In August 2017, the Appellate Division held, for the first time, that trial judges have the authority to impose the financial penalties in OPRA for individuals who knowingly violate the statute. North Jersey Media v. Office of the Governor. This opinion upended the practice that had been followed since OPRA’s enactment, under which only the GRC imposed these fines.

When the opinion was issued, I noted that the Appellate Division’s holding seems incorrect, as it creates the odd (and I think legally invalid) situation where private plaintiffs may file suit for monetary penalties that are to be paid to the State, rather than to the plaintiffs themselves.

The court didn’t address this problem in the North Jersey Media opinion, but the Appellate Division recently agreed with my point; it stated that it is legally improper for private plaintiffs to file Superior Court actions to enforce statutory penalties. Goldman v Critter Control of NJ. This was not an OPRA case, but it dealt with the same issue–whether a private plaintiff could file a trial court complaint for imposition of penalties provided for by a statute.

Like OPRA, the statute in question in Goldman, the Prevention of Cruelty to Animals Act, contains penalties for violations and says that the penalties are to be enforced under the Penalty Enforcement Law. The Goldman court concluded the reference to the penalty enforcement statute means individuals cannot file civil actions for penalties, because that statute’s purpose is to authorize administrative agencies to enforce penalties and have the fines paid to the State Treasury.

The Appellate Division explained, “[i]t would make little sense for plaintiff to be able to file a civil action and then not be able to enforce a judgment or keep any portion of the penalties.”

Yet even though it does not make sense, OPRA plaintiffs are allowed to file suits seeking financial penalties that they do not receive.