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HUGHES v. LIPSCHER

May 16, 1994

Marie William Hughes, et ux
v.
Robert D. Lipscher, etc., et al



The opinion of the court was delivered by: NICHOLAS H. POLITAN

 Dear Counsel:

 This matter is presently before the Court on the application of plaintiffs for attorneys' fees pursuant to 42 U.S.C. § 1988. I heard oral argument in this matter on March 7, 1994 and reserved decision. The instant application calls for a resolution to the questions of (1) whether the named defendants were insulated against an award of attorneys' fees via the doctrine of legislative immunity, (2) whether the plaintiffs satisfied the prevailing party prerequisite required by § 1988 and, if so, (3) whether their claimed attorneys' fees were in fact reasonable. I address each issue in seriatim. For the reasons expressed herein, plaintiffs' application for attorneys' fees is hereby GRANTED in part.

 I. STATEMENT OF FACTS

 The facts giving rise to this case have been set forth in full in a prior decision of this Court and hence need not be exhaustively restated. See Hughes v. Lipscher, 720 F. Supp. 454 (D.N.J.), vacated and remanded, 906 F.2d 961 (3rd Cir. 1990). Presently it is sufficient to note that in 1988 Marie Williams, the municipal court clerk in the Borough of North Arlington, married Joseph Hughes, a detective with the North Arlington police Department. The marriage seemingly ran afoul of a New Jersey Supreme Court directive (Bulletin Letter No. 5/6-77 -- "Spouse, Parent or Child of Law Enforcement Officer Serving as Court Clerk or Deputy Court Clerk"), issued through the Administrative Office of the Courts ("AOC"), which provided that "after August 1, 1977 no court clerk or deputy court clerk of a municipal court may be appointed or designated if that person has a spouse, parent or child who is or becomes a police officer serving on the police force in that municipality." Upon being informed by Dr. Conrad J. Roncati, the Trial Court Administrator of Bergen County, that the Bulletin Letter was indeed applicable to the Hughes's employment/marital situation, and that "pending resolution of this matter [Mrs. Hughes] is to be recused from any matter involving the spouse in Municipal Court," the Hughes filed a Complaint in federal court seeking a preliminary and permanent injunction to prevent enforcement of the Bulletin Letter.

 Defendants responded to plaintiffs' request for an injunction by filing a motion to dismiss, or alternatively, for summary judgment. I denied defendants' motions and decided the constitutional issues before me by concluding that the Bulletin Letter violated plaintiffs' fundamental equal protection and substantive due process rights. Hughes, 720 F. Supp. at 462. In so holding, I permanently enjoined defendants from enforcing the offending Bulletin Letter against plaintiffs or any other similarly situated municipal employees. Id.

 Following my decision, plaintiffs filed a motion for fees and costs together with supporting affidavits seeking fees through October 19, 1989 in the amount of $ 48,400.00 and costs in the amount of $ 3,668.11. Plaintiffs specifically reserved "the right to seek additional reimbursement of attorneys' fees and costs, should additional litigation of this case, including litigation of the issue of attorneys' fees and costs, be necessary." Certification of Lisa Agresti Carey, P 4.

 Defendants opposed both the fee application and further appealed the underlying substantive decision to the Court of Appeals for the Third Circuit. *fn1" On appeal, the Third Circuit vacated the Opinion and Order of this Court and, applying Pullman abstention, remanded the case with instructions to abstain pending an authoritative decision by the New Jersey Supreme Court, as that court's resolution of issues of state law could "moot or change the analysis of the federal constitutional issue." 906 F.2d 961, 964 (3rd Cir. 1990). This Court retained jurisdiction.

 On January 1, 1992, prior to the filing of any pleadings in the New Jersey state courts, Robert Lipscher, the Director of the Administrative Office of the Courts, issued Directive No. 1-92 regarding the New Jersey Supreme Court's policy pertaining to municipal court administrators and deputy administrators who are spouses, parents or offspring of police officers in that municipality. *fn2" The new Directive was promulgated to withdraw specifically that portion of Bulletin Letter No. 5/6-77 which prohibited marriage between a court clerk and a police officer employed in the same municipality. See Directive No. 1-92, Jan. 1, 1992. Under the terms of Directive No. 1-92, a court administrator who, after his or her appointment marries or cohabits with a police officer, or an administrator whose spouse, child or parent subsequently becomes a police officer, is no longer barred from continued employment as a municipal court administrator or deputy administrator, but is simply disqualified from participating in matters in which that related officer has been involved in some way. Directive No. 1-92 at 2. The Directive itself indicates that its present provisions replace the dictates of the 1977 Bulletin Letter, and notes further that the 1977 policy "should not be interpreted as barring an administrator, after appointment, from such a marriage [to a police officer] since the personal consequences of such a prohibition may be excessively severe." Id. at 3.

 On August 23, 1993 the New Jersey Supreme Court adopted Canon 7 of the Code of Conduct for Judiciary Employees, which had been proposed by the Supreme Court Committee on Professional and Outside Activities of Judiciary Personnel. Canon 7 reads, in pertinent part:

 
D. Persons shall not be appointed as court employees when their relatives are employees of a law-enforcement agency within the same unit of government and when that appointment creates an appearance that the law-enforcement agency may have an improper influence over court matters. Nothing contained herein shall diminish the restrictions imposed by the various court directives following the decision in Hughes v. Lipscher, 720 F. Supp. 454 (D.N.J. 1989), vacated 906 F.2d 961 (3rd Cir. 1990), which shall remain in full force and effect.
 
Comment: Employees are referred to Directive #1-92, "Supreme Court Policy Governing Municipal Court Administrators and Deputy Administrators Who Are Married to or Are the Parents or Children of Police Officers," and any subsequent Directives on this or related topics.

 Code of Conduct for Judiciary Employees, Canon 7.D (codified at N.J.Ct.R. 1:17A (West 1994)).

 It is the contention of plaintiffs, through their attorneys the American Civil Liberties Union -- New Jersey ("ACLU-NJ"), that the Supreme Court's adoption of Part D of Canon 7, which incorporates the limitations of Directive No. 1-92, is an authoritative decision of the Supreme Court resolving plaintiffs' cause of action in their favor. Accordingly, plaintiffs, cloaking themselves in the robes of a prevailing party, currently seek attorneys' fees in the amounts set forth in previous affidavits, and further seek fees for the time incurred on defendants' appeal as well as fees and costs incurred in the continued litigation of the instant motion for fees and costs. *fn3"

 II. LEGISLATIVE IMMUNITY OF DEFENDANTS

 Before reaching the issue of whether plaintiffs satisfy the eligibility requirements for an award of attorneys' fees pursuant to 42 U.S.C. § 1988, it is necessary as a threshold matter to address defendants' claim of insulation from liability on the grounds of legislative immunity. The defendants argue that attorneys' fees and costs may not be awarded since the defendants in this case stand merely as ministerial conduits through which the New Jersey Supreme Court acted legislatively both in promulgating its original 1977 policy prohibiting marriage and/or cohabitation between municipal court clerks and police officers and in modifying it via the 1992 directive. Defendants presently seek to shield themselves from any fee liability by grafting upon themselves the legislative immunity which they maintain is accorded the New Jersey Supreme Court in the instant case.

 Members of legislative bodies, whether national, state, or local, enjoy absolute immunity from suit based on their actions undertaken as part of the legislative process. See Supreme Court of Virginia v. Consumers Union of the United States, 446 U.S. 719, 732-33, 64 L. Ed. 2d 641, 100 S. Ct. 1967 (1980). Individuals who are not legislators but whose acts have a substantial legislative nexus are also imbued with this absolute legislative immunity. See generally Gravel v. United States, 408 U.S. 606, 33 L. Ed. 2d 583, 92 S. Ct. 2614 (1972); Eastland v. United States Servicemen's Fund, 421 U.S. 491, 44 L. Ed. 2d 324, 95 S. Ct. 1813 (1975). *fn4" A legislative act involves "'the determination of the legislative policy and its formulation and promulgation as a defined and binding rule of conduct.'" Cinevision Corp. v. City of Burbank, 745 F.2d 560, 580 (9th Cir.) (quoting Yakus v. United States, 321 U.S. 414, 424, 88 L. Ed. 834, 64 S. Ct. 660 (1944)), cert. denied, 471 U.S. 1054 (1985). A judge or judicial body may have absolute legislative, as distinguished from judicial, immunity for actions which are in line with the legislative process (e.g., actions involving the promulgation of binding rules of conduct). Consumers Union, 446 U.S. at 731-33.

 While upholding the injunctive relief entered against the Virginia Court, the United States Supreme Court vacated the award of attorneys' fees, holding that the Virginia Supreme Court, in promulgating the disciplinary rule at issue, acted in a legislative capacity such that the court and its members were immune from suit. Id. at 733-34. See also Alia v. Michigan Supreme Court, 906 F.2d 1100, 1101-02 (6th Cir. 1990) (employing Consumers Union to legislatively immunize state supreme court that had promulgated a mediation rule governing state trial courts).

 When the holding of Consumers Union is juxtaposed against the case at bar, it is apparent that the New Jersey Supreme Court's promulgation of administrative directives constitutes legislative action to which absolute legislative immunity must attach. Just as in Consumers Union, where the Virginia Supreme Court claimed an inherent authority to regulate the Virginia bar and in fact exercised the state's entire legislative power with respect to that regulation, 446 U.S. at 734, the New Jersey Supreme Court similarly possesses the broadest possible administrative authority over its court system. See Lichter v. County of Monmouth, 114 N.J. Super. 343, 349, 276 A.2d 382 (App. Div. 1971). Indeed, the court's own interpretation of the New Jersey constitution leaves "not the slightest doubt that this Court possesses plenary authority with respect to all matters touching upon the administration of the court system in New Jersey." Passaic County Probation Officers' Ass'n v. County of Passaic, 73 N.J. 247, 253, 374 A.2d 449 (1977). *fn5"

 Additionally, insofar as the state supreme court's legislative activities are concerned, Judge Biunno of this Court has recognized that "when the Supreme Court acts by rule of administration for statutory courts of limited jurisdiction . . . it acts as a legislature passing a statute." Harriatt v. Lillo, 452 F. Supp. 421, 423 (D.N.J. 1978). Accordingly, in its promulgation of the 1992 Directive, and indeed in its issuance of the 1977 Bulletin Letter governing employment eligibility in the municipal courts, *fn6" the New Jersey Supreme Court acted in a legislative capacity such that there is no basis for an award of attorneys' fees against it.

 Furthermore, while defendants have cited no case to this Court specifically extending a judicial body's legislative immunity to administrative court officials acting on its behalf, in the present action the principles of logic support placing the named defendants under the protective buckler of the New Jersey Supreme Court's legislative immunity, at least with respect to the promulgation of the aforementioned directives. As defendants note, the New Jersey high court asserts its administrative power through the promulgation of administrative rules, with the Chief Justice empowered to promulgate binding directives issued either directly or through the Administrative Director of the Courts. See State v. McNamara, 212 N.J. Super. 102, 108-09, 514 A.2d 63 (App. Div.), certif. denied, 108 N.J. 210 (1986); State v. Linares, 192 N.J. Super. 391, 397-98, 470 A.2d 39 (Law Div. 1983). In turn, the Director has the responsibility of promulgating and enforcing the administrative directives rendered by the Supreme Court and its Chief Justice. See N.J. Const. Art. VI, § VII, P 1; N.J.Ct.R. 1:33-3.

 When defendant Lipscher, as Administrative Director, promulgated both Directive No. 1-92 and the earlier municipal court bulletin letter, it is reasonable to assume, as defendants maintain, that he was acting in the course of his constitutionally and statutorily prescribed duties and exercising on behalf of the New Jersey Supreme Court its plenary administrative authority. In acting strictly within the context of mere promulgation of court directives, it also seems permissible to view defendant Lipscher as a ministerial conduit transmitting the general will of the state supreme court to lower-level judicial and administrative officials, as he is required to do. See N.J.Ct.R. 1:33-1. *fn7" After all, even a cursory review of the documents in question reveals that the Director did not sua sponte formulate the initial policy nor its retraction, but rather, simply acted to publish them throughout the court system. *fn8"

 It is axiomatic that the umbrella of legislative immunity shelters not only the legislator, but also her aides and staff members if the conduct of the latter would be protected if performed by the legislator herself. See Gravel v. United States, 408 U.S. 606, 618, 33 L. Ed. 2d 583, 92 S. Ct. 2614 (1972); see also Aitchison v. Raffiani, 708 F.2d 96, 99 (3rd Cir. 1983) (borough attorney, acting as legal aide to borough council, entitled to absolute legislative immunity). In this context the Administrative Director's role is akin to that of a legislative aide or administrative assistant, in that the Director, like the aide, might be intimately involved in the formulation of policy but, like the aide, is not empowered to effect its adoption. This being the case, I presently find no reason, nor has any authority been located, to prevent me from extending to the state defendants the legislative immunity accorded the New Jersey Supreme Court as it relates to the promulgation of the directives.

 However, this finding of legislative immunity in the promulgation arena does not foreclose the instant inquiry into the efficacy of any fee award, because plaintiffs' fee application is not predicated upon the promulgation of the directives, but rather, is based on their enforcement, or at the very least, the threat of their enforcement by the state defendants. Clearly, given the holding of Consumers Union, if the sole basis for plaintiffs' § 1983 action against defendants were the issuance of the aforementioned provisions, legislative immunity would foreclose recovery of attorneys' fees. However, defendants here have more than a promulgatory (i.e., legislative) function; they also possess an enforcement responsibility, *fn9" which, as stated, forms the basis of the instant fee application. Therefore, any proper analysis of defendants' claimed derivative legislative immunity must take into account their enforcement of the 1977 bulletin letter that initially placed Marie Hughes' employment in jeopardy.

 This Court has already examined Consumers Union in the context of defendants' immunity argument premised on promulgated "legislation." However, it is presently necessary to revisit that decision insofar as it addresses defendants' susceptibility to a fee award based on their enforcement actions. As noted above, in Consumers Union the United States Supreme Court, in vacating a fee award against the Virginia Court and its chief justice, held that where the Virginia Court acted ...


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