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James Gensch, On Behalf of Himself and All Others Similarly Situated v. Hunterdon County Clerk's Office

July 9, 2012

JAMES GENSCH, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFF-RESPONDENT/CROSS-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 BOARD OF CHOSEN FREEHOLDERS, DEFENDANTS-APPELLANTS/CROSS-RESPONDENTS. DEAN SMITH, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFF-APPELLANT/CROSS-RESPONDENT,
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/CROSS-APPELLANTS. ANDREW GARGANO, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFF-APPELLANT,
v.
BERGEN COUNTY CLERK'S OFFICE, AND KATHLEEN A. DONOVAN, IN HER CAPACITY AS THE BERGEN COUNTY CLERK, BERGEN COUNTY, AND THE BERGEN COUNTY BOARD OF CHOSEN FREEHOLDERS, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Docket No. L-0307-07 (A-3578-10); Hudson County, Docket No. L-5261-07 (A-1360-11); and Bergen County, Docket No. L-8571-06 (A-1361-11).

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued June 4, 2012 --

Before Judges Sabatino, Ashrafi, and Fasciale.

The present related appeals and cross-appeals,*fn1 which were argued back-to-back and which we consolidate solely for purposes of this opinion, concern trial court awards of attorneys' fees to the three respective plaintiffs pursuant to N.J.S.A. 47:1A-6, the fee-shifting provision of the Open Public Records Act ("OPRA"), N.J.S.A. 47:1A-1 to -13. In all three appeals, plaintiffs, who are and have been represented by the same counsel, contend that the trial court's fee awards are inadequate, particularly because none of the awards include a fee enhancement above the "lodestar" amount. In both A-1360-11 (Smith) and A-3578-10 (Gensch) the governmental defendants not only oppose plaintiffs' claims for enhancement, but further maintain that the fee award in their case should be vacated or reduced.

For the reasons described in this opinion, we affirm the fee awards in all three cases without any lodestar enhancements, although we modify the fee award in A-1360-11 (Smith) to correct for certain disallowed attorney time by an associate that was erroneously subtracted by the trial court at a partner's billing rate.

I.

The three lawsuits before us were filed as parallel efforts by the respective plaintiffs to contest the rates that various county governments were then charging citizens for the copying of public records. The general background of these lawsuits, and other similar lawsuits brought by the same counsel on behalf of other plaintiffs against other counties, is detailed in our prior opinions in Smith v. Hudson County Register, 411 N.J. Super. 538 (App. Div. 2010) ("Smith I"), and in Smith v. Hudson County Register, 422 N.J. Super. 387 (App. Div. 2011) ("Smith II"). In each case, the plaintiff contended that the County defendants were overcharging for the reproduction of public records, thereby unduly restricting citizen access to such records.

In Smith I, we held that under the then-existing version of OPRA, governmental agencies in our State could not lawfully charge a blanket rate to copy public records if that rate exceeded the "actual cost" of such copying. Smith I, supra, 411 N.J. Super. at 562-70. We denied retrospective relief to the plaintiffs in Smith I, but remanded that case along with two companion appeals*fn2 to address plaintiffs' claims for counsel fees under OPRA's fee-shifting provision. N.J.S.A. 47:1A-6. In the meantime, the Legislature amended OPRA to establish a uniform copying rate of five cents per letter-sized page. See N.J.S.A. 47:1A-5(b).

Thereafter, in Smith II, we concluded that plaintiff Smith was, in fact, a "prevailing party" entitled to an award of counsel fees under OPRA because he had persuaded this court in Smith I to adopt his interpretation of the law predicated on an "actual costs" approach. Smith II, supra, 422 N.J. Super. at 396; see also Smith I, supra, 411 N.J. Super. at 570. Smith also prevailed in Smith I by persuading us to reject the trial court's ruling that he was not entitled to relief because he had allegedly paid the copying charges "voluntarily." Smith II, supra, 422 N.J. Super. at 395-96; see also Smith I, supra, 411 N.J. Super. at 551-54. We therefore remanded the case again to the trial court for a determination of Smith's reasonable counsel fees. Smith II, supra, 422 N.J. Super. at 399.

On remand a second time, the trial court granted Smith a fee award of $40,127.50, utilizing a $350 hourly rate for approved partner time and a $175 hourly rate for approved associate time. Smith has now appealed that award as insufficient. The Hudson County defendants have cross-appealed, seeking to have the award vacated or reduced.

In addition, the trial judge in Hunterdon County who presided over the remand in Gensch, awarded Gensch $93,265.37 in counsel fees, utilizing the same hourly rates as in Smith. The Hunterdon County defendants have now appealed that award, seeking to have it set aside or reduced, and Gensch has cross-appealed the award, seeking to have it increased.

A third trial judge in Bergen County who considered the fee application in Gargano, awarded that plaintiff $38,299.33, inclusive of costs. The Bergen County judge adopted the same $350/$175 hourly rate structure. Gargano has now appealed that award as insufficient. The Bergen County defendants oppose his appeal, but they have not cross-appealed to seek a reduction of the award.

The record indicates that, on the whole, plaintiffs' law firm filed separate lawsuits against nineteen of the State's twenty-one counties, including the present three cases. We are advised that, in the aggregate, those nineteen cases have generated a fee recovery, either by court award or by settlement, in excess of one million dollars. One of the cases involving another county (Middlesex) resulted in a fee award (without a lodestar enhancement), which was recently sustained by another panel of this court in an unpublished opinion.*fn3 We ...

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