Statewide Recount Opposition Brief

7/27/2019 Statewide Recount Opposition Brief

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Eugene Martin LaVergneDemocratic-Republican for United States Senate

543 Cedar AvenueWest Long Branch, New Jersey 07764

Telephone: (732) 272-1776

October 8, 2013

Honorable Mary C. Jacobson, A.J.S.C.

Superior Court of New Jersey

Law Division Civil PartMercer County Court House

Trenton, New Jersey 08625

RE: I n the M atter of the Appl ication to Recheck the Voting

M achines to be used i n the October 16, 2013 Special General

El ection for the Off ice of Un ited States Senator

Docket No. MER-L-2013-13

Dear Judge Jacobson:

Please accept this letter as additional opposition to the application of

the State from interested party Eugene Martin LaVergne (hereinafterEML). This additional opposition will be limited to the issue of the

validity of service of process which issue did not arise until after the Statefiled their purported Proof of Service documents with the Court on

October 7, 2013. A copy of those documents, obtained from the Courts

Law Clerk Emily, are attached at hereto.1

It is submitted that even a cursoryreview of the documents filed on October 7, 2013 by the State as their

Proof of Service demonstrate conclusively that the State has failed to

1EML was notified late in the day of October 8, 2013 by the Courts Law Clerk

Emily that, in addition to the copies of the States service documents she had provided to

him on the afternoon of October 8, 2013, that there were also several United States Post

Office green cards (return receipts) that the Court had but which copies were not

provided to EML. This additional information (the green cards) in no way affects the

legal issues raised herein.


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timely comply with the mandatory commands of this Court as articulated in

the body of the Order to Show Cause. The proofs submitted by the State

demonstrate that no interested party (the limited few even contemplatedby the State) has actually been Constitutionally served with process within

the meaning or R. 4:4-3 and R. 4:4-4. Therefore, as a threshold matter, this

Court does not now have the necessary constitutionally mandated in

personam jurisdiction over even the few interested parties the State concedeshave a right to be heard. The State may not proceed ex parte. As such, the

Order to Show Cause must be dismissed.

THE ORDER TO SHOW CAUSE:

On September 24, 2013 the State filed a Verified Complaint and a

proposed Order to Show Cause (OSC) without any accompanying legalbrief in support of the application. That same day, September 24, 2013, theCourt signed and entered the proposed OSC with some alterations.

Specifically, the OSC by its terms was purported to have been entered by the

Court under the authority of R. 4:67-1(a) and N.J.S.A. 19:52-6. As to the

issue of service of process, the OSC by its terms specifically Ordered that

the parties in interest (those limited few proposed by the State as theparties in interest regarding such a far reaching application) be served with

the Order to Show Cause and Verified Complaint forthwith, but no later

than September 30, 2013 . (Emphasis added). See OSC, paragraph 1.Moreover, paragraph 2 of the OSC by its terms specifically requires that the

State shall provide the Court with proof of serviceof the pleadings [on]the parties of interest no later than October 7, 2013. See OSC at paragraph

2. The Court clearly required proof of service of process upon the interested

parties, not mere notice of the application to the interested parties.

THE STATE HAS FAILED TO SERVE ANYONE AND AS SUCH

THE OSC MUST BE DISMISSED:To this end, R. 4:67-3 provides that if an OSC is issued ex parte

pursuant to R. 4:67-1(a), as is clearly the case here, the process to be

served with the Verified Complaint shall be the OCS itself rather than aseparately issued traditional form of Summons. R. 4:67-3 also provides that

[t]he order to show cause, together with a copy of the complaint and anyaffidavits similarly certified, shall be ser vedwithin the State at least ten days

before the return day and i n the manner prescribed by R. 4:4-3 and R. 4:4-

4 for the service of a summons, unless the court orders shorter or longer


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service or some other mann er of ser vice. The rule further provides that

under limited circumstances servicemay be made by mail if the court by

order directs and provided that the nature of the action is such thatthe court may thereby acquire jurisdiction. (Emphasis added) Id.

Stated plainly, the OSC issued in this case specifically by its terms

required that constitutionally valid and effective service (not merely

notice) be effected by September 30, 2013 on all interested parties so thatthe Court would have jurisdiction to take action on the return date if

appropriate. Since this is an OSC under R. 4:67-1(a), and since the Courtdid not specifically direct that service by mail would be allowable, the

manner the State was required to effect service of process (the OSC and

Verified Complaint) on the interested parties, by virtue of R. 4:67-3, was

required to be in accordance with the procedures for service of process asoutlined in R. 4:4-3 and R. 4:4-4. Frankly, these are pretty basic andelementary concepts.

It is clear from the papers filed by the State that for some unknown

reason the State chose not to ever actually serve anyone! Indeed, while

EML has filed papers opposing the application, even he has not been served,

though this in not an issue as to EML as EML has entered an appearance asa matter of law by virtue of his filing his written opposition.

The Verified Complaint and proposed OSC were filed by the State on

Tuesday September 24, 2013. That same day, the Court singed the OSC.The next day D.A.G. Donna Kelly prepared a generic cover letter dated

September 25, 2013. The day after that, on Thursday September 26, 2013,someone in Ms. Kellys office mailed the pleadings to all of the interested

parties. No actual good faith effort to serve anyone was made before the

Attorney General made a decision to simply mail the pleadings and nothing

more. However, it is clear that in this case, merely mailing the pleadings isdeficient and is specifically insufficient to qualify as constitutional service of

process. The State was required to effect service of process upon each of the

interested parties by some means listed in R. 4:4-4. R. 4:4-4(a) lists various

acceptable ways of effecting service on an individual in detail in

subparagraphs (a)1 through (a)8. The rule then goes on to state aftersubparagraph (a)8 as follows:

* * *

The foregoing subparagraphs (a)(1) through (a)(8)

notwithstanding, in personam jurisdiction may be


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obtained by mail under the cir cumstances and in

the manner provided by R. 4:4-3. (Emphasis

added).

[R. 4:4-4(a), at short qualifying paragraph found

after subparagraph (a)(8)].

The circumstances and the manner provided in R. 4:4-3 are

described in that rule specifically and in relevant part as follows:

* * *

I f service can not be eff ected after a reasonable

and good faith attempt, which shall be described

with specifi city i n the proof of service requi red by

R. 4:4-7, service may be made by mailing a copy

of the summons and complaint by registered or

certified mail, return receipt requested, to the usual

place of abode of the defendant or a person

authorized by rule of law to accept service for thedefendant or, with postal instructions to deliver to

addressee only, to defendants place of business or

employment.

[R. 4:4-3].

Resort to using United States Mail as a valid and constitutionally

acceptable mode of service may only be resorted to by a party under two

very specific and limited circumstances: [1] when the Court specificallyOrders that service by mail may be permitted in the OSC itself as per R.

4:67-3, which circumstance is not applicable in this case, or [2] when efforts

at traditional service of process as enumerated in R. 4:4-4(a)(1) through

(a)(8) have been actually tried and have failed after a reasonable and good

faith attempt at service of process, which reasonable and good faith attempt shall be described with specificity in the proof of service required by R.

4:4-7 [.]The State did not have the Courts express permission in the body of

the OSC itself to effect service of process by mail under R. 4:67-3.

Moreover, it is clear that the State did not even so much as attempt to serve


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anyone before deciding to simply mail the pleadings by United States Mail

on September 26, 2013. Therefore, as the State is clearly lacking the

required reasonableand good faith attempt at service of process, the Statehad no right to resort to alternative service of process by mail under R. 4:4-3.

EML is unaware of any Proof of Service submitted by the State under R.

4:4-7 at all, nonetheless one that explains in detail the supposed

reasonable and good faith efforts that took place before a decision wasmade to simply mail the pleadings. As such, the State has not effected

service of process on anyone. See City of Passaic v. Shennett, 390N.J.Super. 475, 483 (App. Div. 2007). The Court Rules certainly allow

amendment to any Proof of Service to demonstrate compliance. However,

no amendment can change historical facts, and the fact that all that was done

was someone mailed the documents on September 26, 2013, nothingmore.

In light of the fact that the State has completely failed to demonstrate

constitutionally valid service of process on anyone, EML submits that the

Court should summarily dismiss the OSC without need of any parties to

appear on October 9, 2013 at 2:00 p.m. The substantive merits can only be

entertained by this Court after the State has satisfactorily demonstrated in thefirst instance that they have effected service of process upon all interested

parties as directed in the OSC. The State simply can not do so on the facts

extant as the only action ever taken by the State was the mailing thepleadings. This, under the circumstances, is not valid or effective service

of process on anyone. Therefore, the OSC must be dismissed without anyfurther action due to the States failure to comply with the clear terms of the

OSC.

Respectfully submitted,

Eugene Martin LaVergne, Pro Se

Democratic-Republican

for United States Senate

cc: Donna Kelly, D.A.G.

County Counsel


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Statewide Recount Opposition Brief

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