Tobeluk Ex Rel. Tobeluk v. Lind

RABINOWITZ, Justice,

with whom BOO-CHEVER, Chief Justice, joins, dissenting, in part.

I am in agreement with the disposition of the Civil Rule 82 facet of this appeal but cannot join in the majority’s affirmance of the superior court’s refusal to award attorney’s fees pursuant to 42 U.S.C. § 1988. Based upon controlling federal criteria governing the award of attorney’s fees in civil rights litigation, I am of the view that the superior court abused its discretion by denying any award of attorney’s fees to appellants since the consent decree resolved public issues of significant magnitude.1 I reach this conclusion for the following reasons.

In my view, the extensiveness of the relief awarded appellants providing for the elimination of alleged inequities in secondary education is impressive.2 Also, I think *882it clear that the institution of this litigation hastened the provision of local secondary schools in rural Alaska.3 Although the ap-pellee Board of Education argues that it had a policy since 1970 to provide small secondary schools in Native villages, and that this policy was frustrated only by a lack of construction funds, appellants correctly point out that implementation of this policy was unnecessarily slow prior to the entry of the consent decree:

The consent decree lists 86 villages where, the parties estimate, local secondary [instruction] can be provided with only minimal construction, if any. As the Statement of Agreed Facts makes clear, local secondary instruction of students in these 36 small villages can be and could have been accomplished less expensively than instruction in the boarding system. Similarly, there are a number of other villages on Schedule C of the consent decree wherein it is possible, and doubtless has been possible for years, to implement local secondary programs — at least on an interim basis — in existing public facilities. But the defendants, incredibly enough, have never until the settlement of this lawsuit undertaken even the rudimentary step of conducting an inventory to determine in each village whether an existing public facility could accommodate a local secondary program.4

Further, I do not believe that the circumstance of implementation of the consent decree being dependent upon passage of appropriate bonding constitutes a “special circumstance” which would justify a denial of attorney’s fees. By upholding the denial of attorney’s fees on the facts of the present case, the majority, in effect, would impose a requirement that plaintiffs in civil rights cases procure a stipulation in the settlement agreement as to liability of the defendant in order to collect attorney’s fees as the “prevailing party.”5 Such a strict interpretation of the term “prevailing party” in 42 U.S.C. § 1988 is inconsistent with express congressional intent that section 1988 be applied to settlement cases,6 and would substantially reduce the number of such suits which could be satisfactorily concluded by consent degree.

Given the narrow range of discretionary authority for award of attorney’s fees under 42 U.S.C. § 1988, as interpreted by the federal courts, I would hold that appellants were the prevailing parties and would remand the matter to the superior court for determination of reasonable attorney’s fees under 42 U.S.C. § 1988.

. As summarized in appellants’ brief, the consent decree requires:

—at least $20,000,000 in construction of local secondary schools, out of funds included in a 1976 bond issue, at sites in which members of the plaintiff class reside;
—steps to secure, through a 1978 bond issue, funds, (estimated at more than an additional $20,000,000) sufficient to complete significant secondary school construction in all 72 villages in which such construction would be needed to accommodate local programs, as well as such construction as may prove necessary at 36 smaller sites;
—programs to remediate the dropout problem, caused by the nonprovision of local schools, including programs to encourage dropouts to return to school and allowance for over-age residents of villages in which the plaintiffs reside to attend new local schools;
—provision in each community of a secondary school program, supervised throughout the school day by certificated .teachers;
—a mechanism for local communities to choose, after a public hearing, to have no village secondary school or only a partial program, with a right of individual parents to obtain, where feasible, a local secondary program for their children notwithstanding the community’s decision;
—local community participation in annual program planning and evaluation;
—minimum requirements for secondary boarding programs;
—allocation of adequate fiscal and staff resources by the defendants to ensure implementation of the remedial plan; and
—retention of jurisdiction until the remedial program has been substantially completed, with detailed progress reports to the court every four months, [footnote omitted]

. In regard to the main issue in dispute, while appellee State Board of Education originally argued that local secondary schools, as a policy matter, were “ill conceived” and would have “potentially adverse educational effects,” as a result of the consent decree, the Board no longer retains the discretion to deny local schools to appellants.

. In this respect, this case differs substantially from Ackerman v. Board of Educ., 387 F.Supp. 76 (S.D.N.Y.1976), in which the court held that an amendment to the Equal Employment Opportunity Law, rather than the plaintiff’s lawsuit, prompted the Board’s change in policy with regard to discriminatory child care leave rules. In the present case, the superior court discussed only the merits of plaintiff’s legal claims and made no findings as to the impetus for the agreement to provide local secondary schools.

. The quoted material is from appellants’ brief before this court.

. One district court actually has imposed a requirement that the plaintiff “either procure a stipulation from the defendants as to payment of counsel fees or affirmatively establish, either by uncontroverted affidavits or the introduction of evidence at trial that she has prevailed on the merits” before attorney’s fees will be awarded in a settlement agreement. Goodall v. Mason, 419 F.Supp. 980 (E.D.Va.1976); Clanton v. Allied Chemical Corp., 409 F.Supp. 282 (E.D.Va.1976).

.The Senate Report on the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988, contains the following language:

Moreover, for purposes of the award of counsel fees, parties may be considered to have prevailed when they vindicate rights through a consent judgment or without formally obtaining relief. Kopet v. Esquire Realty Co., 523 F.2d 1005 (2d Cir. 1975), and cases cited therein; Parham v. Southwestern Bell Tel. Co., 433 F.2d 421 (8th Cir. 1970); Richards v. Griffith Rubber Mills, 300 F.Supp. 338 (D.Or. 1969); Thomas v. Honeybrook Mines, Inc., 428 F.2d 981 (3d Cir. 1970); Aspira of New York, Inc. v. Board of Education of the City of New York, 65 F.R.D. 541 (S.D.N.Y.1975).

S.Rep.No.94-1011, 94th Cong., 2d Sess. 5, reprinted in [1976] U.S.Code Congressional and Administrative News, pp. 5912-13. See also H.Rep.No.94-1558, 94th Cong., 2d Sess. 7 (1976).