Palmetto Properties, Inc. v. County of Dupage, 03-2174.

• Decision Date: 07 July 2004
• Docket Number: No. 03-2174.,03-2174.
• Citation: 375 F.3d 542
• Parties: PALMETTO PROPERTIES, INC. and Gregory A. Schirmer, Plaintiffs-Appellees, v. COUNTY OF DUPAGE and Joseph E. Birkett, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

375 F.3d 542

PALMETTO PROPERTIES, INC. and Gregory A. Schirmer, Plaintiffs-Appellees, v. COUNTY OF DUPAGE and Joseph E. Birkett, Defendants-Appellants.

No. 03-2174.

United States Court of Appeals, Seventh Circuit.

Argued December 12, 2003.

Decided July 7, 2004.

Rehearing Denied August 9, 2004.

Reed Lee (argued), Chicago, IL, for Plaintiffs-Appellees.

Thomas F. Downing (argued), Office of the State's Attorney, Wheaton, IL, for Defendants-Appellants.

Before COFFEY, RIPPLE and KANNE, Circuit Judges.

KANNE, Circuit Judge.

This case raises a question about an award of attorney's fees to a "prevailing party" under the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988 (2000). After the underlying claims, which challenged the constitutionality of both state and local adult-entertainment zoning regulations, were disposed of through dismissals, partial summary judgments, a repeal of the relevant portion of the local statute, and a final dismissal for mootness, the district court granted the plaintiffs' motion for attorney's fees. For the following reasons, we affirm.

I. Background

The issue on appeal can be succinctly stated: did the district court correctly award attorney's fees to Palmetto as a "prevailing party" under 42 U.S.C. § 1988? However, "prevailing party" is a legal term of art, generally meaning a "party in whose favor a judgment is rendered ...." Buckhannon Bd. & Care Home, Inc. v. W. Vir. Dept. of Health and Human Res., 532 U.S. 598, 603, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001) (quotation omitted). In Buckhannon, the Supreme Court demonstrated that, although the issue and definition can be pithily put, in order to determine whether an award of attorney's fees would be appropriate, a meticulous analysis of the "particular judgments and orders entered in a case" is necessary. McGrath v. Toys "R" Us, Inc., 356 F.3d 246, 253 (2d Cir.2004). We have done so in the past, see, e.g., Fed'n of Adver. Indus. Representatives, Inc. v. City of Chicago, 326 F.3d 924 (7th Cir.2003) ("Federation"), and to do so here, we now review the underlying facts and procedural posture of this case.

Palmetto Properties, Inc. and George Schirmer (collectively, "Palmetto") sought to open an adult entertainment nightclub or cabaret in DuPage County, Illinois. According to County Ordinance section 37-3.2, Palmetto's strip club is classified as an "adult business use" because the employee-dancers expose "specified anatomical areas" and/or engage in "specified sexual activities." DuPage County Ordinance § 37-3.2 (1986).¹ Likewise, the club is an "adult entertainment facility" under state law 55 Ill. Comp. Stat. 5/5-1097.5 (1998).²

While both the state and county regulate the location of these adult businesses, after the state adopted its first such zoning law in 1998, the two regulations differed in material respects. First, under the law as adopted in 1986, DuPage County required all adult businesses to locate in a zoning district designated "industrial" and banned such establishments from locating within 1000 feet of other adult businesses, or within 500 feet of certain residentially zoned districts or any "church, school, library, park or other publicly operated recreational facility." DuPage County Zoning Ord. § 37-4.16-2 (1986). But the law adopted by the state in 1998 banned all adult businesses from locating "within 1,000 feet of the property boundaries of any school, day care center, cemetery, public park, forest preserve, public housing, and place of religious worship." 55 Ill. Comp. Stat. 5/5-1097.5 (1998) (emphasis added). Consequently, in December of 1998, after the state adopted its regulation, the County amended its ordinance to (1) add various categories of land use from which adult business must be separated; and (2) increase the required separation distance from 500 to 1000 feet. DuPage County Zoning Ord. § 37-4.16-2 (1998).³ The County's zoning restriction thereby mirrored the state's.

Second, the County's 1986 ordinance stated that its purpose was to "eliminate [the] adverse effects" of adult businesses, such as the "blighting or downgrading" of surrounding neighborhoods. DuPage County Zoning Ord. § 37-4.16-1 (1986). In adopting that law, the County relied upon a study conducted by the City of Indianapolis, which had adopted a similar 500-foot separation requirement, and upon a customer-origin survey done by DuPage and Cook Counties. The state statute, however, contained no such statement of policy, nor did its legislative history reveal any studies or reports relied upon by the Illinois General Assembly. And when the County amended its ordinance in 1998 "solely to incorporate [the state law]," no new studies were conducted, nor earlier studies reevaluated, and the statement of policy went unchanged.

The land Palmetto obtained (and partially developed) for the proposed adult business complied with all of the locational limits set out in the County and State regulations, save one. The parcel was 735 feet (i.e., more than 500, but less than 1000 feet) from the boundary of Pratt's Wayne Woods Forest Preserve, much of which is not accessible to the public.⁴ As a result, Palmetto feared that the County and/or State would prevent the nightclub's opening based upon the 1000-foot forest preservation separation requirement. Palmetto sued DuPage County, the Forest Preserve District of DuPage County, Joseph E. Birkett (in his official capacity as DuPage County State's Attorney), and Jim E. Ryan (in his official capacity as Illinois Attorney General), arguing that the state and local laws were violations of the First and Fourteenth Amendments. Specifically, in its third amended complaint, Palmetto alleged that: (1) the 1000-foot forest preserve separation requirement, under either law, was facially unconstitutional because it was unsupported by a substantial governmental interest; (2) the forest preserve separation requirement, under either law, was unconstitutional as applied to Palmetto; and (3) both laws were facially unconstitutional in toto because they effected a complete ban of protected speech in DuPage County.⁵

Between February of 2000 and March of 2001, the district court was inundated with a flurry of motions to dismiss, summary-judgment motions, responsive pleadings, and competing fact statements, resulting in a total of at least thirty-four filings. Early in the course of the proceedings, however, Illinois Attorney General Ryan was dismissed from the suit because Palmetto failed to overcome the presumption of Ryan's Eleventh Amendment immunity. This determination was not appealed.

Finally, on March 29, 2001, the district court issued its order, which sorted through myriad summary-judgment issues. First, the Forest Preserve District's motion for summary judgment was granted "because the District has no connection to the enforcement of the DuPage Ordinance or the Illinois Statute and there is no District ordinance or policy at issue here." Second, the court found that because Palmetto's claims were "rooted in the First Amendment," Palmetto was entitled to "rely on the impact of the ordinance[s] on the expressive activities of others as well as [its] own," and hence, the case was ripe for adjudication. Third, State's Attorney Birkett's Eleventh Amendment immunity barred Palmetto's suit with respect to the state law, but not with respect to the County Ordinance.⁶ Therefore, only the County of DuPage and Birkett (only with respect to the County ordinance) remained as defendants (hereinafter collectively "Defendants" or "County").

Reaching the merits, the district court held that: (1) the state and local zoning forest preserve separation requirements were neither supported by a significant government interest nor narrowly tailored because neither entity presented any evidence or prior case law to demonstrate that strip clubs negatively impact areas of forest preserves not open to the public; and (2) both restrictions failed to leave open reasonable alternative means of communication. Uncertain as to whether the district court struck down the entirety of the County Ordinance or simply the forest preserve segment, Defendants asked the district court to clarify its judgment. The court did so on April 26, 2001 and specifically declared only the portion of Ordinance section 37-4.16.2 referring to "forest preserves" unconstitutional.⁷

Presumably wanting to avoid further litigation, the Defendants informed the district court and Palmetto that, instead of appealing, the offending provision of the ordinance would be amended or repealed. Hence, while the County pursued such action, the district court continued the case in lieu of entering a final order to officially close the action. As promised, the forest preserve separation requirement was repealed.⁸ Palmetto was therefore free to operate its proposed nightclub. Following its opening, the district court dismissed the lawsuit as moot on January 3, 2002.

Palmetto then petitioned for an award of attorney's fees from the Defendants as a "prevailing party" under 42 U.S.C. § 1988. While there was no dispute as to the amount claimed, the Defendants adamantly argued that Palmetto was not a prevailing party. The district court disagreed. After carefully analyzing Buckhannon and noting that Palmetto did not request fees related to claims never addressed on the merits, see supra notes 5 and 7, the district court awarded $49,175.00 to Palmetto. This appeal resulted and, for the following reasons, we affirm the district court's award.

II. Analysis

A. Standard of Review

Under 42 U.S.C. § 1988 a "prevailing party" is entitled to "a reasonable attorney's fee." When analyzing a district court's grant or denial of such fees, we review de novo the lower court's purely legal conclusions. Federation, 326 F.3d at 932. But factual matters underlying the fee award, such as the fee amount and a party's ultimate litigation goals, are reviewed for clear error. Cady v....