Opposition Brief — Tampam, Inc. v. Ogle County Board of Review

=

No. 91-371 IY

In The

Supreme Court of the United States

October Term, 1991

+

TAMPAM, INC.,

Petitioner,

vs.

OGLE COUNTY BOARD OF REVIEW, SUPERVISOR

OF ASSESSMENTS FOR OGLE COUNTY, COUNTY

TREASURER OF OGLE COUNTY, also acting as

Collector of Taxes, and THE COUNTY OF OGLE,

Respondents.

¢

Petition For Writ Of Certiorari To The

Appellate Court Of Illinois Second Judicial District

¢

BRIEF IN OPPOSITION

¢

DENNIS SCHUMACHER

State’s Attorney

County of Ogle

State of Illinois

DaNnieEL P. MERRIMAN*

Assistant State’s Attorney

County of Ogle

State of Illinois

M. Tuomas Suits

Attorney at Law

103 North Franklin Avenue

Poiu, Illinois 61064

(815) 946-2276

Counsel for Respondents

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Whether this Court should deny the writ where

the Illinois courts properly decided that Petitioner’s

legally and factually distinct public roads claim was

never viable under 42 U.S.C. §1983, and that hours spent

on this unrelated claim must be eliminated from the

lodestar computation?

2. Whether this Court should deny the writ where

the Illinois courts properly decided that this court should

deny the writ where the Illinois courts properly deter-

mined that the forum rate provided a reasonable rate of

compensation for Attorney McMillen.

3. Whether this Court should deny the writ where

the Illincis courts properly decided that this court should

deny the writ where the Illinois courts properly rejected

Plaintiff’s Petition for a 50% upward enhancement and

properly decided to reduce the McMillen and Nye lode-

stars to reflect the amounts involved and the results

obtained.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ..................00c0008 i

ee Re Pe Ser rir na se fart se ot l

STATEMENT OF THE CASE.................e0000. 1

RESPONDENTS’ STATEMENT OF THE CASE...... 3

et. | San reer ee cect eh i 9

THIS COURT SHOULD DENY THE WRIT

WHERE THE ILLINOIS COURTS PROPERLY

DECIDED THAT PETITIONER’S LEGALLY AND

FACTUALLY DISTINCT PUBLIC ROADS

CLAIM WAS NEVER VIABLE UNDER 42 U.S.C.

§1983, AND THAT HOURS SPENT ON THIS

UNRELATED CLAIM MUST BE ELIMINATED

FROM THE LODESTAR COMPUTATION....... 9

II.

THIS COURT SHOULD DENY THE WRIT

WHERE THE ILLINOIS COURTS PROPERLY

DETERMINED THAT THE FORUM RATE PRO-

VIDED A REASONABLE RATE OF COMPENSA-

TION FOR ATTORNEY MCMILLEN............ 17

Il.

THIS COURT SHOULD DENY THE WRIT

WHERE THE ILLINOIS COURTS PROPERLY

REJECTED PLAINTIFF’S PETITION FOR A 50%

UPWARD ENHANCEMENT AND PROPERLY

DECIDED TO REDUCE THE MCMILLEN AND

NYE LODESTARS TO REFLECT THE

AMOUNTS INVOLVED AND THE RESULTS

ev 5 | + Seber e AM Cie) 6s) oe 20

oi MEE 8 PMNS 24

TABLE OF AUTHORITIES

Page

CASES:

Avalon Cinema Corp. v. Thompson, 689 F. 2d 137 (8th

OS a nr ene Pre a pers errr 7, @

Beverly Bank v. Board of Review of Will County, (3d

Dist. 1983), 117 Ill. App. 3d 656, 453 N.E. 2d 96,

ce ee OS a a . ) re 1o, 3, 3z 3a

Blum v Stenson, 465 U.S. 892 (1984).............. 17, 20

Chrapliwy v. Uniroyal, Inc., 670 F. 2d 760 (7th Cir.

1982) cert. denied, 461 U.S. 956 (1983) .......... 17, 18

City of Riverside v. Rivers, 477 U.S. 561 (1986) ....... 16

Donaldson v. O'Connor, 454 F. Supp. 311 (N.D. Fla.

Reese a aera bins con euaen eect ae kn alre bens 19

Donnell v. United States, 682 F. 2d 240 (D.C. 1982) .17, 20

Dusanek v. Hannon, 677 F. 2d 538 (7th Cir. 1982). .... 11

Hensley v. Eckerhart, 461 U.S. 424 (1983) 9, 13, 14, 20, 21

Hudson v. Palmer, 468 U.S. 517 (1984) ............... 12

In Maceira v. Pagan, 698 F. 2d 38 (1st Cir. 1983)..... 17

In re Agent Orange Product Liability Litigation, 818

ie lee Be” Be. 3 ee eri 17

Johnson v. Georgia Highway Express, Inc., 488 F. 2d

oo ee ee 21, 22, 2

Lenard v. Argento, 808 F. 2d 1242 (7th Cir. 1987)

ee a Dh ase tad ow a eee se ea 5 13, 14, 16

iv

TABLE OF AUTHORITIES - Continued

Lightfoot v. Walker, 826 F. 2d 516 (7th Cir. 1987)..... 19

Lynch v. City of Milwaukee, 747 F. 2d 423 (7th Cir.

icc, GEE CEE Ee Pe nr eer aan al, a 420

McKesson v. Division of Alcoholic Beverages &

Tobacco, __U.S.__, 110 Sup. Ct. 2238 (1990) ...... 10

Tampam, Inc. v. Property Tax Appeal Board, et al., (3d

Dist. 1991) 208 Ill. App. 3d 127, 566 N.E. 2d 905..... 8

Ustrak v. Fairman, 851 F. 2d 983 (7th Cir. 1988)....9, 14

OTHER AUTHORITIES:

H.R. Rep. No. 1558, 94th Cong., 2d Sess. 8-9 (1976) .... 16

S. Rep. No. 1011, 94th Cong., 2d Sess. 5-6 (1976) .... 16

U.S. Code Cong. & Admin. News 1976, p. 5909..... 16

No. 91-371

¢

In The

Supreme Court of the United States

October Term, 1991

e

TAMPAM, INC.,

Petitioner,

VS.

OGLE COUNTY BOARD OF REVIEW, SUPERVISOR

OF ASSESSMENTS FOR OGLE COUNTY, COUNTY

TREASURER OF OGLE COUNTY, also acting as

Collector of Taxes, and THE COUNTY OF OGLE,

Respondents.

¢

Petition For Writ Of Certiorari To The

Appellate Court Of Illinois Second Judicial District

.

BRIEF IN OPPOSITION

¢

JURISDICTION

The jurisdictional requisites are adequately set forth

in the petition. However, as treated more fully by the

argument contained herein, Respondents do not believe

Petitioner has shown any reason for this Court to exercise

its sound judicial discretion to grant the writ.

- ¢

STATEMENT OF THE CASE

Respondents respectfully suggest that this Court dis-

regard Petitioner’s statement of the case. First of all,

]

Petitioner does not cite to the record as required by Rule

14.1(h). Secondly, Petitioner, in its statement of the case

which is for factual material and not argument, attempts

to color or even mislead the Court via certain statements.

Specifically, the Petitioner alleges that its administrative

appeal to the Property Tax Appeal Board granted no

relief. (Petition for Writ at 9). Petitioner fails to tell the

Court that Tampam, Inc. failed to appear at the hearing

which was scheduled to hear evidence as to why the

assessment by the Ogle County Board of Review was

incorrect. In fact, Petitioner even failed to appear at the

hearing by the Ogle County Board of Review where Tam-

pam, Inc. should have provided evidence as to why the

assessment of its property was allegedly incorrect.

Additionally, the Petitioner concludes that assess-

ment procedures “constituted the assessor’s intentional

pattern and practice throughout Ogle County, Illi-

nois ...” (Petition at 10). As we argued at the Appellate

Court of Illinois, Second District, and as the Court found,

“there is nothing in the record to show clear and inten-

tional discrimination.” (See Appendix A, page 24 of the

Petition).

Also on pages 10 and 11 in Petitioner’s statement of

the case, it states that its “roads claim” was a violation of

42 U.S.C. Section 1983. The trial court decided that “[t]he

public-roads challenge was never viable under section

1983, ...” (R. C-379). This conclusion was also affirmed

by the Appellate Court of Illinois, Second District. (See

Appendix A, page 22 of the Petition).

While the Petitioner may be correct when it says that

Tampam, Inc.’s home office, business files, and officers

and directors were located in the Chicago area (Petition at

page 11), it is likewise true that inter alia, the corporation

owned real estate, transacted business, and paid taxes in

Ogle County, Illinois.

In addition to Petitioner’s contention that local coun-

sel from Ogle County was employed for routine court

appearances and filings (Petition for Writ, page 11), local

counsel Philip H. Nye, Jr. of Fearer, Nye, Ahlberg &

Chadwick, filed the original complaint which initiated

this litigation (R. C-11) and remained involved in the

litigation until the trial court proceedings had been con-

cluded.

Lastly, Petitioner’s statement of the case is argumen-

tative and should be disregarded. For example, Petitioner

alleges that the court’s determination that $14,872 repre-

sented a reasonable attorneys’ fee was “founded upon an

erroneous reading of the law and of the pleadings in the

case.” (Petition at 13).

In lieu of Petitioner’s statement of the case, we

respectfully suggest that the Court consider the following

as a more reliable statement of the case.

RESPONDENTS’ STATEMENT OF THE CASE

The Plaintiff, Tampam, Inc., an Illinois Corporation,

initiated this litigation as an administrative appeal of the

1986 real estate tax assessments levied against its Ogle

County farmland. After the Ogle County Board of Review

and the Property Tax Appeal Board of Illinois upheld the

eeeree

assessments, the Plaintiff filed a complaint (R. C-11) seek-

ing judicial review pursuant to the Illinois Administrative

Review Act. The complaint was filed on January 8, 1988,

by Philip H. Nye, Jr., of the Ogle County bar. Subsequent

to Defendant’s Motion to dismiss Petition for Administra-

tive Review (R. C-21) and Motion to Strike (R. C-24),

Attorney Thomas R. McMillen of the Cook County bar,

filed an appearance. (R. C-28). Attorney McMillen also

happens to be the president and principal stockholder of

the plaintiff corporation, Tampam, Inc. (R. C-370) (here-

inafter, Tampam).

On June 3, 1988, Tampam filed an amended com-

plaint (R. C-52) which alleged that public roads and high-

ways which lie within the legal description of its

property, and other land of no agricultural economic

value were being improperly assessed and taxed by Ogle

County authorities. Additionally, Tampam sought certi-

fication as the representative party of all Ogle County

farmers who were similarly situated. The Ogle County

Board of Review was added as a defendant.

Count I of the Amended Complaint sought monetary

relief as well as preliminary and permanent injunctive

relief against the assessment, collection and disbursement

of improper farm taxes. Included in Count I was, for the

first time, a claim for relief pursuant to the Federal Civil

Rights Act of 1871 (42 U.S.C. §1983).

Tampam’s request for judicial review of the adminis-

trative appeal was now contained in Count II of the

Amended Complaint.

On September 12, 1988, Tampam filed a Motion for

Preliminary Injunction. (R. C-119). The Court conducted

an emergency hearing on the motion on September 15,

1988, and issued an Order (R. C-136) denying the Plain-

tiff’s Motion for Preliminary Injunctive Relief and a Mem-

orandum Opinion. (R. C-138).

On October 24, 1988, with leave of Court, Tampam

filed a Seconded Amended Complaint. (R. C-154). Now

the County of Ogle was a defendant and to Count I was

added an allegation that defendants had not debased the

value of farmland which contained fields of irregular size

and shape.

After a hearing, the Court certified lampam as class

a4

representative for . . all owners of farms in Ogle

County, Illinois, contained wasteland .. . ” and dismissed

the Ogle County Treasurer from the suit but retained

jurisdiction to implement reli © which may be granted

against other defendants. (R. C-270).

Plaintiffs and Defendants presented a Stipulation for

Settlement (R. C-278) to the Court on May 2, 1989. The

Court entered an Order Approving Stipulation for Settle-

ment (R. C-281) on the same day. The stipulation for

settlement as well as the Order were drafted by Attorney

McMillen. The third paragraph of the Order (/d.) pro-

vides, “And the Court finding that said Stipulation fairly

and reasonably settles all matters now in dispute between

the respective parties, with the exception of Plaintiff's

attorney fees and costs;” (emphasis added).

The Court ruled that Tampam had abandoned the

“debasement” issue. (R. C-373).

On June 30, 1989, Tampam filed its Petition for Fees

and Expenses. (R. C-289). The petition claimed that Attor-

ney McMillen was entitled to compensation from defen-

dants based on 161.25 hours valued at $190.00 per hour

while employed at Bell, Boyd and Lloyd, a Chicago,

Illinois, lawfirm. This amounted to $30,637.25. During the

pendency of this matter, McMillen left Bell, Boyd and

Lloyd and opened an office as a sole practitioner.

McMillen claims that he worked 84.5 hours at an hourly

rate of $150.00 which results in an additional $12,675.00

for a total of $43,312.25. Tampam provided affidavits

from Chicago attorneys that these hourly rates were

appropriate for McMillen’s work based upon their knowl-

edge of the Chicago market area. Tampam’s petition next

requested a 50% enhancement of this fee resulting in the

total claimed for McMillen as $64,968.75.

An associate at Bell, Boyd and Lloyd, Ms. Suizzo,

claimed 31 hours at $85.00 per hour for a total of

$2,635.00.

Corresponding attorneys, Fearer, Nye, Ahlberg and

Chadwick, of the Ogle County bar submitted a fee

request based upon $95.00 per hour and an itemized

expense record for a total of $6,140.91. (R. C-298). The

total of fees and expenses which the plaintiff sought from

the defendants amounted to $74,693.91.

In July, 1989, the Court conducted a hearing on Plain-

tiff’s Petition for Fees and Expenses. The defendants con-

ceded that Tampam had achieved sufficient relief, albeit

not total relief, to qualify as a prevailing party, and was,

therefore, entitled to recover a reasonable fee. However,

defendants argued that the amount requested was unrea-

sonable. The court entered an Order Awarding Attorneys’

Fees and Expenses (R. C-367) and a Memorandum Opin-

ion. (R. C-369). The Court found that Tampam’s waste-

land issue presented a substantial section 1983 claim even

though no opportunity was available to prove the allega-

tion because the parties decided to settle before trial. This

finding warranted the recovery of attorneys’ fees. (R.

C-379).

However, the Court held that “[t]he public roads

challenge was never viable under section 1983[.]” Cd.)

The Court also concluded that the public roads issue was

legally and factually distinct from the wasteland claim.

The Court determined that at least 35% of the hours

expended by Tampam’s attorneys were attributed to the

public roads issue and excluded them from the lodestar

computation. (R. C-381).

The Court next determined that the reasonable

hourly rate for Attorney McMillen was $95.00 per hour -

the same as for Tampam’s Ogle County attorney who has

been a general partner in the firm of Fearer, Nye, Ahlberg

and Chadwick for more than 25 years. (R. C-382). Attor-

ney Nye submitted an affidavit stating that $95.00 repre-

sented “the usual and customary charge for legal services

of a like nature in Ogle County, Illinois.” (R. C-335).

Attorney John B. Roe, also a member of the Ogle

County bar, submitted a supporting affidavit which

stated that the hourly rate of $95.00 “is consistent with

that of other senior attorneys in Ogle County with com-

parable skill and seniority who engage in litigation prac-

tice.” (R. C-336).

After multiplying what the Court determined to be a

reasonable number of hours expended on this matter

times the reasonable hourly rates, the lodestar was calcu-

lated to be a total of $18,672.15. (R. C-383).

The Court found that the exceptional success

required to support Tampam’s requested upward enhan-

cement was “clearly not present, for the lodestar pro-

vide[dj] more than adequate compensation”. Based upon

the amounts involved in the case and the results

obtained, the Court reduced $3,000.00 from McMillen’s

compensation and $800.00 from Nye’s. The defendant,

Ogle County, was then ordered to pay a total award of

$16,345.91. (R. C-384).

Following Plaintiff's Supplemental Petition for Fees

and Expenses (R. C-411) and a hearing on the same, the

Court entered a Modified Order Awarding Attorneys’

Fees and Expenses (R. C-473.). The Court applied the

same process as before and increased the total award to

Plaintiff to $18,173.79. (R. 475).

Tampam filed a notice of appeal to the Appellate Court

of Illinois, Second District, on April 19, 1990. The court, in a

published opinion, Tampam, Inc. v. Property Tax Appeal Board,

et al. (3d Dist. 1991) 208 Ill. App. 3d 127, 566 N.E. 2d 905,

affirmed the decision of the trial court in all respects.

Tampam’s subsequent petition for leave to appeal to

the Iilinois Supreme Court was denied on June 5, 1991

and its Petition for Writ of Certiorari to the Appellate

Court of Illinois, Second Judicial District was filed with

the Clerk of the United States Supreme Court on Septem-

ber 3, 1991.

STANDARD OF REVIEW

Since “the [trial] court [possesses] superior under-

standing of the litigation and the desirability of avoiding

appellate review of what are essentially factual matters”,

Hensley v. Eckerhart, 461 U.S. 424, 437 (1983), it is within

the Court’s sound discretion to determine the amount of

the fee award. Id.

If ever there was a case for reviewing the deter-

minations of a trial court under a highly defer-

ential version of the “abuse of discretion”

standard, it is in the matter of determining the

reasonableness of the time spent by a lawyer on

a particular task in a litigation in that Court. Not

only is the trial court in a much better position

than the Appellate Court to make this deter-

mination, but neither the stakes nor the interest

in uniform determination are so great as to jus-

tify microscopic appellate scrutiny.

Ustrak v. Fairman, 851 F.2d 983, 987 (7th Cir. 1988). (quotes

in original).

_¢

ARGUMENT

I. THIS COURT SHOULD DENY THE WRIT WHERE

THE ILLINOIS COURTS PROPERLY DECIDED

THAT PETITIONER’S LEGALLY AND FACTUALLY

DISTINCT PUBLIC ROADS CLAIM WAS NEVER

VIABLE UNDER 42 U.S.C. §1983, AND THAT

HOURS SPENT ON THIS UNRELATED CLAIM

MUST BE ELIMINATED FROM THE LODESTAR

COMPUTATION.

Tampam’s counsel conceded that even though ease-

ments over which county and township roads pass

10

through its property are within its legal boundaries, the

county taxing authorities have given the easements a

“zero” value. (R. C-145). It is the procedures by which the

widths of certain easements or rights-of-way were calcu-

lated that are in dispute. (/d., see also R. C-371). As the

Court observed, if Tampam had a constitutional claim on

this issue, it must be as a violation of due process. (R.

C-380).

However, whereas “[wle have described ‘the

root requirement’ of the Due Process Clause as

being ‘that an individual be given an oppor-

tunity for a hearing before he is deprived of any

significant property interest,’” Cleveland Board of

Education v. Loudermill, 470 U.S. 532, 542, 105

S.Ct. 1487, 1493, 84 L.Ed.2d 494 (1985) (citation

omitted), it is well established that a State need

not provide predeprivation process for the exac-

tion of taxes. Allowing taxpayers to litigate their

tax liabilities prior to payment might threaten a

government’s financial security, both by creat-

ing unpredictable interim revenue shortfalls

against which the State cannot easily prepare,

and by making the ultimate collection of validly

imposed taxes more difficult. (citations omit-

ted).

McKesson v. Division of Alcoholic Beverages & Tobacco, ___

U.S. __, 110 Sup. Ct. 2238, 2250 (1990). (emphasis in

original).

Where state law provides adequate post-deprivation

remedies, due process has not been denied; and therefore,

cannot be the basis for a §1983 action. Beverly Bank v.

Board of Review of Will County, (3d Dist. 1983), 117 III.

11

App. 3d 656, 663, 453 N.E. 2d 96, 101, cert. denied, 466 U.S.

951.

In Beverly Bank, the plaintiff brought suit under 42

U.S.C. §1983 and alleged that the Board of Review

increased real property assessments without affording

class members a statutorily required hearing. As in the

case at bar, the plaintiff alleged that the defendants had

violated State law as well as denied them equal protec-

tion and due process pursuant to the Fourteenth Amend-

ment of the Constitution of the United States. The Beverly

Bank court held that although the action of the Board of

Review was illegal under State law, the plaintiffs were

not deprived of their property without due process of law

because exactly that type of arbitrary action by taxing

officials can be corrected by pursuing the remedies which

the state provides. (/d.) Accordingly the Court affirmed

the trial court’s dismissal of the due process claim. In the

case at bar, the trial court similarly found that an ade-

quate post-deprivation remedy existed and, therefore,

Tampam’s public roads due process claim had to fail. As

the Beverly Bank court quoted:

These decisions do not amount to a requirement

of exhaustion of administrative remedies as a

predicate to a section 1983 claim. Rather, they

express the logical propositions that a State can-

not be held to have violated due process

requirements when it has made procedural pro-

tection available and the plaintiff has simply

refused to avail himself of them.

Id. quoting Dusanek v. Hannon, 677 F.2d 538, 543 (7th Cir.

1982).

12

As pointed out in Respondent’s Statement of the

Case, Tampam, Inc. initiated this litigation as an adminis-

trative appeal of the 1986 real estate tax assessments

levied against its Ogle County farmland. The Ogle

County Board of Review scheduled a hearing at which

the Plaintiff could have presented evidence and argument

as to why it believed that its farmland had been incor-

rectly assessed. Plaintiff failed to appear at the hearing

and, hence, his appeal was denied. Plaintiff next appealed

for relief from the Property Tax Appeal Board of Illinois.

Once again a hearing was set for Plaintiff to present

evidence and argument and, once again, Plaintiff failed to

appear. Plaintiff's appeal was thus denied after which

Plaintiff filed a complaint seeking judicial review.

Here, Plaintiff was afforded an adequate post depri-

vation remedy of which it failed to avail itself. Therefore,

even if Plaintiff’s assessment may have been incorrect, it

was not deprived of property without due process of law.

“(T]he State’s action is not complete until and unless

it provides or refuses to provide a suitable post-depriva-

tion remedy[.]” Hudson v. Palmer, 468 U.S. 517, 534-36

(1984). The court in Hudson, just as the court in the case at

bar, found that the plaintiff’s due process rights were not

violated because the State provided an adequate post-

deprivation remedy. Id.

The Court in Beverly Bank noted that plaintiffs had

stated a §1983 cause of action, vis-a-vis its equal protec-

tion claim. It, therefore, remanded the case back to the

circuit court for trial. A denial of equal protection

requires more than misinterpretation of the law or even

13

application of the law in an arbitrary manner. The com-

plaining party must prove that the alleged discrimination

was intentional or purposeful. Beverly Bank, 117 Ill. App.

3d at 6( «, 453 N.E. 2d at 101. Applying this principle to

the case at bar, because the parties settled this matter

before trial on the merits, the court made no findings that

the defendant either intentionally or purposefully dis-

criminated against Tampam. Additionally, the settlement

agreement did not stipulate that such was the case.

Therefore, Tampam’s allegation of an equal protection

violation must also fail. Just as the due process claim

could not serve as the basis of a §1983 action, neither can

this unsuccessful equal protection claim.

Even where, as here, claims based on different facts

and legal theories are advanced against the same defen-

dants. work on unrelated, unsuccessful claims by counsel

for prevailing parties requires that such claims be consid-

ered as if they had been raised in separate lawsuits.

Accordingly, no fee is to be awarded for time pursuing

the unsuccessful claims. Hensley v. Eckerhart, 461 U.S. 424,

434-435 (1983). The Court in the case at bar concluded

that the public roads issue was never a viable §1983

claim. (R. C-381). Additionally, the court concluded that

the claim was factually and legally distinct from the

wasteland claim, and therefore, not properly compens-

able under §1988 in this case.

While the Hensley court held that legal services

expended in pursuit of related claims, although unsuc-

cessful, may be compensable, a plaintiff is not to be

reimbursed for attorneys’ fees which are allocated to

factually unrelated, unsuccessful claims. Lenard v.

14

Argento, 808 F.2d 1242, 1245-56 (7th Cir. 1987), Ustrak v.

Fairman, 851 F.2d 983, 988 (7th Cir. 1988).

The method by which county officials calculate the

width of public roadways that pass through farm owners’

property is factually and legally distinct frem an allega-

tion that county officials did not properly apply statutory

requirements when assessing wasteland.

Because it is impossible to identify with precision the

amount of time spent in pursuit of the unrelated and

unsuccessful claims, the court is to use its best estimate of

the time counsel would have expended on the successful

claim(s) had the suit been restricted to the ground on

which he prevailed plus related claims within the mean-

ing of Hensley. Ustrak, 851 F.2d at 988-989. The court’s

best estimate as to the time expended by Tampam’s attor-

neys was that no more than 65% of the hours claimed

could be reliably attributed to the successful wasteland

claim including all issues through which it straddled. (R.

C-381).

From the foregoing, the court properly reduced Tam-

pam’s attorneys’ hours and calculated the lodestar based

on 198.67 hours worked.

At page 19 of the Petition for Writ of Certiorari, it is

alleged that the Stipulation for Settlement (R. C-278) was

only for a partial settlement of the class action. We

strongly disagree. On May 2, 1989, the trial court entered

an Order Approving Stipulation for Settlement (R. C-281).

The Order said, “And the Court finding that said Stipula-

tion fairly and reasonably settles all matters now in dis-

pute between the respective parties, with the exception of

Plaintiff’s attorney fees and costs; ...” Id. (emphasis

15

added). Additionally, the Petitioner itself, in its Plaintiff’s

Petition for Fees and Expenses (R. C-289), states that after

it prepared and the Court approved a Notice to be sent to

the class members,

merits of the Complaint were concluded.” Id. at C-293.

... the attorney’s services on the

(emphasis added).

Contrary to Petitioner’s assertion at page 30 of the

Petition for Writ, the Ogle County State’s Attorney did

not proffer an offer of settlement in this case. Instead, it

was the Petitioner who made the offer of settlement and

the record documents this by the words of Petitioner’s

own counsel. Counsel writes, “ ... the defendant’s (sic)

attorneys reconsidered their opposition to plaintiff's offer

of settlement.” (emphasis added). The primary reason to

point this out is to demonstrate yet another attempt by

Petitioner to color the facts and the law to the point of

possibly misieading the Court.

Petitioner incorrectly asserts that the only attorneys

with an office in Ogle County and an a.v. rating in Mar-

tindell’s (sic) was the local counsel, Philip H. Nye of the

law firm of Fearer, Nye, Ahlberg and Chadwick. Other

Ogle County attorneys with such designation include

Moehle, Smith & Nieman; Fearer, Nye, Ahlberg & Chad-

wick; Williams & McCarthy; David K. Guest; William

Barrick; and Robert Gosdick.

This argument by Petitioner, nonetheless, should be

disregarded because it was not-in the record below. How-

ever, even if the Court chooses to allow it, §1988 speaks

not a word about plaintiffs choosing between rated and

16

non-rated attorneys in a publication by Martindale-Hub-

bell. Additionally, there is not a scintilla of judicial inter-

pretation that lends any credence or weight to

Petitioner’s weak argument. In fact, Attorney McMillen, a

former United States District Court Judge for the North-

ern District of Illinois, was the trial judge in the case of

Lenard v. Argento, 808 F. 2d 1242 (7th Cir. 1987). The

Seventh Circuit in Lenard said that §1988 allows only a

reasonable fee. This means one which is large enough to

attract competent counsel to represent plaintiffs, but no

larger. Id. at 1247. Citing to H.R. Rep. No. 1558, 94th

Cong., 2d Sess. 8-9 (1976); S. Rep. No. 1011, 94th Cong.,

2d Sess. 5-6 (1976); U.S. Code Cong. & Admin. News

1976, p. 5909; City of Riverside v. Rivera, 477 U.S. 561

(1986).

Again, in an attempt to subliminally mislead this

Court, Petitioner states that the trial court appointed

plaintiff’s metropolitan attorneys to represent the class

(see Petition at 11, 30). We acknowledge that the court

appointed Tampam to represent the class of plaintiffs

designated in the Second Amended Complaint (R. C-154).

However, a distinction must be made between being

appointed to represent the class and an appointment as

the legal representative of the class. Here, the court did

not appoint attorney McMillen as be the attorney for the

class.

Attorney McMillen, on behalf of the Petitioner,

accuses the trial court of deciding how much this case

was worth at or before the time the Petition for Attor-

neys’ Fees was presented. (Petition for Writ at page 31)

and then devising a scheme by which it could achieve its

objective. This assertion is absolutely ludicrous and there

17

is not a shred of evidence in the record to support this

unwarranted accusation. Furthermore, it is clear from the

scholarly Memorandum Opinion (R. C-369) prepared by

the Court that it spent a great amount of time in deciding

the attorneys’ fees issue in this case.

As a minor point, but to once again correct the Peti-

tioner, the court did make citation to Chrapliwy v. Uni-

royal, Inc., 670 F. 2d 760 (7th Cir. 1982) cert. denied, 461

U.S. 956 (1983), (R. C-383), contrary to the allegation in

the Petition for Writ of Certiorari at page 33.

Ii. THIS COURT SHOULD DENY THE WRIT WHERE

THE ILLINOIS COURTS PROPERLY DETER-

MINED THAT THE FORUM RATE PROVIDED A

REASONABLE RATE OF COMPENSATION FOR

ATTORNEY MCMILLEN.

Reasonable fees under §1988 are to be determined by

the prevailing market rates in the relevant community.

Blum v. Stenson, 465 U.S. 892, 896 (1984) (emphasis

added). A majority of the Circuit Courts of Appeal have

adopted the forum as the presumptively relevant commu-

nity for purposes of determining the prevailing market

rate for attorneys’ fees. (See In Maceira v. Pagan, 698 F.2d

38, 40 (ist Cir. 1983); In re Agent Orange Product Liability

Litigation, 818 F. 2d 226, 232 (2nd Cir. 1987); Chrapliwy v.

Uniroyal, Inc., 670 F. 2d 760, 768 (7th Cir. 1982) cert. denied,

461 U.S. 956 (1983); Avalon Cinema Corp. v. Thompson, 689

F, 2d 137, 140 (8th Cir. 1982); Donnell v. United States, 682

F, 2d 240, 252 (D.C. 1982)).

The proper forum for suit in this case was Ogle

County since the situs of the property is here. The court

18

in its discretion, may decide that the local rate is reason-

able where an out-of-town attorney provides legal ser-

vices which local attorneys could do as well. Chrapliwy v.

Uniroyal, Inc., 670 F.2d 760, 768 (7th Cir. 1982) cert. denied,

461 U.S. 956 (1983). Tampam reads Chrapliwy to mandate

that the attorney’s own rate, not the forum rate, must be

applied to the lodestar. We strongly disagree. In

Chrapliwy, the trial court was reversed for limiting the

recovery of plaintiff’s attorney’s fees to rates in the

locality where the court sat. The Seventh Circuit, on

review, emphasized that the defendant had invited the

use of high-priced, out-of-town attorneys by its own use

of similarly expensive non-local attorneys. Additionally,

in that case, the trial court did not make a finding that

local counsel with the requisite expertise were available

to try plaintiff’s case. If the court believes that services of

equal quality were available at a lower rate in the area

where the services were provided, then the judge has

discretion to challenge the reasonableness of the out-of-

town attorney’s billing rate. Chrapliwy, 670 F.2d at 769.

In this case, Tampam submitted affidavits as to the

value of McMillen’s services in the Chicago area. Addi-

tionally, Tampam submitted affidavits from two senior

members of the Ogle County Bar. Attorney Nye, who

filed tne original complaint on behalf of Tampam in this

matter and continued to be involved until settlement was

reached, submitted an affidavit stating that his usual and

customary rate for legal services of a like nature is $95.00

per hour. (R. C-334-335). Attorney John B. Roe submitted

an affidavit (R. C-336-337) which supported Attorney

Nye’s $95.00 per hour rate stating that it was consistent

19

with other senior litigators with comparable skill and

seniority within Ogle County.

In addition to the affidavits presented, the court may

utilize its own knowledge of prevailing rates in the area.

Lightfoot v. Walker, 826 F.2d 516, 524 (7th Cir. 1987).

The court made a specific finding that many of the

local attorneys could have easily handled this straight-

forward tax case. Few, if any, would have been reluctant

to pursue the matter on behalf of Tampam. Other jurisdic-

tions permit plaintiffs to receive the higher out-of-town

rates where it is demonstrated that plaintiff was unable to

retain local counsel despite diligent, good faith efforts.

Avalon Cinema Corp. v. Thompson, 689 F.2d 137, 140-141

(8th Cir. 1982) quoting Donaldson v. O'Connor, 454 F.

Supp. 311, 315 (N.D. Fla. 1978). See also Donnell v. U.S.,

682 F.2d 240, 251 (D.C. Cir. 1982). Tampam provided no

evidence to the court which indicated that despite dili-

gent, good faith efforts, it was unable to retain competent,

local counsel for this matter. In fact, Tampam provided no

evidence that it contacted more than one law firm to

represent it in this matter.

Grasping for some type of rationale to justify its

request for Attorney McMillen’s fee, Tampam claims that

much of his work was performed in Chicago and not in

Ogle County; and, therefore, he should be compensated

at his Chicago rates at least for the hours worked in

Chicago. While no precedent exists which gives credence

to such an argument, to adopt such a practice could lead

to absurd results. Some attorneys from jurisdictions with

relatively low prevailing rates may purposefully perform

services in locales with higher rates just to increase their

20

compensation. In Donnell, the court held that where much

of the work must be performed somewhere other than

where the case is tried, that alone was insufficient to

deviate from the rule that the relevant community for

determination of rates of attorney compensation is the

one in which the trial court sits. 682 F.2d at 251-252.

Logic and the persuasive reasoning of other jurisdic-

tions which have addressed the issue indicate that even

for McMillen’s work in the Chicago area, Tampam should

receive the forum rate of $95.00 per hour.

Il. THIS COURT SHOULD DENY THE WRIT

WHERE THE ILLINOIS COURTS PROPERLY

REJECTED PLAINTIFF’S PETITION FOR A 50%

UPWARD ENHANCEMENT AND PROPERLY

DECIDED TO REDUCE THE MCMILLEN AND

NYE LODESTARS TO REFLECT THE AMOUNTS

INVOLVED AND THE RESULTS OBTAINED.

Tampam petitioned for a 50% upward enhancement

of Attorney McMillen’s lodestar due to the claimed

unusual and difficult nature of this case and the results

obtained in the settlement agreement. (R. C-290). An

upward enhancement may be awarded in some cases

where exceptional success has been achieved. Hensley, 461

U.S. at 435. (emphasis added). The fee applicant bears the

burden of proving that such an enhancerment is required

to obtain a reasonable fee. Blum, 465 U.S. at 898. How-

ever, when determining whether to increase the lodestar,

neither novelty, complexity, nor results obtained provides

the basis for such an increase. These factors are generally

subsumed within the other factors used to calculate the

lodestar. Id. at 898-900.

21

In this case, the court found that the “exceptional

success” requirement necessary for an upward enhance-

ment was clearly absent. (R. C-384). Thus, the court prop-

erly exercised its discretion not to award the

enhancement which Tampam requested.

In Hensley, the court adopted the 12 factors enumer-

ated in Johnson v. Georgia Highway Express, Inc., 488 F.2d

714, 717-719 (Sth Cir. 1974), which provide a framework

for trial courts to determine the reasonableness of a fee

award pursuant to fee shifting statutes. Hensley, 461 U.S.

at 429-430, at n.3. From the court’s assessment of the case,

it may exercise its discretion to reduce the lodestar based

on one or more of the Jofnson factors. Lynch v. City of

Milwaukee, 747 F.2d 423, 429-430 (7th Cir. 1984). The court,

when making an adjustment to the lodestar - either

upward or downward —- should make it clear that its

decision is based upon the results obtained. Hensley, 461

U.S. at 437.

In Count I of Tampam’s Second Amended Complaint,

the Plaintiff enumerates its prayers for relief consisting of

six paragraphs. (R. C-154, 158). Tampam was successful

in obtaining the relief requested in paragraph 1 — that is,

certification as the representative of the proposed class.

However, Tampam was totally unsuccessful in obtaining

any relief requested in paragraphs 2, 3 and 4. See Stipula-

tion for Settlement (R. C-278-280) and Order Approving

Stipulation for Settlement (R. C-281-284). Although the

parties agreed that assessments on wasteland in Ogle

County would be reduced to $1.00 per acre for 1988 and

$0.00 per acre for 1989 and thereafter, Tampam did not

obtain the specific relief requested in paragraph 5. Turn-

ing to the last paragraph of Count I, Tampam achieved

22

only partial relief, that being an award of reasonable

attorneys’ fees, costs and expenses. Therefore, Tampam

only achieved status as the class representative, a reduc-

tion in the assessments on wasteland, and an award of

reasonable attorneys’ fees, costs and expenses.

As previously noted, the public roads issue was

never viable under §1983 and not compensable pursuant

to §1988. Additionally, Tampam abandoned the debase-

ment claim for assessment of fields of irregular shape and

size. (R. C-373). While Tampam now disputes that the

debasement issue was abandoned, even if it was not

abandoned, that issue remains for future negotiation or

settlement and was not part of the relief for which Tam-

pam should be compensated. Therefore, Tampam did not

prevail on this claim.

The other part of the Johnson factor which was used

by the court to reduce the lodestar is the “amounts

involved”. In the case at bar, the amount of taxes which

was collected annually from all of the wasteland in the

entire county was less than Two Thousand Four Hundred

Dollars ($2,400.00). See Affidavit of James Harrison, Ogle

County Supervisor of Assessments. (R. C-347). Since

there are approximately 5500 parcels of land designated

as farm parcels in Ogle County, this amounts to approx-

imately 43 cents ($0.43) (i.e., $2,400 + 5505) per parcel.

Any reduction in the lodestar should be for one of

the enumerated factors expressed in Johnson and should

be expressed in a dollar amount reflecting, as best as

possible, the market value of the specific defect. Lynch v.

City of Milwaukee, (7th Cir. 1984), 747 F. 2d 423, 430. In the

case at bar, the court did this very thing.

F

An abuse of discretion occurs only when no reason-

able person could take the view adopted by the triai

court. Lynch, 747 F. 2d at 426. The trial court did not abuse

its discretion in this case.

In this case, the only compensable claim was the

wasteland challenge. Additionally, Tampam only

achieved a very limited portion of the relief which it

sought in Count I of the Second Amended Complaint.

Applying this information to this case, the court reduced

Attorney McMillen’s lodestar by $3,000.00 and attorney

Nye’s by $800.00 to reflect the amount involved and the

results obtained — one of the 12 Johnson factors. Thus, the

court indicated that it had considered the results which

Tampam obtained when it exercised its discretion to

reduce the compensation for Attorneys Nye and

McMillen.

Petitioner seems to believe that if this Court allows

the lower court’s decision to stand, or, in the alternative,

if this Court grants the Writ but affirms the lower court’s

decision, then plaintiffs will not be able to select the

counsel of their choice. This assertion is absolutely not

true. A party can select any attorney it desires for repre-

sentation; this interpretation for awarding attorneys’ fees

to prevailing plaintiffs pursuant to 42 U.S.C. §1988 only

sets the standard for payment. ”... it is no part of civil

rights law to overcompensate successful plaintiffs”

Lenard, 808 F. 2d at 1248.

24

CONCLUSION

For the foregoing reasons, the Respondents respect-

fully request that this Honorable Court deny the Petition

for Writ of Certiorari.

Respectfully submitted,

DENNIS SCHUMACHER

State’s Attorney

County of Ogle

State of Illinois

DanieL P. MERRIMAN”

Assistant State’s Attorney

County of Ogle

State of Illinois

M. THomas Suits

Attorney at Law

103 North Franklin Avenue

Polo, Illinois 61064

(815) 946-2276

Counsel for Respondents

*Counsel of Record