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Dugan v. Camden County Clerk's Office

March 22, 2005

JOSEPH DUGAN, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFF-APPELLANT,
v.
CAMDEN COUNTY CLERK'S OFFICE AND JAMES BEACH IN HIS CAPACITY AS THE CAMDEN COUNTY CLERK, AND BURLINGTON COUNTY CLERK'S OFFICE AND PHILIP E. HAINES IN HIS CAPACITY AS THE BURLINGTON COUNTY CLERK, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Burlington County, L-2906-03.

Before Judges Braithwaite, Lisa and Winkelstein.

The opinion of the court was delivered by: Lisa, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 2, 2005

This case calls into question the amounts charged by certain county clerks for use by the public of self-service copiers provided by the clerks to photocopy documents recorded in their offices and available for self-inspection by the public. Plaintiff, Joseph Dugan, occasionally searches and copies such documents pertaining to deeds, mortgages and other lien information as part of his business. He initiated a putative class action against the Camden and Burlington County Clerks, who offer self-service copiers at a charge of $1 and $.50 per page respectively, as an alternative to having the clerks copy the documents. Plaintiff alleges those amounts exceed the charges legally allowable and seeks a refund of the alleged overcharges.

Before ruling on class certification, the trial judge concluded the charges were legally authorized and dismissed the complaint. The judge found that the amounts the clerks may charge for the self-service copies are controlled by N.J.S.A. 22A:2-29, and are thus unaffected by the lower charges allowable under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. We disagree and reverse.

The documents in question are instruments entitled to record, see, e.g., N.J.S.A. 46:16-1 to -19, which the clerk is required to compile in appropriate record books, see, e.g., N.J.S.A. 46:19-1 to -2, make required marginal or other notations, see, e.g., N.J.S.A. 46:19-3, and assign book and page numbers and establish indices. See, e.g., N.J.S.A. 46:20-1 to -5. The clerks are required to maintain the record books in a manner that allows public access during regular business hours. N.J.S.A. 46:19-1.

Plaintiff relies upon OPRA, in which the Legislature declared as the public policy of this State that"government records shall be readily accessible for inspection, copying, or examination by the citizens of this State...." N.J.S.A. 47:1A-1. OPRA defines"government record" as"any paper, written or printed book, document... that has been made, maintained or kept on file in the course of his or its official business by any officer... of the State or any political subdivision thereof...." N.J.S.A. 47:1A-1.1. The documents in question plainly meet this definition, and subject to certain exceptions not here relevant, the custodian of such records must make them available to be inspected, examined, and copied by any person during regular business hours. N.J.S.A. 47:1A-5a.

These records are kept in a public area. Plaintiff's access to them has been unfettered. He could inspect and examine them independently, without interaction with any employee of the clerks' offices. He could also hand copy them at his pleasure without involvement of the clerks' employees and without charge. To purchase a photocopy, however, OPRA provides:"A copy or copies of a government record may be purchased by any person upon payment of the fee prescribed by law or regulation, or if a fee is not prescribed by law or regulation, upon payment of the actual cost of duplicating the record." N.J.S.A. 47:1A-5b. The fee shall not exceed $.75 for pages one to ten, $.50 for pages eleven to twenty, and $.25 for each page in excess of twenty, and the actual cost shall be the cost of materials and supplies used to make a copy, but shall not include labor or other overhead. Ibid.

Defendants contend that N.J.S.A. 22A:2-29 establishes a"fee prescribed by law" for copies of documents recorded or filed in their offices, thus removing them from the OPRA fee provisions. N.J.S.A. 22A:2-29 provides that"[u]pon the filing, indexing, entering or recording of the following documents or papers in the office of the county clerk,... such parties, filing or having the same recorded or indexed in the county clerk's office... shall pay the following fees... for the filing, recording or entering of such documents or papers:" What follows is a list of seventy-two separate items, each with a specified fee. Defendants rely on these two items:"Comparing and making copies, per sheet... $2.00" and"Copies of all papers, typing and comparing of photostat, per page... $2.00."

Plaintiff points out that all of the listed items require the clerk to perform some service, such as recording an inheritance tax waiver ($15), filing a hospital lien claim ($15), recording and indexing postponement of the lien of judgment ($20), and issuing a transcript of judgment ($7.50). Thus, plaintiff argues, in order for the clerks to be entitled to the prescribed $2 fee for making a photocopy, the clerk must perform the service. Plaintiff concedes that if he asked the clerk to make the copy for him, he would be liable for the $2 per page fee.*fn1 But plaintiff insists that his making of a self service copy is not encompassed in N.J.S.A. 22A:2-29.

The trial judge rejected plaintiff's argument. He acknowledged that"[n]o place in the statute is there a listing of a charge for copies made by a party on a self-service copier." Nevertheless, the judge concluded that a copy of a document filed or recorded in a county clerk's office, by whomever made, is governed by N.J.S.A. 22A:2-29, and therefore subject to the fee there prescribed rather than those prescribed by OPRA. Thus, according to the judge, defendants properly charged plaintiff pursuant to N.J.S.A. 22A:2-29. But they did not charge the prescribed fee of $2 per page. They charged $1 in Camden County and $.50 in Burlington County. To reconcile this result, the judge noted, with approval, that defendants"have opted for self-service copying fees at rates below that authorized by N.J.S.A. 22A:2-29 since such fees are not specified with particularity in the statute." (Emphasis added).

We find this reasoning fatally inconsistent. It rests upon the proposition that N.J.S.A. 22A:2-29 establishes a"fee prescribed by law" for the copies, thus making OPRA inapplicable. N.J.S.A. 47:1A-5b. Yet it rests on the contrary proposition that a self-service copying fee is not prescribed by N.J.S.A. 22A:2-29, thus allowing the clerks to charge any amount they wish.

That the clerks charged less than $2 does not cure the problem. The fees prescribed by N.J.S.A. 22A:2-29 are mandatory, not directory. The statute provides that the clerk"shall" charge the specified fees. The statute's clear purpose is to establish uniform fees for all county clerks throughout the state. See Statement to Assembly Bill No. 176, (February 2, 1926) (predecessor to N.J.S.A. 22A:2-29) ("The object of this bill is to codify and make uniform all the fees charged by the county clerks in the various counties of the state."). Unless a contrary meaning is justified by the character of a legislative enactment, the use of the term"shall" conveys a mandatory meaning. Cryan v. Klein, 148 N.J. Super. 27, 30-31 ...


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