Rehearing and Rehearing En Banc Denied March 28, 1977.
We adopt the opinion of the district court, Stanford Daily v. Zurcher, 353 F.Supp. 124 (N.D.Cal.1972).
We reject appellants' contention that the issuing magistrate is the sole proper party defendant. Having lost in the lower court, the appellants raise this issue for the first time upon appeal. In this respect, the argument is at least, untimely. Moreover, we are not persuaded that it has merit. The appellants are proper defendants in a suit to declare that actions theretofore performed were illegal and to enjoin them from acting illegally or permitting their subordinates from engaging in such illegal conduct in the future.
We also reject appellants' argument that their good faith in securing what turned out to be an invalid warrant insulates them from liability. The appellants rely on the rule that gives public officials a qualified immunity in damage actions under Section 1983 if the officials acted in good faith. Extension of this rule to suits like the present one, seeking injunctive and declaratory relief, has been rejected by the courts. We accept the Fourth Circuit's rationale in Rowley v. McMillan, 502 F.2d 1326, 1332 (1974):
(Accord: Hogge v. Hedrick, 391 F.Supp. 91 (E.D.Va.1975). See Wood v. Strickland, 420 U.S. 308, 315, n.6, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975); National Treasury Employees Union v. Nixon, 160 U.S.App.D.C. 321, 492 F.2d 587, 609 (1974); Gouge v. Joint School Dist. No. 1, 310 F.Supp. 984, 990 (W.D.Wis.1970); Richmond Black Police Officers Ass'n v. City of Richmond, 386 F.Supp. 151, 154 (E.D.Va.1974); Saffron v. Wilson, 70 F.R.D. 51 (D.D.C.1975); Safeguard Mutual Ins. Co. v. Miller, 472 F.2d 732, 734 (3d Cir. 1973).)
The district court awarded attorney's fees to the appellees. It applied the then prevailing law permitting such awards based on the private attorney general doctrine, and pursuant to the court's inherent equitable power. (E. g., Brandenburger v. Thompson (9th Cir. 1974) 494 F.2d 885.) While the case was pending on appeal, the Supreme Court decided Alyeska Pipeline Service Co. v. The Wilderness Society (1975) 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141, which severely restricted the private attorney general doctrine and destroyed the legal foundation for appellees' fee award. While this case was still pending on appeal, Congress passed the Civil Rights Attorney's Fees Awards Act of 1976 (the "Act"), 1976 U.S.Code Cong. & Ad.News, 90 Stat. 2641 (October 19, 1976), which restored pre-Alyeska law to "cases arising under our civil rights laws, a category of cases in which attorney's fees have been traditionally regarded as appropriate. It remedies gaps in the language of these civil rights laws by providing the specific authorization
We are not left to speculate whether Congress intended the Act to apply to attorney's fee awards in cases like this one. The Act expressly states that it is applicable to § 1983 actions like the present case.
(See also 122 Cong.Rec. 17052 (daily ed. September 29, 1976) ("This application is necessary to fill the gap created by the Alyeska decision and thus avoid the inequitable situation of an award of attorneys' fees turning on the date the litigation was commenced." (remarks by Sen. Abourezk)); 122 Cong.Rec. 12155 (daily ed. October 1, 1976) ("[I]t would apply to cases now pending, for the simple reason that if that were not the case, the award of fees would depend on the date that the case is filed. I do not think that is the basis on which a determination is made. To that extent, it is retroactive. Pending cases could receive an award of reasonable fees." (remarks of Rep. Anderson)); id. at 12160 (remarks of Rep. Drinan).)
As if this were not enough, the Senate Report cited the award in this very case as an example of the fee awards which it approved and which it intended to authorize in the Act. (Senate Report, supra, pp. 4, n.3, 6.)
Under these circumstances, no useful purpose would be served in requiring a remand to the district court to decide the impact of the Act on the fee awarded to the appellees. The attorney's fee awarded by the district court was valid when it was made, and it was revalidated by the Act.