On appeal from Superior Court of New Jersey, Chancery Division, Middlesex County.
J. H. Coleman, Havey and Stern. The opinion of the court was delivered by J. H. Coleman, P.J.A.D.
The pivotal question raised in this appeal is whether the exclusionary zoning condemned in Mount Laurel I and II may also violate the Federal Fair Housing Act (Act) thereby entitling plaintiffs to an award of attorney fees pursuant to 42 U.S.C. § 3612(c) and therefore R. 4:42-9(a)(8). Based on existing federal decisional law, we answer in the affirmative. The judge below held that the Act was not violated. We now reverse and remand for a redetermination consistent with this opinion.
On July 3, 1974 plaintiffs instituted an action against 23 of 25 municipalities in Middlesex County attacking their zoning ordinances as unconstitutionally exclusionary and discriminatory. The complaint alleged a violation of 42 U.S.C. § 1981 and § 1982 (Civil Rights Act), 42 U.S.C. § 3601 et seq. (Title VIII or the Fair Housing Act); the Thirteenth and Fourteenth Amendments of the United States Constitution; N.J. Const. (1947) Art. I, § 1, 5 and 18 and N.J.S.A. 40:55-32. Plaintiffs also demanded counsel fees and costs in the complaint.
The case was decided on May 4, 1976; the court's decision is reported at 142 N.J. Super. 11 (Ch.Div.1976). The trial judge found that the zoning ordinances of 11 of the 23 defendant municipalities violated the State Constitution as interpreted and applied in So. Burl. Cty. N.A.A.C.P. v. Tp. of Mt. Laurel, 67 N.J. 151, cert. den. 423 U.S. 808, 96 S. Ct. 18, 46 L. Ed. 2d 28 (1975) (Mount Laurel I). Mount Laurel I found that the zoning ordinances of the respective municipalities violated the
police power, equal protection and due process provisions of our State Constitution. Id. at 174-181. The trial judge dismissed plaintiffs' claims of discrimination under Title VIII, the Thirteenth and Fourteenth Amendments and the Civil Rights Act. The dismissal as to the individual plaintiffs was based on a lack of standing. The dismissal respecting the corporate plaintiff was based on a finding that "no credible evidence of deliberate or systematic exclusion of minorities was before the Court." Urb. League New Bruns. v. Mayor & Coun. Carteret, 142 N.J. Super. 11, 19 (Ch.Div.1976), certif. den., 74 N.J. 262 (1977). Defendants appealed and plaintiffs cross-appealed.
The Appellate Division, in a decision reported at 170 N.J. Super. 461 (1979), reversed in several respects: (1) the decision that Middlesex County was a proper housing region and that some of the defendants' ordinances were exclusionary; Id. at 475, (2) the trial judge's requirement that plaintiffs had to prove discriminatory intent to prevail under Title VIII; Id. at 469, and (3) the ruling that the individual plaintiffs lacked standing to argue violations of Title VIII. Id. at 468. The Appellate Division did not vacate the dismissal of alleged violations of the Thirteenth and Fourteenth Amendments. A remand for a new trial, however, was found to be inappropriate because plaintiffs had failed to sustain the burden of proof that defendants' zoning ordinances violated Mount Laurel I. Id. at 477. Certification was granted, 82 N.J. 283 (1980). The Supreme Court in So. Burlington Cty. N.A.A.C.P. v. Mount Laurel Tp., 92 N.J. 158, 199-200 (1983) (Mount Laurel II) consolidated the present case with five other cases for disposition.*fn1 The Supreme Court reversed and reinstated the trial judge's holding that the ordinances were exclusionary and violated the police power, due process and equal protection provisions of the State Constitution. Id. at 349. As to the
alleged violations of the Thirteenth and Fourteenth Amendments, the Court stated that "it does not appear that [the dismissal of those claims] is being pressed before this Court." Id. at 341.
On July 2, 1985, in response to Mount Laurel I and II, the Legislature enacted the New Jersey Fair Housing Act, N.J.S.A. 52:27D-301 et seq., which created the Council on Affordable Housing (COAH). N.J.S.A. 52:27D-305. On February 20, 1986 the Supreme Court sustained the constitutionality of the Fair Housing Act and ordered pending Mount Laurel II cases transferred to the COAH. Hills Development Co. v. Bernards Township, 103 N.J. 1 (1986).
In August 1986 plaintiffs made applications for attorney fees, expert fees and costs. Plaintiffs argued below that they were successful litigants under Mount Laurel II and that they were entitled to fees pursuant to R. 4:42-9(a)(8) and 42 U.S.C. § 3612(c). As the judge observed:
[T]he plaintiffs ask the court to find that the same facts which our Supreme Court in Mount Laurel II held to be violative of our state constitution under due process and equal protection concepts, that is, the exclusion of poor and low and moderate income people based on zoning practices also amounts to a violation of the federal Fair Housing Act. The federal statute by its terms prohibits discrimination in the sale, rental, financing and brokerage of housing because of race, color, religion, sex or national origin.
Based on the arguments by counsel for the plaintiffs, the issue framed before the judge was whether the economic discrimination established under Mount Laurel II, which conceivably had a disparate impact on racial and ethnic minorities, sufficiently established a violation of the Act which would permit plaintiffs to recover attorney fees and costs under 42 U.S.C. § 3612(c). As the motion judge observed, the thrust of plaintiffs evidence presented in the 1976 trial "attempted to show the impact that excluding [through zoning] has on minorities."
Although the motion judge was extremely sympathetic toward plaintiffs, he nonetheless concluded that they should not prevail. He stated:
I have to express in advance my personal frustration with the result I'm going to reach. There is something wrong about the result I'm going to reach in terms of equity, but I don't think that I have that kind of latitude to do what I just inherently feel is right in this case and, that is, that the Urban League should prevail. By a course of history and procedural fate the Urban League never got a chance to prove its case, and it can't prove it, now. It can't prove it factually, now, looking backward. If it could do that, then the Bung's case might give us some basis for granting relief. Perhaps an Appellate Court could find some way out of that morass, but I can't. And I say that up front, because it is a disturbing case to me. It's disturbing, it was disturbing up to after I had reviewed the law and assessed where I was at to make me hesitate for a long period of time to reach the decision that I feel that I am absolutely compelled to reach based on the law that's before me.
The trial court denied the application for attorneys fees and expenses after concluding that plaintiffs had not been successful litigants on any federal constitutional or statutory claims alleged in the complaint. The judge stated:
The Singer test [ Singer v. State, 95 N.J. 487 (1984)] does require a federal nexus between the cause of action and the relief obtained. I do not -- I think I said "federal nexus." I mean a factual nexus. The factual nexus is not present in this case. A violation of the federal Fair Housing Act would not require, I'm sorry, a violation of the federal Fair Housing Act would require a finding of discrimination based on race, color, sex, religion or creed, not low or moderate income. The Supreme Court finding [in Mount Laurel II ] was confined to the impact defendants' improper use of its power to zone was having on persons of lower and moderate income. While it may be that the impact was most greatly felt by nonwhites, minorities, no court has found low or moderate income to be equivalent to race. See Waldie versus Schlesinger, 509 Fed.2d 1110, [ sic, 508] Second Circuit, 1975, relying on James v. Valtierra, V-a-l-i-e-r-r-a, [ sic ] Second Circuit -- I'm sorry, 402 U.S. 137 [91 S. Ct. 1331, 28 L. Ed. 2d 678], 1971.
While the plaintiff attempts to prove disparate impact defendant's actions had on minorities, as I've indicated, such evidence should not be considered at this stage and certainly was not relied upon by the Supreme Court. Additionally, it is often the case, that is, that a state court will rely on its own constitution to provide its citizens with even greater protection than is available under the federal constitution. That is clearly the fact in this case. There in all likelihood cannot be a federal Mount Laurel, say violation of our state constitution, which may provide greater protection which in certain areas does not necessarily result in a violation of the federal constitution. In the instant case I cannot say that the same facts which give rise to the New Jersey violation also violate the federal Act. [emphasis added]
Plaintiffs have appealed from the order dated February 13, 1987 which denied the application for attorney fees and cost. In this appeal, plaintiffs contend:
1. PREVAILING PLAINTIFFS IN CIVIL RIGHTS CASES ARE PRESUMPTIVELY ENTITLED TO ATTORNEYS' FEES.
A. A PREVAILING PLAINTIFF IS ENTITLED TO ATTORNEYS' FEES UNLESS "SPECIAL CIRCUMSTANCES" RENDER SUCH AN AWARD UNJUST.
B. THE PIGGIE PARK STANDARD IS APPLICABLE TO TITLE VIII CASES.
2. THE TRIAL COURT'S HOLDING THAT IT LACKED AUTHORITY TO AWARD PLAINTIFFS' FEES WAS WRONG AS A MATTER OF LAW.
3. PLAINTIFFS ASSERTING A FEDERAL FEE CLAIM AND A STATE NONFEE CLAIM IN THE SAME ACTION, WHO PREVAIL ON THE NONFEE STATE CLAIM, ARE ENTITLED TO FEES WHERE THE FEDERAL CLAIM IS SUBSTANTIAL AND BOTH CLAIMS ARISE OUT OF THE SAME NUCLEUS OF OPERATIVE FACTS.
A. PLAINTIFFS' TITLE VIII CLAIM AROSE FROM THE SAME "NUCLEUS OF OPERATIVE FACTS" AS THE STATE CLAIM ON WHICH PLAINTIFFS PREVAILED.
B. PLAINTIFFS' TITLE VIII CLAIM MEETS THE SUBSTANTIALITY TEST.
4. THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING THE PREVAILING PARTY COSTS, INCLUDING EXPERTS' FEES.
A. THE TRIAL COURT ERRED IN HOLDING THAT IT LACKED DISCRETION TO AWARD PLAINTIFFS' EXPERTS FEES.
C. REASONABLE AND NECESSARY COSTS INCLUDED THE URBAN LEAGUE'S SHARE OF THE COURT-APPOINTED EXPERT'S FEE AND THE COURT BELOW ABUSED ITS DISCRETION ...