Hon. Deanne Wilson, J.S.C.
Judge, Law Division, Civil Part
Morris County Superior Court Courthouse
Washington & Court Sts.,
Morristown, NJ 07963-0910
RE: MOSHER, GARY VS. BOROUGH OF MENDHAM
Docket No. : MRS-L-2876-03 Return Date : April 15, 2005
Dear Judge Wilson:
As the Court is aware, we represent Defendant, Borough of Mendham, in the above matter. Plaintiff has filed a motion for summary judgment requesting a declaration that the Open Public Records Act (OPRA) is unconstitutionally vague legislation in need of clarifying interpretation. Kindly accept this letter memorandum in opposition.
OPRA, which has been effective since July of 2002, was intended by the Legislature to make records of a "public agency" "readily accessible for inspection, copying, or examination by the citizens of this State." The Times of Trenton Pub. Corp. v. Lafayette Yard Community Development Corp.. 368 N.J. Super. 425, 442 (App. Div. 2004); N.J.S.A. 47:1A-1. It defines those government records subject to the statute as "information 'made, maintained or kept on file' by a government agency
'in the course of its official business' or information that has been 'received' by a government agency 'in the course of its official business'." Bergen County Imp. Authority v. North Jersey Media Group, Inc., 370 N.J. Super. 504, 516 (App. Div. 2004); See also MAG Entertainment, LLC v. Division of Alcoholic Beverage Control. 2005 WL 516231; See also Bergen County Improvement Auth. V. North Jersey Media Group, Inc., 370 N.J. Super. 504, 515 (App. Div.). cenif. denied. 182 N.J. 143 (2004). The above provisions are applicable to: "All counties, municipalities, school districts, fire districts, planning and zoning boards and other county and local boards or agencies, and all independent county or local agencies and authorities established by municipal or county governments." http://www.nj.gov/grc/records sections/partl.html
The Law Division is the appropriate forum for consideration of a lawsuit for access to public records which are withheld by a state agency as privileged or confidential even though the decision to withhold records is subject to direct Appellate Division review. Hartz Mountain Industries, Inc. v. New Jersey Sports & Exposition Authority, 369 N.J. Super. 175 (App. Div. 2004), certif. denied 182 N.J. 147. In this motion, however, the plaintiff now argues that:
The Open Public Records Act as currently defined by interpretation of the Courts and the GRC is unconstitutionally vague as it violates the constitutional obligations of due and equal process. By definition, due process requires that a lawsuit seeking to declare unconstitutional a law enacted by the State of New Jersey must name the State of New Jersey as a party defendant. The Borough of Mendham has no authority, legal standing or motivation to defend the constitutionality of the Open Public Records Act.1 See Ringlieb v. Parsippany-Troy Hills Tp.. 59 N.J. 348, 351 (1971) (Municipalities in our State have no power other than those delegated to them by the Legislature and by our State Constitution.)
More importantly and obviously, Mr. Mosher's challenge to OPRA itself falls beyond the scope of his Complaint. The plaintiff filed a one-paragraph Complaint alleging that the Borough of Mendham, from February through June of 2001, deliberately stole four months of Webmaster Services from the plaintiff, that the Borough of Mendham committed repeated violations of the Open Public Records Act and his common law civil right to fair access to public information held by the Borough; and that these acts violated New Jersey's Law Against Discrimination, The Americans With Disabilities Act and his common law civil rights. At no time prior to the filing of this motion has Mr. Mosher challenged the constitutionality of the very Act under which he seeks
damages. (Footnote: Indeed, but for the passage of this legislation of laudable intent and frustrating imprecision, this defendant would have considerably greater discretion in addressing the seemingly endless barrage of harassing communications from Mr. Mosher, only a fraction of which this Court has received.) While our Court Rules permit liberal amendment of pleadings through the time of judgment, Mr. Mosher has not sought to amend his Complaint to challenge OPRA. If and when he does, fundamental due process requires that the State of New Jersey receive notice and an opportunity to respond.
For the foregoing reasons we request that the Court deny Mr. Mosher's "Motion for Summary Judgment."
Respectfully submitted, METHFESSEL & WERBEL, ESQS.
Eric L. Harrison harrison@methwerb.com Ext. 138 ELH:tbb.
VIA REGULAR AND CERTIFIED MAIL, RRR
cc: Gary Mosher, Pro Se
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