Dear Judge Wilson:

Please accept this letter reply brief on behalf of the Borough of Mendham. We request oral argument, though because Mr. Mosher alleges inability to appear in Court we have no objection to his appearing by phone.

While Mr. Mosher has elected to represent himself in this matter, his pro se representation does not excuse him from meeting the threshold proof requirements necessary to sustain a cause of action against the Borough of Mendham. Because the evidence he has presented fails as a matter of law to establish any of the causes of action which may be inferred from his Complaint, we submit, his claims are ripe for summary disposition.

Page 2
With respect to Points One and Two of our Legal Argument, Mr. Mosher essentially contends that he has proven a disability under the ADA and/or a handicap under the LAD by asserting that the Social Security Administration declared him disabled. In fact, the only proof attached is a receipt from a visit with a Dr. Gary Hamlin in 1988 following which Dr. Hamlin rendered a diagnosis of "CNS Neuro Hormonal Dysfunction." The top of this form, which Mr. Mosher has labeled Exhibit "PSJ2", appears to be a portion of a form from the Social Security Administration which states only that Mr. Mosher claimed to be:

"disabled because of agoraphobia. The medical evidence shows that since you are not insured for social security disability benefits after 6/30/80, we undertook development to determine the severity of your condition on or before 6/30/80. Your condition did not disable you prior to the date your insurance coverage expired. This determination was made by an agency of the state and not by the individuals or agencies who submitted reports." (Plaintiffs Exhibit PSJ2)

Even when viewed in the light most favorable to Mr. Mosher, we submit, this document falls far short of the proof of disability required by the plain language of the ADA, the LAD and the cases construing both statutes. While we are sorry to cause personal offense to Mr. Mosher through this application of the law to the facts, his failure as a matter of law to establish a disability or handicap as those terms are defined in

Page 3
either of the statutes he seeks to invoke entitles the Borough to summary judgment on his ADA and LAD claims. Mr. Mosher next concedes that he was never an employee, arguing instead that the Borough violated his civil rights by denying him "all the accommodations, advantages, facilities and privileges of any place of public accommodation" contrary to N.J.S.A. 10:5-4.

In order to establish a prima facie claim for discrimination in a place of public accommodation one must establish an actual deprivation of some benefit directly attributable to a disability. See generally Dale v. Boy Scouts of America. 530 U.S. 640 (2000). In addition to his failure to present competent proof of a disability, Mr. Mosher has failed to demonstrate anything other than a de minimus inconvenience or delay in receiving materials from the Borough in response to his seemingly endless series of OPRA requests over the course of several years. While Mr. Mosher describes the Borough's responses to his stream of requests as "tediously combative technical resistance," (Mr. Mosher's brief at page 12), the alleged incidents of "obstruction" were nothing more than necessitated by the volume and reach of his demands.

Page 4
More importantly -- and fundamentally - Mr. Mosher has failed to demonstrate that any of the delays or inconveniences of which he complains (e.g. a 14 day wait for an audio tape or the delivery of documents in PDF rather than paper form) had anything to do with his disability. Nor does he demonstrate - or even allege - that similarly situated non-disabled citizens received requested information and documentation without such minimal inconveniences. Mr. Mosher argues at page 12 of his brief that: "The claim of the plaintiff does not hinge on the strict legality of each singular act of "obstruction" committed by Borough officials. The claim is, that taken collectively, these individual actions provide strong circumstantial evidence of deliberate intent - and even conspiracy." (Mr. Mosher's Brief at Page 12)

Following Mr. Mosher's argument begs the question of what law the Borough is accused of conspiring to violate. To respond that the defendant conspired to violate Mr. Mosher's rights under the ADA and LAD through violations of the LAD and ADA is to argue circularly. In order to demonstrate violation of one's rights through a conspiracy one must, in the first instance, demonstrate a predicate violation of one's rights. This Mr. Mosher has failed to do. The events which clearly upset Mr. Mosher, like many disappointments in life, simply do not rise to the level of a legal cause of action. For example, Mr. Mosher alleges that he was "deceived (not

Page 5
informed of) regarding his official dismissal as Borough Webmaster." Admitting that he provided various services as a volunteer, Mr. Mosher nevertheless contends that the Borough wrongfully continued to accept his volunteered services while secretly looking for a replacement f webmaster. While Mr. Mosher's perception of deception clearly demonstrates that his feelings were hurt by the Borough's perceived indifference, hurt feelings do not alone establish a legal cause of action. Mr. Mosher does not allege that the Borough was unjustly enriched since he admits that he was a volunteer. Nor does he contend he sustained any damages which New Jersey law recognizes for breach of contract or even common law fraud. See generally Varacallo v. Mass. Mut. Life Ins. Co., 332 N.J.Suver. 31. 43. 752 A.2d 807 (App.Div.2000)(Common law fraud requires proof of material misrepresentation or omission and detrimental reliance). Mr. Mosher next refers to disputes over his request for access to police department logs and cassette recordings of council meetings, describing the conduct of Borough personnel as "suspiciously unequal, unfair and therefore discriminatory." The problem with such an allegation is plaintiffs failure to demonstrate that the police department logs were anything other than "not available", or that the recordings of council meetings were available earlier or for a lower fee, to anyone else. In other words, while Mr. Mosher has clearly presented several facts

Page 6
which he contends demonstrate a pattern of unfairness, he has failed as a matter of law to allege facts sufficient to support a claim that he was treated in a manner different than any non-disabled person.

At page 14 of his brief Mr. Mosher articulates his dispute with a * Borough ordinance that provides a document fee exemption to non-profit organizations and a dispute with the Borough's practice of providing requested documents in the PDF format. (Mr. Mosher has failed to present any competent evidence in support of his assertion that he is "the only person who has been singled out by the Borough to receive documents of the poor quality the plaintiff has been provided.") OPRA allows that such claims may be asserted in conjunction with a request for access to public records. N.J.S.A. 47:1A-1 et seq.

Mr. Mosher's Complaint does not demand an order voiding the ordinance in question or barring the Borough from responding to his OPRA demands with documents in PDF form. Rather, the Complaint seeks only monetary damages. Besides attorney's fees, the prevailing party in an OPRA action is entitled to the public access sought. Courier News v. Hunterdon County Prosecutor's Office. 2003 WL 22022961 (N.J.Super.L.). OPRA does not contemplate the relief sought by Mr. Mosher in this lawsuit. Because he has otherwise failed to state a cause of action that would entitle him to monetary relief his Complaint must be dismissed.

Page 7
Finally, Mr. Mosher asserts in closing that he intends to assert a claim under 42 U.S.C. § 1983 for deprivation of his civil rights. We did not address this cause of action in our motion for summary judgment because Mr. Mosher never properly amended his Complaint to include * such a cause of action. Rather, he filed a motion to amend the Complaint which the Court returned for lack of an appropriate filing fee. He has not refiled the motion and his original Complaint remains the only Complaint of record.

Regardless, even if Mr. Mosher had properly amended his Complaint to include a cause of action under § 1983, the facts he alleges, even when viewed in the light most favorable to him, fail as a matter of law to establish deprivation of any rights, privileges or immunities secured by the Constitution or Laws of the United States. Section 1983 creates a cause of action against "[ejvery person who, under color of any [state law] ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution." 42 U.S.C. §1983. The Supreme Court in Monell v. Department of Social Services of City of New York. 436 U.S. 658 (1978), held that a municipality can be held liable as a person under section 1983 when it unconstitutionally implements or enforces "a policy statement, ordinance, regulation, or decision officially adopted and

Page 8
promulgated by" the officers of that municipality. Id. at 690. Mr. Mosher has presented no proof that the Borough implemented or enforced a policy that created a deprivation of his rights, even if he had properly asserted such claim. * For the foregoing reasons, as well as those cited in our moving brief, we request that the Court enter summary judgment dismissing the Complaint with prejudice.

Respectfully submitted,
METHFESSEL & WERBEL, ESQS.
Eric L. Harrison

What the law requires:

"The party moving for summary judgment bears the burden of establishing that there are no genuine issues of material fact in dispute."

Defendant attorneys page 1-2 argument describing what "plaintiff has not proven" does nothing to satisfy defendants legal obligations. The material "fact" of defendants life altering disability certainly has not been proven by defendant to be fallacy. On the contrary, the evidence indicates every probability that plaintiff's condition does satisfy the definition of handicapped or disability under the ADA and LAD. The fact that the defendant can produce no witness to testify that the plaintiff has been more than a half mile from his home in 25 years establishes plaintiff's claim of disability to be no-less-than a "material fact in dispute" and sensibly an issue the court should remove as an unnecessary distraction by obligating the defendant to stipulate, that for the purposes of this litigation, plaintiff was throughout the relevant years, and is today, by any common understanding of the word, "disabled".

The rest of defendants rebuttal argument is nothing but an effort to distract and confused by injecting a notion of false complexity.

Equal access to [public] information, and a broad right to free expression (to publish commentary) are not terribly complex constitutional principles.

The ADA obligations, to make easy, unburdensome, accommodations for those afflicted by a condition that impairs their functionality is also a "simple" concept. Furthermore, I would venture to say that no enlighened human being could find it difficult to understand the LAD prohibition against abusing, or taking advantage of, the "weekend" status or abilities of persons covered under the LAD.

If the evidence could be reasonably described as "so one-sided" --the conclusion would have to be that the defendant is "guilty as charged". Not only has defendant not made any accommodation to plaintiff's disability. The evidence shows decisively that there were repeated efforts to do just the opposite, to in effect, throw banana peels on the staircase rather than provide a ramp. $25 cassette tapes, the abolishment of a fee exemption, an attempt to charge for e-mail, a fee ordinance that charges 25% more for digital files, an effort to disqualify perfectly legal and perfectly reasonable town council "redress" of a grievance, and numerous deliberate and willful deceptions...etc. hardly indicates only "de minimus" or "minimal inconveniences". They were deliberate efforts to deny me constitutionally protected liberty, that were willfully crafted to exploit circumstances and limitations imposed by my disability, in malicious violation of state and federal law.

On the evidence, summary judgment in favor of the defendant in this case would be a violation of plaintiff's due process rights, and could only be rationally attributed to an act of willfull judicial malfeasance. Motion should be denied with the prejudice of a sanction against defendant Attorney for filing woefully inadequate and therefore "frivolous papers".