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Derek C. Syphrett August 25,2014
Pro se litigant (Defendant)
252 Fountayne Ln,
Lawrence Township, NJ 08648
POSTAL SERVICE W/ RETURN RECEIPT VIA THIRD PARTY VENDOR
Judge Bookbinder, Judge Call, Judge Tomasello, Sharyn Sherman, and Court Clerk
Superior Court of New Jersey, Chancery Division, Family Part (Burlington County)
49 Rancocas Rd
Mount Holly, NJ 08060
RE: DOCKETS: FM-03-790-14, FV-03-1154-14, & Prosecutor's Case Number 13-2502
(Enclosures: Financial Documents supporting indigency)
LETTER BRIEF IN SUPPORT OF:
RULE 4:50 RELIEF IN DOCKETS: FM-03-790-14, FM-03-1154-14 & REQUEST FOR NEW TRIALS IN THE SAME FOR GOOD CAUSE SHOWN.
DEFENDANT'S DENIAL OF CONSENT FOR JUDGE TOMASELLO TO ACT AS JUDGE IN FV-03-1154-14, FV-03-1162-14, FM-03-790-14, OR ANY OTHER LEGAL MATTER WHERE “Derek Syphrett” IS A REAL PARTY OF INTEREST
CONSTITUTIONAL CHALLENGE TO JOHN TOMASELLO'S LEGAL STANDING TO ACT AS JUDGE WITHOUT CONSENT OF A REAL PARTY
CHANGE OF VENUE BASED ON DEMONSTRABLE BIAS, PREJUDICES AGAINST THE DEFENDANT, AS PRESENTED IN COURT ORDERS OF JUDGE BOOKBINDER AND / OR HIS SUBORDINATE JUDGES
Dear Judges, court staff, and John Tomasello (Retired):
Please kindly accept this letter in lieu of a formal letter brief. The length of this brief is a consequence of significant injustice I've suffered and the necessity of supporting my list of grievances with valid legal arguments.
I have written the court today to Express:
Legal arguments supporting my motion papers filed on 8/6/2014 and my pleadings for change of venue, declarations of null and void court orders (of Judge Bookbinder), and change of venue pursuant court rule 1:12-1 and all applicable sub-paragraphs contained therein.
A Constitutional challenge to John Tomasello (retired) acting as Judge in my Legal affairs.
A Common-law challenge to deny John Tomasello (retired) to sit as judge or act as judge in the aforementioned legal matters (see RE: / Reference headings above).
Express grave concerns for the trial conditions propounded upon the Defendant in Dockets FV03-1154-14, FM-03-790-14, which include apparent violations of the Defendants litigation privileges, constitutional rights, and judicial canons by the assignment judge, presiding judges, and trial judges
IMPORTANT NOTES:
NOTE 1: DEFENDANT'S REQUEST FOR NEW TRIALS IN FM-03-790-14 & FV-03-1154-14
I apologize for the length of this brief, however, upon review I am sure any reasonable person will agree that the length of this document is in large part due to the long-list of intolerable and unacceptable pre-trial, trial, and post-trial restraints that the court propounded upon the Defendant.
THE DISTURBING COMMON-THEME IN ALL THE AFOREMENTIONED DOCKETS AND CASES IS THAT I WAS DENIED AN OPPORTUNITY TO BE FULLY HEARD IN ALL OF THEM.
As such I have been compelled to provide detailed statements of fact and detailed legal arguments supporting my position that the trials in FM-03-790-14 and FV-03-1154-14 were conducted in a manner that is repugnant to the New Jersey Constitution, the United States Constitution, and the binding common-law of this jurisdiction.
I have attempted to provide a fact based and emotionless argument for relief, despite the fact that I am now suffering from Post-Traumatic Stress Disorder as a result of the bizarre treatment I received pre-trial, at trial, and post-trial with regard to the referenced legal matters.
My family and I have been emotionally devastated to see that the Superior Court of New Jersey and its court officers routinely disregarded the rule of law and separated a loving father from his children under the circumstances that are described herin.
In the interest of justice and for good cause shown new trials must be awarded to the Defendant, who was not allowed to face his accusers, cross-examine witnesses, or be fully heard pursuant court rules 1.6 or 1.7 due to the unlawful / unethical restraints upon his access to the court and court records.
The facts and details related to the handling of my legal matters and my fundamental relationship with my own children are frankly (in a word) appalling.
NOTE 2: CONSTITUTIONL CHALLENGE TO THE ASSIGNMENT OF RETIRED JUDGE(S) / JOHN TOMASELLO (A RETIRED SUPERIOR COURT JUDGE)
I have been compelled to cautiously “disagree” with the New Jersey Supreme Courts position that John Tomasello (or any similarly situated retired Superior Court Judge) has the constitutional standing to “sit” or “act” as a judge in my legal affairs pursuant the well reasoned legal argument of the Hon. Jonathan Harris, J.A.D.
Further: it is my position that a retired judge may not issue legally binding / valid court orders, affecting my legal affairs, absent my common-law consent for such judge decide my legal matters.
The legal Arguments below include arguments not raised in State v. Buckner regarding recalled Judges under the age of 70 years old (such as John Tomasello). The legal argument is a matter of first impression regarding a constitutional challenge for the New Jersey Courts.
I request the trial judge pass the issue up to the Supreme Court for a determination, given the constitutional nature of the legal arguments and the fact that the argument is an authentic matter of first impression not previously put before any New Jersey Court by any other litigant.
LEGAL REFERENCES:
(Motion – Petition: Please Take Judicial Notice, pursuant N.J.R.E 201, of the Following References)
New Jersey Constitution (1947)
State of New Jersey v. James Buckner (“State v. Buckner”), (Decided by the New Jersey Appellate Division, on May 5, 2014).
“The Matter of Stephen Perskie (a former judge) New Jersey Supreme Court (2011)
All documents contained in Case files for Dockets: FV-03-1154-14, FV-03-1162-14, FM-03790-14, AND PROSECUTORS CASE 13-2502
All abbreviated & audio transcripts in case files for Dockets: FV-03-1154-14, FV-03-1162-14, FM-03790-14, AND PROSECUTORS CASE 13-2502.
(Note some of the status hearings for issues in these cases were consolidated to FM-03-790-14 despite the fact that the subject matter was not exclusively related to FM-03-790-14)
COMMON-LAW SUPPORTING INDIGENT DEFENDANT'S DISCOVERY OF
COURT TRANSCRIPTS IN FM-03-790-14
M.L.B. V S.L.J. 519 U.S. 102117 S.Ct. 555,,136 L.Ed.2d 473, at No. 95-853. (1996)
Griffin v. Illinois, U.S. Supreme Court, 1956
Boddie v. Connecticut, U.S. Supreme Court 1971
Court rule V and Court Rule 4:43-1 thru 4:43-4,
COURT ORDERS IN
RELATED MATTERS
Assignment Judge Bookbinder's court orders of 2/6/2014, 2/19/2014, and 3/10/2014:
Please take note that Judge Bookbinder's court orders appear to be contrary to the defendant's rights as defined by the binding common-law listed below:
1st Amendment Rights pursuant Elrod v. Burns U.S. Supreme Court 1976
Pro Se litigation Privileges pursuant Picking v. Pennsylvania Railroad U.S Supreme Court, Haines v. Kerner U.S. Supreme Court 1972 and their progency in the third circuit.
Litigation Privelege / immunity from civil sanctions related to the exercise of litigation privileges pursuant Loigman v. Township Committee of Twp. of Middletown, 185 N.J. 566, 579–80 (2006).
SEE ALSO: Higher Court Findings that: “Pro se litigants' court submissions are to be construed liberally and held to less stringent standards than submissions of lawyers. If the court can reasonably read the submissions, it should do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or litigant's unfamiliarity with rule requirements. ”.
SEE LEGAL AUTHORITIES :
Boag v. MacDougall, 454 U.S. 364, 102 S.Ct. 700, 70 L.Ed.2d 551 (1982); Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)(quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)); Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); McDowell v. Delaware State Police, 88 F.3d 188, 189 (3rd Cir. 1996); United States v. Day, 969 F.2d 39, 42 (3rd Cir. 1992)(holding pro se petition cannot be held to same standard as pleadings drafted by attorneys); Then v. I.N.S., 58 F.Supp.2d 422, 429 (D.N.J. 1999).
All court orders of Judge Tomasello issued in FV-03-1154-14 which contain Judge Tomasello's signature line, inclusive of the words “Retired”.
Defendant's Motion Papers in FV-03-1154-14 (stamped received on 8/6/2014), inclusive of the attached enclosed exhibits.
SUBJECT MATTER
1ST AMENDMENT RIGHTS
(OFFERED IN OPPOSITION TO:
JUDGE BOOKBINDER'S COURT ORDERS OF 2/6/2014 TO 3/10/2014)
Elrod v. Burns, 427 US 347 - 1976 - Supreme Court
SUBJECT MATTER:
LIBERAL CIVIL CONSTRUCTION APPLIES TO
PLEADINGS OF PRO SE'S SUCH AS THE DEFENDANT:
(OFFERED IN OPPOSITION TO:
JUDGE BOOKBINDER'S COURT ORDERS OF 2/6/2014 TO 3/10/2014)
Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972);
Hurd v. Romeo, 752 F.2d 68, 70 (3d Cir.1985).
Todaro v. Bowman, 872 F.2d 43, 44 n. 1 (3d Cir. 1989);
McTeague v. Sosnowski, 617 F.2d 1016, 1019 (3d Cir.1980).
Boag v. MacDougall, 454 U.S. 364, 365, 102 S.Ct. 700, 70 L.Ed.2d 551 (1982);
Picking v. Pennsylvania Railway , (151 F2d. 240) Third Circuit Court of Appeals. In Picking , the plaintiffs civil rights was 150 pages and described by a federal judge as "inept." Nevertheless, it was held: Where a plaintiff pleads pro-se in a suit for protection of civil rights, the court should endeavor to construe plaintiffs pleading without regard to technicalities.
Note: Finding in Elrod Court, pursuant Buckley v. Valeo: “Though First Amendment rights are not absolute, they may be curtailed only by interests of vital importance, the burden of proving the existence of which rests upon the government”
Buckley v. Valeo, 424 U. S. 1, 424 U. S. 94.
SUBJECT MATTER
LITIAGATION PRIVILEGES
(OFFERED IN OPPOSITION TO:
JUDGE BOOKBINDER'S COURT ORDERS OF 2/6/2014 TO 3/10/2014)
Loigman v. Township Committee of Twp. of Middletown, 185 N.J. 566, 579–80 (decided 2005). (A.K.A.) “Loigman v. Middletown”
Rickenbach v. Wells Fargo Bank, N.A., 635 F. Supp. 2d 389 (D.N.J. 2009)
Finding: Noting that litigation privilege has broad application to nearly all tort claims except claims for malicious prosecution). comments from:By Karen Painter Randall – December 11, 2012 – ABA Article
Hawkins v. Harris, 141 N.J. 207 (1995):
With this broad application in hand, New Jersey Courts have firmly established that the privilege applies to “any communication: (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.” (By Karen Painter Randall – December 11, 2012 - ABA
STATEMENT OF FACTS:
I. STATEMENTS SUPPORTING
A Timeline RE: N.J. Constitution & Judge Tomassello's Life & Career
According to the "Article VI– Judicial, Section VI, 1" of the New Jersey Constitution (1947): After a judge's initial term, the Governor may choose to nominate them for tenure, sending the nomination for tenure to the State Senate, which must again decide whether or not to grant advice and consent. Judges confirmed to a tenured position on the Court serve until they die, resign, retire or are retired, are impeached and removed, or reach the age of 70, at which point they are automatically retired.
John Tomasello (retired Superior Court Judge) was born in about July of 1947.
John Tomasello received tenure as a Judge in about 2002.
John Tomasello retired from service as a Superior Court Judge in 2013.
John Tomasello has not since 2013 been nominated to serve as a Judge in New Jersey by the Governor of New Jersey.
John Tomasello (a Retired Superior Court Judge) has not been “confirmed” by the New Jersey State Senate to again serve as a Judge of the Superior Court or any court of statutory or constitutional construction within the state of New Jersey, since his retirement in 2013.
I have at no time provided express permission for John Tomasello to act as a common-law judge / statutorily constructed judge / Constitutionally Constructed judge with regard to my legal affairs.
I hereby deny consent for Judge Tomasello to sit as a judge with legal / binding authority with regard to any of my legal affairs.
In February of 2014 John Tomasello was “recalled” (whatever that may mean) by the Supreme Court of New Jersey to serve as a Superior Court Judge within the Burlington County Vincinage.
The Recall of Judge Tomasello is contrary to the plain text of the New Jersey Constitution 1947 where the Constitution in Article VI clearly and plainly states that a Judge shall serve as a judge only until they retire or are retired.
Judge Tomasello is still a retired Judge and the State of New Jersey has not authorized him to sit or act as a judge by any act of the legislature or government that is not contrary to plain language of the the New Jersey Constitution (1947).
STATEMENTS SUPPORTING HISTORY OF MY LITIGATION IN SUPERIOR COURT
In April 2013 I represented myself in FM-11-97-11K (now redocketed as FM-03-790-14). In appreal my motion to have my wife found in contempt and my child support stayed was granted in part and denied in part. My wife was found in contempt and unallocated support enforcement was stayed indefinitely until the end of the matrimonial trial. As such I had demonstrated my legal competence before the court in April of 2013. By this date I had been a pro se litigant in court for about 2.75 years. I had won numerous motions in court and defeated numerous motions in court, before Judge Fitzpatrick (see case file)
On 6/4/2013 Judge Catherine Fitzptrick was presiding over the dockets FV-11-625-13 and FM-11-97-13K, which were redocketed to FV-03-1162-14 and FM-03-1154-14 after the dockets were transferred to Mercer County.
On 6/4/2013 Judge Cathrine Fitzpatrick issued an order stripping me of my right to self representation. She assigned both a G.A.L. And a court appointed lawyer to represent my legal matters in FM-11-97-13. This order was issued sua sponte with no opportunity for me to be heard before it took affect. It appears this order was contrary to court rule 5:3
While there were no findings in the written order to support Judge Fitzpatrick's grounds for ordering that a G.A.L. Or court appointed lawyer be assigned.
Judge Fitzpatrick did make reference to an expert report from Vivian Shnaidman, which included an certification that the expert report was for “subject: Robin Bloom”, NOT “Derek Syphrett”.... in otherwords the only evidence Judge Fitzpatrick cited in her order was a defective certification of a medical condition reported to be for “subject: Robin Bloom”.
I was extremely upset about Judge Fitzpatrick's apparent violation of the court rules and what appeared to me to be her attempt to silence me and violate my constitutional rights without a basis in law.
I filed complaints with the court appointed Lawyer' (Stuart Weiner) law firm (CHLP) complaining that among other violations of the R.P.C. Stuart Weiner was appointed to represent me contrary to the court rules.
I filed additional complaints to his firm regarding the fact that Stuart Weiner had misrepresented facts to me during consultations, and provided fraudulent legal advice, when he told me:
I could not get limited discovery for a Domestic Violence case
That court rule 5:3 did not apply to his appointment
My complaints about stuart weiner were supported by recordings of him providing fraudulent legal advice. (I can present it to the court on request if this is not accepted as a fact by the court)
Stuart Weiner also referred my legal questions to the G.A.L. Who was not appointed to be my lawyer. I felt this was inappropriate as well, because my conversations with the G.A.L. Were not protected by attorney-client-privileges.
I reported Judge Fitzpatrick to the Supreme Court A.C.J.C. By sending a letter to Judge Glenn Grant and requesting that he deliver it to the A.C.J.C. On June 31, 2013.
The A.C.J.C. Commenced an investigation and confirmed the same on 8/2/2013 via letter. This investigation is purportedly still ongoing as of 8/26/2014 (present).
In July 2013 Stuart Weiner filed an emergent motion to be released from the matrimonial case now docketed as FM-03-790-13. His motion papers cited his belief that I may sue his law firm and that he then had a conflict of interest with me and could no longer represent me.
Judge Fitzpatrick refused to hear the motion emergently and instead allowed Staurt Weiner to represent me at the next status hearing, despite his objections and concerns.
8/14/2013 Catherine Fitzpatrick filed criminal charges against me via a citizens complaint for terroristic threats she purported were sent via email to her law clerk (not herself) to threaten here life or well being. A criminal case was spawned as prosecutors case# 13-2502 on 8/18/2013.
4/17/2014 The Prosecutor's Office sent an ex-parte fax to the Superior Court of Burlington which contained a copy of a motion for dismissal.
4/17/2014: THE SUPERIOR COURT DISMISSED THE case# 13-2502 CASE AFTER THE PROSECUTOR FAILED TO GET AN INDICTMENT OR TO PROSECUT DOWNGRADED CHARGES.
On 8/16/2013 Judge Catherine Fitzpatrick sat on the bench during a status hearing in my legal matters, despite the fact she alleged I had threatened her life / well-being and had initiated a legal process adverse to my interests.
Then on 8/16/2013 Judge Catherine Fitzpatrick issued orders for default judgements & procedings in the dockets now known as in FV-03-1154-14 AND FM-03-790-14. She did so at a hearing where the court appointed lawyer stated he had a conflict of interest. Yet Judge Fitzpatrick proceeded to allow the court appointed lawyer to represent me for the entirety of the status hearing, only to release him at the conclusion of the Status hearing. She also released the G.A.L. John Rittley who was not present at the hearing and had not filed a motion to be released. Remarkably two orders for default proceedings were adjudicated despite the fact that I effectively had no willing counsel present, or at least no counsel without a conflict of interest.
About 2/21/2014 Judge Tomasello “vacated” Judge Fitzpatrick's orders for default in the matrimonial matter (two days after he had begun taking testimony in FM-03-790-14 as a contested matter, contrary to Judge Fitzptrick's court order).
Note Inititially Judge Tomasello stated that would not disturb any of Judge Fitzpatrick's prior orders.
He then “vacated” the orders for default proceedings
Later at trial Judge Tomasello again said he would not disturb any of Judge Fitzpatrick's prior court orders. These statements appear to be in conflict with one another.
I have made statements to the court at trial and in status conferences in 2014 that I now question the legal competence of both Judge Tomasello and Judge Fitzpatrick given (in part) the facts described above.
TRIALS OF FM-03-790-14 of FV-03-1162-14:
FM-03-790-14 On about April 1, 2014 Judge Tomasello denied me my right to have an opportunity to be fully heard was denied by Judge Tomasello. He instructed prior to closing statements and his summation that I could not object to summation or closing arguments. This instruction was arbitrary (no legal findings offered) and it was contrary to my right to be fully heard.
Judge Tomasello ordered me removed from the court room in FV-03-1162-14 after I made my first and only objection . He continued to adjudicate the matter and take testimony without me present in court after he had me physically removed by the Sheriff's Officer in the Court room. Again my right to be fully heard was apparently violated during this proceeding.
IV. STATEMENTS SUPPORTING: (To be amended to “II” at trial)
The Legal Competence of Judge Tomasello, Judge Bookbinder, and Judge Call is a material legal question, Given the Following Facts:
On 12/24/2013 Judge Bookbinder presided over Prosecutor's Case Number 13-2502 and released me from jail stating that expert testimony convinced him that I was not a threat to self, others or property.
On 12/24/2013 Judge Bookbinder stated on the record that he had consulted and /or would consult with Judge Mary C. Jacobson regarding my bail conditions and bail restraints.
Judge Jacobson was listed as a participant in the criminal investigation of Case Number 13-2502 and was a potential witness for that case with regard to the probable cause assertions of the Prosecutor.
On about 1/6/2014 Judge Jeanne Covert issued / continued bail restraints that prohibited me from contacting any Mercer County Court Judges or court staff, despite the fact that I had municipal court cases pending in Mercer County. Judge Jeanne Covert stated that Judge Bookbinder had consulted Judge Jacobson on my bail conditions and she would not alter his recommendations without a written motion. My lawyer John Rooney Objected on the basis that I had need to contact Judges in Mercer County.
Additionally see the continuation of these restraints listed out of chronological order below:
In April of 2014 I released my lawyer in Case Number 13-2502 and requested the restraints against me contacting Mercer County Judges and court staff to be vacated, because I had need to contact the Mercer County Court for discovery in both civil and criminal cases before the court. My request was denied. This prejudiced my litigation privileges related to all four cases before the Superior Court in Burlington, past and present.
On 2/6/2014, ~2/11/2014, 2/19/2014, and /or 3/10/2014 Judge Ronald E. Bookbinder issued orders for civil restraints which restrained the Defendant (me) from exercising free speech, litigation privileges (as defined in Loigman v. Middletown), and my due-process rights under the New Jersey Constitution and the Constitution for the United States of America (see Bill of Rigths Amendments 1, 5,6,9,and 14) all of which appear to be violated by Judge Bookbinder's purported court orders on the aforementioned dates, either in part or wholly.
The above referenced court orders prohibited the Defendant (me) from appearing in the Burlington Superior Court Facility even on dates when trial dates were scheduled in the above captioned matters. I had no right to appear in court for my own trials as a default circumstance.
The above referenced court orders purport to control / restrain my litigation privileges with regard to the means and manner I was allowed to communicate with the court about my litigation. These restraints of my legal strategy and tactics were prejudicial and in violate of / repugnant to my 1st & 14th Amendment rights under the United States Constitution.
Judge Tomasello and Judge Call were made aware of these court orders.
On 2/6/2014, 2/21/2014, and on subsequent dates Judge Tomasello refused to address my objections to the court orders and their impact on my litigation privileges and /or my 14th Amendement rights to due process under the law.
Judge Tomasello was apparently complicit with the restraints as issued by Judge Bookbinder. During the trial of FM-03-790-14 he stated he would “not” disturb those court orders or vacate them to provide me any relief.
I made requests to chambers and at status hearings to have the restraints vacated sua sponte. I contacted the chambers of Judge Tomasello, Judge Bookbinder, and Judge Call to request relief.
NOTE: Judge Bookbinder, Judge Tomasello, and Judge Call, appear to have complicit in abiding and enforcing the court orders of 2/6/2014, 2/19/2014, and 3/10/2014 captioned for dockets / cases: FM-03-790-14, FV-03-1154-14, FV-03-1162-14, and case #13-2502.
On 2/18/2014 and 2/19/2014 Judge Tomasello further demonstrated legal incompetence by taking ex-parte testimony, when I did not appear in court (as ordered) on 2/18/2014 and 2/19/2014, without providing me an opportunity to later cross-examine the witnesses in in the trial of Dockets: FM-03-790-14, FV-03-1154-14, and FV-03-1162-14.
Note: In Docket: FV-03-1162-14: The Plaintiff appeared on 2/18/2014, she provided amended complaints to the court without notice and orally only. Judge Tomasello interrupted her testimony and DISMISSED THE TRO stating that the “should have never been issued”. Judge Tomasello motioned for the dismissal sua sponte on behalf of the Defendant who was not present in court.
Note: In Docket: FV-03-1154-14: On 2/19/2014 Judge Tomasello ignored the immediate appeal that had been timely filed by the Defendant. The immediate appeal was never scheduled for a hearing date despite the fact that the Defendant had served the immediate appeal 11-months earlier upon both the Plaintiff and the court. The right to an immediate appeal and consideration of the merits is a statutory right.
Prior to 2/18/2014 Judge Janetta Marbrey, J.S.C., the previous trial judge, in FV-03-1154-14, had recognized the Defendant's calendar motion(stamped received on 6/7/2013) calendar motions requesting an immediate appeal hearing and dismissal of the TRO due to court rule 1:12-1(g) and the open legal conflict between the the Municipal Court Judge (Hoffman) who issued the TRO on 2/8/2013 – 3-days after he filed motion papers as an adversary to Derek Syphrett in FV-03-1162-14. She promised a determination by the court regarding the Defendant's statutory rights regarding his immediate appeal filing.
On 2/19/2014 Judge Tomasello ordered a default judgement in FV-03-1154-14, despite the fact that I had filed an immediate appeal, which had not been scheduled for a hearing by the court pusuant the required statutory process under the Prevention of Domestic Violence Act AND despite the fact that my 6/7/2013 motion was converted to a motion in limine and a 12/11/2013 calendar motion was filed in FM-03-1154-14, which was not scheduled for a hearing. None of these three motions has been decided by the court, and these open legal questions still sit before the court.
Court rule V and Court Rule 4:43-1 thru 4:43-4, effectively state that a default can in instances where the Defendant has not answered the complaint / placed pleadings before the court.
Newither the court or the Plaintiff in FV-03-1154-14 addressed all of the Defendant's pleadings in opposition of the complaint prior to the default being issued.
The motion papers of the Defendant stamped received 8/6/2014 detail pre-trial, and trial court orders of Judge Ronald Bookbinder, that were contrary to the findings and binding common-law of Haines v. Kerner, Loigman v. Township of Middletown
The court orders of Judge Bookbinder, which I have demanded the court take Judicial Notice of (pursuant New Jersey Rules of Evidence, “N.J.R.E.” 201) contain:
language that restrained me from appearing in the Burlington County Court Facility as a litigant.
language that Restrained my litigation privileges and my ability to choose legal strategy and tactics with regard to which forms of communication I chose to employ to communicate with the court.
Language that restrained my ability to communicate with the Municipal court according to my free will to use telephonic methods of contacting the court for information
Language that denied my access to the ombudsman (my ability to access the court).
During status conferences between 2/6/2014 to 7/1/2014with Judge Bookbinder I repeatedly raised concerns and objections to his court orders interferring with my litigation privileges as an attorney-in-fact and demanding that his orders be declared null and void. Further:
I requested Judge Bookbinder void the court orders that restrained my litigation privileges sua sponte in the interest of justice.
I did so “on the record”.
Judge Bookbinder repeatedly refused to take sua sponte action to amend or vacate his court orders despite my citations of binding common-law for judicial notice including: Haines v. Kerner (1972), Elrod v. Burns (1976), Loigman v. Middletown, etc.
IMPORTANTLY I ALSO ASSERT AS FACT: Sheriff's Officers began escorting me throughout the court house in Burlington for no apparent reason prior to Judge Bookbiner's 2/19/2014 court order. Officer Potts of the Burlington County Sheriff's department that Judge Bookbinder ordered me escorted. This was witnessed by my mother and my sister Tamora and Melissa Syphrett.
I was also denied access to the Ombudsman before the issuance of the 2/19/2014 court order after leaving voicemails to schedule a meeting with the Ombudsman to discuss my concerns about the civil restraints and my inability to get access to my case files prior to the continuance of my trials. I was told by “Chip” the Ombudsman and that I could not have contact with the Ombudsman. Notably I was informed of these conditions prior to any court order being sent to me stating the same and without any hearing in open court regarding the same.
Judge Bookbinder is an Assignment Judge and is accountable to Court rule 1:33 in his administrative capacity.
Generally speaking the common-law of the courts with Jurisdiction over the State of New Jersey have long recognized a Judge does not have judicial immunity when they act solely in their administrative capacity or in any separate capacity that is not of a judicial nature.
I have been shocked and alarmed (I alZlege harassed) by the conduct of Judge Bookbinder and Judge Tomasello as globally described within this document. I wish no further contact, with either that is not required under the law in order for me to achieve a just outcome in this matter
V. (To be amended to “III.” at trial)
STATEMENTS SUPPORTING
Indigency & request for transcripts
. My monthly income net of child support payments is below $800 (as demonstrated by the Social Security Administration letter provided to the court in my motion papers filed 8/6/2014 (which support this brief and are requested for Judicial Notice pursuant court rule 201).
My monthly rent remains $800 per month as was indicated on previous indigency forms provided to the court in case #13-2502 and the case information statement provided in FM-03-790-14.
I am permanently disabled as is documented in the aforementioned letter from the Social Security Administration, and my ability to earn substantially more income is not a reasonable possibility.
My only bank account balance is $278.80 (Wells Fargo), and my only 401k account via Y.O.H. Is $39.
My montly expenses have not substantially changed since the filing of my Case Information Statement or Indigency Status forms with the court. In otherwords my monthly expenses for room, board, and food once again exceed my monthly income net of child-support payments which were calculated based upon a fictional income of $100,000. My actual yearly income is estimated to be about $8,400 net of child support payments.
According to information I have received from the Social Security Administration my permanent disability was in existence but not yet discovered before or during the final trial date of FM-03-790-14. This is newly discovered information.
Given that the court order of 4/1/2014 did not take note of my permanent disability, which was retroactively granted to the approximate date of 8/6/2012.
The final order in FM-03-790-14 effectively terminated my parental rights as I have no parenting time and no right to get information about my children from neutral third parties. My legal and physical custody was terminated without counsel present or an offer for counsel to be present. I have no rights to my children only purported obligations.
I request the court provide the full or abbreviated transcripts for the trial of FM-03-790-13 as a result of the above financial information government documents referenced above. Please take judicial notice of the same.
LEGAL ARGUMENTS:
I. ARGUMENTS SUPPORTING:
CHANGE OF VENUE,
NULL & VOID ORDERS OF JUDGE BOOKBINDER AND JUDGE TOMASELLO IN ALL REFERENCED DOCKETS BELOW
RECUSAL OF BURLINGTON COUNTY JUDGES FOR GOOD CAUSE SHOWN:
I am a pro se litigant entitled to all the rights and benefits so ordered by the binding common-law listed below.
As such I offer the following legal arguments and citations in support of my legal position that the appearance of a fair, just, and impartial venue has been lost in the Superior Court of New Jersey generally, and specifically the appearance of a fair, just, and impartial proceeding has been lost with regard to Judge Ronald E. Bookbinder, A.J.S.C. In relation to my legal affairs before the court past and present:
Below I've listed common-law precedents and/or published cases binding within this jurisdiction which contain findings and rules of law regarding pro-se filings, first amendment rights, and litigation privileges. It is my legal position that Judge Bookbinder's issuance of court orders on 2/6/2014, 2/19/2014, and/or 3/10/2014 are repugnant to my constitutionally protected rights to due process, my free speech, and my litigation privileges.
The common-law citations are listed by subject matter below. Please take Judicial Notice of the legal findings contained in the following common-law cases pursuant N.J.R.E. 201:
SUBJECT MATTER:
PRO SE PLEADINGS AND THE LIBRAL CIVIL CONSTRUCT:
Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972);
Hurd v. Romeo, 752 F.2d 68, 70 (3d Cir.1985).
Todaro v. Bowman, 872 F.2d 43, 44 n. 1 (3d Cir. 1989);
McTeague v. Sosnowski, 617 F.2d 1016, 1019 (3d Cir.1980).
Boag v. MacDougall, 454 U.S. 364, 365, 102 S.Ct. 700, 70 L.Ed.2d 551 (1982);
Picking v. Pennsylvania Railway , (151 F2d. 240) Third Circuit Court of Appeals. In Picking , the plaintiffs civil rights was 150 pages and described by a federal judge as "inept." Nevertheless, it was held: Where a plaintiff pleads pro-se in a suit for protection of civil rights, the court should endeavor to construe plaintiffs pleading without regard to technicalities.
Note: Finding in Elrod Court, pursuant Buckley v. Valeo: “Though First Amendment rights are not absolute, they may be curtailed only by interests of vital importance, the burden of proving the existence of which rests upon the government”
Buckley v. Valeo, 424 U. S. 1, 424 U. S. 94.
SUBJECT MATTER
LITIAGATION PRIVILEGES
(OFFERED IN OPPOSITION TO:
JUDGE BOOKBINDER'S COURT ORDERS OF 2/6/2014 TO 3/10/2014)
Loigman v. Township Committee of Twp. of Middletown, 185 N.J. 566, 579–80 (2005).
Rickenbach v. Wells Fargo Bank, N.A., 635 F. Supp. 2d 389 (D.N.J. 2009)
Finding: Noting that litigation privilege has broad application to nearly all tort claims except claims for malicious prosecution). comments from:By Karen Painter Randall – December 11, 2012 – ABA Article
Hawkins v. Harris, 141 N.J. 207 (1995):
With this broad application in hand, New Jersey Courts have firmly established that the privilege applies to “any communication: (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.” (By Karen Painter Randall – December 11, 2012 - ABA
SUBJECT MATTER
FIRST AMENDMENT RIGHTS AND
PRIVILEGES
Elrod v. Burns, 427 US 347 - 1976 – U.S. Supreme Court
The Elrod v Burns Court Found: That the burden of proof for restraining a citizens first amendment rights is borne by the government.
ARGUMENT CONTINUED:
Judge Bookbinder demonstrated his bias against me as a litigant by issuing court orders. He did so by:
issuing orders that eviscerated my “litigation privileges” as attorney-in-fact.
Issuing court orders that restrained my 1st Amendment Right to “free-speech” without producing any burden of proof via evidence or testimony to support his restrictions upon my first amendment free speech. My position is his court order is contrary to the findings contained in Elrod v. Burns, because Judge Bookbinder did not bear the burden of proof prior to restraining my 1st Amendment Rights.
NOTE: I demanded a plenary hearing and he refused to hold one. He therefore had no right to restrain my first amendment rights, as he produced no evidence in support of his claim, nor did he demonstrate that he was restraining my rights in the least restrictive or in a thoughtful manner that was considerate of my civil rights as a litigant generally.
THE PREJUDICIAL ORDERS OF JUDGE BOOKBINDER (2/6/2014 – 3/10/2014)
Violated my litigation privileges / unlawfully sanctioned my litigation privileges and 1st amendment speech in a prejudicial manner given that these orders included the following bizarre sanctions:
Prohibited me from appearing in court EVEN ON DATES WHEN I HAD TRIALS SCHEDULED, without EXPRESS PERMISSION FROM A SUPERIOR COURT JUDGE... no exception was made for my litigatation privileges as a pro se litigant / defendant. I was literally banned from appearing in court for my own trials or any reason by the plain text of Judge Bookbinders 2/6/2014 and 2/19/2014 court orders.
Legal Argument: This appears to be a clear violation of the United States Constitution 1st, 5th, 6th, 9th, and 14th Amendment rights related to access to courts and due-process under the law.
Legal Argument: An order prohibiting ones access to a court facility also appears to be repugnant to the New Jersey Constitution (1947), Article I and the due process privileges contained therein.
Legal Argument & Statement of Facts: Judge Bookbinder's court orders repeatedly impeded my ability to arrive at court to work on my case, retrieve audio recordings of proceedings, and to review audio from ex-parte testimony that had been taken on 2/18/2014 and / or the 2/19/2014 testimony given in FV-03-1154-14. The court order effectively prejudiced my ability to defend myself at trial and afterwords, in that often I was not allowed to come to court without first writing a letter to the court and requesting permission, thus delaying my ability to get information in a timelier fashion. Such delays have impacted my ability to seek post trial relief and to timely file appeals.
Legal Argument: Judge Bookbinder's court orders prohibiting my access to the court and those restricting my litigation communications appear to be unlawful and repugnant to both the U.S. And N.J. Constitutions, as such my legal position is that JUDGE BOOKBINDER'S COURT ORDERS are NULL & VOID, rather than voidable.
I was prohibited from filing any papers “contrary to the court rules”
Legal Argument: This appears to be contrary to Haines v. Kerner, Picking v. Pennsylvania Railroad, Todaro v. Bowman, Gibson, etc. (these are references to the citations referenced earlier in this document)
Legal Argument: As a pro se litigant my pleadings and my rights to file pleadings which are at times technically contrary to the court rules is a right secured by the common law listed in the preceding paragraph.
Legal Argument: Judge Bookbinder's court order appear biased against my rights as a pro se litigant, and worked to prejudice my ability to communicate with the court, as I was held to a standard that no similarly situated individual is typically held to, despite the fact that none of my prior filings had ever been deemed “frivolous”.
Statement of Facts & Legal Argument: Judge Bookbinder is not be legally competent as a judge in matters where a pro se is a litigant.
He claimed that he was not familiar with Haines v. Kerner or its findings regarding the “civil liberal construct”
I challenged him and stated that Haines v. Kerner had been taught in every law school since it was decided.
Over 50% of the litigants who appear in the Family Part are pro se, and if Judge Bookbinder is not aware of pro se's rights under the law (Haines v. Kerner)then I assert he lacks legal competence as a Judge / Assignment Judge in any matter, in which a pro se litigant appears before the court.
I was prohibited from contacting the Superior Court Ombudsman when I expressed a desire to complain about the court orders and get the assistance of the Ombudsman
I was escorted, (harassed, bullied, delayed or intimidated) by Sheriff's Officers on each occasion that I appeared at the court after 2/19/2014. I literally was late arriving to court on several dates in part because I had to wait in the lobby for a Sheriff's Officer to come down to the ground floor to escort me. In some instances I was sanctioned for my late arrival despite the fact that I was impeded from making it to the court by Sheriff's Officers.
Municipal Court staff were ordered not to reference the court order and hang up on me if I called them for any reason, even if it was related to Municipal Court matters.
Note: Hopewell Municipal Court told me they would not enforce Judge Bookbinder's Court Order
Note: Hopewell Municipal Court Trial Court Administrator Margaret Umbro sent a letter to Judge Bookbinder expressing that his court order appeared to be contrary to the interest of Justice should the court desire to speak with me urgently about inclimate weather or other concerns.
I was prohibited from calling or electronically communicating with the court even if my legal adversaries were permitted to do the same (which they did in FM-03-790-14 and Prosecutor's Case# 13-2502).
Note: Please take Judicial Notice of the motion for Dismissal in Prosecutor's case# 13-2502, it was submitted to the court by Mercer County Prosecutors via Facsimile and decided shortly after receipt. I was given no opportunity to see that motion or respond to it prior to the case being dismissed.
In FM-03-790-14 Fox Rothschild was allowed to email a list of trial exhibits to the court without simultaneously copying me to the same email to the court. Again the court permitted this ex-parte communication and prejudicial communication regime in that matter. Please take Judicial Notice of the emails sent from Fox Rothschild to Judge Tomasello's staff between 3/15/2014 and 4/15/2014
I was prohibited from speaking with Pam Peterson regarding the amended Final Dual Order of Judgement in FM-03-790-14 after the Plaintiff's Lawyer Jennifer Millner consulted Pam Peterson (a probation dept employee) about a suggested amendment. When I requested permission to speak with Pam Peterson, Judge Bookbinder informed me that I could not speak with her to clarify the issues she consulted the Plaintiff's Counsel Jennifer Millner about.
Note Judge Tomasello's Chambers refused to discuss the proposed amendment to the final order of Judgement and assured me the Judge was not going to amend the final order, within a couple of weeks the order was amended and I was never given an opportunity to speak with Pam Peterson to clarify the legal issue or to form an informed response.
MY LITIGATION PRIVILEGES AND MY UNITED STATES CONSTITUTION 1ST AMENDMENT RIGHTS WERE EVICERATED BY THE COURT ORDERS OF JUDGE BOOKBINDER AND THE COMPLICITY OF HIS SUBORDINATE JUDGES.
JUDGE BOOKBINER AND / OR HIS SUBORDINATE JUDGES FAILED TO ENSURE MY RIGHTS AS A PRO-SE LITIGANT, PURSUANT THE ABOVE CITED CASES, WERE UPHELD BY THE BURLINGTON COUNTY VINCINAGE FROM 1/30/2014 UNTIL PRESENT, DUE TO THE COURT'S INSISTANCE ON RESTRAINING MY LITIGATION PRIVILEGES THE MANNER DESCRIBED IN JUDGE BOOKBINDER'S COURT ORDERS OF 2/6/2014, 2/19/2014, AND 3/10/2014.
DESPITE THE FACT I WENT ON THE RECORD DURING STATUS HEARINGS TO OBJECT TO JUDGE BOOKBINDER'S COURT ORDERS BY CITATING (Haines v. Kerner, Elrod v. Burns, Loigman v. Middletown, Picking v. Pennsylvania, etc) , JUDGE BOOKBINDER DEMONSTRATED BIAS AND PREJUDICE BY DENYING ME ACCESS TO THE COURT AND REFUSING TO CONSTRUE MY PAPERS LIBRALLY WITHOUT REGARD FOR THE TECHNICALITIES OF THE COURT RULES.
Judge Bookbinder's court orders demonstrate his prejudice against my rights as a pro se litigant and require his recusal under court rule 1:12-1.
Since Judge Bookbinder has demonstrated his inability to ensure that I can be fully heard consistent with the rule of law as defined by the common-law cases cited herien, I believe that my legal affairs should be transferred from the Burlington Venue to a location where Judge Bookbinder can not exercise authority over the court facility or subordinate Judges handling my legal affairs. I believe that this should be done to remove the appearance of bias, prejudice and a unjust legal process.
ALL OF MY LEGAL AFFAIRS SHOULD BE TRANSFERRED TO ANOTHER VENUE BEYONDTHE INFLUENCE OR OVERSIGHT OF JUDGE RONALD BOOKBINDER AND JUDGE JOHN CALL GIVEN: The procedural history of this case, the failure of the Presiding Family Part Judge John Call, the failure of the Assignment Judge Ronald Bookbinder, and / or the failure of the and the failure of the court to:
To ensure fair and reasonable administration of justice with regard to the pre-trial motion papers filed by the Defendant and the timely hearing of the same.
Note the court's Assignment Judge Ronald Bookbinder was made aware that the Defendant's concerned that motion papers were missing from the case file and not properly decided by the Judge John Tomasello. Judge Bookbinder was asked on the record to follow-up pursuant court rule 1:33 to ensure his subordinates had obeyed all applicable court rules with regard to this matter, Judge Bookbinder refused.
Note: The issue of the “missing” motion papers was put before the court during status hearings and remedial action was requested by the Defendant, again the court refused to take sua sponte action in the interest of justice – repeatedly.
To ensure my access to the court for the purposes of asserting litigation privileges and executing my legal strategy and tactics without undue interference by the court or without being subjected to unusual restraints which limited my ability to timely access the courts, witnesses in the Mercer County Judiciary, etc (SEE JUDGE BOOKBINDERS COURT ORDERS IN THIS MATTER FROM 2/6/2014 TO 3/10/2014 & TAKE JUDICIAL NOTICE OF THOSE COURT ORDERS)
The courts failure to provide me access to the Ombudsman (access to the court) with regard to my concerns about the handling of this legal matter and my other family matters, when such matters were still active and before the court (this too was unfair and prejudicial).
Provide written legal notice of a hearing date for the “Immediate Appeal” to both the Plaintiff and the Defendant (on or at anytime after 3/1/2013);
to locate and consider my pre-trial motions and my motion in-limine for the scheduling of the immediate appeal (while Judge Tomasello was being supervised by Judge John Call and Judge Ronald Bookbinder)
To Schedule the hearing of the immediate appeal prior to holding an ex-parte denial of my immediate appeal for the sole reason that the Plaintiff was not notified of the hearing date prior to Judge Warshaw's consideration of the appeal.
To Consider or decide motion papers and pre-trial pleadings of the Defendant submitted in a timely maner pre-trial on 6/7/2013 and 12/11/2013 the failure of the court (inclusive of Assignment Judge Bookbinder, and Presiding Judge John Call) to ensure that the court rules and procedures were followed by Judge Tomasello, and court staff with regard to my pre-trial pleadings (again inclusive of: my immediate appeal, 6/7/2013 motion for reconsideration, and my 12/11/2013 motion for dismissal).
Notably despite my repeated written and “on the record” requests that the court ensure my due-process rights were upheld by the court staff with regard to my pre-trial pleadings, the court refused to fully investigate and remedy procedural issues created by the court itself, to the detriment of the Defendant (myself). This creates the appearance of partiality and bias of Judge Bookbinder and Judge John Call.
It is my legal position that the court has denied me due-process under the controlling statutes, in addition to substantive due-process. The court has instead burdened me (UNFAIRLY) with the need to file additional motion papers just to have my peviously (timel filed) motion papers considered by the court, AFTER THE COURT ERRONEOUSLY ENTERED A DEFAULT JUDGEMENT WITH OUT DEFEATING OR CONSIDERING THE DEFENDANTS WRITTEN PLEADINGS.
SUMMARY OF ALLEGED CHARGES AGAINST
RONALD E. BOOKBINDER & MARY JACOBSON:
IT IS THEREFORE MY UNFORTUNATE DUTY TO INFORM THE COURT THAT:
I BELIEVE JUDGE BOOKBINDER VIOLATED THE FOLLOWING JUDICIAL CANONS AND FEDERAL STATUTES, WHEN PRESIDING OVER MY LEGAL AFFAIRS AS TRIAL JUDGE / ASSIGNMENT JUDGE:
“Hon.” Ronald E. Bookbinder / Mary Jacobson violated the Judicial canon 2A
“Hon.” Ronald E. Bookbinder / Mary Jacobson violated the Judicial canon 2B
“Hon.” Ronald E. Bookbinder / Mary Jacobson violated Judicial Canon 3A(1)
“Hon”. Ronald E. Bookbinder / Mary Jacobson violated Judicial Canon 3A(6)
N.J.S.A. 2C:30-2 “Official Misconduct” - a third degree charge
N.J.S.A. 2C:30-6 “Pattern of Official Misconduct”
N.J.S.A. 2C:33-4 “Harassment”
18 U.S.C. Section 1341 “Mail Fraud”
18 U.S.C. Sections 241 “Deprivation of Civil Rights”
18 U.S.C. Sections 242, “Pattern of Deprivation of Civil Rights”
Title 42 U.S.C. 1985 “Conspiracy to Interfere with Civil Rights"
DETAILS OF ALLEGED JUDICIAL MISCONDUCT AND CRIMINAL ACTS OF JUDGE RONALD E. BOOKBINDER:
PRE-AMBLE: I have written the below statements because:
I have a deep respect for the courts and the rule of law, and the acts I've witnessed or experienced with respect to Judge Bookbinder and the pattern of misconduct (which began in Mercer County) and continued in Burlington County's Superior Court, is such a perverted / corrupt version of jurisprudence, that it is repugnant to the law itself (including both the N.J. State Constitution, the United States Constitution, and binding precedents of the U.S. Federal Courts and the N.J. Courts)
I owe it to my children, my family, my self, and the N.J. Supreme Court to report the vile misconduct of Judge Bookbinder and other judges associated with the handling of my legal matters.
The acts of Judge Bookbinder and other judges of the Superior Court done under the color of law, but without a basis in the law or the United States Constitution, have severely impacted my personal life, my emotional well-being, and my health generally.
The acts of Judge Bookbinder and other judges of the Superior Court have violated my childen's constitutional rights and my own, and drastically diminished my personal relationship with my two children Benjamin and Vanessa.
While my normal instinct to avoid conflict, I find myself in a position where if I don't speak up for my children's civil rights and my own, then I may find myself divorced from the number one priority in my life – being a father to my amazing children, whom I love more than life itself.
I have never heard or seen a court or court officer act as Ronald Bookbinder's court has, it is most similar to accounts of “Jim Crow” laws I the Southern States during the “Reconstruction Period”. While I can't identify a clear and convincing racial overtone, THE ELEMENTS OF DISCRIMINATION ARE CLEAR AND CONVINCING, AND UTTERLY REPUGNANT.
I am a father with 2-years of positive parenting time records and no substantiated child-abuse, and yet my parental rights have been indefinitely terminated and my legal rights to my children were terminated without counsel being provided. All this occurred after and partly as a result of the court literally prohibiting me from being heard at my own hearings and punishing me / retaliating against me when I attempted to enforce my civil rights or litigation privileges as a pro-se / citizen of N.J. And/or citizen of the United States.
Most importantly and Simply put: I am writing because was denied due-process by officials acting under the color of law, and purportedly with the alleged benefit of judicial immunity (an immunity that has never been ratified by an act of congress).
Lastly: Now, I want redress for this grievance, and I want it to be swift, just, long-lasting, and appropriate.
EXECUTIVE SUMMARY OF THE DETAILS OF RONALD BOOKBINDER'S MISCONDUCT
SORTED BY: JUDICIAL CANON, INCLUDING SPECIFIC ACTS:
(Note: This a partial sumary and reserve the right to amend it)
RONALD BOOKBINDER CREATED THE APPEARANCE OF IMPROPRIETY – A VIOLATION OF CANON 2A – BY:
12/24/2014 Judge Bookbinder admitted to Consulting with a prospective witness in State v. Syphrett (Judge Mary C. Jacobson), to formulate bail conditions and civil restraints while State v. Syphrett was an open legal matter, this violated or is repugnant to the rules of law as prescribed by:
court rule 1:12-1(g); he confirmed his intent to continue such consultations before my 1/6/2014 appearance in court to issue additional orders; and
The tenants of State v. McCabe (N.J. Supra. 2010) & Rivers v. Cox-Rivers, (Supreme court “bright line” rule); and
recedents set by the Supreme Court / Chief Justice Rabner in: “The Matter of Stephen Perskie (a former judge)”, and by other acts, and the totality of the related statements of fact; and
Displaying prejudice against the Defendant in State v. Syphrett and ordering Mr. Syphrett be escorted by sheriff's when appearing at the court facility, despite the fact that Judge Bookbinder had ruled 12/24/2013 that Mr. Syphrett was not a threat to self, others, or property.
Additionally, the order for escort by the Sheriff's was issued ex-parte and only put in a court order and communicated to the defendant after such escorting had been actively implemented for several days without any order being served upon Mr. Syphrett; and
Issuing Civil Restraints (2/6/2014, 2/19/2014, 3/10/2014) against the Defendant without the state / Judge Bookbinder producing any evidence, witnesses, or testimony as a “burden of proof”, and this being contrary to the U.S. Supreme court ruling in Elrod v. Burns (U.S. Supreme Court 1976); and
Issuing civil restraints (2/6/2014, 2/19/2014, 3/10/2014) that obstructed the Defendant's right to appear at his own trials, and that obstructed discovery, and litigation tactics and strategies of the Defendant by limiting the Defendant's ability to communicate with the Mercer County Judiciary to get information and/or contact potential witnesses, and /or to investigate receive discovery in civil dockets that Mr. Syphrett was litigating pro-se; and
Issuing court orders (2/19/2014, 3/10/2014) that the Defendant could not speak to the Burlington Superior Court Ombudsman and that the Ombudsman could not speak to Mr. Syphrett, without first notifying / serving / providing legal notice to Mr. Syphrett for a week or more after such order was explained to Mr. Syphrett by the Ombudsman.
Note this order was later served to the Defendant about a month after it was actively in place. No hearing was conducted or findings of fact explicitly supporting this order were placed on the record prior to the order prohibiting the Mr. Syphrett / Ombudsman from communicating was actively enforced.
Other acts described in the statement of facts (On following pages herein)
RONALD BOOKBINDER CREATED THE APPEARANCE OF IMPROPRIETY – A VIOLATION OF CANON 2B – BY:
creating the appearance that Mary C. Jacobson was in a special position of influence with regard to State v. Syphrett's (with the cooperation and / or complicity of Mary C. Jacobson) bail conditions and / civil restraints (which were issued and/or amended on the dates of: 2/6/2014, 2/19/2014, and / or 3/10/2014) despite the fact that Mary C. Jacobson was consulted as a witness in the criminal investigation underlying State v. Syphrett 8/15/2013 being a witness in the underlying state criminal investigation for “State v. Syphrett” (Note Mary C. Jacobson's involvement was documented in government documents furnished by Kristina Chubenko of the Mercer County Office of Counsel. The document provided by M.s Chubenko is identified as “Investigative Report”, denoted as being for Incident # I-2013-02776, the originating institution and person associated with this document are: Mercer County Sheriff's Office, Det. Paul Toth, respectively).
Further creating the appearance that Mary C. Jacobson was in a special position of influence by making statements on the record about his consultation with Mary C. Jacobson about the bail conditions, and civil restraints issued in legal matters pertaining to Mr. Syphrett. Comments supporting this alleged fact, include comments from Judge Covert during the first status hearing of 2014 in State v. Syphrett where Mr. Syphrett was present.
Creating the appearance that Judge Bookbinder was in a special position of influence in State v. Syphrett after Judge Bookbinder ceased presiding over the case and while Judge Covert presided over State v. Syphrett by: instructing Judge Covert to issue bail conditions based in part on: Judge Bookbinder's ex-parte communications with Mary C. Jacobson. The contents of such communications between Bookbinder and Jacobson were concealed from both the defendant and prosecutor in State v. Syphrett.
“HON.” RONALD E. BOOKBINDER, VIOLATED JUDICIAL CANON 3A(1) BY:
Demonstrating a lack of competence in the law by:
Actions enumerated above in items 1-2, which were contrary to the law, court rules, judicial canons, and in a manner that was contrary to the law and precedents of the Supreme Court / Chief Justice as described in both: (1) The Matter of M.J. DiLeo and (2) The Matter of Stephen Perskie.
Admitting on the record during status hearings that he was unfamiliar with the binding precedents of Haines v. Kerner (U.S. Supreme Court 1972) and Elrod v. Burns (U.S. Supreme Court 1976).
Issuing court orders / void court orders that violated Mr. Syphrett's Constitutional rights as defined by the bill of rights (including the 14th Amendment).
Sending letters to Mr. Syphrett on April 22, 2014 and / or May 6, 2014 where Ronald Bookbinder clearly and convincingly stated that his court ordered civil restraints were legally valid court orders (issued lawfully), when by law they were not.; and/or
Notably the civil restraints Judge Bookbinder issued ran contrary to the 14th Amendment because they restrained Mr. Syphrett from appearing in court even on dates when Mr. Syphrett was scheduled for trial, and they provided no safeguards to ensure that Mr. Syphrett would ALWAYS be allowed in court on the dates of his own trials; and / or
The civil restraints of Mr. Syphrett's communications with the court and / or the order requiring that Mr. Syphrett could not submit anything “contrary to the court rules” was in fact a order that was not permissable under the law due to the U.S. Supreme Court rulings in Picking v. Pennsylvania, Haines v. Kerner, and the Third Circuit ruling in Todaro v. Bowman, where such higher courts clearly and convincingly found that pro se litigants are permitted to interact with the court in a manner that may at times be contrary to the court rules AND court procedures; and /or
The Supremacy Clause of the United States Constitution and the interpretation of the same by higher courts, clearly prohibit lawful judges (whom are likewise constrained by their oath of office to uphold the United States Constitution) from: engaging in activities / issuing orders that are contrary to the United States Constitution; and/or
Sending letters to Mr. Syphrett on April 22, 2014 and / or May 6, 2014, which purported that the final court order in FM-03-790-14 were legally “valid” court order, despite the fact that the order resulted from a trial that was conducted ex-parte in part, and with Mr. Syphrett restrained from appearing at parts of the trial while ex-parte testimony was taken without an opportunity for cross-examination. (Note: when cross-examination was requested at trial before Judge Tomasello, Mr. Syphrett's objection / request was denied) This was a denial of due process.
The letters likewise represent acts of “mail fraud” in that the letter was sent to Mr. Syphrett and the Burlington County court administrators, probation department, etc – AND - the letter permitted the enforcement of a “child-support” order whereby enforcement would definitively deprive Mr. Syphrett of property (money) and / or other things of value.
Further these letters purported that the final order enables the Burlington County probation Dept to regulate interstate commerce. Note so called “child-support” has been recognized by higher courts as interstate commerce when the payer lives in a different state than the recipient / children. See United States v. Lopez
By demonstrably violating Judicial Canon 3A(6) and / or court rule 1:12-1(g) and/ or substantial body of common-law by engaging in ex-parte communications and issuing ex-parte court orders in orders captioned to be for 3 civil dockets and 1 criminal matter involving Mr. Syphrett.
Judicial Canon 3A(6) prohibits lawful, ethical judges from doing the same in similar matters.
NOTE: There is N.J. Supreme Court / A.C.J.C. / Chief Justice Stuart Rabner precedent for disciplining similarly situated judge(s) and/or conduct:
The impropriety of the acts described in this sub-paragraph have resulted I sanctions – see the decision final order related to “In the Matter of Stephen Perskie” (a former judge. See Also: court rule 1:12-1(g)
“Hon”. Ronald E. Bookbinder violated Judicial Canon 3A(6) by:
Participating in the above referenced ex-parte communications (see enumerated items above 1-3); and
Issuing court orders that the Defendant could not speak to the Burlington Superior Court Ombudsman and that the Ombudsman could not speak to Mr. Syphrett, without first notifying / serving / providing legal notice to Mr. Syphrett for a week or more after such order was explained to Mr. Syphrett by the Ombudsman.
Note this order was later served to the Defendant about a month after it was actively in place. No hearing was conducted or findings of fact explicitly supporting this order were placed on the record prior to the order prohibiting the Mr. Syphrett / Ombudsman from communicating was actively enforced.
repeatedly initiating ex-parte communications with the Defendant, the Plaintiff's in FM-03-790-14, without copying all interested parties. These actions included:
Status hearings without all interested parties noticed or appearing
court orders that were not simultaneously served to all interested parties and/or all “REAL” parties to the legal matters captioned in the court orders
sending mail regarding proceedings without copying all interested parties.
I FURTHER ALLEGE JUDGE RONALD E. BOOKBINDER'S CONDUCT AND ORDERS REPRESENT VIOLATIONS OF N.J. AND FEDERAL STATUTES INCLUDE:
N.J.S.A. 2C:30-2 (“Official Misconduct”)
18 U.S.C. Sections 241 (“Official Deprivation of Civil Rights”)
N.J.S.A. 2C:30-6 (“Pattern of Official Misconduct”)
18 U.S.C. Sections 242, (“Pattern of Deprivation of Civil Rights”)
Title 42 U.S.C. 1985 (“Conspiracy to Interfere with Civil Rights”)
N.J.S.A. 2C:33-4 (“Harassment”)
VIOLATIONS OF ENUMERATED ITEMS laws listed as: 5(a) & 5(b)
Ronald E. Bookbinder violated N.J.S.A. 2C:30-2, “Official Misconduct”, IN THE THIRD DEGREE, AND 18 U.S.C. 241, by abusing the power of his office in a manner that had no basis in law and violated the constitutionally protected rights of Mr. Syphrett. (For specifics see the below paragraphs detailing violations of this statue and 18 U.S.C. Section 241:
Ronald Bookbinder violated 18 U.S.C. 241 Specifically:
On 2/6/2014 Ronald Bookbinder issued civil restraints that violated the “law” as ordained in Haines v. Kerner (U.S. Supreme Court 1972), the judicial canons (as detailed above) in a manner that represents an abuse of his official office as a judge and as a trial court administrator under court rule 1:33. The violations included consultation / conspiracy with other court employees and therefore judicial immunity is waived, in addition to the acts described above and below being violatins of his administrative capacity.
Notably part of the civil restraints (of 2/6/2014 and subsequent orders for restraints) prohibited Mr. Syphrett from appearing in court, even if he had trial scheduled in court. Other parts of the civil restraint order.
Part of the civil restraint order of 2/6/2014 and afterwards prohibited Mr. Syphrett from submitting filings that were “contrary to the court rules”, despite the fact the United States Supreme court has long held that a pro se litigant like Mr. Syphrett is permitted to communicate with the court in manners that are contrary to the court rules and court procedure (see Haines v. Kerner U.S. Supreme Court 1972, and Iqbal v. Ashcroft 2009).
The original civil restraints of 2/6/2014 also prohibited Mr. Syphrett from speaking telephonically to any Judge in Mercer county, even if Mr. Syphrett needed to access the court as a domestic violence victim or for any other matter where Mr. Syphrett may have been a victim of a crime. This violates the constitution of the united states as it would have been a denial of Mr. Syphrett's access to the court.
Notably, when Mr. Syphrett asked the court to take judicial notice of Haines v. Kerner and Elrod v. Burns because those cases clearly indicated that both the substance of Ronald Bookbinder's 2/6/2014 court order, and the substance of several of the orders was in violation of “the law”, Judge Bookbinder refused to acknowledge the law or act within the confines of the law as is required by the Judicial Canons, the oath of office, and the limits of the power of his office.
No reasonable judge would have acted as Judge Bookbinder acted. Judge Bookbinder for whatever reason chose to discriminate against the Mr. Syphrett and violate his civil rights without regard to the harm that could be done to Mr. Syphrett, Mr. Syphrett's legal matters, and / or Mr. Syphrett's relationship with his children.
Mr. Syphrett repeatedly advised Judge Bookbinder of binding common-law such as Haines v. Kerner and Elrod v. Burns to remind Judge Bookbinder that he had violated the law and issued orders that were legal nullities and / or void. Despite this Judge Bookbinder issued additional civil restraints date stamped as: 2/11/2014, 2/19/2014, and 3/10/2014, and 3/11/2104, all of these restraints violated Mr. Syphrett's rights.
Ronald Bookbinder's ex-party consultation with Mary C. Jacobson (a witness in the investigation underlying State v. Syphrett, and presumed trial witness) was inappropriate and destroyed the appearance of a fair, unbiased court, when Judge Bookbinder sat and presided over State v. Syphrett. Further Ronald Bookbinder's instructions to Judge Covert with regard to bail restraints were based, at least in part, on his consultation with Mary C. Jacobson, according to Judge Covert (on about 1/6/2014 at a status hearing). Ronald Bookbinder, abused his position and created the appearance that he was in a special position of influence in State v. Syphrett, even after he ceased being the presiding judge in that matter. This was an abuse of his office.
Ronald E. Bookbinder issued civil restraints without producing any evidence, witnesses, or fist person testimony to support the issuance of the civil restraints on Mr. Syphrett. The civil restraints among other things ordered that Mr. Syphrett could not appear in the court facility in Burlington County, and in the prima facie did not allow Mr. Syphrett to appear in court even on dates when Mr. Syphrett had trial dates set (including 2/18/2014 and 2/19/2014). This violated both the N.J. Constitution and the United States Constitution with regard to Mr. Syphrett's right to access the court and to be tried an a manner consistent with the 14th Amendment (with due-process). This was an abuse of Ronald Bookbinders office and official capacity.
Around 2/12/2014 Sharyn Sherman informed me via telephone that Ronald E. Bookbinder told Sharyn Sherman, Esq, (a court employee) that Mr. Syphrett was to be escorted throughout the court house. Ronald Bookbinder also told the Sheriff's Office of Burlington County to escort Mr. Syphrett throughout the court house via a court order that was not issued in open court and that was issued ex-parte. Notably these conditions were not part of the court ordered bail conditions in State v. Syphrett as entered into the record prior to 2/6/2014, nor were these conditions entered into the record prior to 2/19/2014. The Sheriff officers in the court then began to delay Mr. Syphrett's entrance into the trial court for FM-03-790-14, FM-03-1162-14, by detaining Mr. Syphrett in the lobby until an officer was available to escort him to his trial dates. This escorting began without due-process and Sheriff officer Potts'and others stated Judge Bookbinder had ordered it, without disclosing the same to Mr. Syphrett until late February or early March. This was an abuse of Ronald Bookbinder's Office and official capacity.
Oddly, Sharyn Sherman informed MR. Syphrett by phone that she believed Mr. Syphrett had threatened to kill a Judge. Mr. Syphrett told her that was not true and that the charges in state v. syphrett were false. Mr. Syphrett then asked how Sharyn Sherman (a family court employee) came to misconstrue Mr. Syphrett's past behavior, or became familiar with the underlying issues in State v. Syphrett (a criminal case), Sharyn Sherman explained she'd been told Mr. Syphrett threatened to kill a judge by Judge Bookbinder. Notably Mr. Syphrett was never tried for any such charge, all charges related to State v. Syphrett were dismissed 4/17/2014.
Ronald E. Bookbinder had ordered Mr. Syphrett's release in State v. Syphrett and stated that he did not believe Mr. Syphrett to be a threat to self, others, or property based on the expert opinion of two medical doctors. Yet Ronald Bookbinder issued court orders to have Mr. Syphrett escorted throughout the court house as if he was a threat to self, others, or property. THIS WAS A BIZARE ABUSE OF RONALD BOOKBINDER'S OFFICE.
NOTE: THERE ARE VIOLENT CRIMINALS, FELONS (rapists, accused murders etc) that are allowed to enter the Burlington County Court without escorts, yet Mr. Syphrett a man without any felony convictions, and a man presumed to be innocent under the law was ordered to be escorted throughout the court by Ronald Bookbinder, in a manner that appears to be arbitrary, capricious, and discriminatory.
THE RESTRAINTS AND ESCORTS IN THE COURT SEEMED TO BE ISSUED SIMPLY TO EMBARASS, HARASS, AND OBSTRUCT MR. SYPHRETT'S ABILITY TO ACCESS RELEVANT PARTS OF THE COURT AND RELEVANT RESOURCES.
Ronald Bookbinder, purportedly issued a court order denying Mr. Syphrett access to the Ombudsman Mr. Thompson (“chip”) without informing Mr. Syphrett of the same, until Mr. Syphrett reported the issue to Ronald Bookbinder, and only after an order had already been issued ex-parte, was Mr. Syphrett made aware of the existence of the order. Prior to Mr. Syphrett complaining that the Ombudsman told him that there was a court order restraining Mr. Syphrett from speaking to the Ombudsman, did Ronald Bookbinder address the issue on the record. Again the restraints were entered into a court order without any witnesses or evidence being presented in open court to support the same.
The civil Restraints issued on 2/6/2014 and those that came after all restrained Mr. Syphrett from calling court employees. THIS OBSTRUCTED MR. SYPHRETT'S ABILITY TO TIMELY ORDER TRANSCRIPTS OF HIS OWN TRIALS, BECAUSE IN BURLINGTON COUNTY EVEN WHEN ONE APPEARS IN COURT, A COURT CUSTOMER MUST CALL THE OFFICE FOR TRANSCRIPTS FROM THE LOBBY ON THE 5TH FLOOR, THERE IS NO OTHER WAY TO SUMMON THE PEOPLE IN THAT OFFICE. At times Mr. Syphrett's trial schedule / lateness in the day, etc made it impossible to communicate with the court employees who controlled the distribution of audio transcripts. Judge Bookbinder's restraints at times fully obstructed Mr. Syphrett's ability to order transcripts in a timely manner. Even if Mr. Syphrett called Judge Bookbinder's chambers or Sharyn Sherman when permitted to do so, it at times involved a process of steps that delayed the production of transcripts or resulted in Mr. Syphrett finding out that Sharyn Sherman or Judge Bookbinder was unavailable, and thus Mr. Syphrett had no access to the court audio transcripts, due to the civil restraints Ronald Bookbinder issued.
When Mr. Syphrett complained to Judge Bookbinder about feeling harassed by the court escorting, or not being able to contact the Ombudsman. Judge Bookbinder insisted that Mr. Syphrett talk to Judge Tomasello, or file a motion in order to have his constitutional rights restored. This was rude, demeaning, and burdensome, it was also contrary to the interest of justice and the appearance of fair trials in Burlington for Mr. Syphrett.
THE AFOREMENTIONED ISSUES (a) thru (f) (or any combination of the aforementioned alpha-numerically noted issues) represent a “PATTERN OF OFFICIAL MISCONDUCT” , acts that represent an unlawful discharge of Ronald Bookbinder's official capacity. As such this is a third degree violation of N.J.S.A. 2C:30-6, in the third degree.
.
THE AFOREMENTIONED ISSUES REPRSENT ACTS OF HARRASSMENT, IN THE (violations of N.J.S.A. 2C:33-4, because Mr. Syphrett was shocked, annoyed and upset to see Ronald Bookbinder acting as a tyrant without regard to the law, rather than a lawful judge.
6. THE AFOREMENTIONED ACTS DETAILED IN (a) thru (f) also represent VIOLATIONS OF FEDERAL LAW U.S.C. 18, section 241 and section 242.
(a) By the acts detailed in the prior paragraph and sub-paragraphs)
(b) Clearly and Convincingly (on the record) demonstrating a striking incompetence / lack of knowledge with regard to the United States Constitution and binding common law that affects about 50% of the litigants in his civil court rooms, because most litigants in civil matters proceed pro-se, just like me).
(c) In addition this Statement of Facts will provide details and cite court records that indisputably suggest Judge Bookbinder committed punishable by state and federal statutes for color of law abuses (crimes so outrageous that the law waives Judicial Immunity under 42 U.S.C., 1985).
JUDGE JACOBSON VIOLATED THE JUDICIAL CANONS REFERENCED IN THE “SUMMARY SECTION OF THIS BRIEF” BY:
Consulting with Judge Bookbinder after participating in State v. Syphrett's criminal investigation and becoming a prospective witness for the case. This appears to violate Judicial Canon 2.
Participating in ex-parte communications regarding the Defendant's legal matters without divulging the nature of these commuications to the litigants or the State.
JUDGE TOMASELLO VIOLATED Court rule V and Court Rule 4:43-1 thru 4:43-4, and my due process rights when:
he issued a default in FV-03-1154-14 without reviewing my “answers” / pleadings / motions in limine which were timely filed with the court on 3/1/2013. 6/7/2013, and 12/11/2013.
he failed to take sua sponte action after being informed that he had decided the issue with out considering my pleadings or my statutory right to an immediate appeal.
II.
LEGAL ARGUMENT SUPPORTING MY DENIAL OF COMMON-LAW CONSENT FOR A RETIRED JUDGE TO DECIDE MY LEGAL AFFAIRS.
Below:
I have submitted to this court: the verbatim words of Judge Jonathan Harris, J.A.D., from:Hon. Jonathan Harris's dissent in State of New Jersey v. James Buckner (“State v. Buckner”), Decided by the New Jersey Appellate Division, on May 5, 2014).
The legal issues and questions presented by the Hon. Jonathan Harris, J.A.D., were beyond the scope of the legal questions and issues raised by James Buckner in his appeal as the majority noted in its decision.
As such the legal questions I am now putting before the court are matters of first impression which have not previously been raised by any litigant in the state of New Jersey.
Further:
I hereby declare that I concurrence with Judge Harris's dissent and I offer his dissent as my legal argument in some of the paragraphs which follow.
As Judge Harris recommended in “State v. Buckner”:
I cautiously express and invoke my right to disagree with the New Jersey Appellate Division, the New Jersey Supreme Court, and the New Jersey Superior Court's view with regard to constitutionality of a retired Recall Judge “acting” as a Superior Court Judge without the express consent of the public or our elected representitatives.
Further Still:
I add to Judge Harris's dissent and/or legal argument – herewith increasing the number of legal questions and issues of first impression for the court to consider.
Due to the above I affirmatively request that the legal questions and issues raised in this letter brief should be decided by the New Jersey Supreme Court. I affirmatively request that the trial Judge / Assignment Judge in this matter “pass up” these constitutional legal questions to the New Jersey Supreme Court for consideration / consultation with regard to the constitutional issues raised herein.
The legal arguments I have added to those of Hon. Jonathan Harris, J.A.D. Include:
In arguendo: even if I were to accept contrary arguments by the court that the common-law provides judicial immunity / quaisi-judicial immunity or to a person who sits and acts as a judge with implied or express consent of the “real” legal parties to any dispute. Such a circumstance would still not defeat my affirmative pleading in this brief THAT:
I DO NOT CONSENT to Judge Tomasello sitting as a “judge” or “acting” as a judge in any of my legal affiars NOR DO I CONSENT TO ANY RETIRED JUDGE “acting” as a judge in any of my legal affairs.
As such a circumstance exists where the neither the New Jersey Constitution or a real party to this legal dispute provide consent for a retired / recalled Judge to “sit” and “act” as a Superior Court Judge in this matter.
My denial of consent and my legal argument is based on the legal foundation of:
Judge Jonathan Harris's well-reasoned legal opinion that Neither the Supreme Court or the Legislature alone have the constitutional authority to appoint a judge to the Superior Court of New Jersey without the consent of the real parties, which, such a “ judge” purports to have jurisdiction over, visa vi the jurisdiction of the Superior Court of New Jersey.
My affirmative common-law demand before the court is that this legal matter shall be presided over by an fair, impartial, ACTIVE (not retired) Judge of the Superior Court, AND that I deny common-law consent for a retired Judge to decide my legal matters.
Further as I have addressed in my motion papers court rule 1:12-1 has been offended / violated during the proceedings in Burlington County. Specifically such Judge must be free from any appearance of partiality or bias. As such I reiterate my demand that my legal affairs be transferred to another Superior Court Vincinage beyond the influence of either Judge Bookbinder or Judge Call.
III. LEGAL ARGUMENT IN SUPPORT OF
DEFENDANT'S DISCOVERY OF ABBREVIATED TRANSCRIPTS AT COURT COST & A STAY OF THE FINAL ORDER IN FM-03-790-14
In support of my request for the transcripts for FM-03-790-14, the discovery of the same may be necessary for me to obtain in order to prevail on the merits of the matter and legal arguments now before the court. Further I wish to file a appeal to the Appellate Division if relief is not granted at the trial court level or by decision of the New Jersey Supreme Court with regard to this letter brief and its underlying petition for remedial action by the Superior Court.
In support of my request for transcripts I cite the decisions with regard to providing equal justice to indigent litigants pursuant the U.S. Supreme court decisions in:
M.L.B. V S.L.J. 519 U.S. 102117 S.Ct. 555,,136 L.Ed.2d 473, at No. 95-853. (1996)
Griffin v. Illinois, U.S. Supreme Court, 1956
Boddie v. Connecticut, U.S. Supreme Court 1971
In these cases it was decided that an indigent litigant who faces consequences of magnitude should be provided transcripts at the court cost and all court fees should be waived if they serve as an impediment or obstruction to the pursuit of justice.
Notably in the matter of FM-03-790-14 my relationship with my children was severed by the final order of Judge Tomasello indefinitely / forever.
As such I cite: M.L.B. v. S.L.J. which in part includes the United States Supreme Court Concluded:
“the loss of a parent's relationship with her children was of such ''magnitude and permanence'' as to make it ''barely distinguishable from criminal condemnation,'' and was therefore covered by the Court's precedents that removed financial barriers to criminal appeals.:
My ability to appeal in time or out of time is obstructed by my inability to afford the transcripts related to the ~19 days of trial in FM-03-790-14.
The combination of my poverty, Post-Traumatic Stress, and financial condition has to date prevented my ability to obtain the transcripts which will support my position that the proceedings in FM-03-790-14 were unjust, to the point of offending the concept of justice itself.
IV.
LEGAL ARGUMENT SUPPORTING:
CONSTITUTIONAL CHALLENGE TO RETIRED JUDGES BEING RECALLED TO SERVICE – A MATTER OF FIRST IMPRESSION
I HEREWITH SUBMIT:
THE DISSENT FROM STATE V. BUCKNER AS MY ARGUMENT SUPPORTING THE ABOVE CONSTITUTIONAL CHALLENGE:
And I quote [with editorial inputs to style and form only]:
“I. Warning: the elegantly pragmatic approach of the able and well-researched opinion of my colleagues may seduce the reader into undiscerning agreement. I urge caution and a willingness to disagree.
The majority endorses the thirty-nine-year utilization of Section 13(b) of the Judicial Retirement System Act (the JRSA), N.J.S.A. 43:6A-1 to -47, as a proper source, and apt means, of conferring judicial power upon septuagenarians who once were Superior Court15 judges but "retired on pension or retirement allowance" and are then "recalled by the Supreme Court for temporary service within the judicial system other than the Supreme Court." N.J.S.A. 43:6A-13(b). Those familiar with our publicly funded system of dispute resolution recognize that such recall judges "serve[] the people of New Jersey with skill, diligence and integrity." DePascale v. State, 211 N.J. 40, 93 (2012) (Patterson J., dissenting). Alongside active judges, this grey-haired army of retiree jurists cloaked yet again with their former sovereign authority by N.J.S.A. 43:6A-13(b) and -13(c) reliably deliver tangible benefits for "real parties and actual people who are trying to vindicate their rights as they await justice." Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 340 (2010) (Rabner, C.J., concurring).
THE PROBLEM:
however, is that the statute and, inescapably, the long-standing practice of deploying recall troops for temporary judicial service are both unconstitutional.16 Accordingly, I dissent.
[DEREK SYPHRETT HEREBY: JOINS WITH THE DISSENT AND CHALLENGES constitutionality of Judge Tomasello sitting as a judge in this matter for the same reasons expressed above and below:]
II.
A.
The standard of review that governs this case is formidable: has defendant James Buckner demonstrated, beyond a reasonable doubt, see Gangemi v. Berry, 25 N.J. 1, 10 (1957), that Article VI, Section 6, Paragraph 3 of the New Jersey Constitution (the Judicial Retirement paragraph) was intended by its framers and the people who adopted it in 1947 to not permit the Legislature to authorize reinstatement of this state's judicial power to pensioner judges?17 Because the enabling legislation N.J.S.A. 43:6A-13(b) that purports to accomplish this (1) offends the plain "shall be retired upon attaining the age of 70 years" language of the Judicial Retirement paragraph, and (2) irreparably rends the Constitution's fabric of separation of powers by legislatively authorizing the Supreme Court rather than the Governor to make the selection decisions to implement recalls, the high threshold of presumptive constitutionality has been surmounted.
Even with awareness of the admonition that it is the "policy of our law not to invalidate a statute which has been in force without substantial challenge for many years," I cannot stand mute when a statute's unconstitutionality is obvious.
In re Loch Arbour, 25 N.J. 258, 265 (1957). "It is a familiar rule of construction that where phraseology is precise and unambiguous there is no room for judicial interpretation or for resort to extrinsic materials. The language speaks for itself, and where found in our State Constitution the language is the voice of the people." Vreeland v. Byrne, 72 N.J. 292, 302 (1977); see also The Federalist No. 78 (Alexander Hamilton) ("[T]he Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents."). In the present case, I see nothing that permits the placement of executive powers within the orbit of our highest court. The law, while arguably well-informed and foresighted from a policy standpoint, cannot withstand constitutional scrutiny, and we should say so, even after almost four decades of going unchallenged.19 See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L. Ed. 60, 73 (1803) ("It is emphatically the province and duty of the judicial department to say what the law is.").
B.
The majority observes that the Judicial Retirement paragraph licenses the practice of recalling post-age-seventy former judges because it "does not bar a retired judge from being recalled for temporary service." Ante at ___ (slip op. at 26). However, nothing in the Constitution authorizes it. Does the majority believe that, in the absence of enabling legislation, the Constitution's silence would permit, hypothetically, the implementation of an ad hoc recall-of-retired-judges system by, say, the Supreme Court on its own initiative, or the Governor through an Executive Order, or the Legislature by joint resolution? I doubt it. Thus, the essence of the present analysis focuses not just upon what is left unsaid by the Constitution, but also upon the question of whether the particular statute is a valid exercise of legislative power.
I start with the language of the Constitution's Judicial Retirement paragraph, which, in pertinent part, states the following:
The Justices of the Supreme Court and the Judges of the Superior Court shall hold their offices for initial terms of 7 years and upon reappointment shall hold their offices during good behavior . . . . Such Justices and Judges shall be retired upon attaining the age of 70 years. Provisions for the pensioning of the Justices of the Supreme Court and the Judges of the Superior Court shall be made by law.[N.J. Const. art. VI, 6, 3 (emphasis added).]
The plain language of the Judicial Retirement paragraph must be construed with thorough attention to the framers' choice of language, noting not only what they included, but also what they excluded from the document presented to, and approved by, the people in November 1947. "The polestar of constitutional construction is always the intent and purpose of the particular provision." State v. Apportionment Comm'n, 125 N.J. 375, 381 (1991). Although a literal reading of a constitutional declaration may be rejected when it is inconsistent with the spirit, policy, and true sense of the declaration, Lloyd v. Vermeulen, 22 N.J. 200, 205-06 (1956), "'the words employed [in the Constitution] have been carefully measured and weighed to convey a certain and definite meaning, with as little as possible left to implication . . . .'" Apportionment Comm'n, supra, 125 N.J. at 382 (citation omitted).
The phrase "shall be retired upon attaining the age of 70 years," simply connotes (1) the compulsory abdication of a judicial office; (2) the surrender of judicial power previously conferred by N.J. Const. art. VI, 1, 1; and (3) the permanent loss of the ability to exercise for the benefit of the public the sovereign functions of government that had previously been made possible by the Governor's selection, with the advice and consent of the Senate. See N.J. Const. art. VI, 6, 1.
To support its reading of the Judicial Retirement paragraph, the majority correctly quotes several vintage definitions of "retire." Ante at ___ (slip op. at 27-28). But the majority's chosen dictionary definitions still fail to illustrate the source of recall authority. Absent express constitutional authorization, the definitional silence is a very thin reed indeed to support the awesome renewal of judicial power to those who formerly wielded it.
I conclude that there is nothing about the plain language of the Judicial Retirement paragraph that supports the majority's view. Alternatively, the majority "discern[s] a clear, compelling distinction between the proscriptive language in the Schedule Article against 'hold[ing] office' and the 'shall be retired' terminology used in the Judicial [Retirement paragraph]." Ante at ___ (slip op. at 26-27). This is comparing apples to oranges.
The majority favorably contrasts the proscriptive use of language in the Schedule Article "[n]o Justice of the new Supreme Court or Judge of the Superior Court shall hold his office after attaining the age of seventy years," N.J. Const. art. XI, 4, 1 with the mere mandatory retirement language of the Judicial Retirement paragraph "[s]uch Justices and Judges shall be retired upon attaining the age of 70 years." N.J. Const. art. VI, 6, 3. Ante at ___ (slip op. at 26). In the former phrase, where the framers used the word "office," it was clearly limited and intended to punctuate the end of incumbency under the 1844 constitutional framework for those pre-modern-era judges who had transitioned to the Superior Court. The latter phrase was intended to deal with the new regime, and cannot be seen as keeping the door open for temporary recall where its object was to strip judges of their judicial authority at midnight immediately preceding their seventieth birthday.
Another reason why the majority discounts the significance of the absence of express recall authority in the Judicial Retirement paragraph is its interpretation of the provision's evolution. I concede that the majority opinion accurately analyzes the 1947 proceedings of the Constitutional Convention, as far as it goes. In my view, however, it does not go quite far enough. The majority assumes that the Constitution's final-draft silence with respect to recalling retired judges on an as-needed basis was in accord with the generalized philosophy that a constitution should deal with fundamental principles, not details. This is not only speculative, but also it is belied by the twenty-five-year span (1948 to 1973) that immediately followed the Constitution's adoption, during which there was no recall legislation and no recall judges.
During the constitutional sausage-making that took place in New Brunswick in the summer of 1947, the Constitutional Convention's Committee on the Judiciary participated in hours upon hours of spirited exchanges about court unification; the judicial selection process; trial periods for new judges and tenure; the appropriate age, if any, for a judge's compulsory retirement;20 and judicial pensions. Yet, there were only a scant few minutes, best characterized as stray comments, devoted to conversations about the use of retired jurists as temporary judicial officers in the proposed new, unified court system. See 4 Proceedings of the Constitutional Convention of 1947 at 168-69; 190; 214-15. On July 30, 1947, one speaker, retired judge Robert Carey21 (also a Convention delegate and member of the Committee on Rights, Privileges, Amendments and Miscellaneous Provisions), while constructively criticizing the Committee on the Judiciary's age-seventy retirement proposal, stated:
Why, most men don't get high judicial positions until after they are 58 or 60, and they are 70 before they know it. To put them on the shelf then, or to make them law loafers of the State, what a mistake that would be! I'd say 75 at the lowest, and after 75 retire them. And then put them on the inactive list subject to the call of the Chief Justice, whoever he may be, at all times.
[4 Proceedings of the Constitutional Convention of 1947, supra, at 543 (emphasis added).]
Carey's suggested retirement age was not adopted, and I submit that his recall-equivalent "inactive list" proposal was likewise consigned to the constitutional trashbin.
The framers' failure to devote much attention to a temporary recall provision is understandable; they were struggling with much larger and more complex issues at the time. Nevertheless, the subject of post-retirement judicial service was clearly known to them. Among the sources of information made available to members of the Committee on the Judiciary during their seventeen days of meetings were fifty-five witnesses, plus "some two dozen persons" who presented their views on the Committee's tentative draft of the Judicial Article, together with a wealth of written reports, monographs, and position papers. Among the writings are the proposal of the New Jersey Committee for Constitutional Revision, which included a provision "for mandatory retirement at age 70, . . . subject to possible recall to temporary service as need may appear," 4
Proceedings of the Constitutional Convention of 1947, supra, at 580; 28, and a small mention in a June 5, 1947 New Jersey Law Journal editorial. See id. at 677. Leaving a recall provision out of the Constitution was neither an inadvertent oversight nor a nod towards simplicity of draftsmanship.
The majority accurately recounts the evolution of the Constitution's Judicial Article from the May 1942 report of the Commission on Revision of the New Jersey Constitution (the Hendrickson Commission) up to the Judicial Article's actual drafting in 1947. Ante at ___ - ___ (slip op. at 4-7). Also, the majority rightly notes that the 1944 Legislature modified and supplemented the Hendrickson Commission's recommended judicial retirement language from
No justice or judge of any court shall continue in office after he has attained the age of seventy years.
[4 Proceedings of the Constitutional Convention of 1947, supra, at 562 (proposed art. V, 5, 3)]
to
No Justice of the Supreme Court or of the Superior Court shall continue in office after he has attained the age of seventy years; but, subject to law, he may be assigned by the Chief Justice to temporary service in the Supreme Court or in the Superior Court, as need appears.
[Id. at 569 (emphasis added) (proposed N.J. Const. of 1944 art. V, 5, 5).]
However, after observing that the people soundly rejected the proposed 1944 Constitution at the polls, the majority deems it "[s]ignificant[]" that "there is no indication in any of the historical sources, including the Proceedings on the Constitutional Convention of 1947, that the voters had objected to the recall of retired judges." Ante at ___ (slip op. at 7).
What is significant is not the conjectural objection of putative voters, but rather, it is that the 1947 framers purposefully elected to omit the twenty-seven words22 that would have validated the present recall contrivance. The majority chalks up the loss of this phrase to the principle of constitutional minimalism, but I fail to see how the addition of these utterly unassuming words would have violated Governor Driscoll's call for "limiting our State Constitution to a statement of basic fundamental principles." 1 Proceedings of the Constitutional Convention of 1947 at 7.
The framers, and the people, had no problem including detailed managerial features in the Judicial Article, such as the appointment of an Administrative Director to serve at the pleasure of the Chief Justice, see N.J. Const. art. VI, 7, 1; provisions for the Chief Justice's assignment of judges to the various Divisions of the Superior Court, see N.J. Const. art. VI, 7, 2; and authorization for the Supreme Court to appoint Clerks for the Supreme and Superior Courts. See N.J. Const. art. VI, 7, 3. If these provisions were deserving of inclusion in the Constitution, then a provision for recalling retired judges beyond seventy years of age was equally constitution-worthy.
Accordingly, I conclude that the excision of recall-authorization language that had appeared in the failed 1944 Constitution was purposive, even though there is no express record of its rejection in the public annals of theCommittee on the Judiciary.23 Because the authority to recall retired judges never made it into the Constitution, it may not be invoked sub silentio, legislatively or otherwise.
This conscious decision to omit a provision for the recall of judges is bolstered by the Constitutional Convention's rejection of a proposed amendment to the Committee's final draft of the Judicial Article, its so-called Proposal No. 4-1, which included a recall provision. That failed amendment, introduced by Committee member, retired Chief Justice Thomas J. Brogan, contained among its myriad adjustments, in pertinent part, the following:
Such Justices or Judges shall be eligible for retirement at the age of seventy years, but shall be retired at the age of seventy-five years. Upon the retirement of any such Justice or Judge he shall receive a pension equal in amount to the salary which he is receiving at that time. Such Justice or
Judge shall be required, if able so to do, to perform such judicial duties and services as may be required of him by designation or order of the Court of Appeals[.]
[2 Proceedings of the Constitutional Convention of 1947 at 1207 (emphasis added) (Amendment No. 1 to Committee Proposal No. 4-1, VII, 6).]
Based upon what went into the task of constitution-making at the beginning, and what came out at the end, I cannot agree with the majority that the Judicial Retirement paragraph is fluid enough to embrace the recall of judges who outlive their seventieth birthdays.
C.
Unlike the majority, I take no comfort in the exposition of the temporary recall provisions in other states. Ante at ___ - ___ (slip op. at 29-32). In fact, the leading case, Opinion of Justices, 284 N.E.2d 908 (Mass. 1972), while validating proposed legislation authorizing the temporary recall of retired judges of "the several courts of the commonwealth," id. at 908, did so within a governmental framework entirely distinguishable from New Jersey's. The Massachusetts recall paradigm, completely contrary to New Jersey's open-ended provision,24 proposed to operate from a list of available jurists, vetted by the Massachusetts Governor with the advice and consent of that state's elected Executive Council (roughly analogous to New Jersey's Senate in its advice and consent modality). Id. at 909. We cannot measure the constitutionality of our recall platform from this dissimilar foreign source.
As it turns out, Opinion of Justices appears to have played an important, albeit misleading, role in changing the once accepted view that recall judges were not authorized by the Constitution, and which led to the adoption of N.J.S.A. 43:6A-13(b)'s predecessor statute in 1973. Once again, the majority's canvass of the legislative history is accurate. See ante at ___-___ (slip op. at 16-18) (reflecting that before 1975 there was no statutory provision that permitted the recall of a retired judge or justice over the age of seventy years). However, some additional history may illuminate how the Supreme Judicial Court of Massachusetts helped get us to this point.
Opinion of Justices was decided on June 29, 1972. Eleven months later, on May 22, 1973, the JRSA became effective. L. 1973, c. 140. Among the many features of the new pension statute was the first authorization for the "assignment" not recall of retired judges, but only for those judges who had not attained the age of seventy:
Any judge retired on pension, except a judge of a municipal court, who has not attained the age of 70 years, may, with his consent, be assigned by the Chief Justice to sit in any court but the Supreme Court, or in the case of a retired justice of the Supreme Court, to sit in any court.
[L. 1973, c. 140, 13; N.J.S.A. 43:6A-13(b) (later amended by L. 1975, c. 14) (emphasis added).]
A few months later, in a January 31, 1974 New Jersey Law Journal editorial, the Law Journal Board noted that, unlike the senior judge system of the federal courts, "[i]n the New Jersey system no such practice exists." Senior Judges, 97 N.J.L.J. 68 (Jan. 31, 1974). The editorial opined that the Constitution does not prohibit "the rendering of service by . . . retired jurists comparable to that performed by Senior Judges in the federal system." Ibid. Consequently, it "urge[ed] that [N.J.S.A.] 43:6-6.39[25] be amended so as to permit the Chief Justice to assign 'retired' judges, whether they retire over or under the age of 70, to sit in any court other than the Supreme Court and to assign a retired Justice of the Supreme Court to sit in any court." Ibid.
Two months later, another editorial confessed,
We have just had our attention called to Opinion of the Justices of the Supreme Judicial Court of Massachusetts, 284 [N.E.2d] 908 (1972), wherein that Court advised the Massachusetts Senate that a bill relating to service by retired judges would not contravene the proposed Massachusetts constitutional amendment, which provided that "upon attaining seventy years of age said Judges shall be retired."
[Judicial Service For Judges Retired At Age 70 Who Wish Such Service, 97 N.J.L.J. 118 (March 21, 1974).]
In light of this decisional law, which supposedly fortified the Law Journal Board's January 31 commentary, the editorial opined:
Here is a non-controversial proposal in which all can join for bringing back into the judicial system some of our most-experienced judges who are at the peak of their power.
[Ibid.]
Less than two weeks later, Assemblyman William J. Bate (an attorney and later Passaic County Surrogate) introduced what became Assembly Bill No. 1419, which ultimately was adopted as the present version of N.J.S.A. 43:6A-13(b). The misguided hand of Opinion of Justices indubitably played a role in changing our
law.26
As I have indicated, Opinion of Justices is not a proper vehicle to interpret our Constitution, even if the language of the judicial retirement provisions of the Massachusetts and New Jersey Constitutions are nearly identical. At the time the Massachusetts justices grappled with the issue, the Massachusetts Constitution had not yet even provided for compulsory judicial retirement upon reaching seventy years of age. Opinion of Justices, supra, 284 N.E. 2d at 911.
The court noted that the proposed constitutional amendment, if adopted, "would require the immediate retirement of almost one-fifth of the present justices of the general trial courts of the Commonwealth." Ibid. (quotation marks omitted). In its practical opinion validating the recall of retired judges, the court was rightly concerned that, without the ability to recall judges, approval of the proposed amendment would cause the immediate retirement of a substantial number of experienced judges.
This would undoubtedly create great confusion and possible chaos throughout our entire judicial system . . . . To hold that the Legislature would be prevented from recalling retired judges to active service by the proposed amendment would greatly diminish the quality of justice for all.
[Id. at 913.]
However laudatory this urge to save the Massachusetts judicial system for the benefit of the people it served may be, exigency and pragmatism are insufficient impulses to either suspend our Constitution or fill a power vacuum with a novel solution. See Janouneau v. Harner, 16 N.J. 500, 514 (1954) (emergencies do not create or enlarge power); see also Commc'ns Workers of Am., AFL-CIO v. Christie, 413 N.J. Super. 229, 260 (App. Div. 2010) (citing Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S. Ct. 863, 96 L. Ed. 1153 (1952)). I eschew the limited persuasive attributes of Opinion of Justices,27 and disagree with the majority that it, and any of the other states that have weighed in on the issue, got it right.
D.
I further differ with the majority because I believe that N.J.S.A. 43:6A-13(b) arrogates exclusive gubernatorial authority, impairs the essential integrity of the Chief Executive, and revokes senatorial prerogative, all of which violate separation of powers doctrine. In particular, N.J.S.A. 43:6A-13(b) does violence to the Constitution's complementary goals of (1) ensuring a strong Chief Executive and (2) investing the Governor with the solitary, plenary power subject only to the advice and consent of the Senate of making judicial appointments:
The Governor shall nominate and appoint, with the advice and consent of the Senate, the Chief Justice and associate justices of the Supreme Court, the Judges of the Superior Court, and the judges of the inferior courts with jurisdiction extending to more than one municipality . . . . No nomination to such an office shall be sent to the Senate for confirmation until after 7 days' public notice by the Governor.
[N.J. Const. art. VI, 6, 1.]
The Legislature's delegation to the Supreme Court of the authority to select recall judges directly contravenes this provision.28
It is no answer to suggest that in order to qualify as a recall judge, one had to have already run the nomination-appointment-and-confirmation gauntlet twice. That may be true, but upon retirement, a judge not only steps aside from and gives up his or her judicial power, but also expressly resigns his or her judicial office. See N.J.S.A. 43:6A-7 (requiring that, as part of the application for benefits under the Judicial Retirement System, the judge submit "a copy of the [judge's] resignation from his [or her] judicial office which he [or she] has filed in the office of the Secretary of State").29
I ask the following question: Would it be possible for the Legislature to bestow the power to recall retired judges upon, say, the President of the Senate, or a committee comprised of the deans of New Jersey's law schools, or the Chief Justiceindividually?
I think not. 30
Although there is logic and practicality to making the Supreme Court the arbiter of those in the ranks of retired judges who are recalled to active duty, there is not a constitutional whiff, much less one word, of such authority residing within the judiciary itself.
"The doctrine of separation of powers is fundamental to our State government." Mt. Hope Dev. Assocs. v. Mt. Hope Waterpower Project, L.P., 154 N.J. 141, 150 (1998). The Constitution provides that "[t]he legislative power shall be vested in a Senate and General Assembly," N.J. Const. art. IV, 1, 1, and "[t]he executive power shall be vested in a Governor." Id. at art. V, 1, 1. By these provisions, our Constitution prohibits any one branch of government from exercising powers assigned to a coordinate branch. The separation of powers doctrine was designed to "maintain the balance between the three branches of government, preserve their respective independence and integrity, and prevent the concentration of unchecked power in the hands of any one branch." David v. Vesta Co., 45 N.J. 301, 326 (1965) (footnote and emphasis omitted).
"Despite the explicit constitutional mandate that 'contemplates that each branch of government will exercise fully its own powers without transgressing upon powers rightfully belonging to a cognate branch,'" the judiciary has "always recognized that the doctrine requires not an absolute division of power but a cooperative accommodation among the three branches of government." Commc'ns Workers of Am. v. Florio, 130 N.J. 439, 449-50 (1992) (quoting Knight v. Margate, 86 N.J. 374, 388 (1981)). Moreover, it has been "long recognized that '[t]he compartmentalization of governmental powers . . . has never been watertight.'" State v. Loftin, 157 N.J. 253, 284 (1999) (quoting In re Salaries for Prob. Officers of Bergen Cnty., 58 N.J. 422, 425 (1971)). Additionally, a flexible approach to separation of powers issues is employed in cases that have been brought to the Court. Ibid.
Notwithstanding this practical and collaborative approach to government, "[t]he Governor (Executive) is authorized to nominate and appoint. The Senate (Legislative) is to advise and, before the appointment may be finally made, to consent." Passaic Cnty. Bar Ass'n v. Hughes, 108 N.J. Super. 161, 173 (Ch. Div. 1969). "Missing from the Constitution is any role for the judiciary." De Vesa v. Dorsey, 134 N.J. 420, 430 (1993). Thus, the legislative delegation of a mechanism to reinstate judicial power in a retired judge is unconstitutional.31
A related separation of powers concern is the unintended inertial effect that N.J.S.A. 43:6A-13(b) has upon the replacement of retiring judges. When judges retire (at age seventy or earlier), vacancies are created that need to be promptly filled by executive and senatorial action. See N.J.S.A. 2B:2-1.2 (requiring "the Administrative Office of the Courts [to] notify the Legislature as vacancies occur"). It is probable that the intangible political dynamics that affect why such prompt action does not often take place are not directly influenced by the recall statute. Nevertheless, the Supreme Court's ability to insert its collective thumb through the enlistment of retired judicial elders in the levee of a never-ending caseload removes an incentive to appoint replacement judges. Although the effect of N.J.S.A. 43:6A-13(b) is hard to measure, with at least seventy-three retired judges more than sixteen percent of the total complement of authorized Superior Court judges toiling in the vicinages and on special assignments, there is an obvious disincentive to seed the judiciary with a fresh crop of judges. The recall statute creates an artificial supply of judges that satisfies an incessant and inevitable demand as active judges age or otherwise opt out of their judicial offices.
This is not a classic separation of powers phenomenon, but it is one that implicates a significant concern of the framers. Not only does the use of over-age-seventy jurists arithmetically drive up the average age of the institution, making it less representative of the people it serves, but also it constrains the institution's ability to profit from the energy and fresh outlook of younger jurists. Cf. 4 Proceedings of the Constitutional Convention of 1947, supra, at 170 (memorializing the discussion between Judge Daniel J. Brennan and delegate Amos F. Dixon regarding the retirement of judges at a reasonable age to avoid "blocking the progress of a lot of very able men who could step into those positions if they stepped out"). If we were faithful to the Constitution, and no temporary assignments were possible, it is likely that public outcry would summon the political machinery necessary to swiftly invoke the nomination, appointment, advice, and consent processes to fill vacancies, and thereby fulfill the expectations of the framers for the benefit of the people.
E.
A fundamental disagreement between my views and the majority's lies in the separateness of judicial power and the persons who may be authorized to exercise it. The challenged legislation indeed, all judicial recall legislation that does not follow a constitutionally-authorized appointment process operates on the unspoken assumption that "once a judge, always a judge." This view necessarily must acknowledge that retired judges after resigning and qualifying for a judicial pension (which qualification is, among other things, a prerequisite for recall) retain latent embers of judicial authority that can be reanimated by Supreme Court recall orders. See N.J.S.A. 43:6A-13(c) ("Upon such recall the retired . . . judge shall have all the powers of a . . . judge of the court to which he is assigned . . . ."). The Constitution leaves no room for such restorative powers once a judge turns seventy years old,32 and I am loath to declare the discovery of such hidden potential in the face of the obstacles I have outlined.
Furthermore, retired judges have no essential need for this intangible spark because they are clearly not, as the majority attributes to me, trapped in some "irrevocable alienation of pensioner from title, a kind of sequestration, worse yet quarantine, rendering the judicial retiree incognito, isolated and idle, relegated to some sort of professional limbo, yet imprisoned by all the ethical restraints of a status and an office that somehow no longer exist." Ante at ___ (slip op. at 28). Life after a judicial career may be either professionally robust or crabbed, but it is not dependent upon being available for temporary recall. And the ethical contours that guide judges' conduct in retirement, see, e.g., N.J.S.A. 43:6A-13(a); Guidelines on the Practice of Law by Retired Judges, Administrative Directive #5-08 (March 24, 2008), are proper constraints that ensure the judiciary's hallmark of independence, integrity, fairness, and quality service. After a public service career, a retired judge owes the institution at least that much.
F.
Notwithstanding its salutary purposes and practical success, N.J.S.A. 43:6A-13(b) cannot be justified when taking bearings from the Constitution. Historical acceptance cannot establish the statute's bona fides, see Henry, supra, 204 N.J. at 345 (Rabner, C.J., concurring) (noting that "historical practice alone rarely proves the correctness of a legal proposition"), and historical patterns cannot save an unconstitutional practice.
I take final comfort in the recollection of Morris M. Schnitzer, who was asked in 1995, "Was it contemplated that judges, once retired at age 70, could be recalled?" Conversations with Morris M. Schnitzer, supra, 47 Rutgers L. Rev. at 1401. Schnitzer who was present during the Constitution's conception, gestation, and birth unequivocally
responded: "Certainly not, since that would have resurrected the example of Justice Parker and others who sat long after their peak." Ibid. If that is the way Schnitzer remembered it, who am I to disagree?
Accordingly, I dissent.
[Accordingly Derek Syphrett concurs and submits this argument to the court for consideration,
Admittedly this argument combined with my own common-law objections to the use of recall judges without the consent of the real parties is: beyond the pleadings in State v. Buckner, with regard to its application to ALL retired Judges, even those under the age of 70 years old.
I believe the combined arguments (see Legal Arguments: “II...” and “IV...”) I've submitted regarding the Constitutional Standing of recall Judges and John Tomasello represent a matter of first impression, and Legal Question requiring interpretation of the New Jersey Constitution by the New Jersey Supreme Court.]
1 New Jersey was the third colony to adopt a Constitution. John Bebout, Introduction to Proceedings of the New Jersey State Constitutional Convention of 1844, at xvi (New Jersey Writers' Project ed., 1942), available at . rutgers.edu/cgi-bin/diglib.cgi?collect= njconst&file= 1844_bebout&page=0001 (last visited on Mar. 6, 2014). The Constitution was ratified on July 2, 1776, only eight days after the appointment of the Constitutional Convention Committee. Ibid. "This haste may have been due partly to the arrival of the British Fleet off Sandy Hook." Ibid.
2 There is no mandatory retirement age for judges appointed under Article III, Section 1 of the Federal Constitution.
3 All five volumes of these proceedings are available at information/ searchable_publications_0 (last visited on Mar. 6, 2014).
4 Available at . cgi?collect=njconst&file=1942_comm&page=0001 (last visited on Mar. 6, 2014). Reprinted in 4 Proceedings of the Constitutional Convention of 1947, supra, at 556-65.
5 Available at (last visited on Mar. 6, 2014). Reprinted in 4 Proceedings of the Constitutional Convention of 1947, supra, at 566-74.
6 Jacobs, although acknowledged as the "principal sponsor of mandatory retirement" by Morris M. Schnitzer, was also later the primary architect of creating the recall provisions at issue. 4 Proceedings of the Constitutional Convention of 1947, supra, at 1; Conversations with Morris M. Schnitzer, 47 Rutgers L. Rev. 1391, 1401 (1995); see also post at 28-29. Justice Jacobs, by then serving on our Supreme Court, "promoted the idea as a way of dealing with emergencies and thereafter as a way of enlisting economical judicial service." Conversations with Morris M. Schnitzer, supra, 47 Rutgers L. Rev. at 1401-02. Thus, although Schnitzer, who served as the Technical Advisor to the Committee on the Judiciary, rejected the idea that recall of judges over age seventy was contemplated by that body, Justice Jacobs, who served as the Vice-chairman of the committee and was "the author of every draft of the Judicial Article," certainly saw no constitutional conflict between the mandatory retirement provision in the Constitution and the recall statute. Id. at 1391, 1393, 1401-02.
7 During the final open public session on July 30, 1947, several individuals expressed their views on the proposed compulsory retirement age of seventy. 4 Proceedings of the Constitutional Convention of 1947, supra, at 500, 515-16, 523-24, 531, 542-43. Additionally, Robert Carey, a former Hudson County Judge, argued that retired judges should be placed on an inactive list and subject to recall by the Chief Justice. Id. at 543.
8 Our Court "has often relied on the Judiciary Committee Report as an authoritative source" of constitutional intent. Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 349 n.4 (2010) (Rabner, C.J., concurring). But see Winberry v. Salisbury, 5 N.J. 240, 248 (criticizing reliance on the Committee report), cert. denied, 340 U.S. 877, 71 S. Ct. 123, 95 L. Ed. 638 (1950).
9 Similar statutory provisions were later enacted for the recall of retired Workers' Compensation judges, N.J.S.A. 34:15-49(a), and Administrative Law judges, N.J.S.A. 52:14F-4, who had not yet reached the age of eighty.
10 Minor revisions to N.J.S.A. 43:6A-13 were made by L. 1981, c. 470, 7, and L. 1990, c. 45, 1, but no substantive changes were made to the authority of the Supreme Court to recall justices and judges.
11 A review of the recall orders reveals that, as needed, some judges are recalled to specific assignments for short periods of time, and others serve on more general assignment for longer, albeit temporary terms. Thus, it is highly likely that some of the assignments might overlap, but that only one judge would be sitting in the position at any given time. We do not view these temporary assignments, as the dissent intimates, as unlawfully increasing the number of statutorily-authorized judicial positions, or extending their terms of office. Recall judges do not, by virtue of their assignment, "hold" an office that could become vacant upon termination of their powers either by death or operation of law. Indeed, it is only upon his or her recall in accordance with a statute as authorized by the Constitution that a judge may exercise any judicial power whatsoever, and this only during the period specified in the assignment and subject to whatever other conditions the Legislature sees fit to enact and the Supreme Court deems appropriate to impose.
12 Interestingly, several of the Justices in Lloyd, including Justice Jacobs, who wrote the opinion, and Chief Justice Vanderbilt, were well-qualified to discuss the framers' intent as they had been members of the Committee on the Judiciary or presenters during the Constitutional Convention.
13 Thirty-two states and the District of Columbia provide for mandatory retirement at a given age. Some of these states also have a constitutional provision for the recall of retired judges. See, e.g., The Arizona Constitution, Ariz Const. art. VI, 20 (2013).
14 The Legislature has on at least two separate occasions amended other provisions of the recall statute, but left the language relevant here intact. See L. 1981, c. 470, 7; L. 1970, c. 45, 1.
15 Because the present appeal involves the recall of a Superior Court judge, it is unnecessary to address Supreme Court justices and Tax Court judges.
16 For this reason, I would vacate Buckner's conviction, and order a new trial. I recognize that the venerable de facto officer doctrine, see Jersey City v. Dep't of Civil Serv., 57 N.J. Super. 13, 27 (App. Div. 1959), might counsel against this course of action. However, in the interest of fairness and equity, this one litigant, who has successfully demonstrated that the trial judge was without judicial authority, is entitled to such a remedy.
17 Buckner's reliance upon the schedule provisions of N.J. Const. art. XI, 4, 1, is wholly unpersuasive. In light of (1) the majority's correct analysis of Lloyd v. Vermeulen, 22 N.J. 200 (1956); (2) the history of the transitional plan from the 1844 Constitution to the 1947 Constitution; and (3) the schedule provision's plain language, I fully subscribe to the majority's rejection of Buckner's attack using this constitutional justification.
18 Although being compared by the majority to Martin Luther may be flattering, ante at ___ (slip op. at 36) (constructively criticizing the dissent for "nail[ing] to the cathedral door its exegesis on politics, ageism, and the perceived benefits of youthful replenishment"), I prefer the role of the small child who exclaims that the Emperor has no clothes. Hans Christian Andersen, The Emperor's New Clothes (1837).
19 See also McCutcheon v. FEC, ___ U.S. ___, 134 S. Ct. 1434, 188 L. Ed.2d 468 (2014) (demonstrating judicial resolve, even after almost thirty-eight years of a statute's service, in striking down the aggregate contribution limits imposed by the Federal Election Campaign Act Amendments of 1976, 2 U.S.C.A. 441a(a)(3), because they violate the First Amendment).
20 Some commentators suggested that retirement should be imposed at ages seventy or seventy-five; others recommended life tenure, like federal judges, with no mandatory separation from the bench.
21 Carey prefaced his remarks by noting that he "expects to practice law for the next 25 years," and would be "in the midst of the celebration of [his] 75th birthday" seven weeks hence, on September 16, 1947. 4 Proceedings of the Constitutional Convention of 1947, supra, at 542.
22 Those words are: "but, subject to law, he may be assigned by the Chief Justice to temporary service in the Supreme Court or in the Superior Court, as need appears."
23 At the conclusion of the Committee on the Judiciary's open sessions, it held five closed executive sessions to consider the testimony and formulate a tentative draft of the Judicial Article. 4 Proceedings of the Constitutional Convention of 1947, supra, at iii. No stenographic record was made of the executive sessions "to [e]nsure the fullest possible discussion," and to allow a "free exchange of views." Id. at iv. As a result, there is no official record of several of the Committee's discussions surrounding the adoption of the draft Judicial and Schedule Articles.
24 I call it an open-ended system because it contains no express limits and few guidelines. For example, N.J.S.A. 2B:2-1 authorizes 443 Superior Court judges. As of April 1, 2014, there were 398 active-service Superior Court judges (including four Tax Court judges assigned to the Superior Court), see (last visited April 7, 2014), plus at least seventy-three temporary recall judges assigned to the Superior Court, see 2012-2014 Notices to the Bar,
notices/index.htm (last visited April 7, 2014), for a total of at least 471 persons exercising judicial authority in the Superior Court, which is more than legislatively approved. From these data, it is impossible to compute how many full-time-equivalent judges are deployed. But even if some of the temporary recall judges merely serve on a part-time or as-needed basis, there are still more persons holding judicial power in the Superior Court than are authorized by the statutory numerical limit of N.J.S.A. 2B:2-1. Moreover, there is nothing in the recall statute to prevent the recall of dozens, perhaps even hundreds, of additional retired jurists, subject only to the qualifications of the Policy Governing Recall for Temporary Service Within the Judicial System, Administrative Directive #12-01 (July 19, 2001), and budgetary constraints. Finally, there is no assurance that the choosing of recall judges follows the "most distinctive institution of our judicial system the bipartisan selection of judges." Hon. Arthur T. Vanderbilt, C.J., Famous Firsts in Jersey Jurisprudence: An Acknowledgement of Indebtedness, The Inaugural Lecture of the Harvard Law School Ass'n of N.J. Annual Lecture Series, 22-26 (Feb. 23, 1956) (discussing New Jersey's "distressing experiences" of the breakdown of the judicial appointive process following the adoption of the 1844 Constitution, and the evolutionary response of bipartisan appointments, culminating in the "unwritten tradition" of ensuring a nonpartisan judiciary through the bipartisan selection of judges).
25 This statute had been repealed in May 1973 as part of the adoption of the JRSA. See L. 1973, c. 140, 45; N.J.S.A. 43:6A-45(q). Inexplicably, the Law Journal Board was unaware of the repeal and contemporaneous adoption of N.J.S.A. 43:6A-13(b), which allowed for limited assignment of retired judges.
26 Another source for this conclusion comes from a 1995 interview with Morris M. Schnitzer, once "the dean of the New Jersey Bar," and a Technical Advisor to the Committee on the Judiciary. Conversations with Morris M. Schnitzer, 47 Rutgers L. Rev. 1391 (1995). In explaining how retired judges in New Jersey came to be subject to recall, Schnitzer stated:
[T]he Massachusetts Constitution had a mandatory retirement provision much like the 1947 New Jersey Constitution. Once the Massachusetts Supreme Judicial Court decided that retired judges could be recalled, Nat[han] Jacobs, by then on the New Jersey Supreme Court, promoted the idea as a way of dealing with emergencies and thereafter as a way of enlisting economical judicial service.
[Id. at 1401-02.]
27 Ironically, the Massachusetts recall statute parsed by Opinion of Justices, with its features of gubernatorial and Executive Council involvement, might actually survive separation-of-powers scrutiny, unlike N.J.S.A. 43:6A-13(b).
28 Legislative involvement in the appointive process under the 1844 Constitution was seen as a chief evil sought to be eradicated in the 1947 Constitution. See, e.g., 4 Proceedings of the Constitutional Convention of 1947, supra, at 671-75.
29 Analogously, when a lawyer resigns without prejudice from the New Jersey bar, "the membership in the bar of this state shall cease," R. 1:20-22(c), and "any subsequent application for membership shall be in accordance with the provisions of New Jersey Court Rules 1:24 and 1:25, including passing the bar examination." See
reswoprej.pdf (last visited April 7, 2014). Resignation has consequences.
30
If the Legislature had chosen the Chief Justice alone as the instrument of recalling retired judges, there would, at least, be a plausible argument to support that choice. See N.J. Const. art. VI, 7, 2 ("The Chief Justice of the Supreme Court shall assign Judges of the Superior Court . . ., and may from time to time transfer Judges from one assignment to another, as need appears."); cf. In re P.L. 2001, Chapter 362, 186 N.J. 368, 381-82 (2006) (Constitution gives Court exclusive authority over State judiciary); In re Judges of Passaic Cnty., 100 N.J. 352, 367 (1985) (per curiam) (recognizing Court's constitutional responsibility for effective functioning of judiciary). However, the power to assign judges is quite unlike the power to select judges. The Chief Justice plays no role in the Governor's nomination-and-appointment and Senate's advice-and-consent processes. As the judiciary's leader, the Chief Justice is limited to the assignment of personnel that are provided by the political branches of government, much like a hockey coach who makes do with players selected by the team's general manager and owner. Unlike the dynamics of a professional sports team, the Chief Justice, as administrative head of the judiciary, N.J. Const. art. VI, 7, 1, cannot burnish the quality of the team by requesting a judge's trade, or demotion to the minor leagues.
31
As an aside, N.J.S.A. 43:6A-13(b)'s provision permitting a retired Supreme Court Justice to be "recalled by the Supreme Court for temporary service in the Supreme Court" is undoubtedly unconstitutional because N.J. Const. art. VI, 2, 1 expressly limits temporary assignments to the Supreme Court as follows: "When necessary, the Chief Justice shall assign the Judge or Judges of the Superior Court, senior in service, as provided by rules of the Supreme Court, to serve temporarily in the Supreme Court." I decline any further comment in light of the concurring, abstaining, and dubitante opinions in Henry, supra, 204 N.J. at 340, 354, 525 (2010) (Rabner, C.J., concurring; Rivera-Soto, J., abstaining; Hoens, J., dubitante).
32
Although it is not part of the present appeal, I also believe that an early-retired judge under the age of seventy years, see N.J.S.A. 43:6A-8(a) and -8(b), cannot be recalled for temporary service under the Constitution because upon that judge's resignation, he or she ceases to possess any judicial authority, and neither the Legislature nor the Supreme Court has any power to restore it.
CONCLUSION:
I believe the above statement of facts and legal arguments are sufficient to compel a just court to grant the motions which I have placed before the court via my submissions to the court, which were stamped received on 8/6/2014 and about 8/13/2014.
The appearance of a fair, just, impartial judiciary has been lost in the Burlington County Court Facility with regard to my legal affairs as is evident in the court orders and bizarre restraints issued by Judge Ronald Bookbinder and enforced by his subordinate judges contrary to the binding rule of law I've cited within this brief.
John Tomasello does not have my common-law consent to act as a judge in this matter because he is a retired judge and not a Judge via any means of appointment that is expressly condoned by the New Jersey Constitution (1947). Further it is my position that the recall of retired Judges is repugnant to both the express intent contained in the constitution and the constitution does not construe or implicitly provide that retired Judges may be recalled at the sole discretion of the Judiciary.
Because I have offered Judge Jonathan Harris's Dissent as a large part of my legal argument and also because I have added to that argument, THE COURT MUST REVIEW THIS BRIEF AS A MATTER OF FIRST IMPRESSION & AS A CONSTITUTIONAL CHALLENGE. I THEREFORE REQUEST THAT THIS BRIEF BE “PASSED UP” TO THE SUPREME COURT FOR A CONSTITUTIONAL REVIEW.
Given the statement of facts there are also material questions that the court should address regarding the legal competence of Judge Tomasello and Judge Fitzpatrick, given that they clearly disregarded court rules and my constitutional right to due process (e.g. by stripping me of my right to self-represent myself, issuing defaults when I put pleadings before the court, etc)
Submitted pursuant Constitutional Law with a Request that Admiralty Law Be suspended in this Matter.
Submitted by Derek Syphrett, a naturalis homo incarne (recognized to be a dual citizen of New Jersey and the United States by the Superior Court of New Jersey). As such I hereby invoke all rights and privileges to due-process under the law which such a human being is entitled to pursuant the Magna Carta, United States Declaration of Independence (1976), and the Constitution for the United States of America – currently controlling the practice of law in this jurisdiction (inclusive of the bill of rights).
I hereby certify that any and all statements of fact are true to the best of my recollection and I recognize that a real party of interest may prosecute me in a court of law if any of the aforementioned statements are proved to be willfully false.
Very Truly,
Derek C. Syphrett (Dated: 8/25/2014)
Indigent Pro Se litigant;
Juris in Persona;
Naturalis Homo in Carne
cc: Plaintiff Kathryn Bischoff c/o Clerk of the Court
cc: Judge Glenn Grant J.A.D.
cc: Chief Justice Rabner and Supreme Court Justices En Banc, c/o court clerk
cc: Presiding Judge of the New Jersey Appellate Division, En Banc c/o court clerk
cc: Susan Fortino
cc: Mercer County Prosecutor's Office: M. Nardelli & J. Bocchini
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