David Perry Davis
COUNSELLOR AT LAW
31 Jefferson Plaza
Princeton, NJ
08540-9541
(609) 279-0141
Fax: (732) 274-2050
E-mail: DPD@dpdlaw.com
July 20, 2005
Hon. Linda R.
Feinberg, AJSC
Superior Court
of New Jersey
175 South Broad Street
Trenton, NJ 08650-0068
Re: Golden
v. Codey
Docket
No. MER-L-1870-05
Dear Judge Feinberg:
Please accept this letter brief in lieu of a more formal
submission in reply to the defendant's motion to dismiss and in further support
of plaintiffs' application for an order to show cause. Plaintiffs will present additional argument
at the hearing this afternoon, however believe it would be helpful to the Court
to provide the following in advance of the hearing.
Defendants admit that the public was cheated out of its
opportunity to be heard and that Senate rule 12:3(b), enacted to obtain
"the consent of the governed" was violated. They then aver, in essence, that this is none of the Court's
business and the Court is powerless to do anything about it. Plaintiffs disagree.
It is agreed that there are no material fact questions involved
and plaintiffs' accept the apparent stipulation as to the facts alleged in the
complaint. The questions before this
Court are purely legal and, if the Court accepts plaintiffs position, the
requested injunction should issue.
Even if defendants' prevailed on every other issue, the overt violation
of the Open Public Meetings Act mandates that plaintiffs be granted the
remedies provided for by the Act.
I. DEFENDANTS' FAILURE TO DISTINGUISH THE LEGISLATURE'S RIGHT TO SET
ITS RULES FROM ITS POWER TO VIOLATE RULES THAT IMPLICATE PROCEDURAL DUE PROCESS
IS FATAL TO ITS ARGUMENT.
Defendants provide a tremendous amount of
legal support for the uncontested proposition that the Senate has the power to
"determine the rules of its proceedings." This is not an issue.
However, they then claim, without even purporting to provide any legal
authority for the proposition, that "implementation of the rule is
therefore within the exclusive province of the legislature, beyond the scope of
judicial enforcement or review." Defendant's
Brief at page 7. Without providing
support for the asserted connection between these two distinct concepts (the
promulgation of rules and the public's procedural due process rights arising
from the legislature's adherence to its rules), defendants argument on this
point is fatally flawed.
Similarly, defendants provide extensive case law affirming the
uncontested point that there is no right for each and every citizen to be heard
by a legislative body. See, e.g. Bi‑metallic Investment
Company v. State Board of Equalization, 239 U.S. 441 (1915). Defendants fail to distinguish this point
from plaintiffs' claim that they have a procedural due process right to the
legislature adhering to the process
it established. Rogin v. Bensalem
Township, 616 F.2d 680, 693 (3rd Cir.1980).
The case law makes clear that the Court has both the ability and
the duty to examine legislative action to determine whether the established
process was adhered to and, if not, whether the violation of the process was
arbitrary and irrational. Pineman v. Fallon, 662 F.Supp. 1311,
1317 (D.Conn.1987), aff'd, 842
F.2d 598 (2d Cir.), cert. denied,
488 U.S. 824 (1988).
Finally, defendants assert that the Court "must not
encroach in such a way as to restrict the legitimate operation of
representative democracy." Washington
v. Fauver, 88 N.J. 183, 206 (1982).
Representative democracy and procedural due process are precisely the
issues before this Court.
Defendants correctly state that, upon the motion of a Senator,
Senate rules can be waived. They do not
(and cannot in good faith) allege that such a motion was made. They further state that the rules can be
suspended in an "emergency."
They do not (and cannot in good faith) allege that any
"emergency" existed. In sum,
defendants' arguments boil down to an assertion that the rules under which our
legislature function mean nothing and can violated willy nilly for any or no
reason. This is absurd.
Finally, Senate Rule 12:B(3) differs from the majority of other
rules in that it enforces the most basic covenant upon which our government is
based that the "consent of the
governed" will be sought before power is bestowed on anyone. The public's procedural due process rights
have been trampled on and this Court can and should take appropriate action.
II. THE DEFENDANTS' VIOLATION OF THE NOTICE
PROVISIONS OF THE OPEN PUBLIC MEETINGS ACT MANDATES THE GRANTING OF THE
REQUESTED INJUNCTION.
Plaintiffs agree that the Court should consider the explicit
text of the Open Public Meetings Act, N.J.S.A. 10:4-8a et seq, but assert that doing so leads
to a very different conclusion than the one put forth by defendants. The text of the Act includes "the
legislature" and "any other
group of two or more persons organized under the laws of this State, and
collectively empowered as a voting body to perform a public governmental
function." Defendants brief is completely
silent on this section of the definition, focusing only on "the
legislature" - and then providing a novel definition for what constitutes
"the legislature."
Had the legislature intended only to include only the full
assembly or senate, they would have done so.
Defendants realize this and, as a result, turn to prior versions of the
Act that were never enacted and ask the court to speculate as to why certain
language was or was not used.
Plaintiffs counter that perhaps the word "committees" was
excluded because it is redundant, or because mentioning committees without mentioning
sub-committees and sub-committee tasks forces (etc) would have caused the Act
to be read more narrowly than the legislature intended. This court should not acceed to defendants'
apparent request that the Act be rendered impotent. It is not window dressing; it reflects our State's stalwart
commitment to the principles of open government.
The text of the statute is unambiguous and specifies exactly
what public bodies are subject to the Act (speaking in broad terms of
"...or any other body") and what groups are excluded (listing specific
groups):
a.
"Public body" means a commission, authority, board, council,
committee or any other group of two or more persons organized under the laws of
this State, and collectively empowered as a voting body to perform a public
governmental function affecting the rights, duties, obligations, privileges,
benefits, or other legal relations of any person, or collectively authorized to
spend public funds including the Legislature, but does not mean or include the
judicial branch of the government, any grand or petit jury, any parole board or
any agency or body acting in a parole capacity, the State Commission of
Investigation, the Apportionment Commission established under Article IV,
Section III, of the Constitution, or any political party committee organized
under Title 19 of the Revised Statutes.
Defendants' violation of the Open Public Meetings Act is overt,
undeniable, and mandates the granting of plaintiffs' request relief.
As indicated, plaintiffs will present additional argument and
rebuttal at the hearing scheduled for this afternoon.
Conclusion
It should not be lost on the Court that the most salient of
facts is unrebutted by defendants and cannot in good faith be denied. The Senate Judiciary Committee violated the
Open Public Meetings Act and its own Rule with the explicit intent of avoiding
the required public notice of a hearing on a controversial nominee. This was, at best, sneaky. It is contrary to everything open government
is supposed to stand for and flies in the face of our State's traditional
adherence to democratic principles.
Defendants do not attempt to justify their actions, instead arrogantly
insisting that Justice has no say in the matter.
To the extent that any of the questions before this Court are
close calls, they should not be decided in defendants' favor as a matter of
equity.
Plaintiffs are entitled to the injunctive and declarative relief
they seek. Ms. Espinosa's gubernatorial
nomination has not "expired" - defendants would not be in any way
prejudiced by conducting a new Senate Judiciary Committee hearing with proper
adherence to the democratic process.
Respectfully,
David Perry Davis, Esq.
Cc: Plaintiffs (via email)
John P. Bender, Esq. (DAG) 609-777-3120
Marianne Espinosa, Esq. (Pro
se) 973-623-7780
Albert Porroni, Esq. (Legislative Counsel)
Leon J. Sokol, Esq. (Attorney for Sen Adler)609-497-2377 / 201-488-6541