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Judge increases lawyer’s fees for OPRA request to Bergen prosecutor

Photo Credit: Cliffview Pilot File Photo

YOU READ IT HERE FIRST: The lawyer for a former Hudson County cop who requested records detailing the use of force against minorities in Bergen County following a police-involved shooting in Garfield was awarded $10,445 by Bergen’s top judge, in a decision that could lay the groundwork for increased payments to lawyers for work they do in OPRA cases.

In the case of Richard Rivera v. the Bergen County Prosecutor’s Office, Assignment Judge Peter Doyne ruled that someone who requests records under New Jersey’s Open Public Records Act can recover fees for time his or her attorney spends traveling to and from court, preparing the fee application, typing up documents and reviewing previous cases.

Just as significantly, the judge also increased the fees that Rivera’s lawyer, Walter Luers, was able to recover from the prosecutor’s office by 25 percent.

Doyne ordered in August that the prosecutor restore the names of citizens that were removed from 1,079 police use-of-force reports (UFRs) to Rivera — “with the exception of individuals who were not criminally charged and where there was an indication of psychological difficulties.”

(Under state Attorney General guidelines, police officers are required to complete a UFR whenever physical, mechanical, or deadly force is used during an arrest.)

Rivera sought disclosure of the names in an OPRA request to determine “whether minorities were subject to greater uses of force than the remainder of the population,” Doyne noted in his opinion.

Bergen County Prosecutor John L. Molinelli’s office supplied the reports but, citing privacy concerns, removed the identities, the judge said.

Following Doyne’s August ruling, both sides were left to haggle over the cost for Luers’ time and labor in securing the reports and having the names restored.

Rivera wanted $11,646.25. Molinelli’s office offered $1,750.

Rivera then filed court papers that led to Doyne’s decision.

“I have no problem with it based on our efforts to protect the interests of victims and those with a mental illness,” the prosecutor told CLIFFVIEW PILOT. “Mr. Rivera wanted ALL the names.”

As Molinelli noted, his office immediately provided the UFRs — only with the names removed, or “redacted.”

“As not all individuals listed on a use of force report as an ‘involved person’ are placed under arrest, we were concerned that we would be exposing juveniles and persons with a mental illness,” he said.

“The law would prohibit the release of such names if they are victims, as well as juveniles, and it was in many (but not all) instances where it was impossible to determine whether such individuals were victims and/or persons with a mental illness simply by looking at the form,” Molinelli told CLIFFVIEW PILOT.

Doyne, in fact, “ruled over Mr. Rivera’s objection that we could redact those names and information that clearly indicated that they were a victim or a person who was mentally ill,” the prosecutor said.

“I am not sure this captures everyone that would fit in such a category, as this would depend upon whether the officer involved made such a notation on the form,” he said.

Doyne cited several factors in awarding the $10,445:

  • Rivera’s request was somewhat novel – “namely, whether or not the names of individuals with psychiatric difficulties subjected to the use of force by a police officer should be released.” Not the usual type of OPRA issue, and clearly one that required legal assistance, Doyne found. “This was an issue that courts have not previously addressed and, as such, the outcome of this case was difficult to predict,” he wrote;
  • The request was “useful and essential to an ordered and civilized society,” the judge wrote. “Governmental efficacy rests on a system of checks and balances…. A retired police officer who requests access to public documents to determine whether physical abuse of arrested individuals with psychological difficulties occurs within the state of New Jersey is surely a public good”;
  • Based on the prosecutor’s initial privacy argument, there was a “high likelihood of failure,” Doyne said. OPRA, he said, aims to give lawyers an incentive to represent clients whose claims risked failing and not scare them off – which, in turn, “promotes justice for the citizenry”;
  • It took a “reasonable” amount of time and work – 29.3 hours, by Luers’ calculations;
  • Luers “proceeded with competence and diligence… and proceeded in a fashion deserving a contingency enhancement,” the judge added.
  • Having been a lawyer nearly 13 years and admitted to practice in six states, Luers “has apparently developed a niche in the OPRA field, having obtained favorable results in more than twenty OPRA-related cases,” Doyne found. It has earned him notice as one of the New Jersey Law Journal’s 2010 Lawyers of the Year, including a reference by the publication to him as one of the state’s “OPRA Warriors,” the judge noted;
  • The fact that Luers secured the release of 95% of the requested reports, with the names included, “further signal [his] competence and ability,” Doyne ruled;
  • The judge also said a higher hourly rate than usual was reasonable in this case because Luers, working on contingency, wouldn’t have received a dime if it failed.

The first and most important step was determining what’s known as the “lodestar” amount, defined as the number of hours an attorney is reasonably expected to spend on such a case multiplied by the “relevant and current prevailing” hourly market rate charged by those of equal skill in the community.

It’s not an exact science. As Doyne noted, the primary goal is to come up with a number that isn’t excessive.

(In this case, according to a 2005 New Jersey Law Journal article, the reported average hourly rate in New Jersey for partners was $394 per hour and for associates $235. In fact, Doyne noted, judges have approved hourly rates of $325 or more for lawyers who have litigated OPRA cases. Luers requested $275.)

At that point, a judge is able to do what Doyne did – increase the amount in order to compensate for fees lost by passing on other cases to handle the one at hand. These boosts can range from five to 50 percent of the lodestar.

Molinelli’s office contended that Luers travel time shouldn’t have been reimbursed, nor should his fee have included time he spent arguing for it. County attorneys also argued that “a party who rejects a settlement offer that turns out to be more favorable than the ultimate judgment” should be “penalized.”

Doyne rejected those arguments, noting that the BCPO “had the opportunity to negotiate an agreeable fee settlement with Luers but failed to do so. The fact that Luers had to expend additional time on this matter can be directly attributed to [the] inability to reach an appropriate settlement.”

The judge also noted that Luers doesn’t have a secretary or paralegal and, so, has to handle a lot of administrative duties himself, including typing documents.

“[T]his approach is more efficient than dictation or handwriting and may have reduced rather than increased the total hours expended,” Doyne found.

Luers’ hourly rate multiplied by the time expended yielded a lodestar of $8,057.50, which Doyne deemed reasonable.

However, he ruled that the factors cited above warrant an enhancement of 25 percent. That comes to an additional $2,014.38. Luers also was given $373.34 in other costs.

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