Opposition — New Jersey Manufacturers Insurance v. Motor Club Fire & Casualty Co.

OCT 5 i977

In THE MICHAEL RODAK, JR., CLERK

Supreme Cot of the United States

Octoser TERM, 1977

if No. 77-377

NEW JERSEY MANUFACTURERS INSURANCE

COMPANY,

Petitioner,

vs.

MOTOR CLUB FIRE & CASUALTY CO. and

FRANCES SCIBETTA,

Respondents.

On Petition for Writ of Certiorari to the

Supreme Court of New Jersey

SS — —

| BRIEF IN OPPOSITION

>.

Jupson L. Levry,

Counsel for Respondent,

Frances Scibetta,

46 Branford Place,

Newark, New Jersey 07102.

(201) 623-0505

_ OOOO

Adams Press Corp., 5 Commerce Street, Newark, N. J. 07102—(201) 623-8611

TABLE OF CONTENTS

PAGE

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CONSTITUTIONAL PROVISIONS ..........-----.----c---0eeeeeeeceeeeeeeeees

ConcisE STATEMENT OF THE CASE. .........--.-------0cceeceeeeeeo-es 2

ARGUMENT: °

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2. Jurisdiction to grant certiorari is absent

pursuant to controlling cases -...0.22..0220....2...-- 7

3. Jurisdiction to grant certiorari is absent pur-

suant to Rules 19 and 23 .......... schnemeappiannaenaceansin 12

4. Jurisdiction is likewise absent with respect

to petitioner’s claims arising out of the grant

of rehearing in the New Jersey Supreme

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APPENDIX:

A—Petition for Rehearing in the Supreme Court

Se ee BD cementation la

Cases Cited

Aero Transit Co. v. Commissioners, 332 U. S. 495 10

Albertson v. Millard, 345 U. S. 242 (1953) 2200. 10

Annoymous v. Baker, 360 U. S. 287 (1959) 000... 8

ii TABLE OF CONTENTS

PAGE

Bailey v. Anderson, 326 U. 8S. 203 (1945) .. 8

Barrows v. Jackson, 346 U. S. 249 (1953) -.-.. 11

Chambers v. Mississippi, 410 U. 8. 284 (1972) —.W.......

CIO v. MeAdory, 325 U. S. 472 (1945) —0.... 9

Coleman, et al. v. Alabama, 399 U. S. 1 (1970) -.......... 10

Columbia Railway Gas & Electric Co. v. South

Carolina, 261 U. S. 245 (1923) me

Commercial Bank v. Buckingham’s Executors, 5 How

317 , 8

Cramp v. Board of Public Instruction of Orange

County, 368 U. S. 278 (1961) ....... x 10

E] Paso v. Simmons, 379 U. S. 497 (1965) -....-......... 7

Garner v. Louisiana, 368 U. S. 157 (1961) ..-e-scecoso------ ~ 10

Kingsley International Pictures Corp. v. Regents,

360 U. S. 684 (1959) a

Monks v. New Jersey, 398 U. S. 71 (1970) 9

Oxley Stove Co. v. Butter County, 166 U. S. 648

(1897) 8

Radio Station WOW v. Johnson, 326 U. S. 120 (1945) 8

Selected Risks Ins., Co. v. Zullo, 48 N. J. 362 .000........ 4

Street v. New York, 394 U. 8S. 576 (1969) 2. 9

Tidal Oil Co. v. Flanagan, 263 U. S. 444 (1924) _..... 12

United States v. Burnison, 339 U. S. 87 2... 10

United States Trust Company v. State of New Jer-

A, GE Cag GP ee GD eecteniiiaiernitinetiitiinnicimennel 6, 7,10

Winters v. New York, 333 U. S. 507

TABLE OF CONTENTS iil

PAGE

Statutes Cited

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28 U.S.C.A.:

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Rules Cited

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I GOD cccstiectenisntensnracnminmesesnannnnnnsimnnnnenmmmmnmnitn 2

IN THE

Suprene Court of the Ruited States

Ocroser TrerM, 1977

No. 77-377

vee _

NEW JERSEY MANUFACTURERS INSURANCE

COMPANY,

Petitioner,

vs.

MOTOR CLUB FIRE & CASUALTY CO, and

FRANCES SCIBETTA,

Respondents.

On Petition for Writ of Certiorari to the

Supreme Court of New Jersey

—_—~ > --

BRIEF IN OPPOSITION

Frances Scibetta, a respondent, opposes the Petition

For A Writ Of Certiorari of New Jersey Manufacturers

Insurance Company (hereafter referred to as NJM) and

objects to the jurisdiction of the Court to grant the writ.

Opinions Below

Petitioner has properly referred to all opinions and

reproduced them in its appendix (Pb1, Pal et seq.).

Jurisdiction

Petitioner invokes jurisdiction under 28 U.S.C.A. Section

1257(3) and filed timely.

This respondent objects to jurisdiction and demonstrates

the absence of jurisdiction in this brief.

Constitutional Provisions

Petitioner cites the contract clause, the fifth amendment,

and the fourteenth amendment. These are set out ver-

batim in its brief (Pb3). These provisions appear no-

where in the record or official edition. [Rule 40(1)(c) ]

because they were not raised below.

Concise Statement of the Case

Please refer to the opinion of the Supreme Court of

New Jersey, 73 N. J. 425 (Pa3, 4).

ARGUMENT

1. Introduction

The New Jersey Statute (Pa5) which regulates the

omnibus clauses of motor vehicle liability insurance poli-

cies is N.J.S.A. 39:6-46 (hereafter referred to as the omni-

bus statute). The language applicable to this litigation is

as follows:

The policy shall... insure ... any other person

using or responsible for the use of any such motor

vehicle with the express or implied consent of the

insured ... (L. 1952, C. 173, Section 24)

N.J.S.A. 39 :6-48( b) provides:

The policy, any written application therefor and any

rider or endorsement which shall not conflict with

the provisions of this act shall constitute the entire

contract between the parties (L. 1952, C. 173, See-

tion 26) “

The latter statute is nothing more than codification of

the familiar rule that applicable statutes are implied pro-

visions of any contract.

The applicable language of the (Pa5) omnibus clause of

the insurance policy of New Jersey Manufacturers Insur-

ance Company (hereafter referred to as NJM) would pro-

vide coverage for:

. any other person using such automobile with

the permission of the named insured, provided his

actual operation ... is within the scope of such

permission.

The law of New Jersey establishes the perimeter of

coverage at consent to use. NJM cavalierly narrowed the

perimeter to permission to operate.

4

In 1966, the verbatim, identical omnibus clause language

in the policy of another insurance company was before

the Supreme Court of New Jersey. Selected Risks Ins.,

Co. v. Zullo, 48 N.J. 362. The Court found the policy

“automatically amended” to conform to the omnibus stat-

ute (Pal2). The Court really applied the statute in place

of the omnibus clause of the insurance policy which was

void because unlawful. The NJM policy in this action

was issued around 1970 with the omnibus clause language

declared unlawful in 1966.

The “standard omnibus clause” (Pb4) is as illegal in

New Jersey as the standard burglary.

The Supreme Court of New Jersey in this action was

again obliged to apply the omnibus statute beeause the

policy clause “did impermissibly depart from the statute”

(Pal2).

In a thorough and well reasoned opinion, the Court cited

well established New Jersey cases holding that use is

broader than operation and that coverage is not vitiated

by events occurring after initial permission to use is

extended.

“The strong legislative policy which would assure

financial protection to innocent victims of automo-

bile accidents, embodied in the mandated omnibus

clause and long and consistently invoked by our

courts in the ‘initial permission’ cases, applies with

no less force to the present situation.” (Pal5)

The act which contains the omnibus statute is given an

official title by N.J.S.A. 39:6-23, as follows:

This act shall be known and may be cited as the

“Motor Vehicle Security Responsibility Law”.

In linking coverage with use, the New Jersey omnibus

statute is similar to that of other states. For example,

New York and California:

Provision affording insurance to the named insured

with respect to any motor vehicle covered by such

policy, and to the same extent that insurance is

afforded to the named insured, to any other person

using, or legally responsible for the use of such

motor vehicle, provided such use is by the named

insured or with his permission, express or implied,

and within the scope of such permission . . . Cali-

fornia Insurance Code, 43 Annotated California

Codes, §115 80.1(b) (4).

No policy or contract of personal injury liability

insurance . . . covering liability arising from the

ownership, maintenance, or operation of any motor

vehicle . . . shall be issued . .. unless it contains a

provision insuring the named insured against lia-

bility for death or injury sustained ... as a result

of negligence in the operation or use of such vehicle

by any person operating or using the same with

the permission, express, or implied of the named

insured. McKinney’s Consolidated Laws of New

York, Book 27, Insurance Law, §167.

Financial responsibility of motor vehicle owners and

operators and the scope of their liability insurance cov-

erage are manifestly matters of tremendous public im-

portance which are subject to the police powers of the

States. In the motor vehicle field, as in others, the exer-

cise of police power by statute may have -the effect of

nullifying some contractual provisions. The police power

is supposed to do that if necessary. There is no claim

that the NJM omnibus clause predated the omnibus stat-

ute and such is not the case. It is difficult to perceive

6

a constitutional issue in the Petition For Writ of Cer-

tiorari. No claim involving the Constitution was previ-

ously asserted in this action, nor has this writer seen any

case in any state which has raised a constitutional issue

with respect to any omnibus clause or statute.

Petitioner's simplistie argument (Ph9 and 10) on the

subject of reasonableness of the legislative poliey of New

Jersey in essence is that if one insurance policy meets

legislative requirements, another is constitutionally ex-

empt. Except to note that N.I.S.A. 39:6B-1 (Pb9) (T..

1972, C. 197, effective January 1, 1973) became effective

more than a year after the accident in question (Aucust

26, 1971) (Pb3), this argument which totally ignores the

interest of the state in regulating the seope of coverage

need not be dignified by further discussion.

In United States Trust Company v. State of New .Jer-

sey, et-al., 45 LW 4418 (PbS), this Court applied a three

step analysis: The Court first inquired whether or not

an impairment had occurred. The Court determined that

there had been impairment. The Court, secondly, dis-

tinguished contractual relations to which the State was

a party and those to which it was not and noted that

financial contractual relations involving the State were

involved. The third step was to decide whether or not

the impairment was unconstitutional. The majority held

that the Constitution had been violated.

(1) In this action, there has been no impairment. The

omnibus statute antedated the particular omnibus clause

by many years. The New Jersey Supreme Court did not

work an impairment. It simply applied the omnibus

statute and prior interpretation thereof. The constitu-

tionality of the statute was never questioned at any stage

of the New Jersey proceedings. (2) Assuming arguendo

that an impairment be present, this action does not in-

volve financial contractual relations to which the State

was a party and, therefore, significantly differs from

United States Trust Company, supra. (3) A long, firm

line of cases of this Court holds that the legitimate, re-

served police power of the State does not yield to claim

of constitutional impairment. “Once we are in this do-

main of the reserve power of a State we must respect the

‘wide discretion on the part of the legislature in deter-

mining what is and what is not necessary.’” El Paso v.

Simmons, 379 U.S. 497 (1965), 508.

Resort to this Court is literally an afterthought, since

not one word about constitutionality has previously, been

written or heard in this action.

The claim that the omnibus statute violates other con-

stitutional rights, unsupported by authority, is frivolous.

Against this historical and analytic background, with

this action in the posture described, NJM petitions for

writ of certiorari.

2. Jurisdiction to grant certiorari is absent

pursuant to controlling cases

The validity of the omnibus statute on the ground of its

being repugnant to the Constitution of the United States

was not “drawn in question” [28 U.S.C.A. Seetion 1257

(3)] before filing of the Petition For Writ of Certiorari.

Thus, the United States Supreme Court lacks jurisdiction

to review. Mindful of its concern for issues meeting the

requirements of Rule 19, this Court has always been flex-

ible in deciding whether or not a federal issue has been

properly drawn in question in state court proceedings. In

effect, the Court has applied the standard of what com-

mon sense would tell any reasonable jurist. Perhaps the

8

outer limit of this approach is represented by Annonymous

v. Baker, 360 U.S. 287, 288 (1959), in which right to coun-

sel was obviously involved although that issue was not

specifically raised in pleadings or expressly passed upon

in the state courts. See also Chambers v. Mississippi,

410 U.S. 284, 289, (1972) in which petitioner’s federal

claim arising out of evidentiary rulings was first raised

in his motion for new trial and then in his appeal to the

State Supreme Court.

Within the outer limit of jurisdiction, this Court has

made rulings which are as clear as they are fair and rea-

sonable. In Commercial Bank vy. Buckingham’s Ezxecu-

tors, 5 How 317, 341, it was held that “it must appear, by

clear and necessary intendment, that the question must

have been raised, and must have been decided, in order

to induce the judgment.”

Oxley Stove Co. v. Butter County, 166 U.S. 648, 655,

(1897) :

“Upon like grounds the jurisdiction of this court to

reexamine the final judgment of a state court ean-

not arise from mere inference, but only from aver-

ments so distinct and positive as to place it beyond

question that the party bringing a case here from

such court intended to assert a Federal right.”

In Bailey v. Anderson, 326 U.S. 203 (1945), petitioner

raised his constitutional claim in the Virginia Supreme

Court of Appeals which did not rule on it and accordingly

his appeal to the United States Supreme Court was dis-

missed for want of any properly presented substantial

federal question. Nor was it regarded as a Petition for

Writ of Certiorari.

Radio Station WOW vy. Johnson, 326 U.S. 120, 128

(1945) :

4)

“Questions first presented to the hichest State

Court on a petition for rehearing come too late for

consideration here . . .”

CIO v. McAdory, 325 U.S. 472, 477 (1945):

“Since the State Supreme Court did not pass on the

question now urged, and since it does not appear

to have been properly presented to that court for

decision, we are without jurisdiction to consider it

in the first instance here.”

Street v. New York, 394 U.S. 576, 582 (1969):

“Moreover, this Court has stated that when, as here,

the highest state court has failed to pass upon a

federal question, it will be assu:ned that the omis-

sion was due to want of proper presentation in the

state courts, unless the aggrieved party in this

Court can affirmatively show the contrary.”

Monks v. New Jersey, 398 U.S. 71 (1970):

“The further claim advanced by petitioner’s ap-

pointed counsel in this Court respecting the alleged

unconstitutional application of N.J. Stat. Ann. § 2A:

4-37(b) has been raised for the first time upon this

writ and the state courts have had no opportunity

to pass upon it. )

“Accordingly we conclude that the writ of certiorari

should be dismissed as improvidently granted, with-

out prejudice to any further appropriate proceed-

ings below.”

In this action, there has not been the slightest sugges-

tion of any federal issue in the state court proceedings. It

was apparent from the time briefs were submitted to the

10

trial judge that the adversaries of NJM claimed that the

NJM omnibus clause flagrantly violated the New Jersey

omnibus statute. A rejoinder that the relevant provision

of the omnibus statute is unconstitutional could have been

introduced at any time thereafter at any tier of the New

Jersey Court system.

Decisions of this Court establish beyond any doubt that

it is bound by a State’s interpretation of its own statute.

Coleman et al. v. Alabama, 399 U.S. 1, 9 (1970); Garner v.

Louisiana, 368 U.S. 157, 166 (1961); Cramp v. Board of

Public Instruction of Orange County, 368 U.S. 278, 285

(1961); See also Aingsley International Pictures Corp. vy.

Regents, 360 U.S. 684, G88 (1959); Albertson v. Millard,

345 U.S. 242, 244 (1953); United States v. Burnison, 339

U.S. 87; Aero Transit Co. v. Commissioners, 332 U.S. 495.

No matter what a court of New Jersey might decide or has

decided, its interpretation “puts these words in the statute

as definitely as if it had been so amended by the legisla-

ture.” Winters v. New York, 333 U.S. 507, 514. Thus, a

constitutional issue cannot remain inchoate until the high-

est state court interprets it because such interpretation,

past or present, is simply regard das part of the statute,

which must properly and colorably be drawn in question

in order to furnish jurisdiction for this Court to exercise

its discretionary power to consider review. A canvass of

the contract clause cases cited in United States Trust Com-

pany v. State of New Jersey, supra, reveals that none of

these cases reached the Supreme Court without prior pre-

sentation of the federal issue in courts below.

The contention that unconstitutional impairment did not

occur until the final state court ruling (Pb11) defies belief,

particularly since the same alleged impairment must have

occurred when the trial judge ruled against petitioner. It

is a truism that you don’t lose a case until the last court

Fad

11

has ruled, but this does not excuse the failure to raise the

federal issue timely and properly.

Citing Barrows v. Jackson, 346 U.S. 249 (1953), peti-

tioner accepts the principle that the impairment clause

applies to legislation, not to judgments. It then (Pb11)

“submits that where, as here, a state court operating un-

der what it has deemed a ‘legislative directive’ gives force

to a statute thus impairing the contract obligation, juris-

diction of this Court attaches. Columbia Railway Gas &

Electric Co. v. South Carolina, 261 U.S. 236 (1923).” This,

indeed, is the holding of Columbia Railway. In that case

the respondent State contended that the state Supreme

Court judgment did not depend upon the statute com-

plained of. This Court ruled that “in real substance and

effect, force has been given to the statute complained of

...” (261 U.S. 245). Jurisdiction was found under the rule

reiterated at 261 U.S. 244:

“As this Court has repeatedly ruled, the Constitu-

tion affords no protection as against an impairment

by judicial decision.”

The Court significantly, however, woted the jurisdictional

history of the case at 261 U.S. 246:

“The suflicieney of the complaint was challenged by

demurrer upon the ground, among others, that the

contract in question was impaired by the Act of

1917. The demurrer having been overruled, an an-

swer was filed, alleging such impairment and this

claim was asserted and insisted upon at every stage

of the proeeedings to their conclusion in the State

Supreme Court.”

The failure in the instant action of NJM to raise the

federal issue at any stage of the proceedings does not re-

quire repetition.

12

When cited in full context, the passage from Tidal Oi

Co. v. Flanagan, 263 U.S. 444, 453 (1924), quoted by NJM

at page 11 of its brief, illuminates another distinction be-

tween cases properly showing jurisdiction and the instant

action.

“Other cases cited are Louisiana v. Pillsbury, 105

U.S. 278, and Muhiker v. New York & Harlem R.R.

Co., 197 U.S. 544, but in each of them a statute had

been passed subsequently to the contract involved

and was held to impair it. In such a ease this

Court accepts the meaning put down upon the im-

pairing statute by the state court as authoritative,

but it is the statute as enforced by the State through

its courts which impairs the contract, not the judg-

ment of the Court.”

If petitioner contends that the judgment of the New Jer-

sey Supreme Court, independent of statute, confers juris-

diction, this has never been the law. If it complains of the

omnibus statute, jurisdiction does not attach because no

federal issue was properly raised, and there has been no

impairment so far as the contract clause is concerned.

3. Jurisdiction to grant certiorari is

absent pursuant to Rules 19 and 23

Assuming, arguendo, that petitioner had properly pro-

ceeded on the federal issue in the state courts, this action,

nevertheless, fails to meet criteria of the Rules of the Su-

preme Court. “Special and important reasons” are not

demonstrated. Rule 19. Clearly, a state court has not

“decided a federal question of substance .. .” Rule 19 (a).

Rule 23 (1) (b) requires petitioner to specify “the stage

of the proceedings in the court of first instance and in the

13

appellate court, at which, and the manner in which, the

federal questions sought to be reviewed were raised; the

method of raising them (e.g. by a pleading, by request to

charge and exceptions, by assigminent of error); and the

way in which they were passed upon by the court, such

pertinent quotations of specific portions of the reeord.. .

as will show that the federal question was timely and prop-

erly raised so as to give this court jurisdiction to review

the judgment on writ of certiorari.” Petitioner has not

made the required showing because it cannot. Moreover,

petitioner has not even attempted to demonstrate how or

why this Court can find jurisdiction or relax its jurisdie-

tional criteria where the jurisdictional standards of firm

ease law and Court Rules cannot be met.

This petition involves a disgruntled insurance carrier

which violated the state motor vehicle code. The action

does not involve the type of issue contemplated by Rule

19. Moreover, the regressive ruling sought by petitioner

would abrogate the long settled scope of omnibus coverage

in New Jersey and elsewhere to the detriment of thousands

of persons presently uninjured and even unborn.

4. Jurisdiction is likewise absent

with respect to petitioner’s claims

arising out of the grant of rehearing

in the New Jersey Supreme Court

Petitioner’s assault upon the grant of rehearing by the

Supreme Court of New Jersey (unsupported by citation)

suffers from the same jurisdictional defects stated above.

Some additional facts are required to controvert peti-

tioner’s argument, assuming some color of jurisdiction

be present.

14

Chief Justice Richard Hughes did not sit at the first

hearing in the New Jersey Supreme Court. No reason

for his absense has ever been stated, nor was his absence

announced in advance. Respondents assumed that he did

not sit because N.JM was represented by the law office in

which he was a partner before his appointment as Chief

Justice, the same office representing petitioner now. Ilis

assumed disqualification was a moot matter until the six

remaining justices divided equally. It was respondents

who under these unusual circumstances were denied equal

protection of the law, and this point was respectfully

made in the motion for rehearing (Ral) which also

stressed that the one sentence ruling of the divided Court

(Pa 25) violated the Court’s own rule governing form of

opinions. Respondents had been denied a full Court be-

cause of prior relationships of the Chief Justice, and the

ruling of the Court did not fairly constitute even one bite

“of the apple” (Pb 12). The Court graciously granted

a rehearing before a full Court (Pa 22) and assigned Jus-

tice Carton to complete the Court (pursuant to Court Rule

providing that power).

It is significant that in the process of the Court’s de-

liberation over an opinion in proper form, Justice Mark

A. Sullivan changed his vote, and the final vote was 5 to

2 in favor respondents (73 N.J. 443), Justice Carton also

voting for respondents.

The New Jersey Supreme Court did not state reasons

in its order granting the rehearing (Pa 22). In the final

opinion, it stated (73 N.J. 428, Pa 2):

“In order to resolve this important issue, we granted

rehearing, 73 N.J. —— (1976).”

In effect, the Court noted the motion for rehearing and

pursuant to its supervisory powers, granted a rehearing

sua sponte, to provide the hearing and ruling in the form

which should have obtained on the first hearing. There

was no constitutional infirmity in this procedure which

resulted in an untainted and unambiguous decision.

CONCLUSION

The constitutional claims of petitioner do not dem-

onstrate colorable merit. Petitioner has egregiously

failed to meet a single jurisdictional requirement of

case law, statute, and Court Rule. This respondent

respectfully prays that this vexatious petition be de-

nied

Respectfully submitted,

Jupson J, Levin,

Counscl for Respondent,

Frances Scibetta.

| Apeenpix Fo tiows]

APPENDIX A

Petition for Rehearing in the Supreme Court of New Jersey

(Filed—October 27, L976)

Supreme Coury or New Jersey

A-15/16 September Term 1976

—~»>

Moror Crus Fine & Casuartry Company,

Plaintiff-Respondent

and Cross-Appellant,

Us.

New Jersey Manvuracrurers |Nsunince Company,

Defendant-Respondent,

and

Frances Sciperra,

Defendant-Appellant.

To: McElroy, Connell, Foley & Geiser, Esqs.

Attorneys for New Jersey Manufacturers

Insurance Company

Gateway I

Newark, New Jersey

Lla]

2a

Appendiz A

Lieb, Teich and Berlin

Attorneys for Motor Club Fire &

Casualty Co.

161 Madison Avenue

Morristown, New Jersey

Sirs:

Take Notice that Frances Scibetta herewith files her

Petition for Rehearing.

Proor oF SERVICE

- I Cerrirvy that | mailed two true copies of the annexed

Petition for Rehearing and Brief of Frances Scibetta to

the attorneys above named at the addresses there shown by

ordinary mail on the 27th day of October, 1976.

/s/ Jupson lL. Levin

Attorney for Frances Scibetta

Brier STATEMENT AND ARGUMENT OF GrouND Retiep Upon

Oral argument in this action took place on September

28th, 1976. The Chief Justice did not sit nor did he par-

ticipate in the decision of the Court. By order dated Octo-

ber 20, 1976, an equally divided Court affirmed the judg-

ment of the Appellate Division. I respectfully assume that

the Chief Justice chose not to sit in this action because

New Jersey Manufacturers Insurance Company (N.J.M.) is

a client of this former law office which represented N.J.M.

in this action. Code of Judicial Conduct, Canon 3C; R.1:

12-1. If so, such decision is consistent with the highest

standards of judicial conduct.

3a

Appendix A

Any vote other than equal division would have left the

disqualification moot. Only at this posture of the case has

the absence of the Chief Justice become critical. By the

fortuity of an equally divided court, an opinion of the Ap-

pellate Division is affirmed.

The subject of this action is of such importance that

this Court, including the Chief Justice, granted the peti-

tions for certification. The importance of this case to

Frances Scibetta requires no emphasis. Iler cause has

been lost through mechanism not provided for by the

Court Rules, a disqualifying Justice and the result of

equal vote. If the assumption respectfully made above be

true, she has been denied the treatment afforded other

litigants appearing before this Court. She has been denied

equal protection of the law because she has not received

the hearing from this Court which any other litigant

whose appeal did not involve a former client of a Justice

or a former law firm of a Justice would receive. If the

Chief Justice would have voted or should vote for affirm-

ance, the result would be the same. If the Chief Justice,

however, would have voted or should vote for reversal, his

abstention clearly affects the outcome of this action, the

law of the State and, secondarily, the law nationally. The

pathos and feeling of injustice arising from this situation

ean be illustrated in the following -reconstruction of my

conversation with my client.

Mr. Levin: Mrs. Scibetta, I’m very sorry to re-

port that we lost your appeal in the Supreme Court.

Mrs. Scibetta: Mr. Levin, I read in the news-

paper that three judges voted against us and that

this means we lost the case. How does this happen?

4a

Appendia A

Mr. Levin: To my knowledge the rule followed

by Appellate Courts in an equal vote is that the

decision of the lower court is affirmed.

Mrs. Scibetta: Aren’t there seven judges on the

Supreme Court?

Mr. Levin: Yes. The Chief Justice did not parti-

cipate in the decision.

Mrs. Scibetta: Why not?

Mr. Levin: I believe that he disqualified himself

because N.J.M. is a client of his former law office

and was represented by that office.

Mrs. Scibetta: Do you think that he would have

been prejudiced against us?

Mr. Levin: No.

Mrs. Scibetta: If he had voted for us, would we

have won the case?

Mr. Levin: Yes.

Mrs, Scibetta: Then we may have lost the case

because his law office and old client were on the

other side?

Mr. Levin: Yes.

Mrs. Scibetta: Would he have heard my case if

another insurance company and another law office

had been on the other side?

Mr. Levin: I think so.

The conditions responsible for the less than equal hear-

ing accorded Mrs. Scibetta are unusual but not unlikely to

recur. They are:

1. An equally divided Supreme Court.

2. A disqualifying Justice.

3. A large insurance company continually involved in

litigation.

5a

Appendia A

4. A large law firm continually involved in litigation.

It is submitted that this distinguished Court has the

power to furnish Mrs. Scibetta the same hearing which

other litigants have when foriner law firms or clients of a

Justice are not involved.

A simple solution is provided when a trial judge is dis-

qualified. The status quo (unlitigated before a trial) is

not simply preserved, Another judge is designated. R. 1:

12-3(a). The Rules are silent on designating a judge to

sit in place of a disqualified appellate judge. The reason

for this omission most likely is that such instances are

rare and a quorum can usually be convened. A quorum

cannot provide equal justice for Mrs. Scibetta, because

under comparable conditions another litigant’s cause

would be decided by seven Justices.

The unsatisfactory nature of the disposition of this

appeal is emphasized by the fact that the form of disposi-

tion violates the rules of the Court. R. 2:11-3(a) provides

for a written opinion. The one sentence disposition of the

Court is not an opinion; it is an announcement of dead-

lock. Numerous Supreme Court opinions adopt the Appel-

late Division decision but do so by majority vote. R. 2:11-

3(e) provides for Affirmance Without Opinion. This rule

is clearly limited to the Appellate Division.

Affirmanee by equally divided court, since not provided

by Court Rule, must then be an administrative practice of

convenience, Other solutions are conceivable. Providing

equal justice to Mrs. Scibetta is likewise an administrative

matter. Thus, this petition does not involve substantive

issues previously argued, and for that reason the provi-

sions of R. 2:11-6(b), do not apply to this petition. Rather,

this petition seeks administrative relief for the substantive

reasons occasioned by the deadlock.

6a.

Appendiz A

Revier REQUESTED

The Chief Justice administers all courts (R. 1:33-1) and

is presiding Justice of the Supreme Court (R. 2:13-1). He

has the power to constitute the Supreme Court to provide

equal justice to Mrs. Scibetta, the lack of which could not

be apparent until the Court divided equally because one

Justice disqualified himself, in this case the Chief Justice

himself. Two solutions occur to this counsel:

1. Relax R. 1:12 (Disqualification) pursuant to R. 1:1-2

(Relaxation) since “adherence to it would result [has re-

sulted] in an injustice” (R. 1:1-2). The disqualified Jus-

tice should reconsider his disqualification on giving the

other Justices and/or counsel an opportunity to be heard.

If he determines that he can sit fairly and impartially, he

should sit.

2. If he deterinines that he cannot sit fairly and impar-

tially, or in any event, the Chief Justice can assign a judge

“to expedite the business of the Court” pursuant to R. 2:

13-2(a).

A rehearing before seven Justices, or in the alterna-

tive, before one more Justice is sincerely and respectfully

requested.

CoNCLUSION

It is ironic and truly unbearable that Frances Scibetta,

the victim around whom litigation has swirled, should be

denied equal justice before this Court because her adver-

sary is represented by an outstanding law firm which

counts a distinguished member of this Court among its

ab a £4 1ST Ow Se

7a

Appendiz A

alumni. A rehearing or continued hearing with seven Jus-

tices is required to afford her the hearing which any other

litigant would have.

Respectfully submitted,

Jupson L. Levin

CERTIFICATION

a

I certify that this Petition is submitted in good faith

and not for purposes of delay.

Jupson L. Levin

Datrep: October 27, 1976