NJDPM. v. New Jersey Dept. of Corr.

• Decision Date: 15 August 2005
• Citation: 883 A.2d 329,185 N.J. 137
• Parties: NEW JERSEYANS FOR a DEATH PENALTY MORATORIUM, Plaintiff-Respondent, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, an agency of the State of New Jersey and Devon Brown, in his official capacity as the Commissioner of the New Jersey Department of Corrections, Defendants-Appellants.
• Court: New Jersey Supreme Court

883 A.2d 329

185 N.J. 137

NEW JERSEYANS FOR a DEATH PENALTY MORATORIUM, Plaintiff-Respondent, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, an agency of the State of New Jersey and Devon Brown, in his official capacity as the Commissioner of the New Jersey Department of Corrections, Defendants-Appellants.

Supreme Court of New Jersey.

Argued February 28, 2005.

Decided August 15, 2005.

Lewis A. Scheindlin, Assistant Attorney General, argued the cause for appellants (Peter C. Harvey, Attorney General of New Jersey, attorney; Patrick DeAlmeida and Michael J. Haas, Assistant Attorneys General, of counsel).

Kevin D. Walsh, Buffalo, NY, argued the cause for respondent.

Thomas J. Cafferty, Somerset and Arlen M. Turinchak, submitted a brief on behalf of amicus curiae New Jersey Press Association (McGimpsey & Cafferty, attorneys).

Neil M. Mullin, Montclair, submitted a brief on behalf of amici curiae American Civil Liberties Union of New Jersey, Constitutional Litigation Clinic, Rutgers School of Law—Newark, New Jersey Appleseed Public Interest Law Center and New Jersey Institute for Social Justice (Smith Mullin, attorneys).

Justice ZAZZALI delivered the opinion of the Court.

This appeal requires us to address once again the standards that govern an award of attorney's fees under a state fee-shifting statute. In this matter, the New Jerseyans for a Death Penalty Moratorium (NJDPM)¹ sued the New Jersey Department of Corrections (DOC) to challenge the DOC's promulgation of rules and procedures for carrying out capital sentences by lethal injection. In connection with its challenge, the NJDPM requested that the DOC turn over various records. Although it provided some of the records, the DOC claimed that a majority of the requested documents contained privileged information that should not be disclosed.

The NJDPM sought complete access to the records under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. Before the trial court could rule on the NJDPM's claim, the DOC voluntarily released a portion of the records to the NJDPM. The court, however, ordered the DOC to provide all or part of numerous other documents. Claiming that the NJDPM was the prevailing party, the NJDPM's counsel applied for reasonable attorney's fees under the fee-shifting provision of the OPRA, N.J.S.A. 47:1A-6. Finding that the NJDPM had prevailed, the trial court awarded 70% of the lodestar amount because the NJDPM gained access to only 70% of the requested records. The court also determined that the NJDPM's counsel was entitled to a 5% fee enhancement.

The Appellate Division reversed, eliminating the 30% fee reduction after finding that the NJDPM's counsel "achieved a full measure of success." New Jerseyans for a Death Penalty Moratorium v. N.J. Dep't of Corr., 370 N.J.Super. 11, 18, 850 A.2d 530 (2004). The panel also increased the fee enhancement from 5% to 25%, noting that the NJDPM's counsel faced a high risk of nonpayment because he represented the organization on a pro bono basis. Id. at 17, 850 A.2d 530.

For the reasons set forth below, we agree with the Appellate Division's holding that the attorney should receive 100% of the lodestar. Although we also conclude that the lodestar should be enhanced, we remand this issue to the trial court for a recalculation that is consistent with the guidelines set forth in our opinion.

I.

Because an understanding of the attorney's efforts, the various computations of attorney's fees, the contentions of the parties, and the reasoning of the courts below are indispensable to a determination of the questions presented, we set forth the factual and procedural history of this matter in detail.

Founded in 1999, the NJDPM is a 10,000 member "unincorporated grassroots association" that attempts to effect change in New Jersey's use of the death penalty through legislative, executive, and legal action. Attorney Kevin D. Walsh has served as the NJDPM's legal counsel and Chairperson of its Legal Committee since 2001. The NJDPM considers itself to have an attorney-client relationship with Walsh, but he performs his services strictly on a pro bono basis. Walsh is also a salaried, full-time employee of Fair Share Housing Center (FSHC) in Cherry Hill. Although he was permitted to use FSHC resources in his representation of the NJDPM, Walsh did his work for the NJDPM on his own time. The record indicates that Walsh tended to the NJDPM's legal affairs "on the weekends... [and] after work normally from six or seven o'clock until whenever the [work was] done."

In 2001, the NJDPM requested that the DOC produce numerous records related to New Jersey's lethal injection process. The NJDPM planned to use the documents both in a rulemaking challenge against the DOC and in the NJDPM's day-to-day activities. The DOC provided the NJDPM with several documents, some of which were redacted, but withheld the rest under the deliberative process privilege. See In re Liquidation of Integrity Ins. Co., 165 N.J. 75, 83, 754 A.2d 1177 (2000)

("The deliberative process privilege is a doctrine that permits the government to withhold documents that reflect advisory opinions, recommendations, and deliberations comprising part of a process by which governmental decisions and policies are formulated."). In all, the DOC denied the NJDPM access to seventy-nine documents totaling about 394 pages.

In 2002, the NJDPM filed a complaint in lieu of prerogative writs in the Law Division, seeking unrestricted access to the withheld and redacted documents under both the New Jersey Right-to-Know Law, N.J.S.A. 47:1A-1 to -4, which has since been incorporated into the OPRA, and the common law right to know. The NJDPM alleged that a number of the documents that the DOC withheld or redacted were unprivileged public records because they were compiled in connection with the DOC's readoption of N.J.A.C. 10A:23, the regulation that was the subject of the NJDPM's rulemaking challenge. See In re Readoption with Amendments of Death Penalty Regulations N.J.A.C. 10A:23, 367 N.J.Super. 61, 65-66, 842 A.2d 207 (App.Div.), certif. denied, 182 N.J. 149, 862 A.2d 57 (2004)

. One day prior to filing the OPRA complaint in the Law Division, the NJDPM, as part of its rulemaking challenge before the Appellate Division, moved to review the information that the DOC claimed was privileged. The Appellate Division remanded the NJDPM's motion to the Law Division for an in camera hearing regarding the DOC's claims of privilege. Because the Law Division determined that the same documents were in dispute in both the OPRA action and the motion made in the rulemaking challenge, the court consolidated the matters.

Later in 2002, the Law Division found the DOC's blanket assertion of privilege to be unsound and ordered the complete disclosure of forty-seven pages of documents and the redacted disclosure of another 142 pages. Based on this outcome, the NJDPM authorized Walsh to pursue the attorney's fees that are the subject of this appeal. Accordingly, Walsh requested that the trial court award him payment for 89.5 hours of work on the OPRA privilege issues, including the time spent researching the OPRA, preparing descriptions of the requested documents, identifying ways to overcome the DOC's assertion of privilege, and drafting the initial fee application. Based on certifications from five attorneys litigating OPRA cases, Walsh argued that his reasonable hourly rate as a third-year attorney was $155, bringing the lodestar to $13,872.50. Furthermore, given the novelty of the OPRA, the DOC's substantial resources, the high risk of nonpayment inherent in his pro bono arrangement with the NJDPM, and the public value of the litigation, Walsh asked the court to enhance the lodestar by 30%. Finally, Walsh sought payment for an additional 70.3 hours spent on work related to his supplemental fee application, which included researching and drafting a brief that addressed various OPRA fee issues raised by the trial court. Therefore, including court costs, Walsh requested a total attorney's fee award of $29,135.75.

Although the trial court found that the NJDPM was the prevailing party because it "achieved an `excellent result'" by gaining "access to a significant number of government records," the court awarded Walsh only $8,351.57 in fees and costs. In awarding that lesser amount, the court first reduced the 89.5 hours spent by Walsh on the OPRA privilege issues to 56.1 hours, including five hours for the initial fee application. Based on Walsh's certifications as to how his time was allotted, the court reasoned that the excluded hours "appear[ed] to be redundant, excessive or otherwise unnecessary." For similar reasons, the court reduced the time Walsh spent on the supplemental fee application from 70.3 hours to ten hours. However, the court was satisfied that an hourly rate of $155 was reasonable for an attorney of Walsh's skill and experience.

Next, the trial court reduced the amount awarded for litigating the privilege issues by 30% because the NJDPM gained access to only 70% of the records it sought.² Although the court emphasized the need to assess both the quantity and quality of the documents obtained, the court's opinion simply compared the number of documents and pages the NJDPM sought with the number that the DOC was ordered to release. The court concluded that a fee reduction was appropriate even though it found that the DOC's "reasons ... for non-disclosure were generalized conclusions without ... specific information on a document by document basis" and "there were a number of documents that ... were clearly documents that [the DOC] should have ... disclosed because they were" not protected by any recognized privilege.

Finally, the trial court concluded that a minimal fee enhancement of 5% was appropriate in this case after finding that both the NJDPM and Walsh were able to successfully mitigate the risks inherent in the OPRA litigation. Specifically, the court...