Human Development of Erie, Inc. v. Zoning Hearing Board

SMITH, Judge,

dissenting.

I dissent from what I perceive to be the Majority’s avoidance of federal law and federal causes of action and the establishment of a policy to disfavor, discourage and/or restrain litigants from pursuing Section 1983 claims in state court proceedings, and concomitantly, the denial of litigants’ rights to recover attorney’s fees which may be awardable by courts to a “prevailing party” in any action or proceeding to enforce Section 1983 claims.

I

The central issue presented to this Court is whether the trial court may award reasonable attorney’s fees and costs to a prevailing party in proceedings to challenge a zoning ordinance where the trial court reverses the zoning hearing board and invalidates a zoning ordinance on the grounds that it violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution and Section 3604 of the Fair Housing Amendments Act of 1988, . 42 U.S.C. § 3604 . 1 At hearing before the Board, counsel for the Residents argued that the Ordinance deprived them *685 of their constitutional rights “under color of state law” in violation of the Civil Rights Act of 1871, 42 U.S.C. § 1983 (Section 1983) 2 and that the Residents were entitled to an award of reasonable attorney’s fees and costs pursuant to the Civil Rights Attorney’s Fee Award Act of 1976, 42 U.S.C. § 1988 (Section 1988). 3

The clause quoted in footnote 6 of the Majority’s opinion is not current law found in 28 U.S.C. § 1343 and therefore has absolutely no application to the matter sub judice. Section 1343 merely provides that the federal district courts have original jurisdiction over a civil rights action when a plaintiff pursues civil right claims in the federal court. Moreover, contrary to the Majority’s assertion, even though the Township withdrew its appeal, this Court still must decide whether Section 1983 claims were properly presented before the Board and the trial court since that court may only award attorney’s fees in an action or proceeding to enforce Section 1983 claims.

In their notices of zoning appeal, Providers and the Residents reiterated their contentions before the Board that the Ordinance violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment and requested the trial court to grant “such other and further relief as may be appropriate.” Although entitled to counsel fees as the prevailing parties, the Majority opinion defeats that *686 right on the premise that the proceedings filed by Providers and the Residents did not constitute a “lawsuit” and consequently was an inappropriate avenue by which they could secure attorney’s fees. The Majority holds, in the total absence of legal support, that the proceedings before the trial court were part of the administrative process and do not constitute a civil action subject to “fact finding, a jury to be impaneled, general damages to be awarded, discovery to be undertaken, judgments to be entered or order decrees to be carried out.” Slip Op. at 8. The authority, however, of the trial court to conduct de novo review is without question. 4

I initially note that in Maine v. Thiboutot, 448 U.S. 1 , 100 S.Ct. 2502 , 65 L.Ed.2d 555 (1980), the U.S. Supreme Court established state courts’ jurisdiction over Section 1983 claims and their authority to award attorney’s fees pursuant to Section 1988. The following demonstrates the Supreme Court’s direction in this regard:

As we have said above, Martinez v. California, 444 U.S. 277 , 100 S.Ct. 553 , 62 L.Ed.2d 481 (1980), held that § 1983 may be brought in state courts. Representative Drinan described the purpose of the Civil Rights Attorney’s Fees Awards Act as ‘authorizing] the award of a reasonable attorney’s fee in actions brought in State or Federal courts.’ 122 Cong.Rec. 35122 (1976). And Congress viewed the fees authorized by § 1988 as ‘an integral part of the remedies necessary to obtain’ compliance with § 1983. S.Rep. No. 94-1011, p. 5 (1976), U.S.Code Cong. & Admin.News 1976 at 5913. It follows from this history and from the Supremacy Clause that the fee provision is part of the § 1983 remedy whether the action is brought in federal or state court.

*687 Id., 448 U.S. at 11 , 100 S.Ct. at 2507-08 (emphasis added). More recently in Howlett v. Rose, 496 U.S. 356 , 110 S.Ct. 2430 , 110 L.Ed.2d 332 (1990), the U.S. Supreme Court stressed that the state court, in that case Florida, had no valid excuse for declining Section 1983 jurisdiction and that to permit a state court’s refusal to accept such claims may encourage states to evade or avoid federal law or federal claims. Moreover, state courts have coordinate authority and responsibility under the Supremacy Clause to enforce the Supreme Law of the land and “[a] state court may not deny a federal right, when the parties and controversy are properly before it, in the absence of ‘valid excuse’.” Id., 110 S.Ct. at 2439 . Mere disagreement with federal legislation does not excuse a state court’s refusal to recognize federal claims. See also Tallon v. Liberty Hose Co. No. 1, 336 Pa.Superior Ct. 530, 485 A.2d 1209 (1984) (attorney’s fees can be awarded pursuant to Section 1988 in cases brought in state courts). Clearly, under case law interpreting Section 1988, the trial court has authority to award attorney’s fees in the instant action.

II

Section 1988 provides that a court may award attorney’s fees “in any action or proceeding to enforce a provision of Section 1983.” Since the proceeding before the Board was initiated by Providers and the Residents to bring an end to the violation of their constitutional rights “under color” of the challenged ordinance, the administrative proceeding before the Board and subsequent judicial review were “to enforce” a provision of Section 1983. The Supreme Court narrowed its interpretation of the language “in any action or proceeding to enforce” in North Carolina Department of Transportation v. Crest Street Community Council, Inc., 479 U.S. 6 , 107 S.Ct. 336 , 93 L.Ed.2d 188 (1986). The Court held that attorney’s fees may not be awarded in an independent action brought solely to recover such fees, and thus a court may award attorney’s fees only when it decides Section 1983 claims.

*688 Crest Street, however, made clear the principle that a court hearing civil rights claims covered by Section 1988 may still award attorney’s fees for time spent on state administrative proceedings. The Supreme Court’s interpretation in Crest Street therefore precludes administrative proceedings not followed by a court proceeding from being “an action or proceeding” to enforce Section 1983. 5 There must be a court proceeding, as opposed to a purely administrative proceeding, for a plaintiff to recover attorney’s fees. Inasmuch as the trial court proceeding in the matter sub judice was clearly “an action or proceeding” to enforce Section 1983, the statutory requirements of Section Í988 were satisfied.

It should also be emphasized that as both the majority and dissenting opinion pointed out, the effect of the Court’s holding in Crest Street is that plaintiffs who are successful in obtaining administrative remedies, and therefore in no need to pursue further review by the court, cannot recover attorney’s fees since successful plaintiffs are barred from filing an independent action to recover attorney’s fees. On the other hand, plaintiffs who are unsuccessful or only partially successful in obtaining administrative remedies and later prevail in further court proceedings may be awarded attorney’s fees. Thus, the law contemplates that attorney’s fees would be awardable where a party prevails in “court” proceedings only. Surely, one cannot seriously argue that Providers and the Residents did not prevail in proceedings before a “court” and that the trial court in the matter sub judice did not possess the capability nor the authority, among other things, to engage in fact finding, award damages where requested, permit discovery by counsel, or to enter judgments or decrees.

Reliance upon Appeal of Churchill, 525 Pa. 80 , 575 A.2d 550 (1990) for the Majority’s contention that the trial court *689 had no authority to engage in, inter alia, fact finding or to enter judgment or grant injunctions, merely underscores the view taken in this dissent — the Majority has chosen to ignore one of the most fundamental issues in this case, i.e., Pennsylvania’s unique statutory scheme for challenging the validity of land ordinances. Also, Churchill makes clear that its holding has only general application in statutory appeals not involving tax assessments.

Section 909.1(a)(1) of the MPC, added by Section 87 of the Act of December 21,1988, P.L. 1329, 53 P.S. § 10909.1(a)(1), provides that the Township Zoning Hearing Board has exclusive jurisdiction to hear and render final adjudication in a substantive challenge to the validity of any land ordinance. A landowner may also present a challenge to the validity of an ordinance to the governing body by filing an application for a curative amendment under Section 901.-1(b)(4) of the MPC, 53 P.S. § 10901.1(b)(4). Further, under Pennsylvania law, an action in mandamus in the state court is not permitted to challenge the validity of a zoning ordinance. Likewise, in Pennsylvania a validity challenge may not be brought directly before the state court seeking declaratory or injunctive relief Knup v. Philadelphia, 386 Pa. 350 , 126 A.2d 399 (1956); Commonwealth v. County of Bucks, 8 Pa.Commonwealth Ct. 295, 302 A.2d 897 (1973). This limitation is so even though the challenge may be based upon a cause of action under Section 1983.

Thus, Providers and the Residents were left with a mandatory state scheme for pursuing their challenge to the validity of the Ordinance — filing a challenge to the Zoning Hearing Board and thereafter seeking judicial review of the Board’s decision if unsuccessful. Hence, due to the unique procedural scheme under Pennsylvania law, the instant litigation having been heard and decided by a court of competent jurisdiction does indeed constitute “an action or proceeding” such as would satisfy the procedural standards for invoking relief under Section 1988. 6 The Majority has *690 nonetheless determined that the mandatory scheme under Pennsylvania law for challenging validity of land ordinances warrants neither consideration nor analysis in terms of the effects of that scheme, but instead, merely focuses on whether the action was commenced by the filing of a complaint governed by the Pennsylvania Rules of Civil Procedure. 7

Section 1988 relief need not be specifically pled in the original proceedings in order for a court to award attorney’s fees. 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); see also Ramah Navajo School Board, Inc. v. Bureau of Revenue, 104 N.M. 302 , 720 P.2d 1243 (1986), cert. denied, 479 U.S. 940 , 107 S.Ct. 423 , 93 L.Ed.2d 373 (1986). Further, courts have awarded attorney’s fees so long as the pleadings contain a request “for such relief as the court may deem just and proper.” Local 391, International Brotherhood of Teamsters v. City of Rocky Mount, 672 F.2d 376 (4th Cir.1982). Since Providers and the Residents have succeeded on “the significant issue in litigation that has achieved the benefits sought in bringing an action,” they were undoubtedly “prevailing parties” under Section 1988, Texas State Teachers Ass’n v. Garland Independent School District, 489 U.S. 782 , 109 S.Ct. 1486 , 103 L.Ed.2d 866 (1989), and are therefore entitled to attorney’s fees subject to the trial court’s discretion. See Maher v. Gagne, 448 U.S. 122 , 100 S.Ct. 2570 , 65 L.Ed.2d 653 (1980); Americans United for Separation of Church & State v. School District of Grand Rapids, 835 F.2d 627 (6th Cir.1987).

*691 The court’s discretion in awarding reasonable attorney’s fees is “extremely narrow,” Americans United, and subject to the principle that one who prevails in a civil rights action under Section 1983 should ordinarily recover attorney’s fees unless special circumstances would render such an award unjust. Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400 , 88 S.Ct. 964 , 19 L.Ed.2d 1263 (1968). See also Blanchard v. Bergeron, 489 U.S. 87 , 109 S.Ct. 939 , 103 L.Ed.2d 67 (1989); Ashley v. Atlantic Richfield Co., 794 F.2d 128 (3d Cir.1986). The trial court in its supplemental opinion states that its denial of attorney’s fees was based on a finding of a lack of bad faith on the part of the Township. A lack of bad faith, however, is not the proper standard for determining whether to award attorney’s fees pursuant to Section 1988. Entertainment Concepts, Inc. III v. Maciejewski, 631 F.2d 497 (7th Cir.1980), cert. denied, 450 U.S. 919 , 101 S.Ct. 1366 , 67 L.Ed.2d 346 (1981). Hence, the factors relied upon by the trial court do not reflect the special circumstances which would overcome the Newman presumption that ordinarily a prevailing plaintiff should be awarded attorney’s fees.

Consequently, the trial court’s failure to award attorney’s fees constituted an abuse of discretion, and I would therefore reverse and remand this matter to the trial court for further proceedings to determine an amount for reasonable attorney’s fees payable to the prevailing parties in this litigation.

. The Fair Housing Amendments Act of 1988 became effective after the filing of the appeal to the trial court by Human Development of Erie and Lakeshore Community Services (Providers) and the Residents. The trial court’s retroactive application of that Act to the instant matter was proper in that a manifest injustice would not result from its retroactive application since the underlying Ordinance No. 2 complies with federal law. Moreover, judicial economy would be served by preventing further duplicative litigation. See Bradley v. School Board of Richmond, 416 U.S. 696 , 94 S.Ct. 2006 , 40 L.Ed.2d 476 (1974).

. Section 1983 provides that:

Every person who, under color of any statute, ordinance, regulation, custom or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizens of the United States or other 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.)

. Section 1988 provides that:

In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318, or title VI of the Civil Rights Act of 1964, 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. (Emphasis added.)

. Section 1005-A of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, added by Section 101 of the Act of December 21, 1988, P.L. 1329, 53 P.S. § 11005-A. The form and content of the notices of appeal filed in the trial court effectively commenced the parties’ action or proceeding in that court to which answers were filed by the Township.

. Since the Supreme Court’s Crest Street decision, several Courts of Appeals have distinguished the Supreme Court’s interpretation of the phrase “in any action or proceeding.” See Moore v. District of Columbia, 907 F.2d 165 (D.C.Cir.1990), cert. denied, —U.S.-, 111 S.Ct. 556 , 112 L.Ed.2d 563 (1990).

. See for analogy New York Gaslight Club, Inc. v. Carey, 447 U.S. 54 , 100 S.Ct. 2024 , 64 L.Ed.2d 723 (1980), where the Supreme Court *690 allowed an attorneys fee claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. on behalf of a claimant who prevailed in the mandatory state administrative scheme for pursuing discrimination charges. The Court concluded that the term "proceeding” contained in 42 U.S.C. § 2000e-5(k) includes all of the various types of proceedings in which the civil rights statute is enforced. Also see Maine v. Thiboutot, supra.

. The Rules of Civil Procedure apply to "actions and proceedings” in a court of competent jurisdiction. Pa.R.C.P. No. 126.