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Council Enterprises Inc. v. City of Atlantic City

Decided: November 13, 1984.

COUNCIL ENTERPRISES, INC., A NEW JERSEY CORPORATION, PLAINTIFF,
v.
THE CITY OF ATLANTIC CITY, A POLITICAL SUBDIVISION OF THE STATE OF NEW JERSEY, AND ADELAIDE DEANE, DEFENDANTS



Gruccio, A.j.s.c.

Gruccio

OPINION

The controversy in the above entitled matter comes before this court as a result of a motion by plaintiff Council Enterprises, Inc. for an order awarding counsel fees to plaintiff pursuant to the Civil Rights Attorney's Fee Awards Act of 1976, 42 U.S.C. § 1988 and § 706(k) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-5(k).

42 U.S.C. § 1988 provides in pertinent part:

If any action or proceeding, to enforce a provision of sections 1981, 1982, 1983, 1985 and 1986 of this title, Title IX of Public Law 92-318, . . . 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. § 2000e-5(k) reads:

In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party, other than the (EEOC) or the United States, a reasonable attorney's fee as part of the costs, and the (EEOC) and the United States shall be liable for costs the same as a private person.

The original complaint in this action was filed on June 20, 1984. The counts alleged the invalidity and unconstitutionality of Ordinance No. 10 of the City of Atlantic City.

Plaintiff leased property located at 1000 Atlantic Avenue, Atlantic City. He renovated the building and planned to open an adult book store on the premises. Ordinance No. 10 of the City of Atlantic City was adopted on February 28, 1984. The ordinance, by its terms prohibited the establishment of an adult book store at the location where plaintiff had planned to open such a store. The ordinance was alleged to violate the First, Fifth and Fourteenth Amendments to the United States Constitution, and Article I, § 6 of the New Jersey Constitution. The counts alleged substantive violations and included a request for a declaratory judgment. The cause of action was also brought pursuant to 42 U.S.C. § 1983, et seq. commonly known as the Federal Civil Rights Act and included a request for attorney's fees pursuant to the Civil Rights Attorney's Fees Awards Act.

From the period of August 1983 until February 28, 1984 plaintiff or its attorney had numerous discussions with the city as to the approval necessary for the opening of an adult book store at the corner of Atlantic and Virginia Avenues. After passage of Ordinance No. 10 the city, acting on the assumption of the ordinance's constitutionality, informed plaintiff that it could not open its adult book store at the planned location. While there was general communication between the parties as to the validity of Ordinance No. 10, no amicable resolution was reached. By order of this court on August 8, 1984, Ordinance No. 10 of the City of Atlantic City was declared to be invalid in

that it constituted a violation of the First and Fourteenth Amendments to the United States Constitution.

The theory underpinning recovery by prevailing civil rights plaintiffs is that they act as private attorneys general in enforcing public law norms and when addressing discrimination "vindicate a policy that Congress considered of the highest priority." Newman v. Piggy Park Enterprises, 390 U.S. 400, 402, 88 S. Ct. 964, 966, 19 L. Ed. 2d 1263 (1968). In determining the amount of the fee to be awarded under the act, a court should begin with the fact that the basic purpose of the act is to promote private enforcement of the civil rights statutes by enabling litigants to obtain competent counsel to pursue their claims. Congress recognized that civil rights litigation is a specialized and complex field. For this reason the amount of the fees awarded in a civil rights case should be governed by "the same standards which prevail in other types of equally complex Federal litigation, such as antitrust cases." Sargeant v. Sharp, 579 F.2d 645, 648 (1st Cir.1978).

Section 1988 states that the court may award fees "in its discretion." However, this discretionary power does not mean that the court is permitted to deny fees for any reason, or that its reasons, if erroneous, are not reviewable. Indeed, under the statute, fees are to be awarded in the ordinary case to a prevailing plaintiff unless there is a special reason not to award fees.

The language of the 1976 act was not new. It was the precise language which had been used to authorize attorney fee awards in a number of specific civil rights actions since 1964. Congress' specific intent in selecting this particular language was to incorporate the standards which had been developing in the courts under these statutory authorizations. For example, in Newman, supra, the Court recognized the important purpose of vindicating congressional policy by bringing civil rights suits and declared that a successful plaintiff "should ordinarily recover an attorney's fee unless special circumstances would

render such an award unjust." Id. 390 U.S. at 402, ...


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