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Lois Lebbing, On Behalf of Herself and All Others Similarly Situated v. Middlesex County Clerk's Office and Elaine M. Flynn

May 4, 2012

LOIS LEBBING, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFF-RESPONDENT/ CROSS-APPELLANT,
v.
MIDDLESEX COUNTY CLERK'S OFFICE AND ELAINE M. FLYNN, IN HER CAPACITY AS THE MIDDLESEX COUNTY CLERK, MIDDLESEX COUNTY, THROUGH THE MIDDLESEX COUNTY BOARD OF CHOSEN FREEHOLDERS, DEFENDANTS-APPELLANTS/ CROSS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-9878-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 18, 2011

Before Judges Payne, Reisner and Simonelli.

In this matter, plaintiff Lois Lebbing claimed that defendants Middlesex County, the Middlesex County Clerk and Clerk's Office, and the Middlesex County Board of Chosen Freeholders (collectively, the County) violated the common law right of access and the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, by charging a fee for copies of public records made on both self-service photocopy machines owned by a vendor (the self-service photocopiers claim) and County-owned printers connected to the County's computer database (the computer printers claim) that exceeded the County's actual cost for the copies. Plaintiff sought a refund of all sums the County had collected in excess of its actual cost, injunctive relief, an accounting, and attorney's fees and costs.

The County appeals from that part of the September 2, 2010 Law Division order, which denied its motion to dismiss plaintiff from this matter for lack of standing and its motion for summary judgment regarding plaintiff's attorney's fee petition. The County also appeals from the January 11, 2011 order, which awarded plaintiff attorney's fees and costs. Plaintiff cross-appeals from the January 11, 2011 order as to the amount of the attorney's fee award and the denial of a stipend for herself. We affirm all orders.

These are the relevant facts. Following the filing of the complaint, plaintiff filed a motion, seeking, in part, class certification and a determination of the County's actual cost for copies made on the self-service photocopiers and the computer printers. In an April 27, 2007 order, the trial judge granted the motion, appointed plaintiff as class representative, and appointed Sander D. Friedman, Esq. and Donald M. Doherty, Jr., Esq. of the law firm of Friedman Doherty, LLC (collectively, the Law Firm) as class counsel.*fn1 The judge defined the class as "[a]ll natural and corporate persons who utilized the self-service duplicating equipment located in the Middlesex County Clerk's Office from December 12, 2000 to the present, paid $.25 for copies or print-outs and who have not been reimbursed by any other source for the copying/printing charges." The judge also ordered that the calculation of the County's actual cost for copies shall include the costs of paper, toner/ink, the self-service photocopiers, and the computer printers.

On January 31, 2008, the County filed a motion for summary judgment to dismiss the complaint or alternatively, to clarify the April 27, 2007 order as to what items should be included in the actual cost calculation. In an August 4, 2008 order, and a September 3, 2008 amended order, the judge granted the motion, in part, and dismissed the self-service photocopiers claim with prejudice. He held that a vendor owned the self-service photocopiers and charged the copying fee, not the County; the vendor leased space from the County pursuant to N.J.S.A. 40A:12-24 for its photocopiers; and the vendor paid the County $.16 per copy as rent, which was separate and distinct from the copying fee the vendor charged to the public. The judge denied the motion as to the computer printers claim, holding that there was a genuine issue of material fact as to the County's actual cost for copies made on this County-owned equipment.

The Law Firm filed a motion to amend the complaint to add MMI Abstract Co., Inc. (MMI) as co-lead plaintiff. It did so "as a prophylactic measure" in order to avoid any challenge to plaintiff's status as class representative because she was "a sporadic user of the [self-service photocopiers] . . . and may not have used the [computer] printers." MMI, on the other hand, had regularly made copies on the computer printers since 1998. In an October 24, 2008 order, the judge denied the motion, stating that he had previously granted summary judgment on the self-service photocopiers claim "on which the movant seeks to add [MMI]."

The County subsequently filed a motion to dismiss plaintiff from this matter arguing that she lacked standing because the judge had dismissed the self-service photocopiers claim, and plaintiff did not use the computer printers to make copies.*fn2 The County also sought to dismiss the complaint pursuant to Rule 4:37-2(a) or alternatively, for reconsideration of the April 27, 2007 order to limit the "look-back" period for refunds from six years to forty-five days.

Thereafter, the parties agreed to extend discovery and withdraw all pending motions without prejudice*fn3 subject to our decision in Smith v. Hudson County Register, 411 N.J. Super. 538 (App. Div. 2010) (Smith I). In seeking the judge's approval of the agreement, defense counsel represented that Smith I involved "a material issue common with this case and that could be dispositive of it, namely, whether the $.25 per page charge for self-service copies made by the public on equipment in [the] County Clerk's Office is lawful under either [OPRA] or the common law." The judge approved the agreement, and the matter was effectively stayed.

Smith I, decided on February 10, 2010, concerned three back-to-back appeals involving other common law right-to-access and OPRA class action complaints the Law Firm had filed against Hunterdon, Hudson and Sussex counties. The County participated as an amicus in Smith I, but plaintiff did not. We held that under the then-existing version of OPRA, a public entity could not lawfully charge a blanket $.25 per-page copying fee for public records if that rate exceeded its actual cost for the copy. Id. at 562-70. We found no need to address "the quantum of damages or other retroactive relief, and the various other issues and sub-issues raised[,]" including a lack of standing defense raised by defendant Sussex County. Id. at 573. Our decision was made prospective, and took effect on July 1, 2010. Id. at 572. We deconsolidated the appeals, and remanded each case to its respective trial court to address the respective plaintiffs' attorney's fees claims under N.J.S.A. 47:1A-6. Id. at 573-74.

In compliance with Smith I, the County lowered its copying fee to $.05 per page for copies made on the computer printers. Thereafter, on September 10, 2010, the Legislature amended N.J.S.A. 47:1A-5b, effective November 9, 2010, and set the public records copying fee at $.05 per page for letter-size copies, $.07 per page for legal-size copies, and no fee for electronic access, except for the cost of supplies, such as computer discs.

The County filed a summary judgment motion, arguing that Smith I precluded retroactive relief in this case. The County also argued that plaintiff was not entitled to attorney's fees and costs because she was not denied access to public records, and the $.25 per page copying fee she paid for her copies did not discourage her access.

The County also filed a motion for summary judgment to, in part, dismiss the complaint with prejudice as a matter of law or alternatively, to dismiss plaintiff for lack of standing. Plaintiff filed a cross-motion for injunctive relief and attorney's fees and costs, and reconsideration of that part of ...


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