A.A. v. Christopher J. Gramiccioni, Esq., Carey J. Huff

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0946-13T3
A.A.,
Plaintiff-Appellant, APPROVED FOR PUBLICATION
September 17, 2015
v.
APPELLATE DIVISION
CHRISTOPHER J. GRAMICCIONI,
ESQ., CAREY J. HUFF, ESQ.,
and OFFICE OF THE COUNTY
PROSECUTOR OF MONMOUTH COUNTY,
NEW JERSEY,
Defendants-Respondents.
_________________________________
Argued December 15, 2014 – Decided September 17, 2015
Before Judges Sabatino, Simonelli and Leone.
On appeal from the Superior Court of New
Jersey, Law Division, Monmouth County,
Docket No. L-2568-13.
Larry S. Loigman argued the cause for
appellant.
James H. Gorman argued the cause for
respondents.
Raymond R. Chance, Assistant Attorney
General, argued the cause for amicus curiae
State of New Jersey (John J. Hoffman, Acting
Attorney General, attorney; Melissa H.
Raksa, Assistant Attorney General, of
counsel; Lewis A. Scheindlin, Assistant
Attorney General, on the brief).
The opinion of the court was delivered by
SIMONELLI, J.A.D.
This appeal involves an anonymous requestor of records
pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1
to -13, and alternatively under the common law right of access,
who seeks to remain anonymous when litigating in the Superior
Court. We conclude there is no statutory authorization, rule
authorization or compelling reason permitting A.A. to prosecute
this matter anonymously. We also conclude that the trial judge
properly dismissed the complaint for failure to comply with Rule
4:67.
I.
The limited facts provided in the record are
straightforward. Plaintiff A.A., through his attorney, made an
OPRA request to the Monmouth County Prosecutor's Office for
records relating to the investigation of a municipal employee
who allegedly stole an electric generator from the Township of
Middletown. The attorney also requested a Vaughn1 index. The
Prosecutor denied both requests. Within forty-five days of the
denials, A.A. filed a complaint in lieu of prerogative writs in
1
Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C. Cir. 1973), cert.
denied, 415 U.S. 977, 94 S. Ct. 1564, 39 L. Ed. 2d 873 (1974).
2 A-0946-13T3
the Superior Court, anonymously, alleging a violation of OPRA
and also the common law right of access.
A.A. filed a motion for an order requiring the Prosecutor
to identify and preserve the requested records. Defendants
filed a cross-motion for an order dismissing the complaint
pursuant to Rule 4:26-1 for A.A.'s failure to prosecute in the
name of the real party in interest.
The motion judge denied A.A.'s motion and sua sponte
dismissed the complaint for A.A.'s failure to file an order to
show cause (OTSC) and verified complaint, as required by Rule
4:67. In a comprehensive written opinion, relying on N.J.S.A.
47:1A-6, MAG Entm't, LLC v. Div. of Alcoholic Beverage Control,
375 N.J. Super. 534 (App. Div. 2005), and Mason v. City of
Hoboken, 196 N.J. 51 (2008), the judge reasoned that OPRA
actions must be brought in a summary manner, and that Rule 4:67
requires the filing of an OTSC and verified complaint. The
judge noted that A.A. could submit a new OPRA request and then
file a new action in compliance with Rule 4:67, if necessary.
Addressing the merits, the judge assumed that N.J.S.A.
47:1A-5(i) permits a person to request records anonymously, and
that the Government Records Council (GRC) accepts and decides
OPRA appeals that are filed anonymously. The judge determined,
however, that neither N.J.S.A. 47:1A-5(i) nor any other OPRA
3 A-0946-13T3
provision permits the filing of an anonymous complaint in the
Superior Court. The judge also determined there is no court
rule permitting an anonymous filing in OPRA cases, and our
Supreme Court has not adopted such a rule pursuant to the
authority granted by N.J.S.A. 47:1A-12. Rather, the judge
concluded that Rule 1:4-1(a) requires a complaint in a civil
action to include the names of all parties, and Rule 4:26-4 does
not permit a plaintiff to file a complaint with fictitious
names.
The judge explained, in detail, why this case presented no
compelling reason to permit an anonymous filing. The judge
determined that Rule 1:4-1 and Rule 1:36-3
were designed to protect the identity of
victims and not a party who merely refuses
to identify itself without an asserted
basis. The technique of using initials
instead of names is not appropriate,
however, for the sole purpose of concealing
the identity of a well-known person who is a
party to a type of proceeding in which
participant's names are routinely used.
[Citing Pressler & Verniero, Current N.J.
Court Rules, comment on R. 1:4-1 and comment
6 on R. 1:36-3 (2013).]
Relying on A.B.C. v. XYZ Corp., 282 N.J. Super. 494, 499-500
(App. Div. 1995), the judge concluded as follows:
[A.A.'s] failure and outright refusal to
identify itself is not permissible under the
Court Rules and corresponding case law.
Without an identifiable plaintiff, neither
4 A-0946-13T3
personal jurisdiction nor potential
conflicts can be assessed. Even if [A.A.]
had properly applied for the right to
proceed anonymously, [A.A.] has offered no
justification sufficient to persuade this
[c]ourt that the present matter is one of
"rare circumstance," outweighing the public
policy in favor of disclosure and open
proceedings.
Finally, the judge observed that although N.J.S.A. 47:1A-
5(i) permits a person to make an anonymous OPRA request to the
GRC, that right is limited. Citing N.J.S.A. 47:1A-2.2(c) and
-3, the judge noted that a custodian is not required to comply
with an anonymous request for records pertaining to an
investigation in progress by a public agency.2
II.
On appeal, A.A. challenges the sua sponte dismissal of his
complaint. He argues that Mason does not permit dismissal
merely because an OTSC was not filed.3 We disagree.
2
See also N.J.S.A. 47:1A-1.1 (stating that "[a] government
record shall not include the following information which is
deemed to be confidential . . . criminal investigatory
records"). In addition, a custodian is not required to respond
to an anonymous OPRA request "until the requestor appears before
the custodian seeking a response to the original request."
N.J.S.A. 47:1A-5(i).
3
We reject A.A.'s additional contention that he was denied an
opportunity to amend his complaint or identify himself in
camera. At oral argument before the motion judge, A.A.'s
attorney declined the judge's offer to disclose A.A.'s identity.
In this appeal, A.A. states in his merits brief that even if the
judge had afforded him another opportunity to disclose his
(continued)
5 A-0946-13T3
A person who is denied access to government records
requested under OPRA may challenge that denial in the Superior
Court. N.J.S.A. 47:1A-6.4 OPRA requires that "[a]ny such
proceeding shall proceed in a summary or expedited manner."
Ibid.; see also R. 4:67-1(a) (applying the summary action rule
"to all actions in which the court is permitted by rule or
statute to proceed in a summary manner"); MAG Entm't, supra, 375
N.J. Super. at 550. Accordingly, an OPRA complaint must be
filed in accordance with Rule 4:67-2(a), which requires the
filing of an OTSC and verified complaint in a summary action.
A.A. did not file an OTSC and verified complaint, as
required by Rule 4:67-2(a). The lack of a verified complaint
renders the complaint a nullity, and a non-verified complaint is
(continued)
identity "it is unlikely that he would have elected to do so."
In addition, the October 18, 2013 order dismissing the complaint
was not, and could not be, a dismissal with prejudice. A
dismissal based on the court's procedural inability to consider
a case is without prejudice. Watkins v. Resorts Intern. Hotel &
Casino, Inc., 124 N.J. 398, 416 (1991). Accordingly, A.A. could
have filed a motion to amend the complaint to identify himself.
He chose, instead, to file this appeal.
4
In lieu of filing an action in Superior Court, the person may
file a complaint with the GRC. N.J.S.A. 47:1A-6. The GRC has
jurisdiction only over OPRA requests and not common-law claims
for public records. See Ciesla v. N.J. Dept. of Health, 429
N.J. Super. 127, 146-49 (App. Div. 2012). Common law right of
access claims must be brought in the Superior Court. Id. at 148
(citing Serrano v. So. Brunswick Twp., 358 N.J. Super. 352, 373
(App. Div. 2003)).
6 A-0946-13T3
insufficient to invoke the court's jurisdiction in an action
requiring a verified complaint. Pressler & Verniero, Current
N.J. Court Rules, comment to R. 1:4-7 (2015). Accordingly, the
judge properly dismissed the complaint on procedural grounds.
III.
A.A., the Prosecutor, and the amicus raise several policy
issues regarding a person's right to prosecute an action in the
Superior Court anonymously. Ultimately, these issues are for
the Court to decide. For the reasons that follow, we conclude
that A.A. may not proceed anonymously in this case.
As A.A. points out, OPRA mentions the possibility of "an
anonymous request." See N.J.S.A. 47:1A-2.2(c) (providing that
"a custodian shall not comply with an anonymous request for a
government record [containing personal information] which is
protected under the provisions of this section"); N.J.S.A.
47:1A-5(f) (providing that "[t]he custodian may require a
deposit against costs for reproducing documents sought through
an anonymous request whenever the custodian anticipates that the
information thus requested will cost in excess of $5 to
reproduce."). N.J.S.A. 47:1A-5(i) also states that "[i]f the
requestor has elected not to provide a name, address, or
telephone number, or other means of contacting the requestor,
the custodian shall not be required to respond until the
7 A-0946-13T3
requestor reappears before the custodian seeking a response to
the original request." Even assuming that OPRA permits an
anonymous request to a custodian or the GRC, OPRA does not
authorize an anonymous filing in the Superior Court. Unlike
other statutes, where the Legislature has expressly permitted
litigants in certain types of matters to proceed anonymously,
the Legislature has not granted that right to OPRA requestors.
See, e.g., N.J.S.A. 2A:61B-1(f)(1) (civil actions involving
child victims of sexual abuse); N.J.S.A. 2A:82-46(a) (criminal
actions involving child victims of sexual assault or abuse). In
addition, there is no court rule authorizing a person to proceed
anonymously in an OPRA action in the Superior Court.
A complaint in a civil action must include the names of all
parties. R. 1:4-1(a). "In the absence of statutory or rule
authorization or some compelling reason, a party will not be
permitted to prosecute a civil action anonymously or by
pseudonym[.]" Pressler & Verniero, Current N.J. Court Rules,
comment 2.3 on R. 1:2-1 (2015); see also A.B.C., supra, 282 N.J.
Super. at 500. The requirement that a litigant provide his,
her, or its identity serves important systemic functions. Among
other things, the identity of a litigant may bear on such
important matters as jurisdiction, issue preclusion, claim
preclusion, attorney conflict of interest, enforcement or a
8 A-0946-13T3
compliance with court orders, and sanctions. With respect to
common law right of access claims, the court often has to
balance the plaintiff's claim of an overriding need for the
records against the government's interests opposing turnover.
Edu. Law Cntr. v. N.J. Dep't of Educ., 198 N.J. 274, 302-03
(2009).
Absent a statute or court rule mandating anonymity in court
proceedings, a litigant must show good cause to proceed
anonymously or by pseudonym. T.S.R. v. J.C., 288 N.J. Super.
48, 56 (App. Div. 1996); A.B.C., supra, 282 N.J. Super. at 505.
The litigant may file a non-anonymous complaint and move, on
notice to opposing counsel, to seek to seal all or parts of the
record pursuant to Rule 1:38-11. The litigant must show
compelling circumstances why identification would be improper.
A.B.C., supra, 282 N.J. Super. at 505. Once the litigant shows
such compelling circumstances, the court must weigh the
litigant's privacy interest against constitutional and public
interest in open judicial proceedings. Ibid.
A.A. provides no persuasive reason to deem these concerns
inapplicable or unimportant in an OPRA case or a common law
right of access case. Although we are mindful that some
requestors of government records may wish to remain anonymous
out of concern about possible retaliatory action or harm that
9 A-0946-13T3
may ensue from public notoriety, those potential concerns do not
justify litigants deciding for themselves whether they wish to
withhold their identities when seeking relief in the Superior
Court. In rare instances when such concerns about retaliatory
action or the collateral consequences of disclosure are
significant and substantiated, the litigant can file a motion
pursuant to Rule 1:38-11. A.A. made no such motion here.
Instead, he improperly and unilaterally assumed he had a right
to remain anonymous from the inception of the lawsuit.
A.A. has presented no reason, let alone a compelling
reason, why he should be permitted to proceed anonymously. He
has not shown that his case falls within those rare instances
where the court permitted anonymous filing in a civil case. See
G.D. v. Kenny, 205 N.J. 275 (2011) (defamation action arising
from an expungement); Application of X, 59 N.J. 533 (1971) (gun
permit applications); M.H.B. v. H.T.B., 100 N.J. 567 (1985)
(matters involving children); Fireman's Fund Ins. Co. v. Imbesi,
361 N.J. Super. 539 (App. Div.), certif. denied, 178 N.J. 33
(2003) (sexual harassment where the victim contracted a venereal
disease); In re A.I., 303 N.J. Super. 105 (App. Div. 1997)
(Megan's Law); In re Return of Weapons to J.W.D., 290 N.J.
Super. 451 (App. Div. 1996), aff'd in part, rev'd in part, 149
N.J. 108 (1997) (domestic violence); T.S.R., supra, 288 N.J.
10 A-0946-13T3
Super. 48 (child victims of sexual abuse); J.W.P. v. W.W., 255
N.J. Super. 1 (App. Div. 1991) (paternity); C.J. v. Vuinovich,
252 N.J. Super. 122 (App. Div. 1991) (permitting use of initials
to protect the identity of an AIDS patient whose disease was
material to the cause of action); In re Adoption of Indian
Child, 219 N.J. Super. 28 (App. Div. 1987), aff'd, 111 N.J. 155
(1988) (juvenile actions and adoptions); and In re L.B., 369
N.J. Super. 354 (Law Div. 2004) (expungement). As we have
stated,
[a] plaintiff should be permitted to proceed
anonymously only in those exceptional cases
involving matters of a highly sensitive and
personal nature, real danger of physical
harm, or where the injury litigated against
would be incurred as a result of the
disclosure of a plaintiff's identity. The
risk that a plaintiff may suffer some
embarrassment is not enough.
[A.B.C., supra, 282 N.J. Super. at 502
(quoting Doe v. Frank, 951 F.2d 320, 324
(11th Cir. 1992)).]
A.A.'s case is not an exceptional case compelling
anonymity. A.A. has not demonstrated that this case involves
matters of a highly sensitive and personal nature or a real
danger of physical harm, and A.A. does not claim he would suffer
the injury litigated against if his identity were disclosed in
the complaint. Accordingly, because there is no statutory
11 A-0946-13T3
authorization, rule authorization, or compelling reason, A.A.
may not proceed anonymously in this matter.
Having reached this conclusion, we need not address whether
the requested records are exempt from disclosure as criminal
investigatory records.
Affirmed.
12 A-0946-13T3