Table of Contents Page Preliminary statement...................................................... 1 Procedural history and statement of facts................................. 2 argument Summary judgment in favor of the defendant cannot be justifyed in this case............................................. 3 Conclusion................................................................. 10 Attachments Exhibit marked Psj1 [Article titled "An Unevolved Democracy"] Exhibit marked Psj2 -3 Proof of service Preliminary Statement regarding defendant's motion for summary judgment: Plaintiff contends that Justice demands more than some "no harm, no foul" summary endorsement of the unconstitutional violations of liberty, privacy and due process rights that have been committed by the New Jersey Division of Taxation and its agents. Plaintiff would further contend that the questions raised in this case are of sufficient importance for justice to require a complete investigation of the facts, complete argument, and ultimately a logically clear, deservedly authoritative, complete and fair judgment. Procedural History The procedural history on page 2 of Defendant's summary judgment brief is a substantially correct chronology of events. However, in the interest of accuracy, I would make the following correction. Upon reflection, I've come to realize that a misstatement on my part early in this process has become a repeatedly referenced but unfortunately untrue "fact." In actual fact I believe all or most of my purchases from smokesadvantage were made over the phone and not actually "on-line". I was initially referred to the company by a friend who gave me their 1-800 number. I don't recall exactly, but I would approximate that it was sometime after my second or third purchase that I did investigate their website (saw the web address on promotional magnets they packaged with cigarettes purchased). Although I cannot state with certainty that I never made an actual on-line purchase, it is my recollection that their phone service was exceptionally efficient (i.e. there was never a wait for a salesperson, and they had the technology to automatically determine my identity and had all billing information on file-- including credit card number and I would approximate that some orders took less than 60 seconds to complete) and provided little reason to ever make an actual on-line purchase. Issues Requiring Resolution and Facts Under Contention 1. Jurisdiction: From the May 31st telephone conversation: [Judge Kuskin] "Mr. Mosher, I have no jurisdiction... I have no jurisdiction over the federal Constitutional questions..." From your honor's decision rejecting my recusal motion: [Judge Kuskin] "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" From an off-the-record conversation between myself and Mary Goldschmidt: [Mary Goldschmidt] "One thing I just want to make sure you're clear on with respect to a the Jenkins Act which is the federal law which requires these unlicensed distributors to inform States who purchased the cigarettes through the Internet, is a federal law and like the judge indicated, there's nothing that's going to happen in New Jersey Tax Court that's going to allow you to somehow attack that law... you'd have to bring some kind of federal lawsuit so... he's operating under.. you have to understand the concept of jurisdiction.. you may not like it ." Perhaps the apparent contradictions in these statements can be explained, regardless I contend your sworn oath obligates action if you see even the slightest merit in my claims of Constitutional violations. If you haven't the authority or the competence to make a decisive declaration one way or the other regarding Constitutional issues, justice demands that you remand the issues or the case in whole to a more appropriate "higher" court. With I think deserved cynicism, I ask the question were you sworn to defend the physical paper the Constitution was written on or the spirit and high ideals the words hoped to inspire and make manifest? 2. Precedent: Plaintiff contends that this case does involve issues of unsettled law where actual "legal status" of statute and state application is untested or remains in controversy. I would contend that I am put at a decidedly disadvantageous position in this process. Anticipating and pre-arguing the case law you might deem applicable as relevant precedent is a daunting task, even for a well-equipped law firm-- doing it as a pro se individual of limited experience without any practical (searchable) access to the reservoir of past (settled) case law is in likely fact impossible. In light of this fact I request of the court some latitude and the fairness of not having my argument casually disqualified by some technical deficiency, measured against a standard simply contrived to provide holes for the game players to loop through. I believe I should be able to fairly rely on your volume of knowledge regarding the status of current law as defined by federal and state courts and your integrity as made manifest by what I hope, against reasoned belief, is an overriding will to apply that knowledge honestly and fairly. 3. Issues of Contention: In overview the circumstances of this case are comprised of a plethora of "Constitutionally questionable" government actions. It is a practical fact that the power to tax carries with it the potential to persecute. I claim that it is the responsibility of the Judiciary, including this court, to prevent the Legislature or Governor from converting the social necessity of establishing and collecting government revenues into a weapon of reckless destruction or malicious tyranny. A complete hearing of the facts will demonstrate that the State Legislature and the Executive have sacrificed the truth and Constitutional principle at the altar of political convenience. In violation of their oath, the Constitution has, in fact, become an obstacle they are trying to defeat, rather than a border they are honorably defending. From the cigarette tax (taxation of a minority vice) itself, through reliance on the Jenkins Act, and a preposterous sales tax un-exclusion, to the endgame of enforcement where rights of privacy, honesty and fair notice have no meaning, the State's objective has been to push Constitutional boundaries and exploit superficial literal weaknesses in 200 year-old words. The history of the cigarette tax clearly shows that glancing blows to the literal words of the Constitution can, with time, become infectious potentially hemorrhagic wounds to the fundamental principles that provide the justice and freedom the Constitution hopes to insure. The question is, will the Judiciary, or this court, ever do anything to stop the bleeding and, in turn, save the life of our Constitution. 3a. The Cigarette Tax The "sin tax" expansion of government's right to impose taxes has created a blatantly corrupting conflict of interest where government is being effectively paid to find vulnerable, defenseless (politically irrelevant) minority liberties to fleece and slaughter for bounty--in spite of being also assigned, by intention of The Bill of Rights, the responsibility to protect vulnerable minority interests. The fact that Jefferson did not include in the Constitution a prohibition against "cruel and unusual taxation" would indicate that he saw no imminent danger of the right to tax being converted into a right to exploit and effectively prohibit. Condensed into a single sentence Jefferson believed that -one man's liberty should only stop where another man's begins- and that -only trespasses against the public's space or someone's private space can be legitimately prevented or punished. I would contend that Jefferson never anticipated an America where the "liberty right" would be as narrowly defined as it currently is, or where the standards of a legitimately "compelling state interest" would be so broadly defined and enforced. I would contend that living too distant from the days of Jefferson and Madison, recent court's of bad judgment can no longer hear the distant battle cries of "give me liberty or give me death" or "no taxation without representation." In the distance of time they have allowed our government to revert itself into the very thing we sought through revolution to be free from. Refocusing on the narrower issues of this case in the context of current judicial opinion, I would contend that even by today's established "judicial perspective," consistent logic and justice requires any honest trier of fact to conclude that cigarettes have been taxed to unConstitutional excess. Current legal jargon requires a "liberty interest" to achieve "fundamental" status to be entitled to to the protection of obligating the state to demonstrate a "compelling interest" before it is allowed to abridge that liberty. I would simply argue that you cannot get more fundamental a liberty interest than the one produced by a decades-long legal physical addiction. No extenuating circumstance, including the fact that this "liberty interest" (need, desire) is only likely created through the sensibly "should-have-been-prevented" circumstance of once legal childhood addiction, changes the fact that for current addicts the "interest" is substantial and fundamental. Once invoked, the standards that define a legitimately "Compelling State Interest" require that the state's motivation to be unpolluted by Constitutionally prohibited bad or insincere intentions and the proposed state action must be reasonably perceivable as the best available (least intrusive/most effective) or only solution to the social problem the state wishes to address. Plaintiff does contend that by both standards (credibility or effectiveness) the State has not satisfied "test requirements" and has, therefore, unConstitutionally been allowed to violate the liberty "rights" of cigarette smokers. It is self-evident fact that the state's primary interest in "cigarette taxes" was and is the money and the political advantage of finding and abusing a geographically fragmented, unorganized, politically powerless, popularly disliked minority to disproportionately soak for the cost of bloated self-serving government and its special interest moneyed owners. To find evidence of this self-evident truth, you need look no further than this statement made by plaintiff on page 10 of "brief in support of motion for summary judgment" "both the cigarette tax act and the sales and use Tax Act provide vital sources of state revenue. Indeed, so important is a State's collection of cigarette taxes as a source of State revenue Congress enacted the Jenkins Act..." Obviously missing is any reference to the "poor vulnerable children" in whose name these tax Acts were allowed to grow into practical (effective) prohibition. At minimum, justice should require that the State be required to at least maintain the appearance of sincerity and reference the appropriate, albeit false, "compelling interest" in defense of its right to, with disproportionate excess, enforce compliance with this tyrannical Tax Act. Regarding the State's obligation to seek the least intrusive most legitimately socially beneficial remedy, it is Plaintiff's contention that better solutions to the very real social problem of "childhood addiction" and better ways to achieve the ideal social good of a "smokeless society" have not been fairly considered by any element of State government. Money has obscured real debate, and in violation of its responsibility, the Judiciary has not obligated the state to defend the politically expedient "pickpocket" approach of extreme prohibitive minority taxation as a "reasonable remedy" in the light of the abundant better (more effective, less Constitutionally destructive) alternatives. 3b. Taxation without Representation From Plaintiffs original facts and contentions: "Fact: Excessively taxing minority vices in an "all-or-nothing" form of "democracy," where an un-geographically-segregated minority's political disenfranchisement is assured, amounts to taxation without representation. Contention: This one probably just flew over your head, and if it didn't, you think fixing it is someone else's job." From Defendants answer: "Defendant denies upon information and belief each and every allegation contained in Plaintiffs' seventh fact and contention" This being the only one of my original facts and contentions to be emphatically denied or rejected by the Defendant, I feel at liberty to elaborate on the subject. Defendant's rejection of the irrefutable truth that our democracy is not a respecter of geographically integrated minorities exposes a transparently thin depth of understanding of the system that produced the laws Defendant so comfortably and aggressively attempts to enforce. An alternative explanation of this insipid denial of absolute fact would be that Defendant chooses to make up and believe convenient lies in an effort to maintain a false sense of virtue. The simple truth is, Defendant is enforcing the tyranny of "taxation without representation" and is demanding of this court complicit and likewise insipid justification and endorsement of that tyranny. See attachment marked Psj1. An article titled "An Unevolved Democracy" Through the process of this case, this court has demonstrated little respect for clearly established Constitutional principle. In light of this fact, there is likely little point in defending before this court the liberal wisdom of including principles defined in the Declaration of Independence as Constitutionally respected ideals. But I would state for the record that I think justice demands that a complete understanding and "defense" of the Constitution and the Bill of Rights requires appreciation of the evil tyranny it was a response to and was intended to prevent--which was so eloquently itemized in the Declaration of Independence. 3c Due process and equal protection. In light of recent Supreme Court decisions, it is difficult to argue that the words "Due Process and Equal Protection" hold any meaning whatsoever under the tyranny of the political despots who have seized control of our legal system. When the highest court in the land can declare counting cosmetically flawed votes a violation of "equal protection" in the context of an election system that obligates some people to cast their vote with cheap bits of unreliable plastic and paper while others are offered the luxury of fail-safe, space-shuttle-style best technology--it is clear that in American courts you will not find judicial respect for justices fundamental ingredient--consistent logic. The added imbecility of being obligated to argue facts relevant to state violation of my "due process and equal protection rights" before a judge who has repeatedly violated those same rights further proves that due process and equal protection are dead ideals that the inquisitioners of the judiciary have replaced with "preposterous process" and contemptuously "elitist protection." As example: Has my perception of the presiding judge as an ill-informed "elitist bigot" been demonstrated by a single fact to be either reckless or unreasonable? NO! Has the appeals court had the courtesy or courage to answer my request for relief with more than an unaccountable, indecisive, wordless and wimpish defacto retreat? NO! Through what stretch of logic do I find purpose in attempting to argue before this court--that sees justice in attempting to threaten me out of my Constitutionally guaranteed day in court and in trivializing 10% of my income--that the State violated due process and equal protection by using the federal government as an agent to steal my personal purchase information and with reckless disregard for consequence waited up to 16 months to give fair notice of incurring liability (Measured against all the consideration offered people accustomed to not using seat belts, a fool who thinks the Judiciary is protecting due process might believe that not using a seat belt is more physically addictive than cigarettes.) Personally, I see no logic nor can I find any purpose in elaborating any further on this subject before this judge. What I can clearly see is the sad, lamentable fact that men of such small character holding elitist double standards are allowed to sit in judgment and wield power that can decide the destiny of individual lives and the future of our civilization. 3d The Burden of Proof: Consistent with this court, the Judiciary in general has lost all passion for fulfilling its Constitutionally mandated oversight function. Ambiguous, incomplete, and inarticulate legislation is the devil's playground, and the courts seem "hell bent" on ensuring that we have no escape from their master"s range. The Judiciary's rationalized excuse used to cover its obvious complicity in the elitist war against Equal Justice is that Constitutional Justice can only happen in the right court with the right argument (professionally articulated and formated and in triplicate, of course). Besides making a mockery of the solemn oath sworn to, this "until some victim endures our procedurally- daunting, personally-demeaning, and out-right threat making gauntlet of "redress," we can't fix Constitutional wrongs" excuse amounts to treasonous abdication. The Catch-22 imbecility of effectively being obligated to successfully prosecute federal Constitutional lawsuits before I can come to this court with claims of State violation of Constitutional law is an inverted perversion of the appropriate placement of the Burden of proof. It should not be my responsibility to prove to this judge that he violated fundamental Constitutional law when he threatened me with added monetary damages if I did not hastily retreat from his court and from my pursuit of "redress of grievances" (also included the added obligation to leave behind the filing fee I already paid and any future legal rights regarding the disputed issues). Nor should it be my responsibility to prove that the state can't, in legal fact, "wait 10 years to send out a tax notice if [it] felt like it." In an appropriately balanced American justice system, a judge or State that claims a right to take an individual's property or liberty should always be obligated to defend that claimed right with more compelling legal reasoning than the empty excuse that because no court has yet made a judgment explicitly saying they can't, the right is theirs to take. What justice requires in this case is that the court and the State provide well-reasoned, logically consistent, Constitutionally (high court) referenced real defenses against the sincere, serious claims of Constitutional violation I have made. As yet, this court and the State have not provided a satisfactory--by any reasonable standard-- defense regarding a single charge I have made. 3d-1: My claim that "threat bargaining" is an unConstitutional violation of "right of redress" has not been answered by this court. 3d-2: My claim that this court demonstrated disqualifying bias has not been substantively refuted by this court with the legislatively required evidence of "unreasonableness of belief." 3d-3: My claim that the "Jenkins Act," as used by the the New Jersey Division of Taxation (without requiring fair disclosure to the purchaser) constitutes a Constitutionally illegal seizure of Constitutionally protected private property (reasonably presumed private purchase information) has not been, with relevant evidence, refuted by the Division of Taxation . On page 12 Defendant does reference case law. However, the referenced cases claimed violations of due process and did not claim violations of Constitutionally protected privacy and are, therefore, of no relevant meaning in this case. The fact that this 50-year-old Act remains substantially untested and untried Constitutionally is more evidence of the destructive impact of judicial barriers to fair access and redress and proves absolutely nothing regarding this law's actual Constitutional credibility. I would further claim that State law (legal precedent in entrapment cases) requires State agencies that use outside "agents" (the Jenkins Act) to secure evidence to be equipped to substantially defend the credibility of those agents. I would simply argue that the New Jersey Division of Taxation cannot credibly defend or vouch for the credibility of an "agent law" that has not yet passed a relevant Constitutional test. 3d-4: Regarding the sales tax: My claim that the State is dishonestly (and therefore illegally) using the mask of a broad sales tax to do nothing more than establish another cigarette tax has not been sufficiently addressed by the State. On page 10 of the motion brief for summary judgment, Defendant does provide citation regarding part of what the Sales and Use Tax Act provides. Absent is a complete listing of what has been exempted and any evidence mitigating a claim that the exemptions are, in fact, merely convenient indulgences to politically powerful special and majority interests and constitute a violation of due process and equal protection. In other words, a Constitutionally legitimate, fair, broad, and inclusive tax act has been perverted, through political interest exemption, into a tyrannically narrow, minority punitive, and patently unfair (especially to the impoverished) Minority Vice Abuse Act. 3d-5: My claim that the New Jersey Division of Taxation was guilty of sufficient negligence and casual disregard in the processing of tax notices to require the forfeit of authority to collect tax under the unfair circumstances created by the unjustifiable delay in forwarding notice, has received no reply from the Defendant. At minimum the Defendant should be obligated to demonstrate that what occurred in my case is not standard practice. Evidence demonstrating that the delay was not the product of a cynical, deliberate effort to make showy, high bounty, examples of some of us snared in their tax trap, should also be required. There are many more reasonable questions that should require reasonable answers before any judgment--most especially a summary judgment--should be considered. 3d-5a: How "many unsuspecting purchasers in the same situation as [myself]" have been snared in this state tax trap? 3d-5b: What percentage of snared victims continue to purchase cigarettes through the same provider once informed of incurred liability? 3d-5c: Why did the Defendant redact information from Defendant exhibits B-F? Is this redaction a concession that the information does carry a "reasonable expectation of privacy" and is therefore Constitutionally protected? 3d-5d: How many milliseconds of computer processing time is required to convert the data received from cigarette sellers into the form letter tax notices? 3d-5e: Does the Division of Taxation believe it "can take 10 years to send out a tax notice if it felt like it"? 3d-5f: What exactly are the Division of Taxation's rules and regulations regarding the processing of tax bills? Is there any distinction made in processing between the very different tax circumstances of enduring property verses consumable commodities? I would argue that the Legislature was guilty of unconstitutional laziness in not providing circumstantially appropriate rules regarding the collection of consumable commodity taxes separate and distinct from those established for the collection of the distinctly different taxable asset of property. 3d-5g: How many times has the Division of taxation enforced law 54:40A-44 and how much were the violators fined? I would make the due process and equal protection argument that the State of New Jersey is disproportionately unfair in its application of the law. An aggressively enforced 800% tax on consumers compared to a completely unenforced < 2% fine on illegal and deceptive advertisers demonstrates illegal State complicity--the same complicity that was perpetrated by the State in trading with tobacco producers the right to change the health warning from draconian cancer warnings to the insipid "cigarette smoke contains carbon monoxide" in exchange for access to billions of dollars of cigarette consumers' money. See attachments marked Psj2 & 3. June and July "out-of-state" ads I found in my Sunday Star-Ledger. CONCLUSION For the foregoing reasons, the Plaintiff respectfully requests tht Defendant's motion for summary judgment be rejected. The issues in controversy are of sufficient importance to justify complete and fair investigation before any ultimate judgment is made.