Cummings, Chief Judge and Bauer and Posner, Circuit Judges.
On May 27, 1981, plaintiff Lampher, the owner of a seized 1977 Chevrolet, filed this suit against James Zagel, Director of the Illinois Department of Law Enforcement, and Daniel Doyle, State's Attorney of Winnebago County, Illinois, hereinafter referred to as "defendants." In his complaint filed under Sections 1983 and 1985 of the Civil Rights Act (42 U.S.C. §§ 1983 and 1985), plaintiff sought a declaration that Section 4-107(i) of Anti-theft article I of the Illinois Motor Vehicle Code (ILL.REV.STAT. Ch. 95 1/2, P4-107(i) (1983)) was unconstitutional. This was the statute under which his motor vehicle had been seized by Zagel's Department on April 29, 1981. Lampher also sought the return of his automobile, damages and attorney's fees. On June 11th Gerald Richmond petitioned the district court to join the suit as a co-plaintiff and requested similar relief growing out of Zagel's Department's seizure of Richmond's 1978 Ford pickup truck on June 5, 1981. Both seizures were effected under the foregoing provision of the Illinois Motor Vehicle Code because the manufacturers' identification numbers appeared to be altered. Both vehicles were returned to plaintiffs in October 1981.
On June 17, 1981, at the request of defendants, the district court abstained until a state court action pending in the Circuit Court of Winnebago County was terminated. That action was filed by defendant Doyle on June 16, 1981, in the name of the State of Illinois and sought an order to sell Lampher's and Richmond's vehicles under Section 4-107(i) of the Illinois Motor Vehicle Code. On June 18 Lampher petitioned to intervene and moved the state court to declare Section 4-107(i) unconstitutional, to order the return of his automobile and to dismiss Doyle's application to sell. Richmond joined in Lampher's motion on the same day.
On September 15, 1981, the state trial court upheld the constitutionality of Section 4-107(i) and denied intervenors' motion to dismiss Doyle's suit. Six days later the circuit court found that Lampher's vehicle was contraband and permitted Doyle to sell the car. A similar order was subsequently entered as to Richmond's truck. On September 21, 1981, Lampher filed a motion to vacate the circuit court's judgment on the ground that on July 31, 1981, the appellate Court of Illinois ruled that Section 4-107(i) was unconstitutional when applied to bona fide purchasers like plaintiffs. People v. One 1979 Pontiac Grand Prix, 98 Ill. App. 3d 841, 54 Ill. Dec. 223, 424 N.E.2d 973 (3d Dist.1981).*fn1 The motion was granted on October 9 and a similar motion by Richmond was granted on October 16. The circuit court ordered the return of plaintiffs' vehicles. As noted, the vehicles were returned to plaintiffs in October 1981. Thereafter plaintiffs returned to the court below in an endeavor to obtain damages and attorney's fees.
On October 13, 1983, the district court handed down an order holding that defendants were immune from any liability for damages but were liable to plaintiffs for attorney's fees. In that order District Judge Roszkowski followed the decisions of the Illinois Appellate and Supreme Courts and held that Section 4-107(i) was unconstitutional because of substantive due process violations under the Fourteenth Amendment. In holding defendants liable for attorney's fees, he explained that after the termination of the state trial court proceedings plaintiffs convinced him that the statute in question was unconstitutional. The district court stated that, regardless of the state court proceedings, it "made its own independent judgment that plaintiffs were denied their constitutional rights." The order concluded that plaintiffs were therefore entitled to a reasonable attorney's fee as prevailing parties in the state and federal actions.
In a second order, which was filed on December 15, 1983, and allowed attorney's fees to plaintiffs, Judge Roszkowski reiterated that regardless of the state court proceedings, plaintiffs prevailed in their federal court action based on 42 U.S.C. § 1983, and he therefore awarded Lampher's counsel $4,050 and Richmond's counsel $4,537.50 as reasonable attorney's fees.
Defendants have asked us to set aside the awards of attorney's fees, although defendant Zagel recognizes that a plaintiff in a civil rights action will be considered a "prevailing party" and entitled to attorney's fees under 42 U.S.C. § 1988 if he has succeeded on a significant issue achieving some benefit to his client (Zagel Br. 16). Section 1988 provides in pertinent part as follows:
In any action or proceeding to enforce a provision of Sections 1981, 1982, 1983, 1985 and 1986 * * * of the Civil Rights Act of 1964, the court, in its discretion, may allow the prevailing party * * * a reasonable attorney's fee as part of the costs. (Emphasis supplied.)
Only defendant Doyle disputes that plaintiffs were prevailing parties within the meaning of Section 1988 (Doyle Br. 3-6; Doyle Reply Br. 2-3), but both defendants advance the following reasons to show "special circumstances" why the award of attorney's fees was unjust. Thus they state (Zagel Br. 19, adopted in Doyle Br. 7):
1. The state court judge initially found the Illinois statute constitutional.
2. After the state court ruled that the statute was unconstitutional in view of a decision of the Appellate Court of Illinois, defendants returned the vehicles to plaintiffs with "reasonable dispatch."
3. This was not a class action.
4. Defendants could not amend the Illinois law and "were simply carrying out the ...