A frivolous litigation sanction levied against a suspended Trenton police officer, who went to court claiming he was denied his right for an open public disciplinary hearing, has been reversed.

An Appellate Division panel reversed a lower court, which had issued a “50 percent” sanction—based on only one of the officer’s two claims being frivolous—and had levied the fees against counsel rather than the officer himself.

“The trial court did not undertake an analysis of the ‘sum sufficient to deter repetition of’ filing a frivolous claim,” Judges Mitchel Ostrer and Richard Geiger said in a per curiam decision on Aug. 1, quoting from case law. “Nor did the court undertake a meaningful analysis of which services pertained to defending the frivolous [Open Public Meetings Act] claim. Merely dividing the amount sought in half because one of two claims was frivolous does not constitute a determination of ‘the reasonable attorney’s fees and other expenses incurred as a direct result of the violation.’”

They added, “More fundamentally, the trial court ordered plaintiff’s counsel, not plaintiff, to pay the sanction. Plaintiff’s counsel is not liable for fees under N.J.S.A. 2A:15-59.1(a)(1).”

According to the decision, Trenton Police Officer Christopher Munn sued the department and the city over his disciplinary proceedings, in which he was charged with failing to “sign on” with dispatchers and disobeying a direct order. Munn, a patrolman, had five disciplinary charges brought against him. He claimed he requested but was denied a public disciplinary hearing

A trial court earlier found that jurisdiction for an appeal from the imposition of discipline at the departmental level was with the state Civil Service Commission, not the Superior Court, including any claims of improper procedure at the departmental hearing

Sara B. Liebman of Caruso Smith Picini in Fairfield argued the cause for plaintiff Munn. She could not be immediately reached for comment. But Timothy Smith of the same firm, who worked on the case, said: “We appreciate the Appellate Division’s careful consideration of the issues and recognition that the awarding of sanctions should not occur except in rare circumstances, and only after the court engages in the proper analysis.” Smith added, “We trust that on remand the trial court will be mindful of the panel’s direction to make a full and complete record and to employ the proper legal standard.”

John P. Harrington of Trimboli & Prusinowski in Morristown, who argued on behalf of the defendants, could not be reached.

Munn claims that members of the press informed Trenton policy that they intended to attend his disciplinary hearing, but that members of the public and press were not permitted to attend, the hearing.

The city and the department contended that Munn didn’t request a public hearing and disputed that any member of the press or public attempted to attend the hearing, the appeals court noted.

The disciplinary hearing was conducted behind closed doors by the director of the department, who sustained all five charges and imposed a 15-day suspension without pay.

Munn filed an appeal from the suspension with the Civil Service Commission, but also filed a one-count verified complaint seeking a declaratory judgment that the disciplinary hearing was void ab initio and the discipline imposed null and void, and requesting a new, public disciplinary hearing.

Munn relied upon the Attorney General’s Guidelines for Internal Affairs Policy & Procedures, which provide: “All disciplinary hearings shall be closed to the public unless the defendant officer requests an open hearing.” His suit also contended that disciplinary hearings of law enforcement officers should be public hearings pursuant to the New Jersey Open Public Meetings Act.

According to the decision, defense counsel sent written notice to Munn’s counsel that the complaint was frivolous and demanding immediate withdrawal of the complaint, or defendants would pursue sanctions under Rule 1:4-8. Munn did not voluntarily withdraw either of his two claims.

The trial court granted the defendants’ motion to dismiss “due to lack of subject matter jurisdiction.”

The city and the police department then moved for an award of sanctions under Rule 1:4-8, for “failure to withdraw his frivolous claims.” The sought $8,694 in counsel fees incurred, though the lower court considered only fees incurred prior to March 23, 2018.

In seeking the sanctions, the defendants contended that Munn didn’t object to the nonpublic nature of the disciplinary hearing until they received a letter from his counsel several days after the hearing was held, according to the decision.

The defense also pointed out that they immediately put Munn’s counsel on written notice that OPMA did not apply to a departmental disciplinary hearing conducted by a single hearing officer and that the Attorney General Guidelines do not require a public hearing on disciplinary charges.

The court awarded $7,521.50 in fees to the city and the department, to be paid by Munn’s counsel. It found that the OPMA claim was “patently frivolous” but found that the claim alleging an improper private hearing was not frivolous, according to the decision,

According to the Appellate Division: “Although defendants did not apply for relief under N.J.S.A. 2A:15-59.1(a)(1), the trial court found it applied. The trial court found the hourly rates of $175 and $135 charged by defense counsel were reasonable, and the time expended by counsel was warranted based on the quality of the work and the extensive research performed. The court found no double billing. The court concluded the lodestar was $7,521.50. The trial court granted the motion in part, imposing a ’50 percent’ frivolous litigation sanction of $3,760.75, payable by plaintiff’s counsel to defendants within thirty days.”

The court below rejected Munn’s motion for reconsideration, in which he argued that “a frivolous litigation sanction should not be imposed unless the entire pleading is deemed frivolous.”

The Appellate Division in its Aug. 1 ruling, reviewing the case under the abuse of discretion standard, said a claim “is deemed frivolous when ‘no rational argument can be advanced in its support, or it is not supported by any credible evidence, or it is completely untenable.’”

Unlike a party who files a frivolous claim, counsel cannot be held liable under the statute for “all reasonable litigation costs and reasonable attorney fees” incurred by defendants, said the panel, citing McKeown-Brand v. Trump Castle Hotel & Casino, a 1993 decision from the state Supreme Court.

“Plaintiff argues his claim of entitlement to a public hearing was legitimate, even if filed in the wrong forum. We are also mindful that plaintiff’s claims were set forth in a single count,” the panel noted.

“The trial court did not make findings or state conclusions regarding whether the complaint as a whole was frivolous. For these reasons, the award of counsel fees under Rule 1:4-8 is vacated, and the matter is remanded. On remand, the trial court shall determine whether the complaint as a whole was frivolous, and if so, determine the appropriate sanction to deter repetition.”