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January 25, 1984

JEFFREY MAY, individually; JEAN ROSS, as natural parent of DAMON ROSS, an infant, and JEAN ROSS, individually; BONNIE SCHORSKE, as natural parent of MARK TULLOSS, an infant, and BONNIE SCHORSKE, individually; BRENDA BUTLER, as natural parent of CARY BUTLER, an infant, and BRENDA BUTLER, individually; GARY DREW, individually, Plaintiffs,
DR. SAUL COOPERMAN, Commissioner of the Department of Education; NEW JERSEY DEPARTMENT OF EDUCATION; EDISON TOWNSHIP BOARD OF EDUCATION; OLD BRIDGE TOWNSHIP BOARD OF EDUCATION, Defendants, and ALAN J. KARCHER, as Speaker of the New Jersey General Assembly; the NEW JERSEY GENERAL ASSEMBLY; CARMEN A. ORECHIO as President of the New Jersey Senate and the NEW JERSEY SENATE, Defendants-Intervenors

The opinion of the court was delivered by: DEBEVOISE

 On January 10, 1983, plaintiffs commenced this action challenging the constitutionality of P.L. 1982, Ch. 205, the New Jersey Minute of Silence statute. The complaint sought declaratory and injunctive relief pursuant to 42 U.S.C. § 1983 and 28 U.S.C. §§ 2201, 2202. It also requested attorneys' fees and costs pursuant to 42 U.S.C. § 1988.

 In an opinion, 572 F. Supp. 1561, filed October 24, 1983 I found the statute unconstitutional and enjoined its enforcement. The case is now before the court on plaintiffs' motion for reconsideration of my denial of a fee award and on defendant-intervenors' motion for an extension of time to file notice of appeal.

 The original defendants named in the suit were Dr. Saul Cooperman, Commissioner of the Department of Education; the New Jersey Department of Education; the Edison Township Board of Education; and the Old Bridge Township Board of Education.

 Defendants Edison Township and Old Bridge Township Boards of Education ("the local board defendants") implemented P.L. 1982, Ch. 205 in all public schools within their jurisdiction. Plaintiff Gary Drew opposed the use of a minute of silence in the Old Bridge Township schools, where his two daughters were enrolled. Plaintiff Jeffrey May, a high school teacher in the Edison Township school system, objected to enforcing, participating in or requiring students to participate in the minute of silence. He was threatened with disciplinary proceedings by a representative of the Edison Township Board of Education were he not to comply with the statute and local directives regarding it.

 In their answer, Cooperman and the Department of Education ("the State defendants"), denied that Cooperman was charged with implementing, enforcing and promulgating P.L. 1982, Ch. 205, as alleged in the complaint. They asserted that the statute imposed no duty on them, but rather imposed a duty on principals and teachers. The text of the statute directs principals and teachers to "permit students of each school to observe a 1 minute period of silence." However, N.J.S.A. 18A:4-23 provides that the "commissioner shall have supervision" of the schools.

 The State defendants also denied that they had any role in the passage of P.L. 1982, Ch. 205, or that they ever implemented, enforced or threatened to implement or enforce the statute. These defendants sent no guidelines or regulations for implementation of the statute to the local school districts; they merely distributed copies of it. The Attorney General publicly stated that teachers would not face any sanctions from the State for refusing to observe the law. (Appendix to Defendants' Brief, p. 1a).

 The State defendants assert that they could not implement or enforce the statute in view of the positions taken by the Governor and Attorney General regarding it. Both had stated their beliefs that P.L. 1982, Ch. 205 was unconstitutional. The act only became law because the State legislature overrode the Governor's veto. The Attorney General announced before the filing of this action that he would not defend the statute if it was challenged. (Appendix to Defendants' Brief, p. 1a-2a). In response to the Attorney General's statements, the chairman of the New Jersey Senate Judiciary Committee announced plans to sponsor a bill that would require the Attorney General to defend all State laws in court regardless of his opinion as to their constitutionality. (Id. at p. 2a).

 Pursuant to N.J.S.A. 52:17A-4(e) and (g), the Attorney General is the sole legal advisor to all State agencies, and departments. In this capacity he had exclusive control over all litigation in which the State is a party or in which its rights or interests are involved. The Attorney General has represented the State defendants in this case, and has at no time presented any defense of the statute.

 On the same day as they filed their complaint, January 10, 1983, plaintiffs moved for a temporary restraining order, enjoining enforcement of the statute, pending a hearing for preliminary injunction. I entered a temporary restraining order that day, restraining enforcement of the statute and, by subsequent order, dated January 14, 1983, instructed defendant Cooperman to advise all local school districts of the order. The parties later voluntarily agreed to extend the restraints until trial.

 At the January 10 hearing, counsel for the New Jersey Legislature appeared and requested permission for the Legislature to intervene to defend the statute. On January 18, 1983, an order was filed permitting the intervention of Alan J. Karcher, in his representative capacity as Speaker of the New Jersey General Assembly; Carmen A. Orechio, in his representative capacity as President of the New Jersey Senate; and the New Jersey Senate. I permitted this intervention because the Legislature had been responsible for the enactment of the statute and because no other party defendant would defend it.

 The State defendants took no part in discovery in the case. During the pendency of the case, plaintiffs executed a stipulation dismissing with prejudice the original defendants. I refused to accept this stipulation out of concern for the effect it might have on the jurisdictional posture of the case. The State defendants did not participate at trial, but merely entered an appearance at the first day of trial, stated that they would not participate, and absented themselves thereafter.

 The defendant-intervenors took an active role in defense of the statute, beginning the day the complaint was filed. They sought and carried the burden of defending the constitutionality of P.L. 1982, Ch. 205, a bill which they had enacted into law over the Governor's veto.

 After trial on the merits, an opinion was filed on October 24, 1983, which found P.L. 1982, Ch. 205 unconstitutional and granted plaintiffs declaratory and injunctive relief enjoining enforcement and/or implementation of the statute. In that opinion, I denied plaintiffs' requests for awards of attorneys' fees and costs against both the defendants and the defendant-intervenors, stating:

The named defendants did not contest the action on the merits. They were not responsible for enactment of the legislation under review. There is no reason why they should be required to pay plaintiffs' attorneys fees.
The intervenors did oppose plaintiffs on the merits. However, even though they did not prevail, their participation in the case served a valuable public purpose. Without their participation the facts and the law would not have been developed adequately. In a difficult case such as this in which important public interests are involved, it was essential that the facts be developed and the law fully presented. Since intervenors' role in this case contributed significantly in that regard it would be inappropriate to charge them with attorneys fees.

 On November 15, 1983, judgment was entered, consistent with the October 24 opinion. On November 28, plaintiffs filed their motion for reconsideration of the denial of attorneys' fees. *fn1" Prior to hearing on their motion for reconsideration, plaintiffs informed the court that they sought fees and costs from the defendant-intervenors and the State defendants and not from the defendant local boards of education. Counsel for the local boards, after learning from plaintiffs that plaintiffs were not seeking an award against them, were absent from the hearing. At the hearing, plaintiffs attempted to reinstate their request for an award against the local boards.

 On December 9, 1983, the defendant-intervenors filed a notice of appeal from the judgment. On December 13, they filed a motion seeking an extension of time to file a notice of appeal.


 I. Motion for an Extension of Time to File Notice of Appeal

 As a preliminary matter, I consider defendant-intervenors' motion for an extension of time to file notice of appeal. Because plaintiffs filed a timely motion under Fed.R.Civ.P. 59(e), the time for filing notice of appeal will not begin to run until the entry of the order deciding that motion. Fed.R.App.P. 4(a)(4). *fn2"

 Even if plaintiffs' motion had not been timely, defendant-intervenors have no need for an extension; they filed a timely notice of appeal on December 9, 1983. Fed.R.App.P. ...

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