Sunday, February 20, 2011

McGOVERN v. RUTGERS: Appellate Division blasts Rutgers' secrecy

(2011 N.J. Super. LEXIS 32 ), Judge Baxter penned an opinion reviewing the benefits to the public of New Jersey's Open Public Meetings Act (OPMA). The decision of the Appellate Division reversed some of the trial judge's previous pro-Rutgers decision, with the Appellate Division concluding:

In sum, we have reversed the judge's across the board dismissal of the first count, which alleged that the public notice of the agenda items to be discussed at the September 10, 2008 closed meeting was defective. We have likewise reversed the dismissal of the third count, which alleged that the Board's regular practice of sequencing a brief open session, followed by a closed session of indeterminate length, followed by another open session, runs afoul of the Act's requirements.


We remand this matter to the Law Division for formulation of an appropriate remedy. In fashioning a remedy, the judge shall consider the provisions of N.J.S.A. 10:4-15 and -16, and shall be guided by the principles articulated in Burnett, supra, 409 N.J. Super. at 240-46. As in Burnett, we leave to the judge's discretion the scope of the proceedings on remand, and recommend the court conduct a case management conference to determine what, if any, discovery is required.

In a different case [Sussex Commons v. Rutgers, 416 N.J. Super. 537 ], Rutgers had run afoul of New Jersey's Open Public Records Act [OPRA]. The Appellate Division further wrote in Sussex:

Our holding in Bergen County Improvement Authority was cited approvingly in Mason v. City of Hoboken, 196 N.J. 51, 67, 951 A.2d 1017 (2008), in which the Supreme Court stated that "[t]he common law definition of a public record is broader than the definition [of government record] contained in OPRA." Thus, it is now settled that nothing contained in OPRA can be construed "as affecting in any way the common law right of access." N.J.S.A. 47:1A-1; N.J.S.A. 47:1A-8.


We note, however, that plaintiffs predicated their requests under both OPRA and the common law right of access. Inexplicably, the trial court's ruling only addressed plaintiffs' application under OPRA. Thus, in addition to considering plaintiffs' requests under the provisions of OPRA, the court shall also apply the legal principles articulated by the Supreme Court in Keddie v. Rutgers, supra, and its progeny to determine whether plaintiffs are entitled to any relief under the common law right of access.

[The decision had earlier stated: The University itself is subject to OPRA's requirements. See Keddie v. Rutgers, The State University, 148 N.J. 36, 43, 689 A.2d 702 (1997), (acknowledging the University as subject to OPRA's predecessor, the Right-to-Know Law, N.J.S.A. 47:1A to -4). ]

A comment was sent to californiastemcellreport on February 20, 2011:

David Jensen has properly raised issues with the lack of open discussion of CIRM matters for a long time. In the State of New Jersey, the Appellate Division handed down a decision on February 18, 2011 about how the State of New Jersey conducts its government decision-making in the open:

The OPMA, "frequently referred to as the 'Sunshine Law,' requires meetings of public bodies to be open to the public at all times, except in certain designated [instances]." Burnett v. Gloucester County Bd. of Chosen Freeholders, 409 N.J. Super. 219, 232 (App. Div. 2009). As we observed in Burnett, "New Jersey has a history of commitment to public participation in government" and the OPMA "reflects this commitment." Indeed, the OPMA opens with an emphatic declaration of the Legislature's strong commitment to the right of the public to be present at all meet-ings of public bodies because such presence enhances the decision-making process. The Act states:

The Legislature finds and declares that the right of the public to be present at all meetings of public bodies, and to witness in full detail all phases of the deliberation, policy formulation, and decision making of public bodies, is vital to the enhancement and proper functioning of the democratic process; that secrecy in public affairs undermines the faith of the public in government and the public's effectiveness in fulfilling its role in a democratic society, and hereby declares it to be the public policy of this State to insure the right of its citizens to have adequate advance notice of and the right to attend all meetings of public bodies at which any business affecting the public is discussed or acted upon in any way except only in those circumstances where otherwise the public interest would be clearly endangered or the personal privacy or guaranteed rights of individuals would be clearly in danger of unwarranted invasion.
[N.J.S.A. 10:4-7.]

That said, the problems with CIRM go back to the very beginning, wherein promises were made to California voters/taxpayers that were incapable of delivery. See for example

Ad campaign for California's Proposition 71 as a bait and switch?

Further, every time I read on californiastemcellreport of some researcher being lured from some other location to go to California via promises of more money, I wonder if California taxpayers ever realized they were going to be playing the role of junior George Steinbrenners in a "sport" that was not offering them any great return.


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