On appeal from the Superior Court, Law Division, Monmouth County.
Michels, Long and Muir, Jr. The opinion of the court was delivered by Long, J.A.D.
[232 NJSuper Page 36] Plaintiffs, Shadrick Gregg, Jean Gregg, David Gregg and Elizabeth Gregg, t/a Locust Grove Mobile Home Park, appeal from that portion of a Superior Court judgment which denied their application for the assessment of counsel fees against defendant, Township Committee of the Township of Hazlet. The case arose in 1987 when plaintiffs, owners of a mobil home park, sought and obtained a rent increase from the township rent leveling board. Tenants of the park appealed to the defendant which considered the case "during private executive sessions." Plaintiffs had neither notice of these sessions nor opportunity to be heard. Defendant later enacted a resolution substantially reducing the increase. Plaintiffs filed this action in lieu of prerogative writs alleging that defendant had denied them due process and thus violated 42 U.S.C. § 1983; that they were entitled to counsel fees under 42 U.S.C. § 1988; and that defendant violated the Open Public Meetings Act, N.J.S.A. 10:4-6 et seq. The trial judge ruled that (1) by denying plaintiffs
notice and an opportunity to be heard, defendant violated their rights to due process; (2) defendant violated the Open Public Meetings Act; and (3) the matter had to be remanded to the governing body for reconsideration of the rent increase. The trial judge denied counsel fees:
As for the plaintiffs' request for counsel fees, there is no doubt that it is clearly in this Court's discretion as to whether same are warranted. Case law does exist that allows for the prevailing party in a civil rights action to recover counsel fees, absent a showing that special circumstances exist making it appropriate.
Township points out to the Court that the committee did act in good faith at all times throughout the proceedings below. They conducted a de novo review based on the record supplied by the Rent Control Board. This factor, plus the overriding concern that the innocent taxpayers of Hazlet would be the ultimate bearers of awarding a counsel fee, does amount to I find, special circumstances that would make counsel fees inappropriate in this action.
Plaintiffs appeal. Because the reasons advanced by the trial judge in support of the denial of fees were improper, we reverse and remand the case to him for reconsideration of the counsel fee issue, in light of, the appropriate standard.
The Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988 prescribes that in a section 1983 action, "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." On appeal, it is conceded that plaintiffs proved a section 1983 due process violation and that plaintiffs were prevailing parties, a prerequisite for recovery under section 1988. Singer v. State, 95 N.J. 487, 492 (1984), cert. den. 469 U.S. 832, 105 S. Ct. 121, 83 L. Ed. 2d 64 (1984). The parties diverge over the extent of the discretion vested in the trial judge to deny attorney's fees to a prevailing party. Plaintiffs claim that fees should be allowed absent "special circumstances," a very narrow category. Defendant, on the other hand, argues that the trial judge's discretion is very broad.
Although the award of fees is discretionary, it was clearly the intent of Congress in passing section 1988 that fees be awarded as a matter of course. See Zarcone v. Perry, 581 F.2d 1039, 1041-1042 (2d Cir.1978), cert. den. 439 U.S. 1072, 99
S. Ct. 843, 59 L. Ed. 2d 38 (1979) (discussing legislative history of section 1988); Carlstadt Educ. Ass'n v. Mayor & Council of Carlstadt, 219 N.J. Super. 164, 167-168 (App.Div.1987). Fees may be denied only where special circumstances would make such an award unjust. Carlstadt Educ. Ass'n, supra, 219 N.J. Super. at 167 (citing Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S. Ct. 964, 966, 19 L. Ed. 2d 1263 (1968)).*fn1 In short, fees should be the rule rather than the exception and the special circumstances exception should be applied only in unusual cases. Ackerley Communications, Inc. v. City of Salem, Or., 752 F.2d 1394, 1396 (9th Cir.1985), cert. den. 472 U.S. 1028, 105 S. Ct. 3503, 87 L. Ed. 2d 634 (1985); Entertainment Concepts, Inc., III v. Maciejewski, 631 F.2d 497, 506-507 (7th Cir.1980), cert. den. 450 U.S. 919, 101 S. Ct. 1366, 67 L. Ed. 2d 346 (1981). Thus, a trial judge's discretion in denying a fee is quite limited. See M. Schwartz and J. Kirklin, Section 1983 Litigation: Claims, Defenses and Fees, §§ 16.1-16.2 (1986) [hereinafter Schwartz and Kirklin ]. Indeed, defendant has been unable to cite any case in which a reviewing court has upheld a denial of attorney's fees to a plaintiff, who was in fact, represented by an attorney.
It is on this backdrop that the denial of fees in this case must be viewed. The trial judge advanced two reasons for the denial: good faith and taxpayer burden. Turning first to good faith, it is well-established, and both parties agree, that the good faith of a defendant, standing alone, may not justify a denial of attorney's fees under section 1988. See Hutto v. Finney, 437 U.S. 678, 693-700, ...