SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-6961-94T3
ANGELO PATERNOSTER,
Plaintiff-Respondent,
v.
KAREN SHUSTER,
Defendant-Appellant.
Argued December 10, 1996 - Decided January
23, 1997
Before Judges Michels, Kleiner and Coburn.
On appeal from the Superior Court of
New Jersey, Law Division, Union County.
Anat Gordon argued the cause for appellant.
Steven K. Parness argued the cause for
respondent (Riker, Danzig, Scherer, Hyland &
Perretti, attorneys; James S. Rothschild,
Jr., of counsel; Mr. Parness, on the brief).
The opinion of the court was delivered by
KLEINER, J.A.D.
Plaintiff Angelo Paternoster, a school principal, filed a
verified complaint and an order to show cause on November 16,
1994, for temporary restraints to enjoin defendant Karen Shuster
from harassing him, his family, his counsel, and his co-employees. Shuster had been formerly employed as the school
nurse in an Elizabeth public school where plaintiff was the
principal. Although plaintiff's complaint sought damages
attributable to defendant's negligent or willful interference
with plaintiff's business relationships, his request for a
temporary injunction specifically related to an act of harassment
and a battery on November 15, 1994.
To fully explain the events that gave rise to this
litigation, we must briefly review the relationship between the
litigants. That relationship may be divided into three phases:
pre-1991; 1993 to November 10, 1994; and November 15, 1994, to
present.
A.
Prior to 1991, plaintiff, Angelo Paternoster, was employed
as a school principal by the Elizabeth Board of Education.
Defendant, Karen Shuster, was employed as a school nurse and was
assigned to plaintiff's school. From the pleadings, it would
appear that defendant has long held the belief that plaintiff was
enamored with her. Defendant's perception is that various acts
allegedly performed by plaintiff were demonstrative of his
flirtatious intentions. Defendant, for her part, was apparently
interested in pursuing a romantic relationship with plaintiff.
Plaintiff alleges that when defendant's intentions became clear,
he made a serious effort to convince her that he, in fact, had no
interest in her other than the professional relationship of
principal and school nurse. Despite plaintiff's explanations to
defendant, plaintiff alleges that defendant persisted in her
pursuit and began to telephone him at his home. According to
plaintiff, defendant started to leave messages with plaintiff's
wife, his mother, and with school employees requesting that
plaintiff return her calls.
On or about February 14, 1991, defendant received an
anonymous Valentine's Day card. Defendant was positive that the
card had been sent by plaintiff. When she confronted plaintiff
with her belief, he denied having sent the card. Defendant then
submitted the card along with samples of plaintiff's writing to a
handwriting expert, who concluded that the card and the samples
had been penned by the same hand.
In March 1991, plaintiff contends that he was contacted by
defendant's therapist and warned that defendant was obsessed with
him and that defendant might be dangerous. Plaintiff reported
this telephone call to the director of personnel of the Elizabeth
Board of Education. Soon thereafter, the acting superintendent
demanded that defendant submit to a psychiatric evaluation.
Defendant was also suspended from her duties, with pay, pending
receipt of a psychiatric evaluation. Defendant resigned,
effective May 15, 1991, after refusing to submit to the requested
evaluation.
Notwithstanding her resignation, defendant began sending
intimate letters and cards to plaintiff. For instance, in June
1991, defendant sent a card to plaintiff that read, in part, "I
love you very much . . . . I miss you so much. I am miserable
without you in my life." In May and June 1991, defendant sent
cards with messages such as, "[t]here is no enemy except the
conflict within my own mind," and "[w]e need to trust love not
fear it." In November 1991, defendant sent several
communications to plaintiff expressing her intimate feelings.
Defendant also sent photographs of herself. Plaintiff certifies
that, during this time, defendant frequently called his home and
office.
Plaintiff became so distressed by defendant's acts that he
reported her activities to the local police department on
November 19, 1991. Although plaintiff was not interested in
pursuing legal action against defendant, he felt that reporting
defendant's activities to the police as a matter of record would
document his concern for his own safety and the safety of his
family. When defendant's acts continued, plaintiff filed a
second report with the Elizabeth police on December 7, 1992, but
elected not to take further legal action.
The record does not indicate whether defendant continued her
activities over the next twelve months. At some point, however,
defendant reviewed the police reports and concluded that
plaintiff had defamed her. Defendant then filed a complaint, on
November 19, 1993, alleging libel, slander, interference with
advantageous business relationship, and harassment. Plaintiff
filed an answer.
Despite the fact that defendant was represented by counsel,
she began to contact plaintiff's counsel directly to discuss her
claims and to promote the relationship that she still hoped to
have with plaintiff. Because defendant's contacts with plaintiff
and his counsel were extremely irritating and disruptive,
plaintiff sought a temporary restraint to prevent defendant from
contacting him, his family, his counsel, and his co-workers. A
temporary restraining order was issued on October 21, 1994. In
anticipation of a future plenary hearing, a case management
conference was scheduled for November 10, 1994. Shortly before
that conference, defendant voluntarily dismissed her complaint
and plaintiff withdrew his request for a permanent injunction.
Ostensibly, the litigation was at an end.
B.
On February 14, 1994, defendant alleges that she received
another anonymous Valentine's Day card. She concluded that
plaintiff had mailed the card to her. Again, defendant's
handwriting expert concurred with her suspicions.
On November 15, 1994, defendant, who lived near plaintiff,
encountered him in a neighborhood supermarket. Plaintiff
contends that defendant attempted to strike up a conversation.
He ignored her and walked away. Approximately twenty minutes
later, defendant confronted plaintiff in the supermarket parking
lot and demanded that he speak with her. After the
confrontation, plaintiff filed a verified complaint, seeking a
temporary restraint. The certification filed at that time
asserted the following:
11. I repeated that I had nothing to
say to her and asked her to leave me alone.
She refused and physically prevented me from
putting away my groceries or getting into my
car. She then proceeded to roughly grab my
coat by the arm and by the collar.
12. At this point I told her that if
she didn't allow me to leave I would return
to the store to call the police. [Defendant]
repeated her demands that I provide her with
answers and continued to grab onto by [sic]
coat and arm in [an] effort to keep me from
leaving.
13. Finally, I managed to break her
hold on me and returned to the store in an
effort to get away from her.
14. [Defendant] followed me into the
A&P but quickly left when I approached the
manager's desk.
Based on plaintiff's certification, a judge issued an order
to show cause, returnable on November 17, 1994. At this initial
hearing, defendant appeared without counsel. She advised the
court that she did not intend to hire counsel. She requested an
opportunity to explain the events of November 15, 1994. The
judge placed defendant under oath. In her explanation, defendant
stated:
I tried to hold his hand and I tried to
approach it in a very calm manner, I wanted
him to, to just give me some reassurance of
how all this had gone so, had escalated to
the point that it was now. And he just was
very resistant, he wouldn't talk to me and I
tried to hold his hand, I tried to hold his
jacket, he didn't try to move away that much
but he would not give me answers.
Based upon plaintiff's certification and defendant's
uncounseled testimony, the judge issued a temporary restraint and
scheduled a plenary hearing on plaintiff's request that a
permanent restraint issue. The judge reasoned:
I am not making any final determinations
today. The only determination I am making is
that [plaintiff] is entitled for the
immediate future to be free of interference.
. . . I am not satisfied either from what
happened two nights ago or from what I've
heard in Court today that [defendant's]
interest in not having an order is as great
as or greater than [plaintiff's] interest in
having an order that says that [defendant]
may not have any contact with him, none
whatsoever.
The initial order scheduled a plenary hearing for December
1, 1994, to determine if the preliminary injunction should become
permanent. That hearing was postponed, the temporary restraints
were continued, and a new plenary hearing date was scheduled for
January 25, 1995. In the interim, defendant retained counsel and
filed and served her answer on January 22, 1995. Defendant also
sought to reinstate her previously filed complaint. Although
defendant's motion was denied, the court granted a postponement
of the plenary hearing and gave defendant the right to file an
amended answer and counterclaim, provided those pleadings were
filed by February 14, 1995. Defendant complied with that
directive. In her answer, filed on February 14, 1995, defendant
contended, inter alia, that on that same date, she received yet
another anonymous Valentine's Day card.See footnote 1 She again accused
plaintiff of sending her the card. Defendant again submitted the
card to her handwriting expert, who again concluded that the
writing was done by plaintiff.
On March 6, 1995, plaintiff, without having filed an answer
to defendant's counterclaim, filed a motion, returnable April 13,
1995, requesting: (1) dismissal of defendant's counterclaim for
failure to state a cause of action; (2) dismissal of plaintiff's
request for relief as to damages;See footnote 2 and (3) summary judgment
granting a permanent restraining order. In response, defendant
sought a permanent restraint against plaintiff.See footnote 3
On March 2, 1995, defendant attempted to file a third-party
complaint against the Elizabeth Board of Education, the
individual members of the board of education, and the
superintendent of the school board. The third-party complaint
designates defendant as a taxpayer of the City of Elizabeth. The
proposed third-party complaint contends that defendant was forced
to resign on May 15, 1991, in violation of the New Jersey Law
Against Discrimination. Plaintiff's third-party complaint also
made the following allegations: (1) public funds were expended
to finance private litigation, which did not concern the board of
education, because the current suit was authorized by a
resolution of the board of education passed on November 16, 1994;
and (2) that on two occasions, the superintendent, the board, and
its individual members had maliciously and recklessly released
documents from defendant's prior personnel file. Defendant
contended that the release of documents, presumably to plaintiff,
violated the Law Against Discrimination and had caused defendant
to suffer humiliation and emotional and mental anguish.
Defendant sought job reinstatement, compensatory and punitive
damages, attorney's fees, and costs.
On March 3, 1995, defendant attempted to file a second
amended answer and counterclaim. On March 29, 1995, defendant
attempted to file an amended third-party complaint.
Plaintiff's motion was ultimately heard May 1, 1995. Based
solely upon the pleadings and counsel's oral argument, but
without testimony of either plaintiff or defendant, the motion
judge permitted plaintiff to dismiss his damage claim and granted
plaintiff's request for a permanent injunction. The judge
concluded that defendant's third-party complaint and amended
third-party complaint as well as defendant's amended answer and
counterclaim were untimely filed. The judge denied defendant's
cross-motion for a permanent restraint against plaintiff. The
judge also dismissed defendant's counterclaim for failure to
state a cause of action. The judge concluded that the
counterclaim based upon defamation was barred by the statute of
limitations and that defendant's claim for damages based on
receiving anonymous Valentine's Day cards was not cognizable
under the doctrine of de minimis non curat lex (the law does not
care about trifles).
Defendant appeals, challenging each of the court's rulings.
We conclude that the motion judge improvidently granted plaintiff
a permanent injunction. Although plaintiff may ultimately be
entitled to a permanent injunction, granting that relief
summarily was error. We also conclude that the motion judge
erred: in dismissing defendant's counterclaim; in denying
defendant's cross-motion for injunctive relief without first
conducting a plenary hearing; and in denying defendant the
opportunity to file a third-party complaint. We therefore
reverse each ruling.
As noted, a temporary retraint was issued. The standards for issuing a preliminary injunction were clearly established by the Supreme Court in Crowe v. De Gioia, 90 N.J. 126 (1982). First, "a preliminary injunction should not issue except when necessary to prevent irreparable harm." Id. at 132. The Court noted, "[i]n certain circumstances, severe personal inconvenience can constitute irreparable injury justifying issuance of injunctive relief." Id. at 133. Second, "temporary relief should be withheld when the legal right underlying plaintiff's claim is unsettled. Ibid. Third, "a preliminary injunction should not issue where all material facts are controverted. Ibid. "[T]o prevail on an application for temporary relief, a plaintiff must make a prelininary showing of a reasonable probability of ultimate success on the merits." Ibid. "[T]he
point of temporary relief is to maintain the parties in
substantially the same condition `when the final decree is
entered as they were when the litigation began.'" Id. at 134
(quoting Peters v. Public Service Corp. of N.J.,
132 N.J. Eq. 500
(Ch. 1942), aff'd. o.b.,
133 N.J. Eq. 283 (E. & A. 1943)).
When we review an order granting permanent injunctive
relief, however, we are guided by the precepts discussed in
Sheppard v. Township of Frankford,
261 N.J. Super. 5, 10 (App.
Div. 1992), in which we adopted the guidelines for permanent
injunctive relief, as set forth in the Restatement (Second) of
Torts § 936 (1977). Sheppard, 261 N.J. Super. at 10. This non-exclusive list of factors includes:
(1) the character of the interest to be
protected; (2) the relative adequacy of the
injunction to the plaintiff as compared with
other remedies; (3) the unreasonable delay in
bringing suit; (4) any related misconduct by
plaintiff; (5) the comparison of hardship to
plaintiff if relief is denied, and hardship
to defendant if relief is granted; (6) the
interests of others, including the public;
and (7) the practicality of framing the order
or judgment.
[Ibid. (citing Restatement (Second) of Torts
§ 936).]
Sheppard mandates that a trial judge must balance these
factors in a qualitative manner. Ibid. (citing Crane v. Essex
Fells,
67 N.J. Super. 83, 91 (Ch. Div. 1961), aff'd,
36 N.J. 544
(1962)). Such an inquiry "necessarily require[s] an
individualized balancing of rights." Horizon Health Center v.
Felicissimo,
135 N.J. 126, 148 (1994), certif. denied,
142 N.J. 574 (1995), and "a sensitive evaluation of the entire situation."
Trans American Trucking Service, Inc. v. Ruane,
273 N.J. Super. 130, 133 (App. Div. 1994).
In this particular case, the motion judge relied solely upon
plaintiff's certification and defendant's explanation of the
events of November 15, 1994, which defendant had expressed as a
pro-se litigant on the return day of the order to show cause.
The motion judge specifically concluded that she was not ruling
that defendant's acts as described in plaintiff's verified
complaint constituted harassment but did conclude that
defendant's testimony, by way of her explanation given on
November 17, 1994, constituted an admission to the commission of
a battery. The motion judge, however, failed to make a
qualitative analysis of the factors adopted from the Restatement.
Moreover, the failure to make specific findings of fact was
in direct violation of Rule 4:52-4:
Every order granting an injunction and
every restraining order shall set forth the
reasons for its issuance; shall be specific
in terms; shall describe in reasonable
detail, and not by reference to the complaint
or other document, the act or acts sought to
be restrained.
[Ibid.]
Additionally, in Lopez v. New Jersey Bell Telephone Co.,
54 N.J. 129, 131 (1969), the Supreme Court specifically concluded
that affidavits are insufficient to support a judgment for a
permanent restraining order, even though they were used properly
on an application for temporary injunctive relief. The Court
specifically noted that since the affiants were available to
testify, they should have been permitted to do so at a final
hearing. Id. at 131-32. The Supreme Court accordingly remanded
the matter to permit the Chancery Division to take oral
testimony. Id. at 132.
Here, contrary to Lopez, the motion judge relied solely on
plaintiff's certification and defendant's prior testimony.
Defendant's counsel was not permitted an opportunity to cross-examine plaintiff, as his testimony was not presented.
Additionally, defendant's counsel was foreclosed from presenting
defendant's testimony, which might have been offered to
supplement her prior uncounseled statements, albeit statements
made under oath.
As noted, the motion judge dismissed defendant's counterclaim. As a result, defendant's cross-motion for a permanent injunction against plaintiff was denied, as the counterclaim also sought permanent injunctive relief. We conclude that the judge's ruling was error in the absence of an evidentiary hearing.
Defendant's counterclaim consisted of two primary allegations: (1) that plaintiff had filed false police reports
on November 19, 1991, and December 7, 1992, which defamed
defendant's character and fitness for trade and profession; and
(2) that plaintiff had mailed three anonymous cards to defendant,
which constituted harassment and caused plaintiff to suffer
mental pain and anguish and required defendant to seek the advice
and counsel of a therapist. The ad damnum clause sought
compensatory and punitive damages, a permanent injunction
enjoining plaintiff from contacting her in the future, and
counsel fees. As noted, defendant submitted those cards to a
handwriting analyst, who provided defendant with an expert
opinion that the cards were probably sent to defendant by
plaintiff.See footnote 4
When reviewing a dismissal under Rule 4:6-2(e) for failure
to plead a cause of action, we must search the complaint or
counterclaim in depth and with liberality to determine whether a
cause of action can be gleaned "even from an obscure statement of
claim, opportunity being given to amend if necessary." Printing
Mart-Morristown v. Sharp Electronics Corp.,
116 N.J. 739, 746
(1989) (quoting Di Cristofaro v. Laurel Grove Memorial Park,
43 N.J. Super. 244, 252 (App. Div. 1957)). The inquiry of a
reviewing court "is limited to examining the legal sufficiency of
the facts alleged on the face of the complaint." Printing Mart,
supra, 116 N.J. at 746 (citing Reider v. Department of
Transportation,
221 N.J. Super. 547, 552 (App. Div. 1987)). The
proper inquiry is thus whether a cause of action is suggested by
the facts. Printing Mart, supra, 116 N.J. at 748 (citing
Velantzas v. Colgate-Palmolive Co., Inc.,
109 N.J. 189, 192
(1988)). Every reasonable inference of fact is accorded the
party whose claim is being assessed and that a motion to dismiss
on these grounds is rarely granted. Printing Mart, supra, 116
N.J. at 746.
In response to plaintiff's motion to dismiss, defendant
provided the court with a copy of her expert report which was
provided by a handwriting analyst who opined that the cards were
"probably" sent by plaintiff. The judge first concluded that
defendant's claim of defamation was barred by the statute of
limitations.See footnote 5 She then concluded that defendant's claim of
harassment should be dismissed under the doctrine of de minimis
non curat lex, i.e., the law does not care for, or take notice
of, very small or trifling matters. The doctrine of de minimis
"has been considered to apply where no damage is implied by law
from the wrong, and only trifling or immaterial damage results
therefrom." Schlichtman v. New Jersey Highway Authority,
243 N.J. Super. 464, 472 (Law Div. 1990). Indeed:
It is not only those who are greatly
damnified by the illegal act of another to
whom the law gives redress, but its
vindication extends to every person who is
damnified at all -- unless, indeed, the loss
sustained be so small as to be unnoticeable
by force of the maxim, "De minimis non curat
lex."
[Beseman v. Pennsylvania R.R. Co.,
50 N.J.L. 235 (Sup. Ct. 1888), aff'd,
52 N.J.L. 221 (E.
& A. 1890).]
Here, defendant alleged that the receipt of anonymous cards
was a form of harassment which caused her to seek professional
therapy. N.J.S.A. 2C:33-4 defines harassment as follows:
Except as provided in subsection d., a
person commits a petty disorderly persons
offense if, with purpose to harass another,
he:
a. Makes, or causes to be made, a
communication or communications anonymously
or at extremely inconvenient hours, or in
offensively coarse language, or any other
manner likely to cause annoyance or alarm;
b. Subjects another to striking,
kicking, shoving, or other offensive
touching, or threatens to do so; or
c. Engages in any other course of
alarming conduct or of repeatedly committed
acts with purpose to alarm or seriously annoy
such other person.
[Ibid.]
It seems clear that defendant's counterclaim did allege a
cause of action for harassment predicated upon the alleged
mailing by plaintiff of three anonymous cards, on Valentine's Day
1991, 1994 and 1995, within the purview of N.J.S.A. 2C:33-4(a).
Defendant's contention that receiving those cards caused her to
seek psychological therapy was sufficient, treating the
counterclaim with liberality, to withstand plaintiff's motion to
dismiss. See Printing Mart, supra, 116 N.J. at 746. Although
defendant's claim of defamation may be barred by the statute of
limitations, we see no reason why giving false reports to the
police in 1991 and 1992 could not be combined with the mailing of
anonymous cards in 1994 and 1995 to demonstrate a course of
conduct within the purview of N.J.S.A. 2C:33-4(c). We therefore
conclude that the judge erred, particularly in predicating her
ruling on the doctrine of de minimis, without first having heard
evidence from defendant and her treating psychologist.
Although the component of defendant's counterclaim alleging
defamation may have been barred by the statute of limitations,
defendant's separate motion to reinstate her original complaint
was also denied. Defendant's allegations of libel, slander, and
other tortious conduct in her original complaint were not barred
by the statute of limitations when that complaint was filed.
Plaintiff's original complaint had been dismissed without
prejudice. As such, a voluntary dismissal does not prevent a
claimant from reinstituting the action. Mystic Isle Development
Corp. v. Perskie & Nehmad,
142 N.J. 310, 332 (1995) (holding that
a claim that has been dismissed without prejudice may be
reinstituted without violating the entire controversy doctrine);
Malhame v. Borough of Demarest,
174 N.J. Super. 28, 30-31 (App.
Div. 1980). Since defendant did not require the court's
permission to reinstitute her original complaint, we can discern
no reason why that relief was denied. Additionally, a party may
seek reinstatement of a dismissed complaint by leave of court for
good cause shown. See Mason v. Nabisco Brands, Inc.,
233 N.J.
Super. 263, 268 (App. Div. 1989). We, of course, do not conclude
that the original complaint, if reinstated, will withstand a
later motion to dismiss on statute of limitations grounds, nor do
we conclude that any argument raised in response predicated upon
the theory of "relation back." See R. 4:9-3; Giambuttista v.
Bradlees, Inc.,
130 N.J. Super. 381 (Law Div. 1974).
Defendant also contends that the judge erred in refusing to accept her third-party complaint. We note that the judge originally gave defendant until February 14, 1995, to file an amended answer and counterclaim. That directive did not specifically limit defendant's right to file a third-party complaint. The judge's decision to reject the filing of the third-party complaint was clearly error unless defendant's initial answer dated January 22, 1995, was served earlier than February 2, 1995. Rule 4:8-1 permits a defendant to file a third-party complaint as of right within thirty days after service of the original answer. Yet, it is clear that the judge did not reject the filing of the third-party complaint because it violated Rule 4:8-1. The rejection was predicated on the prior directive that an amended answer and counterclaim were to be filed by February 14, 1995. The record on appeal does not reflect the actual date that the original answer was served on plaintiff's counsel. It is clear, however, that the third-party complaint, which defendant attempted to file on March 2, 1995, would only be untimely if defendant served her original answer earlier than February 2, 1995. We therefore conclude that the
judge's decision was error. In reaching our conclusion, we do
not rule that the third-party complaint, when filed, will
withstand a motion to dismiss brought by the intended third-party
defendants. We only conclude that defendant should not have been
precluded from filing her third-party complaint unless the judge
specifically found that the filing violated the time-constraints
in Rule 4:8-1.
Defendant also contends that the judge erred when she refused to accept defendant's amended counterclaim on March 3, 1995. We agree. Rule 4:9-1 permits a defendant to file an amended counterclaim "at any time before a responsive pleading is served." Plaintiff's response to defendant's initial counterclaim was in the form of a motion, filed March 7, 1995, seeking to dismiss the counterclaim. Thus, defendant's attempt to file an amended counterclaim preceded plaintiff's response and was therefore timely filed.
Lastly, defendant challenges the judge's decision denying her request to receive a copy of the resolution of the Elizabeth Board of Education that authorized plaintiff to institute this action. The judge simply concluded that defendant had no standing to demand that relief. The judge's conclusion totally disregarded the description of defendant in her proposed third-party complaint. Defendant asserted that she was filing that action as a citizen and taxpayer of the City of Elizabeth.
The State of New Jersey has a strong commitment to access to public records. See South Jersey Publ'g. Co., Inc. v. New Jersey Expressway Auth., 124 N.J. 478, 489 (1991). In New Jersey there is a common law right to inspect governmental records. Id. at 487. The Open Public Meetings Act, N.J.S.A. 10:4-6 to -21, and the Right to Know Law, N.J.S.A. 47:1A-1 to -4, also protect this right of inspection. South Jersey Publ'g., supra, 124 N.J. at 489.
Before a party may exercise this right, she must "establish an interest in the subject matter of the material" sought. Id. at 487 (citing Irval Realty, Inc. v. Board of Public Util. Comm'rs., 61 N.J. 366, 372 (1972)). "The interest does not have to be purely personal, but rather `[a]s one citizen or taxpayer out of many, concerned with a public problem or issue, he might demand and be accorded access to public records bearing upon the problem, even though his individual interest may [be] slight.'" South Jersey Publ'g., supra, 124 N.J. at 487 (quoting Irval Realty, supra, 61 N.J. at 372). The Right to Know Law, however, eliminated the standing requirement; under that law, "one need only be a citizen of the State to obtain access to public records." South Jersey Publ'g., supra, 124 N.J. at 489; see also N.J.S.A. 47:1A-2.
If a court finds that a challenging party has an interest in the documents, it must next determine whether the documents are,
indeed, public records. South Jersey Publ'g., supra, 124 N.J. at
487. The common law defines a "public record" as:
[O]ne required by law to be kept, or
necessary to be kept in the discharge of a
duty imposed by law, or directed by law to
serve as a memorial and evidence of something
written, said, or done, or a written memorial
made by a public officer authorized to
perform that function, or a writing filed in
a public office. The elements essential to
constitute a public record are . . . that it
be a written memorial, that it be made by a
public officer, and that the officer be
authorized by law to make it.
[Id. at 487-88 (quoting Nero v. Hyland,
76 N.J. 213, 222 (1978)).]
The Right to Know Law uses a slightly narrower, but
complementary, definition of "public record." See South Jersey
Publ'g., supra, 124 N.J. at 489; see also N.J.S.A. 47:1A-2.
Before authorizing inspection of public records, a court must
also balance the party's interest in the information against the
public's interest in confidentiality. South Jersey Publ'g.,
supra, 124 N.J. at 488.
Similarly, the Open Public Meetings Act requires that all
public entities keep "reasonably comprehensible minutes of all .
. . meetings . . . which shall be promptly available to the
public to the extent that making such matters public shall not be
inconsistent with" the legislative purposes of the Act. N.J.S.A.
10:4-14. The Act enumerates specific exceptions to this rule.
For instance, a public entity may exclude the public from "that
portion of a meeting at which the public body discusses: . . .
(7) Any pending or anticipated litigation . . . in which the
public body is, or may become a party." N.J.S.A. 10:4-12b.
These concepts were not evaluated by the judge in denying
defendant's motion. Additionally, we consider the decision
premature. The third-party complaint had not been accepted for
filing. The judge, as we have already noted, should have
permitted defendant to file her third-party complaint and should
have deferred any ruling on defendant's request as it pertained
to the records of the Elizabeth Board of Education until it was
served with the third-party complaint. Once served, the Board
would then have had the opportunity to either respond voluntarily
to the document request, or to resist defendant's motion for a
release of the resolution. Deciding defendant's motion on the
basis of lack of standing was clearly error.See footnote 6
We reverse and remand each component of the July 6, 1995,
order which memorialized the various procedural rulings of May 1,
1995. We direct defendant to file all appropriate pleadings
within thirty days of the date of this opinion and to
expeditiously serve her third-party complaint upon all named
third-party defendants. Plaintiff shall file his answer to
defendant's counterclaim within twenty days of this opinion.
Footnote: 1 Although defendant's amended answer and counterclaim bear a typed date of February 13, 1995, the counterclaim specifically refers to the receipt of another Valentine's Day card on February 14, 1995. The record on appeal does not explain this discrepancy. We will presume the typed date was a typographical error. Footnote: 2 Defendant would not voluntarily agree to allow plaintiff to dismiss a claim against her. Footnote: 3 As noted, defendant's counterclaim also sought a permanent restraint against plaintiff. Footnote: 4 Nothing in this opinion should be read to imply that this court accepts the findings of the handwriting analyst. We merely note the existence of the analyst's reports in the record. Footnote: 5 Although defendant's complaint filed under the caption Shuster v. Paternoster alleged libel, defendant's counterclaim only alleged defamation. Footnote: 6 Defendant's appeal also sought a remand and the re-assignment of this case to a different trial judge. The original motion judge is no longer assigned to the Law Division. We therefore conclude defendant's demand is moot.