Point Pleasant Beach Ordered to Pay $11,200 of ACLU's Legal Fees

When it comes to avoiding paying the ACLU's legal fees, Point Pleasant Beach hasn't got a prayer.

The Beach must pay $11,200 of the $37,989.30 the American Civil Liberties Union (ACLU) sought for reimbursement of legal fees, according to a Feb. 15 decision issued by Superior Court Judge Vincent Grasso, sitting in Toms River.

The fees were incurred in the first of two lawsuits filed by the ACLU on behalf of Sharon Cadalzo against the Borough Council for saying the Lord's Prayer at the openings of meetings.

The ACLU can also seek reimbursement of legal fees for a second, pending lawsuit filed on behalf of Cadalzo.

The lawsuits could have been avoided if the Beach only said prayers that are acceptable to all faiths, rather than those that use references specific to only certain religions.

Recently, most of the council members have not been saying prayers. However, Councilmen Frank Rizzo and Jeffrey Dyer, have, at times, been mouthing words along with audience members saying the Lord's Prayer.

Rizzo, in an interview Thursday night, said it's unfair the judge is ordering the Beach to reimburse legal fees.

However, when asked if the Beach should use general prayers that wouldn't raise any objections, he said, "Yes, I think that would probably be a good idea."

The Beach, already facing a tight budget, forcing most employees to take 17 furlough days and possibly laying off three police officers, has to pony up within 60 days, as ordered by Grasso.

Jeanne LoCicero, Deputy Legal Director of the ACLU of New Jersey, has said the ACLU does not charge its clients, so the Beach will reimburse fees directly to the ACLU.

Grasso said in his decision that he considered the number of hours billed and the rate charged by attorneys for both sides in deciding how much the Beach should have to pay.

For example, Grasso noted that Cadalzo was represented by two attorneys, LoCicero and Frank Corrado, based in Wildwood, and the Beach by one, Kevin Riordan, Toms River.

Grasso said he believes Cadalzo could have been represented adequately by one attorney.

He noted that Riordan, who was borough attorney until last month, billed for 28 hours at a rate of $125 per hour, which amounts to $3,500.  The two attorneys for the ACLU billed for a combined total of 126 hours at a rate of $400 per hour, which comes to $50,400.

Of that total, the ACLU requested reimbursement of $37,989.30.

While Grasso said that the $400 rate "is not unreasonable" and somewhat typical of attorneys representing attorneys in civil rights cases, he apparently felt the number of billed hours was excessive.

In fact, he used the number of hours billed by Riordan, which was 28, at the rate charged by the ACLU lawyers, which was $400 per hour, to arrive at his figure of $11,200.

LoCicero said in an email that she is not disappointed the judge awarded less than a third of what was requested.

 "We recognize that courts sometimes reduce or lower fees," LoCicero said. "We are just pleased that the court held the township accountable for its actions.

"We are pleased that the court determined that fees are appropriate in actions where local officials violate the constitutional rights of their residents," she said.

"Unfortunately, if council members continue to permit unconstitutional prayers at their meetings, the taxpayers of Point Pleasant Beach may be forced to bear additional costs of litigation," LoCicero concluded.

LoCicero's comment clearly refers to the fact that a second lawsuit is pending and that two councilmen have appeared to mouth the words of the Lord's Prayer while residents recited it at recent meetings, including the one held on Tuesday night.

That is despite the fact that Grasso ordered a temporary injunction against the practice in December.

Rizzo and Dyer were mouthing the words to the prayer on and off as some in the audience prayed on Tuesday night.

Immediately after the prayer, about 17 to 20 residents who had been praying left the meeting.

Grasso's injunction pertains only to the elected officials, not to residents in the audience.

In other meetings during the past two months, the two councilmen appeared to be mouthing words, with Rizzo mouthing the whole prayer and Dyer seeming to mouth the words on and off.

Mayor Vincent Barrella said in an interview on Thursday night, "I'm disappointed the borough has to pay any legal fees, but gratified it was less than what the ACLU was seeking. I would hope we can settle all of the issues."

The Beach's problems with prayers began on September 16, 2010, when Cadalzo filed suit to challenge the prayer practice under the state Constitution, which provides that "there shall be no establishment of one religious sect in preference to another" and pursuant to the New Jersey Civil Rights Act, Grasso notes in his decision.

At its next meeting on Sept. 28, the council halted its longstanding practice and substituted a "moment of silence," Grasso notes in his decision.

Cadalzo then dropped her lawsuit.

At a  meeting in October, the council held another "moment of silence" instead of a prayer, the decision says.

"Both moments of silence were disrupted by protestors," Grasso wrote in his decision.

The council then passed a new "Policy Regarding Opening Invocations Before Meetings of the Borough of Point Pleasant Beach Council."

"Following the adoption of this policy, at the next council meeting on November 9, following the Pledge of Allegiance, the mayor introduced Councilman Dyer who closed his prayer by invoking 'Jesus Christ,' " the decision says.

"Plaintiff asserts that she remains distressed by the continued sectarian prayers that the Borough has sponsored or permitted, as well as by the new policy that permits the same," the decision states.

Consequently, on Nov. 9, the ACLU, on behalf of Cadalzo, filed a second lawsuit which is still pending.

On Dec. 17, Grasso concurred with the ACLU's position that the secular prayers said by elected officials at their public meetings violate the state Constitution and ordered a temporary injunction against council members continuing that practice.

However, Grasso has also emphasized at court hearings in December and February that more general prayers that are not specific only to certain religions would be fine.

LoCicero has also repeatedly said that the ACLU will not challenge non-sectarian prayers or a moment of silence.

The state Constitution prohibits elected officials from saying secular prayers because that practice sends a message to residents that some residents' beliefs are preferred by their elected officials over others.

Cadalzo, who is Jewish, filed the lawsuits because she felt the council, by saying the Lord's Prayer, was showing preference for Christian religions over others.