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Rosenberg v. State of New Jersey Dep't of Law and Public Safety

November 30, 2007

TED M. ROSENBERG, PLAINTIFF-APPELLANT, AND GEORGE E. NORCROSS, III, MARK NEISSER, HENRY CHUDZINSKI, R. LOUIS GALLAGHER, II, JCA ASSOCIATES, INC., PHILADELPHIA NEWSPAPERS, INC., NEWARK MORNING LEDGER COMPANY, NEW YORK TIMES COMPANY, RECORD OF BERGEN COUNTY, BURLINGTON COUNTY TIMES, AND COURIER-POST OF CHERRY HILL, PLAINTIFFS/INTERVENORS,
v.
STATE OF NEW JERSEY DEPARTMENT OF LAW AND PUBLIC SAFETY, DIVISION OF CRIMINAL JUSTICE, AND STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Burlington County, L-147-05.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued October 29, 2007

Before Judges Lintner, Graves and Sabatino.

On August 28, 2006, a Law Division judge, following an in camera review, denied plaintiff Ted Rosenberg's request, under the common law right to know doctrine, for release of documents comprised of approximately 2000 pages, compiled in connection with a discontinued investigation by the New Jersey Department of Law and Safety, Division of Criminal Justice (DCJ), related to the appointment of the Palmyra Borough Solicitor for the year 2001. An order memorializing the judge's decision was executed on September 12, 2006.

Plaintiff appeals, contending that the judge's decision provided only conclusory reasons, without any specific factual findings referencing the individual records themselves. The State counters, claiming that the judge exercised sound discretion in denying plaintiff's relief. We agree with plaintiff and remand for a more detailed articulation of reasons, focusing on either individual documents or groups of documents designated by Bates number in the privilege log (Vaughn*fn1 Index) filed under seal by the State. The sparse, virtually non-existent, reference to particular documents, along with a conclusory statement of reasons rather than specific factual findings, prevents us from making a meaningful determination whether the judge correctly found, on a document-by-document basis, that the information was privileged and thus protected from disclosure. Because of the voluminous number of documents, we anticipate that the more in-depth review, directed by us, will take a substantial period of time and could result in the release of documents previously deemed exempt by the Law Division judge. We, therefore, do not retain jurisdiction.

We restate the facts alleged by plaintiff and the extensive procedural history. Plaintiff was appointed Solicitor for the Borough of Palmyra by the then governing body for the year 2000. He ran for the position of Chair of the Burlington County Democratic Party in 2000. One of plaintiff's main supporters, John J. Gural, Jr., a Palmyra councilman, was employed as project manager for JCA Associates, Inc. (JCA), an engineering firm in Moorestown, New Jersey. Plaintiff lost the campaign in a very tight race, 243 to 220 votes. According to plaintiff, JCA was the recipient of large, no-bid contracts with various municipalities, authorities, and entities that were subject to considerable influence from George E. Norcross, the former Chairman of the Camden County Democratic Party.

At the time, Mark Neisser was President and Henry Chudzinski was Director of Business Development at JCA. According to plaintiff, he was notified by Gural in December 2000 that Neisser and Chudzinski were pressuring him to arrange for plaintiff not to be reappointed Solicitor of Palmyra for 2001. On the advice of his lawyer, Gural met with members of the DCJ, with whom he shared recordings of conversations with Neisser and Chudzinski that he secretly taped on his own.

After hearing the tapes, the DCJ began a more formal criminal investigation into the matter. From December 2000 to February 2001, Gural, in cooperation with the DCJ, was outfitted with sophisticated recording devices, which he used to record approximately 330 hours in the course of the investigation. The persons recorded included Neisser, Chudzinski, Norcross, R. Louis Gallagher, the then-Chair of the Burlington County Democratic Party and a municipal prosecutor, and others.

According to plaintiff, the recordings reveal that Gural was threatened with loss of his employment if plaintiff was reappointed and Gural was offered compensation for his help. The covert portion of the DCJ investigation ended in February 2001. Plaintiff was reappointed to the Palmyra Solicitor position for that year. Plaintiff claims that rumors began to circulate that the Office of the Attorney General was being improperly influenced by Norcross and, as a result, the Director of the Division of Criminal Justice and her deputies were reassigned. He claims that a leading investigator was also removed.

On January 21, 2003, plaintiff, Gural, and Gural's wife filed a complaint alleging tortious interference, racketeering (extortion and bribery and wire fraud), civil conspiracy, and intentional infliction of emotional distress in the Federal District Court. The federal complaint named JCA, Neisser, Chudzinski, Norcross, and Gallagher as defendants.*fn2

According to plaintiff, Neisser and Chudzinski were charged by the DCJ with tax law violations in 2003, but not with any crimes in connection with the appointment of the Solicitor of Palmyra for the year 2001. Plaintiff claims that an initial plea agreement Neisser and Chudzinski entered into with the DCJ was rejected by a Law Division judge. He asserts that a modified plea bargain was eventually approved, wherein the parties pled guilty to certain tax offenses and were immunized from criminal prosecution for offenses relating to the appointment of the Palmyra Solicitor in 2001.

On June 10, 2004, the Federal Bureau of Investigation (FBI) sent a letter to the DCJ, asking to review the recordings taken by Gural to determine if there were any federal law violations. Specifically, the FBI requested "an opportunity to review these conversations and transcripts in their entirety." On July 12, 2004, the DCJ denied the FBI's request, advising that "the tapes . . . request[ed] [were] an integral part of an ongoing criminal investigation."

On August 10, 2004, plaintiff and Gural served a subpoena duces tecum on the DCJ to produce the Gural tapes in the federal lawsuit. The State filed a notice of motion to intervene in the federal suit for the limited purpose of seeking a stay as to all discovery directed toward it, arguing that the DCJ's criminal investigation was ongoing. Alternatively, the State requested that it be granted an additional ninety days from the entry of the federal court's decision to respond to the subpoena.

None of the parties objected and the federal judge granted the State a limited stay of discovery until January 5, 2005. On December 22, 2004, plaintiff made a written request to the DCJ's Records Custodian under the Open Public Records Act, N.J.S.A. 47:1A-1 to -13, for "[a]ny and all recordings and transcripts of such recordings made by the Division of Criminal Justice . . . of conversations between . . . Gural . . . and . . . Chudzinski, . . . [Neisser], . . . Gallagher . . . Norcross, . . . as well as other employees and officers of JCA Associates, Inc." The request was denied under N.J.S.A. 47:1A-1.1 on January 4, 2005. Plaintiff responded by modifying his request, seeking access to the tape recordings and transcripts under the common law "right to know" doctrine. The DCJ denied the request on January 18, 2005, asserting that plaintiff failed to show an interest in the records requested and that they were the subject of pending federal and state litigation.

On January 12, 2005, plaintiff filed a verified complaint in lieu of prerogative writs and order to show cause for production of the documents he had requested from the DCJ. Plaintiff sought "[a]ny and all investigative records, documents, or other information made or kept by DCJ relating to any criminal investigations involving the appointment of the Solicitor in Palmyra for the year 2001."

Meanwhile, a status conference was held in the federal court on January 27, 2005. The State requested and was granted an extension of the stay of discovery until February 11, 2005, since the criminal investigation was still open. The federal judge directed the State to give the parties to the federal action ...


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