Supreme Court of Virginia v. Consumers Union of the United States, Inc.
Headline: Court denies review in dispute over attorney fees, leaving a reinstated fee award against the Virginia Supreme Court in place despite Chief Justice Burger’s dissent urging review to protect judges’ immunity.
Holding: The Court denied the petition for review, leaving the lower-court reinstatement of attorney’s fees against the Virginia Supreme Court in place while Chief Justice Burger dissented, arguing judges retain immunity from such fee awards.
- Leaves the lower-court attorney-fee award against the Virginia Supreme Court in place.
- Keeps unresolved whether mere enforcement authority justifies fee awards against judges.
- Maintains split views in lower courts about judges’ fee liability.
Summary
Background
A consumer magazine sued the Virginia Supreme Court, its chief justice, and the State Bar in 1975, claiming parts of the State Bar Code violated the First and Fourteenth Amendments. The magazine won declaratory and injunctive relief. The remaining question was whether the Virginia Supreme Court should pay the magazine’s attorney’s fees under the 1976 attorney-fee law (42 U.S.C. § 1988).
Reasoning
The central question is whether a judge or a state supreme court can be ordered to pay a prevailing party’s attorney’s fees when the alleged basis is the court’s power to enforce rules, rather than proven enforcement actions. The Supreme Court previously vacated a fee award because the fee ruling rested on the court’s legislative act of adopting rules, which is immune from suit. On remand, a District Court and a divided Court of Appeals reinstated the fee award based on the court’s alleged enforcement role. The Supreme Court denied review of that reinstatement, with Chief Justice Burger dissenting and arguing that judges enjoy long-standing immunity from monetary liability and that Congress did not clearly strip that immunity in the fee statute.
Real world impact
The denial of review leaves the lower-court decisions reinstating attorney’s fees in place for now. The larger legal question—whether mere existence of enforcement power can support fee awards against judges—remains unresolved by the Supreme Court and may continue to divide lower courts.
Dissents or concurrances
Chief Justice Burger dissented from the denial, urging the Court to decide whether judges can be assessed attorney’s fees absent clear statutory language or proof they actually enforced the challenged rules.
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