dissenting:
I respectfully dissent. In this case, the only issue before the trial court on plaintiff’s petition for attorney fees was the amount of attorney fees pursuant to section 1988 (42 U.S.C. §1988 (1988)), not whether the “roads claim” was a viable section 1983 action (42 U.S.C. §1983 (1988)) so as to entitle plaintiff to fees. Therefore, I would find that the denial of fees for the “roads claim” was error. Further, I would find that the trial court abused its discretion by reducing the hourly rate to the local rate and by further reducing the award to reflect the amount involved and result obtained.
Because the parties stipulated to a settlement of count I, the trial court erred in determining the viability of the “roads claim” as a section 1983 cause of action. Count I of plaintiff’s second amended complaint based on a section 1983 cause of action alleged that defendants violated the class’ federally protected rights of due process and equal protection by improperly assessing and taxing certain types of farmland, including wastelands, land containing public roads, and lands of irregular size and shapes. The stipulation for settlement of count I included, among other things, a description of the plaintiff as “[a]ll owners of farms in Ogle County, Illinois, containing public roads or highways, or wasteland, which has been illegally or unconstitutionally taxed.” (Emphasis added.) The settlement also prescribes procedures allowing class members to obtain refunds for taxes improperly collected in the year of 1988 for taxes assessed against portions of public roads on private land and thereafter assessing public roads at the rate of $0 per acre for those landowners who were improperly taxed. The stipulation for settlement also agreed that plaintiff could recover attorney fees and stated “[pjursuant to 42 U.S.C. sec. 1988, Plaintiff’s attorneys will submit to the court their claims for attorneys’ fees and costs which have been incurred in connection with this litigation or for the claims involved in it.” (Emphasis added.) Plaintiff was a prevailing party pursuant to section 1988. (See Maher v. Gagne (1980), 448 U.S. 122, 129, 65 L. Ed. 2d 653, 661, 100 S. Ct. 2570, 2575.) Defendants did not contend otherwise in the trial court. Therefore, the only issue presented to the trial court was the petition for fees.
In the hearing on the petition for attorney fees, defendants contested only the reasonableness of the fees sought by plaintiff. Specifically, defendants contested plaintiff’s request for an enhancement, certain time discrepancies, the description of the work performed, the number of hours and the rate of pay. Defendants neither in their written response to the petition for fees nor at the hearing contested the viability of the "roads claims.” From the plain language of the stipulation for settlement, it is apparent that defendants settled the section 1983 claim involving public roads and highways. Therefore, the viability of the “roads claim” as a section 1983 action was not before the trial court. The only issue before the trial court was the reasonableness of the petition for fees. Thus, the trial court erred by sua sponte in its written decision addressing for the first time the issue of the viability of the “roads claim” as a section 1983 cause of action. Accordingly, without addressing the merits of whether of the “roads claim” is a valid section 1983 action as that issue was conceded by the settlement, I dissent from that portion of the majority opinion which affirms the trial court’s decision not to award attorney fees for the “roads claim.”
I also disagree with the majority’s conclusion that the trial court properly reduced plaintiff’s attorney fees to the local rate. Although the majority correctly cites passages from Chrapliwy v. Uniroyal, Inc. (7th Cir. 1982), 670 F.2d 760, this case supports plaintiff’s contention that the trial court erred in reducing the award. In reversing the trial court’s reduction of attorney fees to the local rate, the United States Court of Appeals for the Seventh Circuit in Chrapliwy stated:
“If, however, a party does not find counsel readily available in that locality with whatever degree of skill may reasonably be required, it is reasonable that the party go elsewhere to find an attorney, and the court should make the allowance on the basis of the chosen attorney’s billing rate unless the rate customarily charged in that attorney’s locality for truly similar services is deemed to require an adjustment.” (Chrapliwy, 670 F.2d at 769.)
If a plaintiff can show he has been unable through diligent, good-faith efforts to retain local counsel, attorney fees under section 1988 are not limited to the prevailing rate in the locality where the case is tried. Avalon Cinema Corp. v. Thompson (8th Cir. 1982), 689 F.2d 137, 140-41.
Contrary to the majority’s conclusion, plaintiff employed a local counsel, Philip H. Nye, Jr., who had practiced law in Ogle County for almost 30 years. According to Nye’s affidavit:
“[N]o attorney in the Fifteenth Judicial District would have been willing to take the aforementioned case on a regular hourly fee basis much less a contingency basis because of the uncertainty of the outcome of the litigation, the time-consuming complication imposed by the filing of a class action, and of litigation involving farm real estate taxes and a new and uncontested statute. Further adding to the reluctance of local attorneys to take the case in question is the fact that it involves filing litigation against local public officials.”
Lead counsel’s affidavit states, “[n]or did affiant know of any private attorneys in the western part of Illinois who would take this case on a contingent basis because of its high risk.” I believe plaintiff adequately met his burden to show that local counsel, except for Nye, who only provided legal assistance and was unwilling to act as lead counsel, were unwilling or unavailable to handle this case. Because both attorneys knew of no other local counsel who would take this case, it would seem futile for plaintiff to attempt to hire another local counsel, as the majority suggests, when attorney Nye with nearly 30 years of experience practicing law in the county knew of no other local attorney who would handle the case.
The majority also places great reliance on the trial judge’s own opinion that many attorneys in the local bar, including attorney Nye, could have “boned up on the applicable facts of section 1983 litigation.” Not only is there no basis in the record to support that conclusion but also there is no support for the majority’s statement that the trial judge in this case had the experience and background to make such a determination. Neither does the majority cite any authority to support the proposition that the trial judge may use his own background, experience and common knowledge to refute the affidavits to the contrary filed by plaintiff on this particular issue where no such counteraffidavits are filed by defendants.
Therefore, on this record, I would conclude that the trial court abused its discretion in finding services of equal quality were available at a lower rate in Ogle County than that charged by plaintiff.
I also disagree with the majority's conclusion that the trial court properly reduced the award of attorney fees by an additional $3,000 for lead counsel and $800 for local counsel. In reducing the award by these amounts, the trial court merely stated, “[a]fter much consideration and remembering our focus on the compensable ‘wasteland claim,’ we reduce the [lead counsel’s] compensation by $3,000 and Nye’s by $800 to reflect ‘the amounts involved in the case and the results obtained.’ ” This one sentence is not a specifically stated reason, as the majority contends; rather, it is merely a conclusion by the trial court and not the reasons for the conclusion. (See Lenard v. Argento (7th Cir. 1987), 808 F.2d 1242, 1247.) The United States Supreme Court has expressly stated that a trial court must provide a concise but clear explanation of its reasons for the fee award. (Hensley v. Eckerhart (1983), 461 U.S. 424, 437, 76 L. Ed. 2d 40, 53, 103 S. Ct. 1933, 1941.) Although the trial court’s explanation is undoubtedly concise, it is not a clear explanation of its reasons.
Furthermore, the use of the phrase, “the amount involved and the results obtained,” as a factor in awarding fees under section 1988 is explained in Johnson v. Georgia Highway Express, Inc. (5th Cir. 1974), 488 F.2d 714, 718. The court in Johnson noted the rationale behind this factor and stated, “[although the Court should consider the amount of damages, *** that consideration should not obviate court scrutiny of the decision’s effect on the law. If the decision corrects across-the-board discrimination affecting a large class, *** the attorney’s fee award should reflect the relief granted.” Johnson, 488 F.2d at 718.
In this case, the trial court’s decision to reduce plaintiff’s attorney fees based on this factor is incomprehensible. Plaintiff brought a class action on behalf of all owners of farms against the taxing bodies of a predominately agricultural county to prevent the county from taxing farmlands improperly. In the settlement, defendants agreed to two procedures: first, it must reassess all wasteland in Ogle County at the rate of $1 per acre for 1988 taxes and thereafter at the rate of $0 per acre; and second, it must refund any revenue improperly collected from a landowner in Ogle County for taxes based on public roads and highways and thereafter assess the rate at $0 per acre for that landowner. Clearly, rather than providing a basis to reduce the award of attorney fees, the factor pertaining to the amount involved and the results obtained actually bolsters plaintiff’s right to an award of attorney fees.
Plaintiff prevailed in forcing defendants to reassess all wasteland on farms in an agricultural county at the rate of $0 per acre and to assess public roads and highways at the rate of $0 per acre for all landowners improperly taxed in the past. Therefore, the trial court abused its discretion by reducing the award of attorney fees for this factor.