Defendants allege that plaintiff has contracted away its power of taxation by adding attorney's fees set by a private attorney, by requiring direct payment of the taxes and fees due to a private attorney, and by making the unpaid attorney's fees part of the tax lien. Defendants further allege that they tendered the taxes due, less the attorney's fees and costs, but that plaintiff refused to accept the payment. Plaintiff construes these allegations as an attempt to state claims for intentional and negligent infliction of emotional distress, and asserts, in assignments of error numbers 3 and 4, that defendants have not sufficiently alleged or offered facts supporting these claims. Defendants have not alleged facts showing that the alleged distress was severe, nor is there any record evidence of severe emotional distress. The trial court should have granted summary judgment against defendants on their claims for intentional and negligent infliction of emotional distress.
Defendants seek damages and declaratory and injunctive relief.
They assert that governmental immunity is not a defense to a section 1983 constitutional claim. A county, like other units of local government, has no immunity for liability under section 1983. To state a claim, as here, under section 1983, facts must be alleged showing that the governmental entity acted pursuant to a policy or custom which was the moving force behind the deprivation of rights. Defendants have also alleged that plaintiff, by this practice, has violated their due process rights by arbitrarily adding the attorney's fees to the tax lien without proper notice and hearing or opportunity to avoid the penalty. Since collection of this tax from a property owner is a deprivation of property, a taxing unit must provide due process of law.