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Frank''s Chicken House Inc. v. Mayor and Council of Borough of Manville

Decided: March 7, 1986.


On appeal from Superior Court, Law Division, Somerset County.

Dreier and Gruccio. The opinion of the court was delivered by Gruccio, J.s.c. (temporarily assigned).


Plaintiff appeals, as insufficient, counsel fees awarded it pursuant to 42 U.S.C.A. § 1988 following its successful challenge of an ordinance prohibiting live nude dancing in the Borough of Manville. Defendant cross appeals from any award of an attorney's fee, and argues alternatively that the amount fixed below is adequate.

Plaintiff based its challenge to the ordinance upon both an alleged violation of 42 U.S.C.A. § 1983 and the preemption of the ordinance's subject matter by the New Jersey Code of Criminal Justice, N.J.S.A. 2C:1-1, et seq. Plaintiff also claimed that the ordinance was arbitrary, capricious and ultra vires. The ordinance was invalidated by the trial judge as violative of plaintiff's First Amendment rights under the United States Constitution. He did not rule upon the preemption issue or other issues raised.

Pursuant to the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C.A. § 1988, plaintiff submitted a certification of services seeking fees totaling $12,266.66. The judge below correctly acknowledged that an award of attorney's fees was appropriate under the Awards Act. Denying counsel's request for oral argument, he issued a letter decision awarding $2000 but failed to disclose how he reached his determination. It was clear, however, that the judge did not consider the applicable

decisional law which allows an attorney full compensation for services performed in representing a client on a civil rights matter before a municipal or administrative body. Bonner v. Coughlin, 657 F.2d 931, 937 (7th Cir.1981); Sullivan v. Comm. of Pa., Dept. of Labor, 663 F.2d 443 (3rd Cir.1981); Bung's Bar & Grille, Inc. v. Florence Tp. Council, 206 N.J. Super. 432 (Law Div.1985); Council Enterprises, Inc. v. Atlantic City, 200 N.J. Super. 431, 437 (Law Div.1984).

In awarding attorney's fees the New Jersey courts have applied the federal standard. Carmel v. Hillsdale, 178 N.J. Super. 185, 189 (App.Div.1981); Ramirez v. Hudson County, 169 N.J. Super. 455, 457-458 (Ch.Div.1979). Although the Awards Act gives the court discretion in awarding attorney's fees, fees should be liberally granted. Id. at 459 Moreover, courts are not free to deny fees to prevailing plaintiffs unless special circumstances would make the award unjust. Jones v. Orange Housing Authority, 559 F. Supp. 1379, 1383 (D.N.J.1983). Thus the prevailing party should normally recover attorney fees. Carmel, 178 N.J. Super. at 189. If a court determines the fee awarded should be less than the fee requested, the reasons must be articulated and supported by the record. Poston v. Fox, 577 F. Supp. 915, 918 (D.N.J.1984).

The legislative purpose of § 1988 is to encourage and enable private litigants to challenge intrusions upon their civil rights. A prevailing civil-rights plaintiff acts as a private attorney general "vindicating a policy that Congress considered of the highest priority." Newman v. Piggie Park Enterprises, 390 U.S. 400, 402 88 S. Ct. 964, 966, 19 L.Ed 2d 1263, 1265 (1968).

In the present case, plaintiff's First Amendment rights were blatantly violated. Live nude dancing is protected by the First Amendment. Schad v. Borough of Mount Ephraim, 452 U.S. 61, 66, 101 S. Ct. 2176, 2181, 68 L. Ed. 2d 671, 678 (1981). The ordinance threatened plaintiff's commercial existence and subjected its owner to criminal sanctions including fines and imprisonment. In order to defend the ordinance and to apply it to plaintiff, defendant engaged a sociologist, a private investigator

and a special attorney. Its attorney received a retainer of $5000 and a fee of $70 per hour. To counter this well-financed assault it was necessary for plaintiff to obtain counsel to protect its constitutional rights.

The threshold question in awarding attorney's fees is whether the plaintiff was the "prevailing" party. A plaintiff is considered "prevailing" if he is successful on any significant issue which benefits the party bringing the suit. Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S. Ct. 1933, 1939, 76 L. Ed. 2d 40, 50 (1983). In the present case, plaintiff clearly was the prevailing party. The ordinance in question was enacted in reaction to the opening of plaintiff's business and was declared unconstitutional. Companion litigation concerning zoning regulations in no way affected plaintiff's ...

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