Gary Mosher v. Director, Division of Taxation Reply Brief Argument I had hoped not to be provoked into filing this reply, as I had expected that the Attorney General would have had the integrity to at least concede that some "t"s were left uncrossed and some "i"s undotted in the lower court procedure. Instead, the Attorney General has chosen to aggressively defend--in contradiction of sworn oath--indefensible constitutional violations and to do so using a slimy whitewash of mischaracterization and omission applied with the fishy tails of red herrings. Unfortunately, prior experience with this court would indicate that I should have no expectation that my sufficient argument to persuade reasonable judgment will be enough argument... so, on to the overkill. From: LEE V. ALSTON BER-L-7360-01 (2003) ...The party moving for summary judgment bears the burden of establishing that there are no genuine issues of material fact in dispute. From: BRILL 142 N.J. 520, 529 (1995) ...As this Court observed over a quarter of a century ago: On the one hand is the desire to afford every litigant who has a bona fide cause of action or defense the opportunity to fully expose his case. . . . On the other hand, protection is to be afforded against groundless claims and frivolous defenses, not only to save antagonists the expense of protracted litigation but also to reserve judicial manpower and facilities to cases which meritoriously command attention. ...beyond-a-reasonable-doubt standard ...The Court concluded that the claim was inherently implausible. ...[Summary judgment] is designed to provide a prompt, businesslike and inexpensive method of disposing of any cause which a discriminating search of the merits in the pleadings, depositions and admissions on file, together with the affidavits submitted on the motion clearly shows not to present any genuine issue of material fact requiring disposition at trial ...so one-sided that one party must prevail as a matter of law ...permit a rational factfinder The Court is required to view the facts, and all permissible inferences from such facts, in a light most favorable to the nonmoving party ----------------------------- A fair, concise standard gleaned from these opinions would be that respondent was required to prove [in the lower court] beyond all reasonable doubt, that the legal theories that make up the foundation of appellant's claims, are, in essence, irrational legal argument. I would contend that the only thing respondent has "proved" is that the Attorney-General's office will break rational barriers and step on constitutional principle, in service of the dishonest politics that owns it. One wonders at this "independent agency's" compelling interest in aggressively attempting to sustain what was, at the very best, a substantially flawed process. To call Judge Kuskin's decision "sound and thorough" (respondent brief pg. 12) and state that the court "examined at length Appellant's arguments and rejected each one of them" (respondent brief pg. 9) stretches credibility into the realm of IRRATIONAL ARGUMENT or, alternatively, it's just a disgusting willful lie. No reasonable person could believe that the Attorney General actually believes it to be proper legal procedure for a judge to declare and establish the dimensions of relevant argument, and his jurisdiction, after he has decided a case. The fact is, when Judge Kuskin stated in the off-the-record conversation that he "did not have jurisdiction," he entrapped himself in a logical paradox. Either he has proven his incompetence by being ignorant of the fundamental fact of his own jurisdiction, or he was deliberately attempting to deceive--a likewise impeachable offense. There are no alternative reasonable excuses. Respondent describes Judge Kuskin's opening remark of the off-the-record conversation as "merely an acknowledgment of what failed to appear on the face of appellants complaint". (respondent brief pg. 34) The fact that I had conceded buying the cigarettes in my initial complaint could not elude a literate human being. It was on its "face," and on every other inch of its exposed literary dermis. It is "inherently implausible" to argue Judge Kuskin's remark was anything other than rhetorical editorializing regarding his pre-trial opinion--that the only relevant issue was whether I bought "un-New Jersey-taxed" cigarettes. The plain truth is, Judge Kuskin's remarks defy excusable explanation and to claim otherwise is IRRATIONAL ARGUMENT. On page 35 of respondent's brief, respondent opines "that the purpose of Judge Kuskin's conference call regarding the amnesty program was merely for the benefit of the appellant." Is this the important work the court needs to summarily dispose of cases to free up time for? One wonders why the court hasn't assigned this "redundantly-inform-the-litigant-of-the-amnesty-program" job to some lower-salaried employee. Through what legislation or rules of the court did this become the responsibility of the "unbiased" judicial branch? Respondent goes on to say "appellant was not coerced to except tax amnesty but merely advised of the penalty provisions." As wet is to rain, penalty is to coercion. To claim otherwise, is IRRATIONAL ARGUMENT . Regarding the constitutional issues: Before this court is the issue of the appropriateness of the summary disposal that took place in the lower court. In other words, we are not here to argue my constitutional claims to resolution. What is to be decided is whether the claims themselves can be rationally argued and are, therefore, deserving of a complete trial. Respondent bringing up new case law specific to my constitutional claims--that they were unwilling to provide at trial--should be deemed inappropriate. Their obligation here is to defend the adequacy of the non-argument they provided in the lower-court. The fact that appellant's explicit constitutional claim of "EXCESSIVE taxation" was not addressed in respondents'/defendants' summary brief or in the judge's decision is irrefutable. To claim otherwise is IRRATIONAL ARGUMENT. Addressing respondents' argument in brief: Respondent heavily relies on a notion of legislative infallibility in tax matters. This argument hinges on the validity of a "slippery slope" rewriting of the Constitution. Historical fact demonstrates that "discretion in tax matters" was a concession to the "impossibility of perfect equality" and the need to sometimes engineer "equitable distribution of the tax burden". I would simply argue that when a constitutional claim alleges that the Legislature is attempting to inequitably distribute the tax burden--it is not bound by any notion of presumed infallibility. Appellant argues that only in the context of ignorance, where simplistic propaganda is truth, can current levels of taxation on cigarettes be rationally viewed as "a reasonable tax scheme intending equitable distribution of the tax burden". Appellant defends the probability of legislative "fallibility" by pointing to a constitutional vulnerability produced by a system of government that relies on geographic location to assign representation. Cigarette smokers do not congregate in San Francisco, in urban slums, or in golf club communities. They have no points of geographic density and, therefore, no capacity to seize fair government representation. Appellant further argues that the practical reality that legislators are often capable of "selling out" the majorities that elect them is an established fact [see the historical record of broken political promises]. The "inference" that they are capable of doing worse to irrelevant minorities that don't elect them is, in a word, "obvious." Establishing the fact that an 800% tax is "unusual" should require no argument. The fact that this tax imposes a "cruel" financial burden, especially on the financially impoverished addict, is likewise beyond argument. Consequently, a claim that this 800% tax constitutes excessive "cruel and unusual" taxation cannot reasonably be seen as an unreasonable legal theory. To claim otherwise is IRRATIONAL ARGUMENT. If you find it possible to disagree, you should be obligated to answer the question: At what level of taxation does unconstitutional discrimination become a "rational" accusation deserving of fair consideration in a New Jersey courtroom--810%? 4000%? 9,000,000%? ... Regarding the sales tax non-exclusion: I reaffirm my claim that neither respondent nor Judge Kuskin has offered any argument nullifying my claim that: Exemptions have been [unconstitutionally] politically engineered without required deference to the required intention of equitable distribution and the fact of minority disenfranchisement. Regarding the seizure of purchase information: Respondent's brief again ignores the "seizure" issue. The claim is, in essence, an "excessive force" argument. My contention is that the "presumed confidentiality" of the purchase information provides enough of a constitutionally protected privacy interest to compel the state to justify the unnecessarily covert seizure of the information. The fact is, there is no real (financial or practical) impediment to the state requiring consumer notification of information transfer prior to purchase. This simple change in law reduces the constitutional jeopardy, more effectively prevents out of state sales, and also would likely eradicate the deceptive, illegal, in-state advertising that currently goes unprosecuted. To claim otherwise is IRRATIONAL ARGUMENT. Regarding Tax Division procedures: Respondent provides a rather convoluted argument stating, in essence, that "the statutes do not require the statute to..." my claim involves what the Constitution requires [equal protection], not what the statutes I claim are unconstitutional might say is required. The Constitution does not allow governments to provide one class of citizens every courtesy in the application of law and to provide another equal, but different, class no courtesy. The simple truth is the state is not allowed to apply legal accountability where it has provided no reasonable expectation that there is knowledge of that accountability. By bending over backwards to inform the majority of their legal obligations in cases like the seat- belt law, the state obligates itself, under equal protection, to make some commensurate effort to insure that minority populations, subject to narrow minority legislation, are offered the same consideration of prior notice and warning before accountability. To claim otherwise is IRRATIONAL ARGUMENT. As conclusion I offer the following question: Can a court commit any more fundamental a crime against the Constitution then to recklessly, or maliciously, prohibit argument of valid constitutional claims? Home