The issue before the court is whether a county clerk's failure to conduct a drawing for ballot position in a special election, contrary to the requirements of the New Jersey Election laws, N.J.S.A. Title 19, constitutes a violation of 42 U.S.C.A. § 1983 such that attorney's fees may be awarded under 42 U.S.C.A. § 1988(b).
The event precipitating this action was a special election called to fill the unexpired terms for the offices of Mayor and Council at Large in the Town of Guttenberg, County of Hudson, State of
New Jersey. A complaint and order to show cause with temporary restraints were filed on September 23, 1992. The first count of the complaint alleged that the Hudson County Clerk ("Clerk") improperly failed to conduct a drawing for ballot position in the special election, as required by N.J.S.A. 19:14-12, and that the Clerk wrongfully placed plaintiffs' election adversaries in the preferred column "A", while plaintiffs were placed in column "C". Plaintiffs also alleged that this conduct constituted a violation of their civil rights and a denial of due process of law. The second count of the complaint alleged that a drawing for ballot position had been held for a recent Jersey City special election, and the denial of a similar drawing for Guttenberg was a violation of Title 19, plaintiffs' civil rights and due process of law.
On September 28, 1992, the return date of the order to show cause, it was stipulated that the Clerk had been advised by the attorney for the Hudson County Democratic chairman that plaintiffs' election rivals were the designated candidates of the Democratic Party. Relying on that representation, the Clerk placed plaintiffs' election adversaries on column "A", the position enjoyed by the Democratic Party. However, plaintiffs' election adversaries were not, in fact, the designees of the Democratic Party, for the party and its chairman failed to comply with the provisions of Title 19 governing party designations, specifically N.J.S.A. 19:13-20 and 19:27-11. As a result, the Clerk's action in placing plaintiffs' election rivals on column "A", in lieu of a drawing, was contrary to law.
On October 9, 1992, the court entered an order voiding the ballot positions assigned by the Clerk and directed that a drawing for ballot position be held. In rendering its decision, the court found no violation of any civil rights, or of any other rights, privileges or immunities secured by the Constitution or laws of the United States. In fact, no claims were made by plaintiffs at oral argument beyond the failure of the Democratic Party committee and Clerk to comply with the pertinent provisions of Title 19.
Plaintiffs now seek an award of attorney's fees and costs pursuant to 42 U.S.C.A. § 1988 and R. 4:42-9.
Our court rules provide that no fee for legal services shall be allowed in the taxed costs or otherwise, except in eight enumerated instances. The only exception applicable here is R. 4:42-9(a)(8), which permits counsel fees to be awarded where they are "permitted by statute." There is no applicable New Jersey statute providing for counsel fees. Therefore, plaintiffs rely on a federal statute, 42 U.S.C.A. § 1988, which provides in pertinent part:
In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318, or title VI of the Civil Rights Act of 1964, 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.
As § 1983 is the only even remotely applicable statute referred to in § 1988, it is assumed that plaintiffs seek relief under that section. 42 ...