NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3905-23
KIMBERLY A. VELE,
Plaintiff-Respondent,
v.
BOROUGH OF ENGLEWOOD CLIFFS, and LAURA BORCHERS, Custodian of Records for BOROUGH OF ENGLEWOOD CLIFFS,
Defendants-Respondents. _______________________________
MARIO M. KRANJAC,
Appellant. _______________________________
Submitted October 2, 2025 – Decided October 15, 2025
Before Judges Mawla and Puglisi.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-4752-21.
Kranjac Tripodi & Partners, LLP, attorneys for appellant Mario M. Kranjac (Joseph Tripodi, on the brief). Respondents have not filed a brief.
PER CURIAM
Appellant Mario M. Kranjac appeals from a May 29, 2024 order denying
his motion to vacate prior orders sanctioning him for failing to comply with the
court's orders, and compelling him to turn over emails and other information
under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. He also
challenges a July 29, 2024 order denying his motion for reconsideration. We
reverse and remand for the reasons expressed in this opinion.
Kranjac served as mayor of the Borough of Englewood Cliffs from
January 1, 2016 to December 31, 2023. He is also a partner at the law firm
Kranjac Tripodi & Partners, LLP (KTP), and a member of Dynamk Capital LLC
(Dynamk), a private equity firm. This matter stems from a dispute over the use
of his KTP, Dynamk, and personal Gmail email accounts to conduct his mayoral
duties.
On May 20 and 21, 2021, plaintiff Kimberly Vele filed OPRA requests
for records maintained by the Borough, including email communications sent
and received by Kranjac associated with his position as mayor, or through KTP
concerning Lisette Duffy, the Borough Clerk, from January 1, 2018. Laura
Borchers, Deputy Borough Clerk, responded via email to plaintiff on June 1,
A-3905-23 2 2021, stating the requests were denied because "both fail to identify specific
government records and are considered vague and/or ambiguous requests."
On June 4, plaintiff responded to simplify the requests. She sought copies
of all emails by or between Kranjac and the acting Borough Administrator (BA)
regarding the BA's appointment. Plaintiff's request specified two email
addresses for Kranjac, one associated with his position as mayor, and another
associated with KTP. The Borough denied the request, noting it was "vague
and/or ambiguous" as well as "excessive in that it seeks records spanning over
a period of fourteen . . . years."
On June 10, plaintiff sent another request for: emails between Kranjac
and the acting BA regarding Duffy; emails between Kranjac and the Borough
Council President regarding Duffy; emails between Kranjac and the Council
President regarding the appointment of the acting BA; and emails between
Kranjac and the acting BA regarding the acting BA's appointment. The Borough
denied the request for the emails because it was "vague and/or ambiguous" and
"excessive." The response further advised there were no records of emails
between Kranjac and the Council President regarding the acting BA's
appointment, or emails between Kranjac and the acting BA regarding her
appointment.
A-3905-23 3 On July 16, plaintiff filed a complaint against the Borough and Borchers,
in her capacity as the Borough custodian of records. The two-count complaint
alleged defendants violated OPRA by failing to produce the requested records .
On September 9, 2021, the trial court found defendants had improperly
denied plaintiff's requests and plaintiff was entitled to attorney's fees as the
prevailing party. On January 12, 2022, the court granted plaintiff's motion to
enforce the September 2021 order and ruled, if the documents were not produced
within ten days, defendants would be sanctioned $250 per day.
On June 24, 2022, because of another enforcement motion, the court
ordered the Council President, the acting BA, and Kranjac to file Paff1
certifications, certifying that they "conducted thorough and complete searches
for all responsive documents and found no responsive emails searched ." It also
ordered sanctions of defendants at $250 per day, after July 8, 2022, for each day
they failed to either produce the emails or the Paff certifications.
On August 4, 2022, the court entered another order sanctioning defendants
$250 for every day they failed to produce the emails or certifications. On August
11, Kranjac certified he directed his firm to search his email accounts for
1 Paff v. N.J. Dep't of Lab., 392 N.J. Super. 334, 341-42 (App. Div. 2007). A-3905-23 4 documents relating to the OPRA requests and provided a thumb drive of the
relevant emails to the Borough's special counsel.
Plaintiff moved to enforce litigant's rights and defendants cross-moved for
relief from the June and August orders. On September 12, 2022, the court
entered an order vacating its prior ruling that the Council President file a
certification because it was moot, as defendants complied with its order by
providing Kranjac and the acting BA's Paff certifications. The court also
vacated the sanctions imposed under its August order.
Plaintiff moved for reconsideration, arguing the Paff certifications were
deficient. On October 28, 2022, the court granted reconsideration, ordered
defendants to produce documents responsive to the OPRA requests and imposed
sanctions totaling $7,250. The court reasoned it was not enough for Kranjac to
have directed KTP to search his email; he needed to "certify to his own personal
knowledge of the search conducted," and "include a statement regarding his law
firm's policy for document retention/destruction." It noted Kranjac mixed his
personal, business, and government emails in violation of a previous order and
concluded those emails were subject to disclosure under OPRA.
On December 8, 2022, Kranjac filed a certification, which clarified he was
physically present for the search of his emails and provided details of the search.
A-3905-23 5 He certified he did "everything [he] possibly could to comply with the [c]ourt's
order."
In January 2023, the Borough counsel's term came to an end. Irene Kim
Asbury, Esq. became new Borough counsel. Prior counsel advised Asbury the
Borough's special counsel would be transferring ongoing matters, including this
matter, to Asbury.
On March 15, 2023, plaintiff moved to enforce litigant's rights, claiming
defendants had not provided the documents or timely provided Paff
certifications from the Council President and Kranjac. The court rejected this
argument. However, it reimposed the sanctions because defendants "made it
clear . . . compliance will not be freely given; therefore, it must be coerced."
Defendants were ordered to pay $38,870 in counsel fees and $38,500 in
sanctions. The court also imposed a daily fine of $1,250 if defendants did not
comply with its orders within ten days.
On September 7, 2023, the court conducted a conference. Plaintiff alleged
the Council President and Kranjac lied in their certifications and should be
sanctioned. On September 14, 2023, plaintiff submitted a consent order, signed
by plaintiff's counsel and Asbury, which had been approved by the Borough
Council. It stated the Council President and Kranjac would "provide their email
A-3905-23 6 account login information and passwords" for personal and professional email
accounts and a failure to comply would result in sanctions of $1,250 per day
until defendants complied. Asbury explained, during a review of the Borough's
search of Kranjac's emails, she discovered he "may have had more than one
private email address" containing at least three hundred emails responsive to the
OPRA request.
Kranjac objected to the consent order, noting one of the email accounts
was for KTP, which contained privileged communications. He also argued the
consent order should clarify all sanctions be paid to the court, not plaintiff.
On September 19, 2023, the court entered an order consistent with
plaintiff's consent order and directed Kranjac and the Council President provide
their email account login information and passwords. The order required
Kranjac's login information for his KTP, Dynamk, and Gmail email accounts to
the Borough's IT vendor to complete a search for emails and documents
responsive to the OPRA request. The order also imposed sanctions of $1,250
per day until defendants complied.
Kranjac moved to vacate the September order, or alternatively, for a stay
pending appeal. He certified his previous certifications were truthful and the
consent order was submitted without his knowledge or consent.
A-3905-23 7 On October 24, 2023, the court denied the motion. It also imposed daily
sanctions against Kranjac personally until he fully complied with Asbury's
requests and she certified to his compliance. The order required Kranjac's
compliance within ten days or he would have to appear and "show cause why he
should not be held in contempt." The court would also consider referring
Kranjac to the Office of Attorney Ethics.
To demonstrate his compliance with the court's October order, Kranjac
filed a certification from a partner at KTP, who stated he met with Asbury,
logged into Kranjac's KTP, Dynamk, and Gmail accounts, and allowed her to
search each account. However, due to security concerns, Asbury certified she
advised Kranjac she could not accept a transfer by thumb drive of the responsive
emails.
Asbury's search of the KTP account, with parameters set by the OPRA
request, yielded 295 emails. None of these emails matched the responsive
documents previously provided by defendants or Kranjac.
Asbury certified she was unable to access or review the electronic dataset
for Kranjac's KTP or Dynamk accounts as of November 3, 2023, but fifty-four
emails from his Gmail account had been forwarded to her firm for review. Four
emails from the Gmail search matched those in defendants' previous production.
A-3905-23 8 Asbury also certified the Council President complied with the October 24, 2023
order, and the results of the search of his email were provided to plaintiff.
However, she claimed Kranjac failed to comply.
On November 7, 2023, Kranjac filed an order to show cause to have the
court declare he complied with its October 24 order. On November 10, 2023,
KTP retained its own information technology (IT) firm to search Kranjac's KTP
and Dynamk email accounts. The director of the IT firm filed a certification
dated December 19, 2023, stating his firm was given the credentials for
Kranjac's email accounts with KTP and Dynamk and exported 343,353 and
49,098 emails, respectively. It then searched the email accounts pursuant to
Asbury's instructions and the results were forwarded to a group designated by
Asbury.
On November 17, 2023, the court denied Kranjac's order to show cause
and increased the sanctions against him from $250 to $350 per day. The court
reasoned it could "reach no other logical conclusion other than . . . Kranjac
continues to willfully obstruct the lawful production of emails he is required to
produce pursuant to OPRA." Kranjac was ordered to appear in person and
testify under oath, subject to examination by the court and cross-examination by
A-3905-23 9 Asbury and plaintiff's counsel, "regarding his failure to provide production of
subject emails."
On December 1, 2023, Kranjac again moved for an order declaring him in
compliance with the October 24 order and for a declaration that no sanctions be
entered against him. He certified he did not have administrative access to
Dynamk's email account and Dynamk did not grant his request for access.
Asbury told the court Dynamk informed her "no search had [yet] taken place
. . . of their servers."
On December 5, 2023, Kranjac's counsel asked Asbury to confirm Kranjac
complied with the court's order because she had the KTP production and was in
contact with Dynamk's counsel for assistance with production. Asbury rejected
the request as premature because the review of the dataset had not yet occurred .
When Kranjac's counsel asked what more was required to prove his client's
compliance, Asbury responded it was Kranjac and his attorney's responsibility
to prove to the court his compliance, not hers. She told Kranjac's counsel
Kranjac was "dragging his feet, and no amount of beating your chest will
eliminate the fact that he illegally withheld documents and was untruthful in
[three] certifications filed with the Court. That's your problem. You handle
him." Asbury refused to certify Kranjac's compliance with the court's order.
A-3905-23 10 On December 21, 2023, the court ordered Asbury to represent defendants
in this matter and continued the $350 per day sanctions against Kranjac. On
January 29, 2024, Kranjac's attorney wrote to the court, alleging nothing more
was required of his client to show compliance with the October 24 order. The
alleged disobedience of the court's order was concocted by Asbury who was
biased and whom the court "appointed as a de facto special [adjudicator] in this
case." Counsel urged the court, rather than Asbury, to decide whether Kranjac
complied with the court's order. Kranjac's attorney argued his client complied
because the order required him to provide his email account login information,
which he did, but Asbury decided she had the authority to direct Kranjac's IT
firm to conduct a search of his private email, which was not part of the court's
order.
The court held a hearing on January 29, 2024. Neither Kranjac nor his
attorney appeared, but the court noted the objections contained in his attorney's
letter. Plaintiff's counsel noted that in 2019, Kranjac "agreed not to send
Borough business to his law firm or partners or anybody else and he . . . blatantly
violated" the agreement, which was contained in a court order. Plaintiff's
counsel advised the court he deposed Kranjac a few weeks prior who "testified
that he sent blind copies [to himself] because he didn't trust the Borough email."
A-3905-23 11 Asbury told the court while defendants did their best to comply with its
orders, Kranjac was not cooperating. "He had adamantly refused to comply with
the requests of the defendants . . . [and] there was no other way [to] get any
compliance . . . ."
The court referred Kranjac to the Bergen County Prosecutor's Office "to
consider whether he should be prosecuted for misconduct in office for willfully
obstructing production of documents dealing with government business and
whether he perjured himself regarding the OPRA matter." It also referred the
matter to the Office of Attorney Ethics for willful interference with the
production of government documents and held Kranjac and his attorney in
contempt for their failure to appear.
On February 2, 2024, the court entered an order directing Kranjac to pay
$32,800 in sanctions; comprised of $6,000, reflecting a daily sanction rate of
$250 for twenty-four days of noncompliance, and $26,800 at the increased daily
rate of $350 for seventy-six days. The court also continued the sanctions at $350
per day, pending Asbury's certification of compliance.
On March 1, 2024, Kranjac moved for reconsideration or, in the
alternative, the trial court's recusal. The court denied his motion and ruled
Kranjac "has no standing in this OPRA matter. He is not a party to this action."
A-3905-23 12 On March 12, 2024, Kranjac moved for an order declaring the sanctions
against him ended. Asbury opposed the motion noting because he "ha[d] not yet
fulfilled his obligations under the previous nineteen . . . [o]rders," including
providing "sufficient Paff [c]ertifications." The court denied the motion and
declared it would not consider any further motions from Kranjac until he filed
an appropriate Paff certification and a Vaughn2 index.
On April 19, 2024, the Borough appointed Asbury "to provide [s]pecial
[c]ounsel services on OPRA matters and litigation matters." On May 8, 2024,
the Borough passed another resolution, terminating Asbury "on account of
irreconcilable differences over legal strategy." Although she had been
terminated, the resolution directed her to complete her review of emails in this
matter and provide a written report to the Borough's new counsel. New counsel
moved to relieve Asbury as counsel for the Borough and Borchers, and compel
Asbury to turn over copies of her files regarding this matter.
On May 24, 2024, Kranjac moved to vacate the orders entered against him
for lack of jurisdiction. On May 29, 2024, the court denied his motion, granted
plaintiff's cross-motion to enforce litigant's rights, and awarded her attorney's
fees and costs on the motion.
2 Vaughn v. Rosen, 484 F.2d 820, 827-28 (D.C. Cir. 1973). A-3905-23 13 Kranjac timely moved for reconsideration and, on July 29, 2024, the court
denied his motion and ordered him to pay attorney's fees totaling $27,829.40.
Because of Kranjac's failure to comply with the July order, the attorney's fees
were reduced to a judgment with interest on September 11, 2024.
I.
Kranjac challenges the trial court's jurisdiction over him because he was
neither a party nor a subject of the action. He asserts the court could not sanction
him due to the lack of jurisdiction. Kranjac also alleges the court erred when it
found he lacked standing.
Kranjac reiterates his claim the court improperly appointed Asbury as de
facto special adjudicator and relied on her representations to decide whether he
had complied with its orders and to sanction him. He asserts this was an
inappropriate delegation of judicial authority and only the Assignment Judge
could approve such an appointment. Consequently, Kranjac asks us to vacate
the sanctions.
Kranjac also seeks reversal of the sanctions because they are punitive. He
argues he provided indisputable evidence of compliance with the court's orders
and Asbury's requests. It was not his responsibility to search for the documents
sought and the court ignored the evidence he presented of his compliance.
A-3905-23 14 II.
"It is a principle of general application in Anglo-American jurisprudence
that one is not bound by a judgment in personam in a litigation in which [they
are] not designated as a party or to which [they have] not been made a party by
service of process." Hansberry v. Lee, 311 U.S. 32, 40 (1940). "A judgment
may, however, be binding upon non-parties in other matters if their interests
have been represented by a party." N. Haledon Fire Co. No. 1 v. Borough of N.
Haledon, 425 N.J. Super. 615, 628-29 (App. Div. 2012) (citing Morris Cnty.
Fair Hous. Council v. Boonton Twp., 197 N.J. Super. 359, 364-65 (Law Div.
1984)).
A non-party may also be bound if there was a "substantive legal
relationship" between them and a party to the action. Taylor v. Sturgell, 553
U.S. 880, 894 (2008) (alteration omitted). Non-parties who have "'assume[d]
control' over the litigation in which that judgment was rendered" may be bound
by a judgment, because "such a person has had 'the opportunity to present proofs
and argument.'" Id. at 895 (alteration in original) (first quoting Montana v.
United States, 440 U.S. 147, 154 (1979); and then quoting Restatement (Second)
of Judgments § 39 cmt. a, at 382 (A.L.I. 1982)).
A-3905-23 15 Personal jurisdiction is a question of law. Mastrondrea v. Occidental
Hotels Mgmt. S.A., 391 N.J. Super. 261, 268 (App. Div. 2007). Therefore, our
review is de novo. Ibid.
Under OPRA, "email logs on private servers are government records
under N.J.S.A. 47:1A-1," and are disclosable when the "emails concern[]
government business, sent to or from personal accounts of government
officials—if the emails fall within the definition of government records."
Rosetti v. Ramapo-Indian Hills Reg'l High Sch. Bd. of Educ. 1, 481 N.J. Super.
1, 4 (App. Div. 2025) (quoting Ass'n for Gov't Resp., Ethics, & Transparency v.
Borough of Mantoloking, 478 N.J. Super. 470, 489 (App. Div. 2024)). Courts
may compel a third party to produce records made on behalf of the subject of an
OPRA request; "to conclude otherwise, a governmental agency seeking to
protect its records from scrutiny could simply delegate their creation to third
parties or relinquish possession to such parties, thereby thwarting the policy of
transparency that underlies OPRA." Id. at 12 (quoting Burnett v. Cnty. of
Gloucester, 415 N.J. Super. 506, 517 (App. Div. 2010)). Courts may also
compel public employees to search their own accounts for data responsive to an
OPRA request. Id. at 14-15 (citing Lipsky v. N.J. Ass'n of Health Plans, Inc.,
474 N.J. Super. 447, 472 (App. Div. 2023)). However, upon a showing of
A-3905-23 16 "substantial need," the more invasive option of allowing for a third-party
forensic evaluation of devices or accounts may be permitted. Lipsky, 474 N.J.
Super. at 473-74.
Pursuant to these principles, there is no doubt the trial court had personal
jurisdiction over Kranjac. The September 19, 2023 consent order clearly
required Kranjac to provide the "email account login information and
passwords" for all three of his email accounts to the Borough's IT vendor to
conduct a search for responsive documents. When the court denied Kranjac's
motion to vacate the September order, it found Asbury credible. Asbury
certified she became aware of the personal email addresses while reviewing
Kranjac's Borough email account and even after the entry of the consent order,
he refused to search or "address[] . . . the existence of the email addresses."
The court validly believed a more invasive and intrusive solution was
necessary, namely, allowing the Borough's IT firm to search the email accounts.
When sanctions imposed on the Borough did not produce compliance, the court
turned to personal sanctions against Kranjac.
We reject Kranjac's assertion there was no jurisdiction because his
interests were not adequately presented. In his official capacity as mayor,
Kranjac was obliged to comply with OPRA and Asbury's attempts to assure
A-3905-23 17 compliance. It was not until Kranjac's attorney became involved, when he wrote
to the court to object to the September 2023 consent order, that one could
conclude Asbury was adverse to Kranjac.
III.
It follows from our discussion of personal jurisdiction that Kranjac had
standing to contest the court's orders. Standing rules "preclude actions initiated
by persons whose relation to the dispute may be described as 'total strangers or
casual interlopers,' a threshold we have described as 'fairly low.'" People for
Open Gov't v. Roberts, 397 N.J. Super. 502, 509 (App. Div. 2008) (quoting
Triffin v. Somerset Valley Bank, 343 N.J. Super. 73, 81 (App. Div. 2001)). A
party's lack of standing "precludes a court from entertaining any of the
substantive issues presented for determination." In re Adoption of Baby T., 160
N.J. 332, 340 (1999) (citing Watkins v. Resorts Int'l Hotel & Casino, 124 N.J.
398, 424 (1991); Crescent Park Tenants Ass'n v. Realty Equities Corp., 58 N.J.
98, 107 (1971)).
A party has standing if they can establish "a sufficient stake and real
adverseness with respect to the subject matter of the litigation [and a] substantial
likelihood of some harm . . . in the event of an unfavorable decision." Jen Elec.,
Inc. v. Cnty. of Essex, 197 N.J. 627, 645 (2009) (first alteration in original)
A-3905-23 18 (quoting In re Adoption of Baby T., 160 N.J. at 340). Our courts have
traditionally taken "a generous view of standing." In re N.J. State Cont. A71188,
422 N.J. Super. 275, 289 (App. Div. 2011).
The imposition of sanctions against Kranjac personally gave him a
sufficient stake to ask the court to consider his arguments about whether
sanctions were appropriate. The facts also show Kranjac was harmed by the
court's adverse rulings because the sanctions mounted, ultimately leading to the
entry of a money judgment against him, as well as liability associated with
potential criminal and ethics investigations.
"[W]hen considering whether a third party may become directly involved
in pending litigation or administrative action, our courts have repeatedly used
the phrase 'standing to intervene' as conceptually equivalent to 'standing.'" N.J.
Dep't of Env't Prot. v. Exxon Mobil Corp., 453 N.J. Super. 272, 287 (App. Div.
2018) (collecting cases). Even though Kranjac never filed a formal motion to
intervene, one was unnecessary because the court ruled on the substance of his
motions for relief from the sanctions before concluding he lacked standing.
For these reasons, we reverse the court's finding Kranjac lacked standing.
We next turn to his arguments regarding the sanctions, which also require
reconsideration.
A-3905-23 19 IV.
Kranjac argues the sanctions violated Rule 1:10-3 because they were
punitive. He claims he provided indisputable evidence of compliance with the
court's orders and Asbury's requests, and the court should have terminated the
sanctions. Kranjac also asserts the court erred when it found it was his
responsibility to conduct searches of his email accounts and refused to terminate
the sanctions until he did so to Asbury's satisfaction. He alleges the court
ignored several certifications from him and members of his law firm, attesting
he complied with Asbury's requests.
"The scope of relief in a motion in aid of litigants' rights is limited to
remediation of the violation of a court order." Abbott v. Burke, 206 N.J. 332,
371 (2011). "Relief under R[ule] 1:10-3, whether it be the imposition of
incarceration or a sanction, is not for the purpose of punishment, but as a
coercive measure to facilitate the enforcement of the court order." Ridley v.
Dennison, 298 N.J. Super. 373, 381 (App. Div. 1997).
A condition precedent to granting enforcement under Rule 1:10-3 is a
court finding the failure to comply with its orders was unjustified and willful.
See P.T. v. M.S., 325 N.J. Super. 193, 206-07, 220 (App. Div. 1999). "[P]unitive
or coercive relief under the Rule cannot be used against one who is not a willful
A-3905-23 20 violator of a judgment[] . . . ." In re N.J.A.C. 5:96 & 5:97, 221 N.J. 1, 18 (2015);
see also Pressler & Verniero, Current N.J. Court Rules, cmt. 4.3 on R. 1:10-3
(2025) ("Before punitive or coercive relief can be afforded, the court must be
satisfied that the party had the capacity to comply with the order and was
willfully contumacious.").
The decision to impose sanctions for violating a court order is
discretionary. Kornbleuth v. Westover, 241 N.J. 289, 300 (2020) (citing
Gonzalez v. Safe & Sound Sec. Corp., 185 N.J. 100, 115 (2005)). A trial court
abuses its discretion "when the decision to impose sanctions 'is made without a
rational explanation, inexplicably depart[s] from established policies, or rest[s]
on an impermissible basis.'" Id. at 300-01 (alterations in original) (quoting U.S.
Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467 (2012)).
Kranjac was sanctioned for noncompliance with the September 19, 2023
order. This order required he provide his "email account login information and
passwords . . . to [d]efendants to provide to the Borough's IT Vendor, Ocean IT,
and/or another vendor to conduct a complete search . . . within thirty . . . days
of this [o]rder, and provide all responsive documents to [p]laintiff within thirty
. . . days of receipt from the vendor."
A-3905-23 21 Asbury certified her firm sent requests to Kranjac's counsel for contact
information of the IT vendors for KTP and Dynamk on October 27, 2023. She
noted Kranjac and his attorney were "responsible for providing access to these
accounts" and Kranjac would be sanctioned if she did not get access by Saturday.
Kranjac's attorney replied he would provide login credentials for all three
accounts; named KTP's IT vendor; supplied the vendor's contact information;
and offered to put a KTP partner, the Borough, and the vendor in touch with
each other.
Asbury also certified, when she met with the KTP partner on November
1, 2023, he allowed her to conduct searches of the three email accounts once he
had logged in and offered her the passwords to Kranjac's email accounts. She
refused the login information because "there was no purpose in retaining
personal passwords that should be changed on a regular basis." Asbury certified
the email portal used by both the KTP and Dynamk accounts was Microsoft
Outlook. She also certified Kranjac's Gmail, provided by Google, "does not
grant account holders administrative access which would permit metadata
extraction," but fifty-four responsive emails were found and forwarded to her
firm for review.
A-3905-23 22 Asbury's certification clearly demonstrated Kranjac had complied with the
court's orders even though she refused to certify his compliance. If this and
Kranjac's representations were not believable, Kranjac had also provided
certifications from KTP's IT vendor which certified it: was retained on
November 10, 2023; had conducted the court-ordered searches of the KTP and
Dynamk email accounts on November 20, 2023; and forwarded them according
to Asbury's instructions. On December 6, 2023, Asbury confirmed the "transfer
of the dataset has taken place," although the forensic search had not yet been
completed. These circumstances did not support the ongoing imposition of
sanctions.
On the other hand, we cannot ignore that before KTP's IT vendor's search,
the court had ordered Kranjac to appear on December 11, 2023, to answer for
his contempt if Asbury did not certify his compliance within ten days, yet he
failed to appear. His appearance may have obviated the contempt finding.
However, his relationship with Asbury had become adversarial again.
For these reasons, we vacate the December 21, 2023 order and all
subsequent orders sanctioning Kranjac, and remand for a hearing to determine
the date on which Kranjac demonstrated compliance with the court's order by
providing sufficient information regarding the login of his email accounts. The
A-3905-23 23 court shall have discretion whether to take testimony to decide this issue. Once
the court makes this finding, it shall determine what sanctions, if any, are
necessary, including for his failure to appear in court.
Finally, Kranjac claims the court delegated its judicial authority to Asbury
whom it appointed as a de facto special adjudicator to find the facts and
sanctioned him based on whether Asbury certified his compliance with her
requests. Kranjac reiterates only the Assignment Judge can appoint a special
adjudicator, and the orders imposing and increasing sanctions should be vacated.
Rule 4:41 permits the delegation of judicial authority through the
appointment of special adjudicator. The Rule applies only where the
Assignment Judge approves the appointment and the parties consent, or where
there are extraordinary circumstances. R. 4:41-1.
A special adjudicator is appointed "to report only upon particular issues
or to do particular acts or to receive and report evidence only." R. 4:41-3.
Courts "evaluate a special [adjudicator]'s factual findings 'in the same manner
as [they] would the findings and conclusions of a judge sitting as a finder of
fact.'" State v. Henderson, 208 N.J. 208, 247 (2011) (quoting State v. Chun, 194
N.J. 54, 93 (2008)). The role of a special adjudicator is "purely advisory," and
A-3905-23 24 decision-making powers remain with the trial court. Deland v. Twp. of Berkeley
Heights, 361 N.J. Super. 1, 12 (App. Div. 2003) (citing S. Burlington Cnty.
NAACP v. Twp. of Mount Laurel, 92 N.J. 158, 284-85 (1983)).
Special adjudicators notwithstanding, trial courts have discretion "to craft
orders appropriate to the facts before them." N.J. Div. of Youth & Fam. Servs.
v. M.G., 427 N.J. Super. 154, 170-71 (App. Div. 2012) (quoting Il Grande v.
DiBenedetto, 366 N.J. Super. 597, 621 (App. Div. 2004)). A court is not
"required to utilize a particular method—shown to be ineffective—only because
it is more tepid than a severe method more likely to gain compliance." Bd. of
Educ., Twp. of Middletown v. Middletown Twp. Educ. Ass'n, 352 N.J. Super.
501, 509 (Ch. Div. 2001).
Asbury was never appointed as a special adjudicator. She represented
defendants and had a duty to comply with the court's orders compelling them to
abide by OPRA. Although she was required to certify compliance with the
court's orders, her actions were all her own and not directed by the court as
envisioned by Rule 4:41-3. That Asbury had to certify Kranjac's compliance
was a product of his role as mayor and the court's incorrect finding that he lacked
standing. However, no judicial authority was delegated to Asbury. The court's
orders were a means to achieve defendants' compliance with OPRA.
A-3905-23 25 VI.
In sum, all orders personally sanctioning Kranjac from December 21, 2023
onwards are vacated. The trial court shall reconsider the issue of sanctions. The
court has personal jurisdiction over Kranjac and he has standing to address the
issue of the personal sanctions imposed against him.
Reversed and remanded for further proceedings. We do not retain
jurisdiction.
A-3905-23 26