The Law Office of

David Perry Davis

31 Jefferson Plaza

Princeton, NJ 08540

(732) 274‑9444

(732) 274‑2050 (fax)

Attorney for plaintiffs

Jeff Golden, Dorothy Mataras, Robin K. Vinik, Dominick Romano, Dr. Dwight E. Garcia, Eric Mataras, Gunnar Wahlstrom, as private citizens of New Jersey,

Plaintiffs

vs.

Hon. Richard Codey, individually and as President of the New Jersey Senate,

Senator John H. Adler, individually, and as chairman of the Senate Judiciary Committee, and as a member of the New Jersey Senate,

Senator John A. Girgenti, Senator Byron M. Baer, Senator Nia H. Gill, Senator William L. Gormley, Senator Joseph M. Kyrillos, Senator Robert J. Martin, Senator Paul A. Sarlo, Senator Nicholas P. Scutari, Senator Bob Smith, individually and as members of the New Jersey Senate Judiciary Committee and

the New Jersey Senate,

Marianne Espinosa, Esq.

Defendants

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SUPERIOR COURT OF NEW JERSEY

LAW DIVISION

MERCER COUNTY

DOCKET NO. MER-L-

Civil Action

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS' APPLICATION FOR AN ORDER TO SHOW CAUSE

David Perry Davis, Esq.

On the brief

TABLE OF CONTENTS

Table of Contents ii

Table of Authorities iii

Table of Contents to Exhibits ix

Statement of facts 1

Argument

Point I: THE COURT SHOULD ENTER A PRELIMINARY INJUNCTION ENJOINING DEFENDANT MARIANNE ESPINOSA FROM TAKING OFFICE AS A JUDGE OF THE SUPERIOR COURT 5

A. There exists a reasonable probability of eventual success on the merits

B. Irreparable injury would result if the injunction is not granted

C. A weighing of the equities favors the entrance of the requested preliminary injunction

Point II: THE SENATE'S VIOLATION OF RULE 12:3(b) CONSTITUTED AN ACTIONABLE VIOLATION OF PLAINTIFFS' PROCEDURAL DUE PROCESS RIGHTS 8

Point III: THE ISSUE BEFORE THE COURT IS JUSTICIABLE IN THAT PLAINTIFFS' FUNDAMENTAL PROCEDURAL DUE PROCESS RIGHTS WERE VIOLATED BY THE SENATE JUDICIARY COMMITTEE'S VIOLATION OF RULE 12:3 (b) 10

Conclusion 12

Table of Authorities

Federal Case law

Metzenbaum v. Federal Energy Regulatory Commission,

675 F.2d 1282 (D.C.Cir.1982) 12

Bi‑metallic Investment Company v. State Board of Equalization, 239 U.S. 441 (1915) 8

The Connecticut Judicial Selection Commission v. John B. Larson, President Pro Tempore of the Connecticut Senate,

745 F.Supp. 88 (D.Conn.1989) 8

Connecticut Educ. Ass'n, Inc. v. Tirozzi,

210 Conn. 286, 554 A.2d 1065 (1989) 8

Rogin v. Bensalem Township,

616 F.2d 680, 693 (3rd Cir.1980) 9

Pineman v. Fallon, 662 F.Supp. 1311 (D.Conn.1987), aff'd, 842 F.2d 598 (2d Cir.), cert. denied, 488 U.S. 824 (1988) 9

Baker v. Carr,

369 U.S. 186, 211, 82 S.Ct. 691, 706, 7 L.Ed.2d 663, 682 (1962) 10

New Jersey Case law

Crowe v. DeGioia,

90 N.J. 126 (1982) reh'g on remand 203 N.J. Super. 22 (App. Div. 1985) 5

DeVesa v. Dorsey,

134 N.J. 421, 429 (1993) 10, 11

New Jersey Senate Rules

12:3(b) passim

Rules Governing the Courts of the State of New Jersey

4:52-2 5

Table of Contents to Exhibits

Certifications by plaintiffs Exhibit A

New Jersey Legislative Calendar affirming date of notice for June 27, 2005 meeting of the Senate Judiciary Committee Exhibit B

(Relevant) Rules of the New Jersey Senate Exhibit C

STATEMENT OF FACTS

In July of 1986, Marianne Espinosa Murphy was appointed as a Judge of the Superior Court. Her initial term expired in 1993. In every judicial survey, including those conducted by the New Jersey Law Journal, the Morris County Bar Association, and the Supreme Court Committee on Judicial Performance, Judge Espinosa Murphy ranked in (at best) the lowest ten percent in every category.

Responding to an avalanche of complaints by his constituents concerning Judge Espinosa's demeanor, fairness, her treatment of litigants and attorneys, her explosive temper, her lack of adherence to court rules, her lack of knowledge as to the law, and generally substandard and unacceptable performance, Senator John H. Dorsey exercised senatorial courtesy and refused to approve Judge Murphy's reappointment. Judge Murphy turned down a second untenured term offered by then-governor Jim Florio, commenting "I'm not going to go begging for this job." She left the bench on September 11, 1993.

In June of 2005, Marianne Espinosa Murphy (n/k/a Marianne Espinosa) was - incredibly - again nominated to be a judge of the Superior Court in spite of her past performance. In the weeks that followed, Senator John Adler, chairman of the judiciary committee, Acting Governor Codey and all the members of the Senate Judiciary Committee received letters from individual citizens and organizations indicating they wished to be heard at the hearing regarding the nomination, uniformly indicating that they vehemently opposed her return to the bench and demanding that they be provided with as much notice as possible as to the scheduling of the Senate Judiciary Committee meeting to consider her nomination.

Senate Rule 12:3(b) requires that "at least five State working days" notice be given of any Committee meeting (Exhibit C). Notice is provided to the public via the New Jersey Legislative Calendar and is updated on the judiciary website.

In order to avoid this controversy and to ignore the will of the people he was elected to serve, Senator Adler intentionally deprived the citizens of New Jersey of the notice to which they are entitled by failing to notify the public at large of the hearing.

The legislative calendars for the week preceding the meeting of the Senate Judiciary Committee are attached as Exhibit B. There is no notice as to a hearing to consider Marianne Espinosa's nomination.

On Saturday, June 25, 2005, a notice appeared on the judiciary website indicating that Ms. Murphy's nomination was to be considered less than 48 hours later, on Monday morning. This was the first public release of the date and time for the hearing. By contrast, those who wishes to testify in favor of the nomination were provided with more than the required notice.

At the Senate Judiciary Committee hearing on June 27, 2005, defendant Marianne Espinosa's nomination was approved by a vote of 8 to 1.

On Thursday, June 30, 2005, on the motion of Defendant Senate President Hon. Richard Codey, the full senate considered the nomination. The Senate then voted 34-2 to approve the appointment.

Defendant Marianne Espinosa is scheduled to be sworn in on July 22 and to again become a Judge of the Superior Court.

This complaint and order to show cause followed.

This Court is not being asked to make any findings as to the merits of defendant Espinosa's appointment, her past performance nor her judicial abilities. The sole issue before this Court is whether the violation of Senate Rule 12:3(b) by the New Jersey Senate gives rise to a private cause of action by citizens and organizations to enforce their procedural due process rights under the Federal Constitution, the New Jersey Constitution, 42 U.S.C. § 1983, and the New Jersey Civil Rights Act of 2004.

If so, judicial intervention is mandated and the remedy of enjoining Marianne Espinosa from taking the oath of office as Judge of the Superior Court is required.

ARGUMENT

Point I

THE COURT SHOULD ENTER A PRELIMINARY INJUNCTION ENJOINING DEFENDANT MARIANNE ESPINOSA FROM TAKING OFFICE AS A JUDGE OF THE SUPERIOR COURT.

This application for emergent relief is submitted pursuant to R. 4:52-2, which provides for the application of such relief during the pendency of an action.

The standards for the granting or withholding of emergent relief are well established. Generally, the moving party must demonstrate that:

A. There exists a reasonable probability of eventual success on the merits;

B. Irreparable injury would result if the injunction is not granted;

C. A balance of equities in which the damage to the moving party and the absence of an injunction is weighed against the harm to the respondent if the relief is granted. See Crowe v. DeGioia, 90 N.J. 126 (1982) reh'g on remand 203 N.J. Super. 22 (App. Div. 1985) citing Continental Group, Inc. v. Amoco Chemicals Corp., 614 F.2d 351, 356‑57 (3d Cir. 1980)Citizens Coach Co. v. Camden Horse R.R. Co., 29 N.J.Eq. 299, 303 (E. & A. 1878); Paternoster v. Shuster, 296 N.J.Super. 544 (App.Div. 1997).

It is respectfully submitted that when applying the above standards to this case, the Court should grant plaintiffs' request for a preliminary injunction.

A. There exists a reasonable probability of eventual success on the merits.

There can be no legitimate question as to the salient facts: the Senate Rules require that the public be provided with at least "five State working days" notice as to a meeting of the Senate Judiciary Committee. This rule was violated. The right of the public to be heard is not only fundamental, it is the most basic underpinning of our democracy. As more fully explored below, this is a justiciable issue warranting judicial intervention. The remedy sought is the only appropriate response to defendants' conduct.

Plaintiffs' probability of success on the merits is sufficiently high so as to warrant the entry of the requested injunction.

B. Irreparable injury would result if the injunction is not granted.

To subject the people of New Jersey to illegitimate authority would constitute a violation of the public's procedural due process rights. To appoint defendant Marianne Espinosa to the bench while this matter is pending, only to later have a Court grant plaintiffs the declarative and injunctive relief they seek would potentially result in the negating of all orders signed and decisions made during her aborted term on the bench. This would potentially expose the State to further litigation and, at a minimum, would require emergent curative action from properly appointed judges.

Harm is generally considered irreparable in equity if it cannot be redressed adequately by monetary damages. Crowe, 90 N.J. at 133. The gravamen of plaintiffs' case is not monetary.

C. A weighing of the equities favors the entrance of the requested preliminary injunction.

No interest asserted by defendants can outweigh the constitutional mandate that the people be provided with sufficient notice of a hearing and the opportunity to be heard before they are subjected to judicial authority.

Preliminary relief should be granted in emergent situations requiring the preservation of the status quo and the prevention of irreparable harm, after balancing conveniences and the interests of the parties, until the final determination of the litigation involved.

The requested temporary restraining order should issue forthwith and a preliminary injunction should be entered on the return date.

Point II

THE SENATE'S VIOLATION OF RULE 12:3(b) CONSTITUTED AN ACTIONABLE VIOLATION OF PLAINTIFFS' PROCEDURAL DUE PROCESS RIGHTS

The United States Supreme Court has held that procedural due process is implicated when, as in the case before this Court, "the proper state machinery has [not ] been used." Bi‑metallic Investment Company v. State Board of Equalization, 239 U.S. 441, 446 (1915). In the context of legislative action, procedural due process is not a right to be heard by each and every individual, but rather a right to the legislative process. The Connecticut Judicial Selection Commission v. John B. Larson, President Pro Tempore of the Connecticut Senate, 745 F.Supp. 88 (D.Conn.1989), citing Connecticut Educ. Ass'n, Inc. v. Tirozzi, 210 Conn. 286, 298, 554 A.2d 1065, 1071‑72 (1989). The issue of whether every citizen has a right to be heard by a legislative body has been repeatedly answered in the negative. See, e.g. Bi‑metallic Investment Company v. State Board of Equalization, 239 U.S. 441 (1915) (It was that it was "hard to believe that the proposition was seriously made" that all individuals have a constitutional right to be heard before a legislative body can act).

This Court is not being asked to invent standards that would satisfy the public's right to a meaningful "legislative process" and procedural due process. This was done by the explicit text of the New Jersey Senate Rules and includes the public's substantive due process right to "at least five State working days" notice of any Committee meeting (Exhibit C).

The Third Circuit has explicitly affirmed that the people have a procedural due process interest in the legislative process being adhered to. Rogin v. Bensalem Township, 616 F.2d 680, 693 (3rd Cir.1980). In the matter before this Court, the established legislative process was undeniably disregarded by defendants.

It is not the role of a Court to substitute its opinion on the merits of legislative action (or Senate Rules), but only to examine the 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, 109 S.Ct. 72, 102 L.Ed.2d 48 (1988).

This Court is not being asked to pass on whether plaintiffs' have an independent constitutional right to be heard by the Senate Judiciary Committee. Rather, this Court is confronted with facts that mandate only one conclusion: The violation of Senate Rule 12:3(b) was a violation of the legislative process itself and resulted in a violation of plaintiffs' procedural due process rights.

Point III

THE SENATE'S VIOLATION OF RULE 12:3(b) IS A JUSTICIABLE CONTROVERSY MANDATING JUDICIAL INTERVENTION

It is the responsibility of the Courts to decide whether a matter has been committed by the Constitution to another branch of government and is therefore nonjusticable. DeVesa v. Dorsey, 134 N.J. 421, 429 (1993), citing Baker v. Carr, 369 U.S. 186, 211, 82 S.Ct. 691, 706, 7 L.Ed.2d 663, 682 (1962).

In DeVesa v. Dorsey, 134 N.J. 421 (1993), the New Jersey Supreme Court upheld a trial court denial of a challenge to the use of Senatorial Courtesy to block Marianne Espinosa from receiving tenure. The Court was equally divided on the grounds for affirmance.^[1]

In the concurrence filed by Justices Pollock, Clifford and Garibaldi, it was held that the challenge to the use of Senatorial Courtesy was nonjusticable as "no standards exist by which the judiciary can determine whether the exercise of senatorial courtesy constitutes an abuse of that power" DeVesa, 134 N.J. at 426.

Although denying the challenge then before them, the Supreme Court was clear that some challenges to Senate action are justiciable. The Court affirmed that if an issue is "subject to judicial review, we may proceed to the substance of the claim." Id. at 429.

The situation before this Court is immediately distinguishable from DeVesa as the written Senate Rules, by definition, provide explicit standards. There is nothing ambiguous about Rule 12:3(b)'s mandate that the public receive notice of a hearing with "at least five State working days" notice and there can be no denial that the violation of this Rule deprived the people of the right to be heard.

Under the standard set forth and reviewed in the first concurrence in DeVesa, the issue before this court is justiciable and should be addressed.

The holding of the second three justices (concurring in part and dissenting in part), is even more supportive of plaintiffs' assertion that the issue before this Court is justiciable and the requested relief mandated.

The words of the justices explicitly and unequivocally address the issue before this Court:

Courts readily acknowledge the breadth of legislative rulemaking governing internal legislative procedures. Because a practice reflects a legislative rule or procedure does not mean, however, that application of the rule or procedure is immune from judicial review. A legislative procedural rule is subject to judicial review if there is an obvious violation of fundamental rights. When the inquiry is whether the legislature or any other body or officer has violated the regulations of the constitution it is entirely plain that the decision of that subject must rest exclusively within the judicial department of the government. DeVesa 134 N.J. at 456-457 (internal citations omitted).

Federal Courts exploring the issue of justiciability have reached the same conclusion through a nearly identical analysis. In Metzenbaum v. Federal Energy Regulatory Commission, 675 F.2d 1282, 1286‑88 (D.C.Cir.1982), the Second Circuit held that "[J]udicial intervention may be appropriate where rights of persons other than members of Congress are jeopardized by Congressional failure to follow its own procedures."

In the matter before this Court, the most basic fundamental right of people in a democracy - the right to be heard - was arrogantly disregarded by the Senate Judiciary Committee. This constituted a violation of the procedural due process rights of the people the Senate were elected to serve and, specifically, of the plaintiffs.

CONCLUSION

For the above reasons, this Court should find that the issue is justiciable in that the rights of plaintiffs in particular, and the people of New Jersey in general, were wantonly violated by the Senate Judiciary Committee.

The preliminary injunction against defendant Marianne Espinosa taking the oath of office should issue and plaintiffs are entitled to the requested injunctive, declarative and monetary relief.

Respectfully submitted this 15^th day of July, 2005

____________________________

David Perry Davis, Esq.

The Law Office of

David Perry Davis

31 Jefferson Plaza

Princeton, NJ 08540

(732) 274‑9444

(732) 274‑2050 (fax)

Attorney for plaintiffs

Jeff Golden, Dorothy Mataras, Robin K. Vinik, Dominick Romano, Dr. Dwight E. Garcia, Eric Mataras, Gunnar Wahlstrom, as private citizens of New Jersey,

Plaintiffs

vs.

Hon. Richard Codey, individually and as President of the New Jersey Senate,

Senator John H. Adler, individually, and as chairman of the Senate Judiciary Committee, and as a member of the New Jersey Senate,

the New Jersey Senate,

Marianne Espinosa, Esq.

Defendants

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SUPERIOR COURT OF NEW JERSEY

LAW DIVISION

MERCER COUNTY

DOCKET NO. MER-L-

Civil Action

COMPLAINT FOR DECLARATIVE

AND INJUNCTIVE RELIEF

and

ACTION IN LIEU

OF PREROGATIVE WRIT

I. PRELIMINARY STATEMENT

1. This is an action by various New Jersey citizens and organizations asserting a claim pursuant to N.J.S.A. 10:4‑15 and civil rights violations under 42 U.S.C. § 1983, the New Jersey Civil Rights Act of 2004, and a private cause of action arising from the defendants' violation of the Rules of the Senate of the State of New Jersey concerning mandatory notice to the public of any hearing on a judicial appointment.

2. Plaintiffs seek a declaratory judgment that defendant Marianne Espinosa's alleged appointment to the bench is illegitimate and an injunction enjoining her from her taking office unless and until such time as a proper hearing is conducted in accordance with Senate rules.

II. JURISDICTION AND VENUE

1. Jurisdiction is conferred on this Court by Article 6 §1.2 of the New Jersey Constitution. This is an action arising under the Constitution and laws of the United States and the State of New Jersey. The plaintiffs cause of action arises under N.J.S.A. 10:4‑15 and as a private cause of action for the violation of Senate Rules, under 42 U.S.C. §1983, and under the New Jersey Civil Rights Act of 2004.

2. Venue is appropriate under Rule 4:3‑2(a) as defendants are located or reside in this judicial district, and the alleged events giving rise to the claim occurred in this county.

III. PARTIES

1. Plaintiffs are citizens of New Jersey entitled to the protection of the Senate Rules. All said plaintiffs would have submitted live or written testimony before the Senate Judiciary Committee had proper notice in accordance with the Senate Rules been provided.

2. Defendant Hon. Richard Codey is the President of the New Jersey Senate, and as such is responsible for ensuring that the Senate adheres to duly enacted Rules intended to benefit the public.

3. Defendant Senator John Adler is the chairman of the Senate Judiciary Committee, and is as such responsible pursuant to Senate Rule 12:3(b) for calling a meeting of the Committee for the purpose of considering nominations referred to them by the President of the Senate.

4. Defendant Senators John A. Girgenti, Byron M. Baer, Nia H. Gill, William L. Gormley, Joseph M. Kyrillos, Robert J. Martin, Paul A. Sarlo, Nicholas P. Scutari, and Bob Smith, are members of the Judiciary Committee of the New Jersey Senate and as such are bound to adhere to the Senate Rules.

5. The New Jersey Senate is an organization established pursuant to Article IV, Section I of the New Jersey Constitution. The Senate is authorized pursuant to Article IV, Section IV of the New Jersey Constitution to establish its rules, which then become binding on it.

6. Defendant Marianne Espinosa conspired with the other named defendants to circumvent the public's procedural due process rights under Senate Rule 12:3(b). As an attorney and former judge, she knew or should have known that the public was entitled to notice of her appointment hearing.

Additionally, she is a person having an interest in the controversy, and who ought to be made a party in order that the court may do complete justice by adjusting all the rights involved.

V. CAUSE OF ACTION

As to plaintiff private citizens

1. Plaintiffs Jeff Golden, Dorothy Mataras, Robin K. Vinik, Dominick Romano, Dr. Dwight E. Garcia, Eric Mataras, Gunnar Wahlstrom are citizens of the State of New Jersey. Had they been provided with the lawfully prescribed notice of the hearing of the judiciary committee, they would have testified in opposition to the appointment of defendant Marianne Espinosa.

2. Plaintiffs procedural due process rights under the United States and New Jersey Constitution, as well as their rights pursuant to 42 U.S.C. § 1983, and their rights pursuant to the New Jersey Civil Rights Act were violated by the New Jersey Senate when the Senate purported to appoint defendant Marianne Espinosa as a judge without having provided the public with proper notice.

As to defendant Hon. Richard Codey

3. Hon. Richard Codey, as the President of the New Jersey Senate, had an absolute duty to the plaintiffs to abide by the Rules of the New Jersey Senate.

4. This duty was violated when Senator Codey posted the nomination of defendant Marianne Espinosa for a vote by the full Senate after the public had been deprived of its right to be heard in a proper committee hearing.

As to Senator John H. Adler

5. Senator John Adler was legally bound to comply with the Rules of the Senate [pursuant to typo omitted ]

6. This duty was violated when Senator Adler called a Judiciary Committee hearing for June 27, 2005, at 9:00 a.m. as to the appointment of Marianne Espinosa without providing the public with "at least five State working days" notice.

7. Senator Adler violated his duty and the public's trust by intentionally scheduling said hearing with insufficient notice so as to avoid the participation of citizens, including plaintiffs, who he knew to be opposed to defendant Espinosa's appointment as a Judge of the Superior Court. The intentional scheduling of the appointment hearing of defendant Espinosa without due and proper notice to the public constituted a conspiracy against the citizens of this State, including plaintiffs.

As to Defendant Senators

8. Defendant Senators John A. Girgenti, Byron M. Baer, Nia H. Gill, William L. Gormley, Joseph M. Kyrillos, Robert J. Martin, Paul A. Sarlo, Nicholas P. Scutari, and Bob Smith had an absolute duty to adhere to the Senate Rules concerning notice to the public of any hearing.

9. Defendant Senators violated this duty by voting on the nomination of Defendant Espinosa for appointment as a Judge of the Superior Court.

WHEREFORE, plaintiffs pray that this Court enter a judgment in its favor and against the defendants:

1. Declaring the purported appointment of Marianne Espinosa as a Judge of the Superior Court to be invalid;

2. Prospectively requiring the New Jersey Senate to adhere to its rules concerning notice and a public hearing before again considering the nomination of Marianne Espinosa;

3. Enjoining Marianne Espinosa from being sworn in and/or taking office as a Judge of the Superior Court;

4. For damages against Senator Adler, individually and as chairman of the Senate Judiciary Committee, for engaging in a knowing conspiracy against plaintiffs;

5. For counsel fees and costs pursuant to 42 US § 1988 and pursuant to the New Jersey Civil Rights Act of 2004;

Respectfully submitted this 15^th day of July, 2005

___________________________

David Perry Davis, Esq.