451 N.W.2d 676 (Neb. 1990), 88-205, Dennis v. State

Docket Nº:88-205.
Citation:451 N.W.2d 676, 234 Neb. 427
Opinion Judge:BOSLAUGH, J.
Party Name:Mark E. DENNIS, doing business as Dennis Trucking, Appellant and Cross-Appellee, v. STATE of Nebraska et al., Appellees and Cross-Appellants.
Attorney:Richard A. Allen and Richard P. Schweitzer, of Zuckert, Scoutt & Rasenberger, and Richard L. Spangler, of Woods, Aitken, Smith, Greer, Overcash & Spangler, for appellant. Robert M. Spire, Attorney General, and Jill Gradwohl Schroeder for appellees.
Case Date:February 16, 1990
Court:Supreme Court of Nebraska
 
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Page 676

451 N.W.2d 676 (Neb. 1990)

234 Neb. 427

Mark E. DENNIS, doing business as Dennis Trucking, Appellant and Cross-Appellee,

v.

STATE of Nebraska et al., Appellees and Cross-Appellants.

No. 88-205.

Supreme Court of Nebraska.

February 16, 1990

Page 677

Syllabus by the Court

1. Constitutional Law: Civil Rights: Actions. There is no cause of action under 42 U.S.C. § 1983 (1982) for violations of the commerce clause.

2. Constitutional Law: Statutes. The purpose of the privileges and immunities clause is to outlaw classifications based on the fact of noncitizenship unless there is something to indicate that noncitizens constitute a peculiar source of the evil at which the statute is aimed.

3. Constitutional Law: Statutes. Statutes which do not make a distinction based upon residence or citizenship do not violate the privileges and immunities clause.

4. Attorney Fees. Where one has gone into a court of equity and, taking the risk of litigation on himself, has created or preserved or protected a fund in which others are entitled to share, such others will be required to contribute their share to the reasonable costs and expenses of the litigation, including reasonable fees to the litigant's counsel.

5. Attorney Fees. The common fund must be an immediate fund from which attorney fees may be awarded at trial.

6. Attorney Fees. The common fund theory requires for an award of attorney fees under the common benefit rationale (1) an ascertainable class of beneficiaries, easily identifiable, and (2) a source of funds common to the class from which the award can be made.

[234 Neb. 428] Richard A. Allen and Richard P. Schweitzer, of Zuckert, Scoutt & Rasenberger, Washington, D.C., and Richard L. Spangler, of Woods, Aitken, Smith, Greer, Overcash & Spangler, Lincoln, for appellant.

Robert M. Spire, Atty. Gen., and Jill Gradwohl Schroeder, Lincoln, for appellees.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, and GRANT, JJ.

BOSLAUGH, Justice.

The plaintiff, Mark E. Dennis, doing business as Dennis Trucking, commenced this action to obtain a judgment declaring taxes imposed pursuant to Neb.Rev.Stat. §§ 60-305.02 and 60-305.03 (Reissue 1984) to be unconstitutional and enjoining the defendants from assessing or collecting such taxes, and to recover the plaintiff's attorney fees and costs of the action. Named as defendants were the State of Nebraska; Holly Jensen, individually and as director of the Nebraska Department of Motor Vehicles; Lou Lamberty, individually and as director of the Nebraska Department of Roads; and Kay Orr, individually and as Nebraska Treasurer.

The plaintiff alleged that the taxes and fees imposed under §§ 60-305.02 and 60-305.03 were an unlawful burden on interstate commerce in violation of U.S. Const. art. I, § 8, cl. 3; constituted a denial of the plaintiff's privileges and immunities in violation of U.S. Const. art. IV, § 2, cl. 1; constituted a grant by the Legislature of special and exclusive privileges, immunities, and franchises in violation of Neb. Const. art. III, § 18; and violated 42 U.S.C.

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§ 1983 (1982) by depriving the plaintiff of rights secured by the U.S. Constitution.

After a trial to the court on stipulated facts, the trial court held that the statutes were in violation of the commerce clause, U.S. Const. art. I, § 8, cl. 3, and permanently enjoined the defendants from assessing, levying, or collecting taxes or fees pursuant to §§ 60-305.02 and 60-305.03. The trial court dismissed the remaining counts, holding that the plaintiff had [234 Neb. 429] failed to prove he was entitled to judgment under U.S. Const. art. IV, § 2, cl. 1; Neb. Const. art. III, § 18; or 42 U.S.C. § 1983.

The order of the trial court further provided:

The plaintiff and his attorneys are entitled under the Equitable Fund Doctrine to payment of their expenses and reasonable fees. The Court shall determine the amount of any such expenses and fees by subsequent order following the submission of documentation in support thereof and a showing regarding any fund available for payment of said fees and expenses.

The plaintiff's motion for new trial, which was overruled, alleged that the common fund from which his attorneys' costs and fees may be paid was the total amount of taxes available for refunds pursuant to the court's order.

The plaintiff has appealed, contending that the district court erred in denying his claims under 42 U.S.C. § 1983 and in denying his claim that the common fund from which litigation costs and attorney fees may be paid consists of the total amount of taxes subject to refund as a result of the court's holding. The defendants have cross-appealed, claiming that the trial court erred in finding that the plaintiff and his attorneys were entitled under the equitable fund doctrine to payment of their expenses and reasonable fees. The defendants have not appealed the district court's finding that the statutes were in violation of the commerce clause, and there is no issue in that regard on this appeal. Both sections have since been amended. See §§ 60-305.02 and 60-305.03 (Reissue 1988).

Section 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

The Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988 (1982), provides that attorney fees may be [234 Neb. 430] awarded to the prevailing party, other than the United States, in any action to enforce a provision of § 1983. Furthermore, a party who prevails on a ground other than § 1983 is entitled to attorney fees under § 1988 if § 1983 would have been an appropriate basis for relief. Consol. Freightways Corp. of Del. v. Kassel, 730 F.2d 1139 (8th Cir.1984), cert. denied 469 U.S. 834, 105 S.Ct. 126, 83 L.Ed.2d 68 (1984); J & J Anderson, Inc. v. Town of Erie, 767 F.2d 1469 (10th Cir.1985); Private Truck Council v. Secretary of State, 503 A.2d 214 (Me.1986), cert. denied 476 U.S. 1129, 106 S.Ct. 1997, 90 L.Ed.2d 677 (1986).

The issues presented by the plaintiff's first assignment of error are, therefore, (1) whether a violation of the commerce clause constitutes a cause of action under § 1983 and (2) whether § 1983 would have been an appropriate basis for relief in this case.

Despite the broad language of § 1983 and the fact that there appears to be a division of authority on the question as to whether there is a cause of action under § 1983 for violations of the commerce clause, we believe the better reasoned cases hold that there is no cause of action under § 1983 for violations of the commerce clause. The leading authority appears to be Consol. Freightways Corp. of Del. v. Kassel, supra, in which the court held that "the Commerce Clause does not establish individual rights against government, but instead allocates power between the state and federal governments." Id. at

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1144. Cases involving the supremacy clause and reaching the same result are Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 110 S.Ct. 444, 107 L.Ed.2d 420 (1989) (the supremacy clause, of its own force, does not create rights enforceable under § 1983); Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 99 S.Ct. 1905, 60 L.Ed.2d 508 (1979); White Mountain Apache Tribe v. Williams, 810 F.2d 844 (9th Cir.1987) (preemption of state law under the supremacy clause does not give rise to a cause of action under § 1983); Gould, Inc. v. Wisconsin Dept. of Industry, Labor, 750 F.2d 608 (7th Cir.1984), aff'd 475 U.S. 282, 106 S.Ct. 1057, 89 L.Ed.2d 223 (1986) (action brought by corporation alleging that state statutes were preempted by federal labor law, in violation of the supremacy clause, was not cognizable under [234 Neb. 431] § 1983); and Maryland Pest Control v. Montgomery County, Md., 884 F.2d 160 (4th Cir.1989) (the supremacy clause does not secure rights within the meaning of § 1983 so as to entitle a successful litigant to attorney fees pursuant to § 1988).

In Consol. Freightways Corp. of Del. v. Kassel, supra, Consolidated Freightways sought attorney fees under 42 U.S.C. § 1983 after Iowa's statute restricting Consolidated's use of 65-foot twin trailers was declared invalid as a violation of the commerce clause. The U.S. Court of Appeals for the Eighth Circuit held that a violation of the commerce clause did not constitute a claim under § 1983.

Iowa contends that the Commerce Clause does not establish individual rights against government, but instead allocates power between the state and federal governments. On the basis of the nature of the Commerce power as defined by the case law ... we must agree with the interpretation of the Commerce Clause as an allocating provision, not one that secures rights cognizable under § 1983.

The Commerce Clause grants to Congress the power to regulate interstate commerce. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 6 L.Ed. 23 (1824). That grant of power has been held to imply a limitation upon the states. [Citations omitted.]

It is clear from the language employed by the Supreme Court in Commerce Clause cases that the Commerce Clause deals with the relationship between national and state interests, not the protection of individual rights. These decisions are replete with references to the national or federal interest in preventing the burdensome state regulation of interstate commerce. [Citations omitted.]

In the Supreme Court's opinion in this very case the emphasis is on the role of the Commerce Clause in preventing state regulation from "trespass[ing] upon national interests." Kassel v. Consolidated Freightways, 450 U.S. 662...

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