SUPERIOR COURT OF NEW JERSEY

Transcription

1 MAT STERN, SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION PLAINTIFFS -VS- LAKEWOOD VOLUNTEER FIRE DEPARTMENT, INC et als, DEFENDANTS DOCKET NO: A T2 CIVIL ACTION ON APPEAL FROM THE SUPERIOR COURT OF NEW JERSEY, LAW DIVISION OCEAN COUNTY Docket No: OCN-L BRIEF FOR APPELLANT/DEFENDANT-LAKEWOOD VOLUNTEER FIRE DEPARTMENT, INC et als PA LIV & RIHACEK, LLC 3536 Hwy 9 S, Suite 305 FloWell, New Jersey (732) fax (732) Attorneys for Appellant/Defendant Lakewood Volunteer Fire Department, Inc et lals John Thaddeus Rihacek, Esq on the Brief

2 TABLE OF CO TNTS Section of Brief 1 Table of ContenS. Table of Citations Index to Appe00.x, Procedural His -4Dry Statement of.fact S. Page a b C 7 LEGAL POINT THE TRIAL CC THAT DEFEND VOLUNTEERS SUBJECT TO URT FRED A NT LAEWOOD RE CONTROLL ()PRA. TO ITS FIRE ED ENTIT RULING 14 LEGAL POINT II THE SLIPPOY SLO FUNCTION TEST E OF HE GOVE NMENT 19 A Practil..Test Appl cation o Review 22 Plaintiff 'Request for Counse Fees 23 CONCLUSION 23 -a-

3 TABLE OE CITATIONS Cases Page Fair Share Housing Ctr Inc v' NJ Stat e Legaue Municipalities, 207 NJ ) Fran Brooks v Tabernacle Rescue Squad, A T1 (Exhibit EE, Da401!! Paff v NJ State 431 NJ Super 1rema, s 1 (AD 201 -b-

4 Exhibit Letters INDEX TO APPENDIX 1 tion Page Numbers Appendix A B. C D E F. Ma Le :Stern OPRA d?mand ers L ewood ire 'Volunteer response... Pl Miff s Order to Show Ca.use, Verified CO plait& CIS; arid letter brief Pl intiff s service df signed Order to Show Ca Se on hire companies Plaintiff's Amended Order to S ow Cause... PI intiff's Order to Show Caus and Notice To Defendants ' Dal Day Dab Da33 Da34 Da3 8 G. PI intiff's Notice Of Change of Order to ShOW Cause return date H. Pl s emind ler to Defendants' Al out Order to Show Cause return date 1 I. PI intiff's filing with Clerk of roof of ice of Order to Show Caus 3. Si ned copy of Order to Show ause dated 11/5/14 K. Defendants' Motion for Recon ideration, Certification, Proposed form o Order, and Proi)osed Answer L. Pl intiff s Motion for Counsel Fees Da40 Da41 Da43 Da47 Da49 Da76

5 Exhibit Letters Appendix II Descri tion INDEX TO APPENDIX Page Numbers M. Plaintiff's Letter Brief and Certification wi Loigm an Certification in 6 ositioni [ to Defendant's Motion for Re onside 1. iation Da164 N. Defendants' Response Brief and Certification to laintiff s Opposition pleadings Da P1. 'ntiffs upplemental Certification Da226 P. R. S. T. U. C urt Order dated granting Reconsideration T Permit Defendants to file an Answer Pl intiffs supplemental Letter Brief D fendant s Supplemental Certification ge Virrit Grasso's Opinion dated 2/6/15 Curt Order granting OPRA requests ted Fe ruary 27, 2015 Plt ntiff s otion 'for Counsel Fees Da241 Da244 Da270 Da276 Da284 Da287 Appendix III U (continued)_ V W. P1 intiff's Motion for Counsel Fees with S pporting exhibitis D fendan s OppoSition Letter brief to P1 intiff s counsel'fees motion P1 intiff s Reply Certification Da365 Da413 Da424 X. dge Vincent Grasso's Opinion date 4/24/15... Da431 -d-

6 PROCEDURAL HISTORY Mat Stern Jersey, and the p S 'a resident of the Township of Lakewood, New aintiff-appellee in this open public records action. Dal. DefendantAppellant Lakewood Voltnteer Fire Department is an organization comprising four volunteer fire companies in the ownship,of Lakewood, County of Ocean, State of New Jersey. Dab The four volunteer companies as formed are as follows: (1)Hook & Ladder Co #1; (2) Engine Company # 1; (3) Reliance Hose Corn & Da9. any # 4; nd (4) Lakewood Fire Department.Da8 1 On or about ay 19, 2014, Max Stern, the Plaintiff in this case, hereinafter referred to as Stern, filed open public records act req ests f the Lakewood Volunteer Fire Companies by sending five volunteer fire Ladder Co # 1; certi : ied mailings to each of the four houses that are (1) Engine Co #1; (2) Hook & (3) Rescue Co 4 2; and (4) Reliance Hose Co #4 with return rec ipts d regular mail copies to Defendant. Exhibit A, copie# of PRA requests. Dal() & Dali. On or about June 16, 2014, he Lakewood Volunteer Fire Department advised the Plaintiff that they were consulting with legal counsel to determine if th y are subject to OPRA. Exhibit B, copy of to Stern from L lewood Fire Co. Dali. -1-

7 On July 31, Verified Complain Brief, and Form o 014, the law firm of'walter M. Luers filed a, CIS, Walter Luers Certification, Letter Order to Fhow Cause in the Superior Court of New Jersey, Law Division-Ocebil County that was assigned docket number L n behalf of Plaintiff Mat Stern, against the Defendants, Lakewood Volunteer Fire Dept Inc, Lakewood Fire Co No 1 dba Engine Co # 1; Junior Hose # 3, and Reliance Hose Co #4 Of Lakewood Inc. seeking relief under the Open Public Records Act (OPRA). Exhibit C,copy Of Verified Complaint. CIS, Walter Luers Certification, Letter Brief,and Form of Order to Show Cause in the Suprior. Dab through Da32. On August 12, 2014, Plaintiff's counsel, Walter M. Luers, sent an and letter to Norman D. Smith, Esq, the counsel for the Lakewood Fire. District, requesting that Mr. Smith identify all counsel who would be representing the five Lakewood Fire Volunteer compante. EXhibit D. Da33. Thereafter on August 21, 2014, Judge Vincent J. Grasso, AJSC signed Plaintiff's Amended Order to Show ordering the Lakewood Fire Volunteer Companies to provide the OPRA requested documents to the Plaintiff Mat Stern or to file opposition papers thereto by September 19, ExhibitlE. Da34 to Da39. Plaintiff's counsel by certified mail dated AuOst 26, 2014 mailed copies of the

8 August 21, 2014 Amended Order to Show Cause to the Defendant volunteer fire companies. Exhibit F. Dan. Aforesaid Order to Show Cause was adjourned by the Court to November 5,2014 with a new Order to Show Cau e being entered. Exhibit G. Da40. Subsequent to abo4e, on October 7, 2014 a second set copies of the new Order to Show CaUse were served upon the Defendant volunteer fire companies, and a proof of service of same was filed October 14, 2014 with the Clerk of the Law Division-Ocean County. Exhibits Judge Vincent J. H (Da41). and I (Da43). On November 5, 2014, Grasso, AJSC entered an Order that the Defendant Volunteer Fire Companies comply with the Plaintiff's OPRA requests within twenty (20) days of the receipt of the order. Exhibit J, Order of 11/5/14. Da47. Upon receiptof the November 5, 2014 Court Order the Defendant Volunteer Fire CoMpa.nies retained the law firm of Pavliv & Rihacek LLC who filed on November 24, 2014 Motion for Reconsideration and to Vacate the November 5, 2014 Court Order. Exhibit K. Da49.' Simultaneous with the filing of Defendants' Motion for Reconsideration,; Plaintiff had filed a Motion for Counsel Fees pursuant to the November 5, 2014 Court Order. Exhibit L. Da

9 On December 10, 2014, Plaintiff filed his Opposition pleadings inclusive of a letter brief, Certification of Walter Luers, and Certification of Larry S. Loigman, Esq, and served upon a copy on Defendants / counsel. Exhibit M. Da164. A December 15, 2014 Response Brief and Certification was by Defendants' counsel addressing the issues alleged by Plaintiff. Exhibit N. Da206. Similarly, on January 2, 2015, Plaintiff's counsel filed a Supplemental Certification of Walter Luers' s to additional counsel fees and costs due. Exhibit O. Da226. On January 9, Judge Vincent J. Grasso, AJSC, of the Superior Court 6,f New l Jersey, Law Division-Ocean County entertained oral argument on the motions as filed by both counsel. 1T4:12 to 1T12-25; 1/9/15. The Court granted Defendants' Motion td Vacate the Judgment entered on January 21, 2015 and reset a hearing date as to summary issues presented by the OPRA case: Exhibit P. Da241. 1T24-5 to 1T26-25; 1/9/15. By,a motion' dated January 24, 2015 Plaintiff's Counsel filed a supplemental letter brief, Exhibit Q.Da244. and Defendants filed a supplemental certification of the Fire Volunteer Chief Exhibit R. Da270. On February 5, 2015,Judge Grasso heard additional oral argument on the OPRA issues (2T4-22 to 2T18-25, 2/5/15) and rendered a written opinion dated -4-

10 February 6, 2015 in ruling favor the Plaintiff, Mat Stern, ordering the DefendantS to supply the requested documents. Exhibit S. Da276. The Court's opinion left open the issue of counsel fees due the Plaintiff. On February 27, 2015 the Court entered a formal order in Plaintiff'sfavor directing Defendants supply all requested documents sought by the Plaintiff Max Stern. Exhibit T. Da284. Thereafter on March 21' 2015 Plaintiff's counsel filed his motion for counsel fees pursuant to statute, Exhibit U,(Da286) while on April 17, 2015, Defendants' opposed the counsel fee demand with a letter brief and supplemental certification of Fire Volunteers Chief Stephen McNamara. Exhibit V. Da4i.3. Plaintiff filed his response certification on April 20, 2015, Exhibit W (Da424) and both parties consented to disposition on the papers. On April 24, 2015, Judge Vincent J. Grasso, AJSC entered his written opinion on Plaintiff's request for counsel fees pursuant to statute. Exhibit X. Da431. On May 12, 2015,,the Court entered an Order awarding Plaintiff his counsel fees pursuant to the April 24, 2015 written opinion. Exhibit T. Da437. Shortly thereafter, on May 18, 2015, Defendants filed a Consent Order to Stay the trial court's order pending the filing ofhan appeal. Fxhibit Z. Da439.

11 Defendant's June.25, 2015 Notice of Appeal from the Judge Vincent J. Grasso's February 27, 2015 Court Order was filed on June 26, EXhibit A.A. Da441. Almost, simultaneously, on June 26, 2015, Plaintiff's counsel filed an appeal from the Court's opinion as to the amount of counsel fees awarded. Exhibit BE. Da452. Notice of Appeal On July 14, 2015,Defendant file an Amended Exhibit CC (Da468), with Plaintiff filing his Amended Notice of Cross-appeal on July 15, 2015 Exhibit DD. Da

12 STATEMENT OF FACTS at Stern is a resident of the Township of Lakewood, New Jersey, and the Plaintiff-Appellee in this open public records action. Dal. Defendant+Appellant Lakewood Volunteer Fire Department is an organization comprising four volunteer fire companies in the Township of Lakewood, County of Ocean, State of New Jersey. Dab The four volunteer companies as formed are as follows: (1)Hook & Ladder Co #1; (2) Engine Company # 1; (3) Reliance Hose Company # 4; and (4) Lakewood Fire Department.Da8 & Da9. From 1884 to 1888, the four volunteer fire companies were formed in the Township:of Lakewood to cover the residential growth of the area. Each of the four volunteer fire companies possess their own rich' history in the growth of the Township of Lakewood, and the commitment of its citizens to from these mutual aide societies to protect the health, safety, and welfare of the residents. All of the fire companies were formed by private individuals not by any governmental body. Da9. Subsequent thereto, in 1896, the Township of Lakewood Committee created the taxing district for the Lakewood Township Board of Fire Commissioners with the first five commissioners being named by said township committee. Exhibit K, Da49 & Da66. The Fire District was formed to provide the Township with a

13 source of taxes to assist the volunteer fire companies in the purchase of their equipment, and fire houses. Exhibit K, Da66. In the 1950s, due to the explosive post war growth of Lakewood Township, the township committee created two professional fire departments staffed with career civil service firemen that are currently called Station 74 and Station Exhibit K, Da66 On or about May 19, 2014, Max Stern, the Plaintiff in this case, hereinafter referred to as Stern, filed open public records act requests of the Lakewood Volunteer Fire Companies by sending five certified mailings to each of the four volunteer fire houses that are Engine Co #1; (2) Hook & Ladder Co # 1; (3) Resdue Co # 2; and (4) Reliance Hose Co #4 with return receipts and regular mail copies to Defendant. Exhibit A, copies of OPRA reqnests. Dal & Dell. On or about June 16, 2014, the Lakewood Volunteer Fire Department advised the Plaintiff that they were consulting with legal counsel to determine if they are subject to OPRA. Exhibit 13, copy of to Stern from Lakewood Fire Co. Dail. On July 31, 2014, the law firm of Walter M. Luers filed a Verified Complaint, ClS, Walter Luers Certification, Letter Brief, and Form of Order to Show Cause in the Superior Court of New Jersey, Law Division-Ocean County that was assigned docket -8-

14 number L on behalf of Plaintiff Mat Stern, against the Defendants, Lakewood Volunteer Fire Dept Inc, Lakewood Fire Co No 1 dba Engine Co # 1; Junior Hose # 3, and Reliance Hose Co #4 Of Lakewood Inc. seeking relief under the Open Public Records Act (..PRA). Exhibit C,Copy of Verified Complaint. CIS, Walter Luers Certification, Letter Brief,and Form of Order to Show Cause in the Superior. Da6 through Da32. On August 12, 2014, Plaintiff's counsel, Walter M. Luers, sent an and letter to Norman D. Smith, Esq, the counsel for the Lakewood Fire District, requesting that Mr. Smith identify all counsel who would be representing the five Lakewood Fire Volunteer Companies. Exhibit D. Da33. Thereafter on August 21, 2014, Judge Vincent J. Grasso, AJSC signed Plaintiff's Amended Order to Show ordering the Lakewood Fire Volunteer Companies to provide the OPRA requested documents to the Plaintiff Mat Stern or to file opposition papers thereto by September 19, Exhibit E. Da34 to Da39. Plaintiff's counsel by certified mail dated August 26, 2014 mailed copies of the August 21, 2014 Amended Order to Show Cause to the Defendant volunteer fire companies. Exhibit.F. Da3S. Aforesaid Order to Show Cause was adjourned by the Court to November 5,2014 with a new Order to Show Cause being entered. Exhibit G. Da

15 Subsequent to above, on October 7, 2014 a second set copies of the new Order to Show Cause were served upon the Defendant volunteer fire companies, and a proof of service of same was filed October 14, 2014 with the Clerk of the Law Division-Ocean County. Exhibits H (Da41) and Z Oaa43). On Novetber 5, 2014, Judge Vincent J. Grasso, AJSC entered an Order that the Defendant Volunteer Fire Companies comply with the Plaintiff's OPRA requests within twenty (20) days of the receipt of the order. Exhibit J, Order of 11/5/14. Da47. Upon receipt of the November 5, 2014 Court Order the Defendant Volunteer Fire Companies retained the law firm of Pavliv & Rihacek LLC who filed on November 24, 2014 Motion for Reconsideration and to Vacate the November 5, 2014 Court Order. Exhibit K. Da49. Simultaneous with the filing of Defendants' Motion for Reconsideration, Plaintiff had filed a Motion for Counsel Fees pursuant to the November 5, 2014 Court Order. Exhibit L. Da76. On December 10, 2014, Plaintiff filed his Opposition pleadings inclusive of a letter brief, Certification of Walter Luers, and Certification of Larry S. Loigman, Esq, and served upon a copy on Defendants' counsel. Exhibit M. Da164. A December 15, 2014 Response Brief and Certification -10-

16 was by Defendants' counsel addressing the issues alleged by Plaintiff. Exhibit N. Da206. Similarly, on January 2, 2015, Plaintiff's counsel filed a Supplemental Certification of Walter Luers' as to additional counsel fees and costs due. Exhibit 0. Da226. On January 9, 2015 Judge Vincent J. Grasso, AJSC, of the Superior Court of New Jersey, Law Division-Ocean County entertained oral argument on the motions as filed by both counsel. 1T4:12 to 1T12-25; 1/9/15. The Court granted Defendants' Motion to Vacate the Judgment entered on January 21,.2015 and reset a hearing date as to summary issues presented by the OPRA case. Exhibit P. Da241. 1T24-5 to 1T26-25; 2/9/15. By a motion dated January 24, 2015 Plaintiff's Counsel filed a supplemental letter brief, Exhibit Q.Da244. and Defendants filed a supplemental certification of the Fire Volunteer Chief. Exhibit R. Da270. On February 5, 2015,Judge Grasso heard additional oral argument on the OPRA issues (2T4-22 to 2T18-25, 2/5/15) and rendered a written opinion dated February 6, 2015 in ruling favor the Plaintiff, Mat Stern, ordering the Defendants to supply the requested documents. Exhibit S. Da276. The Court's opinion left open the issue of counsel fees due the Plaintiff.

17 On February 27, 2015,the Court entered a formal order in Plaintiff's favor directing Defendants supply all requested documents sought by the Plaintiff Max Stern. Exhibit T. Da284. Thereafter on March 21, 2015 Plaintiff's counsel filed his motion for counsel fees pursuant to statute, Exhibit U,(Da286) while on April 17, 2015, Defendants' opposed the counsel fee demand with a letter brief and supplemental certification of Fire Volunteers Chief Stephen McNamara. Exhibit V. Da413. Plaintiff filed his response certification on April 20, 2015, Exhibit W (Da424) and both parties consented to disposition on the papers. On April 24, 2015, Judge Vincent J. Grasso, AJSC entered his written opinion on Plaintiff's request for counsel fees pursuant to statute. Exhibit X. Da431. On May 12, 2015, the Court entered an Order awarding Plaintiff his counsel fees pursuant to the April 24, 2015 written opinion. Exhibit Y. Da437. Shortly thereafter, on May 18, 2015, Defendants filed a Consent Order to Stay the trial court's order pending the filing of an appeal. Exhibit Z. Da439. 'Defendant's June 25, 2015 Notice of Appeal from the Judge Vincent J. Grasso's February 27, 2015 Court Order was filed on June 26, Exhibit AA. Da441. Almost, simultaneously, -12-

18 on June 26, 2015, Plaintiff's counsel filed an appeal from the Court's opinion as to the amount of counsel fees awarded. Exhibit BB. Da452. On July 14, 2015,Defendant file an Amended Notice of Appeal Exhibit CC Ma468), with Plaintiff filing his Amended Notice of Cross-appeal on July 15, 2015 Exhibit DD. Da

19 LEGAL ARGUMENT LEGAL POINT I THE TRIAL COURT ERRED AS TO ITS RULING THAT DEFENDANT LAKEWOOD FIRE VOLUNTEERS ARE CONTROLLED ENTITY SUBJECT TO OPRA On February 6, 2015, Judge Vincent J. Grasso, AJSC ruled in favor of the Plaintiff Mat Stern against the Lakewood Fire Volunteers that they are subject to OPRA as the Fire Companies are instrumentalities within the Fire District and therefore, are public agencies subject to OPRA pursuant to NJSA 47:1A-1.1." Exhibit S, Da276. Judge Grasso disregarded the "creation test" along with the fact that the Defendant Lakewood Fire Volunteer companies are staffed by volunteers who full time jobs but devote their time to the function of fire fighting and community service that harkens back to the Benjamin Franklin's creation of the first volunteer fire fighting company in Philadelphia, Pennsylvania.Exhibit S, Da282; 2T11-17 to 2T12-11; 2/5/15. The trial court mistakenly focused on "governmental functions test" as stated in Fair Share Housing Ctr Inc v NJ State League of Municipalities, 207 NJ 489, 492 (201.1); and Paff v NJ State Fireman's Assn, 431 NJ Super 278, 288 (AD 2013). Da283; 2T7-13 to 2T9-7;2/5/15. Judge Grasso laid the foundation of his opinion on the fact that the -14-

20 Lakewood Fire District formed well after the formation of the Lakewood Fire Volunteer companies provided substantialt financial support to the volunteer fire companies in the form of the construction and maintenance of the fire houses and equipment; provision of workers compensation and small pensions; and other small stipends for volunteer firemen with over ten (10) years of service. Exhibit S, Da281. On the basis these facts, Judge Grasso held that the Defendant Fire Companies were subject to the dictates of OPRA. Da283. Nevertheless, Defendants argued that the Judge Bookbinder's opinion now adopted by the Appellate Division in the affirmation opinion of Fran Brooks v Tabernacle Rescue Squad, Docket Number A T1 was on point based upon the "creation test" where the squad was staffed by volunteers who govern themselves. Exhibit EE, Da481. The Defendant Lakewood Fire Volunteers are factually identical to the Tabernacle Rescue Squad as its membership are volunteers who elect their own officers, and governing themselves. Moreover, even though the Tabernacle Rescue Squad received substantial financial support, more than Lakewood Fire Volunteers receive, from the Tabernacle Township Committee and Tabernacle Fire District they are for all intents and purposes an independently formed non- -15-

21 profit corporation that supplies rescue services to the community. 2T13-6 to 2T14-25; 2/5/15. It made no difference that the Tabernacle Rescue Squad performed quasigovernmental functions like the Lakewood Fire Volunteers as both entities were staffed by volunteers whose service provided a substantial savings to their respective communities and should not be burdened by OPRA requests from a few community gadflies. Exhibit R, Da272 to Da274. The Appellate Division in Brooks totally rejected the government instrumentality test and focused on the creation and operation of the rescue squad by volunteers that are directly comparable to charitable non-profit hospitals or community services organization such as the Shriners as argued by Lakewood Fire Volunteers. Exhibit EE, Da481, Da484 to Da488. The Appellate Division in Brooks held that the Tabernacle Rescue Squad was neither a governmental instrumentality performing a government function nor controlled by a municipal government providing financial assistance due to the very nature of its volunteer membership, to wit: "[T]he judge expressed concern that "[a] ruling that the Squad is public agency may have a harmful effect on volunteer rescue squads, and through then a harmful effect on the public benefit that the -16-

22 provide." He further noted that a municipality "cannot simply subsidize the added cost to[a volunteer rescue squad] of OPRA production because municipalities are restricted in the funding and resources that they may provide to volunteer squads by NJSA 40:5-2." W]e agree with Judge Bookbinder that the Rescue Squad, having been founded by private individuals and conducting its operations wholly free of municipal control, albeit with financial support permitted by statute, cannot be considered a public agency under OPRA. See League of Municipalities, supra, 207 NJ at 493. Because the Rescue Squad is not a public agency and its volunteer members do not conduct government business, plaintiff is likewise not entitled to the documents under the common law." Exhibit EE, Da481, 486. Lakewood Fire Volunteers as previously noted are four volunteer fire companies formed in 1884 and 1888 well before the Lakewood Fire District was formed in May 1896 that lead to the creation of two professional fire houses staffed with civil service employees. At all times, LFV, has remained independent and does not take orders from Lakewood Fire District, and Attorney Loigman's self serving certification that OPRA applies by Fire District edict is meaningless and ultra vires to independent fire companies formed well before the Fire District date of creation by the municipality. 2T7-19 to 2T13-11; 2/5/15. Exhibit M, Da194 to Da199. Mr. Loigman can pass any resolution he -17-

23 desires that apply to the two professional Lakewood Fire Companies that are civil service, but his actions have no effect on the four pre-existing volunteer fire companies that are independent non-for profit corporations. Exhibit N, Da216. The LFV are a cost savings alternative to the expense of maintaining full time professional fire companies that cost the Township government body millions of dollars. Exhibit N, Da217. It has been estimated that the Lakewood Volunteer Fire Companies staffed strictly by volunteers save the Township of Lakewood over $22 Million dollars annually in salaries that would be required to staff it with career civil service firemen. Da217. To place the burdening of answering vexatious citizens request for records from LFV members who are gainfully employed, and doing firefighting as a part time community service is simply counterproductive. Moreover, OPRA allows even public entities to shield from prying eyes the financial operations of entities that may lead to undue competition for charitable resources. Exhibit EE, Da486 to Da488. As noted in the Appellate Division of Brooks charitable non-profit corporations performing community -18-

24 services such as a rescue squad and fire companies are not subject to OPRA because their services are similar to government functions where there is not direct control by a government entity. Exhibit EE, Da487 to Da488. The Lakewood Township Committee, and Lakewood Fire District provides substantial support to the Lakewood Fire Volunteers, similar to Tabernacle Rescue Squad, but their formation, and independent operation takes them out of the government functions designation. These organizations of volunteers performing beneficial community services does not expose them to the burdens of OPRA due to the nature of their formation as a charitable non-profit corporations dedicated to community service. Da488. LEGAL POINT II THE SLIPPERY SLOPE OF THE GOVERNMENT FUNCTION TEST To apply the governmental function test would be a complete example of over-breath. To see the extreme result of this concept in action, one only need look the community services provided by the Shriners' Hospital systems. There is no doubt that-the governmental functions test would find that the running of a hospital would be a government function based upon the hospital's activities as wholly -19-

25 governmental purview! Favorable zoning treatment, licensure, Medicaid/Medicare reimbursement for charity care could all be considered as factors to support the conclusion that a charitable organization operates as a government function subject to OPRA. Exhibit EE, Da487 and Da488. The Shriners are a subsidiary of the Freemason's secret society that performs charitable Works. If an ()PRA request was served on the Shriners for their membership lists, and the Appellee's logic were followed, the Court would be required order the turn over of all membership lists of the Shriners and by extension the Freemasons membership roster as well. 2T8-12 to 2T14-15; 2/5/15. The application of the "governmental function test" would inevitably lead to the argument that there are no longer such entities as private organizations as every charitable entity receives public funds or performs a public community service. 2T9-8 to 2T10-25; 2/5/15. In the case at bar the Defendants Lakewood Fire Volunteers comprising four volunteer fire companies formed around 1888 are not creatures of the Township of Lakewood Committee, and do not receive and disburse tax revenues to make them a 'public agency" under OPRA pursuant to NJSA -20-

26 47:1A-1.1 As previously noted, the New Jersey Supreme Court held that a "corporation that was under subcontract from a governmental contractor to provide substance abuse treatment and education to individuals who would otherwise been incarcerated" was held not to be a "public agency" subject to OPRA. Paff v Community Education Centers, 217 NJ 288 (AD 2013). 2T15-11 to 2T15-25; 2/5/15. Defendant Lakewood Fire Volunteers are not governmental agencies and are self-governing non-profit corporations that elect their own officers, and do not answer to the Lakewood Township Committee to be considered a government entity subject to OPRA. Defendants have no public reporting requirement of their financial affairs, and are not subject to the direction and/or supervision of any government entity, and thus are not covered under NJSA 47:1A-1.1. Even though the Lakewood Fire District supplies substantial financial support to the Lakewood Volunteers the public services performed by volunteer firemen saves the Township of Lakewood well over $22 Million in salaries that would be required to support an entire force of career firemen under civil service. Exhibit N, Da217. The -21-

27 relationship between Lakewood Fire Volunteers, and Fire District has been mutually beneficial with the Fire District controlling the disbursements of tax revenue to the Professional Fire Houses, and Volunteer Fire Houses. The Defendant Lakewood Fire Volunteer through mail solicitations generates its own income through mail order appeals to charity from the community that benefits from their charitable services. Exhibit R, Da273 to Da274. The Lakewood Fire Volunteers are similar to nonprofit hospitals and organizations like the Shriners that provide substantial services and benefits to their communities without being considered as a governmental entities. A Practical Test Application of Review During the trial court testimony it was established that all members of the Fire Volunteers companies are volunteers. 2T6-16 to 2T7-11; 2/5/15. The total amount raised by the Fire Volunteer donations and fund raising amounts to less than $20,000 per year. Exhibit R, Da274. All members have regular full time jobs. There are simply inadequate resources to hire a secretary or compliance officer for the myriad of questionable information requests. Who would pay salary of a compliance -22-

28 officer or records custodian? In addition for each OPRA request filed the volunteer fire companies would require a legal opinion as to whether the requested documents are in fact subject to OPRA disclosure. Who would pay the legal fees to secure such an opinion that would deplete the meager funds raised by the fire companies? Plaintiff's Request for Counsel Fees If the reviewing court rules in favor of the Lakewood Fire Volunteer companies then no counsel fees are due to Plaintiff. However, if said decision of the trial court is affirmed then Defendant-Appellants agree with the Judge Grasso's ruling as to the amount and reasonableness of the counsel fees as decided in the April 24, 2015 trial court written opinion. Exhibit X, Da435 to Da436. As to counsel fees, the Defendants are not subject to OPRA by the above case law whereby no counsel fees should be awarded. CONCLUSION For the foregoing reasons Defendants Lakewood Fire Volunteers request that the November 5, 2014 Court Order be vacated as aforesaid fire companies are not governmental -23-

29 agencies and/or instrumentalities to support a reversal of the trial court decision. Respectfully submitted, JOHN THADDEUS RIHACEK -24-

30 PAVLIV & RIHACEK LLC Attorneys at Law 3536 Hwy 9 South, Suite 305. Howell, New Jersey Fax Alexander Pavliv, Esq John Thaddeus Rihaeek, Esq* * "Certified Civil Trial Attorney by NJ Supreme Court" December 31, 2015 Clerk, Appellate Division Attention: Joseph H. Orlando, Clerk Superior Court of New Jersey Hughes Justice Complex 25 W. Market St, 5 th Floor North Wing Trenton, NJ RE: Mat Stern v Lakewood Volunteer Fire Department Inc et als Docket No: OCN-L DEFENDANTS' NOTICE THAT NO RESPONSE BRIEF WILL BE FILED AND APPEAL IS SUBMITTED ON APPELLATE BRIEF AS SUBMITTED Dear Mr. Orlando: This letter shall provide notice that Defendants Lakewood Volunteer Fire Companies shall submit their appeal on the initial appellate brief and appendices as filed with no Response Brief to be filed. Kindly return a filed stamped copy to my attention via the enclosed envelope. A copy of same has been sent to Plaintiff-Respondent's counsel, Walter M. Luers, Esq by fax and regular mail on December 31, 2015; with the other copies to being mailed to to the trial judge. The other copies will be hand delivered to the Judge Vincent Grasso, AJSC, Jill Vito, Clerk of the Law Division-Ocean County; and Transcript Services. AP/cb

31 MAT STERN, v. Plaintiff-Respondent/Cross- Appellant, LAKEWOOD VOLUNTEER FIRE DEPARTMENT INC., a New Jersey non-profit corporation, LAKEWOOD FIRE CO. NO. 1, d/b/a ENGINE CO. NO. 1, a New Jersey non-profit corporation, JUNIOR HOSE 3 A NJ NONPROFIT CORPORATION, a New Jersey nonprofit corporation, and RELIANCE HOSE CO. NO. 4 OF LAKEWOOD, INC., a New Jersey non-profit corporation, Defendants-Appellants/Cross- Respondents. SUPERIOR COURT OF NEW JERSEY Civil Action APPELLATE DIVISION DOCKET NO. A T2 ON APPEAL FROM: A Final Order of the Superior Court of New Jersey, Law Division, County of Ocean Docket No. Below: OCN-L SAT BELOW: Hon. Vincent J. Grasso, A.J.S.C. (ret.) BRIEF OF PLAINTIFF-RESPONDENT/CROSS-APPELLANT MAT STERN ATTORNEY OF RECORD Law Offices of Walter M. Luers Suite C West Main Street Clinton, New Jersey Telephone: wluers@luerslaw.com OF COUNSEL AND ON THE BRIEF: Dec. 18, 2015 Walter M. Luers, Esq. Attorney ID. No

32 TABLE OF CONTENTS TABLE OF AUTHORITIES... iii PRELIMINARY STATEMENT... 1 PROCEDURAL HISTORY...3 QUESTIONS PRESENTED...4 STATEMENT OF FACTS...4 STANDARD OF REVIEW... 6 LEGAL ARGUMENT... 7 I. The Defendants Are Public Agencies Under OPRA Because the Defendants Are Instrumentalities Of the Lakewood Fire District...7 A. OPRA Must Be Construed in Favor of Access... 7 B. OPRA Broadly Defines a Public Agency... 8 C. The Defendants Are Instrumentalities of the Fire District Because of the Defendants Formation, Structure and Function D. Defendants Are Public Agencies Under OPRA Under The Public Agency Test Articulated and Refined by The Times of Trenton, Fair Share Housing, Sussex Commons And New Jersey State Firemen s Association Cases E. Newfield Fire Company No. 1 v. The Borough of Newfield Rejected the Argument that Volunteer Fire Companies are Independent Agencies Not Subject to Municipal Control F. Attorney General Formal Op Held That Volunteer Fire Companies are Public Agencies Under The Destruction of Public Records Law G. There Is No Slippery Slope i

33 II. On the Cross-Appeal, the Trial Court Abused Its Discretion by Reducing the Fee Award to Plaintiff s Counsel Because Defendants Performed a Public Service CONCLUSION ii

34 TABLE OF AUTHORITIES Cases Asbury Park Press v. Monmouth County, 406 N.J. Super. 1 (App. Div. 2009)... 8 Asbury Park Press v. Ocean County Prosecutor s Office, 374 N.J. Super. 312 (Law Div. 2004)... 8 Eggert v. Tuckerton Vol. Fire Co. No. 1, 938 F. Supp (D.N.J. 1996) Fair Share Housing Center, Inc. v. New Jersey State League of Municipalities, 207 N.J. 489 (2011)... passim Gregg v. Township Committee of Township of Hazlet, 232 N.J. Super. 34 (App. Div. 1989) K.L. v. Evesham Township Board of Education, 423 N.J. Super. 337 (App. Div. 2011)... 6 Libertarian Party of Cent. New Jersey v. Murphy, 384 N.J. Super. 136 (App. Div. 2006)... 8 Manalapan Realty, L.P. v. Township Committee of Township of Manalapan, 140 N.J. 366 (1995)... 6 Newfield Fire Co. No. 1 v. Borough of Newfield, 439 N.J. Super. 202 (App. Div. 2015)... passim Paff v. New Jersey State Firemen s Association, 431 N.J. Super. 278 (App. Div. 2013)... passim Pallister v. Spotswood First Aid Squad, 355 N.J. Super. 278 (App. Div. 2002) Rendine v. Pantzer, 141 N.J. 292 (1995)... 7 Schwartz v. Stockton, 32 N.J. 141 (1960)... 16, 28 State v. Quezada, 402 N.J. Super. 277, 953 A.2d 1206 (App. Div. 2008)... 17, 30 State v. Son, 179 N.J. Super. 549, 432 A.2d 947 (App. Div. 1981)... 14, 32 Times of Trenton Publ g Corp. v. Lafayette Yard Cmty. Dev. Corp., 183 N.J. 519 (2005)... passim iii

35 Statutes 42 U.S.C U.S.C N.J.S.A. 2C:27 1(g)... 17, 30 N.J.S.A. 34: N.J.S.A. 40A: to 40A: n N.J.S.A. 40A: , 17 N.J.S.A. 40A:14-68(a)... 24, 29 N.J.S.A. 40A: , 17 N.J.S.A. 40A: (a)... 19, 21 N.J.S.A. 40A: (b)... 12, 20, 21 N.J.S.A. 40A: , 21 N.J.S.A. 40A: N.J.S.A. 47:1A N.J.S.A. 47:1A , 31 N.J.S.A. 47:1A N.J.S.A. 47:3-15 to , 31 N.J.S.A. 47: N.J.S.A. 54: iv

36 PRELIMINARY STATEMENT In this appeal, we ask the Appellate Division to affirm the holding of the Trial Court that the four volunteer fire companies located within the Lakewood Fire District ( Fire District ) are subject to OPRA because those volunteer fire companies ( Defendants ) are subject to OPRA because they are instrumentalities of the Fire District. The volunteer fire firefighters who make up the memberships of the Defendants, like all volunteer firefighters in this State, are rightly lauded for their sacrifices and service to their fellow citizens. Nonetheless, they perform their invaluable work under the supervision and control of political subdivisions of the State; perform a governmental function; and enjoy many benefits attributable directly to State law or political subdivisions of the State, including, among many other benefits, qualified tort claims immunity, taxing districts that exist solely for their benefit, a pension program, and workers compensation insurance. Critically, in the proceedings before the Trial Court, counsel for the Defendants conceded municipal control. (T2 14:2-14:20) (Counsel for Defendants: That deals with control. We re conceding that issue.... And we concede the control issue. ). Having thusly conceded, the issue of whether the 1

37 Defendants are subject to OPRA would seem to be a foregone conclusion. Defendants argument rests on the thin reed that they are not subject to OPRA because they were not created by the Fire District or by Lakewood, which is the municipality in which the Defendants reside. But this Court has consistently held that the formality of how an entity was formed is not a bright line or per se requirement for OPRA to apply to an organization, especially a non-profit. The Trial Court s conclusion that the Defendants are subject to OPRA was predictable, natural and inevitable. The Trial Court s holding is based or supported by the text of OPRA; the Legislature s declaration that volunteer firefighters perform a governmental function and are subject to the supervision and control of the Fire District they serve; published cases that discuss the treatment of volunteer fire companies and volunteer firefighters under New Jersey law; two decisions of the Government Records Council; a fifty-year-old opinion of the Attorney General; and the overwhelming financial support provided by the Fire District to the Defendants. If the Defendants would chafe under OPRA s watchful gaze, then, in the words of the Appellate Division, nothing prevents the Fire Company members from declining to voluntarily perform firefighting services and having its municipal 2

38 firefighting status cease[.] Newfield Fire Co. No. 1 v. Borough of Newfield, 439 N.J. Super. 202, 215 (App. Div. 2015). Ultimately, Defendants are subject to OPRA because of how broadly the Legislature has defined a public agency and how the Legislature has chosen to characterize the function of firefighting as a governmental function. Defendants recourse lies not with this Court, but within the halls of the Legislature. On the cross-appeal, Plaintiff appeals the Trial Court s reduction of the attorney fee award. Although the Trial Court found that the hourly rate of Plaintiff s counsel was reasonable, the Trial Court nonetheless reduced counsel s lodestar award by about two-thirds solely on the basis that the Defendants perform a public service and [realize] taxpayer savings. On this point, we request that the Court either vacate the fee award and remand for consideration based on the standards set forth under R.P.C. 1.5 and the relevant caselaw, or exercise its original jurisdiction and make a new fee award. history of the case. PROCEDURAL HISTORY Defendants Brief adequately discusses the procedural 3

39 QUESTIONS PRESENTED 1. Whether non-profit volunteer firefighting companies that, among other things, have been declared by the Legislature to be performing a governmental function and declared to be operating under the supervision and control of the Fire District that they serve and where they have conceded that their operations are controlled by the Fire District, are subject to OPRA? 2. Whether the Trial Court abused its discretion by reducing the lodestar fee request by counsel for Plaintiff from $18, to $6, solely on the basis that the Defendants perform a public service and [realize] taxpayer savings? STATEMENT OF FACTS Defendants Statement of Facts did not sufficiently convey all of the facts material to this appeal. The Defendants are located within the Lakewood Fire District, which itself was established in (Da195). The Fire District is a taxing authority whose boundaries are coterminous with the municipality of Lakewood, and has all of the powers of a municipality for the purpose of providing fire protection to Lakewood. (Da195). The Fire District collects a tax that is dedicated to supporting the operations of the Defendants and making capital expenditures. (Da196). 4

40 With these tax revenues, the Fire District provides: [A]ll equipment and supplies to the five volunteer companies (as well as to the career units); it pays all of the utility, repair, maintenance and other costs associated with each of the firehouses. It also underwrites the entire cost of workers compensation insurance for all paid and volunteer firefighters; and the entire cost of LOSAP (length of service awards program)... for eligible firefighters. (Da196). 1 The Fire District owns the six firehouses used by the Defendants. (Da196). The Defendants do not own any firehouses. (Da196). All of the fire apparatus operated by the Defendants (fire engines, fire trucks, fire chiefs cars, and similar vehicles ) are owned by the Fire District. (Da195-Da196). The Defendants own none of the fire apparatus that they operate. (Da195-Da196). The Fire District pays all costs associated with initial and in-service training of the firefighters, both career and volunteer. (Da196). The Fire District also provides the initial protective clothing issue to new firefighters (such as turnout coat, boots, helmet, glove, etc.). (Da196). In addition, the Fire District pays the entire cost of a clothing allowance for all eligible volunteer firefighters [$350 annually in 2014, rising to $700 annually in 2015]. (Da196). 1 LOSAP is a modest pension benefit for qualified firefighters. N.J.S.A. 40A: to 40A:

41 The Defendants are governed by the detailed rules and regulations of the Fire District. (Da196). The membership process for the volunteers is also governed by the Fire District. (Da197). Regarding Plaintiff s application for reasonable attorneys fees, Plaintiff s counsel sought a lodestar award of $18,064.50, costs of $913.05, and a contingency enhancement of $6, (Da304; Da319-Da320). The lodestar award request was based on 51.7 hours of the time of Walter M. Luers, Esq. at $315 per hour; 10.6 hours of the time of Michael P. McIlmail, Esq. at $165 per hour; and.4 hours of the time of paralegal Larissa R. Fleck at $75 per hour. (Da304). The Court awarded fees of $6,300 and costs of $280, and denied Plaintiff s request for a contingency enhancement. (Da436). STANDARD OF REVIEW The question of whether an entity is subject to OPRA is a question of law and, therefore, this Court s review of the Trial Court s conclusions is de novo. Paff v. New Jersey State Firemen s Association, 431 N.J. Super. 278, 286 (App. Div. 2013) (citing Manalapan Realty, L.P. v. Township Committee of Township of Manalapan, 140 N.J. 366, 378 (1995) and K.L. v. Evesham 6

42 Township Board of Education, 423 N.J. Super. 337, 349 (App. Div. 2011)). With respect to the Court s award of attorneys fees, attorney fee awards are reviewed for abuse of discretion. Rendine v. Pantzer, 141 N.J. 292, 317 (1995). LEGAL ARGUMENT POINT I THE DEFENDANTS ARE PUBLIC AGENCIES UNDER OPRA BECAUSE THE DEFENDANTS ARE INSTRUMENTALITIES OF THE LAKEWOOD FIRE DISTRICT A. OPRA Must Be Construed In Favor of Access As the Court knows, the Open Public Records Act ( OPRA ) mandates that government records shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions, for the protection of the public interest, and any limitations on the right of access accorded [under OPRA] as amended and supplemented, shall be construed in favor of the public s right of access. Libertarian Party of Cent. New Jersey v. Murphy, 384 N.J. Super. 136, 139 (App. Div. 2006) (citing N.J.S.A. 47:1A-1). The purpose of OPRA is to maximize public knowledge about public affairs in order to ensure an informed citizenry and to minimize the evils inherent in a secluded process. Times of Trenton Publ g Corp. v. Lafayette Yard Cmty. Dev. 7

43 Corp., 183 N.J. 519, 535 (2005) (quoting Asbury Park Press v. Ocean County Prosecutor s Office, 374 N.J. Super. 312, 329 (Law Div. 2004)). These lofty descriptions of the purposes of OPRA are not mere bromides or empty statements of legislative intent. Our Supreme Court has stated that Those who enacted OPRA understood that knowledge is power in a democracy, and that without access to information contained in records maintained by public agencies citizens cannot monitor the operation of our government or hold public officials accountable for their actions. Fair Share Housing Center, Inc. v. New Jersey State League of Municipalities, 207 N.J. 489, 502 (2011). The burden of proof in showing that a denial of access was justified rests solely with the Records Custodian. N.J.S.A. 47:1A-6; Asbury Park Press v. Monmouth County, 406 N.J. Super. 1, 7 (App. Div. 2009). agency means: B. OPRA Broadly Defines Public Agency OPRA broadly defines a public agency. A public any of the principal departments in the Executive Branch of State Government, and any division, board, bureau, office, commission or other instrumentality within or created by such department; the Legislature of the State and any office, board, bureau or commission within or created by the Legislative Branch; and any independent State authority, commission, 8

44 instrumentality or agency. The terms also mean any political subdivision of the State or combination of political subdivisions, and any division, board, bureau, office, commission or other instrumentality within or created by a political subdivision of the State or combination of political subdivisions, and any independent authority, commission, instrumentality or agency created by a political subdivision or combination of political subdivisions. N.J.S.A. 47:1A-1.1. Here, the relevant portion of the definition is any political subdivision of the State or combination of political subdivisions, and any division, board, bureau, office, commission or other instrumentality within or created by a political subdivision of the State... and any independent authority, commission, instrumentality or agency created by a political subdivision.... N.J.S.A. 47:1A-1.1. (emphasis supplied). N.J.S.A. 47:1A-1.1 is broadly written so that a wide variety of entities fall within the compass of that term. Fair Share Housing Center, Inc. v. New Jersey State League of Municipalities, 207 N.J. 489, 503 (2011). Parsing the words of the statute, a public agency includes an instrumentality... created by a... combination of political subdivisions. The definition of a public agency includes an instrumentality that is within or created by a political subdivision of the State. According to Fair Share, an 9

45 instrumentality is variously defined as [a] thing used to achieve an end or purpose and, alternatively, as [a] means or agency through which a function of another entity is accomplished, such as a branch of a governing body. Fair Share, 207 N.J. at 503. The specific form of an entity does not dictate whether that entity is subject to OPRA. [A] court must look behind the technical form of an entity to consider its substantive attributes. New Jersey State Firemen s Assoc., 431 N.J. Super. at 288. Relying solely on the technical form of an entity would elevate form over substance to reach a result that subverts the broad reading of OPRA as intended by the Legislature. Id. (citing and quoting Lafayette Yard, 183 N.J. at 535). [W]hether an entity is an instrumentality of government, and thus a public agency, OPRA shall be construed in favor of the public s right of access. New Jersey State Firemen s Association, 431 N.J. Super. at 287. Based on the foregoing authorities, this Court should interpret OPRA s definition of a public agency broadly and should construe all ambiguities and uncertainties in favor of coverage by OPRA. 10

46 C. The Defendants Are Instrumentalities of the Fire District Because of the Defendants Formation, Structure and Function Defendants claim that they are exempt from OPRA because they are non-profit organizations that were formed in the 19 th Century. Those facts are not controlling. On two occasions, the Supreme Court has held that nonprofits may be subject to OPRA. In Fair Share Housing Center, Inc. v. New Jersey State League of Municipalities, 207 N.J. 489, 504 (2011), the Court held that the non-profit, unincorporated League of Municipalities was subject to OPRA because it was created pursuant to a statute to encourage concerted action by municipalities. In The Times of Trenton Publishing Corp. v. Lafayette Yard Community Development Corp., 183 N.J. 519, (2005), the Court held that a private, non-profit corporation was subject to OPRA because it was controlled by Trenton, authorized to issue bonds and was created with the implicit approval of Trenton. Such cases involve a fact-sensitive inquiry and Courts must look behind the technical form of an entity to consider its substantive attributes. Paff v. New Jersey Firemen s Ass n, 431 N.J. Super. 278, 288 (App. Div. 2013). In New Jersey Firemen s Association, the Court discussed that it is relevant whether the entity in question performs a government function; was created by a subdivision of the State, is 11

47 controlled by a subdivision of the State, and whether disclosure would advance the purposes of OPRA. Id. at 289. In New Jersey Firemen s Association, the Appellate Division reversed the Trial Court and held that the New Jersey State Firemen s Association was subject to OPRA, even though it was a non-profit and was organized by delegates of local relief associations. The Court held that the Association owes its existence to state law, which authorized its creation, granted it powers, including powers over local associations, and barred the creation of a competing state association. Id. at 290. The Court also found it important that the Fire Association s receipt and funding based on tax revenues was an important factor. Id. The Court also observed that the Association served numerous governmental functions including welfare benefits and regulates the activities of other associations. Id. at Here, it is not necessary to conduct a fact-specific inquiry because the Legislature has already directed that the Defendants within the Fire District are under their supervision and control and that the activities of volunteer fire companies located within Fire Districts are a governmental function. N.J.S.A. 40A: (b). According to the formation, structure and function of the New Jersey Firemen s Association, the Court found it was subject to OPRA; a review of the Defendants 12