Petition for Writ of Certiorari — Fernandes v. Sparta Township Council

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Supreme Court, U.S.

(D FILED

011288 Fte : 32008

ORAICE OF THE CLEAK

In The

Supreme Court of the United States

October Term, 2001

NELSON FERNANDES, et al,

Petitioner,

SPARTA TOWNSHIP COUNCIL, et al,

Respondent.

On Petition for Writ of Certiorari

Of The Supreme Court of New Jersey

Nelson Fernandes — Pro se

9 Fox Run

Denville, N.J. 07834

—

T RECEIVED

FEd 14 2002

OFFICE OE THE CLERK

SUPREME COURT, U.S. | ra

—_— a en

antthnaitien shaban

QUESTIONS PRESENTED

Was petitioner denied due process and equal protection

of the law. And did any of that conduct violate 42

U.S.C.A. 1983, 1985, constitute a bias, or interfere with

petitioner’s nght of self-representation.

Did the judge’s actions constitute an extra-judicial

predisposition, a custom, an act in furtherance of a silent

conspiracy based on a known duty, a violation of

petitioner’s right to discovery first, and a violation of

court rules, which require leave to appeal to determine if

the judge should be disqualified.

Did Sparta’s attorney violate his discovery duty or

interfere with petitioner’s right of self-representation by

requesting a conference without filing a motion or

memorandum or otherwise completing discovery.

TABLE OF CONTENTS

Statement on the Orders Entered...............0.cccceuees

Statement of the Basis for Jurisdiction...

Statement of the Cae. ; .< i.ccccchceeedecu eee

| - Reasons for Granting the Petition...........

|. The Supreme Court’s Denial of Due Process, Equal

Protection & Abuse of Discretion .............ccccceceeee eee

lhe Judge Violated Due Process & Equal Protection..

3. A Custom that Violates 42 USC 1983 and 1985........

4. Grounds for this Court’s Interference

eee eee eee eee eee ee

Interfering with the Right of Self Representation ....

CONCLUSIONS. ..... ....<..-cisisicsith «acceler e iene

‘a

TABLE OF AUTHORITIES

CASE LAW

Abtrax Pharm. Inc. v. Elkins-Sinn Inc., 139 N.J. 499 (1995)......18

Ajamian v. Schlanger , 14 N_J. BE Gas ccccccwecnssercves seen 1]

Andrew Robertson v. Ca., 498 U.S. 1004 (1990)...................11

Band"s Refuse Removal Inc. v. Bor. of Fair Lawn,

62 N.J.Super. 522, 551-52 (A.D. 1960).......... A

Benoit v. Allstate Ins.Co., 751 So.2d 423 (La.App. Cir.5 2000) 4

Berger v. U.S., 255 U.S. 22. 31. 2.6

Brande M. West Through Her Guardian AC Litem v. Tilley,

461 S.E.2d 1, (N.C.App. 09/05/1995).............. ae

Buchanan v. City Council of Flint,

586 N.W.2d 573 (Mich.App. 09/11/1998)... 4

Buckhannon Board & Care Home, Inc. v. W.V. Dept

of H. & H. Resources, No. 99-1848 (U.S. 05/29/2001)...5

Byrnes v. Landrau, 326 N.J.Super. 187 (A.D. 1999).............--. 3

City of Atlanta v. J.A. Jones Con.,

398 S.E.2d 369 (Ga.Sup.Ct. IN acaugezaanccc keys 13

Douglas Oil Co. Ca. et al. v. Petrol Stops Northwest et al.,

BO1 TIS, 211 COTO TOD. 000 scccccsencccccssesees cee ee

Faretta v. Ca., 422 U.S. 806, fin.46 (06/30/1975)...............-.-+ 20

Felton v. U.S., 96 U.S. 699, 702 (1878).............. cece eee eee ee es 20

Griffin v. Breckenridge, 403 U.S. 88 ot) | ene 8, 12

Hallowell v. American Honda Motor Co.,

297 N.J.Super. 314 (A.D. 01/31/1997)........--..200e0ee 6

In The Matter Of Ozell Eplin,

No. 20106, 1992.WV.13 (Sup.Ct.W.Va. 03/31/92)...... 13

In re Hammermaster, No. JD #15 (Wash.S.C.,En Banc 1999)13, 19

In re Mattera, 34 N.J. 259, 275-76 (N.J. 1961)..............-.-02 50 13

In re Williams, No. D-73 Sept. Term 2000 (2001)............. 17,19

In re Yaccarino, 502 A.2d 3, 101 N.J. 342 (N.J. 1985)........--. 7

In re Yengo, 72 N.J. 425 (1977).......-.....0ececces ee eee neces eee 10

Jasion v. Preferred Accident Ins. Co., 172 A. 367, (NJ. 1934)...20

Johnson v. Cyklop Strapping Corp., 220 N.J.S .250 (A.D.1987).20

Kugler v. Helfant, 421 U.S. 117, £.10 (04/28/75)........-....++. 8, 11

Lauro Lines v. Chasser et al., 490 U.S. 495 (1989)....... 1,2, 14, 15

Liteky v. U.S., 510 U.S. 540, 563 (1994).........-...-..006 1, 16, 19

Magill v. Casel, 238 N.J.Super. 57 (A.D. GRE 5,9

Middlesex County Ethics Comm. v. G.S.B.A..,

. 487 US. 423 (19B2).........ccccescceccccnsescseeeses 1, 11,17

Muntz v. Newark City Hosp., 115 N.J.S. 273 (A.D. 1971).. .15

Murnick v. City of Asbury Park, 95 N.J. 452, 461 (NJ. 1984). ue

Murphy v. Kelly, 28 N.J.Super. 266, 267-8 (A. 3...) ae 10

Myra Jo Collins v. City Harker Heights,

112 S. Ct. 1061, 117 L. Ed. 2d 261 (1992).....1,.2. 13

ill

—————

TABLE OF AUTH S

CASE LAW

Neder v. U.S., 527 U.S. 1, (U.S. 06/10/1999)............. 6, 11, 14, 20

Nicholson v. Spangenberg, 163 N.J.S. 128, 131 (1978).............. 9

Panitch v. Panitch, No. A-6982-99T3F (A.D. 2001)................. 5

Reardon v. Marlayne Inc., 83 N.J. 460, 465 (N.J. 1980)............ 3

Schlossberg v. J.C. Sewer. Auth., 15 N.J. 360 (1954)...6, 12, 15, 16

State v. Afanador, 697 A.2d 529, 151 N.J. 41 (1997)................ 18

Starr v. Berry. 25 N.J. $73 (N.J. 01/20/1958)................. 6, 10, 15

State v. Deutsch, 34 NJ. 190, 207-08 (1961)................. 4,16, 17

State v. Wars, BOG NW ar iia vn hoki vdenesadnccScnianesses: 7

State v. Ramseur, 106 NJ. 123, 323-324, 524 A.2d 188 (1987)...20

ee Oe NR ee rrr 4

Taylor v. General Electric Co., 208 N.J.Super. 207 (AD. 1986)... 3

Taylor v. Illinois, 484 U.S. 400 (1988).................ccceeecee eee eees l

Thorpe v. Housing Auth. City Durham, 393 U.S. 268, (1969)..... 8

U.S. v. Grinnell Corp. et al., 384 U.S. 563 (06/13/66)....1, 2, 14, 16

Ward v. Village Monroeville, 409 U.S. 57 (1972)...... 1, 3 @ 11, 15

Willoughby v. Planning Bd. of Twp. of Deptford,

SOS FES: DUOC: BOG iissscnsencacesssasccsvecns 12

CONSTITUTION

Due Process and Equal Protection..............2, 3, 7, 8,9, 10, 12, 19

FEDERAL STATUTES

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GE SIAR nhs ee cece dentiaseds icin ckensaucstctaansdesenaniican 2,12

SE Ce WOO etaicitcliessieshitjedscctivabisasotas 2, 8, 12, 19

COURT RULES

Ph OREM as cvinevedecavtacotesedaseasntaekahkeusdb tubeaiadimastes eee 9, 16, 18

Bes CDE. cevniviaiinssnnnataspcavbnsekabedketlanes daaeuehsleeaer eae 10

R. 4:20 coisa tksiinthab odie 8, 12, 15, 16, 18

RR. BOGS Hits coches cnnccleldatdancddies soba bea 9,12

PR BRAID, ois snes sure bactua dave chdndas dububtcakaperasewveanseeaas bes 10

RR AFB OD inn oc td eintdct racteentcdlatcessickeeloaen 6, 7, 10, 16

EN eRe Lely LON, amr IRe Byes ee ng Naa 10

Re GBB is cccrceccvnisscsstntstesrtapalskstatsababiatesasccktvaciocced 6, 10

tate he Orders Enter

Of the orders listed and described in Petitioner’s

Appendix, the following are pertinent to this petition;

Law Div. Order denying disqualification - PA G

Law Div. order amending the complaint based on the

extra-judicial predisposition of the judge - PA K

App. Div. denied leave to appeal — PA B, C, E, I

Sup. Ct. denied leave to appeal - PA A and D

Statement of the Basis for Jurisdiction

The Supreme Court denied leave to appeal collateral

orders.' The first was a disqualification motion, which

requires an appellate review.” The second involves an extra-

judicial bias 3 and custom, * which proves two types of

structural errors. Both required disqualification in order to

have a trial before an impartial judge.* This Court must

interfere since the foregoing created extraordinary

circumstances.® 28 U.S.C.A 1257, 1291, 2101, 2104, 2106.

' Lauro Lines v. Chasser et al., 490 U.S. 495 (1989).

Liteky v. U.S., 510 U.S. 540, 563 (1994).

> U.S. v. Grinnell Corp. et al., 384 U.S. 563 (1966).

“Myra Jo Collins v. City Harker Heights, 112 S. Ct. 1061.

> Ward v. Village Monroeville, 409 U.S. 57 (1972).

. Middlesex County Ethics Comm. v. Garden State Bar

Assoc. et al., 457 U.S. 423 (1982).

Statement of the Case

The Supreme Court denied petitioner due process

and equal protection by denying leave to appeal; the recusal

motion and the extra-judicial order based on a custom.

After the judge denied petitioner’s recusal motion, he

entered another collateral order ’ amending the complaint in

violation of numerous court rules based on an extra-judicial

predisposition® and custom that is "separable from, and

collateral to, rights asserted in the action." His opinion

(PA-L) was based on bias not on a “study of the

depositions and briefs” since none were filed. *

Amending the complaint based on a letter from

Sparta’s attorney (PA-Q) constitutes a silent conspiracy in

violation of 42 U.S.C. 1985, in view of their duty to see that

discovery is completed. This conduct proves the judge is

biased before trial '° and interfered with petitioner’s right of

self-representation. These actions are a custom that denies

due process in a conference intended to deliver the record

before discovery starts, which violates 42 U.S.C. 1983."

” Lauro Lines v. Chasser et al., 490 U.S. 495 (1989).

* Berger v. U.S., 255 U.S. 22, 31.

* US. v. Grinnell Corp. et al., 384 U.S. 563 (1966).

'° Ward v. Village Monroeville, 409 U.S. 57 (1972).

'' Myra_Jo Collins v. City Harker Heights, 112 S. Ct. 1061.

I - Reasons for Granting the Petition

The authorities and facts of record cited throughout

this petition are part of every reason for granting it.

1. The Supreme Court’s Denial of Due Process, Equal

Protection & Abuse of Discretion

Granting leave is within the supreme court’s

discretion.’ That court has granted leave to appeal the

disqualification of counsel, '? which it denied in the previous

motion for leave in violation of due process and equal

protection. It also granted leave; for a denial of a motion to

dismiss, which it also denied, '* and to replace a prosecutor

before trial, stating the same applies to biased judges. '*

'2 “Gronting leave for interlocutory appeal should be within

our exclusive authority as an exercise of our discretion "in

the interest of justice," R. 2:2-4.” Taylor v. General Electric

Co., 208 N.J.Super. 207 (App.Div. 02/13/1986).

'> “The issue on this appeal is disqualification of counsel.

Our decision turns on an attorney's duties . . . to avoid even

the appearance of impropriety, DR 9-101. . . . We granted

leave to appeal,. . . to address this question.” Reardon v.

Marlayne Inc., 83 N.J. 460, 465 (N.J. 1980).

'* “We granted leave to appeal to decide whether the trial

Judge improperly denied defendant's motion to dismiss

plaintiffs complaint.” Bymes v. Landrau, 326 N.J.Super.

187 (App.Div. 11/24/1999).

'S “OF course, the defendant has a right to a fair trial

before an impartial Judge and. . prosecutor .. . The

Appellate Division granted leave to appeal . . finding that

Hedesh had a conflict of interest. . . directed the municipal

That court also held that judges should not sit in

“any causes where their objectivity and impartiality may

fairly be brought into question” or is “hurtful to the

judicial system.” '* Using “litigants” '’ and “any causes” '*

shows it is applicable to this litigation. This Court accepts

Black’s Law Dictionary definitions, unless “it conflicted

court to order the municipal prosecutor to prosecute the

complaints. . . We hold . that Hedesh should not .

prosecute Storm.” State v. Storm, 141 N.J. 245 (1995).

'© It is vital that justice be administered not only with a

balance that is clear and true but also with such eminently

fair procedures that the litigants and the public will always

have confidence that it is being so administered. See

Frankfurter, J. in Offutt v. United States, 348 U.S. 11, 14, 75

S. Ct. 11, 13, 99 L. Ed. 11, 16 (1954): "justice must satisfy

the appearance of justice." To that end judges must a

from in uct W a to

ju i ial system or sittin any causes wh theis

tivi di jali ay fairl ught_ into

question. ” State v. Deutsch, 34 NJ. 190, 207-08 (1961).

'7 “A “litigant” is defined as "[a] party to a lawsuit; one

engaged in litigation; usually spoken of active parties, not of

nominal ones." Black's Law Dictionary 841 ‘et ed. aa, 1

eM. W v. Till

461 S.E.2d 1, 120 N.C.App. 145 (N.C.App. 09/05/1995).

'§ Black's Law Dictionary (6th ed), p 221 defines "cause"

"[a]s a reason for an action." Buchanan v. City Council of

Flint, 586 N.W.2d 573 (Mich.App. 09/1 1/1998).

Black's Law Dictionary defines "cause of action" as "the

fact or facts which give a person a right to judicial redress or

relief against another." Benoit v. Allstate Ins.Co., 751 So.2d

423 (La.App. Cir.5 01/25/2000).

with our precedents” '? The court rules also allows a motion

for disqualification “before trial.” 7° Our appellate courts

have a duty to provide an appeal to determine if they should

order recusal no matter what the source is for a disqualifying

predisposition after a judge denies a disqualification motion.

Id. This is consistent with the holdings of Magill 7"

'? Buckhannon Board & Care Home, Inc. v. W.V. Dept. of

H. & H. Resources, No. 99-1848 (U.S. 05/29/2001).

* @. 1-12-2 provides "[a]ny party, on motion made to the

judge before trial or argument and stating the reasons

therefor, may seek that judge's disqualification." A motion

for recusal may be granted for any "reason which might

preclude a fair and unbiased hearing and judgment, or

which might reasonably lead counsel or the parties to

believe so." R. 1:12-1(f). Such a motion must "be made

before trial or argument." ... . The disposition of the motion

is, at least in the first instance, entrusted to the "sound

discretion" of the trial judge whose recusal is sought. . . .

In construing the analogous federal statute on judicial

disqualification, Justice Kennedy stated in a concurring

opinion that "[ijf through obduracy, honest mistake, or

simple inability to attain self knowledge the judge fails to

acknowledge a _ disqualifying predisposition or

circumstance, an appellate court must order recusal no

matter what the source." Liteky v. U.S., 510 U.S. 540,

563, (1994) (Kennedy, J., concurring). Panitch v. Panitch,

No. A-6982-99T3F (A.D. 2001).

21 “4 party dissatisfied with a denial of a recusal motion

may appeal . . we do not decide whether a recusal

motion can be made other than in a pending case for the

purposes of recusal from that case alone. Magill v. Casel,

238 N.J.Super. 57 (A.D. 1990).

Even if the supreme court acted pursuant to its policy

to save judicial resources ** and reverses after trial,” it still

means petitioner was denied his right to an impartial judge

in the first instance ** and was deprived of a single action.”

The orders show disqualification was denied, as was

leave to appeal. The judge then amended the complaint

without a motion or memorandum (R.4:25(b)(8)) and

without petitioner’s agreement (R. 4:25-1(b)), in violation of

petitioner’s right to discovery, which constitutes a

disqualifying extra-judicial bias. 7” These blatant violations

22 “The interruption of the litigation at the trial level . .

disrupts the entire process and is wasteful of judicial

resources.” Hallowell v. American Honda Motor Co., 297

N.J.Super. 314 (App.Div. 01/31/1997).

23 «A limited class of fundamental constitutional errors is so

intrinsically harmful as to require automatic reversal without

regard to their effect on a trial's outcome. Such errors infect

the entire trial process and necessarily render a trial

fundamentally unfair. . . (biased trial Judge) (denial of self-

representation .).” Neder v. U.S., 527 U.S. 1, (U.S. 1999)

(Structural error obviates the need to prove prejudice @7).

4 Ward v. Village Monroeville, 409 U.S. 57 (11/14/1972)

(“. . it is of no constitutional relevance that petitioner

could later be tried de novo in another court, as he was

entitled to an impartial Judge in the first instance.”’)

>° Schlossberg., 15 N.J. 360, 369-70 (N.J. 1954).

7° “Our rules permit full discovery, and the pretrial

conference is designed to compel it.” Starr v. Berry, 25 N.J.

573 (N.J. 01/20/1958).

27 Berger v. U.S., 255 U.S. 22, 31.

of rules proves bias under NJ law. ** Violating court rules to

deny the right to be heard also violates Canon 3.”

In the leading case, the supreme court held the bench

and bar responsible for discovery being completed. *° But,

Sparta’s attorney and the judge knowingly violated this duty

and R. 4:25-1, which constitutes a denial of due process.

(Id.) The judge knew he was dismissing claims without

discovery, (PA-M) and knew no record was presented.

28 “An error might be sufficiently blatant, and so lacking

in an alternative, good faith explanation that the error

would support a charge of bias. State v. Marshall, 690

A.2d 1, 148 N.J. 89 (1997).

9 “This Canon also directs that a judge accord to every

person who is legally interested in the proceeding the full

right to be heard according to the law.” In re Yaccarino,

502 A.2d 3, 101 N.J. 342 (N.J. 12/27/1985).

30 «

. in the leading case of Schlossberg v. Jersey City

Sewerage Auth., 15 N.J. 360, 371 (1954). Justice Brennan,

speaking for a unanimous court, said that the role of our

discovery procedure "in the attainment of the just and

proper disposition of an action is not less, but if anything

more, important than that of the trial itself, and bench

and bar share jointly the responsibility to govern the

prosecution of the action accordingly." . . The trial court

steadfastly refused to apply the rules established for the

control of our bench and bar . . This was an unjustifiable

trespass upon the rights of defendants Capasso and

amounted to an arbitrary and discriminatory denial to

them of the protection of our rules. In short, there was a

denial of due process. Band’s Refuse Removal Inc. v. Bor.

of Fair Lawn, 62 N.J.S. 522, 551-2 (A.D. 1960).

His extra-judicial misconduct makes this is a

conspiracy [42 U.S.C. 1985]. Griffin, 403 U.S. 88 (1971).

To justify his extra-judicial violation of court rules, the

judge relaxed the rules (R.1:1-2) in violation of R. 4:25-1,

which is mandatory based on its use of “shall”. (PA-L)

Denying a recusal motion then denying petitioner the

right to be heard followed by a denial of leave by the

supreme court in each instance is a refusal to consider the

disqualification of a particular judge from participating in

his case based on court rules recognized by this Court. *!

For all of the above stated reasons, the NJ supreme

court abused its discretion, denied petitioner; procedural due

process and equal protection by not granting leave, and

refused to apply the law in effect at the time of its decision.”

*! “ft is conceivable that there might be a judge in the State

who, in an effort to curry favor or to avoid administrative

transfer to a less desirable assignment, would decide the case

with an eye to the supposed attitudes of his superiors in the

judicial hierarchy. But even if such a judge were assigned to

hear Helfant's case, the right to a fair trial would be

protected by the New Jersey rule that permits a defenda.t

to disqualify a particular judge from participating in his

case. See New Jersey Court Rules 1:12-1 to 1:12-3.” ler

v. Helfant, 421 U.S. 117, f.10 (04/28/75).

32 An appellate court must apply the law in effect at the

time it renders its decision . . . this same reasoning has

been applied where the change was constitutional,

statutory, or judicial. Thorpe v. Housing Auth. City

Durham, 393 U.S. 268, 89 S. Ct. 518 (01/13/69).

2. The Judge Violated Due Process & Equal Protection

A judge with decades of experience hearing in lieu of

prerogative writs for two counties knows or should know; R.

4:25-1(a) “pretrial conferences shall [mandatory **] be held

in all . . actions brought in lieu of Prerogative Writs.” And

R. 4:25-1(b) “the court shall make a pretrial order to be

dictated in open court at the conclusion of the conference

and signed forthwith by the judge and attorneys, which shall

recite specifically” (2) “admissions or stipulations” (6) ‘“‘no

amendments of pleadings shall be granted . which would

justify . further discovery.” (8) “If a-ruling is sought on any

such legal issue, the matter should be set forth with

directions that formal motion be made thereon at a later

time.” ** (13) “any other matters which have been agreed

upon in order to expedite the disposition of the case.”

By relaxing these rules, R.1:1-2,°° the judge violated

due process since they are mandatory. Moreover, he acted

like an advocate. Band’s, 62 N.J.S. 522, 549 (A.D. 1960).

33 “We conclude that the words ‘whenever’ and ‘shall’

denote a mandatory provision.” Mumick v. City of Asbury

Park, 95 N.J. 452, 461 (N.J. 02/27/1984).

*4 Nicholson v. Spangenberg, 163 N.J.S. 128, 131 (1978).

35 “See R. 1:1-2 ("Unless otherwise stated, any rule may

be relaxed or dispensed with, . . ." etc.).” Magill v. Casel,

238 N.J.Super. 57 (A.D. 01/22/1990).

The judge willfully violated these rules and his duty

to abide by the canons of judicial ethics 1, 2, and 3 since he

sua sponte acted on his extra-judicial bias. [R. 1:18].°®

Sparta’s letter (PA-Q) is not a memoranda that can

justify the order,*’ (R.4:25-1(b)(8)) which petitioner did not

sign (PA-X) (R. 4:25-1(b)) and was prepared by an attorney

contrary to court rule R. 4:25-1(b). Petitioner was denied

discovery (R.4:25-1(b)(2)&(6) ** and his right to be heard on

his claims since the case began. (R.4:25-1(b)), which proves

bias and blatantly interferes with petitioner’s right of self-

representation, which warrants leave to appeal.

originally R. 8:13-5(a) (1948)), which subjects all judges, -

including municipal court judges, to the strictures of the-

Code of Judicial Conduct: "It shall be the duty of every

judge to abide by and to enforce the provisions of * * * the

Canons of Judicial Ethics," In re Yengo, 72 N.J. 425 (1977).

*7 «Tt has been established that where the only question

involved at the pretrial conference is one of law and the

parties are afforded a full opportunity to be heard on the

question, the court may grant summary judgment even

without a formal motion therefor. Sheild v. Welch , 4 N.J.

563 (1950). At the pretrial conference the court had before it

the complaint, the answer, plaintiffs answers to

interrogatories, and the factual statements contained in

the memoranda submitted to the court by counsel for the

respective parties pursuant to the requirements of R.R. 4:29-

3. Murphy v. Kelly, 28 N.J.Super. 266, 267-8 (A.D. 1953).

*8 “Our rules permit full discovery, and the pretrial

conference is designed to compel it.” Starr v. Berry, 25 N.J.

573 (N.J. 01/20/1958).

A “reasonable person” *?

with knowledge of the facts

would expect an experienced judge to know when he

violated court rules and acted in an extra-judicial manner.

The judge’s actions in this case supports the inference that

he was currying favor with the appellate courts, which then

creates the appearance of reciprocating by repeatedly

denying leave. Kugler v. Helfant, 421 U.S. 117, f.10, (1975).

The judge’s disqualifying extra-judicial bias and

numerous violations of court rules makes a trial pointless,

since an appellate court would have to reverse [Neder_v.

U.S., 527 U.S. 1, (1999)] and disqualify the judge for bias fs

and interfering with petitioner’s right of self-representation.

Denying petitioner his right to discovery and the right to be

heard in violation of court rules also deprives petitioner of

an “expeditious determination in a single action of the

ultimate merits”. “' These extraordinary circumstances

require this Court to interfere.

*? ("Recusal is required even when a judge lacks actual

knowledge of the facts indicating his interest or bias in a

case if a reasonable person, knowing all the circumstances,

would expect that the judge would have actual knowledge."

Andrew Robertson v. Ca., 498 U.S. 1004 (12/03/90).

“© Ward v. Village Monroeville, 409 U.S. 57 (1972).

*' Ajamian v. Schlanger , 14 N.J. 483 (1954).

* Middlesex County Ethics Comm., 457 U.S. 423 1982).

3. A Custom that Violates 42 U.S.C. 1983 and 1985

Sparta’s attorney violated R.4:25-lby not filing a

motion or delivering the record.” The judge violated it by

dismissing claims without a motion based on an extra-

judicial bias. Since, both are required to allow discovery

first, “* their violation of the duty to complete discovery (id.)

shows each knew the other violated R. 4:25-1 making this a

silent conspiracy to deny due process. [42 U.S.C.1985] * It

also constitutes a custom that violates 42 U.S.C.1983. “

* “The normal procedure for submitting the record of

proceedings before a local agency to the Law Division is

through a pretrial conference, which is mandatory in all

actions in lieu of prerogative writs. R. 4:25-l(a) . . This

conference "should be noticed and held immediately after

the answ adi led, wi W

discovery period to run." City of Clifton v. Zweir, 36 N.J.

309, 327, 177 A.2d 545 (1962). Willoughby vy. Planning Bd.

of Twp. of Deptford, 306 N.J.Super. 266 (A.D. 1997).

““ “The time for discovery proceedings is fixed by the rules .

. the scheduling of the pretrial conference is deferred

until that period has elapsed. . The purpose is to assure

that all pa ay and will

into the facts of their own and their adversaries’ cases to

the end that the pretrial conference shall truly serve its

basic and essential functions of isolating and specifying the

factual and legal issues actually in controversy and of

incorporating them in the pretrial order.” Schlossberg v.

Jersey City Sewerage Auth., 15 N.J. 360 (1954).

** Griffin v. Breckenridge, 403 U.S. 88 (06/07/71).

*° “Tt is when execution of a government's policy or custom,

whether made by its lawmakers or by those whose edicts or

Mr. Laddey’s letter asking the judge to eliminate

claims in order to reduce discovery proves; a willful and

blatant discovery violation, *’ constitutes action pursuant to a

known custom, and shows he knew the judge had the

“reputation of a man who can be reached”. “* The judge’s

failure to address the discovery violation and his extra-

judicial violation of the rules and canon 3 “® proves a custom

and his unfitness to hear “in lieu of prerogative writ” cases.

** His conduct supports an inference of corruption. *

acts may fairly be said to represent official policy, inflicts

the injury that the government as an entity is responsible

under § 1983." Myra_Jo Collins v. City Harker Heights, 112

: Ct. 1061, 117 L. Ed. 2d 261, 60 U.S.L.W. 4182 (1992).

*” Taylor v. Illinois, 484 U.S. 400 (1988).

8 “A judge who does "favors" with his office is morally an

embezzler. He is also a fool, for a judge who plays a

"good" fellow for even a few must inevitably be stained

with the reputation of a man who can be reached. In re

Mattera, 34 N.J. 259, 275-76 (N.J. 02/20/1961).

*°"& magistrate can violate Canon 3 of the Judicial Code

of Ethics by failing to adhere to court rules." In The

Matter Of Ozell Eplin, No. 20106, 1992.WV.13

(Sup.Ct.W.Va. 03/31/92).

°° »unwillingness to follow the law or to protect the rights

of those. . . appearing in front of him. . . do not

represent an exercise of judicial independence." In re

Hammermaster, No. JD #15 (Wash.S.Ct.,En Banc 1999).

5! Black's Law Dictionary, 5". Ed. defines corruption as:

"An act done with an intent to give some advantage

inconsistent with official duty and the rights of others." City

of Atlanta v. J.A. Jones Con., 398 S.E.2d 369 (S.C. 1990).

4. Grounds for This Court’s Interference

Justice Scalia outlined the requirements for a

collateral order, which applies to the circumstances in this

case. Lauro Lines v. Chasser et al., 490 U.S. 495 (05/22/89).

(1) The judge’s order was the result of an extra-

judicial bias by ruling without a motion or memorandum, ™

and dismissing claims at a conference intended to deliver the

record. These customs are "separable from, and collateral

to, rights asserted in the action".

(2) Petitioner ‘lost, probably irreparably’ his right

to an “expeditious determination in a single action of the

9 53

ultimate merits”, ~~ since a trial by a biased judge requires

reversal. Neder, 527 U.S. 1, (1999). Dismissing petitioner’s

claims without agreement or motion violates court rules ™

*2 US. v. Grinnell, 384 U.S. 563 (1966).

°° "Our rules of court provide a simple and flexible

procedural framework designed and purposed for the just

and expeditious determination in a single action of the

ultimate merits of an entire controversy between litigants.

Each litigant has broad latitude to assert any ground of

relief . . . and is provided with broad discovery and

pretrial procedures by which he may obtain all the facts

material to the positions of both sides and is allowed

great freedom to form and reform his pleadings and the

pretrial order accordingly. Schlossberg v. J.C. Sewer.

Auth., 15 N.J. 360, 369-70 (N.J. 1954).

*4 “R. 4:25-1 makes it crystal clear that trials must be held

within the framework of the pretrial order. The rule, in

and interferes with petitioner’s right of self-representation by

denying him discovery on the arbitrarily dismissed claims. *

Petitioner’s right to an impartial judge in the first

instance ** is also “too important to be... deferred until

the whole case is adjudicated”.*’ Especially, when a judge

with decades of experience in “in lieu of prerogative writs”

denies petitioner’s recusal motion then violates R. 4:25-1,

which he is required to follow in every case. The supreme

court held discovery to be more important than the trial ™

relevant part, requires the pretrial order to be dictated in

open court, signed by counsel and the court, and it must

recite: the admissions or stipulations of the parties

and this shall limit the claims thereto at the trial.‘ Muntz v.

Newark City Hosp., 115 N.J.S. 273 (A.D. 1971).

°° “The introduction of additional issues or a shift of

ground from those agreed upon may be made over timely

and meritorious objection only as permitted by R.R.

4:29-1(b)(15) and 4:15-2 applicable to amendments offered

after entry of the pretrial order.” Schlossberg v. J.C. Sewer.

Auth., 15 N.J. 360, 370 (N.J. 1954).

°° “An impartial Judge in the first instance” Ward v.

Village Monroeville, 409 U.S. 57 (1972).

*” Lauro Lines v. Chasser et al., 490 U.S. 495 (05/22/89).

*$ “The role of our discovery procedure "in the

attainment of the just and proper disposition of an action

is not less, but if anything more, important than that of the

trial itself, and bench and _ bar share jointly the

responsibility to govern the prosecution of the action

accordingly." Schlossberg v. J.C. Sewer. Auth., 15 N.J.

360, 371 (N.J. 1954).

because the judge must make sure discovery has taken place

* before dismissing claims by agreement or motion.

(R.4:25-1). Entering the order and opinion on the merits in

violation of the tenets of R. 4:25-1 and violating R. 1:1-2

without a motion, memorandum, or petitioner’s approval

proves the judge acted pursuant to “an extra-judicial

source”, © which requires him to recuse himself. State v.

Deutsch, 34 N.J. 190, 207-08 (N.J.1961) Hence, the

appellate courts were required to grant leave to potentially

“order recusal no matter what the source.” “'

* “Our rules permit full discovery, and the pretrial

conference is designed to compel it.” Starr v. Berry, 25 N.J.

573 (N.J. 01/20/1958).

must stem from an extra-judicial source and result in an

opinion on the merits on some basis other than what the

judge learned from his participation in the case. Berger v.

United States, 255 U.S. 22, 31. Any adverse attitudes that

Judge Wyzanski evinced toward the defendants were based

on his study of the depositions and briefs which the

parties had requested him to make. What he said reflected

no more than his view that, if the facts were as the

Government alleged, stringent relief was called for. U..S._v.

Grinnell Corp. et al., 384 U.S. 563 (06/13/66).

*' Justice Kennedy stated in a concurring opinion that "{iJf

through obduracy, honest mistake, or simple inability to

attain self knowledge the judge fails to acknowledge a

disqualifying predisposition or circumstance, an

appellate court must order recusal no matter what the

source." Liteky v. U.S., 510 U.S. 540 (1994).

The judge’s refusal to disqualify himself after ruling

pursuant to an extra-judicial bias was willful misconduct ©

and is hurtful to the judicial system. ©

Based on all of the foregoing, the actions of the

attorney, judge, and appellate courts have created

“extraordinary circumstances”, which requires interference

in this pending state judicial proceeding. “ The judge’s bias

and attorney’s impropriety was clearly raised, which

required the supreme court to grant leave to appeal based on

the foregoing facts and authorities. That appeal should lead

to the judge’s orders being vacated, restoring petitioner’s

claims, discovery, and disqualifying a blatantly biased judge

and the opposing counsel for his ethical violations.

* “Removal . . requires misconduct flagrant and severe.

That sanction is imposed rarely. Willful misconduct in office

and willful misuse of office are examples of transgressions

that warrant removal of a sitting judge. In re Williams, No.

D-73 Sept. Term 2000 (N.J.2001).

* “To that end judges must refrain from engaging in any

conduct which may be hurtful to the judicial system or

sitting in any causes where their objectivity and impartiality

may fairly be brought into question.” State v. Deutsch, 34

N.J. 190, 207-08 (N.J. 02/06/1961).

* «Younger v. Harris, supra, and its progeny espouse a

strong federal policy against federal-court interference with

pending state Judicial proceedings absent extraordinary

circumstances.” Middlesex County Ethics Comm. v. Garden

State Bar Assoc.. et al., 457 U.S. 423 (06/21/82).

5. Interfering with the Right of Self Representation

Petitioner was denied leave after the judge denied his

motion to strike (PA-I) the answer, though no affidavit was

filed to rebut petitioner’s certification. This led to the

recusal motion and inference that the judge dismissed claims

because the township was unable to rebut the certification.

Mr. Laddey’s letter (PA-Q) © requests extra-judicial

action to eliminate claims in order to reduce discovery

without a motion or memorandum, making the judge’s

actions extra-judicial bias in the court. Mr. Laddey provides

no injustice ®’ or reason to avoid discovery. ® So, relaxing

the rules (R.1:1-2) violates these prerequisites.

°° “The affidavit challenging the answer was not

contradicted or rebutted. . and the pleading was abe

struck, because there was no fact in dispute." Jasion v

RETINAS ES 172 A. 367, (N.J. 1934):

°° “the complaint is somewhat unclear . . I feel such a

conference would be very helpful in narrowing the issues

and expediting the discovery process.

*’ R. 1:1-2 (allowing relaxation of Ruies in specifically

alleged circumstances of inJustice). State v. Afanador, 697

A.2d 529, 151 N.J. 41 (N.J. 07/23/1997).

°® “The discovery rules were designed to eliminate, as far as

possible, concealment and surprise in the trial of lawsuits to

the end that judgments rest upon real merits of the causes

and not upon the skill and maneuvering of counsel." . . .

("If discovery rules are to have any meaningful effect upon

calendar control and early Disposition of litigation, they

must be adhered to unless, for good cause shown, they are

After requesting plaintiffs comments, (PA-N) the

judge violates the law in f.1 (PA-M) which states R.4:25-1 is

mandatory by relaxing it, which is a willful refusal to follow

that law, and a denial of due process and equal protection

based on f.2 proving “willful misconduct” © in f.3.

Petitioner also pointed out that he was denied discovery

contrary to the judge’s duty in f.5. ” Relaxing rules contrary

to cited authorities is willful and “so extreme as to display

clear inability to render fair judgment.” ” So, the judge’s

bias and refusal to follow the law violates Canon 1. ”

relaxed under R. 1:1-2."). Abtrax Pharmaceuticals Inc. v.

Elkins-Sinn Inc., 139 N.J. 499 (N.J. 04/10/1995).

Felton v. U.S., 96 U.S. 699, 702 (1878)("Doing or

omitting to do a thing knowingly and wilfully, implies not

only a knowledge of the thing, but a determination with a

bad intent... ."

’° “Absent such extraordinary circumstances, our cases and

those of the Courts of Appeals hold that review of the

granting or denial of discovery is not immediately

reviewable . .” Douglas Oil Co. Ca. et al. v. Petrol Stops

Northwest et al., 441 U.S. 211 (04/18/79).

"™ “A favorable or unfavorable preDisposition can also

deserve to be characterized as "bias" or "prejudice" because,

even though it springs from the facts adduced or the events

occurring at trial, it is so extreme as to display clear

inability to render fair judgment..” Liteky v. U.S., supra.

pe "Unwillingness to follow the law or to protect the rights

of those. . . appearing in front of him. . . do not

represent an exercise of judicial independence." In re

Hammermaster, No. JD #15 (Wash.S.Ct.,En Banc 1999).

Hence, he should be removed. In re Williams, No. D-73

Sept. Term 2000 (N.J.2001).

The supreme court denied leave to appeal the motion

to disqualify the judge and Mr.Laddey, and to report him for

filing a false certification and misrepresenting case law in

this case. The judge ruled (PA-G) that the motion was out of

time, which is contrary to law, and that Mr. Laddey didn’t

violate any “rule of ethics.” Except, the judge’s duty is to

report violations, not rule on them.”* (Canon 3)

Sparta’s attorney and the judge have interfered with

petitioner’s “right of self-representation” repeatedly by

violating “relevant rules of procedural and substantive law,"

75 which makes this a structural error. Neder v. U.S.

> “We hold that the trial court has the inherent power, to

be exercised in its sound discretion, to review, revise,

reconsider and modify its interlocutory orders at any

time prior to the entry of final judgment.” Johnson v.

Cyklop Strapping Corp., 220 N.J.Super. 250 (A.D. 1987).

’* “Appellate decisions reacting to cases involving attorney

misconduct in the presence of the court seem to reinforce the

view that judges are obligated to report all wrongdoing to

proper authorities. State v. Ramseur, 106 N.J. 123, 323-

324, 524 A.2d 188 (1987)

’> “The right of self-representation is not a license to abuse

the dignity of the courtroom. Neither is it a license not to

comply with relevant rules of procedural and substantive

law." Faretta v. Ca., 422 U.S. 806, fn.46 (06/30/1975).

CONCLUSIONS

The judge’s numerous rulings contrary to authority,

then his extra-judicial predisposition based on Mr. Laddey’s

letter (PA-Q) supports an inference of bias and deliberate

interference with petitioner’s right of self-representation. His

actions clearly proves the existence of a custom to pervert a

conference to deliver the record into one used to deny due

process and equal protection in violation of court rules, long

standing case law, and constitutional principles.

These circumstances prove the need for discovery

before the conference, as before. Presenting the record in the

former manner, and completing discovery for additions,

deletions, amendments, and dispositive motions prevents a

conspiracy or custom to eliminate claims and deny discovery

as a NJ Supreme Court previously realized. The former

procedure prevents the potential for constitutional violations.

It reinforces case law on procedures that are a half-century-

old to end an unconstitutional custom here and possibly

elsewhere. Clearly, this custom requires interference and to

grant petitioner his right to appeal so the judge and attorney

can be disqualified, the orders vacated, in order to proceed

with discovery pursuant to due process and equal protection.

PETITIONER’S APPENDIX

A -S.C. Denial of Leave to Appeal Extra-judicial bias

B - A.D. Denial of Leave to Appeal Extra-judicial bias

C- A.D. Motion to File a Reply Granted

D — S.C. Denial of Leave to Appeal Recusal Motion

E — A.D. Denial of Leave to Appeal Recusal Motion

F — L.D. Order denying motion to strike Sparta’s answer.

A) Sparta did not file a certification to meet petitioner’s

certification, which required the judge to strike it.

G - L.D. Order Denying Disqualification Motion of the

judge and attorney, as well as reporting his misconduct.

H — A.D. Denial of Leave to Appeal Motion to Strike

I- A.D. Denial of Leave to Appeal

J- L.D. Order Denying Motion to Vacate the 4/26/2001

Order Based on judge’s 4/26/01 opinion (PA- L)

K- L.D. Pretrial Conference Order of 4/26/01, which shows

it was not based on any motion or memorandum

L — Judge’s Opinion (Violates R.4:25-1 - mandatory)

A) First person comments reflects his personal bias

B) Acts like an advocate by sua sponte raising R.1:1-2

since no reason was provided to justify relaxing the rules.

C) Reasons given at conference does not mitigate the

judge’s extra-judicial bias by acting without a motion.

PETITIONER’S APPENDIX

D) The judge refers to dismissing the complaint sua

sponte, which reflects his extra-judicial predisposition.

E) The judge avoids his violation of the case law cited

by petitioner in the letter requested by the judge.

M —Petitioner Letter Requested by Judge (PA- N)

A- Pointed out Discovery was not Done.

B- Cited Authority on Judge’s Discovery Duty

C- Cited Authority that R. 4:25-1 is Mandatory

N — Judge’s Letter Asking for Petitioner’s Comments before

making his decision, though his opinion reflects a

predisposition in spite of the cases cited by petitioner.

O — Attorney Offering to Prepare Pretrial Conference Order

to limit Discovery, both of which Violate R. 4:25-1

P — L.D. Order Denying Petitioner’s Motion, which conceals

the fact that the motion was one to strike.

Q - Attorney’s Letter Requesting a Conference

A- Invites Extra-judicial Misconduct by the Judge

since it is not a motion or memorandum presented for the

court’s consideration.

B- He does not allege any injustice or good cause for

avoiding discovery.

Nelson Fernandes, et al, SUPREME CT of NJ

Plaintiff-Movants, Sept. Term 2001, M-379/380

v. 51,968

Sparta Township Council, et al. ORDER

Defendants-Respondants. Filed 11/15/01

This matter having been duly presented to the Court, it is

ORDERED that the motion for leave to appeal (M-379) is denied;

and it is further

ORDERED that the motion for a stay pending appeal (M-380) is

denied.

WITNESS, the Honorable Deborah T. Poritz, Chief

Justice at Trenton, this 14 th. Day of November, 2001.

Signed;

Stephen Townsend

Clerk of the Supreme Court

Nelson Fernandes, et al, Superior Court of NJ

v. Appellate Division

Sparta Township Council, etal. Doc. # AM — 918 —00T3

Motion # M-61 10-00

Before Part: S

Judges: Newman and Fall

Filed 8/9/2001

Motion Filed: July 5,2001 By: Nelson Fernandes

Answer(s) Filed: July 16,2001 By: Sparta Township Council

Submitted to Court: August 6, 2001

RDERED

This matter having been duly presented to the Court, it is

on this 7 th. Day of August, 2001, hereby ordered as follows;

Motion by Appellant

.- For Leave to Appeal Denied

- For Stay Denied

For the Court;

Richard Newman J.A.D.

Nelson Fernandes, et al, Superior Court of NJ

v. Appellate Division

Sparta Township Council, etal. Doc. # AM — 918 —00T3

Motion # M-6570-00

Before Part: S

Judges: Newman and Fall

Filed 8/9/2001

Motion Filed: July 18, 2001 By: Nelson Fernandes

Answer (s) Filed:

Submitted to Court: August 6, 2001

ORDERED

This matter having been duly presented to the Court, it is

on this 7 th. Day of August, 2001, hereby ordered as follows;

Motion by Appellant

- To File a Reply to a Motion Answer Granted

For the Court;

Richard Newman J.A.D.

Nelson Fernandes, et al, SUPREME CT of NJ

Plaintiff-Movants, M-1423 Sept. Term 2000

v. 51,382

Sparta Township Council, et al. ORDER

Defendants-Respondanis. Entered 7/16/01

This matter having been duly presented to the Court, it is

ORDERED that the motion for leave to appeal is denied.

WITNESS, the Honorable Deborah T. Poritz, Chief

Justice at Trenton, this 12 th. Day of July, 2001.

Signed:

Stephen Townsend

Clerk of the Supreme Court

Nelson Fernandes, et al, Superior Court of NJ

v. Appellate Division

Sparta Township Council, etal. Doc. # AM —546—00TS

Motion # 3683-00

Filed 4/23/01

ORDERED

This matter having been duly presented to the Court, it is

on this 12 th. Day of April, 2001, hereby ordered as follows;

The motion to file nunc pro tunc is granted.

The motion for stay and motion for leave to appeal are denied.

For the Court;

John E. Wallace Jr. J.A.D.

Nelson Fernandes, et al, Superior Court of NJ

Plaintiff, Law Division

v. Doc. # MRS-L-3901-99

—t} Sparta Township Council, etal. | Order Denying Motion

Defendants. Filed 2/4/01

Ordered that plaintiff's motion for a stay pending appeal is denied.

It is further ordered that discovery shall go forward.

Reginald Stanton

Judge of the Superior Court

Assignment Judge

Nelson Fernandes, et al, Superior Court of NJ

Plaintiff, Law Division

v. Doc. # MRS-L-3901-99

Sparta Township Council, etal. Order Denying Motion

Defendants. Filed 1/09/01

The court denied the following in its entirety;

A) Judge Stanton recusing himself;

B) Disqualifying Mr, Laddey and his firm from representing

Sparta;

C) Change of venue;

D) Certifying the issues raised for appeal;

E) Dismissing Sparta’s answer as a sanction;

F) Entering a default judgment;

G) Vacate March 17, 2000 order;

H) Strike Sparta’s answer;

I) Stay the matter pending appeal;

J) Allow discovery to begin;

K) Report Mr. Laddey to the ethics committee for filing a false

certification.

(The judge hand wrote the following)

The motion is denied for the following reasons;

1. The motion is out of time.

2. More importantly, the decision embodied in the order

of March 17, 2000 was and is correct for the reasons

stated when that order was entered.

3. Mr. Laddey and his firm have not violated any

rule of ethics.

Reginald Stanton

Judge of the Superior Court

Nelson Fernandes, et al, Superior Court of NJ

oe, Appellate Division

Sparta Township Council, etal. Doc.# AM -657-99T1

Motion # M-5770-99

Before Part: B

Judge(s): | Carchman, Lafelt

Filed 6/6/2000

QRDER

This matter having been duly presented to the Court, it is

on this 4 th. Day of May, 2000, hereby ordered as follows;

Motion for Leave to Appeal Denied

For the Court;

Philip A. Carchman J.A.D.

Nelson Fernandes, et al, Superior Court of NJ

v. Appellate Division

Sparta Township Council, etal. Doc.# AM-657-99T1

Motion # M-4457-99

Before Part: B

Judge(s): | Carchman, Lafelt

Filed 5/5/2000

ORDER

This matter having been duly presented to the Court, it is

on this 4 th. Day of May, 2000, hereby ordered as follows;

Motion for Leave to Appeal Denied

For the Court;

Philip A. Carchman J.A.D.

Nelson Fernandes

9 Fox Run

Denville, N.J. 07834

(973) 627-2138

Nelson Fernandes, et al, Superior Court of NJ

Plaintiff, Law Div.- Morris County

v. Doc. # MRS-L-3901-99

Sparta Township Council, et al. Order

Defendants. Filed 6/16/01

This Matter comes before this Court on plaintiff's motion

Returnable June 8, 2001. This matter having been fully

submitted on the papers and for good cause shown;

It Is on this 16 day of June, 2001:

Hereby ordered that the motion to vacate the order of April

26, 2001 is denied. That the order was appropriately entered

for the reasons set forth in this Court’s letter opinion of April

26, 2001.

Reginald Stanton, Judge of the Superior Court

Laddey, Clark & Ryan

Attorneys at Law —

60 Blue Heron Rd.

Sparta, N.J. 07871

(973) 729-1880

Nelson Fernandes, et al, Superior Court of NJ

Plaintiff, ; Law Division

v. Doc. # MRS-L-3901-99

Sparta Township Council, et al. _ Order

Defendants. Filed 4/26/01

This Matter having before the Court for a pretrial conference on

March 28, 2000. Brian M. Laddey, Esq. Appearing on behalf of

Sparta Township Council, Sparta Township Manager, and Sparta

Township Engineer. Deputy Attorney General Brian Weeks, Esq.

Appearing on behalf of the New Jersey Department of -

Environmental Protection and Nelson Fernandes, Esq., appearing

pro se and the Court having had the opportunity to review the

pleadings filed and hear from counsel, and the Superior Court

of New Jersey Appellate Division having denied plaintiff's

interlocutory appeal.

IT IS on this 26 day of Aprill 2001 ORDERED:

1. The Complaint shall be deemed to be a request to compel the

Township of Sparta to acquire a fifty-foot buffer around the well

and pay fair market value, as well as to compel the Township to

take steps to close down or divert the drainage pipe.

2. The Township of Sparta shall have 35 days within which to

respond to the Complaint as amended by this Order and discovery

shall proceed thereafter pursuant to the Rules of Court.

3. Plaintiff's suit regarding the zone change is dismissed without

prejudice. Plaintiffs are instructed to obtain the services of a

Planner to support their request for a zoning change.

4. A copy of this Order shall be served upon all parties within

seven (7) days of its receipt for defendants, the Township of

Sparta.

Signed:

Hon. Reginald Stanton, A.J.S.C.

SUPERIOR COURT OF NEW JERSEY

MORRIS/SUSSEX VICINAGE

Reginald Stanton, Assignment Judge

Courthouse, PO Box 910

Morristown, New Jersey 07963-0910

(973) 285-6414

April 26, 2001

Mr. Nelson Femandes Brian M. Laddey, Esq.

Ms. Joan Femandes_~ - Laddey, dark & Ryan

9 Fox Run 60 Blue Heron Road

Denville, New Jersey 07834 - Sparta, New Jersey 07871-2600

Brian Weeks, Esq.

Deputy Attorney General

Division of Law

Hughes Justice Complex

P.O. Box 093

Trenton, New Jersey 08625

RE: Femandes v. Sparta Township Council:

Docket No. MRS-L-3901-99

Dear Mr. Femandes, Ms. Femandes, Mr. Laddey and Mr. Weeks:

I am enclosing herewith a copy of an Order which I am

entering today. The Order reflects decisions which I made way

back on March 28, 2000 at the pretrial conference which we held

on that date. You will recall that I stated at that time that I would

delay entry of an Order reflecting the decisions being made until

there was a decision by the Appellate Division on an appeal which

was then pending before it. That decision was rendered quite a

while ago, but the matter did not actively come back to my

attention until Mr. Laddey wrote to me on February 13, 2001.

Pursuant to that letter on February 13, 2001, Mr. Laddey sent

to me the proposed Order reflecting the decisions made at the

pretrial conference, and it is that proposed form of Order which I

have today signed.

I note that Mr. Femandes wrote to me on March 6, 2001

objecting to the proposed form of Order which Mr. Laddey

submitted to me. The major point of Mr. Femandes' objection

was that the proposed Order was a Pretrial Order, but that it

failed to follow the detailed provisions of Rule 4:25-l(b) with

respect to the contents of a Pretrial Order and with respect to

the signing of a Pretrial Order. Mr. Femandes is correct in

pointing out that the Order which Mr. Laddey submitted and

which I have now signed does not contain the 16 items set

forth in Rule 4:21-l(b), and it also was not dictated in open

court and signed in open court by the judge and the attorneys

or parties.

I note at this point that the substantive reasons for the

decisions contained in the Order which I am signing today were

explained at great length on the record at the March 28, 2000

hearing. After I received Mr. Laddey's proposed form of Order

and after I received Mr. Femandes' objections to it, I spent about

an hour listening to the video tape of the March 28, 2000 pretrial

conference. I am satisfied that I fully explained the reasons for

my decision at that time on the record in the presence of

everyone at the conference, and I am also satisfied that Mr.

Laddey's proposed form of Order correctly reflects the rulings

which I made at the conference.

With respect to Mr. Femandes' objections to the

requirements of Rule 4:25-l(b) I note that the kind of Order

reflected in that rule simply is too awkward and cumbersome

to be useful in the present situation. That rule also calls for

details that simply are not relevant to the proceeding which

we have before us. I call your attention to Rule 1:1-2 which sets

forth the basic principles to be applied in construing the Rules of

Court. That Rule provides that the rules, in general, "shall be

construed to secure a just determination, simplicity in procedure,

fairness in administration and the elimination of unjustifiable

expense and delay." Rule 1:1-2 further provides that, with

exceptions which are not relevant here, "any rule may be

relaxed or dispensed with be the Court in which the action is

pending if adherence to it would result in an injustice." I have

decided to relax the provisions of Rule 4:25-l(b) because

adherence to the provisions of Rule 4:25-1(b) simply would not

make sense in terms of the issues which are actually present in

this case, and adherence to the provisions of that cited rule would

result in an injustice in the sense that such adherence would

pointlessly complicate the issues and simply would not make good

procedural sense.

I would point out that, instead of adopting the procedures

which are contained in the Order which I am signing today, I

might have followed a more traditional, mechanistic approach and

instead simply have dismissed Mr. and Ms. Fernandes'

complaint as filed in its entirety for failure to cogently state a

claim upon which relief could be granted. Such a dismissal

would have been without prejudice, so that Mr. and Ms. Femandes

could still go forward with their basic claims, but they would have

to draft, refile and re-serve an amended complaint which more

straightforwardly set forth the kinds of claims which are actually

at issue in this case. The procedural contents of the Order

which I am signing today are actually designed to avoid

putting Mr. and Ms. Femandes through the trouble and

expense of recasting their entire pleadings. They were

intended to be helpful to the Mr. and Ms. Femandes, and also

to be helpful to the other parties, in trying to focus on the

issues which are truly present in this case and which are truly

capable of being adjudicated in the near future.

I think that the Order which I am signing today will get this

matter back on track and will enable us to proceed towards a trial

of the true issues in the case. However, a considerable period of

time has elapsed since we had a pretrial conference, and if any

party thinks it appropriate to make a motion currently to focus on

procedural or substantive issues which the party feels need to be

addressed at this time, I am very much open to having such a

motion or motions made, and I will promptly address any issues

raised in any such motion or motions. I also note that we

mentioned during the pretrial conference that the New Jersey

Department of Environmental Protection may well not be an

appropriate party to this case. I think it might be useful to address

that issue promptly, and that could be addressed if Mr. Weeks

were to file a motion seeking to dismiss the Department of

Environmental Protection from this case.

Very truly yours,

-Reginald Stanton

Judge of the Superior Court

Assignment Judge

Nelson Fernandes

9 Fox Run

Denville, N.J. 07834

Hon. Reginald Stanton

Morris County Court House

Washington & Court Streets

P.O. Box 910

Morristown, New Jersey 07963-0910 March 6, 2001

Re: Fernandes v. Sparta Township Council, MRS-L-3901-99

Objections to Proposed Pretrial Order Prepared by Mr.

Laddey

The Proposed Order Denies Plaintiff Due Process

Mr. Laddey’s proposed order can never comply with R.

4:25-1(b), which outlines a number of requirements for pretrial

orders, some of which are long past.' Since the proposed order

cannot comply with the rule it represents a denial of due process. ,

Signing that order after being made aware that it is a denial of due

process would constitute willful misconduct by being prejudicial

to the administration of justice. °

'“R. 4:25-1. . . requires the pretrial order to be dictated in

open court, signed by counsel and the court, and it must

recite: the admissions or stipulations of the parties; the factual

and legal contentions of the parties; "all claims as to damages

* * * and admissions or stipulations with respect thereto, and

this shall limit the claims thereto at the trial * * *," and a

specification of the legal issues to be determined at trial.” Muntz

yv. Newark City Hosp., 115 N.J.Super. 273 (A.D. 06/25/1971).

? “This was an unjustifiable trespass upon the rights of defendants

Capasso and amounted to an arbitrary and discriminatory

denial to them of the protection of our rules. In short, there

was a denial of due process.” Band"s Refuse Removal Inc. v.

Borough of Fair Lawn, 163 A.2d 465, 62 N.J.Super. 522

(App.Div. 07/27/1960).

* “the Judge engaged in “willful misconduct in office. . . conduct

prejudicial to the administration of Justice which brings the

Discovery

Court Rule 4:25-1(b) on pretrial orders, which is the rule

that the proposed order is supposed to follow, makes numerous

references to discovery issues that shows it should proceed like

other civil litigation. * R. 4:25-1(b)(2), (3), (4), (5), (6), (7), (9),

and 13. Since these rules compel discovery, the very fact that

discovery did not taken place before the pretrial conference,

renders that proceeding a nullity because it was conducted in

violation of the process due under that rule. * Therefore, the

order that might have been rendered at that time is also a nullity.

judicial office into disrepute." . . We interpret "willful

misconduct in office" to mean actions taken in bad faith by the

Judge acting in her judicial capacity. "Conduct prejudicial to the

administration of Justice" refers to inappropriate actions taken in

good faith by the Judge acting in her judicial capacity, but which

may appear to be unjudicial and harmful to the public's esteem of

the judiciary. Inquiry Concerning a Judge # 94-70. 454 S.E.2d 780

(Sup.Ct.Ga. 03/17/95).

* “Tf an action is brought challenging the validity of an ordinance,

and resolution of the challenge turns on disputed factual issues,

the case must proceed in the same manner as other civil litigation,

with an opportunity for discovery, pretrial motions and a

trial. See Southern Burlington County N.A.A.C.P. v. Township of

Mount Laurel, 92 N.J. 158, 292 (1983).” Hirth v. City of

Hoboken, No. A-1675-99T2 (App.Div. 02/15/2001).

° “The significant part which discovery plays in our modern

civil procedure was strongly emphasized in the leading case of

Schlossberg v. Jersey City Sewerage Authority , 15 N.J. 360,

371 (1954). Justice Brennan, speaking for a unanimous court,

said that the role of our discovery procedure “in the

attainment of the just and proper disposition of an action is

not less, but if anything more, important than that of the trial

itself, and bench and-bar share jointly the responsibility to

govern the prosecution of the action accordingly." (Italics ours)

The trial court steadfastly refused to apply the rules

established for the control of our bench and bar when it

permitted 24 witnesses to testify over objection. This was an

unjustifiable trespass upon the rights of defendants Capasso and

amounted to an arbitrary and discriminatory denial to them

Dismissal of the Validity of the Ordinance Without Prejudice

| The proposed order that dismisses the validity of the

ordinance without prejudice is a denial of due process, since

the Supreme Court and Appellate Division requires discovery,

pretrial motions and a trial. ° Since the only pretrial motion was

uncontested: and the facts were in plaintiff's favor, it would be

willful misconduct for the court to deny plaintiff a trial on this

issue. Moreover, court rules preclude filing this issue again and

also appear to limit the court’s power to enlarging the filing time,

not dismissing without prejudice to some future date, when

plaintiff's claim will be barred. ’

of the protection of our rules. In short, there was a denial of

due process.” Band"s Refuse Removal Inc. v. Borough of Fair

Lawn, 163 A.2d 465, 551-52, 62 N.J.Super. 522 (A.D. 1960).

° “If an action is brought challenging the validity of an ordinance,

and resolution of the challenge turns on disputed factual issues,

the case must proceed in the same manner as other civil litigation,

with an opportunity for discovery, pretrial motions and a trial. See

Southern Burlington County N.A.A.C.P. v. Township of Mount

Laurel, 92 N.J. 158, 292 (1983).” Hirth v. City of Hoboken, No.

A-1675-99T2 (App.Div. 02/15/2001).

” Although Rule 4:69-6(a) provides that "no action in lieu of

prerogative writs shall be commenced later than 45 days after the

accrual of the right to the review, hearing or relief claimed,” Rule

4:69-6(c) authorizes the court to enlarge this period of time

“where it is manifest that the interest of Justice so requires."

An enlargement of the time for filing a prerogative writ action is

recognized to serve "the interest of Justice" in cases involving "(1)

important and novel constitutional questions; (2) informal or ex

parte determinations of legal questions by administrative officials;

and (3) important public rather than private interests which require

adjudication or clarification." Reilly v. Brice, 109 N.J. 555, 558,

538 A.2d 362 (1988) (quoting Brunetti v. Borough of New

Milford, (supra) , 68 N.J. at 586). When a case falls within one of

these categories, the court may grant even a very substantial

enlargement of the time in order to afford affected parties an

opportunity to challenge the alleged unlawful governmental

action. See, e.g. Damurjian v. Board of Adjustment of Colts Neck,

299 N.J. Super. 84, 97-99, 690 A.2d 655 (App. Div. 1997) (four

Mr. Laddey Has Violated R. 1:4-8

Plaintiff previously moved to have this Court report Mr.

Laddey to the proper authority and to disqualify him and his firm

because he filed a false certification and also misrepresented a

case that could affect the outcome of a motion. Both issues

created the appearance of impropriety that justified

disqualification.

Now, Mr. Laddey violates R. 1:4-8 by writing to this

Court twice for the purpose of submitting the order that is the

subject of this objection. His signature on the letters as the “other

paper” is advocating the proposed order. Mr. Laddey’s factual

allegations have evidentiary support, which meet the criteria in R.

1:4-8(3) since a pretrial conference was held without a resulting

order. However, his legal contentions with respect to his being

able to prepare the pretrial order for this Court is not and cannot

be supported by existing law, by a non-frivolous argument for the

extension of existing law, or the establishment of new law.

Plaintiff's very first objection shows the proposed order is a clear

violation by not conforming with the requirements in R. 4:25-1(b).

Therefore, Mr. Laddey has violated R. 1:4-8(2). His legal

contentions cannot meet the criteria in this Rule because this

Court can only relax or dispense with the rules if adherence

would result in an injustice, not create an injustice by denying

a litigant due process. R.1:1-2. Band"'s Refuse Removal Inc. v.

Bor. of Fair Lawn, 163 A.2d 465, 62 N.J.Super. 522 (A.D.

07/27/1960).

Plaintiff believes that Mr. Laddey’s repeated misconduct,

twice related to discovery matters, requires this Court to sua

years); Wolf v. Mayor of Shrewsbury, 182 N.J. Super. 289, 296,

440 A.2d 1150 ee Div. 1981) (one year), certif. denied, 89 N.J.

440 (1982); Ocean County Bd. of Realtors v. Borough of

Beachwood, 248 N.J. Super. 241, 247-48, 590 A.2d 736 (Law

Div. 1991) (seven years).

Willoughby _v. Planning Bd. _of

Township of Deptford, 703 A.2d 668, 306 N.J.Super. 266

(App.Div. 12/02/1997).

sponte issue an order to show cause why Mr. Laddey and his firm

should not be disqualified from representing Sparta. R. 1:4-8(c).

Mr. Laddey is very intent-on avoiding discovery, which

leads plaintiff to believe that he will violate more rules, which was

a concern expressed in plaintiff's motion. The very fact that this

court has bent every effort to keep him from a disciplinary review

appears to inspire him to new acts of misconduct, thus escalating

the initial appearance of impropriety. Moreover, Mr. Laddey’s

- actions also appear to violate a number of Rules of Professional

Conduct.

If the court avoids this issue, it will add to the appearance

of impropriety created by its previous leniency toward Mr.

Laddey.

CON IONS

None are needed.

Yours truly;

Nelson Fernandes

CC: Mr. Laddey

Brian Weeks

Superior Court of New Jersey

Morris/Sussex Vicinage

February 20, 2001

Brian M. Laddey, Esq.

Laddey, Clark & Ryan

60 Blue Heron Road

Sparta, New Jersey 07871-2600

Re: Fernandes, et al. V. Sparta Township Council, et al,

Docket No. MRS-L-3901-99

Dear Mr. Laddey:

I have received your letter of February 13.

You may submit a proposed form of order which you

think reflects the statements which I made in open Court on

March 29, 2000. Your should submit that under the five-day rule.

When I have received that proposed form of order, and when I

have had the benefit of any comments which Mr. Fernandes

or Mrs. Fernandes may wish to make, I will decide whether to

enter the proposed order.

Very truly yours,

Reginald Stanton

Judge of the Superior Court

Assignment Judge

Copy to: Case File

Mr. Nelson Fernandes

Ms. Joan Fernandes

Laddey, Clark & Ryan

60 Blue Heron Rd.

Sparta, N.J. 07871

(973) 729-1224 Feb. 13, 2001

Hon. Reginald Stanton, A.J.S.C.

Superior Court of N.J.

Morristown, N.J. 07963

Re: Fernandes v. Township of Sparta, Doc. No. MRS-L-3901-99

My Dear Judge Stanton:

I am in receipt of the Order Your Honor entered in the above

matter on Feb. 4, 2001 denying Plaintiff's motion. In that order

you indicate that Plaintiff's Motion for a stay pending appeal is

denied and that discovery shall go forward.

On March 29, 2000, Plaintiff and I appeared before Your

Honor for a Case Management Conference. My notes indicates

that Your Honor stated at that time that in the event the Appellate

Division denied Plaintiff's Interlocutory Appeal, Your Honor

would enter an Order treating the Complaint as a request to

compel the Township of Sparta to acquire a fifty-foot buffer

around the well and pay fair market value, as well as to compel

the Township to take steps to close down or divert the drainage

pipe. My notes further indicate that you would then give the

Township of Sparta time to respond, allowing the Township either

to do what was requested or to take a position that they would not

do so. My notes further indicat t the Order would dismiss the

suit_with regard to the zone changes without prejudice with

instructions to plaintiff to obtain the services of a Planner to

support Plaintiff's request for a zone change.

I am not certain that my notes accurately reflect Your

Honors comments on March 29, 2000. It does appear, however,

that the further Order of the Court indicated at the Case

Management Conference on March 29, 2000 should be entered

at this time prior to the commencement of discovery, so as to

form the parameters of discovery.

If your honor wishes, I would be happy to prepare a

proposed form of Order embodying your comments from the

bench on March 29, 2000.

I thank you for your cooperation and await hearing from

Your Honor’s Chambers with regard to how you wish me to

proceed.

Respectfully yours, Brian M. Laddey

Laddey, Clark & Ryan

60 Blue Heron Rd.

Sparta, N.J. 07871

: SUPERIOR COURT OF NJ

Nelson & Joan Fernandes, : Law Division

vs. : Docket MRS — L -3901-99

Sparta Township Council, : Civil Action

Et al. : ORDER

THIS MATTER having been opened to the Court by Laddey,

Clark & Ryan, attorneys for Sparta Township Council, Sparta

Township Manager, and Sparta Township Engineer, Brian M.

Laddey, Esq. Appearing, on a cross-motion seeking to deny the

plaintiff's motion and enlarge the time for filing an answer;

and Nelson Fernandes, Pro Se, appearing on his own motion and

in opposition to the cross-motion; and the Court having

considered the papers submitted in support of and in opposition to

the motion:

IT IS on this 17 day of March, 2000 ORDERED:

1. The plaintiff's motion is denied in its entirety.

2. The defendants Sparta Township Council, Sparta

Township Manager, and Sparta Township Engineer are granted an

enlargement of time to cure the late service of their answer and

the answer filed and served shall be deemed timely as of January

29, 2000. ;

3. A copy of this Order shall be served upon all parties

within seven (7) days of its receipt by counsel for defendants,

Sparta Township Council, Sparta Township Manager, and Sparta

Township Engineer.

Signed by Hon. Reginald Stanton, A.J.S.C.

Laddey, Clark & Ryan

Attorneys at Law

60 Blue Heron Rd.

Sparta, N.J. 07871

(973) 729-1224

Feb. 10, 2000

Hon. Reginald Stanton, A.J.S.C.

Superior Court of N.J.

P.O. Box 910

Morristown, N.J. 07963

Re: Fernandes v. Township of Sparta

Docket No. MRS-L-3901-99

~Dear Judge Stanton:

I am enclosing a copy of a complaint which has been filed in

the above-referenced matter, as well as answers filed on behalf of

the Defendants, Department of Environmental Protection, and

Township of Sparta, et al. Plaintiffs are appearing pro se.

Since the complaint is somewhat unclear as to the nature

of the allegations and relief sought, I would respectfully request

that this matter be scheduled for a Case Management Conference

with Your Honor, prior to the engagement of discovery. | feel

such a conference would be very helpful in narrowing the issues

and expediting the discovery process.

I thank you for your courtesies and consideration and await

hearing from Your Honor. :

Thank you for your cooperation.

Very truly yours,

Brian M. Laddey

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.