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  • Writer's pictureLee Roth

Is Justice Only for Those Who Can Pay?

I recently read an OP-ED piece in a lawyer publication. It was written in March of this year by a lawyer from Highland Park NJ. He titled his piece “Justice is Only for Those Who Can Pay to Play”. He was writing for lawyers. He concluded with the thought that lawyers should think carefully about representing people who can’t write big checks. He suggests that New Jersey citizens will have to “accept whatever unconstitutional treatment that reckless, arrogant and dishonest municipal and state governments hand out”.

He describes the situation he dealt with saying that he had undertaken to represent some individuals against their municipal government which was enforcing unconstitutional ordinances against them. He reports that he won an injunction and forced the rescission of all 60 pending summonses, as well as extensive amendment of the ordinance. His success was not only a victory for his clients, but for hundreds of others who were similarly situated.

Civil Rights Attorney’s Fees Awards Act

He applied for fees under The Civil Rights Attorney’s Fees Awards Act of 1976, known as a 1983 action. The statute allows the prevailing party in a situation, just as his clients faced, to be awarded attorneys fees as a result of discrimination by government. He reports that he was only paid at his regular rate for 30 hours of the 330 hours he had worked on behalf of his clients.

He reports that his adversary, the municipal attorney, who lost the injunction hearing, and four related motions, billed more than 400 hours and was paid with tax payer money for every hour they spent, even though they lost at every turn. He asked the question “does this sound like justice?”

He says he could not have foreseen that the judiciary would be a more vigorous opponent of a fair fee award under the circumstances then was City Hall. He said that the municipality’s lawyer never challenged his time records. He felt they couldn’t because they had out billed him by a wide margin and they lost the injunction and every motion that either side brought. He says, nevertheless a trial judge cut over 90% of the fee that the facts and case law, in his opinion, supported.

He also didn’t think the Appellate Division and the New Jersey Supreme Court would uncritically accept the Law Division’s “obviously flawed fee nullification”. He reports that high court did, and failed to exercise the quality control that county court judges require.

He said:

"I don’t need the money that the case law says I deserved to be paid for beating a municipality and their team of attorneys in this case. But the near fee nullification here deeply and unacceptably disrespects the hard and effective work I did. It also compels me [to] conclude that New Jersey’s Judiciary will deliver, and will tolerate, obvious injustice. I’m done with public interest law. I work in construction now, where I get paid fairly."

He further said in his OP-ED piece:

"Thwarting the will of the United States Congress that enacted 42 U.S.C. 1988, New Jersey’s courts have promoted the perception, and the reality, that Constitutional rights extend only to those who can pay to play."

He reports that he had been warned not to take the case. He says it turns out they were right. He could not have foreseen what he describes as a lack of justice in the situation he became involved in. There were obviously politics involved.

What do we see happening in Flemington?

The borough government failed to provide information requested by the friends of historic Flemington and their lawyer. They expended money, more than a little taxpayer money, defending their failure to provide information, and they (we the tax payers) ended up paying $5,000 to the group that requested the information because our government officials failed to provide the requested information.

The Borough is now engaged in defending additional litigation. A lawsuit relating to how they went about expanding the redevelopment area at the request of their designated redeveloper is pending. How long will that go on? What will that cost in taxpayer money?

The Flemington Government has brought criminal charges and civil penalty claims, through its construction official and through its police department, against four local citizens who were helping Steve, himself one of the four, who financed the purchase of the Union Hotel for the second redeveloper. Is it obvious that politics were involved? All charges have been dismissed and should never have been brought, according to one of the Boards hearing the case. What has and will this mistake cost us as tax payers?

An Absolute Right to Be in the Building

Steve was foreclosing on his mortgage on the Hotel property. He had an absolute right to enter the building. One of the four was a structural engineer who had publicly challenged the government position that the structure of the Hotel building was not only unsound but was collapsing. One of the four was a contractor helping judge the condition of the building and helping with an understanding of the cost of bringing the building into usable repair.

The last of the four was a named plaintiff in a law suit against the Flemington government because they would not provide requested information that cost taxpayer money to defend and ended up costing Flemington the $5,000 mentioned above. He is also an engineer and he has successfully restored and repurposed a Main Street building that was in worse shape than the hotel. His building is now one of the more beautiful and successful on Main Street. He is also a plaintiff in another law suit challenging the expansion of the redevelopment area. That law suit seeks to limit the scope of the redevelopment and to preserve the historic character of Flemington Borough.

These citizens charged with criminal trespass, and facing a fine of $2,000 each demanded by the Flemington construction official, each paid for their own defense. What if these gentlemen could not have afforded to defend themselves? Were they treated fairly? Would the author of the article I just read in a legal publication have taken the case to defend them? Will they bring a claim or claims to get their defense costs incurred in defense of the unjust claims filed against them? Stay tuned.

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