Hamer v. Lake County

• Decision Date: 05 August 1987
• Docket Number: No. 86-2485,86-2485
• Citation: 819 F.2d 1362
• Parties: Paul HAMER and June Hamer, Plaintiffs-Appellants, v. COUNTY OF LAKE, Lake County Board of Review, and its individual members, and Robert G. Jasper, Defendants-Appellees, and Appeal of Jack URETSKY and Marshall Patner.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1362

819 F.2d 1362

Paul HAMER and June Hamer, Plaintiffs-Appellants, v. COUNTY OF LAKE, Lake County Board of Review, and its

individual members, and Robert G. Jasper,

Defendants-Appellees,

and

Appeal of Jack URETSKY and Marshall Patner.

No. 86-2485.

United States Court of Appeals, Seventh Circuit.

Argued March 3, 1987.

Decided May 15, 1987.

Rehearing and Rehearing En Banc Denied Aug. 5, 1987.

James C. Bakk, Sp. Asst. State's Atty., Lonchar & Nordigian, Waukegan, Ill., for defendants-appellees.

Marshall Patner, pro se.

Before WOOD, RIPPLE, and MANION, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge.

The plaintiffs, Paul and June Hamer, and their attorneys, Jack Uretsky and Marshall Patner, challenge the award of attorney's fees and expenses entered against them pursuant to 42 U.S.C. Sec. 1988 in this civil rights action for review of state tax assessment procedures. For the reasons stated below, we affirm in part, reverse in part and remand for further proceedings.

I

In the interests of comity and federalism, district court jurisdiction over state tax matters is dependent upon a finding that the applicable state procedures of review do not satisfy the requirements of the Tax Injunction Act (28 U.S.C. Sec. 1341). Fair Assessment in Real Estate Ass'n v. McNary, 454 U.S. 100, 102 S.Ct. 177, 70 L.Ed.2d 271 (1981); Fromm v. Rosewell, 771 F.2d 1089 (7th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 1188, 89 L.Ed.2d 304 (1986). The Tax Injunction Act requires state taxpayers to turn to state remedies for protection of their federal rights provided the state remedies are "plain, speedy and efficient." ¹

The plaintiffs brought suit in May 1978 under 42 U.S.C. Sec. 1983 challenging the adequacy of the Illinois tax assessment procedures on equal protection and due process grounds. ² Specifically, the plaintiffs sought to prove that the state procedures, as applied in all Illinois counties except Cook County, failed to provide an adequate means for addressing disparities in property tax assessments. ³ About one year later, the Hamers filed another suit in district court, in which they were again named the representatives of a class of taxpayer plaintiffs, charging that Illinois taxpayers were entitled to interest on property taxes wrongfully collected by the State. See Hamer v. Anderson, 594 F.Supp. 561 (N.D.Ill.1984).

In 1981, the Supreme Court issued a decision severely limiting the scope of recovery under the Tax Injunction Act in a case which addressed the Illinois system of property tax assessment review as applied in Cook County. Rosewell v. LaSalle National Bank, 450 U.S. 503, 101 S.Ct. 1221 67 L.Ed.2d 464 (1981). ⁴ The Court in Rosewell narrowed the scope of federal review in tax assessment cases by exclusively focusing on the procedural adequacy of state remedies. With the proper procedures in place, the case holds, any possible violations of a substantive federal right are adequately protected because the federal issue can be heard in the state courts and possibly on review to the United States Supreme Court (28 U.S.C. Sec. 1257). The state remedy is thus considered "plain, speedy and efficient," if the state procedures do not "preclude presentation and consideration of federal rights." Id. at 514-15, 101 S.Ct. at 1230.

Therefore, in Rosewell the Court did not decide whether Illinois taxpayers were entitled to interest on their refunds, as the plaintiff asserted, because it found the argument raised a substantive federal right to a tax refund which could be adequately litigated in state court. Id. The Court instead addressed the procedural issue concerning alleged delays in the refund process. Although decided by a divided Court, the majority opinion held, "[t]here is no doubt that the Illinois refund procedure provides the taxpayer with a 'full hearing and judicial determination' at which she may raise any and all constitutional objections to the tax." Id. [quoting LaSalle National Bank v. Cook County, 57 Ill.2d 318, 324, 312 N.E.2d 252, 255-56 (1974). ⁵

In response to the Rosewell decision, the plaintiffs filed a thirty-four page amended complaint which included allegations that the state procedural mechanism failed to provide an adequate means to raise objections to assessment disparities. For example, the plaintiffs referred to limitations on the right to discovery, the alleged absence of a standard of proof in administrative proceedings, delays in the system as applied in selected counties, as well as other alleged inadequacies. The case then proceeded through discovery for about two years until July 1983, when the plaintiff classes were certified. On October 4, 1983, the district court denied the defendants' motion to dismiss for failure to state a claim for relief. See Coleman v. McLaren, 572 F.Supp. 178 (N.D.Ill.1983). And also in October 1983, the district court granted the parties leave to continue to proceed with discovery on the limited issue of the court's jurisdiction over the claims under the Tax Injunction Act.

In March 1984, the district court, while ruling on objections to a magistrate's recommendation with respect to discovery, cautioned the plaintiffs that their claims were of questionable merit in light of Rosewell and a major decision issued the same year as Rosewell, Fair Assessment in Real Estate Ass'n, Inc. v. McNary, 454 U.S. 100, 102 S.Ct. 177, 70 L.Ed.2d 271 (1981), which also limited recovery in state tax assessment cases. ⁶ In McNary, the Court extended the "plain, speedy and efficient" test to cover suits seeking damages under Section 1983, not only injunctive relief. The next year, the Court also decided California v. Grace Brethren Church, 457 U.S. 393, 102 S.Ct. 2498, 73 L.Ed.2d 93 (1982), which held that a state remedy may be "plain, speedy and efficient" despite the absence of state injunctive relief.

Next, on September 27, 1984, the district court issued its decision in the related case of Hamer v. Anderson, and held that the Illinois procedures, as applied in the same counties which were the subject of the present suit, were "plain, speedy and efficient." Hamer, 594 F.Supp. at 563. Following the Supreme Court's statement in Rosewell, 450 U.S. at 514, 101 S.Ct. at 1229, the district court also held that the right to interest on a tax refund addressed a substantive federal issue not subject to review under the Tax Injunction Act. Hamer, 594 F.Supp. at 564. In response to this decision, the defendants' counsel in this case wrote the plaintiffs' attorneys and suggested that the suit be dropped in light of the holding that the Illinois procedures satisfied the requirements of the Tax Injunction Act. ⁷ The plaintiffs' counsel flatly refused the defendants' suggestion.

In October 1985, the district court rejected the plaintiffs' claims challenging the alleged lack of assessment uniformity and found the state procedures of review to be "plain, speedy and efficient." The district court thus dismissed the case for lack of subject matter jurisdiction in a lengthy and well-reasoned opinion specifically addressing each alleged error in the Illinois procedures. The court found that the bulk of the complaint addressed alleged violations of substantive rights--a claim found inappropriate in Rosewell given the existence of adequate state review. The remaining procedural concerns were found to lack substantial factual merit or were alternatively held to be "plain, speedy and efficient." The district court decision was adopted as the opinion of this court on appeal. Coleman v. McLaren, 631 F.Supp. 749 (N.D.Ill.1985), aff'd, 796 F.2d 477 (7th Cir.1986) (unpublished order).

The government and other defendants then petitioned for $19,608.28 in attorney's fees and expenses pursuant to 42 U.S.C. Sec. 1988 to cover the costs incurred in litigating the suit after September 27, 1984, the date of the decision in Hamer v. Anderson. ⁸ The district court granted the motion after carefully reviewing the request, which it deemed in part to be excessive and in part overreaching. The court then limited the fees and expenses to $11,195.61. ⁹ The court reasoned that the Rosewell decision, followed by Hamer v. Anderson, provided clear and unambiguous precedent which rendered the plaintiffs' claims frivolous and unreasonable under Section 1988. The court stated that both decisions conclusively established that substantive federal claims of the sort pursued by the plaintiffs were not properly cognizable in federal court under the Tax Injunction Act. The decisions also disposed of any concerns over the procedural adequacy of the Illinois system of review. In addition, the court held that Hamer v. Anderson provided an appropriate point from which to assess fees given the prior decisions of the Supreme Court. Finally, the court ordered the grant of fees and expenses to be charged jointly and severally under Section 1988 against the Hamers and both their attorneys, Marshall Patner and Jack Uretsky.

On appeal, the plaintiffs do not dispute the reduced amount of the award, but rather claim: (1) that it was improper, as a matter of law, to grant attorney's fees to the "prevailing defendants" where a development in the law during the course of the litigation renders the litigation unreasonable, regardless of whether the award is limited to the fees incurred after the change in the law; and, alternatively, (2) that the district court abused its discretion in awarding attorney's fees under the present circumstances because the law was not sufficiently clear to render the plaintiffs' claims frivolous. ¹⁰

II

While prevailing plaintiffs are entitled to attorney's fees under 42 U.S.C. Sec. 1988 "if they succeed on any significant issue in the litigation which achieves some of the benefit the parties sought in bringing suit," Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983), prevailing defendants must satisfy much more stringent standards to recover fees...