On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-2378-04.
The opinion of the court was delivered by: Messano, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 24, 2008
Before Judges Parrillo, Lihotz and Messano.
Plaintiff John Constantine paid twenty dollars to obtain three pages of discovery related to a speeding summons issued as he drove through the Township of Bass River (Bass River). He pled guilty to a "non-speed specific driving violation" in the municipal court, but then filed this action on behalf of himself, and others similarly situated, against defendants Bass River, its police department, its municipal prosecutor (collectively, the Bass River defendants), and "all municipalities [and] municipal government authorities similarly situated." Asserting a variety of legal theories, plaintiff alleged that the Bass River defendants and members of the putative defendant class improperly charged excess fees for written discovery in their municipal courts.
After a number of interlocutory orders that we discuss in greater detail below, the trial judge entered an order on January 8, 2008 that denied plaintiff's motion for "bilateral class certification" and dismissed his complaint with prejudice. This appeal followed. Having considered the arguments raised by plaintiff in light of the record and applicable legal standards, we affirm.
This case is a sequel to an earlier, similar class action also brought before the same trial judge in the Law Division, Burlington County. We briefly discuss that matter, Fernandez v. Willingboro Twp., Docket No. BUR-L-003362-03, to provide context to the procedural history of this litigation.*fn1
In Fernandez, six similar class action complaints challenging the fees charged to municipal court defendants for discovery were consolidated by consent order. The order further certified a plaintiff class, "defined as all persons that  since January 19, 2000... [paid] flat fees for [m]unicipal [c]court discovery obtained from municipalities constituting the 'Defendant Class.'" The defendant class was "defined as all political subdivisions of the State of New Jersey that [we]re insured by the Municipal Excess Liability Joint Insurance Fund (the MEL-JIF) that have since January 19, 2000 charged flat fees... for Municipal Court discovery." "Flat fees" were "defined as the practice of  charging a single sum for discovery no matter the number of pages provided... [or] charging a single sum... for [an] initial amount of discovery and a per page charge for each additional page...."
On September 13, 2004, the trial judge entered an order approving settlement of the class action. Six municipalities--the Borough of Closter, the Borough of Ramsey, the City of Cape May, the Borough of Ridge Park, the Borough of Beachwood and the Township of Clark--though insured by the MEL-JIF, opted out of the class action settlement.*fn2 In total, the remaining Fernandez settling defendant class consisted of 352 political subdivisions of this State.
Pursuant to the settlement, members of the defendant class agreed to modify their municipal court discovery practices. Effective September 30, 2004, they adopted a uniform schedule of fees to be charged for paper discovery: $.75 for pages one through ten; $.50 for pages eleven through twenty; and $.25 for all pages thereafter.*fn3 The defendant class members also agreed to impose a "mailing charge" limited to the cost of actual postage, plus $.25. Pursuant to the settlement, members of the plaintiff class who paid in excess of the new fee structure would be reimbursed the difference.
In the interim, on August 23, 2004, represented by the same counsel that prosecuted the Fernandez matter, plaintiff filed his complaint challenging the discovery fees assessed by the Bass River defendants and a putative class of 216 other municipalities. The complaint alleged that the defendant class charged fees in excess of OPRA, "the Right to Know Law," and the "common law right to know doctrine"; that plaintiff had been deprived of various Federal and State constitutional rights resulting in violations of 42 U.S.C.A. § 1983 and § 1988; and that the actions of the defendant class were "ultra vires" and resulted in the individual members' "unjust enrichment." Plaintiff immediately moved for certification of both the plaintiff and defendant classes.
By order of November 18, 2004, the judge granted plaintiff's motion to certify the defendant class but reserved decision on certification of the plaintiff class. The order defined the defendant class as "all municipalities... excepting those which have resolved municipal court discovery charges... pursuant to the settlement entered in to (sic) by 352 municipalities in Fernandez...." Bass River was designated as defendant class representative, its counsel was designated as class counsel, and provisions for notice to all class members were ordered.
Various members of the defendant class filed timely objections to the certification order. After oral arguments, the judge entered an order dated April 11, 2005 that decertified the class. At a later proceeding, the judge stated that defendant class certification had "been improvidently granted without appropriate rigorous analysis required by our rules and case law...." The order also granted plaintiff leave to file an amended complaint, which he did on May 2, 2005.
The amended complaint once again alleged that discovery fees charged by the defendant class violated OPRA, the Right to Know Law, and the common law right to know doctrine. Plaintiff no longer alleged constitutional or federal statutory violations, but rather invoked the court's "[g]eneral [e]quitable [p]owers" to order "disgorgement [of] sums beyond what should legally have been charged" for discovery. Plaintiff repeated a claim that the members of the defendant class had unjustly enriched themselves. Some discovery ensued, apparently limited to the Bass River defendants furnishing a list of defendants to whom motor vehicle summonses were issued during the relevant time period.
Plaintiff then moved for partial summary judgment seeking a declaration as to what fees could be permissibly charged for municipal court discovery. He argued that principles of "fundamental fairness" required all municipal court discovery should be free of charge. Plaintiff further argued that because OPRA was inapplicable to the issue at hand, it would be inappropriate to utilize its statutory fee schedule. Alternatively, plaintiff argued that members of the defendant class could only charge for the "actual cost" incurred in furnishing discovery.
In a thoughtful oral opinion, the judge agreed that municipalities could not charge a flat fee for municipal court discovery, stating "a flat fee is entirely inappropriate and absent statutory authority such as that found in N.J.S.A. 39:-31 or N.J.S.A. 53:2-3, municipalities have no authority to enact, either by ordinance, resolution or other regulation, a flat fee charge for documents."*fn4 Noting our opinion in State v. Green, 327 N.J. Super. 334, 342 (App. Div. 2000), and our concern for the "lack of any consistency" in municipal court discovery fees throughout the State, the judge concluded a similar lack of uniformity would result if each municipality charged its "actual costs" for municipal discovery. Instead, the judge concluded the OPRA fee schedule should apply. He stated:
OPRA... provides a fee schedule that can apply to all Municipal Courts and is subject to change only when the legislature sees fit to do it. The adoption of that fee schedule for Municipal Court discovery, without the limitation of all of the other OPRA provisions, has two beneficial effects. One, it is cloaked with a presumption of validity... as are... all other legislative enactments. Secondly, it will stabilize the discovery process in Bass River, and perhaps throughout the county.
For now, the adoption of the OPRA schedule, without the limitations contained in the OPRA Act, creates a degree of certainty, uniformity and fairness to all who are involved in the Municipal Court process.... Furthermore, it doesn't conflict with Rule 7:7-7(a) that requires all discovery to be made available, but provides for no fee schedule. (Emphasis added.)
The order entered on July 24, 2006 permitted Bass River to charge fees for municipal court document discovery in accordance with the OPRA rate schedule, but it was silent as to an effective date and did not provide any individual relief to plaintiff. The issue of prospective relief, however, had already become moot, since the Bass River defendants had ceased charging municipal court defendants for discovery as of the fall of 2004.
Plaintiff filed a motion for leave to file a second amended complaint, seeking, among other things, to include a count claiming the putative defendant class violated the provisions of the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2 (the CRA). Specifically, plaintiff alleged he had been deprived of the following: "due process and/or equal protection rights and/or substantive due process, and/or [the] right to confront accusers and/or open access to government... [and] substantive rights, privileges and/or immunities secured by the Constitution or laws of this State." The Bass River defendants opposed the motion.
After considering oral arguments of the parties, the judge denied plaintiff's request. Relying on the Supreme Court's holding in Pasqua v. Council, 186 N.J. 127 (2006), he reasoned that the CRA did not apply to causes of action that accrued prior to its effective date, i.e., September 10, 2004. He noted that plaintiff's original complaint was filed "[a] short period of time" before the effective date, and, since "many, many months" ...