Opinion
DOCKET NO. A-3692-14T2
11-17-2015
SHARON VARNELAS, INDIVIDUALLY, AND AS ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF LENNON VARNELAS BALDWIN, JOHN BALDWIN, AND ROBBIE BALDWIN, Plaintiffs-Respondents, v. THE MORRIS SCHOOL DISTRICT; THE BOARD OF EDUCATION OF THE MORRIS SCHOOL DISTRICT; THE BOARD OF EDUCATION OF THE TOWN OF MORRISTOWN; MORRISTOWN HIGH SCHOOL; LINDA MURPHY; THOMAS J. FICARRA; C. SMITTY HORTON; GREGORY DIGIOACCHINO; JOSEPH SCHMIDT; NILSA ANDRADE; M.J.; J.W.-B.; AND MICHAEL CONWAY, Defendants-Respondents, and THE MORRIS COUNTY PROSECUTOR'S OFFICE, Appellant.
Domenick Carmagnola argued the cause for appellant (Carmagnola & Ritardi, LLC, attorneys; Mr. Carmagnola, of counsel and on the brief; Barbara J. Stanton, on the brief). Andrew Winegar argued the cause for respondents The Morris School District; The Board of Education of The Morris School District; The Board of Education of the Town of Morristown; Morristown High School; Thomas J. Ficarra; C. Smitty Horton; Gregory Digioacchino; Joseph Schmidt and Nilsa Andrade (Parker McCay, P.A., attorneys; J. Brooks DiDonato, of counsel; Stacy L. Moore, Jr., on the brief). Jeffrey R. Youngman argued the cause for respondents Sharon Varnelas, John Baldwin and Robbie Baldwin (Feitlin, Youngman, Karas & Gerson, L.L.C., attorneys; Mr. Youngman and Frederick E. Gerson, on the brief). Stephanie L. DeLuca argued the cause for respondent Linda Murphy (Lenox, Socey, Formidoni, Giordano, Cooley, Lang & Casey, LLC, attorneys; Gregory J. Giordano and Ms. DeLuca, on the brief). Respondents Michael Conway, M.J. and J.M.-B. have not filed briefs.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano, Simonelli and Sumners. On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-522-14. Domenick Carmagnola argued the cause for appellant (Carmagnola & Ritardi, LLC, attorneys; Mr. Carmagnola, of counsel and on the brief; Barbara J. Stanton, on the brief). Andrew Winegar argued the cause for respondents The Morris School District; The Board of Education of The Morris School District; The Board of Education of the Town of Morristown; Morristown High School; Thomas J. Ficarra; C. Smitty Horton; Gregory Digioacchino; Joseph Schmidt and Nilsa Andrade (Parker McCay, P.A., attorneys; J. Brooks DiDonato, of counsel; Stacy L. Moore, Jr., on the brief). Jeffrey R. Youngman argued the cause for respondents Sharon Varnelas, John Baldwin and Robbie Baldwin (Feitlin, Youngman, Karas & Gerson, L.L.C., attorneys; Mr. Youngman and Frederick E. Gerson, on the brief). Stephanie L. DeLuca argued the cause for respondent Linda Murphy (Lenox, Socey, Formidoni, Giordano, Cooley, Lang & Casey, LLC, attorneys; Gregory J. Giordano and Ms. DeLuca, on the brief). Respondents Michael Conway, M.J. and J.M.-B. have not filed briefs. PER CURIAM
By leave granted, the Morris County Prosecutor's Office (MCPO) appeals from the Law Division's March 6, 2015 order that denied without argument MCPO's motion to quash a subpoena served upon the MCPO by plaintiff, Sharon Varnelas. We provide some background that is essentially undisputed.
I.
The case involves the tragic death of Lennon Varnelas Baldwin, a freshman at Morristown High School who committed suicide on March 28, 2012. Plaintiff, individually and as administratrix of her son's estate, along with her husband and another son, filed a complaint against two juveniles, M.J. and J.W.-B., and an adult, Michael Conway, who allegedly had assaulted and bullied the decedent at school. Also named as defendants were the Morristown School District Board of Education, Linda Murphy, the principal of the high school, and various school officials (collectively, the school defendants). Plaintiffs alleged, in part, that the school defendants were negligent and failed to enforce policies regarding bullying.
The Morris School District Board of Education, Thomas J. Ficarra, C. Smitty Horton, Gregory DiGioacchino, Joseph Schmidt, Nilsa Andrade and Murphy have appeared as respondents in this appeal and also opposed MCPO's motion in the Law Division. However, the juvenile defendants and Conway have not appeared in this appeal, and we were advised at oral argument that they have not appeared in the Law Division proceedings.
The MCPO initiated criminal investigations of the assaults, and juvenile complaints were filed against M.J. and J.W.-B. It would also appear that Conway was indicted. All three matters were resolved when plaintiff first sought an order compelling production of the MCPO's files. The judge denied the request without prejudice, concluding plaintiff failed to comply with Rule 4:11-1. Plaintiff attempted to comply by filing a second petition, but the judge denied the request as "moot." Plaintiff then filed the complaint and named the MCPO as a defendant. The MCPO moved to dismiss; plaintiff cross-moved for entry of "default judgment" against the MCPO requiring it to produce the files. The judge granted MCPO's motion, dismissed the complaint as to the MCPO with prejudice and denied plaintiff's cross-motion.
We gather this information from a certification by plaintiff's counsel that is in the record and the subpoena itself. None of the charging documents are in the appendices.
The record does not disclose the disposition of the complaints and indictment.
That Rule provides in pertinent part:
A person who desires . . . to inspect documents or property or copy documents pursuant to R. 4:18-1 may file a verified petition, seeking an appropriate order, entitled in the petitioner's name, showing: (1) that the petitioner expects to be a party to an action cognizable in a court of this State but is presently unable to bring it or cause it to be brought; (2) the subject matter of such action and the petitioner's interest therein; (3) the facts which the petitioner desires to establish by the proposed testimony or evidence and the reasons for desiring to perpetuate or inspect it; (4) the names or a description of the persons the petitioner expects will be opposing parties and their addresses so far as known; (5) the names and addresses of the persons to be examined and the substance of the testimony which the petitioner expects to elicit from each; and (6) the names and addresses of the persons having control or custody of the documents or property to be inspected and a description thereof.
[R. 4:11-1(a).]
Plaintiff then served a subpoena on an assistant prosecutor demanding production of "[t]he entire investigation file" regarding the two juvenile and adult criminal matters. When its request to withdraw the subpoena went unheeded, the MCPO filed a motion to quash and requested oral argument. We gather the MCPO's argument was that disclosure of the juveniles' investigation files was barred by N.J.S.A. 2A:4A-60, and the MCPO was not obligated to produce Conway's file under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13.
Plaintiffs and the school defendants opposed MCPO's motion to quash and argued disclosure of the juveniles' investigative file was authorized by N.J.S.A. 2A:4A-60(a)(6), (9) and (10), and release of Conway's filed was authorized by N.J.S.A. 47:1A-3(b) and N.J.S.A. 47:1A-8. They, too, sought oral argument.
Without explanation as to why argument was not granted, on February 11, 2015, the judge entered an order denying MCPO's motion to quash. However, the judge ordered that "[a]ny information as to [the] disposition of [the] juvenile cases, or juvenile confinement, restitution or payments shall not be released." Further, "[a]ny materials divulged as to the juveniles are to be utilized in this litigation only, and may be divulged only to the parties, their attorneys or expert witnesses, and no one else."
The judge filed an amended order on March 6, 2015, that compelled production of the files within twenty days. The MCPO moved for leave to appeal, and, on March 13, the judge filed a supplemental statement of reasons pursuant to Rule 2:5-6(c). The judge characterized MCPO's motion as one seeking "a protective order," and stated that it was "granted in part." The judge further stated that the juveniles' files were to be "sealed" pursuant to Rule 1:38-11, and "the information sought must be redacted to prevent [] defendants in this action from viewing information about the victims and their families as prohibited by N.J.S.A. 47:1A-2.2."
In this respect, the statement of reasons was inconsistent with the order, which denied the MCPO's motion to quash subject to certain limitations.
The judge reasoned that the juvenile records may be produced because plaintiff's decedent was a victim and "allowed limited access . . . pursuant to N.J.S.A. 2A:4A-60(a)(6)." The judge found that as "interested parties" plaintiffs had demonstrated "good cause" for the release because the MCPO files "are likely relevant and probative with regard to" the complaint. Citing Keddie v. Rutgers, 148 N.J. 36, 49-50 (1997), and N.J.S.A. 47:1A-8, the judge concluded that plaintiff was entitled to the production of the MCPO's file regarding Conway. We granted the MCPO's motion for leave to appeal.
II.
We begin by recognizing that "[d]ecisions made by our trial courts" on discovery matters are upheld unless they constitute an abuse of discretion. Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011). Accordingly, a reviewing court "generally defer[s] to a trial court's disposition of discovery matters unless the court has abused its discretion or its determination is based on a mistaken understanding of the applicable law." Ibid. (quoting Rivers v. LSC P'ship, 378 N.J. Super. 68, 80 (App. Div.) (emphasis added), certif. denied, 185 N.J. 296 (2005).
Before us, the MCPO argues that the judge misapplied N.J.S.A. 2A:4A-60(a)(6). The MCPO argues that, pursuant to other subsections of the statute, it is not required to produce the juvenile investigative files. As to Conway's file, the MCPO argues that criminal investigatory files are not "government records" and therefore not subject to compelled disclosure under OPRA or the common law.
The MCPO also raises a procedural argument, specifically that permitting plaintiff to subpoena the files relieved her of the burden to demonstrate good cause for their release, and shifted the burden to the MCPO to demonstrate why they were not subject to the court's inherent subpoena power. While we essentially agree that the procedure was improper, we described in detail the prior procedural history to demonstrate that plaintiff attempted to comply with our Court Rules, but was thwarted. We believe our disposition of the appeal will place the parties in position to proceed appropriately hereafter. --------
Plaintiffs and the school defendants argue that the judge properly applied N.J.S.A. 2A:4A-60 as to the juveniles' files, and appropriately balanced the competing interests regarding disclosure of Conway's file. They urge us to affirm. Having considered these arguments in light of the record and applicable legal standards, we reverse and remand the matter to the Law Division for further proceedings consistent with this opinion.
A.
We exercise de novo review of the judge's reliance upon OPRA and the common law right of access as explained in Keddie, supra, 148 N.J. at 49-50, for the release of the investigative file as to Conway. North Jersey Media Grp., Inc. v. Twp. of Lyndhurst, 441 N.J. Super. 70, 89 (App. Div. 2015).
The MCPO argues that it cannot be compelled to produce its file regarding the Conway investigation because, pursuant to N.J.S.A. 2A:84A-27 (N.J.R.E. 515), "[n]o person shall disclose official information of this State . . . if disclosure is forbidden by . . . any Act of . . . this State." The MCPO argues that OPRA exempts from disclosure "criminal investigatory records," N.J.S.A. 47:1A-1.1, thus, the MCPO "has no authority to produce the requested investigatory records" as to Conway. We disagree.
In North Jersey Media, supra, 441 N.J. Super. at 90, we explained the "three-stage statutory analysis" a court must use "[i]n determining whether documents or information related to a criminal investigation must be disclosed under OPRA." (Emphasis added). However, as the judge here properly noted, N.J.S.A. 47:1A-8 specifically provides that "[n]othing contained in [OPRA] . . . shall be construed as limiting the common law right of access to a government record, including criminal investigatory records of a law enforcement agency." (emphasis added) See also Mason v. City of Hoboken, 196 N.J. 51, 67 (2008) ("OPRA does not limit the common law right of access to government records[,]") (citing N.J.S.A. 47:1A-8). Therefore, the MCPO's argument that OPRA forbids production of criminal investigatory files is without merit.
Moreover, this is not an OPRA case, but rather a request for the production of public records in the context of civil litigation. As such, the common law right of access to public records controls its disposition. See Piniero v. N.J. Div. of State Police, 404 N.J. Super. 194, 204-05 (App. Div. 2008) (applying principles of common law access to public records to discovery dispute in civil litigation). Someone requesting "access [to] this broader class of documents"
must make a greater showing than required under OPRA: (1) "the person seeking access must 'establish an interest in the subject matter of the material'"; and (2) "the citizen's right to access 'must be balanced against the State's interest in preventing disclosure.'"Thus, "[t]he motivation of the requester is a relevant consideration in the balancing process," and the "need for confidentiality in investigative materials may wane after the investigation is concluded," as it was in this case. North Jersey Media, supra, 441 N.J. Super. at 115. Additionally, a court must make a threshold determination whether an in camera review is warranted, or whether the public agency must first file an index clearly identifying the documents and the asserted reasons for non-disclosure. Id. at 116-17 (citing Loigman v. Kimmelman, 102 N.J. 98, 109-12 (1986)).
[Mason, supra, 196 N.J. at 67-68 (quoting Keddie, supra, 148 N.J. at 50).]
Although we reject the MCPO's rationale as to why the subpoena regarding Conway's file should be quashed, we nevertheless are compelled to remand the matter to the Law Division for further proceedings. As noted, the judge did not grant the parties' request for oral argument, and so he did not have the benefit of MCPO's argument regarding the continued need for confidentiality, or plaintiff's argument why continued confidentiality was outweighed by the obvious interest in the material. Although citing Keddie, and the likelihood that Conway's file, like the juveniles' files, would reveal relevant information, the judge never engaged in the balancing process required. See Loigman, supra, 102 N.J. at 108 (requiring the judge to engage in an "exquisite weighing process").
We therefore reverse the order as it pertains to the subpoena regarding Conway's file, and remand the matter to the Law Division for further proceedings.
B.
Consideration of the subpoena of the juveniles' investigative files is more complicated. The judge primarily relied upon N.J.S.A. 2A:4A-60(a)(6), which makes "records of law enforcement agencies, pertaining to [a] juvenile[] charged as a delinquent" "available . . . to" "[a]ny person or agency interested in a case or in the work of the agency keeping the records, by order of the court for good cause shown . . . ." Subsection (6) is one of twelve subsections contained in N.J.S.A. 2A:4A-60(a) that collectively "outline[] . . . entities or persons who may obtain access to the records and the conditions of access." State ex rel. D.A., 385 N.J. Super. 411, 416 (App. Div.), certif. denied, 188 N.J. 355 (2006). The statute as a whole provides "a rule of limited disclosure; . . . not a rule of non-disclosure." Id. at 417 (citing State in the Interest of J.P.F., 368 N.J. Super. 24, 42 (App. Div.), certif. denied, 180 N.J. 453 (2004)).
To the extent that N.J.S.A. 2A:4A-60 reflects the legislative decision to treat juvenile offenders differently from adult offenders, the limited disclosure provision of the Juvenile Code may inform the exercise of the considerable discretion bestowed on the family court judge. It does not, however, limit or constrict the fashioning of an appropriate disposition.
[Ibid.]
The judge did not consider two other subsections of N.J.S.A. 2A:4A-60(a) that specifically address plaintiff's status as a litigant, and which the MCPO argues serve to deny access. Those subsections provide for release to:
[a]ny potential party in a subsequent civil action for damages related to an act of delinquency committed by a juvenile, including the victim or a member of the victim's immediate family, regardless of whether the action has been filed against the juvenile; provided, however, that records available under this paragraph shall be limited to official court documents, such as complaints, pleadings and orders, and
that such records may be disclosed by the recipient only in connection with asserting legal claims or obtaining indemnification on behalf of the victim or the victim's family and otherwise shall be safeguarded from disclosure to other members of the public. Any potential party in a civil action related to the juvenile offense may file a motion with the civil trial judge seeking to have the juvenile's social, medical or psychological records admitted into evidence in a civil proceeding for damages;
Any potential party in a subsequent civil action for damages related to an act of delinquency committed by a juvenile, including the victim or a member of the victim's immediate family, regardless of whether the action has been filed against the juvenile; provided, however, that records available under this paragraph shall be limited to police or investigation reports concerning acts of delinquency, which shall be disclosed by a law enforcement agency only with the approval of the County Prosecutor's Office or the Division of Criminal Justice. Prior to disclosure, all personal information regarding all individuals, other than the requesting party and the arresting or investigating officer, shall be redacted. Such records may be disclosed by the recipient only in connection with asserting legal claims or obtaining indemnification on behalf of the victim or the victim's family, and otherwise shall be safeguarded from disclosure to other members of the public[.]
[N. J.S.A. 2A:4A-60(a)(9) and (10) (emphasis added).]
The MCPO argues in its brief that plaintiff could not compel disclosure under any of the statute's subsections. We reject the contention because it lacks textual support in the statute. See, e.g., State v. Munafo, 222 N.J. 480, 488 (2015) ("To begin, we look at the plain language of the statute.").
Under subsection (6), plaintiff is clearly a "person interested in a case," a broad, general description of a class of people permitted limited access to "records of law enforcement agencies" upon a showing of good cause. See, e.g., Wilson ex rel. Manzano v. City of Jersey City, 209 N.J. 558, 584-85 (2012) (recognizing canon of statutory construction that "more general words can indicate a statutory purpose to broaden the scope of the statute"). More importantly, although no reported cases have interpreted subsections (9) and (10), the Legislature clearly intended that plaintiff, a "party in a . . . civil action for damages related to an act of delinquency committed by a juvenile," may obtain official court documents, pursuant to subsection (9), and, investigative files with the MCPO's approval, pursuant to subsection (10). Because plaintiff occupies this specific position as a party in a civil action, as opposed to simply a "person interested in a case," the statute imposes no "good cause" burden upon her request, as is required by subsection (6).
Of course in this case, the MCPO has not approved release of its investigative files. The issue, therefore, is whether subsection (10) permits the County Prosecutor unbridled discretion in making the decision, or, whether the exercise of his or her discretion is subject to judicial review. Furthermore, a court must consider what standard should apply to any review of the prosecutor's discretionary decision. Compare, State v. Roseman, 221 N.J. 611, 624-25 (2015) (patent and gross abuse of discretion applies to review of prosecutor's rejection of Pre-trial Intervention application), with, State in re V.A., 212 N.J. 1, 25 (2012) (abuse of discretion standard applies to prosecutorial juvenile waiver decision).
Because there was no argument presented in the Law Division, the scope of N.J.S.A. 2A:4A-60(a)(9) and (10) was never addressed, nor was the MCPO called upon to explain why its blanket refusal to produce any of the investigative files was justified. We prefer not to fully chart the contours of the statute based upon such a threadbare record. We therefore remand the matter to the Law Division for consideration of plaintiff's request for production of the juvenile investigative files under N.J.S.A. 2A:4A-60(a)(9) and (10), subsections that specifically apply to plaintiff as a party in civil litigation.
Because plaintiff has persistently attempted to obtain the investigation files, and her properly-filed petition was rejected without sufficient explanation, we conclude the matter is ripe for resolution in the current procedural posture. The Law Division shall consider the issues presented without the need for plaintiff to file any additional petitions. However, we leave any other decisions regarding the remand to the sound discretion of the court.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION