Simon v. Board of Chosen Freeholders of County of Camden

Decision Date17 May 1995
PartiesWilliam J. SIMON, Sheriff for the County of Camden, Plaintiff-Appellant, v. BOARD OF CHOSEN FREEHOLDERS OF the COUNTY OF CAMDEN, Defendant-Respondent, and Office of Camden County Counsel, Defendant. William J. SIMON, Sheriff of the County of Camden, Plaintiff-Respondent-Cross-Appellant, v. BOARD OF CHOSEN FREEHOLDERS OF the COUNTY OF CAMDEN, Defendant-Appellant-Cross-Respondent. William J. SIMON, Sheriff of the County of Camden, Plaintiff-Respondent, v. BOARD OF CHOSEN FREEHOLDERS, COUNTY OF CAMDEN, Defendant-Appellant.
CourtNew Jersey Superior Court — Appellate Division

Jeffrey I. Baron, Voorhees, for William J. Simon (Baron & Riefberg, attorneys; Mr. Baron, of counsel, Barbara E. Riefberg, on the brief).

Glenn P. Callahan, Voorhees, for Board of Chosen Freeholders of the County of Camden (Callahan, Delany & O'Brien, attorneys; Mr. Callahan, on the letter brief).

Frederick M. Knapp, Hackettstown, for the Sheriff's Association of New Jersey, Inc. in its application to appear amicus curiae (Courter, Kobert, Laufer, Purcell & Cohen, attorneys; Mr. Knapp, of counsel; Mr. Knapp and Laura Lencses McLester, on the brief).


The opinion of the court was delivered by


These three appeals present, fundamentally, the same legal issue. They were calendared back-to-back and argued before us the same day. We have consolidated them for purposes of this opinion.

Plaintiff, in all three matters, is the duly elected Sheriff of Camden County. The Camden County Board of Chosen Freeholders (Freeholders) are defendants in all three matters and the Camden County Counsel is a defendant in docket number A-6472-92T1. In each case, we must decide whether the Freeholders are responsible for the Sheriff's counsel fees for an attorney he retained to represent him in a budget dispute with the Freeholders. We conclude that, in the context of these cases, the Freeholders are not responsible for such fees.

Plaintiff became embroiled in a budget dispute with the Freeholders during the preparation of the County's 1993 fiscal year budget. The Freeholders ordered the Sheriff to make certain cuts within his department. He disagreed with the size of the proposed budget reductions and, among other steps, retained an attorney. The Sheriff had an in-house attorney, but determined that attorney could not represent him in this matter because he was paid by the Freeholders and limited by the strictures of R. 1:15-3. The Sheriff's outside attorney sought the written budget requests of other County departments and officers. When the Freeholders did not supply that information, he filed a complaint on March 22, 1993, under docket number L-02707-93, which sought an order compelling the Freeholders to supply the Sheriff with the information under N.J.S.A. 47:1A-2, the "Right to Know Law."

The complaint's second count sought an order compelling the Freeholders to pay the Sheriff's necessary legal expenses; the third related to an alleged conflict of interest which precluded the County Counsel from representing either the Sheriff or the Freeholders in this dispute since the County Counsel also represented both parties as defendants in on-going litigation.

The trial court concluded that plaintiff was not entitled, under N.J.S.A. 47:1A-2, to the information he sought, but did have a common-law right to receive certain materials the Freeholders were ordered to supply. The trial court further denied plaintiff's request for attorney's fees. Plaintiff appealed to this court under docket number A-6472-92T1 solely on the denial of attorney's fees.

The Freeholders, in preparing Camden County's 1993 fiscal year budget, approved an operating budget which represented $753,062 less than the amount plaintiff considered necessary to permit his department to perform its legally mandated functions. The Freeholders approved total expenses of $22,526,108 for the Sheriff's department for the 1993 fiscal year, but included, within that amount, $776,983 for court attendant salaries and jurors' fees. The Sheriff had not included funds for those items in his budget request to the Freeholders. Consequently, he complained the operating budget the Freeholders approved provided insufficient funds to perform the Sheriff's departments' legally mandated functions.

On June 9, 1993, plaintiff filed another complaint in lieu of prerogative writs. In the first count, he sought a declaration that the amount the Freeholders approved for the Sheriff's department was insufficient and an order that the Freeholders provide adequate funding for the department. The second count sought an order holding the Freeholders responsible for his legal expenses in this matter.

The Freeholders answered and counterclaimed for an accounting of the Sheriff's department's expenditures for the fiscal years 1991, 1992 and 1993. Plaintiff then moved to have the matter transferred from Camden County to Burlington County.

The Camden County Assignment Judge granted plaintiff's motion; he recognized that as Assignment Judge, he had factual knowledge of the prior budget treatment of jurors' fees and court attendants' salaries. He thus transferred the matter to Burlington County since either he or the Trial Court Administrator might be called for testimony if the matter proceeded. Indeed, both the Assignment Judge and the Camden County Trial Court Administrator later presented affidavits in support of the Freeholders.

Burlington County's Assignment Judge reviewed the parties' papers and heard oral argument. He then denied plaintiff's summary judgment application, dismissed defendant's counterclaim, dismissed count one of plaintiff's complaint for failure to state a cause of action and awarded $25,355.70 for plaintiff's counsel for fees and costs.

Both parties appealed and cross-appealed in docket number A-2468-93T1 from the subsequent orders. The Freeholders argue the trial court erred when it granted counsel fees while plaintiff contends the trial court erred in dismissing his complaint's first count. He also contends the amount awarded for attorney's fees was insufficient.

After the matter was heard in Burlington County, plaintiff sought to recast the complaint as one seeking judicial impasse relief under R. 1:33-9. The parties differ within their briefs whether plaintiff filed an entirely new complaint after the trial court's decision or merely amended the complaint. The difference is immaterial to our disposition of the appeals. Whether plaintiff was entitled to invoke R. 1:33-9 was never decided on the merits, however, since the parties ultimately resolved their differences. Their resolution, however, did not encompass counsel fees.

The parties then appeared before the trial court in Camden County on the sole issue of whether plaintiff was entitled to a separate award of counsel fees. The trial court answered affirmatively and awarded plaintiff's counsel $4,951.85 in counsel fees and costs. The Freeholders appealed from that order in docket number A-3207-93T1.

We shall deal with the three appeals in the chronological order plaintiff presented them to the court. The first is docket number A-6472-92T1, in which plaintiff appeals the denial of counsel fees in his action brought under the Right to Know Law. On that issue, we affirm the order entered below substantially for the...

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