Mrs. Goldschmidt will you enter your appearance please. Mary Goldschmidt appearing for the New Jersey Division of Taxation. Mr. Mosher, are you on the line as well and are you the plaintiff in this matter? I am. The proceedings this afternoon relate to a motion that Mr. Mosher wanted to file seeking to have me recuse myself from this matter. Just so the record is complete, (pause) the, what occurred to stimulate that motion was a telephone conversation that I had with Mr. Mosher and Mrs. Goldschmidt on May 31, 2002. In a telephone conversation with a member of my staff, Mr. Mosher indicated that he had a disability that would preclude him from attending court. As a result of that and to accommodate his disability, we are hearing this motion by telephone and because of the nature of the motion, it's being heard without the formality of the filing of motion papers. We had a telephone conversation with Mr. Mosher and Miss Goldschmidt on the line to discuss that the motion would be heard in this fashion. Miss Goldschmidt indicated that she would be prepared to proceed with the motion today, and I understand that was agreeable to Mr. Mosher as well. Have I correctly stated the history of this matter, Mr. Mosher? Yes you have. Yes, your honor. All right. Mr. Mosher, this is your motion, so I will hear from you as to why I should recuse myself. Okay, I have about a three and a half minute statement. You can take as long as you like. Okay, thank you. Quoting your honor, in the previous conversation, quote... "I wanted to talk to you because, um... you.... Mr. Mosher you have made a lot of allegations in your complaint but none of them is that you did not receive or purchase the cigarettes in question." Mr. Mosher, were you recording our conversation? Yes, I was. Well, in the future you should let us know if you're doing that. Uhm, okay. I understood that the law had been changed and that only one of the parties needed to be aware of the recording. Whether it's legal or not legal, as a matter of courtesy, we should know whether your recording the conversation or not. I will try to remember to do that in the future. I guess it's just standard practice for me now--after so many instances, uh, but yes, okay, may I begin again? Please. "I wanted to talk to you because, um... you.... Mr. Mosher you have made a lot of allegations in your complaint but none of them is that you did not receive or purchase the cigarettes in question." unquote In contemplating this statement I can draw no other logical conclusion or inference other than to believe that you have narrowed the scope of relevance facts to this singular question "did he buy the cigarettes?" and that you have concluded that the Division of Taxation could not have violated any rule of procedure that would cause it to forfeit its right or authority to collect this tax under the circumstances of this case. I think there is sufficient legal precedent to substantiate the contention that state bureaucracies can forfeit authority by misconduct and I believe I have a right to defend my contention that the Division of Taxation is in fact guilty of this level of misconduct before a judge who acknowledges and respects that precedent. Beyond what I see as this "misunderstanding of the law" disqualification. I believe this judge lacks required judicial temperament. It Insults a reasonable man's intelligence to have the obvious pointed out to him. The fact that I am not denying "in my lot accusations" a fact I stipulate to "by obvious implication" in almost every paragraph of my complaint does not need to be pointed out to anyone. The fact that this judge felt the need to make this statement in his first words to me in an "off the record" conversation in which the merits of the case were not to be discussed is in my opinion a breach of temperament beyond "justifiable explanation." Adding injury to this insult, the whole concept of this "off the record" give up now or we will persecute/punish you some more pre-trial "threat call", makes a mockery of this state's judicial branch of government. The fact that officers of the court who have been sworn to uphold and defend the Constitution can believe it to be constitutionally permissible to put a citizen at risk of added penalties for exercising their right to "redress of grievances" (after they've have already paid for it) is worse than just evidence of ludicrous imbecility it is added proof that our legal system is in fact catastrophically broken. As the cigarette tax itself demonstrates once constitutional principle is ignored to facilitate little lazy trespasses legislatures are apt to commit in their search for easy solutions the slippery slope soon proves the folly of bending fundamental principles. Currently the legal system has help contrived an 800% penalty on cigarette smokers. Currently I face the risk of a 5% penalty for attempting to pursue my constitutional right of redress and justice. But what's to stop the Legislature for making it 7% or 70 or 7000% what's to stop the Legislature from deciding that a hearing before Judge should cost $500,000 and the risk of the death penalty? If they can legally do one they can legally do the other --The fact is the judicial branch of Government has abdicated its oversight responsibility and now the only thing that stands between a reckless Legislature and a individual citizens' rights is the hope of popular majority intolerance. That's my opening salvo. I don't want to hear just your opening salvo, I want to hear your entire battery. Okay, that's my argument. I guess, for the record, regarding whether or not you think I have the credibility to stipulate that the tape recording I have of our previous conversation has not been altered or in any way changed, it's four minutes or so long. I have it here, ready to play digitally, and if it's admissible as evidence, I would like it to be part of the record. I'm not sure, Mr. Mosher, whether your recording of our conversation is legal or not and until I'm sure of that I will not admit it into evidence. Okay. Miss Goldschmidt, do you have any response? Your honor, the Division of Taxation isn't taking a position with respect to Mr. Mosher's motion for recusal that's before the court right now. I interpreted the comments that you made to Mr. Mosher to be an effort to clarify what was or was not, on the face of the complaint--and not in any way tending to show bias on your part, but, again, as this motion is ultimately within your discretion, I leave it to you to decide whether or not you will recuse yourself in this matter. Has Mr. Mosher, in your recollection accurately described the conversation we had on May 31? In my recollection, I wasn't exactly sure where he was ending what was actually he was reading from the transcript of the recording he made and when his argument began but I... The word unquote. Okay, I just didn't hear the end of it. It was just the first, first sentence. Mr. Mosher, you have anything else to add? I just have some other issues not related to, you know, procedural issues not related to this exact motion. All right. Then I'll decide the motion. The rule governing disqualification of judges is Court Rule 1:12-1 which provides in pertinent part that the judge of any-- quote the judge of any court shall be disqualified on the court's own motion and shall not sit in any matter if the judge a) is by blood or marriage the second cousin of or is more closely related to any party in the action. "B" is another blood or marriage provision. C) Has been attorney of record or counsel in the action. D) Has given an opinion upon a matter in question in the action or E) is interested in the event of the action or F) when there is any other reason which might preclude a fair and unbiased hearing and judgment or which might reasonably lead counsel or the parties to believe so. Close quote. Uh, sorry, the paragraph-- the next paragraph of the rule states Paragraphs C, D, and E that the attorney of record given a previous opinion or interested in the event of the action shall not prevent a judge from sitting because of having given an opinion in another action in which the same matter in controversy came in question or given an opinion on any question in controversy in the pending action in the course of previous proceedings therein and the rest of it is irrelevant, so that's the end of the quote. The Code of Judicial Conduct provides in Canon 3, Paragraph C relating to disqualification of a judge and referring to Court Rule 1:12-1 that I quote a judge should disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned including but not limited to instances where a) the judge has a personal bias or prejudice concerning a party or a party's lawyer or has personal knowledge of disputed evidentiary facts concerning the proceeding. B) The judge served as a lawyer in the matter in controversy, I'm skipping other language. C and D relate to fiduciary responsibilities. D relates to the judge or the judge's spouse having a familial relationship and I think the rest of the Canon is really not pertinent to the proceedings before me. The issue of judicial court disqualification has been considered by our courts. In McGill vs. Cassel recorded at 238 New Jersey Superior page 57, the Appellate Division which decided this case in 1990 (unintelligible) as follows, I'm quoting in pertinent part on page 63: A motion for recusal must be made to the judge sought to be disqualified. The disposition of the motion is entrusted to the sound judgment of the judge. Then, I'm skipping language, the facts supporting or refuting the objective ground for refusal are peculiarly within the knowledge of the judge. If the ground for recusal is subjective such as bias or other incapacity to sit fairly, the judge ordinarily has the readiest--has readiest insight into his or her own mind. Close quote. In Panitch P-a-n-i-t-c-h vs. Panitch recorded at 339 New Jersey Superior at page 63 a decision of the Appellate Division in 2001, the Court stated on pages 66 and 67, after referring to Rule 1:12-2, quote the disposition of the motion--that is a motion for recusal--is, at least in the first instance entrusted to the sound discretion of the trial judge whose recusal is sought. It is improper for a judge to withdraw from a case upon a mere suggestion that he is disqualified unless the alleged cause of recusal is known by him to exist, or is shown to be true in fact. A challenge--the challenge judge who hears the motion should clearly set forth the objective and subjective bases for the ultimate decision. End of quote. Finally, in State vs. Marshall a decision by the New Jersey Supreme Court reported at 148 New Jersey at page 89 decided by the Court in 1997 the Court stated at pages 275 and 276, quote, the disqualification decision is initially left to the discretion of the trial court. Moreover, judges are not free to err on the side of caution. It is improper for a court to recuse itself unless the factual bases for its disqualification are shown by the moveant to be true or are already known by the court. Skipping some language, an error by the court in the previous proceeding does not necessarily justify an inference of bias, and will not by itself furnish a ground for disqualification. Of course an error might be sufficiently blatant and so lacking in an alternative good-faith explanation that the error would support a charge of bias. In the ordinary case however, the fact that a court is overruled or overrules its prior ruling is entitled to no weight in deciding whether the court is biased against the party harmed by the error. Close quote. I have reviewed in my own mind and from my notes what transpired in the telephone conversation which I understand to be the basis for Mr. Mosher's motion. I do not have a transcript of that recording because through my own error obviously in retrospect we did not have that conversation on the motion--on the record. The purpose of the call, as I indicated to Mr. Mosher, was to make sure he was aware of the alternative of amnesty, because in my view that would have given him a method of resolving the matter without incurring the interest costs and eliminate the risk that he might ultimately have to pay those costs. And a five percent penalty. Since the amount of tax sought was relatively small, I thought that might be a something that Mr. Mosher should consider. My notes on our telephone conversation which were made on May 31, shortly after the conclusion of the telephone conversation are as follows: I note that Mr. Mosher and Deputy Attorney General Goldschmidt participated, and I'll read you my notes. I told him he had not denied purchase of cigarettes. I told him I wanted to be sure he knew about amnesty. He asked about benefits. I told him no interest, no five percent penalty. He wanted to talk about his constitutional claims, I told him I did not want to discuss merits of the case. He said he was being pressured to accept amnesty, I said no pressure was intended. Mrs. Goldschmidt said she had sent him a letter explaining amnesty. I said that if I had known that that, if I had known that I would not have had to call. He asked when would he have a hearing, 2007? I said I would schedule the hearing at an appropriate time and terminated the conversation. And that's the end of my notes. In fact a hearing notice was sent out on June 10, 2002 scheduling this matter for July 22, 2001. In reviewing my notes and my recollection of the telephone conversation, I find nothing to warrant my recusing myself from hearing this matter. Mr. Mosher read into the record what obviously is a transcription of his recording of our conversation, a recording made without my knowledge or Ms. Goldschmidt's knowledge, and the transcript appears to be accurate and is consistent with my notes. However, Mr. Mosher did not place into the record in his argument the portion of the conversation where I discussed with him my concern that he was aware about amnesty, which, as I've said, was the purpose of the phone call. I do not regard the call as reflecting a decision on my part as to any of the merits or as to the merits of any of the issues presented in Mr. Mosher's complaint. I have reviewed that complaint again in connection with today's motion and my review reveals what Mr. Mosher acknowledged in his argument, that is, that the complaint does not deny the purchase of the cigarettes, it raises a raft of other issues, some constitutional, some appearing to be based on fairness or other similar grounds. I continue to believe that it was appropriate for Mr. Mosher to consider amnesty given the amount of the tax liability which was imposed upon him and the risk of incurring interest penalties. I do not believe that the substance or tenor of the telephone conversation that we had on May 31 indicated or reflected a decision on my part as to the merits of the case as to whether I would or would not consider his constitutional claims although I refused to consider them during that conversation and I find no basis for concluding that I have any bias in this matter as to Mr. Mosher or as to any of the claims he has asserted. I can, and will, hear them on the merits and decide them on the merits fairly without bias and without prejudice, and I think it would be an abdication of my judicial responsibility given the history of this matter that I have recited, given the full context and contents of the telephone conversation on May 31 for me to recuse myself and burden another judge with this matter. Accordingly, I deny Mr. Mosher's application for recusal. Ms. Goldschmidt, I'll ask you to submit an order Okay reflecting the fact that Mr. Mosher by permission of the Court moved orally for to recuse the the Court, to recuse me [Uh hum]that the matter was held today and that for the reasons placed on the record today, I have denied the motion. Okay, your honor. Now, Ms. Goldschmidt, you have expressed some desire to file a motion for summary judgment. That's correct, your honor. I anticipate filing it within the next week or two. I need to prepare the motion and then, pursuant to our office policies, have the brief reviewed, so my hope would be that it would be early July to actually file the motion, with a return date looking now at August 2, if that's acceptable and works for your honor's schedule and Mr. Mosher's schedule. Mr. Mosher, the court rules require that a motion for summary judgment be filed 28 days in advance. Are you familiar with the rules? [I am not.] Well, I'll ask Ms. Goldschmidt to send you a copy of the rule regarding summary judgment motions when she sends you a copy of the order that she is submitting to me. Okay. All right. That's rule 4:46 I believe. Okay. Would it be more advisable, it may be more advisable to go with the 12th then just to allow Mr. Mosher enough time if he wants to file anything in response and and to review everything. All right, well. If that's acceptable. The Summary Judgment Rule is Rule 4:46. [Right] Please send Mr. Mosher a copy of that. Mr. Mosher, when Ms. Goldschmidt sends out this order, she will send you a copy of it. You will have five days to advise me of any objections you have to the form of the order. If I don't hear from you within five days, I will enter the order, but I will not enter the order until five days have passed. Do you understand that? I do. The rule will explain to you the procedures and the standards with respect to summary judgment motions. I hear motions in August, on August 2nd and August 16, so Ms. Goldschmidt, I would suggest that you make the motion returnable August 16. Okay, your honor. Mr. Mosher, I I understand you are unable to come to court. Is that correct? That is. All right, then I will hear the motion by telephone. But, you you have the right, , and I urge you to exercise the right Mr. Mosher, to submit something in writing before the motion is heard. Yes, I would like that opportunity as long as I receive a copy of the complete motion. You'll receive a copy of everything that I receive and the rules provide set forth a schedule for the filing of response of papers, you'll see that when you get the rule. Thank you. All right. Mr. Mosher do you have any further questions? Yes, I do....The prosecution, or the other side, anyway, she she had filed a a argument conteracting my original contentions--my original argument. She filed an answer. Right. Sorry, I'm, I'm having a little trouble with my anxiety right now. Well, I found it difficult to follow the text references. All right, I don't know what, I don't know what, I need it restated in a form where I know what parts of my argument she is agreeing with or disagreeing with, because I can't follow the map she has provided in terms of what paragraph she's talking about. She seems to refer specifically to your First Fact and Contention, your Second Fact and Contention If you add up the numbers, sir What I can do, they don't add up. Okay. There's more, she has more fewer paragraphs listed than are in my Facts and Contentions. I mean fewer Facts and Contentions. They are separated by a dotted line, and if you add up the sections in the dotted lines, they do not add up to her reference numbers. I cannot follow the road map. I need a better road map. She needs to quote the first sentence of text, whatever it requires, but I need a better road map. Well, Ms. Goldschmidt, perhaps you can send Mr. Mr. Mosher a letter simply quoting the first part or first few words of the Contention which you describe as first, second, third, etc. All right. Okay. That's not a problem, your honor. All right, we'll treat that as a as a supplement to your answer. Please file a copy, send a copy to me as well. Okay. All right. Do you have any, do you have another question, Mr. Mosher? Yes, I do. In terms of appealing your decision on my previous motion, am I allowed to do that? You can make an application. You have the right to apply to the Appellate Division for permission to appeal; you don't have an automatic right to appeal. Okay. Is there anybody who will provide me with procedural information as to how I go about that? We can send you a, we have a a short description of a of a general appeal right, but I don't think it applies to applications for leave to appeal. If you want some information about that, you probably would be better served to call the clerk of the Appellate Division. Okay. You want a telephone number? Well, that would be helpful. All right, hold on a second. Hello. Yes. The clerk at the telephone at the Appellate Division's telephone number is area code 609-292-4694. Okay, thank you. We have another number that you might also try if that one doesn't work: 609-292-4822. That's the general number for the Appellate Division clerk's office. Probably you should start with that number first and tell them you have a question about filing an application for permission to appeal and they'll direct you to somebody who can help you. Okay. The only other issue I had, I think, is the, you'll rule on whether the copy of the tape will be attached to the motion or not? I I have no problem with your attaching it, Mr. Mosher. I've stated my recollection of the telephone conversation. If you want to submit it with your application to the Appellate Division that's fine with me. Well, you said previously, to when the motion was heard, you indicated that you needed to decide that issue, and so I'm assuming that it wasn't going to get decided after you finalized the motion. Well, I obviously haven't had a chance to take a look at at the law on recording conversations, but as far as I'm concerned, you can consider the tape as included in the in the motion. There's no need for me to hear it. I think my notes adequately summarize what occurred in our conversation. If you want to include it in anything you file with the Appellate Division, I have no objection to that. Okay, so, it's as as included. Okay, the other thing was, in your packet of evidence, I'm not sure whether you have the letter from that I'd originally sent to the Governor that has been part of the hearing process up to this stage, and I was wondering if that was provided to you by Mrs. Goldschmidt or not. No, it hasn't been because I haven't filed a motion yet, with any exhibits or anything. Okay. The only papers I have in this matter, Mr. Mosher, are your complaint, with attachments, a copy of the acknowledgment notice that was sent to you by the Tax Court Management Office, a copy of the letter from Deputy Attorney General Wheelwright to the Tax Court concerning where, concerning Miss Goldschmidt's assignment to the matter, a transmittal letter from Miss Goldschmidt filing her answer and a copy of the answer, a copy of a letter from the Tax Court to you and to, with a copy to Ms. Goldschmidt indicating that I've been assigned your matter, a letter from Ms. Goldschmidt concerning the telephone conference which occurred on May 31, and the notice of hearing date which was sent to you. Yeah, I was just trying to arrange provision, that since she does have the evidence, I would like her to submit the evidence. She has the right to file whatever she deems relevant to her motion and you can file whatever you think she has left out. Well, okay, so I'm the one who has to pay for it. Thanks I appreciate it. Mr. Mosher, the system is the system. I can't, I can accommodate your disability, which I think I've been doing, but I can't relieve you from all responsibilities that are inherent if you if you wish to litigate this matter. Yeah, understood. I think it would be a reasonable compromise, but apparently it's not. That's fine. Any other questions? That would be it. All right, then Ms. Goldschmidt will send out a form of order reflecting my ruling today. She'll send a copy to you. You will have five days within which to notify me of any objections to the form of the order, not to the ruling, but to the way it's been expressed, and she will also send you a copy of the court rule relating to summary judgment of motions. All right? Okay. Okay, thank you, your honor. All right, thank you both. Bye.