account, . . . the custody of a refrigerator, . . . the temporary suspension of a public school student, or the suspension of a driver’s license.”  Gerstein v. Pugh, 420 U.S. 103, 127 (1975) (Stewart, J., concurring).  There is nothing about criminal procedure that makes the evaluation of a person’s propensity for future criminal sexual conduct more accurate by examination of their recorded criminal history than by evaluation of their post-sentence conduct, which is exactly the kind of information that civil Discovery methods could reveal.  More importantly, it is plain from any analysis that the purpose of investigating a person on the Registry for such propensities as the statute might be intended to police against would be better served by the civil law provisions urged by Appellant than they would by the criminal law provisions that Appellee has tried to improperly bend to fit to the statutory scheme.  “[W]e have said times without number that there is no magic in nomenclature, and in classifying pleadings we will construe them to serve the best interests of the pleader, judging the pleading by its function rather than by its name.”  Holloway v. Frey, 130 Ga.App. 224, 228, 202 S.E.2d 845 (Ga. Ct. App. 1973)(pleading at equity not at law served function intended).  The same rule that applies to pleadings themselves should apply to this statutory mechanism, since a petition for removal from the Georgia Sex Offender Registry is not distinctly tied to the criminal procedural scheme and is plainly disadvantaged by its use. 

The statute uses what is inarguably a civil legal standard for the evaluation of release eligibility when it states that the Court may release a person if it “finds by a preponderance of the evidence that the individual does not pose a substantial risk of perpetrating any future dangerous sexual offense”.  OCGA Section 42-1-19(f).  This is not a criminal standard; the criminal law does not operate on such imprecise rules, but civil law thrives on them.

There is plainly some reason for the State’s insistence that statutory rules of construction are inapplicable, beyond simply the assignment of petitions for release from the Georgia Sex Offender Registry to the Office of the District Attorney.  The statute contains a penalty for failure to comply and for failure to obtain release, and might be considered to be a “penal statute”, in that respect.  However “even if judicial construction of this statute had been authorized, it is axiomatic that courts must strictly interpret penal statutes against the State and, more importantly, that courts are prohibited from interpreting a statute in a manner that renders some of the language superfluous, ineffectual, or meaningless.”  Clark v. State, 328 Ga. App. 268, 269, 761 S.E.2d 826 (Ga. Ct. App. 2014)(Court selective interpretation of child molestation sentence to eliminate probation requirement was improper).  The statutory interpretation urged by the State in this case seems to follow the exact opposite of this rule; the only apparent way the standards urged by the State can be so consistently used against registrants in this manner is to engage in this forbidden practice.  More importantly, though, there is nothing included at any point in the relevant statutes that restricts them to interpretation solely under the rules of Title 17, rather than Title 9.  Instead, it appears that little more than convenience and refusal to adapt to the realities and complexities of human behavior over time is driving the resistance of the State, but when Constitutional rights are at stake convenience cannot stand against that change. 

OCGA § 24-1-1 states that “[t]he object of all legal investigation is the discovery of truth.  Rules of evidence shall be construed to secure fairness in administration, eliminate unjustifiable expense and delay, and promote the growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.”  What is urged by Appellant is application of existing Title 9 Discovery mechanisms for the purpose of furthering fundamental fairness, which certainly does not infringe on the Constitutional rights of the accused; rather, it enhances them.

 B.   Consideration of the individual’s behavior after they have completed their sentence, as revealed through relevant and piercing Discovery analysis, is an issue of fundamental fairness.

“[E]vidence of [Appellant’s] postsentencing rehabilitation bears directly on the District Court’s overarching duty to   “impose a sentence sufficient, but not greater than necessary” to serve the purposes of sentencing.” (Pepper v. United States, 131 S. Ct. 1229, 1243, 562 U.S. 476 (2011)(district court may deviate on resentencing from sentencing commission ruling when the facts the commission relied on are unconvincing).  In other words, “[h]is postsentencing conduct also sheds light on the likelihood that he will engage in future criminal conduct”.  Pepper at 1234.  The opinion refers to this as “a central factor that sentencing courts must consider.”  Id.  It would not be a stretch to think that, in the situation of sex crime rehabilitation and petitions for removal from the Georgia Sex Offender Registry, it is, in fact, the central factor that the Court is called upon to consider.  There is no compelling justification for limiting Discovery by only considering the circumstances of the initial crime, and every possible justification for considering postsentencing rehabilitation in evaluating a petition for release from the Georgia Sex Offender Registry.

The importance of such evidence in the sexual offense context has been recognized by Georgia courts.  “[I]t is apparent that much of the evidence relevant to a [determination of future sexual criminal propensity] tends to be subjective in nature, and that evidence often may present meaningful factual and credibility disputes. Without an evidentiary hearing to assess that evidence and resolve these disputes, the danger of an erroneous [determination] is substantial.”  Gregory v. Sexual Offender Registration Review Board, 784 S.E.2d 392, 402 (Ga. 2016)(challenge by a person classified as a sexually dangerous predator to participate in an evidentiary review on Due Process grounds).

So obvious a failure of the Discovery scheme of the sex offender registration statute, demonstrated by its inability to let the trial court know about an individual’s improvement over time, relying instead on the relatively limited materials available to petitioners under the applicable criminal Discovery statutes, could not have possible been intended by the Legislature.  Such an outcome would have the effect of rendering the statutory remedy inapplicable to most otherwise eligible cases.  “[I]t is not to be presumed that the Legislature intended any part of the statute to be without meaning”.  Undercofler v. Capital Automobile Insurance Company, 111 Ga.App. 709, 716 (Ga. Ct. App. 1965).  Instead, the intent of the statute is clearly defined, though the State seems to be opposed to that intent in the XXXXX Circuit, at least.  See hearing tr., p. 12, 18-19, XXXXX XX, 20XX.  “To construe that Code section otherwise would plainly contravene its objective to provide petitioners a basis for seeking relief from the continuing duty to register as sexual offenders.”  Miller v. State, 291 Ga.App. 478, 480-481 (Ga. Ct. App. 2008)(non-sexual offender could be sentenced with sex offender conditions).

Defining the conditions under which an offender may and should be released from the Georgia Sex Offender Registry, by whom, and how – needs to be married with the statutory language employed by the Legislature to attain the harmonious result that it intended.  Choosing to impose criminal law standards on a statute drafted using civil law procedural language would necessitate ignoring the civil law language, and this absurd result violates the rules of statutory construction.  “Although appellate courts generally do not construe statutory language that is plain and unequivocal, judicial construction is required when words construed literally would defeat the legislature’s purpose.”  Echols v. Thomas, 265 Ga. 474, 475, 458 S.E.2d 100, 101 (Ga. S. Ct. 1995)(trial court had authority to impost life sentence when legislature permitted it with statutory language).

It is unlikely that the State drafted this statute improperly and somehow planned to deviously add additional punishment to one class of offenders, and to prevent the larger class of qualifying offenders from ever taking advantage of its provisions.  What is more likely is that the legislature intended this to be a useful and widely applicable remedy for those felons that were sufficiently rehabilitated to take advantage of the law, and such an outcome can only be had if civil Discovery provisions are made to apply, rather than the limited Discovery available to answer this inquiry under the criminal code.  The rules of statutory interpretation do not permit a court to “judicially rewrite a statute when the unconstitutional part “is so connected with the general scope of the statute that, should it be stricken out, effect can not be given to the legislative intent.””  Gwinnett Cty. Sch. Dist. v. Cox, 289 Ga. 265, 275–76, 710 S.E.2d 773, 782 (2011)(finding charter school plan to be violated, quoting Fortson v. Weeks, 232 Ga. 472(1), 475, 208 S.E.2d 68 (1974)).  However, all that is needed in this situation to eliminate the unintended danger of an absurd result is the clarification of the governing standards.

  It is only logical that the civil Discovery scheme should govern, since the criminal Discovery scheme is simply inadequate to provide the relief sought.


Nowhere in Section 42-1-19 does it direct, or even imply, that OCGA Title 17 controls its interpretation, and it is inappropriate to warp the statutory intent by making it not a vehicle of relief but a vindictive new means of punishment under the criminal law.  Instead, it is logical to apply the tools for uncovering the truth that are provided by the civil law that, by an honest evaluation of the terms that OCGA Section 42-1-19 uses, govern its administration.  Counsel for Appellee seems to have materially misunderstood the proceedings in the trial court, but this failure to comprehend the legal shift urged by Appellant does not make the points raised in support of that legal interpretation any less valid; Civil Practice Act provisions should apply because the Court is properly concerned with the State’s rehabilitation of the individual, and not with the crime for which the person was discharged over a decade prior.  The only relevance that crime still has is that it happened, and as a metric for how much the person who committed that crime has improved as a member of society since their initial conviction.  Appellant humbly requests this Court overturn the ruling of the trial court denying his motion to apply civil law principles to a petition for release from the Georgia Sex Offender Registry.

Respectfully submitted, this XXrd day of XXXXX, 20XX.







Jan 13 17

Redacted Motion for Rule 6 Sanctions (Georgia Court of Appeals)

by merlin

As is my practice, when a document has been filed and served I try to post a redacted copy of it to my site.  If it succeeds in accomplishing its purpose, it provides a useful form to other persons in a similar situation; should it fail, it will serve as a caution for improper practice.  Remember, though, that you cannot use exhibits in your motions!



XXXXX XXXXX,                                                               §

          Appellant,                                                                  §

                                                                                                  §        CASE NO. XXXXXXXXXX

STATE OF GEORGIA,                                                      §

          Appellee.                                                                     §


          COMES NOW Applicant XXXXX XXXXX, by and through counsel Merlinus Monroe, and makes and files this, his Appellant’s Motion for Rule 6 Sanctions after noticing the obvious disparity between the filing date of Appellee’s brief and the later date on which the document was served and in support thereof, respectfully states the following:


          Rule 6 of the Rules of the Court of Appeals of Georgia states as follows:

“Service shall be made contemporaneously with or before filing accomplished by personal service or the United States Postal Service.”

Later, the rule also specifies that “[f]iling of any document with the Court’s eFast system shall not constitute sufficient service under this rule” (emphasis supplied).



          According to the eFast program maintained by the Court of Appeals of Georgia, Appellee filed its brief with the Court on the 11th day of January, 2017.  However, according to the Certificate of Service filed with the brief of Appellee, service was made on Appellant by both electronic service via eFast and by depositing a copy of same with the United States Postal Service for delivery on the XXth day of XXXXX, 20XX, one day after the document was filed.  This is exactly contrary to the rule quoted above in every way.


          As a sanction, the Rule specifically commands that “[a]ny document…otherwise not in compliance with this rule shall not be accepted for filing” (emphasis supplied).  XXXXX XXXXX XXXXX, the signatory to the brief of Appellee on behalf of the State of Georgia, specifically filed his brief one day prior to serving a copy of that document on Appellant and specifically served the document using a method that the rule directly discusses as being inappropriate; the sanction that is provided for in the rule is the right one to apply.


WHEREFORE, Appellant requests the following relief:

  1. For the rejection of the brief of Appellee as improperly served and filed; and
  2. For such other and further relief as this honorable Court in its discretion deems fit to grant.
Dec 19 16

ABA CLE Webinar Notes – Fierce and Gritty: Resilience Training for Lawyers

by merlin

American Bar Association Continuing Legal Education

Fierce and Gritty: Resilience Training for Lawyers (Webinar)

Monday, December 19, 2016

 Presenters: Anne Bradford and Martha Knudson: Aspire

  • Resilience program is used by the US Army (decreased anxiety, substance abuse, and PTSD)
  • Recent study (13,000 lawyers in 29 States – high suicide, alcohol use, depression)
  • Chronic stress – can harm brain function; you must have THE COURAGE TO GROW from stress


Building Personal Resources

  • Optimism
  • Problem-solving
  • Meaning
  • Self-efficacy
  • Flexibility
  • Engagement?


Is your environment conducive to bouncing back from setbacks?


  1. Flexible Optimism

It’s an explanatory style: a negative experience is TEMPORARY; it is SPECIFIC (one weakness, not a general problem); it is TEMPORARY (going to overcome it shortly)


  1. Explanatory Style
  • Lawyers tend toward a pessimistic explanatory style (tends to be more accurate, etc.)
  • Key is to learn to toggle between pessimistic versus optimistic explanatory style as needed (ex. analyzing a contract versus interacting with a setback or a loss)
  • Optimism is especially relevant when facts are not concrete (give yourself the benefit of the doubt)


Remember: Dealing with stress helps you learn to deal better with stress.


Acknowledge it (NOTICE it); Recognize it; Use the energy it gives you (instead of wasting energy on how to get rid of it).



Good relationships may be the single most important factor in psychological well-being.

Physical response has been closely monitored to stressful situations: having somebody physically with you (supporting you) means you perceive things as more possible

SOCIAL SUPPORT – “[T]he perception or reality of having people in your life who care for you and will help you in stressful times, if you need it.”

It’s important to connect with others periodically (break away from the work)

Capitalizing: Sharing good news (boosts positive effects of the good news; depends on how others respond to it, too)

There IS a “positivity ratio” – Bad is stronger than good.  HOWEVER – must drown the negative in positive, and it will positively affect health, memory, confidence, etc.

Gratitude Strategies for a higher sense of well-being

  1. Weekly, write down 3-5 things you are currently grateful for;
  2. Why did these good things happen?
  3. Make this a HABIT.

Grit and Meaningful Work

Not necessarily “toughness”; it’s perseverance and working toward an end over time


Take your talent and work really hard and it becomes skill; take your skill and work really hard and it becomes achievement.


“Grit” must be geared toward a purpose with interest in process and purpose (higher-order goals)


Physical Health

Balance: “Eat, Move, Sleep” by Tom Rath

Mental Flexibility


The ability to cultivate what goes on in your head at any given moment without getting carried away with it. – not quite exact quote.


Meditation: improves working memory, decreases stress


Mindfulness fosters cognitive and emotional flexibility; important factors for optimism and resilience


It is a myth that adversity causes unhappiness; rather, it is HOW A PERSON REACTS that causes unhappiness.  Adversity Strikes, Behaviors are triggered, and Consequences happen, but RESPOND POSITIVELY TO THE ADVERSITY (so the behaviors that are brought up are positive and the consequences are mitigated)

Dec 17 16

Redacted Appellate Brief (Application of the Civil Code to Petitions for Removal from the Sex Offender Registry)

by merlin

The following is a redacted copy of a brief that was filed yesterday.  Unfortunately, I discovered three grammatical errors when I prepared it today, but the substance of it is good, I think: 





          COMES NOW Appelant XXXXX XXXXX, by and through counsel Merlinus Monroe, and makes and files this, his Brief of Appellant, and in support thereof, respectfully states the following:


Part One: Statement of Facts

Though Appellant XXXXX XXXXX filed his Second Petition for Removal From the Sexual Offender Registry on XXXXX XX, 20XX, he still cannot find out why the State is insistent that he remain on the Georgia Sex Offender Registry (hereinafter referred to as the “Registry”) even though he has been assessed as a Level One offender by the Sex Offender Registration and Review Board (hereinafter referred to as the “Board”), and has long since finished all incarceration, parole, and probation related to the underlying case.  An unwritten policy appears to be governing the prosecution’s actions in this case; he simply should not be released, according to counsel for the State, who stated that “[h]e should, in my world, register until the day he dies.”  See hearing tr., p. 11, 14-15, XXXXX XX, 20XX.   The reasons behind this stance are unknown without reviewing any evidence that may be formulated in response to Discovery inquiries regarding the degree and quality of rehabilitation undergone by Appellant, or any other evidence regarding animosity or partiality on the part of representatives of the State.

Appellant has moved the Court to apply the principles of civil law to the proceeding as seems to be the intent of the statutory scheme and the cases discussing it, since the nature of the remedy itself concerns whether or not he continues to be a danger in need of public warning after a criminal sexual conviction.  The State opposes his motion and the advocates of the State maintain that they are opposed to any release of sex offenders from the Registry, arguing that § 42-1-19 is a complete procedure and proceedings under the statute should be governed by principles of criminal law.  See hearing tr., p. 12, 18-20, XXXXX XX, 20XX.

The State’s position on these issues has been stated plainly in the negative, that “[h]e should, in my world, register until the day he dies.”  See hearing tr., p. 11, 14-15, XXXXX XX, 20XX.  Again, there appears to be a policy at odds with the grant of a method for release, designed to prevent that release.  See hearing tr., p. 12, 18-20, XXXXX XX, 20XX.

Part Two: Enumeration of Errors

  1. The Trial Court erred by denying Applicant’s request for the application of the Civil Practice Act in general, and civil law principles in specific, to his petition for removal from the Georgia Sex Offender Registry.
  2. The Trial Court erred by ruling that Section 42-1-19 of the Official Code of Georgia contains a complete process for the evaluation of any request for removal from the Georgia Sex Offender Registry.
  3. The Trial Court erred by declaring that the criminal law Discovery rules provided all information needed by the Court to make a determination for fitness for removal from the Georgia Sex Offender Registry.

Part Three:       Argument and Citation to Authority

Standard of Review:

          Every point raised in the Enumeration of Errors involves an incorrect decision by the trial court on a point of law, so the review made of these issues is de novo or independent review, and no deference is owed to the trial court’s ruling.  Suarez v. Halbert, 246 Ga.App. 822, 824(1), 543S.E.2d 733 (Ga. Ct. App. 2000).

  1. The Trial Court erred by denying Applicant’s request for the application of the Civil Practice Act in general, and civil law principles in specific, to his petition for removal from the Georgia Sex Offender Registry.

No new criminal act is involved in seeking release from the Georgia Sex Offender Registry; therefore, a request for removal should be governed by civil law mechanisms and not criminal law mechanisms.  The legislative history of the statutory framework indicates that it was considered by the Senate Non-Civil Judiciary committee, but this stems from the process of thinking of sex crimes only in terms of punishment and not in terms of public notification.  Much like the requirement that the Office of the District Attorney respond to petitions for removal, this represents primarily a function of convenience in terms of the likely source for records concerning the individual petitioner, combined with the widespread public misconception that sex offenders are particularly prone to recidivism and are particularly resistant to rehabilitation and therapy.

A. The Civil Practice Act governs an action for removal from a non-punitive civil notification registry, even if a criminal conviction was the condition precedent for inclusion on that registry.


Section 9-11-1 of the Official Code of Georgia says that the Civil Practice Act “governs the procedure in all courts of record of this state in all actions of a civil nature whether cognizable as cases at law or in equity”.  By logical consideration, the civil law provisions exclusively should apply to petitions for removal from a public notification registry; there is no criminal act directly involved, but rather the degree to which a person convicted of a prior criminal act has been sufficiently rehabilitated for readmission into society.  Inclusion on the Georgia Sex Offender Registry (hereinafter referred to as the “Registry”) is not intended as a form of punishment, is not an enhanced punishment, and it is not concerned with guilt or innocence unless a new crime is involved.  Rainer v. State, 286 Ga. 675, 690 S.E.2d 827 (Ga. 2010); Hollie v. State, 298 Ga.App. 1, 679 S.E.2d 47 (Ga. Ct. App. 2009).  By its very nature, it is regulatory; the law is decidedly not intended to be punitive.  Acts 2006, Act 571, § 1, eff. July 1, 2006.

It is, however, premised on the occurrence of designated sex crimes, and “[i]t is difficult, if not impossible, to name a group in the United States that is more reviled than sex offenders.”  Corey Rayburn Yung, Sex Offender Exceptionalism and Preventive Detention, 101 J. Crim. L. & Criminology 969, 988 (2011).  This attitude of revulsion affects efforts by persons convicted of sex crimes to lessen their punishment.  “The stigma of such a classification seems apparent, and it cannot, we think, seriously be disputed.”  Gregory v. Sexual Offender Registration Review Board, 784 S.E.2d 392 (Ga. 2016)(Due Process demands that an evidentiary hearing be afforded upon request to persons classified as sexually dangerous predators), and this attitude seems to have colored the response of the State to this issue.

The position taken by the advocates of the State on this issue is clear: “[h]e should, in my world, register until the day he dies” (Hearing tr., p. 11, 14-15, XXXXX XX, 20XX).  Fortunately for the concept of Justice, the action itself is concerned with degrees of rehabilitation, and not with inflexible, unending punishment.  Reality, not propaganda, shows that “[s]ex offenders were less likely than non-sex offenders to be rearrested for any offense — 43 percent of sex offenders versus 68 percent of non-sex offenders”.  5 Percent of Sex Offenders Rearrested for Another Sex Crime Within 3 Years of Prison Release, DOJ 03-123 (emphasis supplied; misleading title at odds with finding quoted from article statistics).  In fact, the facts themselves, as distinguished from the prejudices that likely drive the State’s actions in this case, have shown that sex crimes overall are reducing in amount.  “In 2008, the estimated number of forcible rapes (89,000) is noted as the lowest figure in the last 20 years.”  Keith Soothill, Sex Offender Recidivism, 39 Crime & Just. 145, 153 (2010).  When examining this statistic – forcible rape, as a particular subset of criminal sexual act – it is important to also note that “recidivism rates are higher for rapists than for child molesters.”  Keith Soothill, Sex Offender Recidivism, 39 Crime & Just. 145, 160 (2010)(quoting Hanson, R. Karl.  2002. “Recidivism and Age–Follow-up Data from 4,673 Sexual Offenders.” Journal of Interpersonal Violence 17(10):1046-62.).  To clarify, Appellant was convicted of child molestation.  In general, crimes of maltreatment and victimization perpetrated against children, “declined as much as 40-70 percent from 1993 until 2004, including sexual abuse, physical abuse, sexual assault, homicide, aggravated assault, robbery and larceny.”  Finkelhor, David, and Lisa Jones. 2006. “Why Have Child Maltreatment and Child Victimization Declined?” Journal of Social Issues 62(4):685-716, p. 685.

In 1996, the popular view taken on sex crimes was that “[s]ex offenders are the most likely to repeat their offense and the least likely to be rehabilitated”. Karen Kay Harris, General Provisions: Require Registration for Certain Offenders, 13 Ga. St. U. L. Rev. 257 (1996).  The opposite is true when the issue is examined factually, rather than emotionally.  “[T]here is ample evidence that sex offenders may have some of the lowest rates of recidivism compared with other types of criminal offenders.”  Carol L. Kunz, Comment, Toward Dispassionate, Effective Control of Sexual Offenders, 47 Am. U. L. Rev. 453, 472 (1997).  In fact, “as Hanson and Bussière (1998) indicate …, sexual offenders are more likely to reoffend with a nonsexual offense than with a sexual offense.”  Hanson, R. Karl, and Monique T. Bussière. 1998. “Predicting Relapse: A Meta-analysis of Sexual Offender Recidivism Studies.” Journal of Consulting and Clinical Psychology 66(2):348-62.  When Section 42-1-19 was enacted, the legislature provided a means for release from the Registry, whether the representatives of the State agree with their decision or not.  The Courts have recognized that “recent legislative enactments constitute the most objective evidence of a society’s evolving standards of decency and of how a society views a particular punishment”.  Humphrey v. Wilson, 652 S.E.2d 501, 507 (Ga. 2007)(finding that the punishment imposed by the State for consensual oral sex between two teenagers was unconstitutional).

Fortunately for persons on the Registry, the guidelines that have been enacted in response to crimes of a sexual nature over the past twenty years appear to take some notice of the facts.  “The sex offender registry requirement is regulatory and not punitive in nature.” See United States v. Kebodeaux, 133 S.Ct. 2496, 2503 (2013)( describing the federal sex offender registry as civil); Rainer v. State, 286 Ga. 675, 676690 S.E.2d 827 (2010)(“the [sex offender] registration requirements themselves do not constitute punishment….”); Wiggins v. State, 288 Ga. 169, 172 (2010)(“sex offender registry requirement is regulatory and not punitive”).  This pattern is consistent across the cases that address the issue.  “In fact, the Sex Offender Registry itself is civil in nature.”  Taylor v. State, 304 Ga. App. 878, 883 (Ga. Ct. App. 2010).  These statements are unambiguous; at the highest level of the federal government and at all State levels, the Registry is not intended to be a criminal punishment.

The difficulty that arises from placing the responsibility for responding to petitions for release from Registry requirements with the Office of the District Attorney is that the terms used by the statute become meaningless when the representatives of the State only argue for greater punishment and retribution.  “A criminal case necessarily involves the question of guilt or innocence of the party accused.  But in the proceedings which we are asked to review here, and which reached a finality before the commencement of the trial under the indictment, neither the question of the guilt or innocence of the prisoner was involved, nor what punishment should be meted out to him.”  Wilburn v. State, 140 Ga. 138, 78 S.E. 819, 819-21 (1913)(responding to applicability of civil venue change rules in a criminal prosecution).

This is the explanation that is most readily available for the stance taken by the State in this matter, that “[h]e should, in my world, register until the day he dies” (Hearing tr., p. 11, 14-15, XXXXX XX, 20XX).  If sex offenders were truly incorrigible and impossible, or at least resistant, to reform, that position might make some sense.  It is, sadly, the view that is still prevalent among the population at large today, and it is apparently the view that controls the actions of the Office of the District Attorney in XXXXX County, Georgia.  “Americans view sex crimes against children as the most heinous, and offenders are depicted as “outcasts, perverts, or animals, not worthy of the basic human rights our Constitution guarantees.”  Carol L. Kunz, Comment, Toward Dispassionate, Effective Control of Sexual Offenders, 47 Am. U. L. Rev. 453, 454 (1997).  This view is likely perpetuated by the persons in charge of rehabilitation and therapy for convicted persons.  “[T]here is no “plague” of child abduction. Instead, there is an “exponential mythical view” that blows the extent of child sexual abuse out of proportion.”  Christopher G. Bown, Book Note, Erotic Innocence: The Culture of Child Molesting, 2 J.L. & Fam. Stud. 199 (2000), supra note 2, at 200 (discussing James R. Kincaid, Erotic Innocence: The Culture of Child Molesting (Duke Univ. Press 1999)).

B. The use of a non-civil judiciary committee by legislators and of criminal prosecution organizations does not change the civil nature of a petition for Registry removal.

Though it speaks of using stronger standards in juvenile court deprivation hearings, the majority opinion in In re Winship is instructive in this situation.  “We made clear … that civil labels and good intentions do not themselves obviate the need for criminal due process safeguards in juvenile courts, for ‘(a) proceeding where the issue is whether the child will be found to be ‘delinquent’ and subjected to the loss of his liberty for years is comparable in seriousness to a felony prosecution.’”  397 U.S. 358, 365-366, 90 S. Ct. 1068, 1069-84, 25 L. Ed. 2d 368 (1970)(using an inaccurate burden of proof to evaluate a defendant was a violation of Due Process).  The burden of proof that should be required in the instant case is the preponderance of the evidence standard described in the statute, and not the absolutism of the criminal standards that are actually being applied.  In this situation, the use of a civil burden of proof for a person seeking removal from the Registry is a genuine safeguard for their Constitutional rights, and the use of criminal prosecution language cannot remove the civil protections of the law.

“Indeed, the trial judge’s action evidences the accuracy of the observation of commentators that ‘the preponderance test is susceptible to the misinterpretation that it calls on the trier of fact merely to perform an abstract weighing of the evidence in order to determine which side has produced the greater quantum, without regard to its effect in convincing [her] mind of the truth of the proposition asserted.’”  Id. at 367-368.  This is exactly the situation in the case at bar, because the preponderance standard is actively being misinterpreted by making it, in fact, a higher standard, rather than applying it to look at the quantum of evidence required in this situation.  The statute itself provides the relevant analysis to be made, and demonstrates its inadequacy for this task.  While subsection (c) requires that a person who meets the section’s requirements be considered for release, it does not tell what constitutes sufficient eligibility, no matter how readily they can meet the conditions of subsection (a).  See generally OCGA § 42-1-19(c). 

          The text of subsection (c) is below:

“(c)(1) An individual who meets the requirements of paragraph (1), (2), or (3) of subsection (a) of this Code section shall be considered for release from registration requirements and from residency or employment restrictions.

(2) An individual who meets the requirements of paragraph (4) of subsection (a) of this Code section may be considered for release from registration requirements and from residency or employment restrictions only if:

(A) Ten years have elapsed since the individual completed all prison, parole, supervised release, and probation for the offense which required registration pursuant to Code Section 42-1-12, or

(B) The individual has been classified by the board as a Level I risk assessment classification, provided that if the board has not done a risk assessment classification for such individual, the court shall order such classification to be completed prior to considering the petition for release.”  See OCGA Section 42-1-19(c)(emphasis supplied).

The problem with the application of strictly criminal law procedural rules to a petition for release from the registration requirement of the Registry is that the criminal law Discovery tools do not concern themselves with discovering either the degree of rehabilitation or the nature of efforts made to qualify for removal from the Registry, nor do they look to potential interference from human factors or prejudice in the parties involved that might interfere with an objective assessment of rehabilitation.  Rather, the criminal law concerns itself only with a strict “yes” or “no” inquiry and ignores the concepts of rehabilitation.  These concepts are necessarily judged on a sliding scale.  The danger of applying an incorrect burden without adequate protection for the rights of the accused is present in the probation context, and cases such as Johnson v. Boyington, 273 Ga. 420, 420-23, 541 S.E.2d 355, 355-57 (Ga. 2001)(probation revocation upheld only if it comports with Due Process safeguards) illustrate the potential for harm to the Due Process rights of the accused when a judge is left to decide whether a person is guilty or innocent without quantifying their reasons for reaching a decision.  The same kind of danger is presented by deciding Appellant’s situation under the rules of criminal law, rather than deciding the case through the filter of civil law procedural guidelines, as OCGA Section 9-11-1 commands.

The question then arises what the nature of the Due Process interest implicated might be.  “To decide what process is due, we apply the familiar three-factor test that the United States Supreme Court identified in Mathews, 424 U.S. at 335(III)(A), 96 S.Ct. 893, weighing “(1) the private interest affected; (2) the possibility of erroneous deprivation using the established procedure and the probable value of additional procedural safeguards; and (3) the government’s interest in the procedure or the burden of providing greater procedural protections.””  Gregory v. Sexual Offender Registration Review Bd., 784 S.E.2d 392, 400 (Ga. 2016).  The Georgia Supreme Court was referring to the 1976 case of Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, whose test for Due Process interests has since been disapproved of by the courts of New Mexico, but which is still a valid test in Georgia.  Every one of the three factors used by the Court in Mathews, and subsequently re-applied by the Georgia Supreme Court in Gregory, weighs in favor of protecting the Due Process rights of the person seeking removal from the Georgia Sex Offender Registry by applying the laws of civil procedure to their petition, given the tremendous burden created on their liberty interest, the perpetuation of that harm without any countervailing justification by applying criminal law standards, and the interest of the government in seeking proper procedural safeguards for every citizen, whether they are photogenic or sympathetic or otherwise.

The legislative history of Section 42-1-19 indicates that it was assigned to the Non-Civil Judiciary Committee in the Senate for review, but this appears to be a simple matter of convenience since the panel to which a law dealing with a Registry for persons convicted of sexual crimes would logically be considered is the committee that dealt with laws concerning sexual crimes.  HB 571, GA S., 2010 Reg. Sess. No. 9, One hundred fiftieth General Assembly, 2010.  Likewise, Section 42-1-19 places the responsibility for responding to a petition seeking removal from the Registry with the Office of the District Attorney for the jurisdiction which convicted the applicant.  See OCGA § 42-1-19(b)(2).  As the agency that prosecuted the underlying crime itself, the Office of the District Attorney necessarily has access to the information that would be considered necessary to assess a request for removal from the Registry, and since the Registry arises from an underlying criminal conviction, it is logical that the statutory standards were considered, in their infancy, by the Non-Civil Judiciary Committee.  Convenience, therefore, drives this decision-making process. 

However, “there is no magic in nomenclature” in the law, a pleading being judged “by its function rather than by its name”, and a similar approach is urged with regards to the interpretation of the origins of this statute.  Holloway v. Frey, 202 S.E.2d 845, 848, 130 Ga.App. 224 (Ga. Ct. App. 1973).

2.  The Trial Court erred by ruling that Section 42-1-19 of the Official Code of Georgia contains a complete process for the evaluation of any request for removal from the Georgia Sex Offender Registry.

The trial court implied by its statements that it agrees with the State’s position that the evidence necessary to make a decision on a petition for removal from the Registry already exists and is in the possession of Applicant, and that any response that the evidence that would be requested from the State for determining this issue is not in their possession is an admission that such evidence does not exist.  See hearing tr., p. 6, 6-23, XXXXX XX, 20XX.  However, the evidence that is needed from the State is more than simple matters of guilt or innocence concerning the commission of a qualifying crime, because that is not at issue in this kind of case; rather, what is needed is information oriented toward any prejudices borne against Applicant by those making the evaluations, the nature of any rehabilitation that the State has provided, and the general statistics and standards used by their office to approve or oppose requests for release from the Registry (See Supplemental Brief Illustrating Application of Civil Practice Act to Sex Offender Registry, Ex. A, proposed Interrogatories, generally).  This is a matter of concern for the Court, and seeking this caliber of information is a matter of simple logic.

     In this case, an analysis of the kind of determination that the Court is called upon to make in comparison with the kind of information that is provided using only the provisions of OCGA Section 42-1-19 as a guide shows how little the statute allows for a successfully completed sentence to matter in making the determination. 

Subsection (a) asks the following information to establish eligibility for relief:

“(1) Has completed all prison, parole, supervised release, and probation for the offense which required registration…” and is confined to a care facility, is disabled, or otherwise seriously incapacitated,

“(2) Was sentenced for a crime that became punishable as a misdemeanor…” and is otherwise qualified for consideration for release,

“(3) Is required to register solely because he or she was convicted of kidnapping or false imprisonment involving a minor and such offense did not involve a sexual offense against such minor or an attempt to commit a sexual offense against such minor…; or”

“(4) Has completed all prison, parole, supervised release, and probation for the offense which required registration pursuant to Code Section 42-1-12…” and meets certain other criteria.  See generally OCGA § 42-1-19(a).

          Unfortunately, these are merely positive qualification matters for consideration that, once answered affirmatively, the trial judge is free to disregard.  Civil Discovery means, such as those submitted to the Court as Exhibit B of Supplemental Brief Illustrating Application of Civil Practice Act to Sex Offender Registry, can address these same questions, establish greater dimensions to the potential responses, and present information relating to the degree they have been satisfied by placing the circumstances that surround them before the Court for full assessment.  They can also help to guide the Court to make the substantive inquiries that may be needed and to direct the Court’s inquiries toward relevant avenues of rehabilitation, of manner and methodology and sufficiency of therapy, and of performance in the community at large.  This kind of information would otherwise require experts and evidence not necessarily in the reach of a person convicted of a sex crime, subject to restrictions on their employment and residency.  Rehabilitation and therapy inquiries are necessarily central to this analysis, and they are central for the judge concerned, as well, since they involve the actual predictive relapse danger and history of the person seeking release.  The kinds of inquiries that could be made under civil law Discovery mechanisms would necessarily seek information on “substance use disorders, personality disorders, and psychoses diagnosed during admission to hospital up to 10 years before the onset of registered sexual offending”.  Långström, Niklas, Gabrielle Sjostedt, and Martin Grann. 2004. “Psychiatric Disorders and Recidivism in Sexual Offenders.” Sexual Abuse: A Journal of Research Treatment 16(2):139-50, p. 148.  These factors “were found among 1.4-7.8 percent in an unselected cohort of sexual offenders sentenced to imprisonment”, but they are not things on which criminal Discovery provides information.  Id.    To determine whether rehabilitation has been successful or not, it has been shown that the appropriate risk factors for re-offense must be targeted, which necessarily means that there must be an effort by the State, as the arbiter of a convicted person’s rehabilitation and reintegration into society, to facilitate that effort.  See Hanson, R. Karl, and Andrew J. R. Harris. 2000. “Where Should We Intervene? Dynamic Predictors of Sexual Offense Recidivism.” Criminal Justice and Behavior 27(1):6-35. 

These issues of rehabilitation and reintegration into society are exactly the reason for a determinate sentence following conviction and a straightforward method of release from the Sex Offender Registry, and the only way to get this information before the Court is to provide for its revelation during pretrial procedure.  “Nothing … remotely suggests that Congress intended … courts to consider only postsentencing evidence detrimental to a defendant while turning a blind eye to favorable evidence of a defendant’s postsentencing rehabilitation.”  Pepper v. United States, 131 S.Ct.1229, 1249 (2011).  The positive things a person has done since they were sentenced are, if anything, more relevant to the Court’s evaluation than the monstrousness of the criminal act that caused their inclusion on the Registry.

The information that the Court uses for the actual evaluation of the applicant seems broad in its scope, as it is listed in subsection (d) and supplemented by the hearing available on request in subsection (e), but nothing in the Code section talks about what weight the Court should give to the evidence introduced, nor about the quantum of evidence necessary for the petition to be either granted or denied.  See generally OCGA § 42-1-19(d)-(e).  If there are other factors aside from the simple determination of criminal history present in an individual offender’s case, there will be no evidence that the person can present without having sufficient means for inquiry beyond their criminal history to establish this.  The statute itself only talks about what the court “may consider”, and it does not direct that there be any inquiry made as to potential aggravating circumstances or mitigating factors, or even a requirement that the court actually make note of evidence of those factors that the petitioning party present.  It is not conducive to a qualitative determination.

The text of subsections (d) and (e) is below:

“(d) In considering a petition pursuant to this Code section, the court may consider:

  • Any evidence introduced by the petitioner;
  • Any evidence introduced by the district attorney or sheriff; and
  • Any other relevant evidence.

(e) The court shall hold a hearing on the petition if requested by the petitioner.”

OCGA § 42-1-19(d)-(e).

This allows a petition to be denied as long as it is “considered”.  The Code section appears to permit a wide range of potential evidence to be introduced, but it does not provide access to truly relevant information.   

This Code section is incomplete for purposes of evaluating a request to be released from the registration requirements of the Registry because it both makes no mention of the kinds of Discovery methods that are to be used, nor does it describe the service beyond the initial petition for removal.  The issue of service methods was raised in the trial court and the State snidely implied that Appellant had improperly served the State (Hearing tr., p. 15, 7-10, XXXXX XX, 20XX).  It is evident that the State has failed to see an important distinction; service of papers beyond the initial Petition is not provided for by the statute itself.  See OCGA § 42-1-19(b)(2) (discussing only service of “[s]uch petition”). 

Similarly, the State is under no obligation to provide any meaningful evaluations or behavioral assessment and rehabilitation to persons on the Registry, thus providing them with no incentive to remove persons from the Registry at all.  The transcript quoted above shows the position of the State on the issue of Discovery precisely, and proves the truth of this statement about the position of the State on these issues, but it also demonstrates their callous disregard for the difficulties of impoverished former criminal defendants to seek help being released from the Registry or even to serve pleadings that might help them prove their rehabilitation in the first place if they do not have a poverty waiver or other similar service cost arrangement in place.  See hearing tr., p. 14, 16-25, XXXXX XX, 20XX.

          In fact, the only part of OCGA 42-1-19 that seems to allow for the Court to exercise qualitative discretion, as opposed to a simple “yes” or “no” quantitative ruling on the petition, is subsection (f)’s allowance for a Court to take a position of caution by issuing a limited Order granting a restrictive level of freedom to an offender, since they have sought no evidence under the statute regarding the rehabilitation of the offender and the State has not been compelled to present any.  Under subsection (f) of Section 42-1-19, the court is permitted to “issue an order releasing the individual from the registration requirements or residency or employment restrictions, in whole or in part, if the court finds by a preponderance of the evidence that the individual does not pose a substantial risk of perpetrating any future dangerous sexual offense.  The court may release an individual from such requirements or restrictions for a specific period of time.”

There are no provisions for Discovery of pertinent information for the inquiry that Section 42-1-19 calls for from the court, rendering the provisions of subsection (d) that permit a petitioner to present evidence meaningless, even if the court decides that it will choose to consider the information presented.  The lack of any provisions for service beyond the initial pleading and the lack of any provisions for the Discovery of relevant information render OCGA Section 42-1-19 an incomplete remedy, and it must be supplemented by the provisions of the Civil Practice Act to properly vindicate the relief sought by a petitioner for release.

3. The Trial Court erred by declaring that the criminal law Discovery rules provided all information needed by the Court to make a determination for fitness for removal from the Georgia Sex Offender Registry.

OCGA Section 24-1-1 states the mission of Discovery laws in Georgia in plain language.  That section says “[t]he object of all legal investigation is the Discovery of truth.”  As has been shown, this is an unlikely result when criminal Discovery rules are relied upon to learn matters such as degrees of rehabilitation or response to therapy.  The criminal rules are oriented toward uncovering the evidence that shows whether a crime has been proven sufficiently by the State; there is no new crime involved in determining whether a person can be released from the Registry.  The civil Discovery rules, however, are concerned with the circumstances that have arisen in a person’s life since the time they were convicted of a qualifying act.  This distinction is readily apparent when these contrasting schools of thought are analyzed.  This is the kind of evidence that was discussed indirectly in State v. Randle, 331 Ga.App. 1 (Ga. Ct. App. 2015), but while the Court found that there was sufficient evidence presented in that case to release Randle from the Registry, it only described self-serving testimony and referred expressly to therapy, neither of which are available to the Court in the case at bar without further examination of the Discoverable evidence, and the prejudices of the State actors in this case show the evidence is not forthcoming.

The right to Discovery under the criminal laws, and what that right specifically entails, is set out in detail in Article 1, § 1, ¶ XIV of the Georgia Constitution:

Every person charged with an offense against the laws of this state shall have the privilege and benefit of counsel; shall be furnished with a copy of the accusation or indictment and, on demand, with a list of the witnesses on whose testimony such charge is founded; shall have compulsory process to obtain the testimony of that person’s own witnesses; and shall be confronted with the witnesses testifying against such person.

The Court does not need to read the section above any further than learning that the rights are for a person “charged with an offense against the laws of this state”, because there is no offense in this kind of case before the trial court and the Discovery provisions cited cannot, therefore, be used by a person seeking removal from the Registry.  They have been accused of no crime, and the Discovery tools that are provided by the criminal law in Georgia fail to provide any information as to the character of the person being evaluated for dangerousness under the Registry, or the potential prejudices and preferences of the people making the evaluation of dangerousness, themselves. 

This is an area of inquiry that has been specifically addressed in the scholarly information available regarding sex offender recidivism, but it has been ignored by the statutes, though crucial to determination of possible recidivism.  In their 1995 study of the topic, Milner and Campbell specifically addressed potential personal contributions to a biased evaluation of recidivism likelihood that might be made by psychiatrists or probation officers that provide their views on individual cases.  Milner, Joel S., and Jacquelyn C. Campbell. 1995. “Prediction Issues for Practitioners.” In Assessing Dangerousness: Violence by Sexual Offenders, Batterers, and Child Abusers, edited by Jacquelyn C. Campbell. Thousand Oaks, CA: Sage.  Specifically, they noted that “[a]lthough these professionals will have access to the same information on past criminal history, they may also take into account a whole set of personal factors such as the degree of remorse, demeanor, family support, and so forth to determine risk.”  Keith Soothill, Sex Offender Recidivism, 39 Crime & Just. 145, 175 (2010).  This is information that is specifically available for inquiry under the civil law Discovery mechanisms in the Official Code of Georgia.  Though examples of these inquiries were provided by Appellant to the trial court, they apparently remain unreviewed. 

The criminal Discovery provisions provide no means for a person to establish that he is rehabilitated from his acts to a sufficient degree that he should be released from the Registry.  Nothing this power of criminal Discovery granted by the Georgia Constitution addresses other than the right to counsel is relevant to the proceeding.

This may be readily contrasted with the powers of civil Discovery, which address the substantive concerns of the involved parties, and not only the issue of guilt or innocence of the accused.  This is actually the aim of the action itself, since the issue of criminality was addressed in the underlying qualifying conviction.  According to Section 9-11-26(b)(1), “[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter.”

In evaluating a claim for release from the Georgia Sex Offender Registry, the Court is being called upon to make a very substantive determination, which goes far beyond the sordid details of the criminal sexual act that first required registration.  The crime the petitioner was convicted for is not in doubt, and the only relevance it should bear to their current request is the fact of its occurrence and the degree to which they are rehabilitated from it.  The criminal law Discovery provisions do not provide any evidence that contributes in any way toward this determination, and they should not apply to an action of this nature.


          It is necessary that the Civil Practice Act govern an action brought for removal from the Georgia Sex Offender Registry because the action itself is regulatory in nature and not punitive or criminal, and as such is governed by the provisions of that Code section.  It is necessary that the Civil Practice Act govern the action brought because the provisions of OCGA 42-1-19 do not provide a complete method for evaluating a request for removal from the Sex Offender Registry nor do they provide a complete method of Discovery or of service of pleadings beyond the initial petition.  Lastly, it is certain that criminal law Discovery rules fail to provide the truth needed by the court to make a determination about rehabilitation, and instead act to restrict the information available to the court in making its evaluation.  Applicant confidently requests this Court grant this interlocutory appeal and overturn the ruling of the trial court denying his motion to apply civil law principles to a petition for release from the Georgia Sex Offender Registry.


Respectfully submitted, this XXth day of XXXXX, 20XX.

                                                                                 /s/Merlinus Monroe

Merlinus Goodman Monroe, LLC           Merlinus Monroe

Attorney At-Law                                             Georgia Bar No. 516401

Post Office Box 365                                       Counsel for Appellant

Dahlonega, Georgia 30533                                  Telephone: (678) 943-3532