CONSOL. FREIGHTWAYS CORP. OF DELAWARE v. Kassel

• Decision Date: 14 February 1983
• Docket Number: Civ. No. 78-179-1.
• Citation: 556 F. Supp. 740
• Parties: CONSOLIDATED FREIGHTWAYS CORPORATION OF DELAWARE, Plaintiff, v. Raymond KASSEL, et al., Defendants Motor Club of Iowa, Defendant-Intervenor.
• Court: U.S. District Court — Southern District of Iowa

556 F. Supp. 740

CONSOLIDATED FREIGHTWAYS CORPORATION OF DELAWARE, Plaintiff, v. Raymond KASSEL, et al., Defendants Motor Club of Iowa, Defendant-Intervenor.

Civ. No. 78-179-1.

United States District Court, S.D. Iowa, C.D.

February 14, 1983.

John H. Lederer, DeWitt, McAndrews & Porter, Madison, Wis., Kent Forney, Terry Hancock, Bradshaw, Fowler, Proctor & Fairgrave, Des Moines, Iowa, for plaintiff.

Robert W. Goodwin, Sp. Asst. Atty. Gen., Dept. of Transp., Lester Paff and Dennis Hogan, Asst. Attys. Gen., Mark Schantz, Sol. Gen., Des Moines, Iowa, for defendants.

R. Richard Bittner and Robert Lambert, Betty, Neuman, McMahon, Hellstrom & Bittner, Davenport, Iowa, for defendant-intervenor.

ORDER

STUART, Chief Judge.

Shortly before the trial of this action in 1979, an Order was entered bifurcating plaintiff's claim for attorney's fees from other issues in the case. Following an extensive trial, the Court found for plaintiff on the merits of its Commerce Clause claim. Consolidated Freightways Corp. v. Kassel, 475 F.Supp. 544 (S.D.Iowa 1979). The Eighth Circuit affirmed, 612 F.2d 1064 (8th Cir.1979), as did the Supreme Court, Kassel v. Consolidated Freightways Corp., 450 U.S. 662, 101 S.Ct. 1309, 67 L.Ed.2d 580 (1981).

The Court now has before it the parties' cross-motions for partial summary judgment on the issue of plaintiff's entitlement to an award of attorney's fees under 42 U.S.C. § 1988, which provides in pertinent part: "In any action or proceeding to enforce a provision of ... 42 U.S.C. § 1983 ... the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs."

The Court notes that the "discretion" mentioned in § 1988 is circumscribed by case law which holds that a prevailing party in a § 1983 action "should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust." Williams v. Miller, 620 F.2d 199, 202 (8th Cir.1980). The burden of proving such "special circumstances" is on the losing defendant. Ibid. At this time, however, the question of the existence of "special circumstances" is not before the Court. The narrow question as presented in the cross-motions for partial summary judgment is whether plaintiff is entitled to an attorney's fee award under § 1988 absent proof of "special circumstances" by defendants.

There is no dispute over the fact that plaintiff is the "prevailing party" in this case. Thus, the question before the Court is whether this dormant Commerce Clause action can be considered an "action or proceeding to enforce a provision of ... 42 U.S.C. § 1983."

Plaintiff's amended complaint asserted that, in addition to violating the Commerce Clause of the Constitution, Iowa's statutory ban on 65-foot twin trailer trucks violated the Fourteenth Amendment and 42 U.S.C. § 1983. The Court found for plaintiff on the Commerce Clause ground. The question of whether plaintiff had appropriately asserted § 1983 as an alternative basis for relief was not decided. Similarly, the Eighth Circuit and the Supreme Court affirmed on Commerce Clause grounds, apparently without ever considering whether § 1983 was also an appropriate basis for liability.

Defendants concede, however, that the fact that plaintiff prevailed on a ground other than § 1983 does not necessarily preclude an award of attorney's fees under § 1988. See Maher v. Gagne, 448 U.S. 122, 132 n. 15, 100 S.Ct. 2570, 2576 n. 15, 65 L.Ed.2d 653 (1980). If § 1983 would have been an appropriate basis for relief, then plaintiff has a general entitlement to attorney's fees under § 1988 even though relief was actually awarded on another ground. Ibid.

Section 1983 states in pertinent part:

Every person who, under color of any statute, ... of any State ... subjects, or causes to be subjected, any ... 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.

(Emphasis added.) Plaintiff argues that Iowa's ban on long trucks deprived plaintiff of two "rights ... secured by the Constitution," either of which would constitute a basis for applying § 1983: (1) plaintiff's right, under the Commerce Clause, to engage in interstate commerce free from undue burdens imposed by a state, and (2) plaintiff's right not to be deprived of property without due process of law. The Court will first address plaintiff's due process argument.

I. Due process.

The right to due process of law in conjunction with deprivations of life, liberty or property by a state is a right secured by the Fourteenth Amendment. Violations of that amendment, including those which involve deprivations of property, are clearly within the ambit of § 1983. Lynch v. Household Finance Corp., 405 U.S. 538, 543, 92 S.Ct. 1113, 1117, 31 L.Ed.2d 424 (1972). The question, therefore, is whether Iowa's long truck ban did in fact deprive plaintiff of property without due process of law.

Defendants argue that plaintiff was not deprived of property within the meaning of the Fourteenth Amendment. The Court need not resolve that question because, even assuming that there was a deprivation of property, the Court perceives no lack of due process. Plaintiff states that "the first element of due process of law is that the person acting have the authority and jurisdiction to act." Plaintiff then argues that because Iowa's statutory ban on long trucks was ultimately found by the federal courts to violate the Commerce Clause, it follows that the Iowa legislature lacked the authority to pass such a statute. The Court views this as merely a "bootstrapping" argument. In the Court's opinion, the Iowa legislature had authority, for due process purposes, to enact laws governing the use of highways within Iowa's borders; the fact that one of those laws was subsequently found to place an unconstitutional burden on interstate commerce does not transform the enactment of that particular statute into a due process violation. Moreover, under the "arbitrariness" standard which has governed substantive due process challenges to economic regulations since Nebbia v. New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940 (1934), Iowa's statute would clearly survive scrutiny. The Court therefore holds that plaintiff has failed to demonstrate a Fourteenth Amendment violation as a basis for applying § 1983.

II. Commerce Clause.

Plaintiff has established its Commerce Clause claim. Therefore, the question here is whether the Commerce Clause secures rights which are cognizable under § 1983. To answer this question, the Court will examine relevant case law, the nature of the Commerce Clause, and the legislative history of § 1983.

A.

The theory underlying plaintiff's successful Commerce Clause claim was explained by the Supreme Court as follows:

The Commerce Clause permits Congress to legislate when it perceives that the national welfare is not furthered by the independent actions of the States. It is now well established, also, that the Clause itself is "a limitation upon state power even without congressional implementation." The Clause requires that some aspects of trade generally must remain free from interference by the States. When a State ventures excessively into the regulation of these aspects of commerce, it "trespasses upon national interests," and the courts will hold the state regulation invalid under the Clause alone.

Kassel v. Consolidated Freightways Corp., 450 U.S. 662, 669, 101 S.Ct. 1309, 1315, 67 L.Ed.2d 580 (1981) (citations omitted).

In determining whether such "dormant" Commerce Clause claims come within § 1983, an examination of the jurisdictional basis which has historically been utilized in such cases may be a useful starting point. The jurisdictional counterpart of § 1983 is 28 U.S.C. § 1343(3). Although § 1343(3) does not provide jurisdiction for every § 1983 claim which is based on violation of a federal statutory right, see Maine v. Thiboutot, 448 U.S. 1, 8 n. 6, 100 S.Ct. 2502, 2506 n. 6, 65 L.Ed.2d 555 (1980), it does provide jurisdiction for all § 1983 cases which are based on deprivation of constitutional rights, and the two sections are construed identically in such cases. Lynch v. Household Finance Corp., 405 U.S. 538, 544 n. 7, 92 S.Ct. 1113, 1118 n. 7, 31 L.Ed.2d 424 (1972).

Traditionally, dormant Commerce Clause actions have been brought directly under the Constitution, with jurisdiction predicated on 28 U.S.C. § 1331 (the general federal question jurisdictional statute)¹ rather than under § 1983 and its jurisdictional counterpart, § 1343(3). See, e.g., New York State Waterways Association, Inc. v. Diamond, 469 F.2d 419 (2d Cir.1972); International Packers Ltd. v. Hughes, 271 F.Supp. 430 (S.D.Iowa 1967). Plaintiff suggests that this is because, prior to Congress's enactment of the § 1988 attorney's fee provision in 1976, there was never any need to establish the availability of § 1983 in such cases. Although this legislative change has undoubtedly provided an additional incentive to use § 1983, an incentive did exist prior to 1976 by reason of the fact that § 1331 contained an amount in controversy requirement,² while there was no such requirement for actions brought under § 1983. See § 1343(3).

One case in which this incentive became operative was Connor v. Rivers, 25 F.Supp. 937 (N.D.Ga.1938), aff'd, 305 U.S. 576, 59 S.Ct. 359, 83 L.Ed. 363 (1939). The court in that case, after determining that the amount in controversy was insufficient to meet the requirement of the general federal question jurisdictional statute, went on to consider whether there was jurisdiction under § 1343(3) (then codified as 28 U.S.C. § 41(14)). The three-judge court stated that the history of § 1983 (then codified as 8 U.S.C. § 43) persuaded them that its jurisdictional counterpart § 41(14) "does not...