42 U.S.C. s. 1988 provides has discretion to “allow the prevailing party, other than the United States, a reason- able attorney’s fee” in a civil rights lawsuit filed under 42 U. S. C. §1983. In Hughes v. Rowe, the Court interpreted that provision such that a prevailing defendant can recover fees only if “the plaintiff ’s action was frivolous, unreasonable, or without foundation.”
In May, the Idaho Supreme Court considered a 1983 suit, and rejected the Plaintiffs argument that “attorney fees cannot be awarded under this statute unless the action was frivolous, unreasonable, or without foundation at the time the complaint was filed.” The Idaho Supreme Court concluded that it was not bound by Hughes because the “frivolous” limitation was not in the statute, but was added by SCOTUS as a gloss.
The statute does not contain any such limitation. It permits the award of attorney fees to the prevailing party in the discretion of the court. In Hughes v. Rowe, 449 U.S. 5 (1980), the Supreme Court held that attorney fees could not be awarded to a prevailing defendant in a case brought pursuant to 42 U.S.C. section 1983 unless the plaintiff’s action was frivolous, unreasonable, or without foundation. Id. at 14. However, Hughes and Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978), upon which it was based, were appeals from cases in federal district courts. Although the Supreme Court may have the authority to limit the discretion of lower federal courts, it does not have the authority to limit the discretion of state courts where such limitation is not contained in the statute. Therefore, in cases filed in the Idaho state courts seeking to recover under 42 U.S.C. section 1988, the court has discretion in deciding to award attorney fees to the prevailing party, whether the prevailing party is the plaintiff or the defendant.
The plaintiff filed a cert petition in October. According to the Brief in Opposition, the “The Idaho Supreme Court went on to state sua sponte” this conclusion. The BIO confessed error on this point:
If the sole question presented on the petition for a writ of certiorari is, as framed by Petitioner, “whether the Idaho Supreme Court correctly concluded that Hughes and Christiansburg do not bind state courts because this Court ‘does not have authority to limit the discretion of state courts where such limitation is not contained in the stat- ute,’ ” the inquiry can end here and summary disposi- tion may be appropriate. Respondents are unable to locate any authority or case law to support that assertion of the Idaho Supreme Court.
Today, the Court GVR’d the case in a terse, but tense two-page decision that relies on Martin v. Hunter’s Lessee. You don’t see that every day! Here is the key analysis:
Section 1988 is a federal statute. “It is this Court’s responsibility to say what a [federal] statute means, and once the Court has spoken, it is the duty of other courts to respect that understanding of the governing rule of law.” Nitro-Lift Technologies, L. L. C. v. Howard, 568 U. S. ___, ___ (2012) (per curiam) (slip op., at 5) (quoting Rivers v. Roadway Express, Inc., 511 U. S. 298, 312 (1994) (internal quotation marks omitted)). And for good reason. As Justice Story explained 200 years ago, if state courts were permitted to disregard this Court’s rulings on federal law, “the laws, the treaties, and the constitution of the United States would be different in different states, and might, perhaps, never have precisely the same construction, obligation, or efficacy, in any two states. The public mis- chiefs that would attend such a state of things would be truly deplorable.” Martin v. Hunter’s Lessee, 1 Wheat. 304, 348 (1816).
The Idaho Supreme Court, like any other state or fed- eral court, is bound by this Court’s interpretation of federal law. The state court erred in concluding otherwise. The judgment of the Idaho Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
The Supreme Court of Idaho is bound by the Supreme Court of the United States because the Supreme Court of the United State says so. Note that although the Cert Petition leads off with the Supremacy Clause, the Per Curiam decision wisely doesn’t even mention it. Why? Because the Supreme Clause says nothing about the Supreme Court (as I spent 5 minutes drilling into my students last week). It provides.
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
It does not say that the Supreme Court is the final expositor of the supreme law of the land. That is a role the Court has assumed for itself. State and federal Judges are bound to the Constitution, not to the Supreme Court. Those aren’t the same thing.
It is a common mistake to conflate the day. For example Justice Breyer erred last month when he wrote that lower courts are bound by SCOTUS because of the supremacy clause. The author of today’s Per Curiam opinion–I am going to guess the Chief assigned this institutional decision to himself–did not make such a foundational mistake.
And by the way, it wasn’t Marbury v. Madison that established this principle of SCOTUS supremacy. Nor was it Martin v. Hunter’s Lessee, although it can be inferred from that case. It was Cooper v. Aaron that first announced this principle. Note that Cooper v. Aaaron didn’t even cite Martin, for good reason–it didn’t provide the rule of decision.
Update: Howard Wasserman writes that the Court may have been sending a signal to the Supreme Court of Alabama:
Although I try not to read tea leaves, this looks like a shot across the bow of the Supreme Court of Alabama. That court seems itching to following Idaho with respect to Obergefell and is being urged to do so by the litigants and by Chief Justice Roy Moore. James suggests that SCOTUS will quickly and easily dispose of that effort.