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Migliorino v. Glascoe

October 10, 2008

ROY L. MIGLIORINO AND REGINALD MCCALL, PLAINTIFFS-APPELLANTS,
v.
DR. MICHAEL E. GLASCOE, CHIEF SCHOOL ADMINISTRATOR, PATERSON PUBLIC SCHOOLS; LUCILLE E. DAVY, ACTING COMMISSIONER OF EDUCATION, STATE OF NEW JERSEY; BOARD OF EDUCATION OF THE CITY OF PATERSON; STATE OF NEW JERSEY, DEPARTMENT OF TREASURY, DIVISION OF PENSIONS AND BENEFITS, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-2564-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 24, 2008

Before Judges A. A. Rodríguez and Kestin.

Plaintiffs appeal from a September 20, 2007 order, entered on the motion of defendants Michael E. Glascoe and the Board of Education of the City of Paterson (collectively, the Paterson defendants), enforcing a settlement and dismissing the complaint "in its entirety and with prejudice." We affirm the order to the extent it reflects the trial court's determination that issues bearing upon plaintiff's entitlement to certain employment benefits and damages had been fully resolved by the settlement. In respect of the trial court's denial of plaintiffs' application for a counsel fee and costs award, however, we reverse and remand for further proceedings.

The four-count amended complaint alleged that plaintiff Roy L. Migliorino had been a teaching staff member in the Paterson public schools for about forty years. On July 23, 2004, he and plaintiff Reginald McCall had registered as domestic partners pursuant to New Jersey law; and, on September 15, 2004, they had been lawfully married in Massachusetts.

On October 13, 2004, Migliorino had applied to the employer, pursuant to a collective bargaining agreement that provided health benefits to the family or spouse of school district employees, for medical, prescription and dental coverage under the State Health Benefits Program (SHBP) for McCall. According to the complaint, "two sets of applications were submitted, one for spousal benefits and one for benefits under the... Domestic Partnership Act[,]" N.J.S.A. 26:8A-1 to-13. When, by mid-January 2005, no response to the application had been received, counsel wrote to the employer on Migliorino's behalf requesting action. Counsel for the school district responded a week later, stating that the requested benefits would not be provided. Subsequently, counsel for the employer advised that the decision not to provide the requested benefits had been made for the State-operated school district by the "Acting State Superintendent."

On May 4, 2005, defendant Michael E. Glascoe became the new state-appointed superintendent of the school district. Migliorino reapplied for the health benefits he sought and, on September 13, 2005, the school district's Director of Personnel/Human Resources wrote stating: "Currently, the Paterson Public Schools District does not offer health benefits to domestic partners of our employees."

In the spring of 2006, anticipating his retirement from the school district's employ, Migliorino applied for the same health benefits coverage to defendant Division of Pensions and Benefits; once again submitting separate applications for McCall as spouse and domestic partner. The Division replied that the "application to add your domestic partner ha[d] not been processed" because the former employer did not participate in the SHBP and had not adopted a resolution authorizing the inclusion of domestic partners. No specific resolution of the application for spousal benefits was announced.

The complaint, dated October 17, 2006, went on to assert that "[a]ll State employees are entitled to health benefits for their partners under the Domestic Partnership Act.... [and] are entitled to benefits for their partners/spouses whether the same sex or not." It pled federal and State constitutional and statutory rights violations and sought judgment requiring that "defendants... enroll Reginald McCall in the [SHBP] and enjoining defendants from discriminating against plaintiffs and all others similarly situated on the basis of sexual orientation." The complaint also sought compensatory damages, punitive damages, and costs and counsel fees.

The matter came before the trial court, initially, in a January 19, 2007 hearing on plaintiffs' motion for "partial summary judgment and injunctive relief[.]" The supporting papers on the motion asserted only the right to mandatory and prohibitory injunctive relief. The form of order submitted by plaintiffs contained four clauses effecting the injunctive relief sought, and provided, in a fifth clause: "Plaintiffs may make application for damages and counsel fees pursuant to the Rules of Court by separate application or, if these issues are not susceptible to resolution by motion, may proceed to trial thereon."

The verbatim record of the proceedings on January 19, 2007, discloses that a settlement of the primary issue was effected notwithstanding the school district's refusal to recognize domestic partnerships as eligible for employment benefits. This result was achieved, in the terms recited by the motion judge, when the deputy attorney general representing the Commissioner of Education and the Division of Pensions and Benefits (collectively, the State defendants), recognizing Migliorino's retired status at the time, "indicated that the State of New Jersey will accept the application. They... will process the application in... the normal course, and they will grant benefits to Mr.... McCall... with full rights of a.... [domestic] partner [or] civil union." The judge noted further that this was "[s]o you don't have to wait[,]... you don't have to go through.... all those procedures. And... we have resolved the dispute that is now before the Court." The settlement followed upon the Supreme Court's decision in Lewis v. Harris, 189 N.J. 415 (2006), and the enactment of legislation regarding civil unions, N.J.S.A. 37:1-28 to-36.

The order entered by the court on that date, January 19, 2007, struck out all the provisions of the form of order that had been submitted by plaintiffs, and added a handwritten entry: "The motion [for partial summary judgment and injunctive relief] is denied as moot as a result of the settlement placed this date on the record."

In a motion dated July 2, 2007, returnable July 20, 2007, the Paterson defendants sought "an [o]rder enforcing the settlement[.]" Counsel's certification in support of the motion declared that plaintiffs had taken the position, in negotiations leading to the settlement of January 19 and since, that the issues in the matter included reimbursement of plaintiffs "for costs spent on health care premiums, totaling approximately $10,600 [and] attorneys' fees[.]" The certification also stated: "as the [January 19] oral argument approached, the parties had not been able to settle the case." Nevertheless, "[b]ased on ...


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