Alden Werch v. City of Berlin, 673 F.2d 192 (7th Cir. 1982). · Go Syfert
Alden Werch v. City of Berlin, 673 F.2d 192 (7th Cir. 1982). Cases Citing This Book View Copy Cite
48 citation events (16 in the last 25 years) across 12 distinct courts.
Strongest positive: Thomas Ghelf v. Town of Wheatland (ca7, 2025-03-12)
Treatment trajectory · 1982 → 2026 · click a year to view as-of
1982 2004 2026
Top citers, strongest first. 30 distinct citers. How cited ↗
discussed Cited as authority (rule) Thomas Ghelf v. Town of Wheatland
7th Cir. · 2025 · confidence medium
Ass’n v. McNary, 454 U.S. 100, 116 (1981)). 16 No. 23-3338 bar a taxpayer from contesting the validity of a state tax in a section 1983 damage action if there is a ‘plain, adequate, and complete’ state remedy available.” Werch v. City of Berlin, 673 F.2d 192, 194 (7th Cir. 1982) (quoting Fair Assessment in Real Est.
discussed Cited as authority (rule) Thomas Ghelf v. Town of Wheatland
7th Cir. · 2025 · confidence medium
Ass’n v. McNary, 454 U.S. 100, 116 (1981)). 16 No. 23-3338 bar a taxpayer from contesting the validity of a state tax in a section 1983 damage action if there is a ‘plain, adequate, and complete’ state remedy available.” Werch v. City of Berlin, 673 F.2d 192, 194 (7th Cir. 1982) (quoting Fair Assessment in Real Est.
discussed Cited as authority (rule) Cosgriff v. County of Winnebago
7th Cir. · 2017 · confidence medium
In Werch v. City of Berlin, for example, we agreed that a plaintiffs §• 1983 suit against the city of Berlin, the Board of Review, and several individual city officials was meritless; the plaintiff alleged the city’s tax on his farm equipment denied him equal protection of the law. 673 F.2d 192, 196 (7th Cir. 1982).
discussed Cited as authority (rule) Kelly Cosgriff v. Winnebago County, Illinois
7th Cir. · 2017 · confidence medium
In Werch v. City of Berlin, for example, we agreed that a plaintiff’s § 1983 suit against the city of Berlin, the Board of Review, and several individual city officials was meritless; No. 17‐1396 7 the plaintiff alleged the city’s tax on his farm equipment de‐ nied him equal protection of the law. 673 F.2d 192, 196 (7th Cir. 1982).
discussed Cited as authority (rule) General Motors v. City of Linden
N.J. Super. Ct. App. Div. · 1995 · confidence medium
Similarly, in Werch v. City of Berlin, 673 F. 2d 192, 195 (7th Cir.1982), the court indicated that municipal officials exercising taxing authority were entitled to "qualified immunity." See also Ludwin v. City of Cambridge, 592 F. 2d 606 , 610 n. 1 (1st Cir.1979).
cited Cited as authority (rule) Lolling v. Patterson
C.D. Ill. · 1991 · confidence medium
Werch v. City of Berlin, 673 F.2d 192, 195 (7th Cir. 1982).
cited Cited as authority (rule) Paul Hamer v. County Of Lake
7th Cir. · 1987 · confidence medium
See, e.g., Hamilton v. Daley, 777 F.2d 1207, 1212-13 (7th Cir.1985); Werch v. City of Berlin, 673 F.2d 192, 195 (7th Cir.1982).
cited Cited as authority (rule) Hamer v. County of Lake
7th Cir. · 1987 · confidence medium
See, e.g., Hamilton v. Daley, 777 F.2d 1207, 1212-13 (7th Cir.1985); Werch v. City of Berlin, 673 F.2d 192, 195 (7th Cir.1982).
discussed Cited as authority (rule) Coleman v. McLaren
N.D. Ill. · 1986 · confidence medium
Our own Court of Appeals had previously held squarely to the contrary in Werch v. City of Berlin, 673 F.2d 192, 194-95 (7th Cir.1982), and though Werch was pre-Hensley, the Court of Appeals for the Fourth Circuit has made the identical holding post-Hensley in Hutcherson v. Board of Supervisors of Franklin County, Virginia, 742 F.2d 142, 146 (4th Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 1358 , 84 L.Ed.2d 380 (1985). 3 .
discussed Cited as authority (rule) Curry v. Robins Company
7th Cir. · 1985 · confidence medium
A defendant 24 "may be considered a prevailing party under section 1988 if plaintiff's action was 'vexatious, frivolous, or brought to harass or embarrass the defendant,' " 25 Hill v. Longini, 767 F.2d 332, 335 (7th Cir.1985) (quoting Hensley, 461 U.S. at 429 n. 2, 103 S.Ct. at 1937 n. 2), or if the plaintiff's action is "meritless in the sense that it is groundless or without foundation." Hughes v. Rowe, 449 U.S. 5, 14 , 101 S.Ct. 173, 178 , 66 L.Ed.2d 163 (1980); Werch v. City of Berlin, 673 F.2d 192, 195 (7th Cir.1983).
discussed Cited as authority (rule) Curry v. A.H. Robins Co.
7th Cir. · 1985 · confidence medium
A defendant “may be considered a prevailing party under section 1988 if plaintiff’s action was ‘vexatious, frivolous, or brought to harass or embarrass the defendant,’ ” Hill v. Longini, 767 F.2d 332, 335 (7th Cir.1985) (quoting Hensley, 461 U.S. at 429 n. 2, 103 S.Ct. at 1937 n. 2), or if the plaintiff’s action is “meritless in the sense that it is groundless or without foundation.” Hughes v. Rowe, 449 U.S. 5, 14 , 101 S.Ct. 173, 178 , 66 L.Ed.2d 163 (1980); Werch v. City of Berlin, 673 F.2d 192, 195 (7th Cir.1983).
discussed Cited as authority (rule) Gilmer v. City of Cleveland
N.D. Ohio · 1985 · confidence medium
The court further noted that awards of attorney fees have been properly granted to defendants when a plaintiff misuses the civil rights laws to collaterally challenge state judgments, Tonti v. Petropoulous, 656 F.2d 212, 215-16 (6th Cir. 1981), or when a plaintiff brings a claim that is clearly barred by unambiguous case law, Werch v. City of Berlin, 673 F.2d 192, 196 (7th Cir.1982).
discussed Cited as authority (rule) Curry v. A.H. Robins Co.
N.D. Ill. · 1984 · confidence medium
As explained in this Court’s August 11, 1983 opinion, a defendant in a section 1983 suit may recover attorneys’ fees if the plaintiff’s action is meritless. 42 U.S.C. § 1988 ; Hughes v. Rowe, 449 U.S. 5, 14 , 101 S.Ct. 173, 178 , 66 L.Ed.2d 163 (1980); Werch v. City of Berlin, 673 F.2d 192, 195 (7th Cir.1982).
discussed Cited as authority (rule) Ben Reid v. United States of America, the State of Indiana, and Floyd County Commissioners, Bruce K. Lorch v. United States of America, State of Indiana, and Jefferson County Commissioners, Maurice C. And Mary F. Smith v. United States of America, Dorothy Winkler v. United States of America (2×) also: Cited "see"
7th Cir. · 1983 · confidence medium
Similarly, in Werch v. City of Berlin, 673 F.2d 192, 196 (7th Cir.1982) we held that any reasonable grounds for the appellant's position in that case had been abrogated by an intervening decision of the Supreme Court, and that the appellant's actions in continuing to litigate the appeal was "frivolous, unreasonable, and groundless." These appeals are likewise frivolous.
discussed Cited as authority (rule) Reid v. United States (2×) also: Cited "see"
7th Cir. · 1983 · confidence medium
Similarly, in Werch v. City of Berlin, 673 F.2d 192, 196 (7th Cir.1982) we held that any reasonable grounds for the appellant’s position in that case had been abrogated by an intervening decision of the Supreme Court, and that the appellant’s actions in continuing to litigate the appeal was “frivolous, unreasonable, and groundless.” These appeals are likewise frivolous.
cited Cited as authority (rule) Bittner v. Sadoff & Rudoy Industries
E.D. Wis. · 1983 · signal: cf. · confidence medium
Cf. Werch v. City of Berlin, 673 F.2d 192, 196 (7th Cir.1982) (continuation of appeal after Supreme Court decision made appeal frivolous entitles appellee to attorney’s fees for appeal).
discussed Cited as authority (rule) Victory Beauty Supply Co. v. Luster-Oil Beauty Products Co.
N.D. Ill. · 1983 · confidence medium
The Seventh Circuit has found it appropriate, in an analogous situation, to award attorneys’ fees and the costs of appeal where a party “continued to litigate [an] appeal after it clearly became frivolous, unreasonable, and groundless.” Werch v. City of Berlin, 673 F.2d 192, 196 (7th Cir.1982).
cited Cited as authority (rule) Lester v. Brezenoff
E.D.N.Y · 1982 · confidence medium
Werch v. City of Berlin, 673 F.2d 192, 195 (7th Cir. 1982); Wise v. Bravo, 666 F.2d 1328, 1335 (10th Cir. 1981); Dominguez, supra, at 441 .
cited Cited as authority (rule) Reineman v. Valley View Community School District 365-U
N.D. Ill. · 1982 · confidence medium
Werch v. City of Berlin, 673 F.2d 192, 195-196 (7th Cir. 1982).
cited Cited "see" Capra v. Cook County Board of Review
7th Cir. · 2013 · signal: see · confidence high
See Werch, 673 F.2d at 194-95 ; see also Lawyer v. Hilton Head Pub.
cited Cited "see" Louis Capra v. Cook County Board of Review
7th Cir. · 2013 · signal: see · confidence high
See Werch, 673 F.2d at 194–95; see also Lawyer v. Hilton Head Pub.
discussed Cited "see" Wendt v. Leonard
4th Cir. · 2005 · signal: see · confidence high
See Werch v. City of Berlin, 673 F.2d 192, 195 (7th Cir.1982) ("Clearly, Werch should have known that his claim for injunctive relief would be dismissed for lack of subject matter jurisdiction [due to the Tax Injunction Act].
discussed Cited "see" Wendt v. Leonard
4th Cir. · 2005 · signal: see · confidence high
See Werch v. City of Berlin, 673 F.2d 192, 195 (7th Cir.1982) (“Clearly, Werch should have known that his claim for injunctive relief would be dismissed for lack of subject matter jurisdiction [due to the Tax Injunction Act], Under these circumstances, Werch’s claim for injunctive relief was meritless.”); cf. Hutcherson v. Board of Supervisors, 742 F.2d 142 , 146 & n. 4 (4th Cir.1984) (affirming award of attorney fees under 42 U.S.C.A. § 1988 even though the underlying action was barred by the Tax Injunction Act, noting that Werch was a “similar case”).
discussed Cited "see" Brown v. Borough Of Chambersburg
3rd Cir. · 1990 · signal: see · confidence high
See Werch v. City of Berlin, 673 F.2d 192, 195 (7th Cir.1982); cf. Tarter v. Raybuck, 742 F.2d 977 (6th Cir.1984) (no fees assessed where case involved unsettled area of law), cert. denied, 470 U.S. 1051 , 105 S.Ct. 1749 , 84 L.Ed.2d 814 (1985); Dooley v. Reiss, 736 F.2d 1392 (9th Cir.) (no fees assessed where losing claims presented difficult issues not previously resolved at appellate level), cert. denied, 469 U.S. 1038 , 105 S.Ct. 518 , 83 L.Ed.2d 407 (1984). 13 With the foregoing principles in mind, we review the district court's award of attorneys' fees under Sec. 1988 pursuant to an abus…
discussed Cited "see" Brown v. Borough of Chambersburg
3rd Cir. · 1990 · signal: see · confidence high
See Werch v. City of Berlin, 673 F.2d 192, 195 (7th Cir.1982); cf. Tarter v. Raybuck, 742 F.2d 977 (6th Cir.1984) (no fees assessed where case involved unsettled area of law), cert. denied, 470 U.S. 1051 , 105 S.Ct. 1749 , 84 L.Ed.2d 814 (1985); Dooley v. Reiss, 736 F.2d 1392 (9th Cir.) (no fees assessed where losing claims presented difficult issues not previously resolved at appellate level), cert. denied, 469 U.S. 1038 , 105 S.Ct. 518 , 83 L.Ed.2d 407 (1984).
cited Cited "see" Marvin Hamilton v. Richard M. Daley
7th Cir. · 1985 · signal: see · confidence high
See Werch v. City of Berlin, 673 F.2d 192, 195 (7th Cir.1982). 1 Fees can be imposed even though the losing plaintiff did not act in subjective bad faith.
discussed Cited "see" 36 Fair empl.prac.cas. 1281, 36 Empl. Prac. Dec. P 34,944 Richard Eichman v. Linden & Sons, Inc., and Frank Garvin, Individually and as Sole Stockholder of Linden & Sons, Inc.
7th Cir. · 1985 · signal: see · confidence high
See Werch v. City of Berlin, 673 F.2d 192, 195 (7th Cir.1982) (attorney's fees assessed against Sec. 1983 plaintiff when should have known that well-established circuit law would mandate dismissal of claim for lack of subject matter jurisdiction); Freeman v. Taft Broadcasting Co., 26 Fair Empl.Prac.
discussed Cited "see" Eichman v. Linden & Sons, Inc.
7th Cir. · 1985 · signal: see · confidence high
See Werch v. City of Berlin, 673 F.2d 192, 195 (7th Cir.1982) (attorney’s fees assessed against § 1983 plaintiff when should have known that well-established circuit law would mandate dismissal of claim for lack of subject matter jurisdiction); Freeman v. Taft Broadcasting Co., 26 Fair Empl.Prac.
discussed Cited "see" Hamer v. Anderson
N.D. Ill. · 1984 · signal: see · confidence high
See Werch v. City of Berlin, 673 F.2d 192, 194 (7th Cir.1982). 28 U.S.C. § 1341 The Tax Injunction Act provides that [t]he district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State. 28 U.S.C. § 1341 .
cited Cited "see" Fredrick v. Clark
W.D. Wis. · 1984 · signal: see · confidence high
See Werch v. City of Berlin, 673 F.2d 192, 195 (7th Cir.1982).
Retrieving the full opinion text from the archive…
Alden WERCH, Plaintiff-Appellant,
v.
CITY OF BERLIN, Et Al., Defendants-Appellees
81-2268.
Court of Appeals for the Seventh Circuit.
Mar 17, 1982.
673 F.2d 192
James C. Newcomb, Milwaukee, Wis., for plaintiff-appellant., Jean G. Setterholm, Dewitt, Sundby, Huggett & Schumacher, Madison, Wis., for defendants-appellees.
Bauer, Posner, Bua.
Cited by 38 opinions  |  Published
[*194] BAUER, Circuit Judge.

Plaintiff-appellant Alden Werch filed this section 1983 civil rights suit against Berlin, a Wisconsin municipal corporation; the Berlin Common Council; eleven Berlin Aldermen, individually and as members of the Common Council; the Berlin Board of Review; five members of the Board of Review, individually and as members of the Board; Harold Kassa, individually and as mayor of Berlin; and Richard Doro, individually and as Berlin City Tax Assessor. Werch’s complaint alleges that the defendants, acting under color of state law, deprived him of rights protected by the first, eighth, ninth, and fourteenth amendments. The gravamen of Werch’s complaint is that the defendants denied him equal protection of the law by levying personal property taxes on Werch’s corn combines when other similarly situated Berlin residents were not so taxed. [1] Werch sought both injunctive relief and damages.

On May 11,1981, the district court granted defendants’ motion to dismiss Werch’s complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief could be granted. On July 2, 1981, the district court granted defendants’ motion for the taxing of attorney’s fees and expenses and ordered Werch to pay $2,112.14 in costs and fees. Werch appeals from both orders. We affirm.

I

Werch seeks both equitable relief and damages. The district court lacks jurisdiction to decide either claim if Werch has a “plain, speedy and efficient remedy” available under Wisconsin law to redress his alleged grievance. The Anti-Injunction Act, 28 U.S.C. § 1341, bars a taxpayer from contesting the validity of a state tax in a section 1983 injunction action if there is a “plain, speedy and efficient” state remedy available. Rosewell v. LaSalle National Bank, 450 U.S. 503, 101 S.Ct. 1221, 67 L.Ed.2d 464 (1981). Principles of comity bar a taxpayer from contesting the validity of a state tax in a section 1983 damage action if there is a “plain, adequate, and complete” state remedy available. Fair Assessment In Real Estate Assoc., Inc. v. McNary, --- U.S. ---, 102 S.Ct. 177, 70 L.Ed.2d 271 (1981). Werch does not deny that there are adequate state law remedies available. As the district court noted:

Wisconsin law provides three separate remedies for excessive or discriminatory assessments. First, a taxpayer may appeal to the local Board of Review under Wis.Stat. § 70.47. Second, a taxpayer who has appeared before the Board of Review may pay the levied tax by January 10 of the year following assessment, and file a claim with the City Council for a refund of the allegedly excessive portion of the assessment. Finally, the taxpayer may appeal to the District Supervisor of Assessments of the Wisconsin Department of Revenue for redetermination of the assessment. If dissatisfied with the decision of the Board of Review or of the Department of Revenue, the taxpayer may appeal by writ of certiorari to the circuit court. The appeal “shall be placed at the head of the circuit court calendar for an early hearing.” Wis.Stat. §§ 70.-47(13); 70.85(1).
A taxpayer who alleges that he has been taxed illegally, as contrasted with an excessive assessment, need not appeal to the Board of Review but may at any time within one year following payment of the tax file a refund claim with the tax-collecting jurisdiction. Bischoff v. Appleton, 81 Wis.2d 612, 260 N.W.2d 773 (1978); Wis.Stat. § 74.73. If the governing body denies the refund, the taxpayer may then begin a refund action in circuit court. Furthermore, inequitable assessments as well as illegal taxes may be challenged in a § 74.73 proceeding. Id.; Bauermeister v. Town of Alden, 16 Wis.2d 111, 113 N.W.2d 823 (1962). In[*195] terest may be recovered on such claims. Family Hosp. Nursing Home v. Milwaukee, 78 Wis.2d 312, 254 N.W.2d 268 (1977).
“If for some reason the above appeals procedure is no longer adequate to meet the § 1341 standard, then the plaintiffs in the case at bar have another remedy available to them. The Wisconsin Declaratory Judgment Act, Wis. Stat. § 806.04, provides: ‘Any person . .. whose rights are affected by a statute ... may have determined any question for construction or validity arising under ... [the] statute ... and obtain a declaration of rights, status or other legal relations thereunder.’ Such a determination is reviewable in the same manner as any other judgment or decree. Wis.Stat. § 806.04(7).” O’Brien v. Dreyfus, 493 F.Supp. 476, 480 (E.D.Wis.1980).
From the foregoing discussion it appears that under Wisconsin law Werch does have a “plain, speedy and efficient remedy” to argue the unfairness or illegality of tax assessments and levies. Thus, this court is prohibited from enjoining collection of taxes imposed on Werch.

We agree. Because there were adequate state remedies available, the court lacked jurisdiction to decide Werch’s claim. The court did not err in dismissing Werch’s complaint.

II

The district court awarded costs and attorney’s fees to defendants as the prevailing party pursuant to 42 U.S.C. § 1988 on a finding that Werch’s suit was unreasonable, frivolous, meritless, or vexatious. Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978). Werch claims that the district court abused its discretion. We disagree.

Hughes v. Rowe, 449 U.S. 5, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980) (per curiam), authorizes the federal courts to award prevailing defendants attorney’s fees in a section 1983 suit if the plaintiff’s action is “meritless in the sense that it is groundless or without foundation.” Id. at 14, 101 S.Ct. at 178. Since at least 1978 it has been well-established in this Circuit that the Anti-Injunction Act bars a section 1983 civil rights suit for injunctive relief against state tax assessments if state law provides an adequate remedy. Sacks Bros. Loan Co., Inc. v. Cunningham, 578 F.2d 172 (7th Cir. 1978). See also Fulton Market Cold Storage Co. v. Cullerton, 582 F.2d 1071 (7th Cir. 1978), cert. denied, 439 U.S. 1121, 99 S.Ct. 1033, 59 L.Ed.2d 82 (1979). Clearly, Werch should have known that his claim for injunctive relief would be dismissed for lack of subject matter jurisdiction. Under these circumstances, Werch’s claim for injunctive relief was meritless.

Werch sought damages from several municipal bodies in this suit. Municipalities are subject to section 1983 liability only if the plaintiff’s injury was caused by enforcement of an official policy. Moneil v. Dept, of Social Serv., 436 U.S. 658, 690-95, 98 S.Ct. 2018, 2035-38, 56 L.Ed.2d 611 (1978). Werch’s complaint fails to allege that there is a municipal policy being enforced against him. Moreover, Werch’s counsel during oral argument was unable to identify the existence of any municipal policy causing Werch’s alleged injury. Under these circumstances, Werch’s claim for section 1983 damages against Berlin, the City Common Council, and the Board of Review was meritless.

Finally, Werch’s complaint sought section 1983 damages from municipal officials who allegedly caused Werch’s injury while exercising their taxing authority. In 1981 when Werch filed this lawsuit, the individual defendants were subject to section 1983 liability only if they “violated the plaintiff’s clearly established constitutional rights intentionally or with reckless disregard of those rights.” Fulton Market Cold Storage Co. v. Cullerton, 583 F.2d at 1080. In other words, all of the individual defendants named in this suit had qualified immunity. Id. 2 Although Werch was not required to[*196] plead bad faith in his complaint in order to withstand a motion to dismiss, Gomez v. Toledo, 446 U.S. 635, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980), his cause of action was meritless if he knew that there were no facts or inferences that could reasonably support a finding that defendants acted in bad faith. In fact, Werch’s complaint did plead that the individual defendants acted maliciously, intentionally, and recklessly, but the attached exhibits he incorporated in his complaint belied these allegations. The district court did not err in concluding, on the basis of Werch’s complaint, that his section 1983 damage action against the individual defendants was meritless.

We agree with the district court that Werch’s suit was meritless. Accordingly, we find that the district court did not err in awarding the defendants attorney’s fees.

Ill

If we were to assume — which we do not — that there were any grounds for urging reversal of the district court’s dismissal of Werch’s complaint and assessment of attorney’s fees when Werch filed his notice of appeal, those grounds were certainly abrogated by the Supreme Court’s intervening decision in Fair Assessment In Real Estate Assoc., Inc. v. McNary, --- U.S. ---, 102 S.Ct. 177, 70 L.Ed.2d 271 (1981). Werch continued to litigate this appeal after it clearly became frivolous, unreasonable, and groundless. Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978), quoted with approval in Hughes v. Rowe, 449 U.S. 5, 15, 101 S.Ct. 173, 179, 66 L.Ed.2d 163 (1980) (per curiam). Accordingly, we assess costs of appeal and attorney’s fees against Werch. Rule 38, Fed.R.App.P.

The judgment of the district court is AFFIRMED.

1

. The district court held that Werch’s claims based on the first, eighth, and ninth amendments were meritless. Werch has not challenged that portion of the district court order. During oral argument Werch’s counsel conceded that Werch had no claims arising under the three enumerated amendments. We agree.

2

. Our decision in Fulton Market has effectively been overruled by Fair Assessment In Real Estate Assoc., Inc. v. McNary, --- U.S. ---,[*196] 102 S.Ct. 177, 70 L.Ed.2d 271 (1981), but for purposes of discussing the district court award of attorney’s fees, we must view the propriety of the lower court’s decision in light of the then existing authority.