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Sussex Commons Associates, LLC, A Limited Liability Company of the v. Rutgers

July 5, 2012

SUSSEX COMMONS ASSOCIATES, LLC, A LIMITED LIABILITY COMPANY OF THE STATE OF NEW JERSEY, AND HOWARD BUERKLE, PLAINTIFFS-RESPONDENTS,
v.
RUTGERS, THE STATE UNIVERSITY;
RUTGERS ENVIRONMENTAL LAW CLINIC; AND RUTGERS UNIVERSITY CUSTODIAN OF RECORDS, DEFENDANTS-APPELLANTS.



On certification to the Superior Court, Appellate Division, whose opinion is reported at 416 N.J. Super. 537 (2010).

The opinion of the court was delivered by: Chief Justice Rabner

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).

Sussex Commons Assocs., LLC v. Rutgers, the State University

(A-97-10) (067232)

Argued March 12, 2012

Decided July 5, 2012

RABNER, C.J., writing for a majority of the Court.

In this appeal, the Court considers whether records related to clinical cases at public law school clinics are subject to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13.

The Rutgers Environmental Litigation Clinic (RELC or the Clinic) is a clinical legal education program at Rutgers Law School-Newark that provides pro bono legal assistance to clients on environmental matters. Rutgers legal clinics operate like a law firm in office space that is accessible only to the clinics. The clinics serve an important educational function by providing an opportunity for law students to perform "hands-on" legal work on actual cases. In 1996, the American Bar Association began to require that accredited law schools offer such programs. Today, clinical legal programs are an accepted part of legal education and provide legal services to clients who lack the resources to hire an attorney.

In 2004, the RELC began representing the Coalition to Protect Our Land, Lakes and Watersheds (Coalition) and the Citizens for Responsible Development at Ross' Corner (CRDRC). CRDRC opposed the plan of Sussex Commons Associates, LLC (Sussex Commons or Sussex) to develop an outlet mall. Sussex Commons filed a lawsuit against the Chelsea Property Group alleging that Chelsea tortiously interfered with Sussex Commons' attempts to secure tenants for the proposed mall. Thereafter, Sussex Commons moved to amend its complaint against Chelsea to name four individuals, including officers of the Coalition and CRDRC, as co-conspirators, sought broader discovery of the individuals, and also sought to discover communications between Chelsea's counsel and the RELC. The trial court denied the motion to amend, finding that Sussex Commons was using the threat of legal action to chill the exercise of First Amendment rights by citizens opposed to the mall, and determined that although Sussex was entitled to know if Chelsea's attorneys were assisting the RELC, the substance of any communications between them was privileged. Sussex Commons also submitted an OPRA request to Rutgers University requesting eighteen categories of documents relating to the RELC. After Rutgers' Custodian of Records denied the requests, Sussex Commons filed suit against Rutgers University, the RELC, and the Custodian of Records alleging that it was entitled to the records under OPRA and the common law right of access. The trial court ruled that the RELC was exempt from OPRA and dismissed the complaint. The Appellate Division reversed. 416 N.J. Super. 537 (App. Div. 2010). The panel explained that Rutgers University was subject to OPRA, that the University included the law school, and that the Clinic was part of the law school. As a result, the panel concluded that the Clinic met OPRA's definition of a public agency. The Court granted certification. 205 N.J. 519 (2011).

HELD: Records related to cases at public law school clinics are not subject to OPRA. This ruling encompasses client-related documents or clinical case files, as well as requests for information about the development and management of litigation.

1. The Court's obligation when interpreting a law is to determine and carry out the Legislature's intent. Courts first look at the plain language of the statute and, if it is ambiguous, they may examine extrinsic evidence. When a literal interpretation would create a manifestly absurd result, contrary to public policy, courts may consider the law's overall purpose for direction. OPRA requires that "government records" be accessible to the public "for the protection of the public interest." N.J.S.A. 47:1A-1. OPRA promotes transparency in the operation of government and enables citizens to guard against improper government action. To that end, it defines "government records" broadly as any record prepared or kept in the course of official business by any officer or agency; and "public agency" or "agency" includes "any of the principal departments in the Executive Branch of State Government . . . and any independent State authority, commission, instrumentality or agency." N.J.S.A. 47:1A-1.1. OPRA also exempts various documents from disclosure. (pp. 12-14)

2. The absorption of Rutgers, which was essentially independent for its first 190 years, into the framework of State-supported education has been marked by an overriding concern for the academic freedom of the University. As a result, Rutgers occupies a unique status as both a private and public institution. Consistent with Rutgers' distinct status, rather than adopting a bright-line rule that treats Rutgers as an arm of the State for all purposes, courts have resolved the question of whether general state statutes apply to Rutgers by considering both the purposes of the general program and the purposes of the Rutgers legislative charter. (pp. 14-16)

3. OPRA applies to Rutgers University and its law schools; therefore, they are required to disclose records about public funding for clinical programs. This case, however, presents a narrower issue: whether records related to clinical cases at public law school clinics are subject to OPRA. In In re Determination of Executive Commission on Ethical Standards, 116 N.J. 216 (1989), the Court found that Rutgers' clinical professors were not "State employees" for purposes of the New Jersey Conflicts of Interest Law, and therefore were not barred from representing private clients before State agencies. The Court focused on the purpose of the conflicts law. It reviewed the statutory bar and the conflicts law's broad definition of "State agency" -- which is identical to OPRA's definition of "public agency" in all relevant respects. The Court then asked whether the teaching role of a Rutgers' clinical professor evoked the concerns that prompted the conflicts law and whether the law would frustrate the University's charter. Against the backdrop of Rutgers' history and status, and the importance of clinical legal education, the Court found no risk of undue influence or appearance of undue influence posed by a university professor conducting a teaching program whose mission extends to a State agency. The Court noted that the situation was not within the contemplation of the goals of the conflicts law; it declared that the Legislature would not have intended to disable a clinical education program at our State University. The Court also observed that it has never been the law that Rutgers is an alter-ego of the State for all purposes. Despite an invitation from the Court to overturn its holding, the Legislature did not do so. Instead, it is telling that the Legislature drafted OPRA in 2001 with full knowledge of the earlier decision and its reasoning. The rationale of In re Executive Commission on Ethical Standards applies here. The Court considers OPRA, its purpose, and whether its application to clinical legal programs would thwart Rutgers' mission. (pp. 17-21)

4. OPRA seeks to promote the public interest by granting citizens access to documents that record the workings of government in some way. Because clinical legal programs do not perform any government functions, but instead teach law students how to practice law and represent clients, public access to documents related to clinic cases would not further the purposes of OPRA. The possibility of disclosure, however, would have real consequences for clinical education and would require clinics to divert attention and resources away from training students and serving clients to respond to OPRA requests. Even if documents were protected under one of OPRA's exemptions, law school clinics would still have to shoulder the administrative burden of preparing for, responding to, and possibly litigating over each item requested. The consequences are likely to harm the operation of public law clinics and, by extension, the legal profession and the public. Applying OPRA to the RELC and similar clinical programs would also lead to the following absurd result: public law school clinics would be subject to disclosure of their records, and private law school programs would not. Nothing suggests that the Legislature intended those results when it enacted OPRA, and the Court does not believe the Legislature meant to harm clinical legal programs when it drafted that important law. To the contrary, the Legislature has repeatedly demonstrated its intent to support Rutgers and higher education for the benefit of the citizens of this State. (pp. 21-24)

5. Sussex Commons also sought RELC records under the common law right of access. Because clinical professors at public law schools do not act as public officers or conduct official business when they represent private clients at a law school clinic, the common law right of access does not extend to records maintained in that setting. (pp. 24-25)

The judgment of the Appellate Division is REVERSED.

JUSTICE ALBIN, CONCURRING, expresses the view that OPRA applies to the Clinic, but that the records sought by plaintiffs are either not "government records" or fall within an OPRA exemption.

JUSTICES LaVECCHIA and HOENS and JUDGE WEFING (temporarily assigned) join in CHIEF JUSTICE RABNER's opinion. JUSTICE ALBIN filed a separate, concurring opinion. JUSTICE PATTERSON did not participate.

Argued March 12, 2012

CHIEF JUSTICE RABNER delivered the opinion of the Court.

The question raised in this appeal is whether records of a legal clinic at a public law school are subject to the Open Public Records Act (OPRA). The Rutgers Environmental Litigation Clinic (RELC or the Clinic) represented a private group that opposed a plan to build an outlet mall. The mall's developer, Sussex Commons Associates, LLC (Sussex Commons or Sussex), sought documents from its adversary -- the Clinic -- under OPRA. The trial court concluded that the Clinic was exempt from OPRA requests, and the Appellate Division reversed.

We now reverse the judgment of the Appellate Division and hold that records related to cases at public law school clinics are not subject to OPRA. We find no evidence that the Legislature intended to apply OPRA to teaching clinics that represent private clients, or that it meant to cause harm to clinical programs at public law schools when it enacted OPRA. We also conclude that the common law right of access does not extend to case-related records of law school clinics.

I.

The RELC is one of eight clinical legal education programs at Rutgers Law School-Newark. The Clinic has been in existence since 1985 and provides pro bono legal assistance to clients on environmental matters.

The RELC and the other Rutgers legal clinics operate like a law firm in office space that is accessible only to the clinics. The clinics also serve an important educational function by preparing law students for the actual practice of law. Students who participate in the clinics have an opportunity to perform "hands-on" legal work on actual cases.

In 1996, the American Bar Association began to require that accredited law schools offer such programs. Robert R. Kuehn & Peter A. Joy, An Ethics Critique of Interference in Law School Clinics, 71 Fordham L. Rev. 1971, 1972 (2003); ABA Standards for Approval of Law Schools 302(b)(1) (2011-12), available at http://www.americanbar.org/groups/legal_education/resources/ standards.html. Today, clinical legal programs are an accepted part of legal education. At clinics across the country, law students provide an estimated more than two million hours of legal work each year to clients who lack the resources to hire an attorney. Ctr. for the Study of Applied Legal Educ., Report on the 2007-2008 Survey 19 (2008), http://csale.org/files/CSALE.07-08.Survey.Report.pdf. In support of that practice, New Jersey court rules permit third-year law students and recent graduates who are not yet admitted to the bar to appear in court and practice law as part of an approved clinical program. R. 1:21-3(b).

Starting in 2004, the RELC began representing two clients:

(1) the Coalition to Protect Our Land, Lakes and Watersheds (Coalition), a non-profit corporation dedicated to preserving and protecting lands and watersheds in northwest New Jersey; and

(2) the Citizens for Responsible Development at Ross' Corner (CRDRC), another non-profit corporation that opposed Sussex Commons' plan to develop a ninety-store outlet mall at Ross' Corner in Frankford Township. David Mintz, Allyn Jones, and Paul Sutphen were officers of the Coalition; Paul Sutphen, Geri Sutphen, and Allyn Jones were CRDRC's original officers.

Sussex Commons and a closely related entity filed several lawsuits in connection with the development of the mall. Of particular relevance is a lawsuit Sussex Commons brought against the Chelsea Property Group. Sussex alleged that Chelsea tortiously interfered with Sussex Commons' attempts to secure tenants for the proposed mall.

In November 2005, Sussex Commons moved to amend its complaint against Chelsea to name Mintz, Jones, Paul Sutphen, and Robert McDowell as co-conspirators but not defendants. (McDowell was a member of the Frankford Township Committee and the Frankford Township Land Use Board.) Sussex also sought broader discovery of the four individuals. The trial court denied the motion to amend and found that Sussex Commons was using the threat of legal action to chill the exercise of First Amendment rights by citizens opposed to the outlet mall.

Sussex Commons attempted to get information about the alleged conspiracy in other ways as well. As part of the lawsuit against Chelsea, Sussex sought to discover communications between Chelsea's counsel -- the law firm then known as Pitney Hardin -- and the RELC. In its ruling on June 23, 2006, the trial court observed that Sussex was entitled to know if Chelsea's attorneys were assisting the RELC but refused to order disclosure of the substance of any communications between them. Those communications, the court explained, were protected by attorney-client and work-product privileges. The court labeled Sussex Commons' efforts "a fishing expedition."

On May 11, 2006, Sussex Commons submitted an OPRA request to Rutgers University. Specifically, Sussex requested the following eighteen categories of documents:

1) Documents reflecting the allocation of funds by Rutgers University to Rutgers Environmental Law Clinic for 2003, 2004, 2005 and 2006.

2) Copies of all bills to Citizens for Responsible Development at Ross' Corner from Rutgers Environmental Law Clinic.

3) Documents containing the time records and time spent for all attorneys, paralegals and secretaries of the Rutgers Environmental Law Clinic on behalf of Citizens for Responsible Development at Ross' Corner in connection with the Sussex Commons project at Ross' Corner.

4) Documents containing all disbursements on behalf of Citizens for Responsible Development at Ross' Corner in connection with the Sussex Commons project at Ross' Corner.

5) Documents containing all payments to expert witnesses on behalf of Citizens for Responsible Development at Ross' Corner in connection with the Sussex Commons project at Ross' Corner.

6) Documents containing payments made by Citizens for Responsible Development at Ross' Corner to ...


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