On certification to the Superior Court, Appellate Division.
For affirmance as modified -- Chief Justice Wilentz and Justices Clifford, Schreiber, Handler, Pollock and Garibaldi. For reversal -- None. The opinion of the Court was delivered by Handler, J.
[95 NJ Page 489] The Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988 ("Awards Act" or "section 1988"), permits an award of attorney's fees to successful parties in certain actions brought under particular civil rights statutes. Plaintiffs in this case, asserting a violation of their civil rights, brought an action to invalidate the "Casino Ethics Law," L. 1980, c. 79 ("Law").
They succeeded in obtaining a judgment invalidating the Law and now seek counsel fees under the Awards Act.
The Law that is the focus of plaintiffs' action amended and supplemented the New Jersey Conflicts of Interest Law, N.J.S.A. 52:13D-12 to -27. It imposed restrictions upon the business activities and financial interests of unpaid, part-time "special state officers and employees" serving upon the state's public authorities, boards and commissions. The Law prohibited any such activities or interests or any direct or indirect employment of such state officers or employees in connection with casino licensees and applicants. N.J.S.A. 52:13D-17.1.
Immediately prior to the Law's effective date, July 29, 1980, almost 2,000 "special state officers and employees" resigned their public offices to avoid the Law's prohibition against direct or indirect gainful involvement in the so-called casino industry or in areas affiliated with or servicing the casino industry. On August 29, 1980, after the Law became effective, plaintiff Marijane Singer, a member of the Board of Trustees of Rutgers University, and eleven other individuals who were or had been "special state officers or employees" serving on various state bodies, filed a complaint against the State of New Jersey, Governor Brendan Byrne, the Department of Law and Public Safety and each member of the State's Executive Commission on Ethical Standards. Counts I and II of the complaint alleged that the Law violated plaintiffs' federal*fn1 constitutional rights. Counts III and IV stated the Law violated plaintiffs' state constitutional rights. Counts V and VI alleged a violation of plaintiffs' rights under the federal Civil Rights Act, 42 U.S.C. § 1983 (1976) ("section 1983").*fn2 Count VII was a common-law
breach of contract claim. The relief sought was a declaratory judgment that the Law was unconstitutional, an injunction barring its enforcement, an award of damages and attorneys' fees.
On cross motions for summary judgment, the trial court found for plaintiffs on Counts I through IV and granted the declaratory and injunctive relief sought. However, the court also granted defendants' motion for summary judgment on Counts V through VII and turned down plaintiffs' claim for damages. The effect of the court's judgment was to uphold plaintiffs' claims on both federal and state constitutional grounds but to reject their claims on common-law and statutory grounds, including plaintiffs' claim under section 1983 as set forth in Counts V and VI. The court also denied plaintiffs' subsequent motion for an award of attorneys' fees made subject to section 1988.
Plaintiffs appealed from the trial court's entry of judgment for defendants on Counts V and VI and its denial of attorneys' fees. The Appellate Division reversed that portion of the trial court's judgment concerning the denial of attorneys' fees. It ruled that plaintiffs should have succeeded on their section 1983 claim and that, in any event, plaintiffs were entitled to an award of fees under the Awards Act because they prevailed on their federal constitutional claims. Accordingly, the matter was remanded to the trial court for further proceedings to determine whether such fees should be granted and, if so, the amount to be awarded. We granted certification, 93 N.J. 240 (1983).
The Awards Act provides in relevant part:
In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985 and 1986 of this title * * * or in any civil action or proceedings, by or on behalf of the United States of America, to enforce, or charging a violation of, a provision of the United States Internal Revenue Code, or Title VI of the Civil Rights Act of 1964 * * * 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. [42 U.S.C. § 1988.]
The first question presented by this appeal is whether plaintiffs "prevailed" within the meaning of section 1988, entitling them to an award of attorneys' fees.
In order to become entitled to an award of attorneys' fees under the Awards Act, there must be a threshold showing by a prevailing plaintiff of not only a deprivation of a protectable right, but also of some action by defendant "under color of" state law that causes the deprivation of that right. 42 U.S.C. § 1983 (1976); Flagg-Brothers, Inc. v. Brooks, 436 U.S. 149, 98 S. Ct. 1729, 56 L. Ed. 2d 185 (1978); Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970). Ordinarily, a plaintiff must demonstrate a "direct causal link between some official conduct of each defendant and the alleged constitutional deprivation" to establish liability under section 1983. Fialkowski v. Shapp, 405 F. Supp. 946, 950 (E.D.Pa.1975); Young v. Peoria Housing Auth., 479 F. Supp. 1093, 1097 (C.D.Ill.1979).
In this case, the State argues that this initial requirement for some state action has not been met and that none of the named defendants engaged in any action sufficient to create section 1983 liability. It points out that Governor Byrne allowed L. 1980, c. 70, to become law without his formal signature. Further, neither the Attorney General nor the Executive Committee on Ethical Standards took any steps to enforce the provisions of the Law. Thus, according to the State, the harm asserted by plaintiffs did not arise as the result of any individual's official actions. Rather, the harm arose simply ...