Opinions wanted:
The trial court has indicated that (3+ years after "expediting" the case and 2+ years after argument) a decision will be issued in the next two months ( http://www.dpdlaw.com/Kavadas_ComingSoon.pdf ).
In light of this response, should I still take the time to see if the Appellate Division would consider the failure to decide the case to be an appealable "de facto denial", or wait it out? I think the relatively simple law (below) is on my side, but I'm not eager to go that way if a decision is actually on the horizon.
<x-sigsep></x-sigsep> David Perry Davis, Esq.
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www.FamilyLawNJ.pro
http://www.dpdlaw.com/kavadas.htm
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57 Hamilton Avenue -- Suite 301
Hopewell, NJ 08525
Voice: 609-466-1222
Fax: 609-466-1223
January 6, 2018
Hon. Mary C. Jacobson, AJSC
Superior Court of New Jersey
Criminal Courthouse
400 South Warren Street
Trenton, NJ 08650-0068
Via fax (609) 571-4463 and PDF
- Re: <x-tab> </x-tab>Kavadas, et al v. Martinez, et el
- Docket No. MER-L-1004-15
Dear Judge Jacobson:
It has now been 500 days since oral argument in the above matter was held on August 23, 2016.
I write to respectfully inform the Court that, if counsel cannot be provided with a date certain by which a decision will be issued, this office will file an appeal, asking the Appellate Division to deem this court's failure to issue a decision to be a de facto denial subject to review.
There is significant case law that would support such an application. In June Med. Servs. LLC v. Kliebert, 158 F.Supp. 3d 473, 528 n. 64 (M.D.La. 2016), the Court, citing Khorrami v. Rolince, 539 F.3d 782, 786 (7th Cir. 2008) held a judicial delay can sometimes be "so long . . . that the delay becomes a "de facto denial." See also, Morgan v. Gandalf, Ltd., 165 Fed. Appx. 425, 431 (6th Cir. 2006) (district court's inaction constituted a "de facto denial"); Omnipoint Commc'ns Enters., L.P. v. Zoning Hearing Bd. of Easttown Twp., 331 F.3d 386, 393 (3d Cir. 2003); Alexander v. Local 496, Laborers' Int'l Union, 177 F.3d 394, 40809 (6th Cir. 1999); Chevron USA, Inc. v. Sch. Bd. of Vermilion Parish, 294 F.3d 716, 720 (5th Cir. 2002).
When an appellate court is asked to deem judicial inaction as a de facto denial subject to review it should consider three factors: (1) Whether the delay is unjustifiable, (2) whether irreparable injury is demonstrated, and (3) whether questions of fact more appropriately determined by a trial court are present. IDS Life Ins. Co. v. SunAmerica, Inc., 103 F.3d 524, 526-527 (7th Cir.1996).
Here, the Court has been presented with a motion and cross motion for summary judgment. Thus, neither party has alleged the existence of material fact questions. I do not believe an in-depth review of the harms being caused via the Constitutional and statutory violations is necessary. Finally, a delay of 500+ days is not reasonable.
There have been 24,500 automatic suspensions just since oral argument, 550 of which were erroneous (wrong person, wrong order, arrears actually paid, etc). As previously indicated, I appreciate the Court's workload and the time this matter requires. However, if the Court cannot provide counsel with a date by which a decision will be rendered, plaintiffs are left with no recourse but to seek review of the Court's de facto denial.
Respectfully,
David Perry Davis, Esq.
Cc: <x-tab> </x-tab>DAG Jacqueline Augustine, Esq (Via PDF and fax)
<x-tab> </x-tab>Andreana Kavadas, et al (Via PDF)
Original Message------
On the suggestion of a member of this list, I just spoke with the new DAG assigned to the case to see whether the change in the Attorney General to one potentially more receptive to a "common sense issue" like this might result either in a settlement or at least a return to the Office of Dispute Resolution / Eric Max to discuss a resolution. Last time, we attended several meetings only to be told there was "no settlement authority" as per an unnamed higher-up in the AG's office.
So, the below is being sent. In the absence of a response from the court with a date certain for a decision or an indication the State is willing to return to mediation, I'm filing the notice of appeal on September 3. It'll be on https://www.dpdlaw.com/kavadas.htm later today.
The Law Office of
David Perry Davis
COUNSELLOR AT LAW
57 Hamilton Avenue Suite 301
Hopewell, NJ 08525-9541
(609) 4661222
Fax: (609) 4661223
E-mail: [email protected]
Hon. Mary C. Jacobson, AJSC
Superior Court of New Jersey
Criminal Courthouse
400 South Warren Street
Trenton, NJ 08650-0068
Via fax (609) 571-4463 and PDF
- Re: <x-tab> </x-tab>Kavadas, et al v. Martinez, et el
- Docket No. MER-L-1004-15
Dear Judge Jacobson:
Today is the two year anniversary of oral argument on the application and cross-application for summary judgment.
I last wrote in January, eight months ag+o. I indicated in that letter (copy attached) that I was exploring the option of filing a notice of appeal along with an application for the Appellate Division to deem the Court's failure to decide to be a de facto denial subject to review. The facts of this case fit squarely into the case law where such an action was permitted to proceed in an appellate court. Your Honor responded that the case was being worked on, but no firm date for a decision could be given.
Obviously, I would prefer not to take the time and expense in pursuing that route, but at this point, two years after argument and 40 months after the filing of the complaint, I respectfully do not believe that further delay is reasonable.
I write with the same general issue presented in January: I don't want to devote resources to this if there is any chance a decision is imminent.
I thus respectfully repeat the inquiry made in January. Is there a date certain by which the Court intends to issue a decision? If not, I intend to take the above described steps on September 1.
Respectfully,
David Perry Davis, Esq.
Cc: DAG Marie Soueid, Esq. (Via PDF and fax 609-777-4036)
<x-tab> </x-tab>Andreana Kavadas, et al (Via PDF)
<x-sigsep>
David Perry Davis, Esq.
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www.FamilyLawNJ.pro
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57 Hamilton Avenue -- Suite 301
Hopewell, NJ 08525
Voice: 609-466-1222
Fax: 609-466-1223
</x-sigsep>