Concurrent Jurisdiction and Attorney's Fees: The Obligation of State Courts to Hear Section 1983 Claims

Abstract

One of the more familiar characters in American literature is Herman Melville's Bartleby, the taciturn scrivener who disrupts his employer's law office by responding any request perform his duties with the enigmatic reply, 'I would not to.' In recent years, some state courts have indicated that they would prefer not to hear claims under 42 U.S.C. ? 1983 (1982) that seek an award of attorney's fees under the Civil Rights Attorney's Fee Awards Act of 1976 (section 1 988).2 In the past, state courts' reluctance hear section 1983 claims did not seriously affect parties attempting redress violations of federal rights by state officials, since federal courts were the preferred forum for such suits.3 In the aftermath of Pennhurst State School & Hospital v. Halderman,' however, the need resort state courts as the forum for federal as well as state claims has heightened the significance of determining whether state courts are obligated hear section 1983 actions. Although the Supreme Court held that section 1983 claims may be brought in state courts, it has not defined clearly the circumstances, if any, under which a state court may properly refuse hear a section 1983 suit. There is some evidence that state courts will conclude that