Petition for Writ of Certiorari — Burk v. Burk

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IN THE |

SUPREME COURT OF THE UNITED STATES

October Term, 1989

J. Robert Burk, Jr.,

Petitioner,

Vv.

Patricia A. Burk,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF NEW HAMPSHIRE

J. Robert Burk, Jr., Pro Se

20 Ledgewood Hills Drive

Apartment No. 207

Nashua, N. H. 03062

(603) 881-9617

May 25, 1990

QUESTIONS PRESENTED

Whether the New Hampshire Supreme Court

contravened Petitioner's right to due

process of law under the Fourteenth

Amendment to the United States Constitution

by summarily determining on the merits

questions involving substantial liberty

interests in custody of minor children

and property distribution, where Petitioner

had claimed that the evidence at trial

was insufficient to support challenged

portions of a divorce decree, and no

State appellate court reviewed the

record of proceedings below.

Whether Petitioner was denied due process

of law by having the merits of his divorce

determined by a mere attorney, not a

judicial officer as defined by State

law, where no judicial officer ever

heard or reviewed disputed issues de

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novo or reviewed any record of the trial

proceedings.

Whether Petitioner was denied due process

of law in the State divorce case by being

denied the opportunity to review the file

of the court-appointed guardian ad litem,

thus preventing him from fully and effec-

tively preparing for trial on disputed

issues of child custody and visitation,

upon which the guardian made contested

recommendations based on information in

his file.

Was Petitioner denied due process of law

and/or the equal protection of the

laws where Respondent was allowed to

remove the children from the State of

New Hampshire to the State of Colorado,

in which case the decree called for a

73% reduction in Petitioner's custody/

visitation with the children from 169

days per year to a mere 46 days per year,

Bia ae Ased Re

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contrary to the liberty interests

protected by the Fourteenth Amendment?

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TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ...

TABLE OF CONTENTS ee erro

TABLE OF AUTHORITIES ae Ne ec:

PETITION FOR WRIT OF CERTIORARI . .

Ce rr re rr

JURISDICTION pa

CONSTITUTIONAL PROVISIONS

STATEMENT OF THE CASE .......

REASONS FOR ALLOWANCE OF THE WRIT. .

CONCLUSION ee ee ee

AFFIDAVIT OF FILING AND SERVICE... .

VERIFICATION Pee ee sat ae Gee ae ee

ADDENDUM

APPENDIX I (Order of N.H.S.Ct.

dated January 9, 1990)

APPENDIX II (Order of N.H.S.Ct.

of February 27, 1990)

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CASES:

408 U.S. 564 (1972)

408 U.S. 665 (1972)

Bundy v,. Wilson, 815 F.2d 125

Cee Gems BOOP 6 6 6 ay Se De Bee

Cornforth v. Cornforth, 123 N.H. 61,

455 A.2d 1049 (1983) no eee

‘

381 U.S. 479 (1965)

298 U.S. 468, (1936).

» 126 N.8. 17,

eS i a) | ee & P

Quilloin v. Walcott,

434 U.S. 246 (1978) ...,,

Bhode Island v. Massachusetts, 37 U.S.

(12 Pet.) 657, 718 (1838) “ee

Ross _ v,. Gadwah, 131 N.H. 391,

554 A.2d 1284 (1988) .. .417, 18, 20,

127 N.H. 754, 506 A.2d 351 (1986).

State v. Robert H. ~ sae 8.8. 73

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United States v. Nobles,

422 U.S. 225 (1975) ..........19

477 U.S. 667 (1980) ..........4215

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418 U.S. 683 (1974) ........ 19, 20

Superior Court, 831 F.2d 362

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United States Statutes,

28 U.S.C. SS 1257 (3) and 2101 (c) and

Revised Rules of the Supreme Court

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TREATISE:

R. Wiebusch, 5 NEW HAMPSHIRE PRACTICE:

CIVIL PRACTICE AND PROCEDURE, Ch. 39

(eauity, i366) Ceume. i989) « « « « « « AQ

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1989

No.

J. Robert Burk, Jr.,

Patricia A. Burk

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF NEW HAMPSHIRE

Petitioner J. Robert Burk, Jr., Pro Se,

respectfully prays that a writ of certiorari

issue to review the judgment of the New

Hampshire Supreme Court entered in the

above-entitled cause on January 9, 1990.

This Order is reproduced as Appendix I,

annexed hereto.

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OPINION BELOW

The one-page order challenged herein

was issued on January 9, 1990 as a "summary

affirmance" without opinion, and without

review of the record, "in accordance with

(N.H. Supreme Court] Rule 25(1)(a),"_ see,

Appendix I, annexed hereto, withno hearing.

Petitioner moved for reconsideration,

citing the constitutional violation of

determining sufficiency of the evidence

questions "summarily" without any review

of the record. See, Bundy v. Wilson, 815

F.2d 125 (lst Cir. 1987) (due process for-

bids such determinations when substantial

liberty interests are at stake). Petitioner's

motion for reconsideration was timely filed.

The Supreme Court of New Hampshire

denied the motion for reconsideration

without hearing or opinion in an Order

dated February 27, 1990. See, Appendix II,

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annexed hereto.

Neither order was published in any

form.

JURISDICTION

This Petition is timely filed.

The jurisdiction of this Court is

invoked pursuant to 28 U.S.C. §§ 1257(3)

and 2101(c), and Rules 20.2 and 28.2,

Rules of the Supreme Court of the United

States.

CONSTITUTIONAL PROVISIONS

This Petition involves claims arising

under the Due Process and Equal Protection

Clauses of the Fourteenth Amendment to the

United States Constitution, which prohibit

_deprivations of liberty or property without

due process of law and the equal protection

of the laws.

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STATEMENT OF THE CASE

The basic facts and procedural history

of this case, necessary for a determination

of the questions presented in this Petition,

are not in dispute.

Petitioner filed for divorce in the

New Hampshire Superior Court, sitting in

Hillsborough County, on November 23, 1987,

case number 87-M-2028.

Numerous issues arcse as to custody

of and visitation with the parties' three

minor children, and with respect to division

of the parties' marital estate.

Petitioner demanded hearing, or re-

hearing de novo on disputed issues by a

regular justice of the Superior Court,

duly commissioned under State law as a

judicial officer. His repeated motions

in this regard were denied by the Superior

Stine’ ald .

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Court, and not heard by the Supreme Court

of New Hampshire. See, Order of "summary

affirmance," Appendix I, in New Hampshire

Supreme Court case numbe. 89-482.

Among the issues raised by Petitioner

in his State Notice of Appeal in No. 89-

482, was the denial of access to the

Guardian Ad Litem's file for effective

trial preparation and preparation for

cross-examination, and the provision of

the final decree requiring a 73 % reduction

in custody/visitation time in the event

Respondent moved out of the State of New

Hampshire, to Colorado, which the decree

allowed her to do at her whim. These

issues were preserved in the Superior Court

by timely objection, motion, or motion for

reconsideration of the decree under State

practice.

When the New Hampshire Supreme Court

summarily affirmed the decree, overruling

Petitioner's sufficiency of the evidence

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challenges thereto, Petitioner filed a

timely motion for reconsideration raising

the due process issue under the Fourteenth

amendment. The motion was dated January

16, 1990.

The only hearing Petitioner was ever

afforded in the State courts was before a

marital master who was as a matter of State

law not a judicial officer, and was, rather,

merely a private attorney sitting for the

day, "({e]ffectively...[as] a de facto judge."

Cornforth v. Cornforth, 123 N.H. 61, 63,

455 A.2d 1049 (1983). This constitutional

grievance of Petitioner's was ignored by

both the Superior and Supreme Courts of

New Hampshire. The Superior Courts of the

State are so backlogged that were a trial

judge to be assigned to hear or even review

the transcriptural record of divorce cases,

virtually no other business could be con-

ducted in the courts. This explains, but

COST ea than a dpa tet RPA Kets wi

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does not justify, the jurisdictional and

hence due process defects in the State

system which allows determination of cases

by non-judges with no judicial review in

either the Superior or Supreme Courts,

contrary to the hearing requirement of the

Fourteenth Amendment.

The Superior Court refused Petitioner's

timely motions for production of the

transcriptural record of proceedings before

the master, for review by a Justice, and

the Supreme Court denied Petitioner's

request for requistion of the transcript

of Superior Court proceedings for review

by the Supreme Court in connection with

the notice of appeal in No. 89-482.

Petitioner's motion for reconsideration

of the judgment of the New Hampshire

Supreme Court in this case was denied

by that Court in its Order dated February

27, 1990. See, Appendix II. This timely

Petition follows.

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BOP ORAS MN dR tae Ae OLAS 1A athe SAA ting OEP Bhee t SS) Oy Sih leh Nia Since hn

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REASONS FOR ALLOWANCE OF THE WRIT

The New Hampshire Supreme Court has decided

important questions of federal law which have

not been, but should be, settled by this

Court, and has decided federal questions in

a way that conflicts with applicable decisions

of this Court and of the United States Court

of Appeals for the First Circuit. Rule

10.1(b) & (c), Rules of the Supreme Court

of the United States (eff. January 1, 1990).

I. THE DECISION OF THE SUPREME COURT

OF NEW HAMPSHIRE TO SUMMARILY

AFFIRM PETITIONER'S SUFFICIENCY OF

THE EVIDENCE QUESTIONS, IN HIS

ONLY APPEAL ALLOWED AS OF RIGHT

UNDER STATE LAW, WITHOUT REVIEWING

THE TRIAL RECORD, CONFLICTED WITH

THE DECISION OF THE UNITED STATES

COURT OF APPEALS FOR THE FIRST

CIRCUIT IN BUNDY V. WILSON, 815

F.2d 125 (lst Cir. 1987) AND CASES

OF THIS COURT COLLECTED THEREIN,

AND OFFENDED THE DUE PROCESS CLAUSE

OF THE FOURTEENTH AMENDMENT WHERE

SUBSTANTIAL LIBERTY AND PROPERTY

INTERESTS WERE AT STAKE.

Petitioner had appealed to the New Hamp-

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shire Supreme Court that the evidence at

trial was insufficient as a matter of law

to support the decree in this case. The

State Court summarily affirmed the decision

below in accordance with Rule 25(1) (a),

N. H. Supreme Court Rules Annotated, which

allows such a disposition, even where, as

here, the trial record was not requisitioned

by the State Supreme Court, nor reviewed

by it in any fashion.

The United States Court of Appeals for

the First Circuit ruled in Bundy v. Wilson,

815 F.2d 125 (lst Cir. 1987) that where

substantial liberty interests were at

stake, as in felony appeals, the New Hamp-

shire Supreme Court could not enforce

its Rule 25 in such a manner as to determine

sufficiency of the evidence questions without

some review of the evidence at trial.

In Your Petitioner's case, substantial

liberty interests in custody of and visitation

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with his minor children were at stake,

along with substantial property interests

in tens of thousands of dollars of marital

assets. It is beyond dispute that the

Due Process Clause of the Fourteenth Amend-

ment protects both "liberty" and "property."

Board of Regents v. Roth, 408 U.S. 564 (1972).

The First Circuit concluded in Bundy

that what process that was due litigants

in the New Hampshire Supreme Court included

actual review of a trial record before

summary disposition could be made of

questions implicating the sufficiency of -

the evidence at trial. The Court of Appeals

holding was squarely on due process grounds,

emphasizing that an appeal to the New Hamp-

shire Supreme Court is a litigant's one and

only chance for review in New Hampshire,

there being no intermediate court of appeals

in the State system.

Your Petitioner's appeal to the New

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Hampshire Supreme Court was indeed his only

available judicial review of a trial

master's determination of his divorce case.

Due process required that the New Hampshire

Supreme Court not summarily affirm the

challenged portions of the decree without

some review of the evidence to support it.

This obvious deprivation of Federal

due process is a special and important

reason for this Court to grant the writ

in this case.

II. PETITIONER WAS DENIED FOURTEENTH

AMENDMENT DUE PROCESS BY HAVING

THE MERITS OF HIS DIVORCE DECIDED

BY A MERE ATTORNEY-—NOT A JUDICIAL

OFFICER AS DEFINED BY STATE LAW—

WHERE NO JUDICIAL OFFICER EVER

HEARD OR REVIEWED DISPUTED ISSUES

DE NOVO OR REVIEWED ANY RECORD

OF THE TRIAL PROCEEDINGS.

Another patent defect in the State pro-

ceeedings, of Constitutional dimension, was

the failure and refusal of the State to

afford Your Petitioner any hearing by a

judicial officer prior to the determination

of the merits of his divorce case.

A "judicial officer" in New Hampshire is

one nominated and appointed by the Governor

and Executive Council pursuant to Part II,

Articles 46 & 47 of the New Hampshire

Constitution. Opinion of the Justices,

128 N.H. 17, 19, 509 A.2d 746 (1986).

The private attorney who sat as a "master"

in this case was "not so appointed, tenured,

Or empowered" as a “judicial officer" as

a matter of law. Id., at 20. He lacked the

"necessary characteristic of a judicial

officer [,namely] the authority to render

judgment to determine issues that are

properly raised before the judicial branch,"

id., at 19, citing Rhode Island v. Massachu-

setts, 37 U.S. (12 Pet.) 657, 718 (1838)

and N.H. Constitution, Part I, Art. 37 and

Part II, Art. 72-a. Accordingly, this master

had no jurisdiction, "that final authority,"

Opinion of the Justices, supra, 128 N.H.,

at 19, to determine the issues in Petitioner's

divorce case. Ibid, citing R. Wiebusch, 5

NEW HAMPSHIRE PRACTICE: CIVIL PRACTICE AND

PROCEDURE, Ch. 39 (Equity, 1984). See

especially, id., Wiebusch, § 1380, n. 85

(Supp. 1989) ("The [N.H.] Supreme Court has

recently acknowledged that the Superior

Court judge usually gives a Master's Report

only cursory review before approving and

Signing it. State ex rel. Casinelli v.

Bourgeois, 127 N.H. 754, 506 A.2d 351 (1986)").

The “cursory review" in Your Petitioner's

case included denying Petitioner's requests

for de novo rehearing of disputed issues

by a duly-commissioned Superior Court

Justice, and denial of Petitioner's motion

for production of the transcript of pro-

ceedings before the Master, for review

by a Justice at a minimum. Thus, there

was no review whatever by any judicial

officer of any issue raised in this divorce

case.

The lack of hearing by any judicial

officer, and the consequent sole determination

of all issues by a non-judicial master—

lacking jurisdiction to decide cases—

worked a total deprivation of Fourteenth

Amendment due process of law to Petitioner's

disadvantage in this case.

The United States Court of Appeals

for the First Circuit reviewed a similar

challenge arising in a New Hampshire

divorce case, see, Witte v. Justices of the

New Hampshire Superior Court, 831 F.2d

362 (lst Cir. 1987), and concluded that

where the State litigant had the oppor-

tunity for de novo rehearing or some other

review of the proceedings before the Master,

the State system was constitutional as a

matter of due process of law, as was the

Federal Magistrate Act upheld in United

States v. Raddatz, 447 U.S. 667, 677-681

(1980), for the same reasons. Witte v.

Justices, supra, 831 F.2d, at 364.

However, this Court pointed out in

Raddatz, ibid, by its citation to Morgan

v. United States, 298 U.S. 468, 481 (1936)

("the one who decides must hear" the case

or address himself to the evidence in some

form) that a master or magistrate system

can survive constitutional challenge only

if a litigant is heard in some form by

a judicial officer on "those portions of

the magistrate's report to which objection

is made," as stated in Witte v. Justices,

supra, 831 F.2d, at 364, citing Raddatz.

Here there was no meaningful hearing

or even"appellate" review of the trans-

criptural record of proceedings before the

master by any Justice of the New Hampshire

Superior Court, on points contested by

Petitioner. Cf., Witte v. Justices, supra,

at 363 n.2; Bundy v. Wilson, 815 F.2d 125,

129 & n.3, 133 (lst Cir. 1987) (meaningful

appellate review of trial proceedings

impossible without review of transcript

or other adequate record as a matter of

due process of law).

Since it is undisputed that no judicial

officer heard or even reviewed evidence or

proceedings in this case, and the master

who heard and decided the case had no

authority or jusidiction to do so as a

clear matter of State law, a palpable

violation of the jurisdiction and hearing

requirement of the Due Process Clause of

the Fourteenth Amendment to the United

States Constitution appears in this case.

This fundamental constitutional

defect is a special and important reason

for this Court to grant this Petition.

This practice is routine in New Hampshire

and should be stopped by this Court, before

it spreads elsewhere.

III. PETITIONER WAS DENIED DUE PROCESS

OF LAW IN THE STATE DIVORCE CASE

BY BEING DENIED THE OPPORTUNITY

TO REVIEW THE FILE OF THE COURT-

APPOINTED GUARDIAN AD LITEM, THUS

OBSTRUCTING HIS RIGHT TO FULLY AND

EFFECTIVELY PREPARE FOR TRIAL ON

DISPUTED ISSUES OF CHILD CUSTODY

AND VISITATION, UPON WHICH THE

GUARDIAN MADE CONTESTED RECOMMEN-

DATIONS BASED ON INFORMATION IN

HIS FILE.

"[S]ince due process requires that either

parent have the opportunity to challenge any

evidence presented for consideration by the

trier of fact" in a divorce case, including

a report from a court-appointed guardian

ad litem, Ross v. Gadwah, 131 N.H. 391,

394, 554 A.2d 1284 (1988), even otherwise

privileged communications contained in

the GAL's file must be made available to

litigants, id., at 395.,

"Because ‘an essential requisite of

due process' is the right to be heard,

parents must be accorded that right in

custody proceedings...[which] must provide

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for ‘confrontation when adjudicativerights [or

facts] are in dispute....The right to be

heard includes the right to cross-examine

adverse witnesses....Parents rights of

due process therefore mandate that they

have an opportunity to counter evidence

that a fact-finder will rely on in reaching

a judgment determining their child's fate.

Therefore, none of the information the

guardian gathers can be shielded from

discovery" by the parties to the State

litigation. Ross v. Gadwah, supra, 131

N.H., at 395, 554 A.2d 1284.

Here it is not disputed that Your

Petitioner's request for access to the

guardian's file was denied by the GAL and

the trial master, and Petitioner was

accordingly denied effective confrontation

and contest of the facts relied on by

the Guardian in reaching his recommendation

against Petitioner having custody of his

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minor children in this divorce case.

This Court has also held in two

celebrated criminal cases that "[t]he

need to develop all relevant facts in

the adversary system is both fundamental

and comprehensive" as a matter of due

process of law, United States v. Nobles,

422 U.S. 225, 230-231 (1975), quoting

United States v. Nixon, 418 U.S. 683, 709

(1974), even as against a claim of

privilege from disclosure, id. "Pre-

viously recorded statements of witnesses

[are necessary] so that the [party] may

get the full benefit of cross-examination

and the truth-finding process may be

enhanced." United States v. Nobles, supra,

422 U.S., at 231.

It is an “ancient proposition of law”

...-that ‘the public...has a right to every

man's evidence.’ except for those persons

protected by a constitutional, common-law

or statutory privilege." Branzenburg v.

Hayes, 408 U.S. 665, 668 (1972), quoted

in United States v. Nixon, supra, 418 U.S.,

at 709.

The Guardian had no "privilege" pro-

tecting disclosure of the information

sought by Your Petitioner in this case.

Ross v. Gadwah, supra, 131 N.H., at 395,

554 A.2d 1284.

This Court has not clearly held that

these fundamental due process rights of

confrontation and trial preparation are

guaranteed by the Fourteenth Amendment in

State divorce cases where liberty interests

in child custody and visitation are at

stake.

These special and important fundamental

rights should be clarified by this Court

for the better administration of justice

in the several States, and this is a

substantial reason for the Court to allow

the writ herein.

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IV. PETITIONER WAS DENIED FOURTEENTH

AMENDMENT DUE PROCESS OF LAW AND/

OR THE EQUAL PROTECTION OF THE

LAWS WHERE RESPONDENT WAS ALLOWED

TO REMOVE THE CHILDREN FROM THE

STATE OF NEW HAMPSHIRE TO THE STATE

OF COLORADO, IN WHICH CASE THE

DIVORCE DECREE MANDATED A 73%

REDUCTION IN PETITIONER'S CUSTODY/

VISITATION WITH THE CHILDREN (FROM

169 DAYS PER YEAR TO A MERE 46),

CONTRARY TO PETITIONER'S FUNDAMENTAL

LIBERTY INTERESTS IN THIS CASE.

There is no doubt that "the role of

parents in the life of a family has attained

the status of a fundamental human right

and liberty. State v. Robert H. , 118

N.H. 713, 715, 393 A.2d 1387, 1388 (1978)."

Ross v. Gadwah, 131 N.H. 391, 395, 554 A.

2d 1284 (1988).

This Court has held the same as a matter

of Federal due process of law. Quilloin v.

Walcott, 434 U.S. 246, 255 (1978) ("one of

liberties protected by the Due Process

Clause of the Fourteenth Amendment"),

quoted in State v. Robert H. , ibid.

Moreover, this Court has implied that

the Equal Protection Clause may protect

liberty interests in child custody and

visitation matters and other aspects of

family life. Griswold v. Connecticut,

381 U.S. 479, 501 (1965) (Harlan, J.,

concurring), cited for the rule of

decision in State v. Robert H. , supra,

118 N.H., at 715, 393 A.2d 1387, 1388

("Appropriate limits [on family rights]

come not from drawing arbitrary lines but

rather from careful ‘respect for the teach-

ings of history [and] solid recognition

of the basic values that underlie our

society'").

Here, Your Petitioner's divorce

decree mandated that Respondent could

remove the children from the jurisdiction

of New Hampshire at her whim, in which

event Petitioner's rights of custody and

visitation would be massively curtailed

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automatically, without further judicial

review.

No rational basis or reasonable ground

of distinction was ever advanced as to

why Petitioner should be capriciously

deprived of so much of his relationship

with his children merely because Respondent

might unilaterally exercise her right to

move out of state. A much less restrictive

limitation might have addressed how trans-

portation expenses would be shared in the

event Respondent moved out of state, so

that Petitioner might be afforded nearly

all of his ordered access to the children

when they resided within New Hampshire.

Instead, the divorce decree merely reduced

the days of access to Petitioner's children

by 73 $.

It is plain that this reduction was

arbitrary and capricious, and unfair, and

accordingly offensive to both the Equal

Et i) ' eae o @ raf on se.

Protection and Due Process Clauses of

the Fourteenth Amendment, and this con-

stitutes a special and important reason

for this Court to allow the writ in this

matter.

CONCLUSION

For all of the foregoing reasons,

the petition for writ of certiorari to

the Supreme Court of New Hampshire should

be granted.

Respectfully submitted,

May 25, 1990

' obert sy ent Hg

20 Ledgewood Hills DriWe

Apartment No. 207

Nashua, N.H. 03062

(603) 881-9617

AFFIDAVIT OF FILING AND SERVICE

I hereby declare under penalty of

perjury that I have filed the requisite

number of copies of this Petition with

the Court by mailing the same, first class,

postage prepaid, certified mail, return

receipt requested, from New Hampshire

on May J6, 1990.

At the same time, I mailed the

requisite number of copies hereof to

opposing counsel, Luci S. Pilsbury, Esq.,

60 Main Street, Nashua, N.H. 03060 and

Robert G. Daniels, Esq., 19 Derry Road,

Hudson, N.H. 03051, by the same nT |

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id Robert Burk, —

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STATE OF NEW HAMPSHIRE

Hillsborough , §S.

Then came the above-named J. Robert

Burk, Jr., personally known or satis-

factorily identified to me to be the

above-signed, and upon his oath declared

that the foregoing affidavit of filing

and service signed by him was true and

correct, and his voluntary act and deed,

under penalty of perjury.

May 45_, 1990

JUSTICE OF THE

PEACE

My commission expires:

Eleanor Benson

Notary Publie

My Commission Expires Aug. 14, 1994

- 27 «

ADDENDUM

Appendix I

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 89-482 J. Robert Burk, Jr. v.

Patricia A. Burk the court upon January 9,

1990 made the following order:

Plaintiff's motion for leave to file late

notice of appeal is granted. Decision below

is summarily affirmed in accordance with

Rule 25(1) (a).

Distribution:

Hillsborough County Superior Court

Mr. J. Robert Burk, Jr.

Luci Pillsbury, Esquire

Robert G. Daniels, Esquire

Donna R. Craig, Supreme Court

File

shin peace

«= 28 «

SUPREME COURT

In Case No. 89-482 J. Robert Burk, Jr. v.

Patricia A. Burk the court upon February 27,

1990 made the following order:

Plaintiff's motion for reconsideration is

denied. Defendant's motion for expedited

reconsideration is, therefore, moot.