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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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