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Duffy v. Armstrong

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 8, 2010

THOMAS B. DUFFY, PLAINTIFF-APPELLANT, AND TAMMY J. LUSK, PLAINTIFF,
v.
THE HON. VALERIE H. ARMSTRONG, A.J.S.C.; THE HON. JAMES SAVIO; THE HON. PHILIP S. CARCHMAN, J.A.D.;*FN1 THE CITY OF MARGATE; THE MARGATE MUNICIPAL COURT; THE NEW JERSEY ADMINISTRATIVE OFFICE OF THE COURTS; THE STATE OF NEW JERSEY; AND CHRISTINE A. DANILO, DEFENDANTS-RESPONDENTS, AND THE COUNTY OF ATLANTIC AND THE ATLANTIC COUNTY BOARD OF CHOSEN FREEHOLDERS, DEFENDANTS.

On appeal from the Superior Court of New Jersey, Chancery Division, Gloucester County, Docket No. C-31-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 13, 2010

Before Judges Stern, Graves, and J. N. Harris.

Plaintiff Thomas B. Duffy--an attorney at law of the State of New Jersey since 1993--maintains that he is in the process of becoming a "reabled" person who seeks vindication for alleged injustices suffered at the hands of judicial officers and employees over several years.*fn2 He appeals the final orders that dismissed all of his claims pursuant to Rule 4:6-2(e) and closed his case without granting him leave to amend. No appeal was filed on behalf of plaintiff Tammy J. Lusk, his former spouse. Contrary to the conclusion reached by the Chancery Division, we find that one aspect of Duffy's pleadings states a claim upon which relief may be granted, and therefore we provide relief that will facilitate his pursuit of a particularized remedy.

The gravamen of Duffy's case involves his contention that he was the victim of discrimination and retaliation by governmental actors (1) during his alleged assignment as pro bono counsel in the Margate Municipal Court and (2) when he sought to have his resume included in the New Jersey Judiciary's centralized distribution of resumes for law clerk positions for the 2007-2008 court year. We affirm the dismissal of all but one of Duffy's claims, the one that raises the potential for the recovery of compensation pursuant to the New Jersey Municipal Public Defender Act, N.J.S.A. 2B:24-1 to -17 (MPDA).*fn3

Accordingly, we affirm in part; reverse in part; and remand for further proceedings.

I.

A.

We base our indulgent review of the salient facts in this case primarily upon Duffy's six-count Amended Verified Complaint consisting of sixty-five pages, plus eighty-nine pages of attached exhibits. We also take into account Duffy's proposed four-page (plus three pages of attached exhibits) Second Amended Complaint, which was intended "merely to file the 'Right to Sue Letter,'"*fn4 and his proposed twenty-one page (plus eighty-nine pages of attached exhibits) Third Amended Complaint, which sought to add four new causes of action.*fn5

The Amended Verified Complaint, although document-rich and considerably annotated, consists largely of conclusory and sprawling allegations of perceived slights, judicially inspired rudeness, and ill-treatment that he claims to have endured as a practicing attorney. The following relevant facts are pieced together from the various complaints, the motions to dismiss, plaintiff's oppositions, and assorted additional exhibits.*fn6

B.

Duffy has experienced several serious health problems since the 1980s. Notwithstanding his disabilities--in addition to a law degree obtained in 1991--he earned a dual advanced degree in taxation and securities law from the Georgetown University Law School in 1993. In 2003, the United States Social Security Administration determined that Duffy was "disabled in December 2001," but was "not eligible to receive Supplementary Security Income payments under the provisions of Title XVI of the Social Security Act" because of his level of income.

Duffy engaged in a broad-spectrum practice of law for more than a decade before instituting the present litigation, including making appearances in the municipal, trial, and appellate courts of this state. Due to his need for occasional medical procedures--as well as the time necessary to both prepare for and recover from such treatment--in late 2001 or early 2002, Duffy obtained a "long term accommodation" from the then-Assignment Judge in Vicinage 1 (Atlantic and Cape May counties) "that was specifically aimed at the debilitating first few months of the [necessary medical] treatment."

In 2004, Duffy and Lusk embarked upon a long-term plan to transition away from Duffy's multi-client practice into a career path that would lead to his employment with the federal government in Washington, D.C. This strategy involved applying for various federal jobs in early 2004, before commencing another round of debilitating medical treatment "in mid-2004 after bringing his law practice to zero (or as close as possible)," and finally sifting through job offers after the three to six months needed for treatment was complete.

Duffy's approach was derailed on March 8, 2004, when he was "involuntarily assigned to defend Client X with regard to one pending disorderly persons charge in the Margate Municipal Court"*fn7 by defendant Judge James P. Savio.*fn8 The transcript of that proceeding reveals the following exchange:

THE COURT: [C.G.].

MR. FREED [Municipal Prosecutor]: [C.G.], yes.

THE COURT: Okay. Ms. [G.], you want to come up here, please.

MR. DUFFY: Yeah.

MR. FREED: Have you entered an appearance yet?

MR. DUFFY: No.

MR. FREED: Oh, I object to anything that Mr. Duffy has to say.

THE COURT: Okay, well, why don't we get the documentation in front of us and then we'll go one step at a time. [C.G.]. All right, this is Summons No. []. It's the matter of State v. [C.G.]. The - Ms. [G.] entered a not guilty plea on August 25, 2003. My recollection is that thereafter Public Defender Mr. Robertson was appointed to represent Ms. [G.]'s interest. Mr. Robertson thereafter made an application to be relieved as counsel for Ms. [G.], and I don't need to go through the reasons why he made that application, but I granted that application, as I recall, in January or February of this year.

I received a fax this afternoon that I glanced over but really didn't read from Mr. Duffy. Mr. Duffy is in court today, Ms. [G.] is in court today. Mr. Duffy, do you represent Ms. [G.] in defense of these charges?

MR. DUFFY: I have been representing her for some six or seven years in various capacities and -

THE COURT: Do you represent Ms. [G.] for these charges?

MR. DUFFY: For today I would like -THE COURT: No, do you represent Ms. [G.] for these charges? Yes or no.

MR. DUFFY: You have a woman who the Appellate Division, your Honor, has said cannot appear pro se -

THE COURT: Mr. Duffy, do you or do you not represent Ms. [G.] for these charges?

MR. DUFFY: I do not - I - I am here to guide her through the process of trying to have a [public defender] appointed for her. I can be - appear in this case today, however, I'm pending [treatment] in a couple of - in a couple of mon[ths] - in a month or a wee[k] - you know, a couple of weeks, I -six weeks, eight weeks, and I don't want to get myself into a - into a case. However -

THE COURT: Do you represent her or not in defense -

MR. DUFFY: I do repre[sent] -

THE COURT: - of these charges?

MR. DUFFY: There's no doubt that I represent her in several capacities.

THE COURT: Do you represent her in defense of these charges? Yes or no.

MR. DUFFY: But I do not want my representing her today on these charges to excuse the City from its [c]court-ordered obligation to a appoint a [public defender].

MR. FREED: That's a misrepresentation, Your Honor, of the -

THE COURT: Well, I don't want to get into that. I just want a straight answer to a question and it's either yes or no. Do you represent [C.G.] in defense of the charges on Summons No. []? Yes or no.

MR. DUFFY: I'm afraid that there's another answer that I am here -

THE COURT: I'm not willing to accept any other answers. It's either yes, you represent her, or no, you don't represent her.

MR. DUFFY: Well, is she then going to be pro se in violation of what the Appellate Division has said about her being pro se?

THE COURT: I'm going to take the next evasive response to the question as a negative answer. Do you represent [C.G.] in defense of Summons No. []? Yes or no.

MR. DUFFY: Somebody has to and I guess I'll do it.

THE COURT: The answer is yes.

MR. DUFFY: Yes.

THE COURT: Okay.

MR. DUFFY: Since I'm being forced.

Instead of thereafter filing a motion in the Law Division for leave to appeal from the assignment pursuant to Rule 3:24(a), or making an application in the Margate Municipal Court to be relieved as counsel pursuant to Rule 1:11-2 and Rule 7:7-2(a), Duffy wrote a letter to defendant Assignment Judge Valerie H. Armstrong on April 2, 2004,*fn9 complaining about his pro bono assignment and about the municipal court's treatment of his client. Judge Armstrong replied to Duffy less than a week later, writing about his designation as counsel for C.G.:

It is abundantly clear that you are extremely familiar with Ms. [G.]'s case, and that you are in the best position to represent her. To the extent your personal medical situation may require reasonable accommodations with regard to the scheduling of Ms. [G.]'s matter, such accommodations will, of course, be made.

When Duffy received Judge Armstrong's letter, he "showed it to his wife and ripped it up, stating, '[h]ere is what the Judges in this State think of my life.'"

Months passed, during which Duffy delayed his medical treatment, but he eventually obtained a much hoped-for employment offer from the Internal Revenue Service (IRS). He also continued to represent C.G. (with some difficulties along the way) and--in a separate municipal court action--was the attorney of record for C.G.'s father. On January 3, 2005, after C.G.'s matter was concluded in the Margate Municipal Court, Duffy wrote another letter--this time to an administrator of municipal court appeals in the Criminal Division Manager's office for Vicinage 1--wherein Duffy requested accommodations for the filing of a papers in the father's municipal appeal and sought replacement counsel for C.G. in her separate appellate matter in the Law Division. Three days later, Criminal Presiding Judge Albert J. Garofolo, who is not a party to this matter, adjourned the father's hearing that had been previously scheduled for January 7, 2005. Apparently, C.G. was directed to apply for the assistance of assigned counsel, which as far as the record reveals, was accomplished. Duffy was no longer C.G.'s attorney. See R. 7:3-2(b).

C.

On August 25, 2005, due to the treatment delay and his new employer's alleged failure to timely process an accommodation request, "Duffy had to resign from his new job at the IRS due to running out of leave time from the treatment rather than risk being terminated for being AWOL due to his treatment." The Amended Verified Complaint avers that this resignation "was a direct result of the enslavement in Client X's case."

The initial complaint in this action was filed on March 8, 2006.*fn10 While waiting for the action's venue to be transferred from Vicinage 1 to Vicinage 15 (Cumberland, Gloucester and Salem counties) and for a judge to be assigned for its management, Duffy "had the 'brilliant' idea to seek a law clerk position in 2007-[2008] to get him back into the legal profession after his long illness." To that end, as the means to obtain an appellate law clerk's position, he sought to have his resume and cover letter included in the Judiciary's centralized resume distribution, which collected data from clerk candidates and distributed them to justices and judges four times per year.*fn11

Duffy realized that he could not satisfy one of the requirements for the position of law clerk: he was not "a non-practicing law graduate of an American Bar Association approved law school at the time of law clerk appointment." At the time he first became interested in the job, Duffy had been engaged in the active practice of law for several years and touted his accomplishments as "[w[ithout being aggrandizing, [I] have three law degrees and [am] 10-2 in the Appellate Division and Supreme Court and 3-0 in trial de novo appeals in the Law Division (only counting the result of the final appeal) so [I am] much better qualified for appellate work than trial work."

In May, July, and August 2006, Duffy communicated with a representative of defendant Administrative Office of the Courts (AOC) seeking a waiver or accommodation from the non-practice rule due to his chronic health problems and a previous desire to "not want to put Judges in the compromising position [of] having to seek a replacement for me if my health took a bad turn and I could not do the job."

On September 8, 2006, defendant Christine A. Danilo, Chief, Placement and Classification Unit of the AOC, responded to Duffy's request that his resume be included in the centralized distribution of resumes for the 2007-2008 court year.*fn12 This letter, which was incorporated into the Amended Verified Complaint filed in November 2006, stated:

New Jersey Judiciary clerkships are considered an extension of an individual's legal education and are intended to benefit primarily those individuals who are recent law school graduates and have not yet entered the workforce.

....

Based on your law school graduation date and your substantial legal experience, we cannot include your resume in our centralized distribution because you do not meet the criteria for the program.

....

You may, however, apply directly to judges as specified in the law clerk vacancy notice. If any judge then wishes to select you as the best candidate for a clerkship, the judge could request the exception to the Judiciary policy. The Judiciary's policy permits exception requests only from judges in support of their selected candidates, rather than from clerkship applicants.

Duffy's resume and a cover letter were therefore not included in any of the centralized distributions of resumes for the 2007-2008 court year, and it appears that Duffy did not take any further steps to try to obtain a judicial clerkship through other available means.

D.

Interwoven in Duffy's filed and proposed pleadings are several allegations about retaliation being visited upon him by various judicial officers and employees. The central theme of Duffy's retaliation claims is best illuminated by the following assertion, in the proposed Third Amended Complaint:

The Atlantic County Court System seems to be in an open state of war with Duffy. They are not going to listen to anything he says or take any of the steps necessary to give him due process rights.

Providing several examples (but not a full catalog) of the alleged retaliation, Duffy outlined instances where Judge Armstrong, Judge Savio, non-party Judge Max A. Baker, and one or more court employees acted negatively towards Duffy. Judge Armstrong is accused, among other things, of retaliating against Duffy by writing letters to Duffy purporting to silence him; Judge Savio is accused, among other things, of retaliating against Duffy by assigning the C.G. case to him against his wishes; Judge Baker is accused, among other things, of retaliation by denying Duffy's motion (in Duffy's divorce action) for a change of venue; and the Trial Court Administrator is accused, among other things, of retaliation by delaying the transmittal of a written response for three weeks in reply to Duffy's informal change of venue request.

E.

As noted earlier, by November 2006, Duffy's grievances with the defendants had been crystallized by the Amended Verified Complaint. By the middle of December 2006, Duffy was pursuing a motion for a preliminary injunction, seeking to compel the AOC to include his resume and cover letter in the "December 29, 2006 Edition of the Law Clerk Resume Book." The motion called for a return date of January 5, 2007, but on December 29, 2006, defendants City of Margate, Margate Municipal Court, and Judge Savio filed a notice of removal in the United States District Court for the District of New Jersey. Less than ten days later, those defendants and plaintiffs executed a stipulation consenting to the entry of an order vacating the notice of removal and remanding the matter to state court. The Order of Remand was entered on January 11, 2007. Once the case was back in the Chancery Division, Duffy's application for emergent relief was denied.

Shortly thereafter, all of the defendants moved to dismiss the Amended Verified Complaint for failure to state a claim upon which relief can be granted. Duffy cross-moved for permission to file his Second and Third Amended Complaints. The issues were fully briefed by the parties, oral argument was heard on September 28, 2007, and two orders dismissing the entirety of the Amended Verified Complaint were entered on that same date. Although no separate order was entered, the parties agree that the motion judge denied Duffy's motions to file amended pleadings. This appeal followed.

II.

One of our analytical problems in this appeal is the unfocused sweep of Duffy's claims and the absence of a clear linkage between applicable legal theories and specific factual allegations. For example, the Amended Verified Complaint seeks both damages and equitable remedies pursuant to the putative principles of Madden v. Twp. of Delran, 126 N.J. 591 (1992); the Thirteenth and Fourteenth Amendments to the Constitution of the United States; the Federal Civil Rights Act, 42 U.S.C.A. § 1983 (§ 1983); the Americans with Disabilities Act, 42 U.S.C.A. §§ 12101 to 12213 (ADA); the Rehabilitation Act of 1973, 29 U.S.C.A § 794 (RA); the Fair Labor Standards Act, 29 U.S.C.A. §§ 201-219 (FLSA); illegal taxation; quantum meruit; and several other unspecified theories of liability based on "any other relevant statute." The proposed Second Amended Complaint did not add any new causes of action, but for the first time mentions the Age Discrimination in Employment Act, 29 U.S.C.A. §§ 621 to 634 (ADEA) as an additional basis for relief. In the proposed Third Amended Complaint Duffy also expressly seeks injunctive relief pursuant to the ADEA, together with remedies provided by the First Amendment to the Constitution of the United States, the Declaratory Judgment Act, N.J.S.A. 2A:16-50 to -62, and the MPDA.

In this appeal, Duffy makes the following points:

POINT I: THIS [IS] NOT AN INSANE LAWSUIT BROUGHT IN IGNORANCE OF ROOKER-FELDMAN PRINCIPLES OR JUDICIAL OR SOVEREIGN IMMUNITY. (NOT RAISED BELOW.)

POINT II: THE COURT BELOW TOTALLY FAILED TO READ THE COMPLAINT AND OTHER SUBMISSIONS IN MY FAVOR AS REQUIRED ON A MOTION FOR JUDGMENT ON THE PLEADINGS.

POINT III: UNBELIEVABLY, THE ADA COMPLAINT PROCEDURES PUBLISHED ON THE AOC'S WEBSITE ARE TOTALLY INCONSISTENT WITH THE COMPLAINT PROCEDURES APPROVED BY OUR SUPREME COURT WHICH HAVE BEEN WELL HIDDEN FROM THE PUBLIC. (NOT RAISED BELOW).

POINT IV: THE ADA ABROGATED THE 11TH AMENDMENT: THE LANE & GOODMAN CASES; COMPARISON OF THE FACTS OF LANE TO THIS CASE.

POINT V: IGNORING THE MUNICIPAL PUBLIC DEFENDERS ACT; THE RIGHT TO BE PAID UNDER THE MPDA.

POINT VI: JUDICIAL IMMUNITY: NOT WHEN ACTING IN AN ADMINISTRATIVE CAPACITY.

POINT VII: MADDEN APPLIES TO THIS CASE.

POINT VIII: REASONABLE ACCOMMODATION IN THE COURTS.

POINT IX: MY ADA/LAD CASE IS UNAFFECTED BY MY STATUS.

POINT X: SECTION 1983 IS APPLICABLE TO THIS CASE, EVEN IF ONLY AS ROUTE TO COLLECT ADA OR MPDA DAMAGES.

POINT XI: LAW CLERK RESUME BOOK: JOB & EDUCATIONAL PROGRAM.

POINT XII: SECTION 504 OF THE REHABILITATION ACT DOES APPLY TO THIS CASE IF THE ENTITIES WERE RECIPIENTS OF FEDERAL FUNDS.

POINT XIII: EEOC ISSUES.

POINT XIV: THE POST-FILING CLAIMS FOR RETALIATION FOR ORIGINAL SUIT CLEARLY WERE NOT CONSIDERED AT ALL; RECALL THESE CLAIMS CAN BE VALID WITHOUT REGARD TO THE MERITS OF THE ORIGINAL CLAIMS. (NOT RAISED BELOW).

POINT XV: THE AOC'S DECISION TO EXCLUDE THE MUNICIPAL COURTS FROM ITS ADA COMPLAINT PROCEDURES VIOLATES THE CONSTITUTION OF THIS STATE. (NOT RAISED BELOW).

POINT XVI: THE UNCONSTITUTIONAL TAXATION COUNT IN THE COMPLAINT WAS NEVER BRIEFED SO IT WAS NOT PROPERLY DISMISSED. (NOT AN ISSUE BELOW).

After a concerted effort of review and analysis of these issues, we are convinced that Duffy is entitled to nothing more than a chance to prove that he was a de facto public defender in the Margate Municipal Court, and if determined to be so, entitled to be compensated pursuant to the MPDA. Therefore, with the exception of Point V, we determine that none of Duffy's arguments contains sufficient merit to warrant an elaborate discussion in a written opinion. R. 2:11-3(e)(1)(E). Nevertheless, we add the following.

A.

We are required to accept as true all well-pled factual allegations of the Amended Verified Complaint. See Edwards v. Prudential Property and Cas. Co., 357 N.J. Super. 196, 202 (App. Div.), certif. denied, 176 N.J. 278 (2003) (citing F.G. v. MacDonell, 150 N.J. 550, 556 (1997)) ("[W]e must assume the truthfulness of the allegations contained in plaintiffs' complaints, giving plaintiffs the benefit of all reasonable factual inferences that those allegations support.").

Although a court is generally limited to the contents of the pleadings in deciding a motion to dismiss, it may consider items subject to judicial notice, such as records of the court in which the action is pending. N.J.R.E. 201(b)(4); Cf. Edgar v. Avaya, Inc., 503 F.3d 340, 349, n. 13 (3d Cir. 2007) (noting that a court may also take judicial notice of facts that are capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned) (citations omitted).

"In reviewing a complaint dismissed under Rule 4:6-2(e) our inquiry is limited to examining the legal sufficiency of the facts alleged on the face of the complaint." Printing Mart-Morristown v. Sharp Electronics Corp., 116 N.J. 739, 746 (1989). "However, a reviewing court 'searches the complaint in depth and with liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim, opportunity being given to amend if necessary.'" Ibid. (quoting Di Cristofaro v. Laurel Grove Mem'l Park, 43 N.J. Super. 244, 252 (App. Div. 1957)). "Every reasonable inference is therefore accorded the plaintiff[.]" Pressler, Current N.J. Court Rules, comment 4.1.1 on R. 4:6-2(e) (2010); see also New Jersey Sports Prod., Inc. v. Bobby Bostick Promotions, LLC., 405 N.J. Super. 173, 177 (Ch. Div. 2007).

In Banco Popular N. Am. v. Gandi, 184 N.J. 161 (2005), the Court outlined the standard for such motions:

At this preliminary stage of the litigation [a] [c]court [should not be] concerned with the ability of the plaintiffs to prove the allegation contained in the complaint...

[P]laintiffs are entitled to every reasonable inference of fact. The examination of a complaint's allegations of fact required by the aforestated principles should be one that is at once painstaking and undertaken with a generous and hospitable approach.

[Id. at 165 (internal citations omitted).] Accordingly, these motions are granted "only in the rarest of instances." Printing Mart-Morristown, supra, 116 N.J. at 772.

"The plaintiff's obligation in order to defeat a motion to dismiss is 'not to prove the case but only to make allegations, which, if proven, would constitute a valid cause of action.'" Shulman v. Wolff & Samson, P.C., 401 N.J. Super. 467, 473-74 (App. Div.) (quoting Leon v. Rite Aid Corp., 340 N.J. Super. 462, 472 (App. Div. 2001)), certif. denied, 196 N.J. 600 (2008).

On the other hand, "[a] complaint may be dismissed for failure to state a claim if it fails 'to articulate a legal basis entitling plaintiff to relief.'" Hoffman v. Hampshire Labs, Inc., 405 N.J. Super. 105, 112 (App. Div. 2009)(quoting Sickles v. Cabot Corp., 379 N.J. Super. 100, 106 (App. Div.) (internal citations omitted), certif. denied, 185 N.J. 297 (2005)). Plainly, "if the complaint states no basis of relief and discovery would not provide one, dismissal is the appropriate remedy." Banco Popular, supra, 184 N.J. at 166; see also County of Warren v. State, 409 N.J. Super. 495, 503 (App. Div. 2009). Furthermore, "[a] motion to dismiss 'may not be denied based on the possibility that discovery may establish the requisite claim; rather, the legal requisites for plaintiff's claim must be apparent from the complaint itself.'" New Jersey Sports Prod., Inc., supra, 405 N.J. Super. at 178-79 (quoting Edwards, supra, 357 N.J. Super. at 202).

B.

Duffy has alleged that it is constitutionally improper for judges to assign counsel to represent indigent defendants and that Madden supports this proposition. We do not agree. It has been well established that the power of judges to assign counsel to an indigent criminal defendant without compensation for services does not violate the United States or New Jersey Constitutions. State v. Rush, 46 N.J. 399, 407-09 (1966); Madden, supra, 126 N.J. at 597-605.

Specifically, a state-wide system of unpaid and involuntary assignment of counsel does not constitute a taking of private property for public use without just compensation, N.J. Const. art. I, ¶ 20; U.S. Const. amend. V and amend. XIV; a violation of the right to possess property, N.J. Const. art. I, ¶ 1; a denial of due process or equal protection under the law, U.S. Const. amend. XIV; or involuntary servitude, U.S. Const. amend. XIII. Rush, supra, 46 N.J. at 407-08; Madden, supra, 126 N.J. at 600-05. The New Jersey Supreme Court rejected these arguments because "the duty to defend the poor is a professional obligation rationally incidental to the right accorded to a small segment of the citizenry to practice law." Rush, supra, 46 N.J. at 408. See Powell v. Alabama, 287 U.S. 45, 73, 53 S.Ct. 55, 65, 77 L.Ed. 158, 172 (1932) ("Attorneys are officers of the court, and are bound to render service when required by such an [uncompensated] appointment").

Duffy's claim that his alleged involuntary appointment to represent C.G. is not, however, totally precluded by precedent because the question of whether an individual lawyer's due process rights have been violated by overbearing pro bono assignments has never been squarely presented before the Court. Madden, supra, 126 N.J. at 601. The Court has intimated in dicta, however, that it is theoretically possible that the burden of involuntary pro bono assignments could violate due process. See Rush, supra, 46 N.J. at 408 ("Conceivably the burden upon the bar could reach such proportions as to give the due process argument a force it does not now have.").

We harbor no doubts that the alleged burden of the assignment at issue in this case did not violate any constitutional boundaries. Any attorney, even a disabled one, assigned to represent an indigent defendant has a duty--subject to ethical precepts--not to withhold his assistance nor spare his best exertions in the defense of one who has the twofold bad luck to be impoverished and accused of criminal behavior. Duffy has complained of a single alleged involuntary assignment. Even if he were to have some theoretical constitutional right to limit the amount of such involuntarily assignments, and if all of his factual claims about what took place in the Margate Municipal Court, Vicinage 1, and the AOC were true, his constitutional and statutory claims concerning the alleged "intolerable state of affairs that has arisen regarding the procedures (or, more correctly, lack thereof) for assigning pro bono cases to attorneys in New Jersey" lacks any traction. Though C.G.'s defense may have been exceedingly time consuming, distracting, and consequently caused a delay in Duffy's treatment schedule, this solitary alleged assignment does not, as a matter of law, trample any constitutional principle or right.

C.

Although not initially presented in the first three iterations of Duffy's pleadings, the MPDA eventually surfaced and expressly appeared in Duffy's proposed Third Amended Complaint as a new legal theory for the recovery of damages due to the putative pro bono assignment.*fn13 We address this claim because the motion judge refused to allow Duffy to amend his pleadings. A motion for leave to amend should be "liberally granted and without consideration of the ultimate merits of the amendment." Interchange State Bank v. Rinaldi, 303 N.J. Super. 239, 256 (App. Div. 1997). However, the court must examine the requested amendment "to determine whether it is futile, that is, whether the amended claim will nonetheless fail and, hence, allowing the amendment would be a useless endeavor." Notte v. Merch. Mut. Ins. Co., 185 N.J. 490, 501 (2006). Courts are free to refuse leave to amend when the newly-asserted claim is not sustainable as a matter of law, because there is no point in permitting the filing of an amended pleading that could not survive a subsequent motion to dismiss. Interchange State Bank, supra, 303 N.J. Super. at 256-57.

In 1998, the Legislature enacted the MPDA after a concerted lobbying effort by the New Jersey State Bar Association. See "A Matter of Simple Justice": Enactment of New Jersey's Municipal Public Defender Act, 51 Rutgers L. Rev. 637 (1999). The MPDA requires that every municipal court in New Jersey "have at least one municipal public defender appointed by the governing body of the municipality." N.J.S.A. 2B:24-3. A municipal public defender must be assigned to represent every indigent defendant accused of an offense, which if convicted, would subject her to "imprisonment or other consequence of magnitude." N.J.S.A. 2B:24-7. Indeed, as of September 1, 2004, the Guidelines for Determination of Consequence of Magnitude (See Rule 7:3-2) states:

It should be noted that if a defendant is alleged to have a mental disease or defect, and the judge, after examination of the defendant on the record, agrees that the defendant may have a mental disease or defect, the judge shall appoint the municipal public defender to represent that defendant, if indigent, regardless of whether the defendant is facing a consequence of magnitude, if convicted. [Pressler, Current N. J. Court Rules, Appendix to Part VII (2010).]

A municipal court "shall make an investigation of the financial status of each defendant seeking representation" by a municipal public defender, and it has the authority to require a defendant to provide information regarding her financial status to establish eligibility. N.J.S.A. 2B:24-10. Municipalities may establish by ordinance that "a person applying for representation by a municipal public defender or court approved counsel to pay an application fee of not more than $200," but this fee may be waived upon a "clear and convincing showing by the applicant that the application fee represents an unreasonable burden" on the defendant who is seeking representation. N.J.S.A. 2B:24-17.

If a municipal public defender is unavailable, a prosecution may proceed only "if the municipal court appoints a qualified attorney to represent the indigent defendant."

N.J.S.A. 2B:24-7(b). Rule 7:3-2(b) now provides that the municipal court may "excuse the municipal public defender for cause and assign counsel to represent the defendant, without cost to the defendant from, insofar as practicable, a list of attorneys maintained by the Assignment Judge." R. 7:3-2(b). This list of attorneys is apparently similar to the list required by Madden, supra, 126 N.J. at 606, which until the passage of the MPDA was the method of assigning counsel to indigent defendants accused of non-indictable offenses.

N.J.S.A. 2B:24-7(b) provides:

Unless rates are otherwise established by the municipality, the attorney shall be entitled to compensation at the same rate as attorneys hired by the Office of the Public Defender in conflict cases, with payment to be made within 30 days. Once appointed, the attorney shall carry out all duties of the municipal public defender in connection with the case that is the subject of the appointment.

Duffy was not selected to represent C.G. from a list compiled by the Assignment Judge. Nevertheless, we believe that if he was indeed involuntarily forced to represent C.G., as averred in the Amended Verified Complaint and carried through in the proposed Third Amended Complaint, he would be "entitled to compensation" for his services, with payment due within thirty days of the end of the representation. N.J.S.A. 2B:24-7(b).

We apply the same standard as the motion judge to determine whether to grant or deny a motion to dismiss for failure to state a claim. Donato v. Moldow, 374 N.J. Super. 475, 483 (App. Div. 2005); Seidenberg v. Summit Bank, 348 N.J. Super. 243, 250 (App. Div. 2002). Thus, like the motion judge, we must accept as true the facts alleged in the complaint, and credit all reasonable inferences of fact therefrom, in order to ascertain whether there is a claim upon which relief can be granted. Donato, supra, 374 N.J. Super. at 483; Seidenberg, supra, 348 N.J. Super. at 250.

We do not share the view of the motion judge's interpretation of the interchange between Judge Savio and Duffy on March 8, 2004, as so clear to bespeak the only possible conclusion that Duffy consented to the representation of C.G. Instead, we give Duffy's pleadings the benefit of a generous and hospitable read, and in so doing, must assume for present purposes that the assignment was an ad hoc judicial determination rather than a voluntary acquiescence on the part of Duffy. Nevertheless, because reasonable minds may disagree upon the import of the proceedings in the Margate Municipal Court on March 8, 2004, we remand to the Law Division to determine whether Duffy has proven an entitlement to the legislatively-mandated compensation pursuant to the MPDA. Naturally, this claim--if proven--would become the obligation of the City of Margate only, the municipal obligor pursuant to N.J.S.A. 2B:24-5.

D.

A court decides as a matter of law whether a party enjoys a common law or statutory immunity. Norris v. Boro. of Leonia, 160 N.J. 427, 438 (1999); Malik v. Ruttenberg, 398 N.J. Super. 489, 494 (App. Div. 2008). "'Few doctrines were more solidly established at common law than the immunity of judges from liability for damages for acts committed within their judicial jurisdiction.'" Cleavinger v. Saxner, 474 U.S. 193, 199, 106 S.Ct. 496, 499-500, 88 L.Ed. 2d 507, 513 (1985) (quoting Pierson v. Ray, 386 U.S. 547, 553-54, 87 S.Ct. 1213, 1217, 18 L.Ed. 2d 288, 294 (1967)). This immunity is absolute, Burns v. Reed, 500 U.S. 478, 499, 111 S.Ct. 1934, 1946, 114 L.Ed. 2d 547, 567 (1991) (Scalia, J., concurring in judgment in part and dissenting in part); K.D. v. Bozarth, 313 N.J. Super. 561, 568 (App. Div.), certif. denied, 156 N.J. 425 (1998), and attaches at the outset of civil proceedings. "[J]udicial immunity is an immunity from suit, not just from ultimate assessment of damages. Accordingly, judicial immunity is not overcome by allegations of bad faith or malice, the existence of which ordinarily cannot be resolved without engaging in discovery and eventual trial." Mireles v. Waco, 502 U.S. 9, 11, 112 S.Ct. 286, 116 L.Ed. 2d 9, 14 (1991) (internal citations omitted).

The immunity applies even as to judicial acts that are wrong, malicious, or beyond the judge's authority. Delbridge v. Schaeffer, 238 N.J. Super. 323, 334 (Law Div. 1989). Its purpose is to encourage judges to decide matters independently and without fear of being held accountable in damages to a disappointed litigant. Cashen v. Spann, 66 N.J. 541, 546-47, cert. denied, 423 U.S. 829, 96 S.Ct. 48, 46 L.Ed. 2d 46 (1975); Delbridge, supra, 238 N.J. Super. at 334.

The doctrine "is supported by a long-settled understanding that the independent and impartial exercise of judgment vital to the judiciary might be impaired by exposure to potential damages liability." Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 435, 113 S.Ct. 2167, 2171, 124 L.Ed. 2d 391, 399 (1993); see also Bradley v. Fisher, 80 U.S. 335, 347, 20 L.Ed. 646, 649 (1872); Bozarth, supra, 313 N.J. Super. at 568. The ban against suing judges is also justified by the availability of other safeguards against judicial error, especially the right to appeal. Delbridge, supra, 238 N.J. Super. at 335, 339.

In addition to protecting judges from claims under state law, such as the LAD, it is well settled that judicial immunity applies to claims emanating pursuant to federal law, including § 1983 actions such as this one. Briscoe v. LaHue, 460 U.S. 325, 334, 103 S.Ct. 1108, 1115, 75 L.Ed. 2d 96, 107 (1983); Pierson v. Ray, supra, 386 U.S. at 553-54, 87 S.Ct. at 1217-18, 18 L.Ed. 2d at 294. The ADA claims against the judges fail because, as individuals, they are not liable under the ADA, see Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002), cert. denied, 537 U.S. 1105, 123 S.Ct. 871, 154 L.Ed. 2d 775 (2003) and, to the extent Duffy's pleadings raise retaliation claims against them, the named judges enjoy judicial immunity, see Duvall v. County of Kitsap, 260 F.3d 1124, 1133 (9th Cir. 2001). Moreover, there is no individual capacity liability under the ADA or RA. See Vinson v. Thomas, 288 F.3d 1145, 1156 (9th Cir. 2002), cert. denied, Hawaii v. Vinson, 537 U.S. 1104, 123 S.Ct. 962, 154 L.Ed. 2d 772 (2003); Becker v. Oregon, 170 F. Supp. 2d 1061, 1067 (D. Or. 2001); Van Hulle v. Pacific Telesis Corp., 124 F. Supp. 2d 642, 645 (N.D. Cal. 2000).

Judges Armstrong and Savio--in every capacity in which they acted in relation to Duffy's representation of C.G.--were acting judicially, not administratively. "'Whether the act done by [a judge] was judicial or not is to be determined by its character, and not by the character of the agent.'" Malik, supra, 398 N.J. Super. at 497 (quoting Forrester v. White, 484 U.S. 219, 228, 108 S.Ct. 538, 544, 98 L.Ed. 2d 555, 566 (1988) (internal citations and quotations omitted). To determine the character of an action, "the reviewing court should scrutinize the nature of the act and the expectations of the parties, 'whether it is a function normally performed by a judge... [and] whether [the parties] dealt with the judge in his judicial capacity.'"

Malik, supra, 398 N.J. Super. at 497 (quoting Stump v. Sparkman, 435 U.S. 349, 362, 98 S.Ct. 1099, 1107, 55 L.Ed. 2d 331, 342 (1978)).

In employing this functional analysis, the Supreme Court has generally concluded that acts arising out of, or related to, individual cases before a judge are considered judicial in nature. Actions that are judicial in nature include issuing a search warrant, see Burns, supra, 500 U.S. at 492; directing court officers to bring a particular attorney before the judge for a judicial proceeding, see Mireles, supra, 502 U.S. at 12-13; granting a petition for sterilization, see Stump, supra, 435 U.S. at 362-64; and disbarring an attorney as a sanction for the attorney's contumacious conduct in connection with a particular case, see Bradley v. Fisher, supra, 80 U.S. at 354-57, 20 L.Ed. 646 (1871). The fact that a proceeding is "informal and ex parte... has not been thought to imply that an act otherwise within a judge's lawful jurisdiction was deprived of its judicial character." Forrester, supra, 484 U.S. at 227, 108 S.Ct. at 544, 98 L.Ed. 2d at 565.

Utilizing this analysis, we entertain no doubt that all of Duffy's encounters with Judge Savio involved the jurist's judicial capacity. Similarly, Duffy's entreaties to Judge Armstrong, and her letter responses--albeit outside of the mainstream of a formalized litigational modality--were made to directly address Duffy's concerns for his and his client's well-being in the context of a particular action then pending in the municipal court. A clearer example of the judicial function, even one performed by an Assignment Judge, cannot be imagined.*fn14

Thus, all ten counts against these judges fail as a matter of law and were rightly dismissed with prejudice.

All of Duffy's claims asserted against the City of Margate, the AOC, and the State relating to Duffy's alleged involuntary assignment to represent C.G. are derivative of the action or inaction by these judges. Therefore, those entities are likewise immunized from any liability, except (as previously noted) pursuant to the express provisions of the MPDA. Cf. Brown v. City of Bordentown, 348 N.J. Super. 143, 148-51 (App. Div. 2002) (legislative immunity of municipal commissioner bars LAD claims against municipality). Moreover, our review of Duffy's amalgamated pleadings leaves us unable to detect a cognizable claim of liability against any of these entities for a direct unlawful act. Thus, the dismissal of those non-MPDA claims was also correct.

E.

We also conclude that federal constitutional principles factor into Duffy's claims against the State. The Eleventh Amendment bars actions against state agencies or departments unless a state waives its sovereign immunity or Congress exercises its power to override that immunity. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100-01, 104 S.Ct. 900, 908, 79 L.Ed. 2d 67, 78 (1984); Bd. of Trs. of the Univ. of Alabama v. Garrett, 531 U.S. 356, 363, 121 S.Ct. 955, 961-62, 148 L.Ed. 2d 866, 876 (2001); Wilbur v. Locke, 423 F.3d 1101, 1111 (9th Cir. 2005), cert. denied, 546 U.S. 1173, 126 S.Ct. 1338, 164 L.Ed. 2d 53 (2006); Hans v. Louisiana, 134 U.S. 1, 17, 10 S.Ct. 504, 508, 33 L.Ed. 842, 848 (1890); see also Garcia v. S.U.N.Y. Health Scis. Ctr., 280 F.3d 98, 107 (2d Cir. 2001) (citing Bd. of Tr. of Univ. of Ala. v. Garrett, supra, 531 U.S. at 363, 121 S.Ct. at 961-62, 148 L.Ed. 2d at 876; Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54, 116 S.Ct. 1114, 1122, 134 L.Ed. 2d 252, 265 (1996)).

In the present case, the State of New Jersey has not consented to suit. Moreover, lawsuits against state officers acting in their official capacity and lawsuits against state courts are considered to be lawsuits against the state. Will v. Michigan Dept. of State Police, 491 U.S. 58, 70-71, 109 S.Ct. 2304, 2312, 105 L.Ed. 2d 45, 57-58 (1989); Abrahams v. App. Div. of the S.Ct., 473 F. Supp. 2d 550, 563 (S.D.N.Y. 2007) (citing Kentucky v. Graham, 473 U.S. 159, 169, 105 S.Ct. 3099, 87 L.Ed. 2d 114 (1985); Al-Jundi v. Estate of Rockefeller, 885 F.2d 1060, 1065 (2d Cir. 1989)). Thus, plaintiff's claims against the State, the AOC, its employees, and its courts may only proceed if they are brought pursuant to a valid Congressional abrogation of state immunity.

Of all the explicitly and implicitly raised statutory and constitutional provisions in plaintiff's complaint, only plaintiff's claim under Title II of the ADA provides an arguable basis for piercing New Jersey's immunity under the Eleventh Amendment. See Tennessee v. Lane, 541 U.S. 509, 124 S.Ct. 1978, 158 L.Ed. 2d 820 (2004). But even this theory lacks support in the pleadings.

Title II of the ADA provides:

[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.

[42 U.S.C.A. § 12132.]

Therefore, in order to "prove that a public program or service violated Title II of the ADA, a plaintiff must show: (1) he is a 'qualified individual with a disability'; (2) he was either excluded from participation in, or denied the benefits of, a public entity's services, programs, or activities, or was otherwise discriminated against by the public entity; and (3) such exclusion, denial of benefits, or discrimination was by reason of his disability." Weinreich v. Los Angeles Cty. Metro. Transp. Auth., 114 F.3d 976, 978 (9th Cir.), cert. denied, 522 U.S. 971, 118 S.Ct. 423, 139 L.Ed. 2d 324 (1997).

Title II of the ADA was expressly modeled after section 504 of the RA. A plaintiff bringing suit pursuant to section 504 "must show (1) he is an individual with a disability; (2) he is otherwise qualified to receive the benefit; (3) he was denied the benefits of the program solely by reason of his disability; and (4) the program receives federal financial assistance." Ibid. (internal quotations omitted).

The ADA provides that a person is disabled if he has a physical impairment that "substantially limits" a major life activity. 42 U.S.C.A. § 12102(2). Major life activities include speaking, performing manual tasks, working, caring for one's self, walking, seeing, hearing, breathing, and learning. 28 C.F.R. § 35.104 (1)(iii)(2).

Plaintiff alleges that he is a qualified individual with a disability, given the statutory definition. Considering plaintiff's ability to practice law for so many years, it is questionable whether he fully qualifies as disabled because it does not appear that he was substantially limited in a major life activity. Nevertheless, even if we assume that plaintiff is a qualified individual with a disability, his allegations do not demonstrate that he was denied meaningful access to the courts because of this disability. The opposite is more likely; if anything, plaintiff's primary grievance is that he was refused the ability to de-access the courts, that is, not be assigned to represent C.G.

If a state agency or official enjoys Eleventh Amendment immunity a court, either state or federal, does not have jurisdiction over the case. Seminole Tribe of Fla. v. Florida, supra, 517 U.S. at 72-73, 116 S.Ct. at 1131-1132, 134 L.Ed. 2d at 276-277 (referencing the jurisdiction of federal courts); Alden v. Maine, 527 U.S. 706, 755, 119 S.Ct. 2240, 2267, 144 L.Ed. 2d 636, 679 (1999) (referencing the jurisdiction of state courts). All of plaintiff's claims for money damages and injunctive relief against New Jersey, its courts, and the personnel who work therein were properly dismissed for lack of subject matter jurisdiction.

F.

We next turn to Duffy's claims relating to his endeavor to mitigate his perceived damages by seeking a job opportunity with a judge or justice in the New Jersey Judiciary. In so doing, Duffy has sued the State, the AOC, and two individuals: defendants Judge Philip S. Carchman and Danilo. We cannot conceive of, much less reasonably determine from Duffy's overwhelming pleadings, a theory of liability against these individuals, based upon what Duffy claims about their conduct. Danilo was joined as a party because she penned the letter of September 8, 2006, which communicated the Judiciary's policy regarding the qualifications necessary to have one's resume and cover letter published in the centralized resume distribution. Judge Carchman was named a defendant ostensibly because at the time he was the Administrative Director of the Courts. Duffy's grievance stems from Judge Carchman's alleged failure to facilitate a waiver or accommodation of the no-practice rule.*fn15

As we have previously noted, there is no individual capacity liability under the ADA or RA. See Vinson v. Thomas, supra, 288 F.3d at 1146; Becker v. Oregon, supra, 170 F. Supp. 2d at 1067; Van Hulle v. Pacific Telesis Corp., supra, 124 F. Supp. 2d 642. Duffy has not articulated any cognizable basis to hold these individuals accountable for his inability to be included in the centralized resume distribution. The dismissal of all claims against Danilo and Judge Carchman was therefore proper.

As for the allegations against the State and the AOC, Duffy's pleadings do not state an employment-related claim pursuant to the ADA, RA, ADEA, or LAD because he was asking for a retroactive accommodation--reflective of his circumstances during the early years as a member of the New Jersey bar--that enjoys no provenance at law. His stated purpose for seeking employment with a judge or justice for the 2007-2008 court term was "to get him back into the legal profession after his long illness." This bespeaks a past disability, not a present one that is actionable. In so many words, Duffy's job hunt in the Judiciary was merely a stratagem to obtain reparations for past alleged wrongs, not a bona fide employment search. Accordingly, there could be no intentional refusal to accommodate for a present disability or handicap. To recover monetary damages under Title II of the ADA or the RA, a plaintiff must first assert and then prove intentional discrimination on the part of the defendant. Ferguson v. City of Phoenix, 157 F.3d 668, 674 (9th Cir. 1998), cert. denied, 526 U.S. 1159, 119 S.Ct. 2049, 144 L.Ed. 2d 216 (1999). The pleadings simply do not present such a scenario, no matter how generously interpreted.

G.

In conclusion, we determine that out of the welter of accusations and finger-pointing that is the hallmark of Duffy's pleadings, only one states a claim upon which relief may be granted: the ninth count of the Third Amended Complaint. All other theories, counts, and claims were rightly dismissed. Duffy shall be permitted to file the Third Amended Complaint and proceed on the ninth count only, against the City of Margate.

Affirmed in part; reversed in part; and remanded for further proceedings in accordance with this opinion. We do not retain jurisdiction.


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