Thursday, December 10, 2015

Judge denies NJSPCA's reconsideration motion. Chides it for trying "to get a 'second bite at the apple.'"

A "motion for reconsideration" is supposed to be filed only when a court failed to consider evidence or made a ruling that was "based upon a palpably incorrect or irrational basis."  Such motions are not supposed to made when a lawyer wants to assert arguments that he or she didn't make in the first go-around or when the lawyer simply disagrees with the judge's ruling.

Yet, that is exactly what lawyer Harry Jay Levin of the Toms River law firm of Levin & Cyphers tried to do.  And, Middlesex County Assignment Judge Travis L. Francis wasn't buying it.

Judge Francis had issued a August 28, 2015 order and decision finding that the New Jersey Society for the Prevention of Cruelty to Animals (NJSPCA), after having conceded that it was subject to the Open Public Records Act (OPRA), was not allowed to charge a "labor fee" for fulfilling requestor Collene Wronko's records request.  In that decision, Judge Francis ruled that Wronko's requests "are not too burdensome or amount to an 'extraordinary' expense of time."

Apparently not happy with ruling, Levin filed a motion for reconsideration arguing that the records Wronko sought were not disclosable under OPRA because a Department of Treasury manual exempts its records from access and because Wronko's request wasn't specific enough.

Judge Francis, in a November 20, 2015 ruling, denied the NJSPCA's motion because it was "an attempt to get a 'second bite at the apple.'"  Regarding its argument that Wronko's request lacked specificity, he wrote that the NJSPCA already "had two opportunities to present its argument that [Wronko's] OPRA requests were insufficient" and that a "Motion for Reconsideration is not the appropriate vehicle for [the NJSPCA] to now raise these issues."

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