This action was commenced pursuant to 42 U.S.C.A. § 1983 and is now before the court on plaintiff's motion for an award of counsel fees pursuant to 42 U.S.C.A. § 1988.
The relevant factual background is set forth in Ramirez v. Hudson Cty. , 167 N.J. Super. 435 (Ch. Div. 1979). Subsequent to that decision plaintiff informed the court that he would not press his damage claim; therefore, the sole remaining issue in this case is the award of counsel fees.
As relevant to this application, 42 U.S.C.A. § 1988 (hereinafter cited by section number only) provides that
In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985 and 1986 of * * * title [42 of U.S.C.A. ] * * * the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs.
Plaintiff argues that § 1988 provides statutory authorization for an award of counsel fees within the meaning of R. 4:42-9(a)(8), which states that
(a) No fee for legal services shall be allowed in the taxed costs or otherwise, except
(8) In all cases where counsel fees are permitted by statute.
In opposition, the county argues that § 1988 does not apply to state court proceedings and that there is therefore no statutory authorization, within the meaning of R. 4:42-9(a)(8), for the award sought by Ramirez.
This argument is clearly without merit. Section 1988, like all federal law, is fully applicable to state court proceedings by virtue of the Supremacy Clause, U.S. Const. , Art. VI, cl. 2. Bess v. Toia , 66 A.D. 2d 844, 844, 411 N.Y.S. 2d 651, 653 (App. Div. 1978); see Testa v. Katt , 330 U.S. 386, 67 S. Ct. 810, 91 L. Ed. 967 (1947).
Both the majority and dissenting opinions in Bess v. Toia, supra , recognized the applicability of § 1988 to appropriate state court proceedings, see 66 A.D. 2d at 844, 846, 411 N.Y.S. 2d at 653, 654. See also Tobeluk v. Lind , 589 P. 2d 873 (Alaska Sup. Ct. 1979), where the court applied § 1988 without even pausing to consider its applicability to state court proceedings. The application of § 1988 to state court actions is also supported by the terms of the statute itself. "The Act itself could not be broader. It applies to 'any' action brought to enforce ...