In Buffin v. City and County of San Francisco, published January 13, 2022, the 9th Circuit Court of Appeals affirmed a district court decision awarding $1,950,000 in attorney fees against the State of California under 42 U.S.C. section 1988. A class action was brought under 42 U.S.C. section 1983 against a county sheriff for enforcing the county's bail schedule. The action alleged that the enforcement of the bail schedule without consideration of financial circumstances violated the Fourteenth Amendment. Under the statutory scheme, when a suspect was arrested without a warrant and had not had his or her first hearing, bail is set by the sheriff in an amount dictated by a uniform countywide schedule of bail. State law imposes a duty upon the Superior Court of each county--an arm of the state--to adopt the county-wide bail schedule. The county sheriff must comply with the schedule, without discretion. The sheriff and the state attorney general were named as defendants. The district court ruled that the sheriff acted on behalf of the state in enforcing the bail schedule. As a state actor, the sheriff received Eleventh Amendment immunity from monetary damages, as did the Attorney General. But the class could seek injunctive or declaratory relief against the sheriff in her official capacity under Ex Parte Young, on the ground that the sheriff enforced the allegedly unconstitutional law. The Attorney General was dismissed. The Attorney General did not take over the defense of the action. The class prevailed on summary judgment. The parties agreed to the amount of the attorney fees. The district court then decided that the state was liable for the attorney fees. The state appealed.
The Court of Appeals ruled that the district court had acted within its discretion. Case law established that the state's Eleventh Amendment immunity from monetary damages under 42 U.S.C. section 1983 did not bar its liability for attorney fees under section 1988. An issue of first impression in the 9th Circuit was who should be liable for attorney fees in this situation--the state, the county, or the official-capacity defendant. The state argued that because it was not a party to the suit, it should not be held liable for the fees. The 9th Circuit followed the reasoning of sister circuits and ruled that because the official-capacity defendant, the sheriff, was sued for acting as a discretionless instrument of the state, the state was properly held liable for the fees. The state had both notice and an opportunity to contest the fees, although it did not do so.
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