On January 15, 2008, the New Jersey Supreme Court granted the Libertarian Party of Central New Jersey motion to appear as "amicus curiae" (i.e. friend of the court) in a pending public records case. The motion, brief, certification and court order are at www.lpcnj.org/OGTF/HobokenAmicus.pdf

Mason v. City of Hoboken, the case that the LPCNJ is participating in, presents the Supreme Court with two issues:

  1. Whether people who sue for access to records under the Open Public Records Act (OPRA) can file a simple civil complaint, subject to a two-year statute of limitations, or whether they need to file a more complicated action known as "an action in lieu of prerogative writs," which is subject to a 45-day statute of limitations.
  2. Whether people who successfully sue for access to public records should continue to be reimbursed for their attorney fees as long as the lawsuit was causally related to obtaining access to the public record, regardless of whether or not an order or formal settlement occurs; or should the rule be changed so that attorney fees will be awarded only when a court officially rules in favor of the plaintiff.

On the first issue, the LPCNJ argues that a regular civil complaint is the proper method for enforcing an OPRA claim and that a two-year--and not a forty-five day--statute of limitations should apply.

On the second issue, the LPCNJ argues against requiring that a person formally "win" a lawsuit as a necessary condition to being awarded his or attorney fees for bringing the suit. The LPCNJ argues that requiring a formal court order to trigger an attorney fee award would lead to government agencies engaging in a process known as "strategic capitulation." This is where the agency, after requiring the plaintiff to spend large sums on litigation, give the requested record to the plaintiff shortly before trial and then argues that the case is moot and that the plaintiff isn't entitled to his litigation costs because no formal order needed to be issued.

The LPCNJ is being represented by Richard Gutman, Esq. of Montclair, who is the same attorney who represented the party in its successful lawsuit against Edison Township regarding the $55 charge for floppy disks.

The NJ Press Association and the Attorney General's Office are also amicus curiae and will be participating in the oral argument. The ACLU and the Center for Auto Safety, as well as the LPCNJ are participating as amicus but without oral argument. The oral argument is anticipated to be held on February 19 or 20, 2008.

John Paff
Somerset, New Jersey

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