SAMPLE BRIEF TO THE NEW JERSEY SUPREME COURT

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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