Moore v. Board of Chosen Freeholders of Mercer County

• Decision Date: 09 October 1962
• Docket Number: No. A--1049,A--1049
• Citation: 184 A.2d 748,76 N.J.Super. 396
• Parties: Jerome MOORE, Regina H. Meredith, Anton J. Hollendonner, Josephine A. Mathey and Nancy Schluter, Appellants, v. The BOARD OF CHOSEN FREEHOLDERS OF the COUNTY OF MERCER, et al., Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 396

76 N.J.Super. 396

184 A.2d 748

Jerome MOORE, Regina H. Meredith, Anton J. Hollendonner Josephine A. Mathey and Nancy Schluter, Appellants, v. The BOARD OF CHOSEN FREEHOLDERS OF the COUNTY OF MERCER, et al., Respondents.

No. A--1049.

Superior Court of New Jersey Appellate Division.

Argued Oct. 9, 1962.

Decided Oct. 9, 1962.

Edward B. Meredith, Trenton, for appellants.

Joseph S. Bash, County Counsel, for respondents.

Before Judges GOLDMANN, FREUND and FOLEY.

The opinion of the court was delivered by

GOLDMANN, S.J.A.D.

Plaintiffs brought an action in the Chancery Division for a declaratory judgment and injunctive relief. Summary judgment was entered in defendants' favor, and this appeal ensued.

Following oral argument and after conferring, we delivered a brief oral opinion reversing the judgment and announced that a more formal opinion would follow. In view of defendants' intention to appeal our decision and obtain a stay pending appeal, we detail our views for the information of the parties and the Supreme Court.

I

Plaintiffs are residents and taxpayers of Mercer County and bring this action on behalf of themselves and all others similarly situated. Moore is chairman of the Mercer County Republican Committee. Mrs. Meredith and Hollendonner are Republican candidates for the office of freeholder.

Defendant Sutch is a member of the Mercer County Board of Chosen Freeholders (hereinafter 'Board') and Chairman of Revenue and Finance. Defendant Hillman is County Treasurer. Defendant Carroll is Clerk of the Board and, in addition, Supervisor of Purchases and Secretary-Treasurer of the Mercer County Mosquito Commission. Defendant Sypek, director of the Board and its presiding officer, is a Democratic candidate for re-election. Defendant Coffee is a Board member and Chairman of Public Works and Buildings; he, too, is a Democratic candidate for re-election. Defendant Sharkey is County Auditor.

The complaint alleges that all the members of the Board, as well as the incumbents of all other elected county offices and their appointed deputies, are registered Democrats. During 1960 Moore, Mrs. Meredith and Hollendonner undertook to inquire into and investigate the financial, business and other records of the county maintained by the elected or appointed officials, and in this connection undertook to copy records pertinent to their inquiry. Plaintiffs allege that in attempting to copy bookkeeping cards, original bills, vouchers, checks and other financial and business records described in the complaint, they were in many instances subjected to arbitrary and unreasonable treatment during 1961 and 1962.

The complaint alleges that despite the limited evidence obtainable from the records, Mrs. Meredith and Hollendonner nevertheless appeared at public meetings of the Board from time to time and brought to its attention, and to the attention of the public generally, various expenditures, methods and aspects of county government which they believed warranted public discussion and official action. They claim they were severely handicapped in doing this by reason of the refusal of certain of the defendants to furnish duplicate copies of the original records and because of the almost impossible task of hand-copying such records as were made available. The complaint goes on to state that as a result of such evidence as could be gotten from the records, Mrs. Meredith appeared before the grand jury in connection with certain alleged illegal activities of the former undersheriff. The grand jury subsequently indicted him and filed a presentment dealing with subjects brought to its attention by Mrs. Meredith.

Mrs. Meredith and Hollendonner claim that their review of records maintained in the County Treasurer's office disclosed various illegal expenditures in recent years, improper purchasing methods, misleading and erroneous methods of account, and other irregular methods and practices. The complaint states that in order to pursue further the evidence thus uncovered and to determine and expose the full extent of alleged 'misfeasance and malfeasance' reflected in the business and financial records of the county, plaintiffs Moore, Meredith and Hollendonner purchased a portable photocopying machine (name and style number stated in the complaint) which, they claim, could instantly reproduce records without possibility of damage or impairment. Early in February 1962 Mrs. Meredith advised the County Treasurer's office that two volunteers--plaintiffs Mathey and Schluter--would come to the office to copy certain public records maintained there. She was advised that the volunteers would be welcome and that they might study and copy the records requested. The complaint alleges that when they arrived at the office with the photocopying machine, defendant Sutch told them they could not use the equipment because such use would be illegal. The several plaintiffs then appeared before the Board to obtain permission to photocopy the records in question, only to be referred back to Freeholder Sutch. He again denied them permission to photocopy. An appeal by plaintiff Moore to defendant Sypek, director of the Board, brought a reply from Sutch that the records were public and available for inspection under reasonable circumstances; he would not, however, turn them over to persons not regularly employed by the county, but offered to secure cost figures covering His duplicating of the records.

It is unnecessary to detail further the allegations of the complaint. Plaintiffs state their intention as being to search, review, correlate and carefully study the requested records for the purpose of (a) bringing to the attention of the Freeholder Board, in public meetings, any existing irregularities as well as such suggestions as their investigation would disclose; (b) to inform the public of Mercer County as to these matters; (c) to present to the grand jury, without delay, any matters involving criminality which their investigation might disclose, and (d) to gather data and legal evidence sufficient to permit plaintiffs and others to take appropriate steps to secure the return to the county of such monies as may have been or are being illegally or corruptly expended.

In the first count of the complaint plaintiffs ask that defendants be directed to make available, at such time as may be fixed by the court, the bookkeeping cards specifically described and covering the years 1956 to 1962, inclusive; that defendants be directed to provide a suitable space to permit plaintiffs or those acting on their behalf to photograph the records, defendants to be present at all times when photocopying was in progress; that defendants be ordered to make available such other records described in the complaint as might from time to time be designated by plaintiffs--on the same terms and conditions; and that the Chancery Division assume continuing jurisdiction after the entry of an appropriate order, so as to eliminate possible delay and harassment.

By the second count of their complaint, plaintiffs ask the court to declare their right to photocopy designated public records of the county by means of the equipment described, during normal business hours. They also pray that the court enter an order requiring defendants to accord such rights to plaintiffs, upon such terms as the court deems proper.

Soon after the filing of the complaint defendants moved to dismiss for failure to state a claim upon which relief can be granted; for judgment dismissing the complaint as to defendants Freeholder Board, Coffee, Sypek and Sharkey, because they were neither proper nor necessary parties; for judgment of dismissal because the filing of the complaint was politically motivated; and for an order striking certain paragraphs as immaterial, redundant, impertinent and scandalous. While the motion was pending Mrs. Meredith filed an affidavit stating that on June 19, 1962 she had tried to obtain a copy of the grand jury presentment handed up in January 1962 and had experienced delay and difficulty at the hands of specifically named county offices and officials before being permitted to see a copy. The affidavit further states that she was denied the right to see an insurance survey that had been made in September 1961 at the request of the freeholder in charge of such matters.

The motion to dismiss came on for hearing and was denied by the assignment judge for Mercer County on June 29, 1962. The transcript of the hearing indicates that he considered the motion as prematurely brought, and suggested that an answer first be filed. This was done. The answer denies most of the allegations of the complaint.

Defendants then gave plaintiffs' attorney notice of a motion for summary judgment, returnable July 26, 1962. Attached was an affidavit of defendant Sutch stating that Mrs. Meredith, as alleged in the complaint, had early in February 1962 called at the County Treasurer's office to advise that volunteers would be down later in the day to copy certain records; that plaintiffs Mathey and Schluter appeared with equipment to photocopy the records, and that he had refused them permission to do so.

At the same time that the motion for summary judgment was filed, defendants obtained an order staying all proceedings (particularly the taking of defendant Sharkey's deposition) pending disposition of the motion--this without notice to plaintiffs or their attorney. Plaintiffs at once sought to have the order vacated. They were unsuccessful.

At the time of the hearing on the motion for summary judgment, the county judge then sitting in the Chancery Division because of the summer vacation schedule had before him an additional affidavit by Mrs. Meredith in which she stated that the allegations set out in the complaint, except for certain designated paragraphs, were personally known to her and true to the best of her knowledge; and as to the conclusions therein contained, she believed they...