Montclair Attempts to Seal Public Courtroom in Discrimination Case

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.