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K.D. v. Bozarth

June 29, 1998


Before Judges Havey, Newman and Collester.

The opinion of the court was delivered by: Newman, J.A.D.

[9]    Argued: June l, l998

On appeal from Superior Court of New Jersey, Law Division, Burlington County.

Plaintiff K.D. appeals from the grant of summary judgment, dismissing her complaint against defendants, Bennett E. Bozarth, J.M.C., and Pemberton Township Municipal Court, Pemberton Township, Thalia C. Kay, Mayor of Pemberton Township, and the Pemberton Township Council (hereafter the township defendants). The township defendants cross-appeal from the order denying an award of counsel fees sought pursuant to R. l:4-8 and 42 U.S.C.A. § l988. We affirm both the direct and cross-appeals.

These are the relevant facts which are essentially undisputed. In April 1995, K.D., then fifteen years old, was charged in Pemberton Township Municipal Court with driving on the revoked list, following too closely, and being an unlicensed driver. Appearing pro se, she pleaded guilty to all charges. Judge Bozarth imposed fines totaling $750 plus costs and suspended her driving privileges for six months after she became eligible. However, at K.D.'s request, the fines and costs were converted to 277 hours of community service.

In March 1996, Burlington County Probation notified Judge Bozarth that, despite various warnings, K.D. had completed only thirty-seven hours of her community service, and that she had also failed to perform any of the forty hours of service imposed on unrelated charges of underage drinking and shoplifting. Probation asked the Judge to resentence K.D. and to relieve it from supervising her case.

By notice of March 29, 1996, the municipal court ordered K.D. to appear on May 6, 1996 to show cause why she "should not be held in contempt of court for failure to perform Community Service." K.D. appeared pro se at the May 6, 1996, hearing before Judge Bozarth. When the Judge asked her whether she had failed to perform her community service, she responded: "No, I did go to community service. And, the few times I missed, either due to snow storms, the fact that they were moving, I was moving a lot of things."

Judge Bozarth granted Probation's request to resentence K.D. He converted the remaining fines and days of community service to fourteen days in jail, imposing one day in jail for each $50 of unpaid fine. The judge ordered that her jail term begin on May 24, 1998, two days after she turned eighteen, and ordered her to present herself on that date.

K.D. filed a timely appeal of her sentence to the Burlington County Superior Court. The court vacated K.D.'s guilty plea and sentence and remanded the motor vehicle charges to the Pemberton Municipal Court for adjudication.

In November 1996, K.D. filed a Law Division complaint against Judge Bozarth, the township defendants and various fictitious-name townships, municipal courts, mayors, councils, and council members. K.D. claimed to be acting on behalf of a class consisting of all juveniles who had received delayed jail sentences from Judge Bozarth in New Jersey's municipal courts. The complaint alleged that (l) Judge Bozarth did not have jurisdiction to sentence K.D. to fourteen days in jail, (2) Judge Bozarth and the township defendants violated 42 U.S.C.A. § 1983, and (3) all defendants conspired to violate K.D.'s civil rights, contrary to 42 U.S.C.A. § 1985. The complaint made similar allegations against the fictitious-name defendants.

Judge Bozarth filed a pro se answer denying the key allegations and asserting various defenses, including judicial immunity. The township defendants also filed an answer denying the key allegations and asserting many defenses, including immunity and failure to state a claim. They then moved for summary judgment and counsel fees, calling the complaint a "publicity stunt by the plaintiff's attorney." Judge Bozarth moved to dismiss the complaint for failure to state a claim.

Plaintiff filed motions to change venue and to obtain partial summary judgment on the issue of Judge Bozarth's alleged immunity. In January 1997, Judge Wells advised the parties that he would be transferring the matter to another county, in view of the fact that the case challenged some "administrative aspects" of the Pemberton Municipal Court, over which he, as assignment Judge, had "some responsibility." Accordingly, the matter was transferred to Judge Holston of the Gloucester County Superior Court.

The motions were argued before Judge Holston on February 21, 1997. In an oral opinion, Judge Holston ruled that Judge Bozarth was immune from the suit because he did not act in clear absence of all jurisdiction. The Judge reasoned that, in resentencing K.D., Judge Bozarth acted only in excess of his jurisdiction.

With respect to the township defendants, Judge Holston ruled that they had no judicial authority and thus could not be liable for the alleged harm to K.D. However, ...

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