Wednesday, November 29, 2017

An open letter to Monmouth County Assignment Judge Lisa P. Thornton

Even though I ultimately received the records that the plaintiff's attorney sought to have sealed, public access to those records was delayed for about a month.  I advocate not only for access to non-exempt government records but for prompt access to those records.  Accordingly, I have brought my concerns regarding how access to these court records was improperly delayed to both Judge Thornton and the public by way of this open letter.
November 29, 2017

Dear Judge Thornton:

RE: Snyder v. Gramiccioni, Docket No. MON-L-2856-16

Thank you for permitting me to appear before the court telephonically on November 17, 2017 to argue against the plaintiff's motion to seal the court record. I have had a chance to review the documents that your office sent me yesterday and would like to bring to the court's attention a rule violation that I believe worked to impermissibly deprive the public of information about the captioned matter for over fifteen months.

The rule at issue is a July 1, 2010 amendment to R.1:38-11 that added the following paragraph (d):
Documents or other materials not exempt from public access under Rule 1:38 may not be filed under seal absent a prior court order mandating the sealing of such documents, and should not be submitted to the court with the motion, which may be filed on short notice, requesting an order to seal.
The amended rule establishes that a normally non-exempt record, such a civil complaint, may not be filed under seal unless a prior court order that seals the record has already been entered.  Thus, if plaintiff's lawyer, Mr. Cushane, wished for his client's complaint to be sealed, he ought to have first filed a motion that set forth the "good cause" requirements of R.1:38-11.  Then, if the motion was granted, he could have filed his client's complaint under an assurance that it would remain under seal unless and until an order to unseal it was entered.  If the motion to seal was denied, Mr. Cushane and his client could elect either to proceed publicly or abandon the lawsuit, depending on the level of importance they assigned to the client's privacy.

What Mr. Cushane did, however, was file both the amended complaint and the motion to seal simultaneously on August 16, 2016. (Note: The original complaint, filed on August 4, 2016, was correctly rejected by the Court because it impermissibly identified the adult plaintiff by his initials rather than his full name.)  Then, the motion to seal remained pending for more than sixteen months until it was finally adjudicated on November 17, 2017.

Mr. Cushane's motion filing, which violated the rule's admonition (i.e. "[records for which sealing is sought] should not be submitted to the court with the motion"), also had the unfortunate effect of being treated by the Monmouth County Prosecutor's Office (MCPO) as the equivalent of a sealing order.

On October 23, 2017, my non-profit organization submitted an Open Public Records Act (OPRA) request to the MCPO for records that were filed in this case.  Even though no sealing order had yet been entered, Jennifer Lipp, the MCPO's records custodian, denied the OPRA request on the strength of Mr. Cushane's pending motion.  In her October 23, 2017 e-mail, she wrote: "I have a duty to protect people’s privacy interests including medical, mental health, substance addiction, domestic violence, among other privacy interests.  The motion is pending.  Unless Judge Thornton tells the lawyers involved that she is not going to seal the record, I am not going to release them.  Knowing there is a pending motion before the Assignment Judge could also be an ethical violation for me.  Once Judge Thornton rules, I will let you know."

In other words, Ms. Lipp treated the pending motion as a fait accompli even though it had not yet been adjudicated.  Had Mr. Cushane abided by R.1:38-11(d), the sealing motion would have been determined shortly after the August 2016 filing and Ms. Lipp's grant or denial of the OPRA request would have been dictated by the court's decision to grant or deny that motion.

At this point, I seek no remedy because, even though my access to these records was delayed for about a month I have now received them.  I write only to inform the court of the denials and delays that the public faces when R.1:38-11 is disobeyed.  I ask that the court keep my concerns in mind going forward.

Very truly yours,

John Paff

cc. Thomas Cushane and Jennifer Lipp

Court file released. Turns out case was filed by a former Marlboro police sergeant who wants to be declared "psychologically fit."

On November 7, 2017, I wrote an article titled "Who is T.S. and why is he or she suing the Monmouth County Prosecutor and seeking to have the lawsuit sealed by the court?"  After a November 17, 2017 hearing, at which I participated both by filing a certification and letter brief and by arguing telephonically, Monmouth County Assignment Judge Lisa P. Thornton denied the sergeant's motion to seal the file and released most of the court filings to me.  We now know that the suit was filed by a fired Marlboro Township police sergeant who seeks to be declared "psychologically fit to be conditionally rearmed and to conditionally return to full duty" after having reportedly been cleared by two psychologists who examined him after two separate incidents.

The essential facts, as alleged in former Marlboro Sergeant Timothy Snyder's lawsuit, are that Monmouth County Prosecutor Christopher J. Gramiccioni twice disallowed Snyder from possessing a firearm.  The first time was on May 10, 2015 after Snyder's arrest for domestic violence--charges that Snyder claimed did not result in a conviction.  The second time was on October 16, 2015 after Snyder was suspended by Marlboro Police Chief Bruce Hall when an "officer-in-crisis" report was filed after an incident that occurred in Snyder's home.  The object of the lawsuit is to compel Gramiccioni to return Snyder's firearms and accept recommendations, made by separate psychologists who examined Snyder after each incident, that Snyder is fit for duty.  Snyder has a separate, administrative matter pending before the Office of Administrative Law that contests Marlboro's reported decision to fire him effective June 3, 2016.  This is only a summary. The court filings are available for those who want more details.

Snyder originally filed his lawsuit in August 2016 using only his initials, T.S., to identify himself.  Judge Thornton quickly rejected this attempt and required Snyder's lawyer, Thomas A. Cushane of Vineland, to refile the suit using Snyder's full name.  (Unfortunately, Thornton's decision did not cause the court's publicly-accessible, electronic docket to be updated.  The docket, known as the Automated Case Management System (ACMS), identified the plaintiff as only "T.S." until mid-November 2017.)  Also during August 2016, Cushane filed a motion to "seal any and all court records—including the complaint itself--in light of the extremely sensitive nature of the psychological reports and evaluations referenced at length therein as well as Snyder's public standing in the community as a municipal law enforcement officer."

In support of his motion to lock down the entire file, Cushane argued that while the public has a common-law right to inspect court records, the public's confidence in his client's ability to function as a police officer would be undermined if members of the public had "unfettered access" to documents filed in Snyder's lawsuit. The prosecutor's office argued that Cushane's position was "too broad" and that if "the Court were to accept that, then it would have to seal the records in every case where an officer's reputation or ability could be called into question."

Ultimately, Judge Thornton ruled that the court filings be released to the public while Snyder's psychological reports are sealed.

Wednesday, November 15, 2017

Appellate Division: Release that settled lawsuit is disclosable at time settlement terms are agreed to by the parties.

Are lawsuit settlement agreements subject to disclosure when the settlement terms are first hammered out and agreed to by the parties or can agencies suppress settlement information until all the paperwork is signed, sealed and delivered?  This is an important question because weeks or sometimes months elapse between a lawsuit's parties' informal--yet binding--agreement to settle and the signing of a formal agreement by all parties.  During those weeks or months, many public agencies deny access to settlement agreements thus depriving the public of important settlement information.

The case law on this issue has so far has been mixed.  Judges in Essex, Hudson and Passaic Counties have ruled that agencies must disclose settlement agreements as soon as the settlement's essential terms have been agreed to and reduced to writing.  (William Paterson University, however, has appealed the Passaic County judge's ruling and that appeal remains pending.)  But, a judge in Mercer County has reached the opposite conclusion.

Today, an Appellate Division panel has come out on the side of early release.

On November 15, 2017, a two-judge Appellate Division panel issued an unpublished (and thus non-precedential) opinion holding that a release that settled a lawsuit was final and required to be disclosed to an Open Public Records Act (OPRA) requestor when "the terms of the settlement were agreed to between the attorneys for the respective parties" even though "the stipulations of dismissal were not filed and the settlement checks were not delivered until after" the parties' attorneys came to their agreement.  The panel also said that releases and settlement agreements that settle lawsuits are "contracts" which must be made "immediately available" in accordance with N.J.S.A. 47:1A-5(e).

The opinion reversed a Final Agency Decision of the Government Records Council (GRC).

Tuesday, November 14, 2017

Appellate Division: Local Finance Board lacked quorum to decide ethics matter.

In a November 14, 2017 unpublished (and thus non-precedential) opinion, a three-judge panel of the Appellate Division ruled that four members of the eight-member Local Finance Board (LFB) were not statutorily authorized to rule on a Local Government Ethics Law (LGEL) complaint against a Franklin Township (Somerset County) Fire Commissioner.

According to the opinion and a January 13, 2016 LFB decision, the Franklin Township Ethics Board ruled in 2011 that Fire District 1 Commissioner James Wickman violated the LGEL by voting "to settle a sexual harassment lawsuit filed [in 2009] against the Commissioners of Franklin Township Fire District No. 1 in which he was also an individually-named defendant."  The LFB reversed the Franklin Ethics Board's determination and vacated a $250 fine it had levied against Wickman.  The LFB found that "Wickman's limited involvement in the underlying sexual harassment litigation did not rise to the level of a direct or indirect financial or personal involvement that might reasonably be expected to impair his objectivity or independence of judgment [and] that Wickman did not use or attempt to use his official position to secure an unwarranted privilege or advantage for himself."

Jeff Carter, a Franklin Township resident and brother of the woman who filed the underlying sexual harassment lawsuit, appealed the LFB's decision to the Appellate Division.  The Appellate Division found that N.J.S.A. 40A:9-22.9 required that LFB decisions "shall be made by no less than two-thirds of all members of the [B]oard."  Accordingly, the panel ruled, "at least six of the Board's eight statutorily-commanded members had to participate in the decision it rendered in this case."  Since only four members were present to vote, the Appellate Division found that "the decision is void," vacated it and remanded the matter back to the LFB for further proceedings.

Saturday, November 11, 2017

Appellate Division: Courts are empowered to penalize government officials for knowing and willful OPRA violations.

There has been some confusion over the power of Superior Court judges to assess monetary penalties against records custodians and other government officials who knowingly, willfully and unreasonably violate the Open Public Records Act (OPRA)

The confusion stems from the Appellate Division's August 5, 2008, unpublished opinion in Hirsch v. City of Hoboken.  In that case, a three-judge panel held that the Superior Court lacks the authority to issue civil penalties against government officials because the court's "role under OPRA is not as broad as the role of the Government Records Council (GRC)."

On August 3, 2017, the Appellate Division issued a published opinion in North Jersey Media Group, Inc. v. Office of the Governor, 451 N.J. Super. 282 that rejected this limitation.  This precedential opinion states that both the Superior Court and the GRC are empowered to assess civil penalties against records custodians in appropriate cases.

Under N.J.S.A. 47:1A-11, "[a] public official, officer, employee or custodian who knowingly and willfully violates [OPRA} and is found to have unreasonably denied access under the totality of the circumstances, shall be subject to a civil penalty of $1,000 for an initial violation, $2,500 for a second violation that occurs within 10 years of an initial violation, and $5,000 for a third violation that occurs within 10 years of an initial violation."

Friday, November 10, 2017

Former Orange City Clerk ordered to pay $1,000 penalty for knowingly and willfully violating OPRA.

Update: In an earlier version of this post, I erroneously indicated that the former Clerk who was penalized served the City of East Orange rather than the City of Orange.  I regret this error.
In an October 31, 2017 order, the Government Records Council (GRC) ordered former Orange City (Essex County) Clerk Dwight Mitchell to "pay a civil penalty in the amount of one thousand dollars" for knowingly, willfully and unreasonably violating a woman's rights under the Open Public Records Act (OPRA). 

The penalty arose out of records denial complaint that Katalin Gordon filed with the GRC against the City.  In June 2013, Gordon requested disability insurance payments received by Clerk Mitchell between June 1, 2010 and June 25, 2013 and all sick days accumulated by him during the same period.  In a September 30, 2014 order, the GRC determined that even though the City's denial of Gordon's request was improper, it "did not rise to the level of a knowing and willful violation of OPRA" even though Mitchell had "failed to respond to the Complainant’s OPRA request in a timely manner, failed to provide a specific legal basis for denying the requested records, and failed to prove that the denial of access to the requested records was authorized by law."

Gordon appealed and a two-judge Appellate Division panel, in a June 23, 2017 unpublished opinion, found that there was "insufficient evidence in the record to support [the GRC's] finding that the City's denial of Gordon's OPRA request was not willful and deliberate."  The panel found that the City wrongly denied Gordon's request by claiming there was on-going and pending litigation with Mitchell.  When confronted with the fact that no such litigation existed, the court said that the City "unconvincingly" explained that it mistakenly characterized an investigation into Mitchell as litigation.  The court found that even if there was an investigation, the City offered nothing to prove that release of the records Gordon sought would be "inimical to the public interest."  After finding that the payroll records Gordon sought were clearly disclosable and after noting that the City made "meritless claims" that Gordon's OPRA request was "too broad" and that the information she sought was not maintained electronically, the two-judge panel reversed the GRC's September 30, 2014 order and remanded the matter to the GRC "for further proceedings regarding the imposition of appropriate penalties in accordance with OPRA."  The GRC's October 31, 2017 Order arose out of that remand.

Mitchell was given five days to pay the fine.

Tuesday, November 7, 2017

Who is T.S. and why is he or she suing the Monmouth County Prosecutor and seeking to have the lawsuit sealed by the court?

Monmouth County Prosecutor
Christopher J. Gramiccioni
Update 11/16/17: I spoke with Judge Thornton's law clerk today and learned that the hearing on sealing the record will be held on November 17, 2017 at 2:30 p.m. instead of 1:30 p.m. and that if a settlement conference being held in the judge's chambers at 1:30 p.m. results in settlement, the sealing motion will become moot and the records in the court's file that are not otherwise exempt will become open to the public.  I also learned that the plaintiff's name is Timothy Snyder and that he is an adult. According to the law clerk, Snyder initially filed using his initials T.S. but Judge Thornton disallowed the pleading and required Snyder to refile an amended pleading identifying him by his full name.  Unfortunately, the person who updates the court's on-line docket did not change the plaintiff's name in the public, on-line record.  That has been corrected and Timothy Snyder's full name now appears on the on-line docket.
Monmouth County Assignment Judge Lisa P. Thornton has permitted me to participate in a November 17, 2017, 1:30 p.m. hearing that will determine whether pleadings filed by an unidentified person in a civil case against Monmouth County Prosecutor Christopher J. Gramiccioni will be released to the public or sealed away from public view.

The lawsuit, which bears Docket No. MON-L-2856-16, was filed on August 4, 2016 by a person identified only by the initials "T.S."  I recently stumbled upon the case while randomly searching the New Jersey Superior Court's on-line docket (a horribly outdated and difficult to use system--click here for my article on how to best navigate it).  Intrigued, I had my non-profit submit an Open Public Records Act (OPRA) request for T.S.'s amended civil complaint but was informed by Jennifer Lipp, the Monmouth County Prosecutor's Office's records custodian, that because of her "duty to protect people’s privacy interests including medical, mental health, substance addiction, domestic violence, among other privacy interests," she would not release even a redacted copy of the lawsuit even though the Motion to Seal had not yet been decided. "Knowing there is a pending motion before the Assignment Judge could also be an ethical violation for me," she wrote in her October 31, 2017 e-mail.

I then submitted a records request under New Jersey Court Rule 1:38 (the courts are not subject to OPRA) for a copy of the amended complaint as well as the briefs and certifications filed in support of and in opposition to the Motion to Seal.  In subsequent conversations with Judge Thornton's law clerk I was told that I would not receive any of the requested documents unless and until the Motion to Seal was heard and denied.  But, I was invited to submit a written argument in opposition to the motion and to participate in hearing at which the motion will be heard.

My opposition brief was difficult to write because I have not been allowed to know the nature of the lawsuit or any of the factual allegations underlying it.  Nor have I been allowed to see T.S.'s arguments on why he or she believes that the lawsuit should be sealed.  All I know is that the case is of type "701--Prerogative Writs." Basically, I'm almost completely in the dark and will hopefully be given a few crumbs of information during the November 17th hearing.

The hearing will presumably be open to the public.  Anyone who wishes to observe should call Judge Thornton's chambers at 732-677-4100 the day prior to make sure that the hearing hasn't been cancelled or postponed.