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Smith v. Hudson County Register

February 10, 2010

DEAN SMITH, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFF-APPELLANT,
v.
HUDSON COUNTY REGISTER AND WILLIE J. FLOOD, IN HIS CAPACITY AS THE HUDSON COUNTY REGISTER AND HUDSON COUNTY, THROUGH THE HUDSON COUNTY BOARD OF CHOSEN FREEHOLDERS, DEFENDANTS-RESPONDENTS.
JAMES GENSCH, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFF-APPELLANT,
v.
HUNTERDON COUNTY CLERK'S OFFICE AND MARY H. MELFI, IN HER CAPACITY AS THE HUNTERDON COUNTY CLERK, AND HUNTERDON COUNTY, THROUGH THE HUNTERDON COUNTY BOARD OF CHOSEN FREEHOLDERS, DEFENDANTS-RESPONDENTS.
MARTIN O'SHEA, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
v.
SUSSEX COUNTY CLERK'S OFFICE AND ERMA GORMLEY, IN HER CAPACITY AS THE SUSSEX COUNTY CLERK, SUSSEX COUNTY, AND THE SUSSEX COUNTY BOARD OF CHOSEN FREEHOLDERS, DEFENDANTS-RESPONDENTS/CROSS-APPELLANTS.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5261-07 (A-1762-08T2); Hunterdon County, Docket No. L-307-07 (A-2507-08T3); and Sussex County, Docket No. L-655-06 (A-2518-08T3).

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued September 16, 2009

Before Judges Stern, Graves and Sabatino.

In these three back-to-back appeals, which we hereby consolidate for purposes of this opinion, plaintiffs each argue that the trial court erred in dismissing their respective and similar lawsuits against three defendant Counties (Hudson, Hunterdon, and Sussex) and various officials and sub-units of those Counties. Plaintiffs are all represented by the same law firm. They contend that defendants have overcharged them, and overcharged other members of the public, for the copying of government records maintained at County offices, in violation of both the Open Public Records Act ("OPRA"), N.J.S.A. 47:1A-1 to -13, and the common law. Defendants, joined by four other Counties (Morris, Middlesex, Mercer, and Passaic) appearing as amici curiae, assert that their copying charges comport with OPRA and the common law. Defendants also contend that plaintiffs' lawsuits are procedurally flawed in numerous respects.

For the reasons stated herein, we reverse the trial court's orders denying relief in all three cases. We hold that unless and until the Legislature amends OPRA to specify otherwise, or some other statute or regulation applies, the Counties must charge plaintiffs and other similar requestors of government records no more than the reasonably approximated "actual costs" of copying such records. The burden of proving or disproving compliance with that "actual costs" mandate will vary, depending upon whether the charges in question exceed certain fee levels identified in the second sentence of N.J.S.A. 47:1A-5(b).

Because of the fiscal and administrative impacts upon the Counties and other governmental agencies that are likely to result from this holding, we give our decision only prospective effect and delay its effective date until after the current State fiscal year.

I.

The facts and procedural history of these three cases, which turn on questions of law and statutory interpretation, are mainly undisputed.

The Hudson County ("Smith") Litigation (A-1762-08). Plaintiff in A-1762-08, Dean Smith, is a private investigator. As part of his work as an investigator, Smith searches government records kept at the offices of County government agencies. At times, Smith needs to obtain copies of those records. According to Smith's complaint, on three separate dates (August 1, 2007; October 3, 2007; and August 22, 2008), he copied deeds on the self-serve photocopiers provided at the Hudson County Register's Office. Depending on the age of the deed, such copies are made by either using self-service copiers or by printing a digitized image from a computer. In either instance, Hudson County charges $0.25 per page for such copies. Smith suspected that the $0.25 charge exceeded the County's actual expense in producing the copies. Nevertheless, Smith paid the charges, apparently without making any contemporaneous protest.

On October 23, 2007, Smith filed a class action complaint in the Law Division against the Hudson County Clerk's Office, contesting the fees charged to reproduce government records on the County's self-service copiers and printers. Smith sought to certify the class, which would include all persons who had made copies or printouts at the Hudson County offices and had likewise paid the County $0.25 per page. He also sought a court-ordered mathematical determination of the County's actual costs in making the copies. Because Smith had mistakenly named improper defendants, he subsequently amended his complaint to assert the same claims against the Hudson County Register, Willie J. Flood, and Hudson County through its Board of Freeholders (collectively "the Hudson defendants").

The trial court denied Smith's motion to certify the class, finding that he procedurally had no claim because he had voluntarily paid Hudson County the $0.25 copying fee. Given that ruling, the court found it unnecessary to ascertain Hudson County's actual costs of copying.

Smith filed a motion for reconsideration. The trial court denied it, and also dismissed his complaint. Smith then filed his present appeal.

The Hunterdon County ("Gensch") Litigation (A-2507-08). James Gensch, plaintiff in A-2507-08, is a homeowner who resides in Hunterdon County. According to Gensch, he was interested in finding out whether and to what extent his property was encumbered by any easements. Consequently, on April 27, 2007, Gensch went to the Hunterdon County Clerk's Office to obtain a copy of his deed.

For records filed prior to October 2000, Hunterdon County maintained bound volumes with the Registry of Deeds. The contents of those volumes could be reproduced on self-serve copiers located in the County offices. However, deeds recorded in Hunterdon County after October 2000 were only available as digitized images viewable from computers, and copies could be made on attached printers. Hunterdon County charged $0.25 for such copies, whether they were reproduced on the self-serve copiers or on the digital printers.

On May 8, 2007, Gensch filed a complaint in the Law Division against the Hunterdon County Clerk's Office, the County Clerk, and Hunterdon County ("the Hunterdon defendants"), asserting that the costs they had charged him for self-serve photocopying were excessive. After the Hunterdon defendants answered, Gensch filed a motion for class certification. He also sought to determine Hunterdon County's actual costs of making copies. The trial court granted the motion to certify the class. However, the court found it premature to determine the County's actual costs of making copies because additional data was needed.

The Hunterdon defendants then filed with the court a summary of items they believed were necessary to determine actual costs. Gensch, meanwhile, re-filed his motion to compel a determination of actual costs.

On April 15, 2008, the trial court ruled that the components of Hunterdon County's actual costs of copying consisted of: (1) paper, (2) toner or ink, (3) cost of acquiring the self-service equipment, (4) maintenance contract, (5) repairs not covered by the contract, (6) electricity used in the copying and printing process, and (7) time spent on computer terminals. Neither party disputed this breakdown of the cost components.

The parties in the Hunterdon action cross-moved for summary judgment. As part of the summary judgment record, the Hunterdon defendants certified that the total number of copies made on the self-serve copiers and printers between May 2001 and August 2008 was 1,598,563, and that the total amount the County collected for such copying was $399,640.74. They indicated that the County's actual per-page cost was $0.07, but when the costs of the computer equipment and imaging system were factored into the analysis, the County's per-page cost was $0.31. If Hunterdon County had charged only $0.07 per copy, the total amount charged would have been $111,899.41. Consequently, based on these calculated figures, Gensch alleged that Hunterdon County had overcharged persons by $287,741.33.

After considering the parties' contentions, the trial court entered judgment for the Hunterdon defendants, finding that $0.25 per page was permitted by OPRA and by extant case law. Thereafter, Gensch filed a notice of appeal.

The Sussex County ("O'Shea") Litigation (A-2518-08).

The third case before us, A-2518-08, was filed in the Law Division in Sussex County by Martin O'Shea, a retired newspaper reporter. O'Shea frequently searches real estate records in the Sussex County offices. To obtain duplicates of such records, he could either photocopy them using self-serve copying machines at the County offices or print digital records using computer printers. On November 9, 2006, O'Shea made self-serve copies at the Sussex County offices, and was charged $0.25 per page.

From March 1985 through December 2006, a private entity, the Sussex County Abstractors Partnership ("SCAP"), maintained the self-service copiers at the Sussex County offices, pursuant to an agreement with the Sussex defendants. Although from November 2000 through December 2006, SCAP charged customers $0.25 per page for copies made on its equipment, it only paid Sussex County $0.08 per page, which essentially represented space rental and electricity. After paying for supplies, SCAP divided the excess profit among its members.

In January 2007, SCAP transferred ownership of the copying machines to Sussex County. Thereafter, in April 2007, Sussex County lowered the price per copy to $0.10 per page. Customers generally made more than 20,000 copies per month on the self-service copiers.

In 2007, Sussex County purchased the computer printers for a total of $11,683.28. Approximately 250,668 computer printouts are produced on these printers every year. After all of the components for printing were accounted for, O'Shea calculated that the actual costs to the Sussex defendants for computer-generated copies were $0.03 per page and $0.02 per page for self-serve copies.*fn1

On November 15, 2006, O'Shea filed a class action complaint in the Law Division against the Sussex County Clerk's office, Sussex County, and the Sussex County Clerk (the "Sussex defendants"). O'Shea filed a motion for class certification and also sought a determination of the County's actual copying costs. On May 25, 2007, the trial court granted O'Shea's motions. The court determined that the expenses that make up actual costs consisted of: (1) paper, (2) toner/ink, (3) the cost of the self-service equipment, and (4) electricity used in the copying and printing process.

Based on the trial court's initial determinations, O'Shea calculated what he believed to be the actual costs of the copies. He moved for summary judgment, contending that he and the other class members had been overcharged. The Sussex defendants, in turn, cross-moved for summary judgment, contending that their copying charges were consistent with OPRA and the applicable case law.

On December 10, 2008, the trial court granted the Sussex defendants summary judgment, dismissing O'Shea's complaint. O'Shea appealed. The Sussex defendants cross-appealed, seeking to preserve certain defenses and arguments that had not been decided by the trial court.

The Participation of Other Counties as Amici

While these three appeals were all pending, we granted motions by the Morris County Clerk's Office ("Morris"), the Passaic County Clerk's Office ("Passaic"), the Mercer County Clerk's Office ("Mercer"), and the Middlesex County Clerk's Office ("Middlesex"), to appear as amici curiae, all of whom had cases pending with similar facts and issues.*fn2 In addition, we granted a motion by the Hudson defendants to appear as amicus curiae in the two related cases from Hunterdon and Sussex, in which they were not named defendants.

II.

Before we examine the merits of these appeals, we address a procedural argument raised by defendants solely in Smith and Gensch: namely, whether those two particular plaintiffs are estopped from challenging the Counties' respective copying charges because they allegedly "volunteered" payment of those charges.*fn3 We reject that argument, essentially because it misconceives the adhesive setting in which Smith, Gensch, and other citizens obtain photocopied records from the County offices.

The "volunteer rule" is an equitable doctrine that has been developed to limit the circumstances in which a party can be forced to repay funds that it has already received. The rule generally provides that when a person has voluntarily overpaid another party, particularly a government agency, that person may not obtain a refund of the excessive amount, absent a showing of fraud, duress, extortion, mistake of fact, or some other special justification. See, e.g., Ross Systems v. Linden Dari-Delite, Inc., 35 N.J. 329, 334 (1961); Squires Gate, Inc. v. County of Monmouth, 247 N.J. Super. 1, 10 (App. Div. 1991).

For example, in N.J. Builders Ass'n v. Borough of Mendham, 263 N.J. Super. 88 (App. Div. 1993), a case relied upon by both the Hudson and Hunterdon defendants, five builders wanted to connect their new construction to Mendham's water supply system. Id. at 91. Mendham overcharged the builders in order to raise funds to improve the municipal system. Ibid. The builders paid those inflated fees, even though they had other options. Id. at 92-93. After the inflated fees had been declared invalid, the builders sought to recover the sums they had paid, which the trial court granted. Id. at 93. We reversed and remanded the matter, allowing the borough to present evidence to support its reliance on the volunteer payment rule. Id. at 96. We reasoned that if the builders had voluntarily paid the connection fee knowing they had other options for connecting to a water supply, they would be barred from recovering the overpayment. Id. at 95. We also noted that the builders had not paid the sums under duress, and had not contemporaneously protested. Ibid.

In Flammia v. Maller, 66 N.J. Super. 440, 444 (App. Div. 1961), another key case that defendants cite on this issue, the defendant married a woman who previously had been married to the plaintiff. The woman had divorced the plaintiff in Mexico without his knowledge. After the woman died, the court permitted the plaintiff to inherit from her estate as her lawful husband, finding the Mexican divorce a nullity. Ibid. The defendant argued that the plaintiff should also be liable for the decedent's support during the years following the invalid Mexican divorce, when she had cohabited with the defendant. Id. at 458. We rejected that argument. We held that the defendant could not recover from the plaintiff because the defendant had supported her in full knowledge of the facts, even though he had made a mistake of law in not appreciating the invalidity of the Mexican divorce. Id. at 459. The defendant had supported the decedent out of affection for her, and his support was therefore considered a voluntary gift. Ibid. Consequently, recovery of the support payments from the plaintiff was barred by the voluntary payment rule. Ibid.

The present circumstances are not comparable. To be voluntary, a payment must be made with knowledge that there is no compulsion to pay. Jenkins v. Kaplan, 53 N.J. Super. 582, 588 (App. Div. 1959). Here, Smith, Gensch and other citizens requesting copies of government records from defendants had no realistic choice but to pay the ...


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