Three years ago, I opted to represent low-income individuals against their municipal government, which was enforcing an unconstitutional ordinance against them. I won an injunction and forced the rescission of all 60 pending summonses, as well as extensive amendment of the ordinance. I scored a dispositive victory for my clients and hundreds of other similarly situated people.
Five rounds of 42 U.S.C. 1988 fee litigation later, ending with the Supreme Court’s recent denial of my Petition for Certification, I received a fee award amounting to $25/hour. Overall, I was paid for 30.3 of the over 330 hours I worked.
Think about that for a moment.
My adversary, who lost the injunction hearing and four related motions, billed over 400 hours. They were paid for every hour.
Does this sound like justice?
Before I took this case, people advised me not to take on The System. It turns out they were right. But I could not have foreseen that the Judiciary would be a more vigorous opponent of a fair fee award than was City Hall. Municipal defendant’s private counsel never challenged my time records; they couldn’t because they outbilled me by a wide margin to lose the injunction hearing and four related motions. Nonetheless, a Law Division judge spontaneously cut over 90 percent of the fee that the facts and case law supported.
If I had thought that this near fee nullification were even remotely possible, I wouldn’t have taken this case. I devoted far too much uncompensated, irreplaceable time to it. Further, by drastically cutting my hours, the Law Division judge effectively—and quite incorrectly—accused me of perjury.
I also didn’t think the Appellate Division and Supreme Court would uncritically accept the Law Division’s obviously flawed fee nullification. But they did and, in so doing, failed to exercise the quality control that county court judges require.
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 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.
Skilled, principled attorneys should think very carefully about representing New Jerseyans who can’t write big checks. As attorneys rationally decline to represent low-income people, many New Jerseyans will have to accept whatever unconstitutional treatment that reckless, arrogant and dishonest municipal and state governments hand out. 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.
Oshinskie is an attorney in Highland Park.