Allison v. Board of County Com'rs of Johnson County, 59400

• Citation: 241 Kan. 266,737 P.2d 6
• Decision Date: 01 May 1987
• Docket Number: No. 59400,59400
• Parties: Gladys L. ALLISON, et al., Appellees, v. The BOARD OF COUNTY COMMISSIONERS OF JOHNSON COUNTY, KANSAS, et al., Appellants.
• Court: United States State Supreme Court of Kansas

Page 6

737 P.2d 6

241 Kan. 266

Gladys L. ALLISON, et al., Appellees, v. The BOARD OF COUNTY COMMISSIONERS OF JOHNSON COUNTY, KANSAS et al., Appellants.

No. 59400.

Supreme Court of Kansas.

May 1, 1987.

Syllabus by the Court

1. Where the assessment exceeds the amount of special benefits to the district, the assessment is, as to the excess, a taking of private property for public use without just compensation.

2. Under 42 U.S.C. § 1988 (1982), the prevailing party should ordinarily be awarded attorney fees unless there are special circumstances making such an award unjust. A person is a "prevailing party" within the context of 42 U.S.C. § 1988 when he essentially succeeds in obtaining the relief he seeks in his claims on the merits.

3. For a party to "prevail," a judicial determination is not necessary. Parties are considered to have prevailed when they vindicate a right through a consent judgment, a settlement, or without formally obtaining relief.

4. A person may be a prevailing party on a nonconstitutional claim brought in the same action with a substantial constitutional claim, but in order for attorney fees to be recovered under the nonconstitutional claim, the two claims must arise from the same nucleus of operative facts.

5. The mere fact that an individual requests some action by a governmental entity does not mean that the individual consents to the government taking actions which exceed its constitutional authority.

6. Under § 1983 actions, statutory fee awards pursuant to 42 U.S.C. § 1988 (1982) are contingent. Attorney fees are awarded only to counsel of the prevailing parties. The attorney for the prevailing party is then entitled to a reasonable fee set by the court. The factors to be considered include: (1) the number of hours spent on the case by the various attorneys and the manner in which they were spent; (2) the reasonable hourly rate for each attorney; (3) the extent, if any, to which the quality of the attorney's work mandates increasing or decreasing the amount to which the court has found the attorney reasonably entitled; and (4) the benefit produced by the lawsuit.

Donald Jarrett, Chief Counsel, Johnson County, argued the cause and was on brief, for appellants.

Leonard O. Thomas, of Thomas, McDonald, Maier, Dykes & Johnston, Chartered, Overland Park, and Robert B. Best, Jr., of Watson, Ess, Marshall & Enggas, Olathe, argued the cause, and Jon C. Christlieb, L.D. McDonald, Jr., and J. Lawrence Louk, of Thomas, McDonald, Maier, Dykes & Johnston, Chartered, Overland Park, Thomas E. Ruzicka and Amelia J. McIntyre, of Watson, Ess, Marshall & Enggas, Olathe, and Byron J. Beck, Theresa L.F. Levings, and Pamela G. Kohler, of Morrison, Hecker, Curtis, Kuder & Parrish, Overland Park, were with them on brief, for appellees.

LOCKETT, Justice:

The Board of County Commissioners of Johnson County (Board) appeals the district court's award to the plaintiffs under 42 U.S.C. § 1988 (1982) for attorney fees which exceeded $585,000, in five cases that were consolidated for trial.

Five separate lawsuits challenging the levy of special assessments to pay the cost of waste-water treatment facilities constructed in Blue River Main Sewer District No. 1 and Blue River Sewer Sub-Districts Nos. 5 and 6 were consolidated in the Johnson County District Court. Four of the actions developed in conjunction with Dutoit v. Board of Johnson County Comm'rs, 233 Kan. 995, 667 P.2d 879 (1983). A summary of the facts follows.

On June 26, 1978, the Board created Blue River Sewer Sub-District No. 5 to construct sewage collection facilities to serve approximately 2,504 acres. On September 5, 1978, the Board created Blue River Sewer Sub-District No. 6 to construct sewage collection facilities to serve approximately 336 acres.

On March 6, 1979, the Board created Blue River Main Sewer District No. 1 to construct a sewage treatment facility for sewage generated in Sub-Districts No. 5 and 6. Sub-Districts No. 5 and No. 6 were combined to form Main District No. 1, to serve 2,840 acres.

On January 26, 1982, the case of Dutoit v. Board of Johnson County Comm'rs was filed in Johnson County District Court to enjoin the levying of assessments of costs of improvements constructed in Sub-District No. 5, to set aside the order enlarging the district, and to exclude the plaintiffs' land from the district. On June 30, 1982, an amended petition was filed in Dutoit alleging a class action and constitutional violations of the Fifth and Fourteenth Amendments of the United States Constitution. On August 24, 1982, a second amended petition was filed in Dutoit alleging a 42 U.S.C. § 1983 (1982) cause of action.

The Board filed a motion to dismiss all of the Dutoits' claims. On December 29, 1982, a journal entry of dismissal of all of the Dutoits' claims was filed. The Dutoits appealed. On July 15, 1983, we held that the district court had correctly dismissed the class action claims and the claims challenging the creation and enlargement of the Blue River Sub-District No. 5, but that the Dutoits' 42 U.S.C. § 1983 claim had been improperly dismissed. Dutoit was remanded for further proceedings.

On June 7, 1983, prior to our decision in Dutoit, the Board, as the governing body of Sub-District No. 6, levied assessments within that district to pay the costs of the public improvements. On June 17, 1983, the case of Allison, et al., v. Board of County Commissiners was filed in Johnson County District Court challenging the assessments levied in Sub-District No. 6. The case was also filed on behalf of Sub- District No. 5 and Main District No. 1 owners.

On November 10, 1983, the Board reassessed the costs of improvements in Sub-District No. 5, and the thirty-day appeal period was reinstated so as to allow other landowners to contest the Sub-District No. 5 assessments. Suits were then filed by the plaintiffs in all five consolidated cases, challenging those assessments.

Pleadings in the five cases are not identical, but contain similar claims for relief. Essentially, those pleadings included claims that the statute (K.S.A. 19-2704 et seq.) was unconstitutional, the districts were not lawfully created, the boundaries were arbitrary, misrepresentations were made, the Board abused its discretion, the method of assessment was improper, the assessments constituted inverse condemnation, the assessments were unreasonable, and the assessments violated plaintiffs' constitutional rights.

Trial of the consolidated cases commenced on February 25, 1985. On the third day of trial, after jury selection and opening statements, a settlement was reached. The essential terms of the settlement were that the assessments as levied would stand and not be changed, the maximum amount that would be collected from all land within the districts was approximately $2,550 per acre, the costs would be divided approximately equally between the two sub-districts and the main district, all landowners would be treated the same, and the County would be precluded from assessing additional accrued interest and other costs not currently included within the assessments of record against the consolidated plaintiffs and the other landowners within the districts.

The settlement achieved a reduction in the assessments which the plaintiffs and all landowners within the districts were obligated to pay. The settlement was accepted by the court, and plaintiffs subsequently filed their requests for statutory attorney fees in excess of $850,000 under 42 U.S.C. § 1988. After hearings on the issues, the trial court awarded fees and expenses totaling more than $585,000. Defendants filed this appeal, opposing the fee award.

In Kansas the prevailing party in litigation is entitled to recover the costs of the action, but is not reimbursed for the litigation expenses and legal fees. Attorney fees incurred by the prevailing party are chargeable as costs against the losing party where specific statutory provisions allow recovery. State, ex. rel., v. Sage Stores Co., 158 Kan. 146, 145 P.2d 830 (1944). Statutes which authorize attorney fees are designed to provide access to judicial relief for victims, providing an economic incentive for lawyers to represent their clients' interest.

The history of the purpose of The Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988, was set out by Justice Herd in Gumbhir v. Kansas State Board of Pharmacy, 231 Kan. 507, 646 P.2d 1078 (1982), cert. denied 459 U.S. 1103, 103 S.Ct. 724, 74 L.Ed.2d 950 (1983). By awarding attorney fees, 42 U.S.C. § 1988 insures that individual plaintiffs, as private attorneys general, are able to assert and vindicate their civil rights in court. Congress' purpose in adopting the Act was to assure that the opportunity to enforce federal civil rights would be available to all. The legislation gives effective access to the judicial process to the vast majority of the victims of civil rights violations who cannot afford legal counsel. It promotes the enforcement of the federal civil rights acts and achieves uniformity in those statutes and justice for all citizens. Bond v. Stanton, 555 F.2d 172 (7th Cir.1977).

Under proper circumstances, § 1983 actions may be brought against the United States, individual states, and local governments. The fact that any unit of government operates under some form of statutory procedure does not prevent an individual from challenging the constitutionality of the government's actions. See generally Annot., 43 A.L.R.Fed. 243, § 7. The principles of comity and the Tax injunction Act, 28 U.S.C. § 1341 (1982), prevent actions in the federal courts based on a claim of unequal taxation of property by a state. If a § 1983 claim exists due to a state's unequal taxation or unequal assessment of property, the action must be brought in the state court. Fair Assessment in Real Estate Assn. v. McNary, 454 U.S. 100, 102 S.Ct. 177, 70 L.Ed.2d 271 (1981).

State Remedies

The Board contends that §...