Two Opinions in Two Days by Justice Solomon

In re Atlantic County, ___ N.J. ___ (2017); In re New Jersey Firemens Association Obligation to Provide Relief Application Under Open Public Records Act, ___ N.J. ___ (2017).  On Wednesday and Thursday of this week, Justice Solomon issued two opinions for the Supreme Court.  Both of them involved cases in which the Appellate Division issued published opinions.  In one case, the Court affirmed the Appellate Division, but on grounds other than those on which the Appellate Division relied.  In the other, the Court reversed the Appellate Division while siding, at least in part, with the concurring opinion of Judge Messano.

In Atlantic County, as discussed here, the Appellate Division ruled for public employees in the public contract dispute at issue there, based on the “dynamic status quo doctrine.”  That doctrine holds that “an employer is normally precluded from altering the status quo while engaged in collective negotiations.”  The issue before the Supreme Court was whether the municipalities (there were two consolidated cases, the other involving Bridgewater Township) were obligated to continue contractually agreed-upon salary increases during the period between when those contracts expired and new contracts were signed.

Justice Solomon affirmed the Appellate Division’s ruling in favor of the employees, but not on the grounds cited by the Appellate Division.  The Supreme Court determined that there was no need to go beyond the language of the expiring contracts at issue, which expressly provided that their terms (as one such agreement said) would “continue in effect until a successor Agreement is negotiated.”  The Court saw no need to reach the “dynamic status quo” issue because the proper interpretation of the contracts resolved the issue.

In Firemens, as discussed here, the Appellate Division in this Open Public Records Act (“OPRA”) case ruled that the Firemens Association was a “public agency” subject to OPRA and that records of relief payments to a particular fireman by the Association had to be produced to an OPRA requestor.  The case arose in an unusual way, in that after the Association received the requestor’s OPRA request, the Association filed a declaratory judgment action seeking a ruling that the documents need not be produced, rather than the usual procedural path in which a requestor, denied production, files suit.  The Appellate Division ruled that a public agency has no right to file such a declaratory judgment action, and that suit by a denied requestor is the only appropriate procedure.

The Supreme Court disagreed.  It is not the law, Justice Solomon said, that a declaratory judgment action is never available to a public agency.  But here, the denial of the request mooted the issue, so that there was nothing about which to make a declaration.  Despite that mootness, the Court went on to address the still hotly-contested issue of whether the requestor had the right, under OPRA or the common law right of access, to the requested documents.  Justice Solomon concluded that all relevant factors under both regimes weighed in favor of non-disclousre.  Accordingly, the decision of the Appellate Division that had ordered the records to be produced was reversed.

In the Appellate Division, Judge Messano, while concurring in the result in favor of the requestor, wrote separately to express his view that “[i]n a different context,” the Association could bring a declaratory judgment action.  The Supreme Court’s ruling that it was error to say that a declaratory judgment action by a public agency in an OPRA context is never appropriate represented a partial vindication of Judge Messano’s concurring view.


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