Montclair, NJ – The Township of Montclair is about to have its day in court — this Friday at 1:30 p.m. in Newark — but it wants to keep the public out of the courtroom.
In a letter dated Monday, May 22, the law firm of Riker Danzig, representing the Township of Montclair, sent a letter to Judge Stephen Petrillo asking the court to seal the proceedings.
Derrick Freijomil of Riker Danzig writes…
“Pending before the Court are various motions, including the motion for an order of protection, motion to strike, and two motions to seal. The underlying basis for the motions to seal are that such documents and information are confidential, privileged, and/or otherwise protected from public disclosure. We write to seek the Court’s guidance on temporarily sealing the proceedings and record of oral argument on these motions pending the Court’s ruling on those motions (so as to avoid negating the relief sought in those motions) and whether the Court requires a formal motion as to the same…”
The letter continues:
“Given that the Court will hold oral argument on these motions, there is a substantial risk that the confidential, privileged, and/or otherwise protected information could be disclosed in the public record during oral argument. Rule 1:2-1(c) permits sealing of proceedings in open court in accordance with Rule 1:38-11(b). Given our pending motions pursuant to that Rule, we do not believe another set of motion papers seeking the same relief need be filed; and we respectfully request that the Court temporarily seal the proceedings and record of oral argument on these motions to prevent any public disclosure of the confidential, privileged, and/or otherwise protected information pending the Court’s ruling on the motions to seal, as well as motions for protective order and to strike. If the Court grants any or all of those motions, Montclair would submit a redacted transcript of the proceedings in accordance with the ruling for the Court to determine what should be redacted from the public record.”
Nancy Erika Smith of the Montclair-based Smith Mullin law firm, who joined Montclair CFO Padmaja Rao’s suit against Town Manager Timothy Stafford and the Township of Montclair as co-counsel, said that in 42 years, she has never had a courtroom be closed to the public, especially by a public entity, nor has she seen anyone ask to seal information as broadly and excessively as Montclair is trying to do.
“This is certainly not the town that I thought we had,” says Smith, who is also a longtime resident of Montclair.
In a letter to Judge Petrillo, Smith writes:
“Plaintiff opposes the belated application by the Township of Montclair to close the courtroom to the public during the hearing on the pending motions on Ms. Rao’s claims of retaliation for whistleblowing about corruption in the Town and complaining about discrimination and a sexist hostile work environment. Defendant waited until the last minute to make this request, although it requested our consent to it a week ago.
This extraordinary request from a public body is contrary to all law. We do not have secret hearings about discrimination and public corruption in the United States. Our Courts are open to the public so that the public has confidence that everyone is equal under the law — even an employee of a powerful government. Montclair has brought the most extensive motion to seal information from the public that I have ever seen in my 42-year career. The fact that it is a public body makes that even more outrageous.
Without even attempting to meet its burden in seeking to close the Courtroom to the public, Montclair cites absolutely no law and provides no legal analysis. This is because the law is overwhelmingly against holding secret judicial proceedings. The First Amendment to the United States Constitution mandates public judicial proceedings except in rare circumstances such as national security or child abuse.”
In her letter, Smith adds that while “a defendant may want to avoid embarrassment, that is not the standard for sealing. Rather, a defendant wishing to seal the record — and in this case — close the courtroom and bar the public — has the high burden of demonstrating actual harm.”
“I have argued numerous motions to seal in open courtrooms,” Smith writes. “The topics sought to be hidden from the public can easily be discussed — although I have never seen a list as long and improper as the one proposed by Montclair. ”
Montclair Councilor at Large Robert Russo, who said he could not comment on pending litigation, stated “I do believe in open government and open courtrooms, which I have been teaching about at MSU for over 20 years and practicing on the Montclair Council for 23 years.”
Councilor at Large Peter Yacobellis said he hasn’t been consulted but that the township’s insurer, the Garden State Insurance Fund, is working with external counsel, Riker Danzig, to inform the legal defense strategy.
“That said, I’ve not agreed with several of the decisions to date and I think the default must always be transparency. Unless Montclair is all of a sudden dealing with national security issues, I don’t quite understand why the proceedings wouldn’t be handled in a typical manner,” said Yacobellis.
I couldn’t believe my eyes when I saw this. Thank God judiciary website (e-courts) offers public access, so I was able to look up both submissions. Incredible! So residents beg, plead, and scream about the need for transparency and the Council want to seal the court proceeding??
Interim Township Attorney Paul Burr: the gift that keeps on giving horrific legal advice and body blows to the Township’s reputation.
The four Council members who voted to extend the Burr term – Spiller, Yacobellis, Price Abrams, and Cummings – should apologize and resign.
My law firm and I were the lawyers in a variety of New Jersey and Federal cases establishing the public’s right to access to court documents (and arguments) in cases involving the public interest. I am comfortable saying that the relief sought by my home town is extraordinary and unlikely to be granted by a Judge familiar with the law. The idea that our tax dollars are paying for this motion is awful. The cost of the motion would pay for….(and you can pick your favorite).
The government defendant in a discrimination case wants to be able to file certain documents (probably personnel records) under seal so that only the judge and the plaintiff’s lawyers can see them. This is a normal request. Personnel records aren’t public documents. If the government is overdoing it and seeking to seal documents that shouldn’t be treated as confidential, the judge likely will say so, and the documents won’t be sealed. I have no idea what the documents say, and it’s possible the judge will rule they shouldn’t be sealed, but Derrick Freejomil is a highly experienced attorney, and he wouldn’t be asking to treat the documents as confidential if he didn’t have a valid basis to do so. The request should not be viewed nefariously.
It’s also totally normal for the plaintiff’s lawyer to make hay out of the defendant’s request. (“What are they trying to hide?,” etc.) And Nancy Erika Smith is one of the best in the business, doing her customary good job for her client. This is two lawyers doing what they’re supposed to do, with a judge ready to decide who is right.
What is definitely NOT normal here is seeing members of the Town Council commenting in the press on pending litigation and undermining their own lawyers in the process. They are putting Montclair taxpayer dollars at risk for a few brief moments of pandering, and I wish they wouldn’t. If the Councilors making these comments think the Township should pay money to a discrimination plaintiff, then have an executive session discussion about this with your lawyers, take a vote to settle the case, and if that vote goes your way, let your lawyers make the best deal they can (which deal will become public because government entities in New Jersey can’t enter into confidential settlements). Commenting publicly on pending litigation is totally inappropriate–and, as one of the speakers already has admitted–is contrary to the entirely correct instructions he has received from the Township Attorney and Montclair’s outside counsel.
To be clear, the TRIAL of Ms. Rao’s case will be public regardless, and if documents become trial exhibits, they will be public, too, viewed in open court. The fight described in this article concerns only a relatively small matter of pretrial discovery. Because arguing over whether these documents should be kept under seal during the discovery process may require the lawyers to talk about what the documents contain, it’s not crazy for Montclair’s lawyers to ask for the hearing to be private. Now, we’ll see what the judge has to say about it.
Whoa. Didn’t you guys note this above:
“Councilor at Large Peter Yacobellis said he hasn’t been consulted but that the township’s insurer, the Garden State Insurance Fund, is working with external counsel, Riker Danzig, to inform the legal defense strategy.”
Yes, the speaker is carrying a lot of baggage. And Jeff, you don’t think well of him. However, he is a client, like it or not. Actually, we are the client and he is an elected representative of our interests. How can a client’s representative (the Council) not know the legal strategy their counsel is pursuing?
Are there multiple interests involved being represented and/or coordinated by a single firm? And did Montclair assign, at some point, its interests to GSIF? Is Councilor Yacobellis excluded for a reason?
In a situation like this lawsuit, I would expect outside counsel to discuss significant matters of strategy with the entire governing body. Whether or not to make a specific request of a judge on a procedural matter isn’t necessarily something that would cause every lawyer to run every trap. It would depend on what the client told the lawyer the client wants the degree of consultation to be.
No matter what, however, airing litigation laundry in public is a bad idea. If (and this is a big if) Montclair’s lawyer took a step without appropriate consultation with his client, take it up with the lawyer in private.
And the custodian of the Township’s personal records for the period in question was the Township Manager we fired and is in “pre-litigation” with us, aside from being a named party in Rao’s complaint. And who is our counsel for those matters? I am confused who I would take it up with.
The fact that this matter has not been settled is very troubling to me. I think a bunch of egos all around have turned this into a circus.
I am not impressed by the attorneys at all, on both sides. The seal thing was a big miscalculation hurting their clients professionally. I am shocked Ms Rao’s attorney doesn’t seem to know this town, or human nature, by now. I have always thought this Council and its egos are its own worst enemies. Throw in the narrow interests of the GSIF, the inadequacies of our municipal government and the natural human condition to cover up our mistakes and this is what we have now. Now the public are modifying their values depending on what the final price tag could be and how it is to be allocated. The lawyers will get paid regardless. And they should. But, at a certain point we have to stop listening to the lawyers and focus on what is the highest & best interest of this thing we call a community. And just how much do you think the lawyers will recommend we spend on elevating our government going forward to satisfy both our legal obligations and aspire to the moral ones.
My God, how good was Mayor Jackson!
This Council members and their minions left to their own devices take dysfunction to biblical proportions.
Help!!!
This is a pretty outrageous request. Right before Motions, the insurance defense attorneys assigned to the Town by write an out-of-time and wholly inappropriate (reply to the opposition?) letter. I understand that Plaintiff’s attorneys were forced to respond, but it would be interesting to know if Riker had leave of the Court to start this letter-writing campaign. Transparency is REQUIRED. Every Court filing is a PUBLIC RECORD! Courtrooms are open to the public – they are not allowed to be “closed” except under very specific and limited circumstances, which do not appear present in this case. I disagree with the person above who is claiming that municipal personnel records are not public, particularly when filed. This is a municipality, where taxpayers pay the salaries that are REQUIRED to be made public. Does the town NOT want us to understand what they are spending our money on? We have learned, during this administration, that the current council just cannot be trusted, and this sort of secrecy further undermines the public’s ABILITY to trust in their government. Why doesn’t the TOWN Council want the TAXPAYERS to be able to read the Bruce Morgan report that was REQUIRED BY LAW, that they did not read, and that they tried to hide? Does the town want to hide everything they KNEW OR SHOULD HAVE KNOWN that Stafford did that warranted his firing in October? Will transparency PROVE to the taxpayers that Sean Spiller and his Town Council (especially the finance committee) openly retaliated against Padmaja Rao simply because she tried to PROTECT the council from their own selfish, poor judgment and criminal acts? The Montclair taxpayers have EVERY RIGHT to full disclosure, because WE ARE now being asked (albeit, illegally) to pay for the CRIMINAL ACTS OF Stafford, the Town Council and the Mayor, and for the legal malpractice of Mr. Burr. Respectfully, the Courts (and all attorneys) are required to do their best to defend the Constitution(s) of the United States and New Jersey, with the end goal of justice. I hope the Court does not close the doors of justice to the public.
Councilor Yacobelis: how can you (client) not know the legal strategy your attorney is pursuing? An attorney proposes solutions, maneuvers, and recommendations. The client accepts or rejects them. The case belongs to the client, not to the attorney.
“Whether or not to make a specific request of a judge on a procedural matter isn’t necessarily something that would cause every lawyer to run every trap. – Jeff Jacobson
If I were getting slammed left and right for lack of transparency, I would err on the side of caution and I would try to be as transparent as possible. I would expect my attorney to clear with me any requests for sealing documents or excluding the public from judicial proceedings.
Mr. Jacobson says: “If (…) Montclair’s lawyer took a step without appropriate consultation with his client, take it up with the lawyer in private.”
I respectfully disagree. If my attorney takes a step without appropriate consultation with me and I get public heat for it, I think I would want my attorney to take responsibility for making that step.
That said, I cannot imagine that Riker lawyers would not clear such move with the Council through township attorney Paul Burr. Councilor Yacobelils claims ignorance of this sweeping attempt at sealing the court proceeding. I see only 4 possibilities here:
1. Riker lawyers failed to inform town attorney Burr about their intention to seal the hearing.
2. Riker lawyers did inform Burr about their intention and Burr failed to clear it with the Council.
3. Burr did clear it with the Council but for some reason he excluded Yacobellis.
4. Yacobellis is being disingenuous.
Each of the 4 possibilities is bizarre, to say the least. Yacobellis voted to extend Burr to the end of the year. Excluding him from legal consultations would be not just unethical for Burr, it would also be suicidal given he got only 4 out of the 7 votes on his last extension.
Penchant for secrecy of this government borders on compulsion. Messing things up is bad enough. Hiding it instead of admitting and apologizing only makes it worse. Brazen attempt at sealing tomorrow’s court proceeding is in character. I’m disappointed that a reputable law firm like Riker Danzig wouldn’t dissuade the Township from making such a maneuver. I cannot imagine the idea itself came from Riker attorneys. Unless whatever will be discussed in court is so damaging that it was worth a shot. Still and all, if this was done at Riker’s advice, I cannot imagine they wouldn’t run it by town attorney.
Town attorney is the king of secrecy. If I had any hair, I’d pull it all out while listening to some of the absurd reasons he cites as reasons to refuse answering questions at council meetings. Watching this guy scramble to come up with ways to withhold information would be hilarious except it creates problems, some of which are serious. I will never get over the secrecy surrounding hammering out of the botched Glen Ridge fire deal and Nixonian way of handling Bruce Morgan’s report concerning rigged fire exam. Now oh-so-progressive Montclair has his own Firegate… I can’t help but wonder if there are any recordings.
As an aside, my wife filed an OPRA two months ago for some contract she was curious about. Clerk’s office continues to ask for extensions! I called the clerk in Glen Ridge and asked for a contract. It was provided to me within 2 hours WITHOUT filing an OPRA. Why can’t Montclair Clerk do the same?? Can we maybe swap Clerks with Glen Ridge or something?
I don’t expect everybody to agree with me, but my point may have been misunderstood. The request for a confidential hearing isn’t unusual. When the purpose of the hearing is to discuss a request to keep documents or information confidential, it’s fairly typical for the hearing to be closed to the public so the lawyers can discuss the information freely. If the lawyer hoping to keep the information confidential is wrong, the judge will say so, and the information likely will become public.
It’s fair to ask our representatives about this, but I wouldn’t expect or want them to comment on pending litigation.
While Mr. Jacobsen rightly explains the legal environment in which this town is embroiled, lay people like me might wonder if this is now the new normal for Montclair. My extended family lives in five towns in four other states (NY, NH, PA, FL) all towns similar in size and amenities to Montclair; I asked all of them if their municipalities were experiencing similar issues and they all said no. We all grew up here; I’m the lone holdout, I guess, as my sister joked. My parents retired to New Hampshire for the tax relief, siblings never returned after college.
But having grown up here, I asked them, Why do they think Montclair is going through this? Montclair was always an “activist” town, but never this strikingly. None of them remember even bothering to pay attention to city council meetings. They all said, it can’t be anything but the people in charge. Leadership, lack thereof.
It gives me great sadness to think that this early on we are talking Spiller versus Yackobellis for 2024. Please, someone, do something! My sister also reminded me, in addition to the high taxes, it seems that bad local government seems a lot to put up with just for good local restaurants. Of course she’s the one who lives in Florida!