Scott Madlinger v. Township of Independence

CourtNew Jersey Superior Court Appellate Division
DecidedDecember 1, 2023
DocketA-0474-22
StatusUnpublished

This text of Scott Madlinger v. Township of Independence (Scott Madlinger v. Township of Independence) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Scott Madlinger v. Township of Independence, (N.J. Ct. App. 2023).

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0474-22

SCOTT MADLINGER,

Plaintiff-Appellant,

v.

TOWNSHIP OF INDEPENDENCE, and DENA M. HREBENAK, in her official capacity as Municipal Clerk and Records Custodian of the Township of Independence,

Defendants-Respondents.

Argued November 15, 2023 – Decided December 1, 2023

Before Judges Currier, Firko and Vanek.

On appeal from the Superior Court of New Jersey, Law Division, Warren County, Docket No. L-0114-22.

Christina N. Stripp argued the cause for appellant (Cohn Lifland Pearlman Herrmann & Knopf LLP, attorneys; Walter Michael Luers and Christina N. Stripp, on the briefs).

William Henry Pandos argued the cause for respondents (Lavery, Selvaggi, Abromitis & Cohen, attorneys; James F. Moscagiuri and William Henry Pandos, on the brief).

PER CURIAM

Plaintiff Scott Madlinger appeals from an October 12, 2022 Law Division

order dismissing his verified complaint with prejudice and denying his request

for counsel fees against defendants, Township of Independence (Township), and

its Municipal Clerk, Dena M. Hrebenak. In his verified complaint, plaintiff

alleged defendants failed to produce unredacted invoices for legal services in

violation of the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and

the common law right-of-access. Because the trial court did not provide any

reasons for its decision as required under Rule 1:7-4(a), we are constrained to

vacate the order and remand for further proceedings.

We discern the following material facts from the record. On April 8, 2022,

plaintiff sent an email to the Township requesting:

Legal invoices for all legal services rendered and reimbursed by Town since January 1, 2020, including Town Counsel and Labor Counsel and any other attorney work performed for and paid by the Town.

On April 21, 2022, Hrebenak sent an email in reply attaching the

"Township Committee legal and labor bills for 2022" and advising the 2021

invoices would be forthcoming. Hrebenak also requested a one-week extension

A-0474-22 2 to send the 2020 invoices. On May 13, 2022, Hrebenak sent a copy of the 2020

invoices to plaintiff along with a Vaughn1 index as to the attorney-client

communications and confidential personnel information redacted from the

documents.

Plaintiff filed an order to show cause (OTSC) and verified complaint

challenging the legality of the redactions and to compel defendants to provide

unredacted copies of the legal invoices. 2 Plaintiff also requested counsel fees.

After a hearing on July 8, 2022, the court entered an order with an accompanying

fifteen-page written statement of reasons requiring defendants to submit the

unredacted records to the court for an in camera review. The court concluded,

in part, that "[a]lthough attorney billing records are not in-and-of themselves

exempted from disclosure under OPRA, it is undisputed that line-item billing

1 Originally set forth in Vaughn v. Rosen, 484 F.2d 820, 826-27 (D.C. Cir. 1973), Vaughn indices were incorporated into New Jersey caselaw in part through Loigman v. Kimmelman, 102 N.J. 98, 109-13 (1986). "The 'Vaughn index must consist of one comprehensive document, adequately describe each withheld document or redaction, state the exemption claimed, and explain why each exemption applies.'" Davis v. Disability Rights N.J., 475 N.J. Super. 122, 146 (App. Div. 2023) (quoting Cozen O'Connor v. U.S. Dep't of Treasury, 570 F. Supp. 2d 749, 765 (E.D. Pa. 2008)). 2 The court denied the initial OTSC on May 23, 2022 because the verified complaint that was filed did not align with the OPRA request and, instead, referenced documents sought regarding an unrelated arrest.

A-0474-22 3 descriptions should be redacted where they contain information that is subject

to attorney-client privilege or is otherwise exempt from disclosure." The court

found it could not "determine whether [d]efendant[s'] records f[e]ll under any

of the various factors [d]efendant[s] listed (reasonable expectation of privacy,

work product privilege, common law right[-]of[-]access, [et cetera])" without

reviewing the unredacted documents. The court reserved decision on plaintiff's

request for an award of counsel fees pending the in camera review.

On July 20, 2022, defendants submitted both unredacted and redacted

versions of the documents to the court. On July 28, 2022, the court sent counsel

a letter stating the court found the redacted material was "sufficient." No order

or statement of reasons accompanied the letter.

On August 24, 2022, plaintiff submitted a proposed form of order

dismissing the action with prejudice and denying the request for prevailing party

counsel fees as a final order, thus closing the case. On October 12, 2022, the

court entered the final order in the form proposed. This appeal followed.

On appeal, plaintiff contends the trial court failed to set forth an oral or

written statement of facts and legal reasons that led to the entry of the October

12, 2022 final order as required by Rule 1:7-4(a). Plaintiff also posits that

defendants have not supported the rationale for the redactions with satisfactory

A-0474-22 4 evidence and, therefore, have not met their burden of establishing that the

information redacted was privileged. Additionally, plaintiff maintains that he

must be awarded counsel fees as a prevailing party.

Our review of a trial court's legal conclusions in an OPRA action is de

novo. Dig. First Media v. Ewing Tp., 462 N.J. Super. 389, 397 (App. Div. 2020).

However, we employ "a different and deferential standard of review when a

court conducts in camera review of documents and balances competing interests

in disclosure and confidentiality in connection with a common-law-based

request to inspect public records." N. Jersey Media Grp., Inc. v. Twp. of

Lyndhurst, 441 N.J. Super. 70, 89 (App. Div. 2015). In that event, it is not

proper to disturb factual findings unless they are not supported by adequate,

substantial, and credible evidence. Meshinsky v. Nichols Yacht Sales, Inc., 110

N.J. 464, 475 (1988).

Plaintiff does not assert the trial court erred in ordering an in camera

review of the unredacted documents. Indeed, where the documents were so

heavily redacted as to be incomprehensible to a reader, the court's decision was

well-supported. However, we cannot meaningfully review the court's

determination that the redactions were "sufficient" because no reasons were

provided for the decision.

A-0474-22 5 Rule 1:7-4(a) requires that "[t]he court shall, by an opinion or

memorandum decision, either written or oral, find the facts and state its

conclusions of law thereon in all actions tried without a jury, on every motion

decided by a written order that is appealable as of right . . . ." Findings of fact

and conclusions of law are required on "every motion decided by [a] written

order[] . .

Free access — add to your briefcase to read the full text and ask questions with AI

Related

O'Connor v. United States Department of Treasury
570 F. Supp. 2d 749 (E.D. Pennsylvania, 2008)
Curtis v. Finneran
417 A.2d 15 (Supreme Court of New Jersey, 1980)
Meshinsky v. Nichols Yacht Sales, Inc.
541 A.2d 1063 (Supreme Court of New Jersey, 1988)
Salch v. Salch
573 A.2d 520 (New Jersey Superior Court App Division, 1990)
Kas Oriental Rugs, Inc. v. Ellman
972 A.2d 413 (New Jersey Superior Court App Division, 2009)
UNITED CONS. FIN. SER. v. Carbo
982 A.2d 7 (New Jersey Superior Court App Division, 2009)
Schwarz v. Schwarz
745 A.2d 592 (New Jersey Superior Court App Division, 2000)
Loigman v. Kimmelman
505 A.2d 958 (Supreme Court of New Jersey, 1986)
North Jersey Media Group, Inc. v. Township of Lyndhurst
116 A.3d 570 (New Jersey Superior Court App Division, 2015)

Cite This Page — Counsel Stack

Bluebook (online)
Scott Madlinger v. Township of Independence, Counsel Stack Legal Research, https://law.counselstack.com/opinion/scott-madlinger-v-township-of-independence-njsuperctappdiv-2023.