This action seeks to compel the defendants to authorize the payment of legal expenses incurred by plaintiff in his successful defense of an election contest. Both parties have filed motions for summary judgment on the issue of whether the City of Atlantic City must pay the legal expenses of plaintiff.
Plaintiff is the former mayor of Atlantic City, New Jersey and was serving in that capacity when the election contest was filed. The contest consisted of three separate suits, which were consolidated for trial. The first suit alleged malconduct, fraud, mismanagement, and negligence; the second alleged violations of New Jersey campaign laws; and the third alleged violations of New Jersey election laws and specifically challenged the right of plaintiff to simultaneously hold the offices of mayor of Atlantic City and assemblyman of the State of New Jersey. After a trial lasting in excess of four months, judgment was entered in favor of plaintiff in all three actions.
Plaintiff was represented in the prior actions by Richard Alten, Esquire. Alten is an attorney in the Atlantic City area engaged in private practice and unaffiliated with the Atlantic City solicitor's office. Plaintiff claims that he was required to retain private counsel due to the inability of the solicitor's office to provide adequate representation at trial. An affidavit submitted by Matthew H. Powals, City Solicitor of Atlantic City supports plaintiff's contention. Subsequent to the conclusion of the trial, Alten submitted to plaintiff a bill in the amount of $80,710.27 representing costs and attorney's fees. Plaintiff then requested the city council of Atlantic City to authorize payment. City council refused to authorize any payment whatsoever whereupon plaintiff initiated this lawsuit.
In the present case plaintiff is not seeking to enforce an action already taken by defendants but instead is seeking relief in the nature of mandamus to compel them to take action which plaintiff deems nondiscretionary; that is, payment of plaintiff's legal expenses. The determination of whether plaintiff is entitled to the relief requested requires the resolution of two issues; the first being whether defendants could have authorized payment of plaintiff's counsel fees, and the second being whether defendants could be compelled to authorize said payment.
In support of the present motion, plaintiff relies on New Jersey case law, Federal and State Equal Protection provisions, and public policy considerations. For the reasons which follow, however, all of plaintiff's arguments must fail.
The rule in New Jersey is that a municipality has the authority to contract with private individuals for the performance of services which the municipality itself may render. N.J.S.A. 40:48-5. Thus, the first issue is narrowed to whether the office of the city solicitor could have defended the plaintiff in the election contest if it had had sufficient resources at the time. The defense of these actions by the solicitor would have obviously required the expenditure of public funds on the
plaintiff's behalf. Such action by the solicitor is only allowed where the defense of the suit constitutes a public purpose. Roe v. Kervick, 42 N.J. 191, 207 (1964). In Roe, supra, the New Jersey Supreme Court stated that the term "public purpose":
There are no cases in New Jersey which specifically deal with the issue of whether a mayor who successfully defends against an election contest can be compensated by the city for his legal expenses. There are cases, however, which deal generally with the obligation of a municipality to pay the legal fees of its officials.
Several early New Jersey cases have held that a municipality may properly indemnify its officials so long as the expenses are incurred in the performance of official duties or in defense of actions challenging official acts. For example, in State, Lewis, Pros. v. Freeholders of Hudson County, 37 N.J.L. 254 (Sup.Ct.1874), the court held that the county freeholders could indemnify the county coroner for expenses arising from the arrest and transportation of an accused murderer. In a later case it was held that the town council of Hammonton could defend a malicious prosecution suit brought by the prosecutor against a council member who investigated the prosecutor's handling of public monies. State, Bradley, pros. v. Council of Hammonton, 38 N.J.L. 430 (Sup.Ct.1876). The Bradley Court based its holding on the fact that the council member was involved in the bona fide discharge of his duties. It has also been held that a mayor who successfully ...