Fischer v. Brombolich

• Decision Date: 21 July 1993
• Docket Number: No. 5-92-0291,5-92-0291
• Citation: 616 N.E.2d 743,246 Ill.App.3d 660,186 Ill.Dec. 553
• Parties: , 186 Ill.Dec. 553 Michael FISCHER, Mel Jones and Alverna Wrigley, Plaintiffs-Appellants, v. Gene J. BROMBOLICH, Virginia M. Trucano, Melvin P. Pamatot, and the City of Collinsville, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 743

616 N.E.2d 743

246 Ill.App.3d 660, 186 Ill.Dec. 553

Michael FISCHER, Mel Jones and Alverna Wrigley, Plaintiffs-Appellants, v. Gene J. BROMBOLICH, Virginia M. Trucano, Melvin P. Pamatot, and the City of Collinsville, Defendants-Appellees.

No. 5-92-0291.

Appellate Court of Illinois,

Fifth District.

July 21, 1993.

Rehearing Denied Aug. 11, 1993.

William C. Evers III, Collinsville, for plaintiffs-appellants.

Kevin F. Blaine, Kathleen A. Buckley, Coppinger, Carter, Schrempf & Blaine, Ltd., Alton, Dwight Taylor, Corp. Counsel, City of Collinsville, Paul Welch, Collinsville, for defendants-appellees.

Presiding Justice CHAPMAN delivered the opinion of the court:

Plaintiffs Michael Fischer, Mel Jones, and Alverna Wrigley appeal from an order denying their motion for attorney fees and costs against Gene J. Brombolich, Virginia M. Trucano, Melvin Pamatot, and the City of Collinsville. We affirm.

At the time this litigation began, Fischer was the elected Commissioner of Public Health and Safety (police and fire commissioner) of the City of Collinsville. Plaintiffs Jones and Wrigley are two citizens of Collinsville who helped elect Fischer to the position of Commissioner of Public Health and Safety. During Fischer's term of office, the city council voted 3-2 to transfer control of the police department and the canine-control department from Fischer's commissioner's post to the mayor in the Department of Public Affairs.

Plaintiffs obtained a temporary injunction against the enforcement of the ordinance. The temporary injunction was upheld on appeal. (Fischer v. Brombolich (1991), 207 Ill.App.3d 1053, 152 Ill.Dec. 908, 566 N.E.2d 785.) A permanent injunction was entered April 11, 1991.

On April 10, 1991, plaintiffs filed a motion for attorney fees and costs. Defendants moved to dismiss plaintiff's petition, and the trial court allowed it. In its order, the trial court found that the actions of the individual defendants and the City of Collinsville were not in bad faith and that there was no evidence to suggest a Supreme Court Rule 137 violation (134 Ill.2d R. 137). The trial court also noted that "[t]here is no basis in the law of the State of Illinois or under the facts presented to allow the plaintiffs, in situations such as this, to recover attorney's fees and costs under any of the theories suggested by plaintiffs."

Plaintiffs argue that they are entitled to recover their attorney fees in their successful litigation to declare void an ordinance of the City of Collinsville. Plaintiffs advance four theories in support of their argument.

First, plaintiffs argue that Illinois should recognize the private attorney general doctrine and award attorney fees in this case because their attorney acted in this capacity. The private attorney general doctrine is an equitable rule which allows a successful litigant to recover attorney fees when the litigant has vindicated a right that: (1) benefits a large number of people; (2) requires private enforcement; and (3) is of societal importance. (Arnold v. Arizona Department of Health Services (1989), 160 Ariz. 593, 775 P.2d 521.) Other States have adopted this theory or a similar one. See Woodland Hills Resident's Association v. City Council (1979), 23 Cal.3d 917, 154 Cal.Rptr. 503, 593 P.2d 200; Taggart v. Highway Board (1988), 115 Idaho 816, 771 P.2d 37; Anchorage Daily News v. Anchorage School District (Alaska 1990), 803 P.2d 402 (recognizing a "public interest litigant").

The plaintiffs maintain that recognizing this fee-shifting theory is "critical to fighting political malfeasance." Without such a fee-shifting mechanism, plaintiffs contend that public officials who use their offices unwisely may then use taxpayer funds to defend their unwise, perhaps illegal, acts while private citizens must utilize their own funds to challenge these acts.

While adoption of the private attorney general theory may indeed create an environment more conducive to litigation designed to challenge elected officials' questionable conduct, the supreme court has not sanctioned such a theory nor has the legislature created such a fee-shifting statute. With few exceptions, the "American Rule" remains the general rule in Illinois. The general rule is that in the absence of a statute or an agreement to the contrary, the successful party may not recover attorney fees or the costs of litigation. (Hamer v. Kirk (1976), 64 Ill.2d 434, 437, 1 Ill.Dec. 336, 337, 356 N.E.2d 524, 525.) There is no authority to support an award of attorney fees solely on the basis of a public-interest rationale (Hamer v. Kirk, 64 Ill.2d at 441, 1 Ill.Dec. at 340, 356 N.E.2d at 528). Further, the supreme court has been reluctant to reallocate the burdens of litigation without legislative guidance. (Hamer v. Kirk, 64 Ill.2d at 441, 1 Ill.Dec. at 340, 356 N.E.2d at 528, citing Alyeska Pipeline Service Co. v. Wilderness Society (1975), 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141.) Even the knowledge that the litigation was almost certainly brought about by the illegal actions of the individual members of the legislative bodies has been held insufficient to justify fee shifting. Pechous v. Slawko (1976), 64 Ill.2d 576, 592-93, 2 Ill.Dec. 701, 710-11, 357 N.E.2d 1144, 1153-54.

Pechous v. Slawko is factually similar to this case. It concerned ordinances passed by the City of Berwyn and the Village of Oaklawn. In each case, the ordinances were enacted by the municipality's legislative body in an effort to transfer to itself the power to appoint certain municipal officials. The ordinances were challenged by the mayor and the village president, respectively. After the trial court entered judgment for the plaintiffs, each filed a petition requesting the assessment of attorney fees against either the members of the municipality's legislative body or against the municipality itself. (Pechous v. Slawko, 64 Ill.2d at 592, 2 Ill.Dec. at 710, 357 N.E.2d at 1153.) In concluding that attorney fees should not be awarded, the supreme court stated that "[n]o ground exists for placing the burden of the fees of the attorneys for the plaintiffs or of the attorneys for the defendant members of the legislative bodies upon the taxpayers of the municipalities." (Pechous v. Slawko, 64 Ill.2d at 592-93, 2 Ill.Dec. at 710, 357 N.E.2d at 1153.) Further, the supreme court would not allow the plaintiff's attorney fees to be taxed against the members of the legislative bodies personally. (Pechous v. Slawko, 64 Ill.2d at 593, 2 Ill.Dec. at 711, 357 N.E.2d at 1154.) This case cannot be effectively distinguished from Pechous v. Slawko (1976), 64 Ill.2d 576, 2 Ill.Dec. 701, 357 N.E.2d 1144, which we are required to follow.

Plaintiffs next argue that the trial court abused its discretion by refusing to award attorney fees pursuant to Supreme Court Rule 137 (134 Ill.2d R. 137 (effective August 1, 1989)) or its predecessor, section 2-611 of the Civil Practice Law (Ill.Rev.Stat.1989, ch. 110, par. 2-611). Rule 137 requires an attorney or the party to certify that pleadings or motions are well grounded in fact and supported by existing law or a good faith argument for extension, modification, or reversal of existing law. If the pleadings or motions are signed in violation of the rule, the court may impose sanctions, which may include costs and reasonable attorney fees. 134 Ill.2d R. 137.

The purpose of Rule 137 is to penalize litigants who plead frivolous or false matters or bring suit without any basis in law. Its purpose is not to penalize litigants and attorneys simply because they were unsuccessful in their litigation. (In re Marriage of Sykes (1992), 231 Ill.App.3d 940, 946, 173 Ill.Dec. 347, 351-52, 596 N.E.2d 1226, 1230-31.) In evaluating the conduct of an attorney or a party who makes a motion or signs a document, the court must determine what was reasonable to believe at the time rather than engage in hindsight. (Lewy v. Koeckritz International Inc. (1991), 211 Ill.App.3d 330, 334, 155 Ill.Dec. 848, 851-52, 570 N.E.2d 361, 364-65.) The allowance of fees and expenses under Rule 137 is entrusted to the discretion of the trial court and will not be disturbed on review unless there has been an abuse of discretion. (Singer v. Brookman (1991), 217 Ill.App.3d 870, 879, 160 Ill.Dec. 822, 827, 578 N.E.2d 1, 6.) A trial court exceeds its discretion only where no reasonable person would take the view adopted by it. If reasonable people could differ as to the propriety of the trial court's action, then a reviewing court cannot say that the trial court exceeded its discretion. Lewy v. Koeckritz, 211 Ill.App.3d at 334-35, 155 Ill.Dec. at 852, 570 N.E.2d at 365.

The plaintiffs argue several points in support of their contention that the defendants acted in bad faith in pursuing this lawsuit. These points include: (1) that the defendants made a false factual statement when they denied that plaintiffs suffered irreparable harm because they passed the ordinance to cause irreparable harm; (2) that being represented by counsel, "defendants had to know that there must be a law that authorizes municipal action, not merely a law that prohibits municipal action;" (3) that the defendant could not cite one law or one case that allowed them to enact an ordinance that stripped an elected official of his duties during the course of his elected term of office; (4) that the court labelled the defendants' arguments illogical; and (5) that in support of their position, the defendants consulted only with a nonlawyer professor at Northern Illinois University.

Plaintiffs' points, however, are at least arguably refuted by the conclusions in the earlier appeal of this case. In the appeal challenging the preliminary injunction, the defendants presented an argument based on the...