Plaintiffs seek attorneys' fees pursuant to 42 U.S.C.A. § 1988 in litigation attacking the constitutional and statutory validity of N.J.S.A. 30:4D-6.1 and of the state administrative guidelines defining eligibility for Medicaid funding for abortions. The court held initially that N.J.S.A. 30:4D-6.1 was invalid on statutory grounds as a violation of a participating state's obligation under the federal Medicaid Act, 42 U.S.C.A. § 1396 et seq. Right to Choose v. Byrne , 165 N.J. Super. 443 (Ch.Div.1979). The administrative guidelines, which were thereafter promulgated, were struck down as unconstitutional under the Equal Protection Clauses of the State Constitution, Art. I, § I, and of the Fourteenth Amendment to the Federal Constitution, in accordance with a second published opinion, Right to Choose v. Byrne , 169 N.J. Super. 543 (Ch.Div.1979).
Throughout this litigation plaintiffs' attorneys were all salaried employees, Ms. Taub of Rutgers University School of Law and Mr. Raveson, Mr. Tetelman and Ms. Vermuelen of Essex-Newark Legal Services Corporation. Their fee applications are not on behalf of themselves but on behalf of their respective employers. Ms. Taub is seeking an award specifically to the Woman's Rights Litigation Clinic to which she was assigned, an educational enterprise approved and sponsored by Rutgers Law School as part of its curriculum.
Ms. Taub's fee application is for $43,920 based on 488 hours of legal services at a rate of $90 an hour. The total fee application of the other three attorneys is for $103,860 based on 1,931 hours of legal services at rates of $60 an hour for Mr. Tetelman and $50 an hour each for Mr. Raveson and Ms. Vermuelen. The supporting affidavits do not segregate in any detail attorneys' time devoted to the issues on which plaintiffs prevailed, nor rule out duplication and overlapping of time in separate research and analysis of these or other issues by two or more of the attorneys.
Plaintiffs framed a multiplicity of issues in this litigation: that under N.J.S.A. 30:4D-6.1 New Jersey did not fulfill its
obligation as a participating state under the federal Medicaid Act and that N.J.S.A. 30:4D-6.1 infringed on the Due Process, Equal Protection and Establishment of Religion Clauses of the Federal and State Constitutions and the freedom of religion clause of the Federal Constitution.
According to the determination of this court after a five-day trial, plaintiffs fell short legally and factually on all issues except the statutory issue of conflict with and derogation of the federal Medicaid Act and the equal protection of law issue that Medicaid eligible women with a medical necessity for an abortion were invalidly discriminated against. In view of the holding on statutory grounds, the latter argument was mooted in the first opinion, although by dictum it was recognized as strongly tenable.
The second opinion striking down the administrative guidelines resolved in plaintiffs' favor the identical constitutional argument that had previously been mooted, that is, that Medicaid eligible women with a medical necessity for an abortion were denied equal protection of the law because previously available Medicaid funds for abortions were barred to them, although all other Medicaid eligible persons with a medical necessity for any other surgical procedure or treatment had the benefit of Medicaid funds.
Plaintiffs' eligibility for attorneys' fees must be determined. R. 4:42-9(a)(8) is procedural sanction to the court to award an attorney's fee pursuant to any statute. The rule extends to federal statutes, such as 42 U.S.C.A. § 1988, over which State courts have concurrent jurisdiction. Ramirez v. Hudson Cty. , 169 N.J. Super. 455 (Ch.Div.1979). That federal enactment, known as the Civil Rights Attorneys' Fees Awards Act of 1976, vests discretionary authority in the courts to award an attorney's fee to a prevailing party in an action to enforce a civil right under 42 U.S.C.A. § 1983, specifically, any right, privilege or immunity safeguarded by the Fourteenth Amendment, including the right to equal protection of the law.
An attorney's fee award under § 1988 may be against a state or state official despite the Eleventh Amendment. Hutto v. Finney , 437 U.S. 678, 98 S. Ct. 2565, 57 L. Ed. 2d 522 (1978), reh. den. 439 U.S. 1122, 99 S. Ct. 1035, 59 L. Ed. 2d 83 (1978). According to Senate Report No. 94-1011, p. 5, U.S.Code Cong. & Admin.News , pp. 5908, 5913 (1976), the legislation contemplates that the fee be recovered from a state official out of funds under his control or from the state, whether or not the state is a named party. In this litigation the state itself is not a named defendant but the Attorney General, State Commissioner of Health, State Commissioner of Human Services and two division directors are named defendants.
Defendants object that the issue of attorneys' fees is not set forth in the pretrial order (R. 4:25-1(b)). But the count for enforcement of civil rights under § 1983 was set forth and at all times preserved. Attorneys' fees under § 1988 should be viewed as concomitant to enforcement of civil rights under § 1983. No prejudice to defendants is ...