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New Jerseyans for a Death Penalty Moratorium v. New Jersey Dep't of Corrections

June 16, 2004


On appeal from Superior Court of New Jersey, Law Division, Mercer County, L-1740-02.

Before Judges Pressler, Alley and Bilder.

The opinion of the court was delivered by: Bilder, J.A.D. (retired and temporarily assigned on recall)


Argued May 11, 2004

This appeal arises from public interest litigation with respect to the adoption by the Department of Corrections of regulations prescribing procedures for carrying out a sentence of death by lethal injection. In connection with that litigation, plaintiff New Jerseyans for a Death Penalty Moratorium, after failing to obtain access to documents from defendant Department of Corrections, instituted suit under the Open Public Records Act, N.J.S.A. 47:1A-1 to 13, an act which inter alia provides for an award of reasonable counsel fees to a prevailing requester. N.J.S.A. 47:1A-6. Claiming to be a prevailing party, plaintiff applied for an enhanced attorney- fee of $18,239.25. See Rendine v. Pantzer, 141 N.J. 292, 316 (1995). The court awarded $8,146.57.

In the decision below, the trial judge recognized that plaintiff's attorney had represented it on a pro bono basis with no expectation of payment by his client. The trial judge then determined plaintiff was a prevailing party; the reasonable hours spent by plaintiff's attorney on the OPRA privilege issues was 51.1 hours; the reasonable hourly rate for his services was $155; although plaintiff was a prevailing party, it obtained only a partial success of 70%, thus subjecting the fee application to a 30% reduction; and the attorney was entitled to a 5% fee enhancement. These findings resulted in an award of $6,596.57. The trial judge also considered a supplemental application for fees in connection with the fee application, as to which she determined the reasonable hours spent on the supplemental brief to be 10 hours, which resulted in an additional award of $1550. A final judgment was entered requiring defendant to pay plaintiff's attorney $8,351.57 for costs and fees associated with the OPRA litigation.

Defendant Department of Corrections appeals from so much of the final judgment as recognized fee enhancement in calculating the fee award. Plaintiff cross-appeals from so much of the final judgment as reduced the reasonable hours spent by its attorney on the fee application from 70 to 10 hours*fn1; subjected the litigation fee to a 30% reduction for lack of complete success; and treated its attorney, as a public interest attorney, differently from for-profit attorneys.

The Appeal. The issue raised by defendant on this appeal relates solely to the question of whether the fee enhancement principles adopted by the Supreme Court in Rendine apply to a case in which a pro bono attorney, acting without benefit of a written contingent fee agreement and without expectation of fee from his client, successfully litigates a public interest matter under a statute containing a fee-shifting provision.

We start by noting, as did the Supreme Court in Szczepanski v. Newcomb Med. Center,"that the reasonable counsel fee payable to the prevailing party under fee-shifting statutes is determined independently of the provision of the fee agreement between that party and his or her counsel." 141 N.J. 346, 358 (1995). The goal is the award of a"reasonable fee." In this determination we are told in Rendine that the trial court should carefully establish the amount of the lodestar fee*fn2 and then"consider whether to increase that fee to reflect the risk of nonpayment in all cases in which the attorney's compensation entirely or substantially is contingent on a successful outcome." Rendine, supra, 141 N.J. at 337. The issue is whether enhancement applies where the plaintiff's attorney is acting pro bono publico without benefit of any written retainer agreement. We are satisfied it should because the possibility of compensation, i.e. contingent compensation, inheres in the existence of the fee-shifting provision.

More importantly, the proper implementation of the fee- shifting provision of OPRA is necessary to the Legislature's determination that, subject to exceptions for the protection of the public interest, government records should be readily accessible to the public. N.J.S.A. 47:1A-1. Successful litigation of a case brought under this act vindicates this important interest. The Legislature in its wisdom has recognized the practical fact that the right to obtain unprivileged public documents will often be empty without the promise of recompense contingent on success in court. For the ordinary person, it is the fee-shifting provision that opens the courthouse door.

The State contends as a matter of public policy it is inappropriate to apply enhancement when the attorney's fee is to be paid by a public entity - that such a burden should not be visited upon the taxpayers. The argument misapprehends two important elements. First, the Legislature has determined as a matter of public policy that reasonable attorney fees shall be paid to those who are required to litigate their right to obtain access to unprivileged public documents. A public entity will always be the defendant in such suits. Secondly, enhancement is not a separate award but merely a mechanism whereby the legislated goal of a"reasonable fee" in the circumstances can be calculated.

We are satisfied that the trial judge acted properly in applying the principles of Rendine to enhance the lodestar fee. We are not as confident with respect to the amount of that enhancement.

As we have already noted, enhancement of the lodestar amount is merely a mechanism for awarding a"reasonable fee." It reflects the contingent nature of the legal services performed and may also reflect the likelihood of success. Rendine, supra, 141 N.J. at 340. Stated more succinctly, it takes into account the contingent nature of the undertaking and legal difficulties to be faced. Here, absent success, the risk of nonpayment was total and the"legal" risks unknowable. Access to the public records having been restricted, plaintiff was forced to play a sort of blind-man's buff in the pursuit of its rights. And success could not be measured in monetary terms but only in the vindication of the right of access to improperly withheld unprivileged records.

In Rendine the court suggested that the appropriate range of enhancements ordinarily should range between five and fifty percent of the lodestar fee, and more typically should range between twenty and thirty-five percent. Id. at 343. In reliance on the persuasive effect of H.I.P. v. K. Hovnanian at Mahwah, 291 N.J. Super. 144 (Law Div. 1996), and motivated by her perception that plaintiff's attorney's long history of unpaid service as Chair of plaintiff's Legal Committee and his willingness to undertake this litigation on a strictly pro bono basis evidenced that he required little financial motivation to undertake the representation, the trial judge awarded a minimal fee enhancement of five percent. We reject the notion that an attorney's willingness to provide uncompensated services to a public interest organization depreciates the value of his services and has a negative effect on a determination of ...

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