KATHY MCGUIRE v. TOWNSHIP OF WATERFORD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3196-05T53196-05T5

KATHY MCGUIRE,

Plaintiff-Appellant,

v.

TOWNSHIP OF WATERFORD,

DONNA HEATON, VIRGINIA L.

CHANDLER, JOHN BEKISZ, and

JOSEPH FALLON,

Defendants-Respondents.

_________________________________

 

Argued December 19, 2006 - Decided February 28, 2007

Before Judges R. B. Coleman and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-7502-05.

Grayson Barber argued the cause for appellant (Grayson Barber and American Civil Liberties Union of New Jersey Foundation, attorneys; Ms. Barber, Jeanne LoCicero and Ed Barocas, on the joint brief).

James P. Savio argued the cause for respondents.

PER CURIAM

Plaintiff Kathy McGuire appeals from an order of the Law Division entered on January 20, 2006, granting summary judgment to defendant Township of Waterford and several of its officials. We affirm in part; reverse in part; and remand to the trial court for further proceedings consistent with this opinion.

Viewed most favorably for plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), the motion record reveals the following. Plaintiff is active in a small community of individuals concerned about the safety of animals. In the past, plaintiff's group has prompted a number of investigations and instigated law enforcement actions for animal cruelty against John Tomaski, a resident of the Township.

In early February 2005, plaintiff made an anonymous telephone request of defendant Virginia Chandler, the Township Clerk, concerning the number of dog licenses issued to John Tomaski. Chandler referred plaintiff to defendant, Donna Heaton, the Township Open Public Records Act (OPRA) Coordinator, who refused plaintiff's anonymous request and instructed plaintiff to submit a written OPRA request in person. On February 7, 2005, plaintiff appeared at the Township offices and completed a formal OPRA written request asking for the "number of dogs licensed in 2004 and 2005 - John Tomaski, 2352 Ellwood, Atco [part of Township]," but did not provide her name, address, or telephone number.

On February 17, 2005, plaintiff arrived at the Township offices and was provided with a response to the request, indicating that in the year 2004, no dog licenses were issued to Tomaski, and in 2005, seven licenses were issued to him in January, and one in February. Plaintiff left the Township offices and noticed a "green van" following her as she walked to her car. After entering the car and being followed for a short distance, plaintiff turned and followed the green van back to the Township offices. The Township employee operating the van had obtained her license plate number and provided the information to defendant John Bekisz, the Township's Chief of Police, who then ran plaintiff's license plate number through the State Police database and obtained her identity.

After learning that one or more of the Township employees had provided her name to John Tomaski and to the local branch of the Society for the Prevention and Cruelty to Animals (SPCA), misrepresenting that plaintiff had held herself out as an agent of the SPCA, plaintiff filed a complaint asserting causes of action under OPRA; Article 1, Paragraph 1 of the New Jersey Constitution; and the harassment statute, N.J.S.A. 2C:33-4, alleging that she suffered emotional distress. Plaintiff sought judgment: 1) declaring that OPRA "requires records custodians to respond to anonymous requests for government records;" 2) "[p]ermanently enjoining Waterford Township, its police department and other employees and agents, from subjecting [p]laintiff to further harassment as a result of her OPRA request;" 3) compensatory and punitive damages; and 4) counsel fees and costs.

On November 18, 2005, the Township moved for summary judgment, arguing that: 1) plaintiff's claim for damages was barred for failure to file a notice of tort claim, N.J.S.A. 59:8-3; 2) plaintiff failed to establish a prima facie claim for emotional distress; 3) OPRA does not provide a private cause of action for damages or injunctive relief; and 4) plaintiff failed to prove a violation of her constitutional rights. On January 20, 2006, the motion judge granted defendants' motion determining that plaintiff failed to establish a prima facie claim for emotional distress against a public entity and failed to file a notice of claim under the New Jersey Tort Claims Act. A confirming order was entered that day.

On appeal, plaintiff argues that the motion judge erroneously granted summary judgment for failure to file a notice of tort claim, N.J.S.A. 59:8-3, because her claims are not based on tort, but on violations of OPRA, the harassment statute and this State's Constitution. Plaintiff contends that the judge erroneously dismissed her claim for emotional distress for failure to prove that she received medical treatment contending that claims for emotional distress based on violations of state statutes and violations of constitutional rights "require a far less stringent standard of proof than that required for a tort-base emotional distress cause of action." Plaintiff asserts that the motion judge failed to address her claims for injunctive and declaratory relief, the primary remedies sought in her complaint.

A trial court will grant summary judgment to the moving party "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the 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); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). "An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c).

On appeal, "the propriety of the trial court's order is a legal, not a factual, question." Pressler, Current N.J. Court Rules, comment 3.2.1 on R. 2:10-2 (2006). "We employ the same standard that governs trial courts in reviewing summary judgment orders." Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). It is against these principles that we address the issues raised.

We first address plaintiff's contention that the motion judge erroneously dismissed her complaint without addressing her requests for a declaratory judgment and injunctive relief. We agree that the motion judge should not have dismissed the complaint without addressing the two claims. Normally, we would reverse and remand to the trial court to address the claims. However, we choose to exercise original jurisdiction, R. 2:10-5, and decide the matters because the issues were fully briefed by both parties. AAA Mid-Atlantic v. Prudential Ins., 336 N.J. Super. 71, 78 (App. Div. 2000) (resolving without remand where "the issue has been fully briefed, in the interest of conserving judicial resources and limiting expenses to the parties").

We determine plaintiff's request for an order declaring that OPRA requires custodians of government records to respond to anonymous requests for such records is moot because plaintiff did not join any other parties as defendants, and the Township and its employees responded timely to plaintiff's request.

We next address plaintiff's argument that the judge failed to address her claim for injunctive relief enjoining the Township and its employees from subjecting her to future acts of harassment. An "[i]njunction is an extraordinary remedy that should be used sparingly." Malhame v. Borough of Demarest, 162 N.J. Super. 248, 266 (Law Div. 1978), appeal dismissed, 174 N.J. Super. 28, 31 (App. Div. 1980). Its purpose is to prevent a continuing, irreparable injury. McCullough v. Hartpence, 141 N.J. Eq. 499, 502 (Ch. 1948). A party is not entitled to injunctive relief against some unspecified future action on the part of another party. Borough of Verona v. Cedar Grove Tp., 49 N.J. Super. 293, 295 (Law Div. 1958). Therefore, the mere possibility of a remote future injury is not enough.

Here, any acts of harassment caused by defendants occurred in mid-February 2005. Although the motion for summary judgment was not heard until January 20, 2006, ten months' hence, no other allegations of harassment were presented to the trial court. Any concern of future acts of harassment by defendants is not supported by the evidence. Such concern is speculative at best. Because an injunction will not be granted to prevent a past act of conduct, or some possible unspecified future action of another, plaintiff is not entitled to an injunction as a matter of law. Of course, if acts of harassment were to occur in the future, plaintiff may file a new complaint.

We next address plaintiff's argument that the motion judge erred in dismissing her claim for damages under the New Jersey Tort Claims Act. This contention has merit in part.

At the time of oral argument, plaintiff conceded that OPRA does not provide a private cause of action for damages. Accordingly, we address plaintiff's claim for damages under the harassment statute, N.J.S.A. 2C:33-4 and Article I, Paragraph 1 of the New Jersey Constitution.

Plaintiff claims emotional distress based on a violation of the harassment statute. In support of her claim, plaintiff cites Paternoster v. Shuster, 296 N.J. Super. 544, 560 (App. Div. 1997), as recognizing an implicit private cause of action for damages under the harassment statute. In Paternoster, plaintiff, a school principal, filed a complaint against defendant who had formerly been employed as the school nurse in a public school where plaintiff had been principal, seeking temporary restraints enjoining defendant from harassing him, and others, together with damages. Defendant counterclaimed seeking damages and an injunction enjoining plaintiff from contacting her in the future. Id. at 558. On motion, the trial court permitted plaintiff to dismiss his damage claim and granted plaintiff's request for a permanent injunction. Id. at 554-55. The trial court also dismissed the counterclaim for failure to state a cause of action. Id. at 555.

In reversing and remanding the matter to the trial court, we concluded that the trial court erroneously dismissed plaintiff's counterclaim stating that "[i]t seems clear that defendant's counterclaim did allege a cause of action for harassment . . . ." Id. at 560. It is on this part of the opinion that plaintiff relies for support of her contention that she is entitled to pursue a cause of action for damages based on the harassment statute.

Although Paternoster implicitly recognizes a cause of action for harassment, the court "did not decide whether a cause of action for harassment gives rise to a claim of damages, as opposed to a claim for injunctive relief, and under what circumstances, if any, a claim for damages should go to the jury for its consideration." Aly v. Garcia, 333 N.J. Super. 195, 203 (App. Div. 2000), certif. denied, 167 N.J. 87 (2001). In Aly, plaintiffs filed a complaint against defendant alleging sexual harassment, negligence, intentional infliction of emotional distress, and assault. Id. at 201. The trial court submitted the case to the jury solely on the theory of harassment under N.J.S.A. 2C:33-4. Ibid. A verdict was returned for the plaintiffs. On appeal, defendant argued that the harassment statute does not provide a private cause of action for damages. In deciding to "leave for another day the decision as to whether N.J.S.A. 2C:33-4 creates a civil cause of action," id. at 203, we reversed on a basis different from that argued by defendant. Determining that plaintiffs' "only claim for damages related to their emotional distress, we consider[ed] their claim akin to one for the intentional infliction of emotional distress." Id. at 203-04. In concluding that the plaintiffs had failed to meet the threshold for an emotional distress claim under Buckley v. Trenton Sav. Fund Soc'y, 111 N.J. 355 (1988), we stated:

[W]e conclude that under the facts here presented the evidence was insufficient to submit plaintiffs' claims for infliction of emotional distress to the jury. Neither plaintiff sought medical assistance. Nor did plaintiffs seek counseling of any kind. Although plaintiffs were understandably upset, there was no evidence from which a jury could conclude that they suffered distress so severe that a reasonable person could not be expected to endure. Nor was there any evidence introduced from which a jury could conclude that they suffered emotional distress sufficiently substantial to result in physical illness, or a mental condition of a type which may be generally recognized and diagnosed by clinicians.

[Id. at 205].

Like in Aly, we need not decide the issue as to whether N.J.S.A. 2C:33-4 provides a private cause of action for damages because we are satisfied that, as a matter of law, plaintiff failed to establish a claim for intentional infliction of emotional distress.

"To recover on a claim for either intentional or negligent infliction of emotional distress, plaintiff is required to show, among other things, that [she] has suffered emotional distress '"so severe that no reasonable [person] could be expected to endure it."'" Schillaci v. First Fidelity Bank, 311 N.J. Super. 396, 406 (App. Div. 1998) (quoting Buckley, supra, 111 N.J. at 366-67 (quoting Restatement (Second) of Torts, 46 comment j (1965))). "Severe emotional distress refers to any type of severe and disabling emotional or mental condition which may be generally recognized and diagnosed by professionals trained to do so." Aly, supra, 333 N.J. Super. at 204. "It is not enough to establish that a party is acutely upset by reason of the incident." Ibid. "The severity of the emotional distress raises questions of both law and fact. Thus, the court decides whether as a matter of law such emotional distress can be found, and the jury decides whether it has in fact been proved." Buckley, supra, 111 N.J. at 367.

We are satisfied that plaintiff failed to present a prima facie showing that she suffered "severe" emotional distress. Accordingly, the grant of summary judgment on that claim was correct.

Lastly, we address plaintiff's constitutional claim. Plaintiff argues that Article I, Paragraph 1 of the New Jersey Constitution cloaks her with "the right to be free from harassment by state actors, and from disclosure of state-created private information." Plaintiff contends that our courts have "recognized a privacy interest that is implicated when a state actor discloses information about individual citizens," citing Doe v. Poritz, 142 N.J. 1, 87 (1985). Plaintiff asserts that "[b]y specifically providing that OPRA requests can be made anonymously, the Legislature created a cognizable and constitutionally protectable privacy interest." Plaintiff further contends that the trial court erred in dismissing her constitutional claim for failure to file a notice of claim under the New Jersey Tort Claims Act. We agree.

A plaintiff may bring a private cause of action for damages when his or her constitutional rights have been violated. N.J.S.A. 10:6-2c. The statute reads in pertinent part:

Any person who has been deprived of any substantive due process or equal protection of rights, privileges or immunities secured . . . by the Constitution or laws of this State, or whose exercise or enjoyment of those substantive rights, privileges, or immunities has been interfered with or attempted to be interfered with, by threats, intimidation, or coercion by a person acting under the color of law, may bring a civil action for damages . . . .

[N.J.S.A. 10:6-2c].

If a plaintiff prevails on a civil rights claim, the court may award the plaintiff reasonable attorney's fees and costs. N.J.S.A. 10:6-2f. Also, unlike the tort of intentional infliction of emotional distress, a plaintiff who prevails on a claim for violation of his or her civil rights under the New Jersey Constitution may recover consequential damages for emotional distress under "a far less stringent standard of proof than that required for a tort-based emotional distress cause of action." Tarr v. Ciasulli, 181 N.J. 70, 82 (2004) (holding that in discrimination cases under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -49, a plaintiff may recover all natural consequences of that wrongful conduct, including emotional distress, under a less stringent standard than Buckley). Stated another way, "[t]he Court has distinguished a cause of action in tort . . . seeking consequential damages for emotional distress from a cause of action alleging intentional infliction of emotional distress, holding that only the latter requires a heightened showing of emotional distress." Menorah Chapels v. Needle, 386 N.J. Super. 100, 116 (App. Div.), certif. denied, 188 N.J. 489 (2006). We are satisfied that the same principle of Tarr may be applied in a civil rights action for violation of one's constitutional rights.

The New Jersey Tort Claims Act does not apply to constitutional violations or civil rights violations. See Fuchilla v. Layman, 109 N.J. 319, 332-38 (1988) (holding that the Tort Claims Act does not provide immunity for claims brought under the New Jersey Law Against Discrimination), sub nom University of Medicine & Dentistry v. Fuchilla, 488 U.S. 826, 109 S. Ct. 75, 102 L. Ed. 2d 51 (1988). See also Lloyd v. Stone Harbor, 179 N.J. Super. 496, 517 (Ch. Div. 1981) (holding that the Tort Claims Act does not bar claims for civil rights under the New Jersey Constitution). Therefore, plaintiff's claim for damages based on a violation of Article I, Paragraph 1 of the State's Constitution should not have been dismissed. We remand the claim back to the trial court for the parties to address after completion of discovery. Although we agree with plaintiff's argument that OPRA implicitly provides that individuals may request government records anonymously, N.J.S.A. 47:1A-5f and -5i, we do not pass judgment as to whether the right to anonymity under OPRA supports plaintiff's constitutional claim.

The dismissal of plaintiff's claim for damages under OPRA and N.J.S.A. 2C:33-4 is affirmed; plaintiff's claims for a declaratory judgment and injunctive relief are denied; the grant of summary judgment dismissing plaintiff's claim for damages, attorney's fees and costs under the New Jersey Constitution is reversed and remanded to the trial court for further proceedings consistent with this opinion.

 

The Open Public Records Act, N.J.S.A. 47:1A-1 to -13.

On information and belief, plaintiff alleges in Paragraph 15 of her complaint that this employee was defendant Joseph Fallon, Zoning Supervisor of the Township. Because defendants moved for summary judgment shortly after filing of the complaint, plaintiff's suspicions as to the identity of the employee had not been confirmed because discovery had not been completed.

N.J.S.A. 59:1-1 to 12-3.

(continued)

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A-3196-05T5

 

February 28, 2007