ELR Citation: ELR 20382
No(s). 73-1973 (6th Cir. Apr 25, 1974)

The Sixth Circuit Court of Appeals vacates a district court order awarding attorney fees against the Governor and other officials of the state of Ohio in a legislative reapportionment case. The award is in substance and effect against the state itself, and where, as here, a state has not waived its sovereign immunity, the Eleventh Amendment bars a federal court from awarding attorney fees against it. Noting a contrary rule in the 5th Circuit and in several recent district court cases, the court nonetheless declines to extend federal jurisdiction by permitting the award, even though it acknowledges that the plaintiffs have conferred a benefit on the citizens of Ohio through this reapportionment suit. Plaintiffs' claim that sovereign immunity was waived by the state's failure to faise the issue until after the initial judgment and payment of the award through attachment is in error since defenses in the nature of a jurisdictional bar need not be raised in the trial court. The award order is held void for lack of jurisdiction.

Counsel for Plaintiffs
Nathaniel R. Jones General Counsel
National Association for the
Advancement of Colored People
1790 Broadway
New York, NY 10019

Albert J. Ortenzio
Ortenzio & Pritchard
20 1/2 W. Boardman Street
Youngstown, OH 44503

Counsel for Defendants
William J. Brown Attorney General
James Laurenson Asst. Attorney General
71 E. State Street
Columbus, OH 43215

Donald J. Guittar Asst. Attorney General
25 S. Front Street
Columbus, OH 43215