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Loigman v. Township Committee of the Township of Middletown

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 29, 2007

LARRY S. LOIGMAN, PLAINTIFF-APPELLANT,
v.
THE TOWNSHIP COMMITTEE OF THE TOWNSHIP OF MIDDLETOWN, DEFENDANT-RESPONDENT, AND MELVIN GREENBERG, DEFENDANT.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. MON-L-4586-95.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 25, 2007

Before Judges Parker and Yannotti.

In this action in lieu of prerogative writs, plaintiff Larry S. Loigman appeals from an order entered on April 6, 2006 dismissing his motion to enforce litigant's rights and award sanctions on the ground that the motion was not properly before the Superior Court pursuant to R. 1:10-3. This case was before us previously and resulted in a reported decision. Loigman v. Twp. Comm., 308 N.J. Super. 500 (App. Div. 1998).*fn1

Plaintiff filed this complaint in lieu of prerogative writs in August 1995, alleging that the municipality improperly expended public funds for unauthorized "duck crossing" traffic signs. Plaintiff further alleged that the township committee convened in executive session on August 28, 1995 in violation of the Open Public Meetings Act (OPMA). Final judgment was entered on August 30, 1996, dismissing the claims relating to the "duck crossing" traffic signs with an agreement that unauthorized signs would be removed, but found with respect to the OPMA that:

The Township has demonstrated good faith efforts at compliance [with OPMA], but two defects are noted:

a. Use of the generic term[s] "personnel, litigation and negotiation" does not conform to the requirements of the Open Public Meetings Act.

b. Some inappropriate items have been discussed in "executive" or closed session.

The Township must comply with the guidelines set forth in Council of New Jersey State College Locals v. Trenton State College, 284 N.J. Super. 108 (Law Div. 1995)[,] as to notice, resolution to enter closed session and matters that may be discussed in closed session, N.J.S.A. 10:4-12(b). No other remedies are required at this time.

On January 30, 1997, plaintiff moved to enforce the August 1996 judgment, alleging that on January 21, 1997, defendant went into a closed session to discuss "[thirteen] personnel items" without identifying which personnel were involved; to discuss "contract negotiations" with [three] collective bargaining units without identifying which units were involved; and to discuss "[six] items of litigation" without identifying which litigation was involved. Plaintiff also alleged the invalidity of a notice of a special meeting for January 15, 1997 to hold an executive session with the Acting Chief of Police to discuss a police study done by DeLoitte & Touche, for failing to refer to any of the exceptions of N.J.S.A. 10:4-12(b) and that discussion of a "police study" was not proper for a closed session. [Id. at 502.]

The trial court dismissed the motion and directed plaintiff to file a new complaint. Ibid. Plaintiff appealed and we remanded, holding that

Plaintiff utilized the proper procedure, and he cannot be required to file separate complaints for each violation of the judgment. R. 1:10-3 is still an appropriate vehicle for a party who, armed with a judgment directing that a defendant comply with a statute, alleges a violation of that judgment. [Id. at 503-04.]

After the remand, the parties "reached an agreement that certain procedural guidelines should be implemented on a term basis to verify, as anticipated, compliance with the requirements of the Open Public Meetings Act." An order was entered on March 25, 1999 memorializing that agreement. The order set forth procedures for executive or private sessions; directed that the closed sessions be tape recorded as of April 1, 1999; and held that the tapes reviewed by the court in camera demonstrated that no violation of OPMA had occurred. The order expressly provided for its own expiration "on March 31, 2000, unless extended, but only for good and sufficient cause, by the court."

Notwithstanding the expiration date in the March 25, 1999 order, plaintiff continued to file enforcement motions after March 31, 2000, resulting in orders entered on April 20, 2001, July 2, 2002 and October 7, 2005, finding that the township had violated the OPMA at meetings prior to each of plaintiff's motions to enforce.

Plaintiff now alleges that on February 21, 2006, the township again violated the OPMA by meeting in executive session to discuss police organizational staffing without giving the required notice pursuant to Rice v. Union County Reg'l High School Bd. of Educ., 155 N.J. Super. 64, 70 (App. Div. 1977), certif. denied, 76 N.J. 238 (1978). After hearing oral argument on March 31, 2006, the trial court dismissed plaintiff's motion after finding that the March 25, 1999 order expired on March 31, 2000. The court held that expiration of the order, which plaintiff sought to enforce, resulted in "no jurisdiction for this matter to be before [the] Court." The motion was denied without prejudice and plaintiff was directed to file a new complaint stating his new allegations.

In this appeal, plaintiff argues that the motion to enforce litigant's rights was improvidently denied by the Law Division. Plaintiff contends that the current alleged violation is a repeat of the previous violations after which the township was directed to comply with the OPMA. He maintains that "OPMA is remedial legislation, which is to be 'liberally construed,' N.J.S.A. 10:4-21; [and] injunctive relief to guarantee future compliance is often appropriate." Indeed, in our previous reported decision, we held that a motion to enforce litigant's rights pursuant to R. 1:10-3 was the appropriate means by which to enforce the August 30, 1996 order. Loigman, supra, 308 N.J. Super. at 503-04.

This motion, however, differs from the motion addressed in our previous decision in that the order entered on March 25, 1999 resulted from settlement negotiations in which the parties agreed to a self-executing expiration date of March 31, 2000, "unless extended, but only for good and sufficient cause, by the court." Plaintiff made no motion to extend the March 31, 2000 expiration date and the trial court properly noted that it lacked jurisdiction to enforce the order because it had expired. In short, there was no longer an order to enforce when plaintiff brought his most recent motion.

In New Jersey, public policy strongly favors negotiated settlements. Aguerre v. Schering-Plough Corp., ___ N.J. Super. ___, ___ (App. Div. 2007); Puder v. Buechel, 183 N.J. 428, 437 (2005); Nolan v. Lee Ho, 120 N.J. 465, 472 (1990); Peskin v. Peskin, 271 N.J. Super. 261, 274 (App. Div.), certif. denied, 137 N.J. 165 (1994). Plaintiff is an attorney and we must assume that he is familiar with settlement negotiations and the consequences thereof. The fact that trial courts entertained motions to enforce the March 25, 1999 order after its March 31, 2000 expiration date does not render the agreed upon expiration date a nullity. See Jennings v. Reed, 381 N.J. Super. 217, 227 (App. Div. 2005).

We have no doubt that plaintiff believes he is performing a public service in pursuing his suits against the township. Nor, do we doubt that governing bodies -- albeit acting in good faith -- must be reminded periodically of their obligations under the OPMA. As the township points out in its brief, the current members of the governing body are not the same as those involved in the prior litigations. Consequently, new members of governing bodies may not be familiar with the prior orders and must be apprised of their responsibility to conduct their meetings in accordance with OPMA.

We are also mindful of plaintiff's comment that "[o]ur courts would be overwhelmed with duplicative litigation if suits against public bodies had to be re[-]filed after each election." Nevertheless, plaintiff negotiated with the township to resolve the issues raised in the 1997 enforcement motion after our remand and entered the agreement establishing the expiration date for the order resolving those issues. Accordingly, we affirm the decision of the trial court. R. 2:11-3(e)(1)(A).

Affirmed.


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