On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
King, Deighan and Muir. The opinion of the court was delivered by King, P.J.A.D.
This case involves the award of counsel fees to attorneys for prevailing parties in civil rights claims under 42 U.S.C.A. § 1988. The Law Division judge denied any fee award to prevailing counsel. On this appeal the teacher's union and its members claim that the judge "misinterpreted his authority under 42 U.S.C.A. § 1988."
This is the procedural background to this litigation. On April 4, 1986 plaintiffs, Carlstadt Education Association, Maureen
Avery, Dona Tooley, and Joanne Kearney filed a complaint alleging that defendants, Mayor and Council of the Borough, had violated the United States Constitution, the State Constitution, and the New Jersey Open Public Meetings Act (N.J.S.A. 10:4-6 et seq.) by rescinding permission for plaintiffs to use the Carlstadt Civic Center for a school board "Candidates Night." On April 9, 1986 the Law Division judge issued an oral opinion which reinstated plaintiffs' right to use the Civic Center. Plaintiffs then filed a request for counsel fees which was denied in a written opinion where the judge stated:
In awarding Attorney fees, New Jersey Courts have applied the Federal standard. See Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240 [95 S. Ct. 1612, 44 L. Ed. 2d 141 (1975)], Hensley v. Eckerhart, 461 U.S. 424 [103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983)], Newman v. Piggy Park Enterprises, 390 U.S. 400 [88 S. Ct. 964, 19 L. Ed. 2d 1263 (1968)]. These cases discuss the purpose of § 1988. It is to ensure effective access to the judicial process for persons with civil rights grievances who have little or no money with which to hire a lawyer. Fee awards are also intended to provide an incentive to competent lawyers to undertake Civil Rights litigation.
Although I found a Constitutional violation on the part of the Borough of Carlstadt, the conduct did not rise to the level of the facts in other cases where fees were awarded. Those included ongoing, systematic and official conduct on the part of defendants whose defense was maintained in bad faith and for oppressive reasons. A most recent Appellate Division case, Frank's Chicken House v. Mayor & Council of Manville, [208 N.J. Super. 542 (App.Div.1986)] Docket No. A-982-84T7), reiterates the prevailing criteria. The facts in Carlstadt differ. No ordinance existed, no rule was violated, no systematic derogation of rights took place and no infringement of rights that would otherwise go unlitigated occurred. Essentially, the Borough's action was an isolated error in judgment. No evidence was presented in the short hearing to show that the defendant engaged in the purposeful activities described in the cases cited.
This is the factual background. On March 13, 1986 the Clerk for the Borough of Carlstadt received a letter requesting use of the Carlstadt Civic Center by plaintiffs, the Carlstadt Education Association. Plaintiffs planned to hold a "Candidates Night" moderated by the Bergen County League of Women Voters in a neutral location like the Civic Center where the public could meet the school board candidates. The defendants, the Mayor
and the Council, approved the request at a meeting held on March 17, 1986.
On March 24, 1986 six Board of Education members wrote to the Mayor and Council to complain of the plaintiffs' use of the Civic Center and three days later the Council rescinded permission to use the facility. No reason for this action was given at the time but later certifications filed by individual Council members made it clear that they felt the evening would be a partisan, self-serving opportunity for the teachers' union to increase its support at the expense of the Board of Education, who would be criticized throughout the entire program. They also felt that issues which were the subject of ongoing negotiations between the Board and the union would be brought up and improperly discussed. Plaintiffs filed suit and the judge found that defendants had unlawfully ...