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Duffy v. Armstrong

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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