EMPOWER OUR NEIGHBORHOODS, an unincorporated association, on behalf of itself and its members and all others similarly situated, Plaintiff-Respondent,
KIMBERLY GUADAGNO, individually and as Secretary of State and Chief State Election Official of the State of New Jersey; and THE STATE OF NEW JERSEY, Defendants-Respondents/ Cross-Appellants, and ELAINE FLYNN, individually and as Middlesex County Clerk, Defendant-Appellant/ Cross-Respondent, and DANIEL TORRISI, individually and as Clerk of the City of New Brunswick; RICHARD JANNARONE, individually and as Board Secretary of the New Brunswick Board of Education; NEW JERSEY DEMOCRATIC STATE PARTY COMMITTEE; and NEW JERSEY REPUBLICAN STATE PARTY COMMITTEE, Defendants. EMPOWER OUR NEIGHBORHOODS, an unincorporated association, on behalf of itself and its members and all others similarly situated, Plaintiff-Respondent,
KIMBERLY, individually and as Secretary of State and Chief State Election Official of the State of New Jersey; and THE STATE OF NEW JERSEY, Defendants-Respondents/ Cross-Appellants, and ELAINE FLYNN, individually and as Middlesex County Clerk; RICHARD JANNARONE, individually and as Board Secretary of the New Brunswick Board of Education; NEW JERSEY DEMOCRATIC STATE PARTY COMMITTEE; NEW JERSEY REPUBLICAN STATE PARTY COMMITTEE, Defendants, and DANIEL TORRISI, individually as Clerk of the City of New Brunswick, Defendant-Appellant/ Cross-Respondent. EMPOWER OUR NEIGHBORHOODS, an unincorporated association, on behalf of itself and its members and all others similarly situated, Plaintiff-Respondent,
KIMBERLY GUADAGNO, individually and as Secretary of State and Chief State Election Official of the State of New Jersey; and THE STATE OF NEW JERSEY, Defendants-Respondents/ Cross-Appellants, and ELAINE FLYNN, individually and as Middlesex County Clerk; NEW JERSEY DEMOCRATIC STATE PARTY COMMITTEE; NEW JERSEY REPUBLICAN STATE PARTY COMMITTEE, Defendants, and DANIEL TORRISI, individually and as Clerk of the City of New Brunswick, Defendant-Respondent, and RICHARD JANNARONE, individually and as Board Secretary of the New Brunswick Board of Education, Defendant-Appellant/ Cross-Respondent.
Submitted November 9, 2017
appeal from Superior Court of New Jersey, Law Division,
Mercer County, Docket No. L-3148-11.
F. Kelso, Middlesex County Counsel, attorney for appellant
Elaine Flynn in Docket No. A-0330-15 (Benjamin D. Leibowitz,
Senior Deputy County Counsel, on the briefs).
Wallack LLP, attorneys for Daniel Torrisi,
appellant/cross-respondent in Docket No. A-0331-15, and
respondent in Docket No. A-0333-15 (James G. 0'Donohue
and Victoria J. Airgood, of counsel and on the briefs).
Hendricks & Hendricks, attorneys for
appellant/cross-respondent Richard Jannarone in Docket No.
A-0333-15 (George F. Hendricks, on the briefs).
Christopher S. Porrino, Attorney General, attorney for
respondents/cross-appellants Kimberly Guadagno and State of
New Jersey (Melissa H. Raksa, Assistant Attorney General, of
counsel; George N. Cohen, Deputy Attorney General, on the
Zazzali, Fagella, Nowak, Kleinbaum & Friedman, attorneys
for respondent Empower our Neighborhoods (Flavio L. Komuves,
of counsel and on the briefs).
Judges Alvarez, Nugent, and Currier.
reasons that follow, we affirm Judge Mary Jacobson's
thorough and well-reasoned August 7, 2015 decision awarding
counsel fees to plaintiff Empower Our Neighborhoods (EON), an
advocacy group, in this election matter. She apportioned the
$105, 063.80 award as follows: fifty percent or $52, 531.90
payable by defendant State of New Jersey; twenty percent or
$21, 012.76 payable by the City of New Brunswick on behalf of
defendant City Clerk Daniel Torrisi; twenty percent or $21,
012.76 payable by Middlesex County on behalf of defendant
County Clerk Elaine Flynn; and ten percent or $10, 506.38
payable by the New Brunswick Board of Education on behalf of
its secretary, defendant Richard Jannarone. All defendants
Judge Jacobson explained, this litigation "buil[t]
on" the October 17, 2007 agreement reached with the
State in another consequential election case, Green Party
of New Jersey; New Jersey Conservative Party; and New Jersey
Libertarian Party, Inc. v. State of New Jersey, Division of
Elections and Anne Milgram, Attorney General of New
Jersey, Docket No. C-125-06. The consent order in that
case states: "the provisions in N.J.S.A. 19:13-5 and
19:13-7 which, when read together, require a person
certifying the signatures on a direct nominating petition to
be a legally qualified voter residing within the district in
which the nominee is seeking office [are] hereby declared to
be void and unenforceable."
consent order committed the State to make available, through
the Division of Elections, revised direct nomination petition
forms by December 31, 2007 . The order cited to Buckley v.
American Constitutional Law Foundation, 525 U.S. 182
(1999) as the binding precedent requiring modification of the
statutory residency requirement.
way of complaint and amended complaint, sought to eliminate
the district residency, age, and voter registration
requirements in an expanded universe of election activities:
for recall petitions, petitions nominating independent
candidates in general elections, the selection of candidates
from local parties, and Board of Education members. On March
31, 2014, Judge Jacobson decided the matter on motions and
cross-motions for summary judgment by all the parties,
including the Democratic and Republican State Committees who
"participated in the case as defendants pursuant to
court order." She partially granted EON's motion by
eliminating the in-district residency requirement, finding it
judge denied EON's request that petition circulators need
not be voter-eligible-circulators continued to be required to
be over eighteen, citizens, and New Jersey residents. The
judge also denied EON's request that circulators in
partisan primary elections not be required to be registered
voters of the relevant party.
success in this litigation, the judge observed, "changed
the landscape of election law in New Jersey, " as
"all 5.88 million registered voters in New Jersey now
ha[d] expanded petition rights."
[T]he available petition circulator base is [now] about
[eleven] times higher in Bergen County, the largest
jurisdiction in New Jersey, .... In New Brunswick, . . . the
available circulator base has been expanded by 24 8 times
with regard to Independent candidates, by 2 08 times with
regard to Democratic candidates, and by 1115 times with
regard to Republican candidates.
close of the case, EON was awarded counsel fees pursuant to
42 U.S.C. § 1983 and § 1988, and the New Jersey
Civil Rights Act (the Act), N.J.S.A. 10:6-2(f). After the
defendants filed the appeal, the State sought a brief remand
to the trial court, alleging it had discovered a form letter
circulated to local governments disclosing the Green
Party settlement. The State had not previously been able
to produce any proof of efforts to communicate the terms of
the Green Party order to the affected entities.
remand, Judge Jacobson was unconvinced the letter satisfied
the State's Green Party obligations and
constitutional requirements. She found that since as late as
2011, four years after the Green Party consent order
was signed, the State continued to promulgate model forms
inconsistent with Buckley, the State was not
entitled to modification of the award. Even in 2012, the
State's website had posted a recall petition form that
was "inconsistent with Buckley." The judge
also found that the State's letter did not adequately
explain the unconstitutionality of local district residency
requirements. Despite the communication, "the State did
not ensure that all the model forms it promulgated and
continued to promulgate after the Green Party
consent order were completely consistent with the
State now asserts on appeal:
STATE DEFENDANTS ARE NOT LIABLE FOR ATTORNEY'S FEES OR
COSTS AWARDED TO EON BECAUSE EON DID NOT PREVAIL ON ITS
CLAIMS AGAINST STATE DEFENDANTS AND STATE DEFENDANTS WERE NOT
RESPONSIBLE FOR THE FEES INCURRED BY EON AS A RESULT OF THE
MUNICIPAL DEFENDANTS' RESIST[A]NCE TO THEIR CLAIMS
A. Prevailing Party Is Entitled Only to Reasonable
B. The Lodestar Amount Should Be Reduced to Reflect EON's
Lack of Success.
C. State Defendants Should Not Be Responsible for Any Fees
and Costs Incurred After the Complaint Was Filed as That
Complaint Put the Municipal Defendants on Notice of the 2007
Green Party Consent Order.
D. The State Defendants Should Not Be Held Accountable for
the Litigation Conduct of the Municipal Defendants.
E. The Municipal Defendants' Conduct Prolonging the
Litigation Requires an Increase in The Amount of Fees and
Costs Allocated to Them.
THE COURT SHOULD SUBSTANTIALLY REDUCE EON'S APPLICATION
FOR ATTORNEY'S FEES AND COSTS BECAUSE IT DID NOT PREVAIL
ON ANY MAJOR ISSUE AFTER THE ISSUANCE OF THE COURT'S