August 15, 2002 Page 3

The underlying issues involved in this case center on Plaintiff's challenge of the Director, Division of Taxation's C"Director) assessment of Cigarette Tax, pursuant to LSL&L. 54:40A-1, ag., and the Sales and Use Tax, pursuant to ILiLLA...

54:32B-1, ~, ag., based on the purchase of cigarettes by Plaintiff from an unlicensed, out-of-state distributor of cigarettes through the Internet. The Director's final determination, dated January 8, 2002, affirmed Plaintiff's liability for the taxes, which amounted to $569.82 inclusive of interest calculated through February 2002. The Final Determination also informed Plaintiff that interest on the liability continued to accrue at the statutory rate as long as any balance remained unpaid. (Dal).

By letter dated April 30, 2002, counsel for the Director,

Mary J. Goldschmidt, Deputy Attorney General, advised Plaintiff of N his possible eligibility for the tax amnesty program, signed into

law by Governor James E. McGreqvey onMarch 18, 2002. (Da2).

Thereafter, the Mon. Harold A. Kuskin, J.T.C., scheduled a telephone conference between the parties on May 31, 2002. The purpose of the phone conference, which did not take place on the record, was for the court to inquire whether Plaintiff was aware of the recently enacted legislation regarding the tax amnesty program. The court expressly conveyed that the purpose of the phone conference was not to discuss the merits of the case. The court made the inquiry about Plaintiff's awareness of the tax amnesty

because, on the face of the Complaint, Plaintiff had not denied purchasing the cigarettes in question and interest continues to accrue on the liability.

Subsequently, Plaintiff made an oral motion for Judge Kuskin to disqualify himself as trial judge on the basis of bias and pre-judgrnent. This motion was heard on the record on Jnne 21, 2002. The Director did not take a position with respect to the motion, instead deferring to the discretion of Judge Kuskin pursuant to L 1:12-1. Plaintiff's motion was denied for the reasons set forth on the record on June 21, 2002, and an order memorializing the decision was entered on July 3, 2002. (DaS).

Thereafter, the Director filed a motion for summary judgment, with a return date of August 30, 2002 requested. However, as Plaintiff now seeks leave to appeal the Tax Court's denial of his motion to disqualify Judge Kuskin as trial judge, the Director's motion for summary judgment has been carried pending the disposition of Plaintiff's motion for leave to appeal.

ARGUMENT

POINT I

THE TAX COURT PROPERLY DENIED PLAINTIFF'S MOTION FOR RECUSAL PURSUANT TO R. 1:12-1 AND R. 1:12-2.

The Tax Court properly denied Plaintiff's motion to recuse the trial judge, as disposition of the motion rested in the

August 15, 2002 Page 5

sound discretion of the Judge Kuskin, whose recusal was sought. In light of the circumstances, it is clear that Judge Kuskin properly exercised this discretion in denying Plaintiff's motion for

recusal.

£Qufl &~h 1:12-1 provides, in pertinent part:

The Judge of any court shall be disqualified on the court's own motion and shall not sit in any matter (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.

£Q2aft Rule 1:12-2 applies where the motion for recusal is sought by one of the parties. The Comment to R. 1:12-2 states that the "disposition of such a motion rests in the 'sound discretion' of the judge whose recusal is sought." (quoting Panitch v. Panitch, 339 kLJ.... ~ 63, 66 (App. Div. 2001)

Under the circumstances presented, the Tax Court properly denied Plaintiff's motion to disqualify Judge Kuskin as trial judge. As the amount of tax at issue was relatively small, interest on the liability continues to run, and Plaintiff did not dispute the purchase the cigarettes at issue, it was appropriate for Judge Kuskin to inquire about Plaintiff's awareness of the tax amnesty program in the event Plaintiff was interested in taking advantage of the program. Despite Plaintiff's arguments to the

August 15, ?002 Page 6

contrary, doing so did not indicate pre-judgment or bias as to the substance of Plaintiff's arguments raised in his Complaint.

Indeed, in the course of the conversation, Judge Kuskin

specifically informed Plaintiff that the sole purpose of the phone conference was to discuss the amnesty issue, not to discuss the merits of the case.

Thus, this court should deny Plaintiff's motion for leave to appeal the Tax Court's denial of his motion to for recusal, as Judge Kuskin properly exercised his sound discretion in denying the motion.

POINT II

PLAiNTIFF' S MOTION FOR LEAVE TO FILE AN INTERLOCUTORY APPEAL SHOULD BE DENIED BECAUSE PLAINTIFF HAS NOT SHOW THAT AN INTERLOCUTORY APPEAL IS IN THE INTERESTS OF JUSTICE

Additionally, this court should deny Plaintiff's motion for leave to appeal because the issues resolved by the Tax Court do not warrant intervention by this court on an interlocutory basis. Interlocutory review simply is not warranted in this routine tax matter. Plaintiff has not made a convincing showing that the interests of justice require this court's immediate attention.

The standard of review for granting leave to appeal is set forth in R. 2:2-4, which provides that the Appellate Division may grant leave to appeal from an interlocutory order 'in the interests of justice." The power to grant leave to appeal is

August 15, 2002 Page 7

"highly discretionary and "exercised only sparingly." State v. Reldan, 100 N.J. 187, 205 (1985); see ~ CPC Int'l. Inc. v. Hartford Accos., 316 N.J. Super. 351, 365 (App. Div. 1998), ~njt. denied, 158 ~ 74 (1999) (noting that "piecemeal reviews ordinarily are anathema to our practice."); a~ Golden Estates v. Continental Cas., 317 ~ 82, 88 (App. Div. 1998) (noting that "interlocutory appellate review runs counter to a judicial policy that favors an uninterrupted proceeding at the trial level with a single and complete review.").

In fact, '' [iJnterlocutory review is exercised only in extraordinary cases, '" because the system generally envisions a "'single and complete review'" at the conclusion of the matter, as to all appealable issues regarding all parties. Justice Robert L. Clifford, Civil Interlocutory Annellate Review in New Jersey, 47 Law & Contemo. Probs. 87, 88 (1984). Leave to file an interlocutory appeal is granted only "where, on balance of interests, justice suggests the need for review of the interlocutory order in advance of final ludament." ~j.. at 93-94 (quoting Sullivan, Interlocutory Anneals, 92 ~ 161 (1969) (emphasis added)).

Plaintiff's motion for leave to appeal should be denied as it is not in the interests of justice for this court to entertain the appeal on an interlocutory basis. There is currently a motion for summary judgment pending in the Tax Court and interlocutory review in this case would run counter to the goal of

August 15, 2002 Page 8

"single and complete review" at the conclusion of the matter as to

all appealable issues as to all parties. Nothing raised by

Plaintiff in his motion for leave to appeal justifies a piecemeal

review of the issues raised in this case. Thus, as there is

nothing in the record to suggest that justice requires this court's intervention on an interlocutory basis, this Court should deny Plaintiff's motion for leave to appeal.

CONCLUSION

Based on the foregoing, this court should deny

Plaintiff's motion for leave to appeal.

Respectfully submitted,

DAVID SAMSON ATTORNEY GENERAL OF NEW JERSEY

BY: Mary J³-Coldschmidt Deputy Attorney General Patrick DeAlmeida Deputy Attorney General Of Counsel

Dated: