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Fair Share Housing Center, Inc v. New Jersey State League of Municipalities

August 23, 2011

FAIR SHARE HOUSING CENTER, INC., PLAINTIFF-APPELLANT,
v.
NEW JERSEY STATE LEAGUE OF MUNICIPALITIES, DEFENDANT-RESPONDENT.



The opinion of the court was delivered by: Justice Albin

SYLLABUS

(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).

Fair Share Housing Center, Inc. v. New Jersey State League of Municipalities

(A-36-10) (066228)

Argued May 4, 2011

Decided August 23, 2011

ALBIN, J., writing for a unanimous Court.

The issue before the Court is whether the New Jersey League of Municipalities is a "public agency" that possesses "government record[s]" within the meaning of the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13.

In 1915 an Act of the Legislature authorized the creation of the New Jersey League of Municipalities (League). The League is a nonprofit, unincorporated association, today representing all of New Jersey's 566 municipalities. More than 13,000 elected and appointed municipal officials, including over 560 mayors, are members of the League. Its seventeen employees are members of the Public Employees' Retirement System (PERS). A 1955 Attorney General Memorandum Opinion declared that the League was "a public agency or organization" and therefore "its employees are eligible for membership in [PERS]." Sixteen percent of the League's budget is comprised of taxpayer public funds in the form of membership fees from each municipality. Among other functions, the League is a lobbying organization for municipalities and has instituted legal actions for the purpose of advancing the interests of its member municipalities.

In 2008, the Council on Affordable Housing (COAH), acting pursuant to the Fair Housing Act, N.J.S.A. 52:27D-301 to -329.19, proposed affordable housing Third Round regulations. As part of the rulemaking process, in March 2008 the League filed comments with COAH opposing the proposed regulations. Shortly afterwards, Fair Share Housing Center, Inc. (Fair Share) wrote to the League's Executive Director, William Dressel, requesting particular documents pursuant to OPRA. In reply, Mr. Dressel declined to provide the requested documents on the ground that the League "is not covered by" OPRA.

On May 16, 2008, Fair Share filed a verified complaint in lieu of prerogative writs in the Superior Court, Law Division, Mercer County, alleging that the defendant League was in violation of OPRA and the common law right of access by refusing to make available the requested documents. The League answered that it "is not a 'public agency' as defined by [OPRA], and as such, the League's records are not 'government records' or 'public records.'" The League also denied that it is subject to the common law right of access.

The trial court dismissed Fair Share's complaint, holding that the League is not a "public agency" because it is not an "instrumentality within or created by a political subdivision of the State or combination of subdivisions," see N.J.S.A. 47:1A-1.1, such as a county health board or regional planning board. It further determined that the "league is not a 'public agency' under N.J.S.A. 47:1A-1.1 [because] (1) it does not perform a governmental function; and (2) it is not authorized to spend public funds."

The Appellate Division affirmed. The panel rejected Fair Share's argument that the League was a "combination of political subdivisions" and thus a "public agency" under N.J.S.A. 47:1A-1.1. Because the League is not similar to "a governmental entity created by two or more municipalities to provide" some governmental service, the panel determined it could not be deemed a "public agency" under OPRA. The panel also concluded that the League was not in possession of a "government record," as that term is defined in N.J.S.A. 47:1A-1.1, for the simple reason that the League could not be "viewed as a 'subordinate board' of a political subdivision." Last, the panel denied Fair Share relief on its common-law-right-of-access claim for the same reasons it denied relief on its OPRA claim.

The Supreme Court granted Fair Share's petition for certification.

HELD: The League of Municipalities is a "public agency" under the Open Public Records Act and must provide access to "government record[s]" that are not subject to an exemption.

1. In passing OPRA, the Legislature declared that it is the State's public policy that "government records shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions, for the protection of the public interest." N.J.S.A. 47:1A-1. Those who enacted OPRA understood that knowledge is power in a democracy, and that without access to information contained in records maintained by public agencies citizens cannot monitor the operation of our government or hold public officials accountable for their actions. This case turns on the meaning of "public agency." N.J.S.A. 47:1A-1.1 is broadly written so that a wide variety of entities fall within the compass of that term. Parsing the words of the statute, a "public agency" includes an "instrumentality . . . created by a . . . combination of political subdivisions." N.J.S.A. 47:1A-1.1. That plain language places the League squarely within the term "public agency." Through the pooling of financial contributions and personnel, the League -- in a more efficient and cost-effective way -- can do for all municipalities what no one municipality can do for itself. Moreover, the League is controlled by elected or appointed officials from the very municipalities it represents. Thus, it is clear that the League is an "instrumentality" of a "combination of political subdivisions." This simple plain-language approach leads to the conclusion that the League is a "public agency." The language of N.J.S.A. 47:1A-1.1 does not set forth a governmental-function test -- that is, it does not suggest that the "instrumentality" must perform a traditional governmental task, such as trash collection. (pp. 14-19)

2. Both the trial court and the Appellate Division went astray by importing into OPRA's definition of "public agency" the definition of "public body" found in the Open Public Meetings Act (OPMA), N.J.S.A. 10:4-6 to -21. They also mistakenly construed Times of Trenton Publishing Corp. v. Lafayette Yard Community Development Corp., 183 N.J. 519 (2005), by conflating those very different terms in very different statutes. Under OPMA, if an entity meets the definition of a "public body," defined by N.J.S.A. 10:4-8(a), it "must open its meetings to the public." Id. at 530. An entity qualifies as a "public body" if it either performs a governmental function or is authorized to expend public funds. N.J.S.A. 10:4-8(a). The language defining a "public body" under OPMA and the language defining "public agency" under OPRA are distinctly different. The definition of "public agency" is far more encompassing and specifically lacks a governmental-function test. The Legislature obviously was aware of the governmental-function test it used to define "public body" in OPMA. Yet it chose not to employ the same test in defining "public agency" in OPRA. It is not the charge of this Court to rewrite a plainly worded statute. (pp. 19-21)

3. In Lafayette Yard the Court was careful to maintain the separation between the definitions of "public body" in OPMA and "public agency" in OPRA. The Court remained faithful to the text of N.J.S.A. 47:1A-1.1 and determined that, in essence, the nonprofit corporation (an "instrumentality") was created by a public subdivision therefore making it a "public agency." The creation test, not the governmental-function test, controlled. The Court's decision in this case, finding that the League of Municipalities is a "public agency," is wholly consistent with Lafayette Yard. (pp. 21-23)

4. Any document kept on file or received in the course of the official business of an "agency" of a political subdivision is a government document. The League is such an "agency" and therefore the term "government record" applies to it. To conclude otherwise would require the Court to reach an absurd result. It cannot be that the League meets the definition of "public agency" or "agency," but is not the "agency" referred to in the definition of "government record." Because the trial court determined that the League, as a matter of law, was not a "public agency," it did not need to review Fair Share's request for access to particular documents kept or maintained or received by the League. Unless Fair Share and the League can resolve this matter on their own, the trial court must decide whether, under OPRA, the requested documents are subject to disclosure or subject to an exemption. At any hearing, the League, "[t]he public agency[,] shall have the burden of proving that the denial of access is authorized by law." N.J.S.A. 47:1A-6. (pp. 23-25)

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

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

Argued May 4, 2011

On certification to the Superior Court, Appellate Division, whose opinion is reported at 413 N.J. Super. 423 (2010).

JUSTICE ALBIN delivered the opinion of the Court.

The New Jersey State League of Municipalities (League) is a nonprofit, unincorporated association created pursuant to statutory authority, N.J.S.A. 40:48-22. The League represents all 566 of New Jersey's municipalities. The League's governing board consists of various elected municipal officials, its budget is partly financed through public funds, and its employees are members of the Public Employees' Retirement System. Part of the League's mission is to lobby for beneficial legislation and to file lawsuits furthering the interests of municipalities as a whole.

The issue before us is whether the League is a "public agency" that possesses "government record[s]" within the meaning of the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. The trial court concluded that under OPRA the League is not a public agency, primarily because it does not carry out any traditional governmental function. The court therefore dismissed the lawsuit filed by Fair Share Housing Center, Inc. (Fair Share) demanding the release of certain records in the League's possession. The Appellate Division affirmed. Fair Share Hous. Ctr., Inc. v. N.J. State League of Municipalities, 413 N.J. Super. 423, 434 (App. Div. 2010).

We now reverse. The League meets the definition of a public agency for OPRA purposes -- it is an "instrumentality . . . created by . . . political subdivisions." See N.J.S.A. 47:1A-1.1. As a public agency, the League must make available government documents as required by OPRA. We remand to the trial court to determine whether the documents requested by Fair Share fall within the class of documents that must be made available under OPRA.

I.

A.

In 1915, an Act of the Legislature authorized the creation of the New Jersey State League of Municipalities.*fn1 See L. 1915, c. 163. That year the League came into being. The current version of the 1915 Act is now set forth in N.J.S.A. 40:48-22. That statute provides: "Any municipality . . . may join with any other municipality or municipalities in the formation of an organization of municipalities, for the purpose of securing concerted action in behalf of such measures as the organization shall determine to be in the common interest of the organizing municipalities." N.J.S.A. 40:48-22.

The League is a nonprofit, unincorporated association, today representing all of New Jersey's 566 municipalities. The objectives of the League, which are set forth in its constitution, include "[t]he promotion of the general welfare of the municipalities of the State"; "[t]he study and advocacy of necessary and beneficial legislation affecting municipalities and the opposition of legislation detrimental thereto"; and the taking of "such action or actions in the interest of the public welfare as are permitted by" law. More than 13,000 elected and appointed municipal officials, including over 560 mayors, are members of the League. The League's officers consisted of three mayors and a municipal council member during the relevant time period. Its seventeen employees are members of the Public Employees' Retirement System (PERS). A 1955 Attorney General Memorandum Opinion declared that the League was "a public agency or organization" and therefore "its employees are eligible for membership in [PERS]."*fn2

Sixteen percent of the League's budget is comprised of taxpayer public funds in the form of membership fees from each municipality. More than one-half of the League's ...


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