Sussex Commons Associates, LLC v. Rutgers, 416 N.J. Super. 537 (App.Div. 2010)

In May 2009, the AAUP joined the Clinical Legal Educators Association (CLEA) and the Society of American Law Teachers (SALT) in filing an amicus brief in support of the Rutgers University Environmental Law Clinic and opposing efforts by a development company to force the law clinic to turn over its client records. Asking the Appellate Division of the Superior Court of New Jersey court to protect the records of the law clinic, the amicus brief argued that requiring the clinic’s records to be released publicly would impinge on the academic freedom rights of Rutgers faculty and students as well as the First Amendment rights of citizens to access and use law clinics.

In 2005 and 2006, the Rutgers Environmental Law Clinic represented a group of New Jersey citizens opposed to a particular commercial development project. The development company behind the project unsuccessfully attempted to pressure the citizens’ group and the law clinic through several legal actions before filing an Open Public Records Act (OPRA) request with the university for documents related to the clinic’s operation. The university refused to provide most of the requested documents and the development company sued to compel production under the OPRA.

On October 7, 2008, the Superior Court of New Jersey ruled that the clinical programs of Rutgers School of Law are unique hybrid institutions and therefore exempt from New Jersey’s open records law. In its decision, the court analogized the OPRA request to similar questions about the application of conflict of interest laws and the collection of attorneys’ fees in the clinical education setting.  In the end, the court found “that the unique hybrid nature of the Rutgers School of Law Clinics, as subdivisions of Rutgers the State University, entitles them to an exemption from OPRA, which is necessary to protect the unique and valuable function the law clinic provides in both education and jurisprudence.” It is from this decision that the development company has appealed.

The amicus brief begins by focusing on the premise that law clinics are a fundamental component of legal education. For example, in order for law schools to attain accreditation, the American Bar Association (ABA) requires schools to provide each student with substantial instruction in the professional skills necessary for effective and responsible participation in the legal profession, including “live client or other real-life practice experiences.” In light of ABA requirements for accreditation, the brief points out, “[t]he profession thus recognizes that law school clinics in which faculty teach students through the vehicle of actual cases are necessary to the professional education of law students.”

After establishing the fundamental nature of clinical programs in legal education, the brief then discusses the role of law school faculty in educating and molding competent future lawyers and the threat that this public records request represents to the academic freedom of faculty and students. The United States Supreme Court has recognized the importance of academic freedom, including the role that academic freedom plays in the development of new ideas and the role of academic freedom in educating future leaders. The brief therefore urges the court to view legal clinics as the law schools’ research laboratories where clinical instructors train their students in developing new legal theories and expanding existing legal doctrine through litigation of actual cases. In order to encourage that type of education, “[p]rofessional educators must have the academic freedom to consider all aspects of skills instruction in developing and structuring law school clinics.” Requiring law clinics to release documents related to their operation risks forcing law clinics, and particularly clinical educators, to make case intake or other decisions for non-pedagogical reasons, thereby preventing clinics from using the best means to train students in professional skills and values. Such an outcome would be “counter to basic notions of appropriate instructional decision-making.”

Finally, the brief asserts that forcing clinics to produce such records would infringe upon the First Amendment rights of the clinic clients by “chilling public participation in government disputes and interfering with modes of expression and association between clients and their attorneys.” The brief emphasizes the critical need for access to lawyers by underserved communities.

A copy of the submitted amicus brief is available (.pdf).

Update: Rutgers appealed to the Supreme Court of New Jersey which issued its decision on July 5, 2012, reversing the Appellate Division’s decision and holding that “records related to cases at public law school clinics are not subject to OPRA.” The court found that legal clinics do not perform any government functions – they conduct no official government business, nor assist in any aspect of State or local government. Therefore, the court reasoned, allowing public access to legal clinic case documents would not further the purposes of OPRA, inasmuch as such records “would not shed light on the operation of government or expose misconduct or wasteful government spending.” The court also agreed with Rutgers and amici that the “consequences [of applying OPRA to public legal clinics] are likely to harm the operation of public law clinics, and by extension, the legal profession and the public.”