Township Council Meeting — Agenda

MON L 002616-17 05/13/2019 Pg 4 of 11 Trans ID: LCV2019843985 II. The relevant facts are undisputed. On August 1, 2018, this court granted access to the internal affairs records of Philip Seidle, a former police officer, who murdered his ex-wife while he was employed by the Neptune Township Police Department. Not only was Mr. Seidle employed as an officer when he committed this horrific crime in broad daylight and in front of his young daughter, he committed the crime using his work issued service weapon. -9. , imprimatur IAPP ), which provide internal affairs records with the cloak of confidentiality. However, after reviewing over 600 pages of records in camera, and considering the factors articulated by the Court in Loigman v. Kimmelman, 102 N.J. 98, 113 (1986), in access outweighed the public interest in confidentiality to these records. The court sua sponte took judicial notice of the June 30, 2016 report issued by the Monmouth OFFICE INTERNAL REVIEW OF LAW ENFORCEMENT RESPONSE TO THE KILLING OF The report, dated June 30, 2016, received significant media coverage. The court reasoned that the interest in confidentiality of the Seidle records was far less compelling, because the Prosecutor already waived confidentiality when he disclosed details opinion reveals, the Prosecutor disclosed details of eight domestic violence incidents that occurred over the course of two decades. He also revealed that Mr. Seidle had psychotherapy and was referred for several fitness for duty evaluations. Finally, he disclosed that over the course of twenty years, 2 Pa034

MON L 002616-17 05/13/2019 Pg 5 of 11 Trans ID: LCV2019843985 twenty-one calls were made to the Neptune Township Police Department by Philip and Tamara Seidle, and their children. The MCPO declined to intervene in this matter, but the court can only assume that with the knowledge and consent of the Attorney General, the Prosecutor concluded that that favor confidentiality. In addition to the report issued by the MCPO, the court noted that Philip Seidle waived any compelling interests in privacy when he provided information included in his file to plaintiff. This information, including details of his medical treatment and disciplinary record, was used in an article published by plaintiff. III. In support of the motion, defendant claims the court failed to apply the waiver standard to file to the public. Defendant also claims the mon law without argumentation or analysis was i Lastly, defendant claims the Custodian of Records acted reasonably in denying the request, even though he failed to address the claim for common law right of access. The amici curiae d on general policy considerations outlined in a law review article. They also express concern that disclosure of Philip now In opposition, plaintiff asserts a contention that the court failed to afford proper deference to t [o]ne 3 Pa035

MON L 002616-17 05/13/2019 Pg 6 of 11 Trans ID: LCV2019843985 seeking access to Internal Affairs Records bears a heavy burden to establish that its interest in disclosure outweighs the compelling policy reasons that militate in favor of confidentiality. More importantly, plaintiff notes that neither amici nor defendant provide any analysis regarding the specific records at issue, and simply offer broad and general policy considerations to support their arguments for confidentiality. IV. A motion to reconsider , considered on the first application Cummings v. Bahr, 295 N.J. Super. 374, 382-83 (App. Div. 1996). In addition, reconsideration should be used sparingly and D Atria v. , 242 N.J. Super. 392, 403 (Ch. Div. 1990). with specificity the basis on which it is made, including a statement of the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred Cummings, 295 N.J. Super. at 382 (citing R. 4:49-2). A prevailing party who challenges a denial of access under the common law, and can establish uction of the requested records, may be entitled to ees. Mason v. City of Hoboken, 196 N.J. 51, 79 (2008); see also Stop & Shop Supermarkets Co., LLC v. Cty. of Bergen, 450 N.J. Super. 286, 292 (2017) (citing Mason, 196 N.J. at 79, and holding that ants must make the same showing as a prevailing party under OPRA to recover fees.) This approach differs from the under which a prevailing party cannot recover Mason, 196 N.J. at 71 (citing Rendine v. Pantzer, 141 N.J. 292 (1995)). 4 Pa036

MON L 002616-17 05/13/2019 Pg 7 of 11 Trans ID: LCV2019843985 reasonable hourly rate. Garmeaux v. DNV Concepts, Inc., 448 N.J. Super. 148, 159 (App. Div. 2016) (quoting Litton Indus., Inc. v. IMO Indus., Inc. lodestar, the trial court must first determine the reasonableness of the hourly rates charged by the Id. (quoting Rendine, 141 N.J. at 337). trial court must then determine the reasonableness of the Id. at 159-60 (citing Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 22 (2004)). hours the prevailing attorney devoted to any part of a case are excessive ul Id. at 160 (quoting Furst, 182 N.J. at 22-23). V. disclose information without merit. Defendant offers no authority or decisions that details the authority of the Prosecutor, as the chief law enforcement officer in Monmouth County, to disclose the records in question. Even counsel for the Monmouth County Chiefs of Police Association, a former First Assistant County Prosecutor himself, acknowledged that the Prosecutor had the authority to disclose the information. Any suggestion that the court failed to consider the policy reasons that favor confidentiality, is more indicative of defendant and attempt to reargue an issue already decided, than it is of their proper use of a motion for reconsideration. Both defendant and amici fail to apply the balancing test with reference to the specific records at issue and instead offer broad policy interests that support confidentiality. 5 Pa037

MON L 002616-17 05/13/2019 Pg 8 of 11 Trans ID: LCV2019843985 Finally, defendant claims that the court erred on the issue of counsel fees, and reported Appellate Division (or even lower court) decision has been cited by either party which would permit this Court to depart from the American Rule, and award counsel fees under the common law, a Counsel further argues goes so far a few sentences at the end of its opinion in order to avoid t of the Aside from being simply wrong on the law, the substance and tone Apparently Stop & Shop that cited Mason, and concluded may be entitled to counsel fees under the common law if records are disclosed after the entry of a court order granting access. Stop & Shop, 450 N.J. Super. at 292. VI. affidavit of services and the parties briefed the issue of counsel fees. There is no question that the rates charged by Mr. Cafferty and the associates in his firm are reasonable.1 Gibbons, P.C. is one of the most distinguished law firms in New Jersey and Mr. and public access law is beyond reproach. As his letter brief reveals, he has been counsel of record in nearly one hundred reported cases, thirty-five before the New Jersey Supreme Court. He served on various Supreme Court Committees and has helped shaped policy with statewide significance. He also provides proof that C.J. Griffin, a partner with Pashman, Stein, Walder and Hayden, charges $515 per hour. The court 1 Those hourly rates are: $524 for Mr. Cafferty; $396 for Ms. Lowy; $340 for Ms. James-Weir; $325 for Ms. Howells; $310 for Ms. Ball; $220 for Ms. Hayter, and $210 for Ms. Taylor. 6 Pa038

MON L 002616-17 05/13/2019 Pg 9 of 11 Trans ID: LCV2019843985 notes that Mr. Cafferty was admitted to practice law in 1972 and Ms. Griffin has been practicing law since only 2009. Defendant of $325 for Charlotte Howells, who has been practicing law for some 5 years, is as high as the highest hourly rate ever awarded by a New Jersey Court to experienced OPRA attorneys in a New Jersey case that Defendants [sic] were able to find. This assertion is puzzling, considering bot brief and attachments reveal Mr. Cafferty was awarded $425 an hour in a Somerset County matter nearly a decade ago. 2 Defendant also asks the court to consider the hourly rates, between $265 and $315, awarded to Walter Leurs. There is no question that Mr. Leurs, who has appeared before this court, is professional, competent, and well versed in the intricacies of OPRA and the common law right of access. However, like Ms. Griffin, he is not nearly as experienced as Mr. Cafferty. Regarding the number of hours expended, defense counsel submitted two briefs that total nearly twenty pages. U submissions lack any analysis regarding how many hours should have been performed on a particular task. However, a careful review by this court reveals that the total number of hours was excessive. As noted previously, Mr. Cafferty is one of the most experienced First Amendment lawyers in New Jersey. Likewise, his associates have worked with him in this specialized area of law for years. Consequently, one would expect that they would be able to complete a task in fewer hours than counsel who are relatively unfamiliar with this area of law. be grouped into several areas: 1) preparation of the complaint; 2) pla opposition and motion to dismiss; 3) the 2Gannett Satellite Information Network, Inc. d/b/a/ Gannett New Jersey Newspapers/Courier- News v. Borough of Raritan, Civil Action No. SOM-L-1798-09. 7 Pa039

MON L 002616-17 05/13/2019 Pg 10 of 11 Trans ID: LCV2019843985 based motion to seal, and motion for reconsideration. 3 The number of hours billed motion to dismiss are reasonable. One hundred one (101) hours were originally billed for these tasks, and counsel seeks an award of less than half of that amount. Gibbons P.C. billed nineteen (19) hours to review and finalize a consent order to release privileged information to Mr. Cohen. The Court notes that these fees were incurred because Mr. Cohen insisted on reviewing the letter suggested that his review of the letter was necessary to confirm that the APP accurately reported what they were told by Mr. Seidle. This request appeared to be unreasonable because there was never a suggestion that the article was inaccurate. However, nineteen (19) hours to draft and/or review the consent order appears excessive and the court will reduce the hours billed for Ms. Lowy by seven (7). Over seventy-five (75) hours were billed to brief the waiver issue. The court notes that the APP reported on the MCPO report in June of 2016 and it is unclear why plaintiff failed to address the issue of waiver in the original briefs. The legal bills submitted by plaintiff indicate the lawyers had the APP and it would ould have addressed this issue when he initially consulted with counsel. The court finds that the number of hours billed to address waiver is excessive. This work could have been easily performed in approximately forty-six (46) hours total, thirty-two (32) for Ms. Lowy and thirteen and four-fifths (13.8) for Mr. Cafferty. 3 that when a task included work on both the common law and OPRA, plaintiff seeks fees for only 1/3 of the total amount charged. In addition, counsel explains [an] entry did not relate to the common law issues, [it] balance was reflected for each such entry in the right- time entry was requested 8 Pa040

MON L 002616-17 05/13/2019 Pg 11 of 11 Trans ID: LCV2019843985 Fifty-four (54) hours were billed rely on Mr. Se brief on the issue of waiver. The letter was not probative to waste countless hours to address a motion that was not relevant to the ultimate issues before the court. However, the number of hours billed for this task amounts to nearly seven full days of work. Twenty- one (21) hours for Ms. Lowy, and eight and one-tenth (8.1) hours for Mr. Cafferty should have been plenty of time to complete this task. Finally, over one hundred and twenty (120) hours were billed to complete the motion for reconsideration. The court acknowledges that this motion, like the motion to seal, was improvidently filed. However, the equivalent of three weeks to address this motion is excessive for an experienced group of attorneys. The court is confident that this task could have been accomplished in forty (40) hours by Ms. Lowy and twenty-five (25) hours by Mr. Cafferty. 4 For these reason fees are awarded in the amount of $85,665.13, and costs of $472.99. VII. For the above stated reasons, motion for reconsideration is denied. 4 Defendant complain motions that caused plaintiff to incur fees. The motion for reconsideration was simply a poor attempt to re-argue issues that were already decided, after affording the parties liberal opportunities decision, but the motion for reconsideration caused plaintiff to incur a significant amount of fees. The work performed on this motion amounts to nearly half of the fees awarded. 9 Pa041

MRS L 000300-20 05/22/2020 Pg 1 of 16 Trans ID: LCV2020932426 PREPARED BY THE COURT: ______________________________ : SUPERIOR COURT OF NEW JERSEY KELLY MONTES, : LAW DIVISION - CIVIL PART : MORRIS COUNTY Plaintiff, : : Docket No. MRS-L-300-20 : : Civil Action v. : : : : TOWN OF MORRISTOWN and : MARGOT KAYE, in her Official : Capacity as Records Custodian : ORDER for the Town of Morristown, : : Defendants. : ______________________________: THIS MATTER, having having been filed by Defendants, Town of Morristown and Margot Kaye, in her Official Capacity as Records Custodian for the Town of Morristown, through their attorney, Vijayant Pawar, Esq.; and the Court having considered all submissions; and for good cause shown; and for the reasons set forth in the accompanying Statement of Reasons; IT IS, on this _22nd____ day of May, 2020; ORDERED, granted, in part; and it is further 1 Pa042

MRS L 000300-20 05/22/2020 Pg 2 of 16 Trans ID: LCV2020932426 ORDERED amount of $6,000.90. _____________________________________ HON. STUART A. MINKOWITZ, A.J.S.C. Opposed The Court has served a copy of this Order and the accompanying Statement of Reasons on all parties via eCourts. 2 Pa043