On appeal from Superior Court of New Jersey, Law Division, Bergen County.
J.h. Coleman, Stern and Keefe. The opinion of the court was delivered by Coleman, J.h., P.J.A.D.
COLEMAN, J.H., P.J.A.D. This appeal raises two important issues. The first is whether plaintiffs were "prevailing parties" under 42 U.S.C.A. § 1988 (Section 1988) in an action to enforce their civil rights guaranteed by the federal constitution. The second issue presented is, if they were the prevailing parties, whether they were entitled to have their attorney's fees paid for obtaining an order directing defendants to issue plaintiffs a permit to march in the street rather than on the sidewalk. The Law Division held that obtaining such an order did not represent "the advancement of any substantial constitutional issue" and denied an application for counsel fees pursuant to Section 1988. We reverse and direct the payment of a reasonable counsel fee.
This case arises out of a free exercise of the First Amendment right of freedom to assemble to protest the tragic killing of Phillip C. Pannell on April 10, 1990 by Teaneck Police Officer Gary Spath.*fn1 Plaintiffs planned four marches on successive Saturdays, June 30, July 7, 14, and 21, 1990, to focus public attention on the killing, urged by some to have been racially motivated. A special event permit, required by Teaneck Township Code, §§ 31B-1 to 5, was obtained for the first three marches. On the three prior occasions, the participants in each march walked in the street down Teaneck Road because the permit did not restrict them to the sidewalk. The fourth march
scheduled for July 21, 1990, is the one which prompted this litigation.
On July 11, 1990, plaintiffs submitted an application for a special events permit to conduct a march, this time along Cedar Lane in the commercial-business district, to the City Hall Municipal Complex. On the day the application was submitted, the Chief of Police, Bryan E. Burke, recommended denial of the permit due to perceived traffic and pedestrian congestion caused by shoppers and parking on both sides of the street. Thereafter, negotiations were conducted between plaintiffs and defendants through July 18, 1990.
Having failed at negotiations of a route that included marching in the street along Cedar Lane, and the time scheduled for the march was rapidly approaching, plaintiffs sought judicial intervention. They filed a complaint in lieu of prerogative writs on July 19, 1990 and an Order to Show Cause was issued at 3:00 p.m. The order required defendants to show cause at 9:00 a.m. on July 20 why a permit to march "along Cedar Lane" on July 21, 1990 should not be issued. It was revealed at the hearing conducted on the 20th that Henry Ross, III, the Deputy Manager of Teaneck and the person designated to grant or deny the permit, issued a permit on July 19 specifying "the route for the march from the intersection of River Road and Cedar Lane along the North sidewalk of Cedar Lane." When the court became aware that a conditional permit had been issued, the focus of the litigation shifted to whether the condition limiting the march to the sidewalk was proper.
At the Conclusion of the hearing, the Judge found that based on "the law of the United States and . . . the law of New Jersey," the permit shall be amended "to permit the walk, parade or march to occur in an orderly fashion . . . [along] the route designated [in the permit] . . . but that the walk should occur in the street." He reasoned that there was no reasonable basis for limiting the march to the sidewalk. The Judge found that the 150 to 200 anticipated participants walking three to
four abreast would never fully occupy more than one city block at any given time. Based thereupon, cross-traffic waiting to enter or cross Cedar Lane would not be obstructed. He also stated that because the marchers would walk only on the easterly side of Cedar Lane, traffic could flow freely in the westerly direction.
After the march was conducted on July 21, plaintiffs applied for attorney's fees and costs pursuant to R. 4:42-9(a)(8) based on Section 1988. The application for counsel fees was denied and the Judge relied essentially on Right to Choose v. Byrne, 91 N.J. 287, 316, 450 A.2d 925 (1982). The Judge reasoned that the parties had conducted negotiations respecting the route and the only issue left for resolution before him was whether the march should be conducted on the sidewalk or in the street, the resolution of which was not regarded as advancing any "substantial, constitutional issue." The same order which denied counsel fees and costs, also directed ...