The opinion of the court was delivered by: CONNER
Umhey was an Orange County Legislator from January 1, 1986 to December 31, 1993. In December 1990, the Orange County Legislature enacted a Code of Ethics known as Local Law No. 1 of 1991. The Code required certain County officials, including Umhey, to file annual financial disclosure statements that included financial information relating to their spouse, if any. Partial waiver was permitted by the Code upon request and a showing of "significant reasons."
In 1991 and 1992 Umhey filed her financial disclosure forms without including any information on her husband's income, stating that her husband refused to comply with the request because he believed it to be an invasion of his right to privacy. The Board denied her request for a waiver, and when she continued not to provide the information, she was notified her forms were incomplete. A hearing was held before a Hearing Officer who found Umhey to be in violation of the Code of Ethics and recommended to the Board of Ethics that she resign from the legislature or be subject to a substantial fine for each year she failed to comply. The Board of Ethics assessed a $ 5000 per year fine and recommended to the County Legislature that they remove her from office. No action was ever taken on the recommendation and Umhey never paid the fine.
On August 18, 1993, Umhey filed a "Verified Petition/Complaint" in the Orange County Supreme Court against Orange County and the Orange County Board of Ethics. The proper procedural and legal characterization of the action that ensued has since become a central issue in this case. Plaintiff's "Notice of Petition" filed with her state complaint states in relevant part that:
. . . Upon the annexed Verified Petition/Complaint of the Petitioner/Plaintiff Maria Tavey Umhey . . . the Petitioner will move this Court at the County Government Center . . . for an order and judgment (1) pursuant to CPLR Article 78 annulling, reversing or otherwise setting aside the Decision and Determination of the Orange County Board of Ethics on the grounds that it is arbitrary and capricious, (2) that the assessment of a civil penalty is inconsistent with Local Law No. 1 and General Municipal Law Article 18, (3) for declaratory judgment that Local Law No. 1 and the Rules and Regulations promulgated thereunder are unconstitutional as applied to the Petitioner/Plaintiff for a failure to provide due process and for vagueness and (4) such other further and different relief that this Court may deem just, fair and proper.
(Notice of Petition, Goldman Aff. Exh. 3). The annexed Complaint states that "This appeal is made pursuant to the Rules and Regulations which provide for judicial review of the Board's final determinations under CPLR Article 78 and to challenge the constitutionality of Local Law No. 1 as applied to the Petitioner." (Compl. P 55).
The complaint alleged seven causes of action. Causes one through four, as well as seven, requested that the Board of Ethic's Decision be set aside or annulled as "arbitrary and capricious." The fifth and sixth requested a declaration that Local Law No. 1 is unconstitutional for vagueness and for violating Umhey's due process and privacy rights. There was no mention of § 1983 and no explicit request for damages in either the complaint or the Notice of Petition.
On March 29, 1995, Orange County Justice Emmett Murphy issued a Decision and Order finding that the exemption (waiver) provision of Local Law No. 1 rendered the law "fatally flawed" and thus that the Ethics Board's decision to deny her exemption was "arbitrary and capricious." The Court further released Umhey from the requirement of filing the required information until the exemption provision was altered to comply with due process, vacated the Board's finding that she willfully violated the Code of Ethics, and vacated the Board's imposition of a $ 10,000 fine.
Subsequently, Umhey submitted a motion for attorney's fees and costs "under the authority of 42 U.S.C. § 1988." (Affirmation and Argument of James G. Sweeney in Reply upon Motion for Reasonable Attorney's Fees, P 2). In his Affirmation, Umhey's attorney averred that "virtually the entire thrust of the of the the [sic] Umhey claim was a constitutional argument," (Affirmation P 10), and that "it couldn't be clearer that the Umhey claims were specifically constitutionally based with procedural due process and right to privacy arguments at their heart. They are the very 'stuff' of a 42 U.S.C. § 1983 claim. They couldn't be more so." (Id. at P 12). This motion apparently was never ruled upon and the County and Umhey reached a settlement on the amount of attorney fees immediately thereafter. (Def. Br. p. 6).
On October 4, 1995 Umhey filed this complaint requesting damages under 42 U.S.C. § 1983 for injuries she suffered as a result of the County's promulgation and attempted enforcement of the unconstitutional provision of the Ethics Code. The County has moved for summary judgment under Fed. R. Civ. P. 56, arguing first that the state court proceeding bars her claim under res ...