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Tarus v. Borough of Pine Hill

March 7, 2007

ROBERT WAYNE TARUS, PLAINTIFF-APPELLANT,
v.
BOROUGH OF PINE HILL, MAYOR LESLIE GALLAGHER AND POLICE CHIEF JOHN WELKER, DEFENDANTS-RESPONDENTS,
AND
JOHN B. KEARNEY, ESQUIRE AND JOHN B. KEARNEY & ASSOCIATES, P.C., DEFENDANTS.



On certification to the Superior Court, Appellate Division, whose opinion is reported at 381 N.J. Super. 412 (2005).

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

ZAZZALI, C.J., writing for a unanimous Court.

This appeal requires the Court to examine whether the public's right of access to governmental proceedings under New Jersey law includes the right to videotape.

Plaintiff Robert Wayne Tarus, a fifteen-year resident of the Borough of Pine Hill (Borough) and active in local politics, regularly attended and participated in Borough Council meetings. Tarus considered himself a Borough public watchdog, often criticized the Borough's Mayor and Council, and believed they changed their policy positions from meeting to meeting.

At a June 2000 Council meeting, Tarus began videotaping the proceedings from the rear corner of the room. One councilman objected on the ground that the camera might intimidate residents in the audience. Tarus asserted that he had a right to videotape the meeting. The Mayor echoed the councilman's concerns about the videotaping, and asked whether any public attendees objected to the videotaping. When no one objected, the meeting proceeded and Tarus videotaped it in its entirety.

Tarus attended the Council's September meeting, and set up his camera in the back of the room to videotape. The Mayor informed Tarus that several individuals did not want to be videotaped and ordered Tarus to turn off the camera. When Tarus refused, the Mayor directed the Police Chief to remove him. Tarus was escorted out of the meeting and issued a "disorderly persons" summons. Although the Mayor's opposition originally was couched in terms of objections from the audience, the Mayor later stated that he was concerned Tarus might alter the videotape and then broadcast it. The Mayor also was quoted in a local newspaper, stating that the Council could not permit "private people" to film meetings, and that "If [Tarus] was a decent resident, we would have no problem."

A month later, Tarus attempted to videotape the October Council meeting. The Mayor asked Tarus to turn off the camera before the meeting began, and Tarus refused. The Mayor also offered to permit Tarus to videotape from the front of the room. Tarus refused because he would be unable to record all Council members and would be obstructing views of the audience. The Mayor directed the Police Chief to remove Tarus, which he did. Tarus also was issued another summons for disorderly conduct.

A municipal court acquitted Tarus on the two disorderly persons summonses one week later. A short time after that, the Borough approved guidelines that allow "anyone [to] videotape the meeting as long as they are not disruptive." Since the adoption of those guidelines, Tarus has been permitted to videotape Council meetings.

In 2001, Tarus filed a § 1983 complaint in federal District Court against the Borough and the Mayor, alleging he was arrested without probable cause, malicious prosecution, and violations of the U.S. Constitution. He also alleged state claims, including violations of his constitutional and common law rights to videotape, false arrest, malicious prosecution, and defamation. The District Court granted defendants' motions for summary judgment concerning all the federal claims, and declined to exercise jurisdiction over the state claims.

In 2003, Tarus filed a complaint in the Law Division re-alleging his state law claims. The Law Division held that Tarus's right of access under the State Constitution did not include a right to videotape. It also determined that there was probable cause to arrest Tarus and disposed of the claims of false arrest and malicious prosecution. Finally, the Law Division rejected Tarus's defamation claim, finding that the "decent resident" comment was rooted in opinion and impervious to being proven true or false.

The Appellate Division affirmed. Tarus v. Borough of Pine Hill, 381 N.J. Super. 412 (App. Div. 2005). It found no constitutional right to videotape, and determined that to the extent that a right to videotape exists under the common law, the exercise of that right is not absolute, but subject to reasonable governmental regulation and control. The panel found that the restrictions imposed on Tarus were "neither arbitrary nor capricious, but eminently reasonable under the circumstances." The Supreme Court granted Tarus's petition for certification.

HELD: There is a common law right to videotape a municipal council meeting subject to reasonable restrictions. The Borough and its Mayor violated that right here by imposing arbitrary and unreasonable restrictions that prevented Tarus from videotaping the Council meetings in question.

1. New Jersey courts have long recognized a common law right to public information. In addition, our courts have afforded citizens effective means to record the information gleaned during public proceedings. The right to videotape public meetings was first addressed in Maurice River Township Board of Education v. Maurice River Township Teachers Ass'n, 187 N.J. Super. 566 (Ch. Div. 1982), aff'd, 193 N.J. Super. 488 (App. Div. 1984). In that case, the Appellate Division affirmed the trial court's holding that there is a right to videotape municipal proceedings in New Jersey. Although the Maurice River decisions may not have been decided exclusively on common law grounds, they rely on broad common law protections of open government to support the conclusion that a right to videotape exists in New Jersey. (pp. 11-21)

2. The Legislature's enactments also provide statutory support for the common law right to videotape. The most recent and relevant statutory incarnation of the right is the Open Public Meetings Act (OPMA). N.J.S.A. 10:4-6 to -21. Every state and the District of Columbia have codified open public meetings laws. Some of these statutes explicitly guarantee the right to videotape public meetings. Courts in some of the other states have found support for a right to videotape based on a liberal interpretation of their statutes, the relevant language of which is substantially similar to that of New Jersey's OPMA. The law has embraced the undeniable fact that modern electronic devices are silent observers of history. These legal foundations support a finding that there is a common law right to videotape. Because the Court recognizes a common law right to videotape, it declines to examine the issue through the prism of the New Jersey Constitution. Constitutional questions should be addressed only when necessary to resolve a pending controversy. (pp. 21-25)

3. The common law right to videotape is neither absolute nor unqualified. Public bodies may impose reasonable guidelines to ensure that the recording of meetings does not disrupt the business of the body or other citizens' right of access. However, if a public body chooses to exercise the opportunity to formulate guidelines, that decision in no way postpones the accrual of the right to videotape until guidelines are established. The Borough violated Tarus's common law right to videotape. The Mayor and Borough declined to implement appropriate guidelines and instead created ad hoc restrictions intended to block a critic from videotaping Council meetings. Because those actions were not neutral and reasonable, they amounted to impermissible restrictions on Tarus's common law right to videotape. (pp. 25-31)

4. Tarus is estopped from relitigating his contention that the Borough lacked probable cause for his arrest under the doctrine of res judicata. The federal District Court determined this issue, concluding there was probable cause for the issuance of the disorderly persons summons. Because probable cause is an absolute defense to an allegation of malicious prosecution or false arrest, Tarus's claims must fail. (pp. 31-33)

The judgment of the Appellate Division is AFFIRMED IN PART and REVERSED IN PART, and the matter is REMANDED to the trial court for further proceedings consistent with this opinion.

JUSTICES LONG, LaVECCHIA, ALBIN, WALLACE, RIVERA-SOTO and HOENS join in CHIEF JUSTICE ZAZZALI's opinion.

The opinion of the court was delivered by: Chief Justice Zazzali

Argued October 31, 2006

During our nation's formative days, Patrick Henry declared that "[t]he liberties of a people never were, nor ever will be, secure, when the transactions of their rulers may be concealed from them." The Debates in the Several State Conventions on the Adoption of the Federal Constitution, As Recommended by the General Convention at Philadelphia in 1787 169-70 (J. Elliot ed., 1881). With that rationale for open government as our backdrop, in this appeal we examine the breadth of the public's right of access to governmental proceedings under New Jersey law.

At two municipal proceedings in 2000, disputes arose between plaintiff and defendants concerning plaintiff's efforts to videotape the Council meetings. During each meeting, because he refused to comply with the Mayor's order to cease videotaping, the police chief removed plaintiff from the premises and arrested him. Plaintiff was found not guilty of disorderly conduct and subsequently filed this lawsuit. We are thus presented with the questions whether plaintiff has a right, under the common law or the New Jersey Constitution, to videotape those public meetings and, if so, whether defendants violated such a right. We must also decide whether there was probable cause to arrest plaintiff.

We affirm the Appellate Division's determination that there exists a common law right to videotape a municipal council meeting subject to reasonable restrictions. We find, however, that the Borough and its Mayor violated plaintiff's common law right by imposing arbitrary and unreasonable restrictions that prevented plaintiff from videotaping the Council meetings in question. We also conclude that plaintiff's arrest was premised on probable cause.

I.

A.

Plaintiff Robert Wayne Tarus, a fifteen-year resident of the Borough of Pine Hill (Borough) and active in local politics, regularly attended and participated in Borough Council meetings. Plaintiff considered himself a Borough public watchdog, often criticized the Borough's Mayor and Council, and believed that they changed their policy positions from meeting to meeting. At the March 2000 Council meeting, plaintiff "voiced his opinion" in support of recording public meetings and argued that several judicial decisions had established that "no permission is required to videotape meetings." At the Council's June 2000 meeting, plaintiff began videotaping the proceeding from the rear corner of the room. The Mayor and Council conducted a swearing-in ceremony for three new Borough police officers at the start of the meeting, during which time the officers' family and friends videotaped and photographed the event. Plaintiff continued to videotape the proceeding after that ceremony. Later, when the floor was opened to the public, a councilman objected to further videotaping on the ground that the camera might intimidate residents in the audience. Plaintiff asserted that he had a right to videotape the meeting, citing Maurice River Township Board of Education v. Maurice River Township Teachers Ass'n, 187 N.J. Super. 566 (Ch. Div. 1982) (hereinafter Maurice River I), aff'd, 193 N.J. Super. 488 (App. Div. 1984) (hereinafter Maurice River II). Mayor Leslie Gallagher (Mayor) echoed the councilman's concerns and asked whether any public attendees objected to being videotaped. Because no one in the audience objected, the Council proceeded with the meeting.

Thus, plaintiff videotaped the entire June 2000 meeting.

Plaintiff next attended the Council's September meeting. Plaintiff again set up his camera in the back of the room before the meeting. After the session began, the Mayor informed plaintiff that several individuals did not want to be videotaped and ordered plaintiff to turn off the camera. The Mayor added that it was inappropriate to videotape the meeting with a girls' softball team, comprised of minors, in attendance. Councilmen Robert McGlinchey and Ross Del Rossi also objected to being videotaped. Plaintiff cited the Maurice River decisions anew to support his claimed right to videotape the meeting. The Mayor repeated his demand that plaintiff not tape the meeting, and plaintiff again asserted a right so to do. The Mayor then directed Police Chief John Welker to intervene and "remove" plaintiff. Chief Welker told plaintiff to turn off the camera, and, after he refused, escorted plaintiff out of the meeting room. Once outside, Chief Welker offered plaintiff the opportunity to return to the meeting if he agreed not to videotape, but plaintiff declined. Chief Welker then walked plaintiff to the police station in the adjacent building and, after reviewing the code book to determine an appropriate charge, issued plaintiff a "disorderly persons" summons pursuant to a Borough ordinance.

Although the Mayor and Council originally couched their opposition to plaintiff's videotaping in terms of objections from the audience and the potential for intimidation, the Mayor informed the audience, after plaintiff's removal, that he was concerned that plaintiff might attempt to alter the videotape and then broadcast it. The Mayor subsequently provided the local ...


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