MARTIN O'SHEA v. WEST MILFORD TOWNSHIP PLANNING BOARD, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. 2534-05-T3A-2534-05T3

MARTIN O'SHEA,

Plaintiff-Appellant,

v.

WEST MILFORD TOWNSHIP

PLANNING BOARD, BOARD OF

EDUCATION OF WEST MILFORD

TOWNSHIP, WEST MILFORD TOWNSHIP

COUNCIL, BRYANT GONZALEZ

and KEVIN J. BYRNES,

Defendants-Respondents.

_____________________________________________________

 

Submitted December 6, 2006 - Decided

Before Judges Stern and Lyons.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-3330-04.

Martin O'Shea, appellant pro se.

Weiner Lesniak, attorneys for respondent West Milford Township Planning Board

(Ronald D. Cucchiaro, on the brief).

PER CURIAM

Plaintiff, Martin O'Shea, sued the West Milford Township Planning Board (the Board), the West Milford Township Board of Education, the West Milford Township Council, Bryant Gonzalez and Kevin J. Byrnes for violating the Open Public Meetings Act, N.J.S.A. 47:1A, et seq., the Open Public Records Act, N.J.S.A. 10:46, et seq., and the common law, seeking declaratory and injunctive relief and costs. Plaintiff settled with all defendants except the Board. Plaintiff and the Board cross-moved for summary judgment and the trial court dismissed plaintiff's complaint without costs and ordered the Board's counsel to supply its members with a copy of the trial court's opinion, as well as to provide a copy to plaintiff. Plaintiff, citing various allegations of error by the trial court, appeals. We affirm.

On November 3, 2005, plaintiff moved for summary judgment against the Board. The Board filed a cross-motion for summary judgment on November 22, 2005. On December 2, 2005, the trial court entered an order dismissing plaintiff's complaint without costs.

Plaintiff initiated this lawsuit in reaction to several closed Board sessions which occurred on March 24, 2004, May 26, 2004, and July 7, 2004. The Board closed these sessions to the public pursuant to N.J.S.A. 10:4-12b(7), because the sessions were dedicated to discussing pending litigation. Resolutions, released to the public before the closed sessions, announced that the sessions would be closed because of pending litigation, and the information discussed in the sessions would be "disclosed to the public . . . as soon as practicable after final resolution of the aforesaid matters."

On July 4, 2004, the Board published a legal notice announcing that an executive session would be held with the Town Council on July 7, 2004, at 7:30 p.m. in the main meeting room of the Town Hall for the sole purpose of discussing pending litigation involving the Board as well as the Town Council.

On July 9, 2004, plaintiff submitted a records request to the Board, seeking among other things, the resolution authorizing the July 7 closed session and the minutes of the July 7 session to be redacted only if necessary, and at a minimum, disclosing which Board members were present at the meeting. Plaintiff also requested the minutes of the meetings held on March 24, 2004 and May 26, 2004, redacted only to the minimum extent necessary. The Board's attorney responded to plaintiff's inquiry on July 16, 2004 in a letter explaining that because the closed sessions that plaintiff inquired about were all held for the purpose of discussing pending litigation, the Board would not release any of the minutes of those meetings, as the contents of the sessions were protected by the attorney-client privilege. The letter further explained that once a resolution had been reached regarding the pending litigation, the Board would release the details of the closed session to the plaintiff. No details of any of the three closed sessions that plaintiff inquired about were supplied to the plaintiff with his letter. Plaintiff then filed his complaint on August 3, 2004.

On October 7, 2004, defendant adopted a resolution stating that the purpose of the July 7, 2004 joint executive session was to discuss litigation which was underway between the Board and Apple Valley Estates, captioned Apple Valley Estates v. Twp. of West Milford, Docket No. PAS-L-385-04.

On February 28, 2005, the claims initiated against the Board by Apple Valley were dismissed. A Board meeting was scheduled for March 23, 2005, but the Board was unable to authorize the release of the July 7th minutes at that time because the Board meeting was cancelled and rescheduled for April 7, 2005. At that time, the Board voted to release the minutes. On April 15, 2005, the Board provided plaintiff with full, unredacted minutes of the three closed sessions which plaintiff had requested.

The trial court entered an order following oral argument on December 2, 2005 dismissing plaintiff's complaint. The trial judge's oral decision found that the case was moot in that the relief plaintiff sought, the unredacted minutes of the closed sessions, were produced in April 2005. With respect to the plaintiff's request for an injunction going forward requiring the Board to state its reasons for going into closed session with greater precision and to promptly release to the public at least redacted versions of its closed session minutes, the court stated it would be impermissible to give an advisory opinion with respect to future actions of the Board and that an injunction, given the facts and circumstances of this case, would be too harsh to impose. The court did, however, after reviewing the relevant law with respect to open public meetings, direct counsel for the Board to obtain a copy of the transcript of the court's opinion and provide it to members of the Board, the Mayor, the Council, and the clerk of the Board, for review and future guidance.

On appeal, plaintiff presents the following arguments for our consideration:

POINT I: THE COURT BELOW ERRED BY NOT REQUIRING THE PLANNING BOARD, GOING FORWARD, TO STATE ITS REASONS FOR GOING INTO CLOSED SESSIONS WITH GREATER PRECISION.

POINT II: THE COURT BELOW ERRED BY NOT COMPELLING THE PLANNING BOARD, GOING FORWARD, TO PROMPTLY RELEASE TO THE PUBLIC, AT LEAST REDACTED VERSIONS OF ITS CLOSED SESSION MEETINGS.

POINT III: THE COURT BELOW ERRED BY FAILING TO ENFORCE THE OPEN PUBLIC MEETINGS ACT REGARDING THE PLANNING BOARD'S ALLEGED JULY 7, 2004 PUBLIC MEETING.

Summary judgment must be granted if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). On appeal, this court must first examine whether there was a genuine issue of material fact. If it finds there was none, the court must then decide whether the lower court's ruling on the law was correct. Prudential Prop. Ins. v. Boylan, 307 N.J. Super. 162, 167 (App. Div. 1998). While the record is somewhat confusing with respect to the July 7 meeting, the material facts are not controverted and summary judgment was appropriate.

A case is moot when the issue which was the subject of the initial litigation has been resolved, at least as it relates to the original parties who were responsible for initiating the litigation. De Vesa v. Dorsey, 134 N.J. 420, 428, (1993). New Jersey courts will generally not entertain a case when the issue has become moot. Ibid. However, a court may "rule on such matters where they are of substantial importance and capable of repetition, yet evade review." Mistrick v. Div. of Med. Assistance & Health Servs., 154 N.J. 158, 165 (1998).

We agree with Judge Humphrey's finding, that, because plaintiff received the unredacted minutes of the closed Board meeting sessions by the time of oral argument, plaintiff's major complaint was satisfied and required no further legal proceedings. The issues which prompted the complaint, that is, the information contained in the minutes, had been delivered. What the plaintiff argues though is that the court erred in finding that the issues in the complaint were moot because injunctive relief by its nature is designed to affect future conduct, and it is the plaintiff's position that an injunction is appropriate to bar the Board from withholding specific information in the future. The trial court's concern was that it would be providing an advisory opinion in the form of an injunction if it were to direct the Board in the future to state with greater precision its reasons for going into closed sessions and that an injunction was too harsh a remedy.

The statute at issue, N.J.S.A. 10:4-13(a), requires only that the "general nature" of the subject to be discussed be set forth in the notice of the closed session. As one court has stated, "the statutory requirement is not an onerous one - only the general nature of subject need be disclosed; specificity is not required." N.J. State Coll. Locals v. Trenton State Coll. Bd., 284 N.J. Super. 108, 114 (Law Div. 1995).

"An injunction is an extraordinary equitable remedy utilized primarily to forbid and prevent irreparable injury. It must be administered with sound discretion and always upon considerations of justice, equity, and morality involved in a given case." N.J. State Bar Ass'n v. Northern N.J. Mortgage Assoc., 22 N.J. 184, 194 (1956). Injunctions only issue "if there is a showing that the defendant has violated or imminently will violate, some provision of statutory or common law, and that there is cognizable danger of recurrent violation." Options v. Lawson, 287 N.J. Super. 209 (App. Div. 1996).

The use of such an extraordinary remedy requiring specific future action with respect to factual situations that will vary over time is problematic. It is certainly more appropriate for the Legislature to specifically change the statute if established, unbending specificity is to be required. In situations such as those presented by this case, a fact sensitive, case-by-case analysis is more appropriate. Hence, we agree with the trial court's approach.

With respect to the plaintiff's second point of appeal, the trial court appropriately did not issue an injunction requiring the release of redacted versions of its closed session meetings in a factual vacuum. N.J.S.A. 10:4-14 requires that minutes be "promptly available to the public to the extent that making such matters public shall not be inconsistent with" N.J.S.A. 10:4-12. Our Supreme Court in Payton v. N.J. Tpk. Auth., noted that N.J.S.A. 10:4-12b(7) relating to pending litigation and material covered by the attorney-client privilege would permit the minutes to be appropriately suppressed or redacted in a given case. 148 N.J. 524, 558 (1997). That certainly implies that a case-by-case analysis is required in analyzing whether there was appropriate compliance with N.J.S.A. 10:4-14. The trial court found that an injunction requiring future action in a factual vacuum would not be an appropriate exercise of the court's discretion. We agree.

With regard to the third point, plaintiff argues that the troublesome record with respect to the July 7, 2004 Board meeting would mandate the trial judge granting prospective injunctive relief. The record indicates that on July 4, 2004, a notice was published informing the public of a joint executive sessions meeting on July 7, 2004 between the Board and the Township Council to discuss matters of pending litigation. There are serious questions about whether the Board adopted a resolution as required by N.J.S.A. 10:4-13 prior to the July 7, 2004 closed session. However, without conceding the point, the Board acted de novo on October 7, 2004, pursuant to N.J.S.A. 10:4-15(a), to remedy any infirmity with the tendered July 7th resolution. The defendant therefore argues that there was no violation of the Open Public Meetings Act and that even if there had been a violation, no remedies are called for since no action was taken by the Board at the meeting. The record does not disclose that any action was taken during the July closed session. Hence, there was no need for the trial court to void an act of the Board under N.J.S.A. 10:4-15(a). N.J.S.A. 10:4-16 permits a member of the public to apply for an injunction to insure compliance with the Open Public Meetings Act, but it also empowers the court to provide other relief as it seems necessary. The statute contemplates "maximum flexibility in rectifying governmental action which falls short of the standards of openness prescribed." Polillo v. Deane, 74 N.J. 562, 579 (1997). The court may examine the nature, quality and effect of any noncompliance, as well as any substantial compliance found in the record in fashioning a corrective measure. Ibid. While the court may, in appropriate circumstances, issue a remedial injunction which is prospective in operation, the issuance of any such injunction is discretionary with the court. Loigman v. Twp. Comm. of Middletown, 308 N.J. Super. 500, 503 (App. Div. 1998). The trial judge's choice not to issue an injunction reflects his weighing the factors set forth above and does not evidence any abuse of discretion.

Since the trial court found that the case was moot and that there was no need for an injunction, the plaintiff's claim that he was the "prevailing party" is without merit.

For the reasons set forth above, Judge Humphrey's December 2, 2005 order is affirmed.

 

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A-2534-05T3

December 20, 2006