to vigorously oppose the efforts of the State to convict their clients. The fact that the defendants' attorneys may have received remuneration from the State of New Jersey for legal services rendered for and on behalf of the plaintiffs in a criminal proceeding in no way alters the very nature of the defendants' duty to defend their clients against the State's efforts to convict.
Prior to the enactment of N.J.S.A. 2A:158A-1 et seq. (1967), (the New Jersey Public Defender Act), it was a practice in this State to have court-appointed attorneys represent accused persons who were unable to retain private counsel. Until the decision of the New Jersey Supreme Court in State v. Rush, 46 N.J. 399, 217 A. 2d 441 (1966), which was the impetus for the adoption of a public defender system, compensation was provided to assigned counsel only in capital cases, pursuant to N.J.S.A. 2A:163-1. In State v. Rush, the New Jersey Supreme Court held, inter alia, that the expense of providing counsel for any indigent accused is a "necessary expense" of prosecution and consequently the economic burden of the county. 217 A. 2d at 449. The effective date of the decision was delayed, however, until the Legislature had the opportunity to decide whether the burden of compensating an attorney for the representation of an indigent accused should be met by the existing system of assignment in individual cases or by a public defender. It is now history that New Jersey opted for a public defender system.
In my view, there is no more reason for extending judicial immunity to state public defenders than there could have been in an extension of such immunity to their predecessors, i.e., court-appointed counsel. Nor should such immunity be a concomitant of representation of indigents by assigned (and perhaps noncompensated) counsel in state municipal courts. See Rodriguez v. Rosenblatt and State v. Conley, 58 N.J. 281, 277 A. 2d 216 (1971).
The state control and the reasons for judicial immunity apparent in the cases of prosecutors and the judiciary are completely lacking in the case of either court-appointed counsel or public defenders. I therefore hold that the defendants may not avail themselves of the asserted defense of judicial immunity.
The principles involved in the above determination concerning judicial immunity are presented again in a slightly different guise involving the jurisdiction of this Court.
Plaintiffs seek to invoke the jurisdiction of this Court under 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3). In order to proceed under these sections, it must be demonstrated that the actions of the defendants were performed "under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory . . ." 42 U.S.C. § 1983. Several cases have dealt with the issue of whether defense counsel, who is appointed by the court and compensated by the State, is acting "under color of" state law.
In Mulligan v. Schlachter, 389 F.2d 231 (6th Cir. 1968), the Court of Appeals for the Sixth Circuit held that a court-appointed attorney who represented plaintiffs in a prior criminal proceeding was not acting "under color of" state law and plaintiffs had no cause of action cognizable under 42 U.S.C. § 1983 for alleged inadequate representation. Accord, French v. Corrigan, 432 F.2d 1211 (7th Cir. 1970).
In Peake v. County of Philadelphia, 280 F. Supp. 853 (E.D. Pa. 1968), petitioner contended that the Voluntary Defenders Association, through two public defenders, refused to assist him in the preparation for and institution of legal proceedings which refusal allegedly deprived petitioner of his civil rights within the meaning of 42 U.S.C. §§ 1983, 1985. Denying petitioner's request on the ground that the complaint failed to state a claim upon which relief could be granted, the District Court said:
"For the defendants' action to be 'under color of' State law, there must be a '[misuse] of power, possessed by virtue of state law'. Monroe v. Pape, 365 U.S. 167, 184, 81 S. Ct. 473, 482, 5 L. Ed. 2d 492 (1961); [citation omitted]. The fact that Attorneys Pepp and Hassett are members of the Voluntary Defenders Association, an organization which is, in part, subsidized by the State or local governments, does not mean that any power they [Pepp and Hassett] possess is possessed by virtue of State law." 280 F. Supp. at 854.
See Vance v. Robinson, 292 F. Supp. 786 (W.D.N.C. 1968); Kregger v. Posner, 248 F. Supp. 804 (E.D. Mich. 1966); Pugliano v. Staziak, 231 F. Supp. 347 (W.D. Pa. 1964), aff'd. per curiam, 345 F.2d 797 (3d Cir. 1965).
The New Jersey State Public Defender Act did not clothe the instant defendants with a "power" that they did not already possess. These defendants were empowered to represent plaintiffs by virtue of their being licensed to practice law pursuant to R.R. 1:21-1 et seq. Moreover, though remunerated by the State of New Jersey, these public defenders were neither servants nor representatives of the State, nor were they controlled by the State.
For all of the foregoing reasons, I conclude that the appointment of defendants to the Public Defender and their acceptance of the representation of the plaintiffs did not make them officers or servants of the State. Consequently, their actions were not performed for the state nor "under color of" state law within the purview of 42 U.S.C. § 1983 and 28 U.S.C. § 1343. There having been no actions of defendants performed under "color of any Statute . . . of . . . [New Jersey]", this Court is without jurisdiction to entertain plaintiffs' request for relief. The motion to dismiss plaintiffs' complaint is granted, but without costs.
© 1992-2004 VersusLaw Inc.