For the second time in less than a month, a New Jersey appeals court has ruled that the Middlesex County Prosecutor’s Office is on the hook for counsel fees in an Open Public Records Act case in connection with the fatal police shooting of a suicidal elderly man, Talbot Schroeder.
The two-judge Appellate Division panel on Tuesday ruled that plaintiffs Richard Rivera and Colleen Wronko should be awarded $21,737. Counsel fees “will be disturbed only on the rarest of occasions and then only because of a clear abuse of discretion,” said Appellate Division Judges Susan Reisner and Robert Gilson, quoting an appeals court ruling from 2007, McGowan v. O’Rourke.
The ruling comes on the heels of a ruling earlier this month in a related case, when a similarly constituted panel said the prosecutor’s office must pay two news outlets more than $100,000 in counsel fees after they sued the office for access to 911 call recordings and other documents.
The appeals court described Rivera and Wronko as two Middlesex County residents who are concerned about police use of force. They were given redacted versions of the documents they requested with no explanation, ultimately prevailed at the trial court level when the office was ordered to turn over additional certification and indexing, and were awarded the $21,737 in fees and costs.
“Our courts use the ‘catalyst theory’ to determine whether a plaintiff is a prevailing party in a litigation,” the Appellate Division said Tuesday in affirming the decision below in Rivera v. Middlesex County Prosecutor’s Office.
“Many of the documents ultimately received were redacted,” the court added. “Nevertheless, the trial court concluded that ‘making redactions to records does not limit the success achieved[.]‘ We discern no abuse of discretion in that ruling and no error of law.”
C.J. Griffin of Hackensack’s Pashman Stein Walder Hayden, representing the plaintiffs, said, ”This was pretty much a frivolous appeal.”
Middlesex County Prosecutor Andrew Carey issued a statement.
“The recent litigation surrounding the release of the 911 tape has very little to do with First Amendment rights, and everything to do with common decency and protecting the privacy rights of those who may find themselves in a horrific situation,” Carey said
Christopher Harriott, of Florio Kennny Raval in Hoboken, represented the prosecutor’s office. He did not return a telephone call.
Neither the prosecutor’s office nor its attorney, Christopher Harriott of Florio Kenny Raval in Hoboken, returned calls seeking comment.
On March 2, the Appellate Division affirmed the $114,402 fee award to the Home News Tribune, which is owned by the Gannett Co., and NJ Advance Media, publisher of The Star-Ledger. Reisner and Gilson were on that panel, too. The judges, then joined by Law Division Judge Jessica Mayer, temporarily assigned, said the news outlets met the definition of prevailing parties even though they received redacted records.
It its ruling, the court affirmed a decision by Superior Court Judge Trevor Francis, who awarded $74,818 to the Home News Tribune and $39,582 to NJ Advance Media.
The incident involved a police response at Schroeder’s home in Old Bridge, a little more than three years ago, according to court documents.
A prosecutor’s office report said the use of force was justifiable because Schroeder repeatedly ignored commands to drop a knife and threatened the officer with it, having already used it to slit his wrists and stab himself, according to the court. The police officer, the report said, was forced into a position in which he could not retreat.
The incident, according to reports in The Star-Ledger, began when a 911 call came in at 5:59 p.m. on Jan. 14, 2015, for medical assistance for a man with a knife who had reportedly attempted suicide by cutting his wrists. When the two officers arrived, one entered the house while the other retrieved a first-aid kit, the report said.
The first officer was directed to a downstairs room where he encountered Schroeder, who “was seated on the floor several feet away with a knife in his right hand,” according to the Star-Ledger. The report said the officer ordered Schroeder to drop the knife, “to which he replied ‘No,’ and made a motion as if to throw the knife in the officer’s direction.”
The officer, who has not been identified, retreated to the stairwell for cover. The report said Schroeder stood up and “began walking toward the officer, brandishing the knife at head level.”
The second officer went into the home and immediately heard the first officer’s vocal commands to drop the knife, the report said. He moved toward the sounds of the first officer’s voice and saw the first officer at the bottom of the stairs, against the wall with his weapon drawn.
“From his vantage point in the foyer, he could not see Talbot Schroeder,” the report said. “Before officer #2 could advance further, officer #1 fired one shot. Officer #2 immediately notified police headquarters of the shot fired and requested first aid.”
The report said the investigation into the shooting determined that before the original 911 call, Schroeder had drawn a knife and attempted to strike his wife, who suffered lacerations to her hand and face. She was able to flee upstairs and wake her son, who on going downstairs discovered his father on the floor, actively bleeding from lacerations to both his wrists, the report said.
Schroeder refused to give the knife to his son and reportedly pointed it in his direction when the son tried to take it from him, the report said.
In the OPRA dispute that followed, the prosecutor’s office defended its actions by arguing that the redactions were justified to protect the identity of the caller and others.
Francis, in the news agencies’ litigation, said the redactions were acceptable but rejected the office’s apparently unorthodox request for a protective order to protect individual identities. He awarded the fees, rejecting the office’s contention that the materials it sent to the newspapers were not as a result of the OPRA litigation.