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SAMPLE BRIEF TO THE NEW JERSEY
SUPREME COURT
The following New Jersey Supreme
Court Brief (distinguished from a New Jersey Supreme Court Petition
for Certification) was prepared by On-Point Paralegal Services,
LLC, and is provided as a writing sample. This is not intended
nor should it be construed or relied upon as being legal advice.
We have made every attempt to maintain proper format while converting
this brief to .html format for display on the Internet.
PROCEDURAL HISTORY
The relevant Procedural History is as follows.
On October 16th and 17, 2002, this matter was
tried in front of the Honorable XXXXX J.S.C., of the Middlesex
County Superior Court, and a jury. Only issues of damages were
tried in accord with an arbitration clause in plaintiff's insurance
policy. The parties agreed that this matter would be tried as
to damages only.
The jury returned a verdict of no-cause with
eight jurors deliberating and a decision of six-to-two (6-2).
[Pa 26a]
On November 4, 2002, plaintiff moved for a new trial pursuant
to R. 4:49-1. [Pa 27a]
On November 22, 2002, the Honorable XXXXX denied
plaintiff's motion for a new trial. [Pa 28a]
In November, 2002, plaintiff filed a timely Notice
of Appeal to the Superior Court of New Jersey, Appellate Division.
[Pa 29a]
On December 5, 2003, the appellate panel reached
a determination against plaintiff on all issues, but the Honorable
XXXXX, J.A.D, filed a dissent on a select issue. (See a copy of
both the majority and the dissenting opinions attached to this
brief. The Opinion is also published at 364 N.J. Super. 473 (App.
Div. 2003).
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December 18, 2003, plaintiff filed a timely Notice
of Appeal As of Right to this New Jersey Supreme Court. (See Notice
of Appeal attached hereto.)
STATEMENT OF FACTS
The underlying case is a personal injury action
concerning a motorcycle accident that transpired on April 9, 1998.
The facts surrounding the accident are entirely irrelevant to
this appeal and are not repeated here for sake of brevity. The
only facts that are relevant are that the trial court empanelled
a jury consisting of eight (8) persons and that plaintiff failed
to object at that time. The jury ultimately no-caused the case
by way of a vote of 6-2 (three-fourths). (Pa26) Plaintiff's November
7, 2002, motion for a retrial was denied in an Order dated November
22, 2002. (Pa27-Pa28.)
QUESTIONS BEFORE THE COURT
Plaintiff presents two issues to the Court by
way of this appeal:
1. Did the New Jersey Legislature exceed its
authority by enacting N.J.S.A. 2B:23-17a which allows a civil
jury verdict by way of vote of three-fourths of the jury, whereas
the New Jersey Constitution, Art. I, Para. 9 (1947), requires
such a verdict by way of vote of five-sixths of the jury?
2. Given the undisputed fact that there was
an inappropriate number of jurors, and that the ultimate verdict
was by an insufficient consensus, is plaintiff entitled to a
new trial notwithstanding that she did not object when the jury
was being empanelled?
LEGAL ARGUMENT
POINT I
N.J.S.A. 2B:23-17a IS NULL
AND VOID AB INITIO IN THAT IT DIMINISHES RIGHTS SAFEGUARDED BY
THE NEW JERSEY CONSTITUTION
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Judge XXXXX's dissenting opinion adequately sets
forth the position that plaintiff is taking regarding the unconstitutionality
of N.J.S.A. 2B:23-17a. That position is respectfully incorporated
herein by reference so as to not be redundant. (Both the majority
and dissenting appellate decisions are annexed hereto.) Only the
following is added to supplement it.
"A statute is presumed to be constitutional
and will not be declared void unless it is clearly repugnant to
the Constitution." Newark Superior Officers Ass'n vs. City
of Newark, 98 N.J. 212, 222 (1985). Plaintiff bears this burden
of proof. Id.
A simple comparison of the language contained in N.J.S.A. 2B:23-17a
and N.J. Const, Art. I, Para. 9 (1947), evidences that the two
writings are clearly repugnant to one other. They provide that,
In any civil trial by jury, at least five-sixths
of the jurors shall render the verdict unless the parties stipulate
that a smaller majority of jurors may render the verdict.
N.J.S.A. 2B:23-17a.
The right of trial by jury shall remain inviolate; but the Legislature
may authorize the trial of civil causes by a jury of six persons.
The Legislature may provide that in any civil cause a verdict
may be rendered by not less than five-sixths of the jury. The
Legislature may authorize the trial of the issue of mental incompetency
without a jury.
N.J. Const., Art. I, Para. 9
(1947).
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The Constitution should be interpreted in accord with the ordinary
meaning of its words, In re An Act Concerning Alcoholic Beverages,
130 N.J.L. 123, 128 (1943), and the ordinary meaning of the term
"by not less than five-sixths of the jury" is quite
clear and requires no more interpretation than that. See also
Kervick v. Bontempo, 29 N.J. 469, 480 (1959)("The Constitution
was made to serve and protect the people of the State and all
of its language must be sensibly construed with that uppermost
in mind"); Wilentz v. Hendrickson, 133 N.J. Eq. 447, 487
(1943) ("Constitutional provisions, protective and remedial
in their nature, are not to be construed so stringently as to
defeat the intended protection or remedy").
Accordingly, the Legislature overreached its
authority in enacting N.J.S.A. 2B:23-17a, a statute which detracts
from rights guaranteed by N.J. Const., Art. I, Para. 9 (1947).
The Court should hold it to be null and void ab initio.
POINT II
PLAINTIFF DID NOT WAIVE HER RIGHTS AS GUARANTEED
BY N.J. CONST., ART. I, PARA. 9 (1947), BY FAILING TO TIMELY
OBJECT BECAUSE THE FAILURE TO EMPANEL A PROPER JURY CONSTITUTED
PLAIN ERROR
Although plaintiff admittedly should have objected
at the time that the Court began empanelling the jury, that does
not negate the fact that the percentage of jury votes required
to reach a valid civil verdict is a matter of great importance
in this State to the point that it appears in our Constitution.
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The fact that this happened surely constituted
plain error within the meaning of R. 2:10-2, especially given
the fact that fundamental Constitutional rights are involved.
"Of course, an error of constitutional magnitude may be more
likely to constitute 'plain error' than any other error at trial."
State v. Daniels, 364 N.J. Super. 357, 835 A. 2d 1261, 1267 (App.
Div. 2003), quoting State vs. Macon, 57 N.J. 325, 341 (1971),
and citing PRESSLER, Current N.J. Court Rules, Comment R. 2:10-2
(Gann).
If the undisputed error had the capacity to reach
an unjust result, then it constitutes a plain error and it is
immaterial that plaintiff failed to timely object. Macon, supra,
at 333. Our constitutional rights should not be so lightly disregarded
that a procedural technicality is sufficient to defeat them.
CONCLUSION
The Court should find N.J. Const., Art. I, Para.
9 (1947), unconstitutional and award plaintiff a retrial before
a properly jury.
_______________________________
XXXXX, Esq.
Attorney for Plaintiff
Dated: February 28, 2004
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