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Arkansas remembers Pearl Harbor
Central Arkansas venues have a full week of commemorative events planned
C.J. RAMONE8 p.m., Downtown Music Hall. $15 adv., $20 door.
You could make a pretty solid case that The Ramones were one of, if not the, quintessential American rock bands. "Da bruddahs" from Queens rose from working class backgrounds and took the things they loved – buzz saw garage rock, AM bubblegum pop, lowbrow culture and self-aware, misanthropic humor – and wedded it all to some of the catchiest tunes ever written, in the process permanently altering popular music. On July 4, 1976, the band went to England and more or less single-handedly upended the musical order of the motherland. As the band's first manager, Danny Fields, put it in "Please Kill Me," the beyond-essential oral history of punk rock, "On the two-hundredth anniversary of our freedom, we were bringing Great Britain a gift that was forever going to disrupt their sensibilities." It's really hard to believe that 35 years later there's only one founding member still alive – original drummer and later producer Tommy Ramone. That leaves drummers Marky and Richie, and bassist C.J., who replaced Dee Dee in 1989 and is now hitting the club circuit playing Ramones tunes with the band's former producer Daniel Rey. This tour could be seen as a blatant cash-grab, if you want to be all cynical about it. Or you could go to the show and hear a bunch of your favorite songs played by some folks who shared the stage and studio with the founders of one of the greatest bands ever. After all, this is about as close as you're ever going to get to seeing The Ramones. Northwest Arkansas can check out the show Thursday in Fayetteville at George's, 9 p.m., $13.
9 p.m. Juanita's. $21 adv., $25 door.
Sevin Dust the gardening product was what my grandma used to spray on her tomatoes to keep the bugs off. Sevendust the musical act is exactly the kind of band you'd expect to be included on 1997's "More Kombat," the "Mortal Kombat" soundtrack sequel. Not the soundtrack to the sequel to a movie about a videogame, the sequel to the soundtrack to a movie about a videogame. (Bonus trivia: the original "Mortal Kombat" soundtrack included "What U See/We All Bleed Red" by none other than Batesville's Mutha's Day Out!) That is to say, Sevendust is firmly a second-tier '90s nu metal act, playing an ever so slightly more accessible version of the mosh-friendly fare of acts like Slipknot and Linkin Park. Call it pop-Korn. But whatever. The band's still going strong, carrying the nu metal banner in 2011. This stuff has a surprisingly durable popularity. While it's not exactly at the top of the charts, nu metal has far outlived its predecessor genres of funk metal, groove metal, rap metal and the little-discussed but nonetheless historically significant salsa metal. Opening the show are Adelita's Way, Seven Day Sonnet and Violence to Vegas.
7:30 p.m. Weekend Theater. $16-$20.
It's hard to imagine now, but back in the '50s, when Alan Jay Lerner and Frederick Loewe sat down at the piano to create a musical based on George Bernard Shaw's play "Pygmalion," their task was seen by many to be an impossible goal. That opinion was shared by no less than Rodgers and Hammerstein, who'd already attempted it and given up. But Lerner and Loewe managed to find the music in a play that didn't fill the traditional requirements for a musical, writing timeless numbers such as "I Could Have Danced All Night" and "Wouldn't It Be Loverly." They had an enormous hit in 1956 with "My Fair Lady," helping make Julie Andrews a star along the way. The Weekend Theater's take on the musical runs through Aug. 13, with 7:30 p.m. shows on Fridays and Saturdays and 2:30 matinees on Sundays.
Cover Story / Arkansas Reporter / The Week That Was / The Observer / Editorial / Max Brantley / Ernest Dumas / Gene Lyons / Jay Barth / Words / Guest Writer / Letters
A&E Feature / To-Do List / In Brief / Movie Reviews / Music Reviews / Theater Reviews / A&E News / Art Notes / Media / Dining Reviews / Dining Guide / Calendar / Gallery Listings


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Ten Rutgers Professors Named Fellows of American Association for the Advancement of Science
Ten Rutgers have been named fellows of the American Association for the Advancement of Science (AAAS), an honor conferred on 381 other experts in the U.S. and abroad. The fellows were chosen by their AAAS peers for efforts to advance science...
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21-Nov-2016 12:00 AM EST Add to Favorites
High School Students Explore Careers in Health Care Through Rutgers Program
New Jersey high schoolers can earn college credit while learning about growing health care fields and obtaining clinical experience
20-Nov-2016 10:05 AM EST Add to Favorites
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Beware of the Artificially Alkaline Water Scam
Posted by Nahemah Rhiannyr on December 26, 2012 0 Comments
A new alkaline water scam similar to the kangen water scam has been bilking consumers out of their hard earned cash. The "artificially alkaline" water scam attempts to scare consumers with claims that some water treatment devices make water "artificially alkaline". But this is a scam because water is made artificially alkaline by adding slaked lime to it. This is commonly done by municipal water authorities to raise the pH of tap water to the EPA mandated level of 6.5. In fact, 20% of all US households are currently served by local water utilities that make water artificially alkaline.
Naturally Alkaline vs. Artificially Alkaline Water
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August 26, 2011
UNITED STATES OF AMERICA,v.JOHN L. FORT, III,
Before the Court is Defendant's motion to dismiss [29] Counts One through Five of the indictment [1] and Defendant's motion requesting disclosure of grand jury information [33]. For the reasons set forth below, the Court respectfully denies both motions [29 and 33].
I. Background
On September 27, 2010, Magistrate Judge Valdez signed a nine-count complaint charging eleven Defendants, including Defendant John Fort, with drug-related crimes. United States v. Romero, et al., 10-cr-803. In that complaint, Defendant Fort was charged in only one count (Count Nine), which alleged that he conspired with Roberto Romero and with others known and unknown to possess with intent to distribute and to distribute 100 grams or more of heroin. Count Nine of that complaint charged Defendant alone; no other Defendants were included in that charge. Attached to the complaint was a 152-page affidavit outlining probable cause for the complaint, which included descriptions of numerous telephone calls intercepted pursuant to court-authorized wiretaps on the telephones of Roberto Romero. Approximately fifteen pages of the affidavit pertained to Defendant Fort.
On October 25, 2010, at the request of Defendant Fort, Magistrate
Judge Valdez held a preliminary hearing where an FBI agent testified
with respect to the allegations in the complaint affidavit and about
Defendant Fort's post-arrest statement. Defendant did not present any
evidence at the preliminary hearing. Magistrate Judge Valdez found
that there was probable cause for Fort's arrest.
Ten separate indictments arose from the complaint filed in United States v. Romero, et al., 10-cr-803. The grand jury indicted Defendant Fort on December 15, 2010, under the present case number, and the Government then dismissed Fort from case number 10-cr-803. The five counts contained in the present indictment arise from the conduct outlined in the complaint affidavit for 10-cr-803. Specifically, the indictment in this case charges that the beginning no later than April 2010 and continuing until approximately August 2010, in Chicago and elsewhere, Defendant Fort conspired with others (known and unknown) to knowingly and intentionally possess with intent to distribute and to distribute 100 grams or more of heroin in violation of Title 21 U.S.C. §§ 841(a)(1) and 846 (Count I). The indictment further charges that on or about July 22, 2010, Defendant Fort knowingly and intentionally possessed with intent to distribute 100 grams or more of heroin (Count II), and also on July 22, 2010, at approximately 6:23 p.m., Defendant Fort knowingly and intentionally used a cell phone in the commission of a felony (Count III). The indictment further alleges that shortly thereafter, on July 27, 2010, Defendant Fort knowingly and intentionally possessed with intent to distribute 100 grams or more of heroin (Count IV), and on July 27, at approximately 6:37 p.m., Defendant Fort knowingly and intentionally used a cell phone in the commission of a felony (Count V).
II. Motion to Dismiss
A. Legal Standard
Federal Rule of Criminal Procedure 12(b)(3)(B) permits a party to make a pretrial motion that challenges the sufficiency of an indictment or an information. The contents of an indictment or information, in turn, are spelled out in Federal Rule of Civil Procedure 7(c)(1). The SeventhCircuit teaches that an indictment is constitutionally adequate and complies with Rule 7(c)(1) where it (i) states the elements of the offense charged, (ii) fairly informs the defendant of the nature of the charge so that he or she may prepare a defense, and (iii) enables the defendant to plead an acquittal or conviction as a bar against future prosecutions for the same offense. United States v. Agostino, 132 F.3d 1183, 1189 (7th Cir. 1997); see also Hamling v. United States, 418 U.S. 87, 118 (1974) (discussing precedent and describing when the language of an indictment will be deemed sufficient); Russell v. United States, 369 U.S. 749, 763 (1962) (among the criteria for gauging sufficiency of an indictment are whether it includes "the elements of the offense intended to be charged" and whether is "sufficiently apprises the defendant of what he must be prepared to meet").
The Supreme Court has long held that "[a]n indictment returned by a legally constituted and unbiased grand jury, * * * if valid on its face, is enough to call for trial of the charge on the merits." Costello v. U.S., 350 U.S. 359, 362 (1956). Indictments are to be reviewed "on a practical basis and in their entirety, rather than in a hypertechnical manner." United States v. Cox, 536 F.3d 723 (7th Cir. 2008). A motion to dismiss an indictment is not "a means of testing the strength or weakness of the government's case.'" United States v. Moore, 563 F.3d 583, 586 (7th Cir. 2009). Thus, while an indictment may be dismissed if subject to a defense that raises a purely legal question (United States v. Labs of Virginia, Inc., 272 F. Supp. 2d 764, 768 (N.D. Ill. 2003)), a defense that relates to the strength of the Government's evidence ordinarily must wait for the trial. Moore, 563 F.3d at 586 (inquiry at the motion to dismiss phase is to determine "if it's possible to view the conduct alleged" as constituting the crime alleged); United States v. Risk, 843 F.2d 1059, 1061 (7th Cir. 1988) (noting the ordinary rule while affirming a districtcourt that dismissed an indictment as to which, under the undisputed facts, "there was no case to prove").
B. Analysis
The indictment here includes five counts: one count of conspiracy to posses with intent to distribute and to distribute 100 grams or more of heroin in violation of Title 21, United States Code, Section 846 (Count I); two counts of possessing with intent to distribute 100 grams or more of heroin in violation of Title 21, United States Code, Section 841(a)(1) (Counts II and IV); and two counts of using a communication facility, namely a cell phone, in committing and in causing and facilitating the commission of conspiracy charged in Count One in violation of Title 21, United States Code, Section 843(b) (Counts III and V). The language in the indictment tracks the language in each of the applicable statutes, and thus states all of the elements of the charged crimes. The indictment adequately informs Defendant of the nature of the charges and includes additional factual allegations, such as dates, and, with respect to Counts Three and Five, the exact times of the offenses. Moreover, given the detailed complaint affidavit from case number 10-cr-803, Defendant certainly is "aware of the specific conduct at issue." United States v. White, 610 F.3d 956, 958-59 (7th Cir. 2010).
Defendant argues that the indictment should be dismissed because it "fails to allege a co-conspirator, or evidence of an unknown co-conspirator." See DE 29 at 3. However, Count One of the indictment alleges in part that Defendant "did conspire with others known and unknown to the Grand Jury." Defendant cites no authority that the indictment must specifically name the alleged coconspirator(s), and indeed, no such requirement exists. And in any event, the affidavit submitted with the criminal complaint makes clear to Defendant that the Government alleges that at least one of Defendant's co-conspirators is Roberto Romero. Furthermore, the Government represents that it has produced to Defendant numerous telephone calls that Defendant had with Roberto Romero, allegedly in furtherance of the conspiracy.
Defendant also argues that "the statements used to indict him are based on double hearsay not made in furtherance or during the course of the conspiracy." See DE 29 at 3. The Government disputes that characterization of the evidence. However, even if Defendant had the better of that argument, it would not be a reason to dismiss the indictment. In evaluating the sufficiency of an indictment, a court is not to "consider whether any of the charges have been established by evidence or whether the government can ultimately prove its case." White, 610F.3d at 959; United States v. Sampson, 371 U.S. 75, 78-79 (1962). The proper inquiry is whether the Government has alleged a conspiracy, not whether there is sufficient evidence to prove a conspiracy. Furthermore, as the Government points out, Defendant's own statements recorded pursuant to court-authorized wiretaps are not hearsay, Fed. R. Evid. 801(d)(2)(A), nor are statements of his coconspirators made in furtherance of the conspiracy, Fed. R. Evid. 801(d)(2)(E).
Defendant further argues that an indictment must be dismissed before trial "when there is no dispute about what the evidence will be and it is clear that the evidence cannot suffice to prove the charged offense beyond a reasonable doubt." See DE 29 at 6. In this case, the charges against Defendant arose out of court-authorized wiretaps on his coconspirator's telephones, allegedly corroborated by surveillance and Defendant's own post-arrest statement where he identified his own voice, and his coconspirator's voice, on the intercepted calls and said words to the effect that he was mad at himself for getting himself into this situation, that he was "dead," and that his "life is over." Defendant's motion to dismiss the indictment is denied.
III. Disclosure of Grand Jury Information
Defendant requests grand jury materials that are presumptively secret and subject to disclosure only in extremely limited circumstances. Fed. R. Crim. P. 6(e); Douglas Oil Co. v. Petrol Stops N.W., 441 U.S. 211, 222 (1979). To obtain grand jury materials, one must make a showing of particularized need that "the information 'is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that the request is structured to cover only material so needed.'" United States v. Campbell ("Campbell II"), 324 F.3d 497, 498-99 (7th Cir. 2003) (quoting Douglas Oil Co., 441 U.S. at 222); United States v. Sells Eng'g, Inc., 463 U.S. 418, 443, (1983). In deciding whether a party has made such a showing, "the district court has 'substantial discretion.'" Hernly v. United States, 832 F.2d 980, 984 (7th Cir. 1987) (quoting Douglas Oil, 441 U.S. at 222-23); see also U.S. v. Calabrese, 2010 WL 3613973, at *1 (N.D. Ill. Sept. 8, 2010).
Defendant has not met his burden. With respect to the "particularized need" for the materials, Defendant's rationale for his request is that, in his view, given the "paucity of evidence" against him, the only possible explanation for the return of the indictment is the Government's "blatant and overreaching falsities at the expense of the truth." DE 33 at 1-2. Yet, not only did the grand jury find probable cause to indict, but Magistrate Judge Valdez also found probable cause after a preliminary hearing in case number 10-cr-803 (after previously finding probable cause when signing the complaint).
Moreover, "a defendant is not entitled to litigate the sufficiency of evidence presented to the grand jury." United States v. English, 501 F.2d 1254, 1257 (7th Cir. 1974). As explained by the Supreme Court, doing so would unnecessarily delay the proceedings because the defendant may challenge the sufficiency of evidence at trial:
If indictments were to be held open to challenge on the ground that there was inadequate or incompetent evidence before the grand jury, the resulting delay would be great indeed. The result of such a rule would be that before trial on the merits a defendant could always insist on a kind of preliminary trial to determine the competency and adequacy of the evidence before the grand jury. This is not required by the Fifth Amendment. An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits.
Costello v. United States, 350 U.S. 359, 408-09 (1956); see also United States v. Williams, 504 U.S. 36, 54-55 (1992).
With respect to the second Douglas Oil factor, Defendant has not established that "the need for disclosure is greater than the need for continued secrecy" of the grand jury materials. Given the findings of probable cause, the court-authorized wiretapped conversations between Defendant and a co-conspirator, Defendant's post-arrest statement, and the detailed complaint affidavit from case number 10-cr-803, the need for disclosure in the present case is limited at best and does not outweigh the need for continued secrecy.
Finally, with respect to the third Douglas Oil factor, Defendant has not narrowly structured his request. Defendant not only seeks transcripts of the testimony presented to the grand jury, but he seeks (1) identities of all individuals to whom grand jury materials were disclosed; (2) transcripts of the instructions given to the grand jury at the time of impanelment as well as at the time of indictment, and (3) all orders or letters of immunity given to any grand jury witness. Defendant has not established his entitlement to any of these materials. To the extent that his request seeks grand jury transcripts of testimony of any trial witness against him, the Government represents that it will produce these transcripts, if they exist, at the appropriate time under Title 18, United States Code, Section 3500. Defendant's motion is denied.
IV. Conclusion
For the reasons stated above, Defendant's motion to dismiss [29] Counts One through
Five of the indictment [1] and Defendant's motion requesting disclosure of grand jury information [33] are both denied.
Robert M. Dow, Jr. United States District Judge
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Lucian Freud
German-born British painter. Known chiefly for his thickly impasto-ed portrait and figure paintings, he was widely considered the pre-eminent British artist of his time.
42 Pins21 Followers
It's in this period that Freud's brushstrokes become increasingly forceful, and the volume of paint on the canvas increases, so that it seems to almost shape the contours of skin or hair . In the portrait of the artist Frank Auerbach, his powerful forehead dominates the canvas. The two men had been friends since the mid-1950s, were great admirers of each other's work and saw each other frequently. It was at the time he made this portrait that Freud began to use Cremnitz white, a dry…


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Dog-friendly Kent, 3 Dogs & 2 People
This detached holiday home lies just yards from the beach at one of Broadstairs' beautiful bays, Dumpton Gap. A quiet gently sloping, sandy beach with promenade. At low tide walk along the beach to Ramsgate (check tide times), explore the rock pools for shrimps and crabs or take a stroll along the cliff top.
Potts Farm Oast offers guests a unique opportunity to stay in a spacious twin round kiln oast house surrounded by grassland farms with access to footpaths across the fields. Once used for drying fresh hops before they were sent to the brewers to flavour the beer, it has now been thoughtfully restored and makes an ideal…
This terraced former fisherman's cottage has an enclosed garden and is just a 2-minute stroll from the beach. Within walking distance is Walmer Castle, where you can see Wellington's original boots and an award winning real ale pub.
This mid-terrace holiday property is just a 5 minute stroll from the beach, harbour, quirky shops and station with good connections to London. Watch the catch being unloaded, browse the fish market and eat in one of the popular seafood restaurants and try the famous oysters.
In the unique and magical location of Dungeness, Les Quatre Vents sits in a completely private position off the beaten track and just a few minutes' walk from the beach. Teeming with rare birds and plants, Dungeness is a designated National Nature Reserve, a Special Protection Area and a Special Area for…
This quirky, beamed Victorian barn conversion on different levels makes an ideal holiday destination for families or friends. When the weather is clement, take advantage of the spacious garden and enjoy a barbecue on the terrace or relax indoors in front of the large woodburner and sharpen up your pool skills in the…
This Grade II listed, mini Gothic castle was built in 1850 and now makes an unusual and unique holiday home. It is believed to have been built as the gate house for the officers' accommodation for the Dover Castle Garrison who were housed in an impressive crescent of homes in Victoria Park.
Thoughtfully converted to a high standard, this stunning, thatched 17th-century barn has a plethora of beams and vaulted entrance hall. Standing detached, it is ideally situated on the edge of the picturesque village of Smarden - whose name is derived from the Saxon 'Smeredaenne', meaning butter valley and…
Just a 5-minute downhill walk from the beach, located at the foot of the white chalk cliffs of St Margaret's Bay, is Headland, which adjoins the owner's holiday home. Situated on the southeast coast of England between Dover and Deal, the holiday apartment is ideal for walkers, cyclists, birdwatchers and…
Farm Cottage is a quaint, semi-detached, converted farm house which is situated near the coast of Margate in Kent. Comfortably sleeping 4 guests, this holiday property, next to the owners' home, has been renovated to a good standard.
This semi-detached holiday cottage, made of an oak beam construction, is situated in the village of Groombridge, just a 10-minute drive from the beautiful spa town of Royal Tunbridge Wells and The Pantiles, also ideally placed for exploring the Kent and East Sussex countryside.
This charming, restored, terraced fishermans holiday cottage, seconds from the beach, is light and airy in summer, cosy and snug in winter with open fires. Beach or cliff top walks from the door, or try golf, sailing or windsurfing. Visit Deal or Walmer Castle, 10 minutes. Canterbury a short drive. Shop 50 yards, pub…


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Ron "Ronnie" Cobbs, 64, of Durant, Ok. passed away on Saturday March 29, 2014. One day after his 64th birthday. In Durant, Ok at MCSO after a 7 month courageous battle with Cancer. He was born March 28, 1950 in Bakersfield, Ca. to James Edward Cobbs and Mabel (Brewer) Cobbs. He was the youngest of nine children.
He proudly served his country in the United States Army, Vietnam War. Honorably discharged in 1971, rank Sgt. E-5. In 1979 he met his wife Catharine and they had been together for 35 yrs. Ron had been a Truck Driver for 35 yrs. until his illness in late August of 2013. From 1979 to 2005 he drove tanker trucks hauling petroleum products out of Bakersfield, California.
After his move to Durant, Ok. On Dec. 1, 2005 he went to work as a driver for the Big Lots Distribution Center in Durant, March of 2006. Ron loved to fish and enjoyed a good boat ride with his brother-in-law Jonas Smith. He also had a fondness for the slot machines. Said "it made him relax".
He was preceded in death by his parents, Edward and Mabel, 2 brothers LeeRoy and Walter Cobbs, 3 sisters Louise Craghead, Jennie Smith Geraldene Ward and nephew, Danny Smith. Father and mother-in-law, Thomas and Lena Duffy. He helped care for Thomas and Lena until their passing in 2000 and 2010 respectively.
He is survived by wife Catharine, Durant, Ok., son and daughter-in-law Justin and Morgan Cobbs of Bakersfield, Ca., son Jason Cobbs and son Kyle Cobbs of Durant, Ok. Brother's and sister-in-laws, Carl and Elaine Cobbs, Apple Valley, Ca., Wayne and Marilyn Cobbs, La Puente, Ca., brother, James Leon Cobbs, Lake Isabella, Ca. brother-in-law, Jonas Smith, Pontiac, Mo. Also surviving Ron, 3 grandchildren, Britany, Clayton and Ethan Cobbs. Many nieces and nephew will remember their Uncle "Ronnie fondly. As will his extended family of in-laws: Lou and Madeline Amundson, Eagle River Alaska, Loretta Duffy of Idaho, Brenda and Terry Beeler, Sleepy Valley, Ca. Many people loved this gentle man and he will be deeply missed. Ron had made many great friends during his driving years…."Thank you guys for always being there".
A Register Book will be available for family and friends who wish to pay their respects at Holmes-Coffey-Murray Funeral Home. Durant, Ok.
Funeral services will be held in Bakersfield, Ca. Greenlawn Cemetery, 3700 River Blvd. Monday April 7, 2014 at 10:00 a.m., with brother-in-law Pastor Lou Amundson officiating.
Visitation will be held Sunday April 6, 2014, 2:00 to 5:00 p.m at Green Lawn Cemetery. Family and friends may send online condolences and view tributes at www.holmescoffeymurray.com
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Kitchen and Bathroom
Vanities and Medecine Cabinets
Cultured marble vanity top. 25 in. Made of melamine and MDF. Brushed nickel handles. "Soft Closed" concealed hinge. Pre-assembled. Chocolate. CUPC approved. (Faucet and pop-up not included). 1-Year warranty.
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15221 SW 80th St # 309 Miami, Florida 33193
Beautiful 2 bed 2 bath at Kendall Lake Towers. Close to parks, shopping mall and major highways. Some repairs will be done on property including painting.
EWM is not responsible for the accuracy of the information listed above. The data relating to real estate for sale on this web site comes in part from the Internet Data Exchange Program and the South East Florida Regional MLS and is provided here for consumers personal, non-commercial use, It may not be used for any purpose other than to identify prospective properties consumers may be interested in purchasing. Real Estate listings held by brokerage firms other than the office owning this web site are marked with the IDX logo. Data provided is deemed reliable but not guaranteed.


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February 8, 2011
ELIEL BROWN,PETITIONER,v.UNEXHAUSTED CLAIMSCALIFORNIA, RESPONDENT.
Doc. 1
Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), Petitioner has consented to the jurisdiction of the United States Magistrate Judge to conduct all further proceedings in the case, including the entry of final judgment, by manifesting consent in a signed writing filed by Petitioner on February 26, 2010 (doc. 4). Pending before the Court is the petition, which was filed on February 19, 2010.
I. Background
In the petition, Petitioner challenges a criminal conviction sustained in Kings County. Petitioner named "California" as the Respondent in this proceeding. Because Petitioner failed to name the state officer having custody of him as a respondent, on November 24, 2010, the Court issued an order granting Petitioner leave to file a motion to amend the petition to name a proper respondent within thirty days of service. The Court's order was filed and served on Petitioner on November 24, 2010. Over thirty days have passed since service of the order on Petitioner, but Petitioner has failed to respond to the Court's order. In the order, the Court informed Petitioner that if he failed to comply with the direction to name a proper respondent, the petition would be subject to dismissal for lack of jurisdiction. (Doc. 8, 9.)
II. Dismissal for Lack of Personal Jurisdiction Title 28 U.S.C. § 2242 provides that a petition for writ of habeas corpus shall allege the name of the person who has custody over the applicant. Rule 2(a) of the Rules Governing Section 2254 Cases in the District Courts (Habeas Rules) provides that if the petitioner is currently in custody under a state-court judgment, the petition must name as respondent the state officer who has custody. A failure to name the proper respondent destroys personal jurisdiction. Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). The warden of the penitentiary where a prisoner is confined constitutes the custodian who must be named in the petition, and the petition must be filed in the district of confinement. Johnson v. Reilly, 349 F.3d 1149, 1153 (9th Cir. 2003). The appropriate respondent where a petitioner is housed in a jail is the sheriff in charge of the facility of confinement. Hood v. California Dept. Of Corrections, 2008 WL 1899915, *2 (E.D. Cal. April 28, 2008).
Here, Petitioner failed to name a proper respondent. Although Petitioner was given an opportunity to name a proper respondent, Petitioner failed to do so.
Accordingly, the petition must be dismissed for lack of personal jurisdiction over the respondent. Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994).
III. Dismissal for Failure to Exhaust State Court Remedies
as to One Claim
A. Legal Standards
A petitioner who is in state custody and wishes to challenge collaterally a conviction by a petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based on comity to the state court and gives the state court the initial opportunity to correct the state's alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982); Buffalo v. Sunn, 854 F.2d 1158, 1162-63 (9th Cir. 1988).
A petitioner can satisfy the exhaustion requirement by providing the highest state court with the necessary jurisdiction a full and fair opportunity to consider each claim before presenting it to the federal court, and demonstrating that no state remedy remains available. Picard v. Connor, 404 U.S. 270, 275-76 (1971); Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996). A federal court will find that the highest state court was given a full and fair opportunity to hear a claim if the petitioner has presented the highest state court with the claim's factual and legal basis. Duncan v. Henry, 513 U.S. 364, 365 (1995) (legal basis); Kenney v. Tamayo-Reyes, 504 U.S. 1, 9-10 (1992), superceded by statute as stated in Williams v. Taylor, 529 U.S. 362 (2000) (factual basis).
Additionally, the petitioner must have specifically told the state court that he was raising a federal constitutional claim. Duncan, 513 U.S. at 365-66; Lyons v. Crawford, 232 F.3d 666, 669 (9th Cir.2000), amended, 247 F.3d 904 (9th Cir. 2001); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999); Keating v. Hood, 133 F.3d 1240, 1241 (9th Cir. 1998). In Duncan, the United States Supreme Court reiterated the rule as follows:
In Picard v. Connor, 404 U.S. 270, 275...(1971), we said that exhaustion of state remedies requires that petitioners "fairly presen[t]" federal claims to the state courts in order to give the State the "'opportunity to pass upon and correct' alleged violations of the prisoners' federal rights" (some internal quotation marks omitted). If state courts are to be given the opportunity to correct alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution. If a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him the due process of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal court, but in state court.
Duncan, 513 U.S. at 365-366. The Ninth Circuit examined the rule further in Lyons v. Crawford, 232 F.3d 666, 668-69 (9th Cir. 2000), as amended by Lyons v. Crawford, 247 F.3d 904, 904-05 (9th Cir. 2001), stating:
Our rule is that a state prisoner has not "fairly presented" (and thus exhausted) his federal claims in state court unless he specifically indicated to that court that those claims were based on federal law. See, Shumway v. Payne, 223 F.3d 982, 987-88 (9th Cir. 2000). Since the Supreme Court's decision in Duncan, this court has held that the petitioner must make the federal basis of the claim explicit either by citing federal law or the decisions of federal courts, even if the federal basis is "self-evident," Gatlin v. Madding, 189 F.3d 882, 889 (9th Cir. 1999) (citing Anderson v. Harless, 459 U.S. 4, 7... (1982), or the underlying claim would be decided under state law on the same considerations that would control resolution of the claim on federal grounds, see, e.g., Hiivala v. Wood, 195 F.3d 1098, 1106-07 (9th Cir. 1999); Johnson v. Zenon, 88 F.3d 828, 830-31 (9th Cir. 1996); Crotts, 73 F.3d at 865. ...
In Johnson, we explained that the petitioner must alert the state court to the fact that the relevant claim is a federal one without regard to how similar the state and federal standards for reviewing the claim may be or how obvious the violation of federal law is. Lyons v. Crawford, 232 F.3d 666, 668-69 (9th Cir. 2000), as amended by Lyons v. Crawford, 247 F.3d 904, 904-05 (9th Cir. 2001).
B. Petitioner's Claims
The petition concerns a four-year sentence pursuant to a 2008 judgment of the Superior Court of Kings County for assault likely to produce great bodily injury involving Petitioner's breaking the teeth of his victim. Petitioner raises claims concerning three (3) grounds in his petition: 1) he was mentally incompetent at the time of his guilty plea due to insanity and involuntary ingestion of medication; 2) he discovered "new" evidence of medical records withheld by the correctional authorities that his victim had broken teeth before the assault; and 3) his attorney did not introduce him to the Court as an "EOP" patient or inform the court of his level of care. (Pet. 4-5.)
C. Mixed Petition
Whether or not Petitioner exhausted his state court remedies concerning all his claims is unclear. However, Petitioner admits that he did not exhaust his third claim concerning his counsel's failure to inform the court of his "EOP" status and care. (Pet.5.)
Where none of a petitioner's claims has been presented to the highest state court as required by the exhaustion doctrine, the Court must dismiss the petition. Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006); Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001). Further, where some claims are exhausted and others are not (i.e., a "mixed" petition), the Court must dismiss the petition without prejudice to give Petitioner an opportunity to exhaust the claims if he can do so. Rose, 455 U.S. at 510, 521-22; Calderon v. United States Dist. Court (Gordon), 107 F.3d 756, 760 (9th Cir. 1997), en banc, cert. denied, 118 S.Ct. 265 (1997); Greenawalt v. Stewart, 105 F.3d 1268, 1273 (9th Cir. 1997), cert. denied, 117 S.Ct. 1794 (1997). However, the Court must give a petitioner an opportunity to amend a mixed petition to delete the unexhausted claims and permit review of properly exhausted claims. Rose v. Lundy, 455 U.S. at 520; Calderon v. United States Dist. Ct. (Taylor), 134 F.3d 981, 986 (9th Cir. 1998), cert. denied, 525 U.S. 920 (1998); James v. Giles, 221 F.3d 1074, 1077 (9th Cir. 2000).
The instant petition is at best a mixed petition containing exhausted and unexhausted claims.
By order filed on November 24, 2010, the Court informed Petitioner that the petition was subject to dismissal as a mixed petition, and the Court granted Petitioner thirty (30) days from the date of service to file a motion to withdraw the unexhausted claim or claims in the petition. The Court informed Petitioner that if he did not file a motion to withdraw the unexhausted claim or claims, the Court would assume that Petitioner desired to return to state court to exhaust the unexhausted claim and would therefore dismiss the petition without prejudice. The order was served on Petitioner on November 24, 2010. Over thirty days have passed, but the Petitioner has not withdrawn the unexhausted claims or sought an extension of time within which to do so.
Accordingly, the Court must dismiss the petition without prejudice as a mixed petition.
IV. Certificate of Appealability
Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from the final order in a habeas proceeding in which the detention complained of arises out of process issued by a state court. 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). A certificate of appealability may issue only if the applicant makes a substantial showing of the denial of a constitutional right. § 2253(c)(2). Under this standard, a petitioner must show that reasonable jurists could debate whether the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further. Miller-El v. Cockrell, 537 U.S. at 336 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). A certificate should issue if the Petitioner shows that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in any procedural ruling. Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). In determining this issue, a court conducts an overview of the claims in the habeas petition, generally assesses their merits, and determines whether the resolution was debatable among jurists of reason or wrong. Id. It is necessary for an applicant to show more than an absence of frivolity or the existence of mere good faith; however, it is not necessary for an applicant to show that the appeal will succeed. Miller-El v. Cockrell, 537 U.S. at 338.
A district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant. Rule 11(a) of the Rules Governing Section 2254 Cases.
Here, it does not appear that reasonable jurists could debate whether the petition should have been resolved in a different manner. Petitioner has not made a substantial showing of the denial of a constitutional right. Accordingly, the Court will decline to issue a certificate of appealability.
V. Disposition
Accordingly, it is ORDERED that:
1) The petition is DISMISSED without prejudice *fn1
for lack of personal jurisdiction over the Respondent and for failure to
exhaust state court remedies as to at least one claim; and
2) The Court DECLINES to issue a certificate of appealability;
3) The Clerk is DIRECTED to close the action because this order
terminates the proceeding in its entirety.
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Nemanja Vidic models Inter Milan's away kit for the 2014/15 season [Pictures]
Inter Milan have released images of their new away kit for the 2014/15 season and among the players modelling the shirt is new signing Nemanja Vidic.
Vidic joined Inter from Manchester United after his contract expired with the English club and appears to have settled into life in Italy nicely.
The kit itself is an attractive number, a white ensemble with grey stripes cutting across the jersey while the classic Pirelli logo and Nike sign are in a red that contrasts well.
The club posted a press release on their official website: For the 2014/15 season Inter will play in a new away kit boldly proclaiming their status as the true team of Milan. The new away shirt has a ribbed crew neck collar and is white with a tonal light grey graphic on the front consisting of lines which create a St George's cross from the city of Milan's coat of arms.
Inside the back of the neck is a pennant tab featuring the proud message "Milano E' Solo Inter" (Milan is only Inter). It is written in a specially designed font, which has been used by the Nerazzurri's most committed fans on flags and banners inside the San Siro since the 1970s. On the back of the neck is another St George's cross to once again proudly represent the city of Milan's coat of arms.
The new away kit is completed by white shorts and socks. While this new kit features Nike's signature design details, it also offers players the very latest in performance innovation, kit technology and environmental sustainability. The new home kit will be available on sale from 26 July on nike.com, store.inter.it, in Nike Stores, SoloInterStore and selected shops.
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February 19, 2008
JOAN MARINO, PLAINTIFF-APPELLANT/CROSS-RESPONDENT,v.LARRY L. MARINO, JR., BRETT MARINO, JENNIFER MARINO, JOHN MARINO AND DOROTHY MARINO, DEFENDANTS-RESPONDENTS/CROSS-APPELLANTS.
On appeal from the Superior Court of New Jersey, Chancery Division, Civil Part, Warren County, C-16011-06.
Argued: November 13, 2007
Before Judges Stern, Collester and C.L. Miniman.
Plaintiff Joan Marino, who sought an order authorizing the disinterment of her husband's remains, appeals from a final judgment of the Chancery Division limiting her relief to the inclusion of her name and dates of birth and death on the plot-of-burial headstone. Defendants Larry L. Marino, Jr., Brett Marino, Jennifer Marino, John Marino and Dorothy Marino,*fn1 plaintiff's adult children (Jennifer and John),*fn2 adult step-children (Larry and Brett) and mother-in-law (Dorothy), cross-appeal from the portion of the final judgment that requires them to pay seventy-five percent of the cost of a new headstone. Because the judge failed to construe N.J.S.A. 45:27-23 in pari materia with N.J.S.A. 45:27-22, we reverse.
This action grew out of a dispute between Joan, the widow of Larry L. Marino, Sr., and her adult children, step-children and mother-in-law over the plot in which the decedent's remains should be buried. Joan and the decedent married on August 7, 1982. The decedent brought two children to the marriage and four more children were born of the marriage. All six children lived with Joan and decedent while they were minors.
Joan's husband died at home from lung cancer at the age of forty-nine on October 23, 2005. They had a good marriage although they had some rough spots at the end of April and early May 2005 and again during the first two weeks of July 2005. During those times they argued about decedent's relationship with another woman and his drinking. They planned to attend counseling, but chemotherapy precluded that effort. They continued to share a bed and their marriage was not estranged. A decade before his illness, Joan and her husband purchased a plot at a cemetery where both of their mothers owned plots and where decedent's father and five out of their eight grandparents were buried. The plot purchased by Joan and decedent was not contiguous with any other family plot, but title was held in the name of Joan's mother because she was a member of the parish that owned the cemetery.
After Joan's husband died, she and Brett went to the cemetery to confirm that the right grave had been staked out by the cemetery for the burial. The next day, Brett took Joan for a ride and told her that Jennifer did not want her father buried next to Joan's mother and instead wanted him buried next to his father.*fn3 However, Joan's mother did not own the plot next to the one owned by Joan and decedent. Joan became hysterical because she did not want her husband buried with his father and because decedent told her that he wanted to be buried on the right-hand side of their plot "because that was the side of the bed that he slept on, and I was going to be buried on the left hand side[,]
[s]o it was like we were sleeping." She insisted that Brett take her home.
Soon after they arrived home, all of the children except Nicholas met with her and she begged them to bury decedent in her plot. One of them said that Joan and decedent were not even staying together and Joan denied this statement and told them to ask Bob Maribelli, one of the men with whom decedent worked. They told her that they had voted where to bury their father but, if Maribelli said that Joan and her husband were staying together, they would bury decedent in Joan's plot.
Maribelli came over to the house and told the children that the decedent had told him that he and Joan were staying together. After this conversation, the children voted again but they still would not agree to bury their father in the plot he and Joan owned. Joan protested that it was her decision where to bury her husband, but they told her she did not have that right because Larry Jr. and Jennifer were the executors and that Joan had no say in the matter. Although she continued to beg them to bury their father in the plot she and her husband purchased, they would not relent. Finally, Larry Jr. told her that if she did not stop arguing about it, they would not allow her to attend the viewing or funeral and that she was lucky they allowed her to pick out the casket and help with the arrangements. Even after the burial Joan continued to try to persuade her children to rebury their father in the plot he had selected with her. However, Larry Jr. told Joan that it was his decision and his alone where his father would be buried.
Joan's mother, Rose Sciabica, also testified and confirmed that Joan and decedent purchased a plot at her suggestion about ten years before decedent's death because available plots were dwindling. Rose and the decedent had a conversation about a week or so before he died during the course of which he said, "when Joan and I are gone, I know where we will be because we have our plots there, . . . it's one less headache for Joan."
Before the funeral Rose interrupted a conversation between Joan and Larry Jr. Joan was very upset. Larry Jr. was screaming at Joan, saying "shut your F'ing mouth because I'm in charge, and what I say goes. I'm the executor, and when my dad gets buried, it's up to me and no one else." When Joan protested that she and her husband had bought the plots, Larry Jr. said, "shut your F'ing mouth or you're not going to go to the funeral or the viewing." When Rose asked what was wrong, Larry Jr. said, "shut your F'ing mouth, you old lady, this is none of your business." Similar comments were made at a subsequent argument that Rose overheard.
Joan's version of the events surrounding the burial of her husband and the quality of her relationship with him was, by and large, disputed by defendants and their witnesses. However, the judge found the testimony of Joan and her mother to be "generally credible." The judge found that Joan did not abandon decedent when he was ill or when he became involved with another woman. Rather, she stayed by his side and continued to care for him and have marital relations with him as late as six weeks before his death. She determined that the decedent died without a provision in his will specifying the place of burial. Of note is the fact that his Last Will and Testament was executed on May 20, 2005, five months before he died. The judge found that Jennifer and Larry Jr. asserted that they alone had the prerogative to decide in which plot their father would be buried and that Larry Jr. threatened to exclude her from the funeral. The judge found that Joan was unduly pressured to acquiesce in the burial and was overwhelmed by the circumstances in which the issue arose.
The judge observed that the testimony of the defense witnesses "seemed rehearsed and their answers appeared molded so as to understate [Joan's] reaction to the family decision and overstate the marital problems of the decedent and [Joan]." Indeed, the judge specifically found that John's testimony was especially not credible. Nonetheless, the judge found from the testimony of the defense witnesses that the decedent's "preference at the end of his life, although not stated in his Last Will and Testament, was to have his remains located adjacent to his father's remains and not in his own plot nor would the decedent want his remains disinterred."
The judge observed that Joan had a statutory right under N.J.S.A. 45:27-22 to decide where her husband would be buried that was superior to any adult child's right to make that decision. However, she found that Joan's frustrated right of burial did not control the issue of disinterment because, recognizing a strong policy against disinterment, the decedent's preference to was to be buried with his father. Specifically, the judge ruled that "[t]he decedent['s] stated preference must be accorded the same priority as if the decedent had articulated his wishes in a Will." Accordingly, the judge denied the application to disinter decedent's remains.
Joan contends in this appeal that her statutory right to determine the burial of her husband's remains was paramount to any preference he may have had because he did not express that preference in writing, as required by N.J.S.A. 45:27-22. She argues that any such preference should not have informed the decision respecting disinterment. On the other hand, defendants contend that the correct rule of decision is found in N.J.S.A. 45:27-23, which governs disinterment, and that it is proper under this statute to consider the wishes of the decedent.
Our review of a judgment entered in a non-jury case, as here, is limited. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). The findings on which the judgment is "based should not be disturbed" except in "a clear case where there is no doubt about the matter." Ibid.
That the finding reviewed is based on factual determinations in which matters of credibility are involved is not without significance. Findings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence. It has otherwise been stated that "our appellate function is a limited one: we do not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice," and the appellate court therefore ponders whether, on the contrary, there is substantial evidence in support of the trial judge's findings and conclusions. [Id. at 484 (citations omitted); see also Sager v. O.A. Peterson Const. Co., 182 N.J. 156, 163-64 (2004); Pheasant Bridge Corp. v. Twp. of Warren, 169 N.J. 282, 293 (2001), cert. denied, 535 U.S. 1077, 122 S.Ct. 1959, 152 L.Ed. 2d 1020 (2002); Mizrahi v. Cannon, 375 N.J. Super. 221, 227 (App. Div. 2005).]
Joan does not contend that the judge's fact-findings should be disturbed on appeal. Rather, she contends that the judge erred in applying the law to the facts, which triggers a different scope of review. "A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995); see also Balsamides v. Protameen Chem., Inc., 160 N.J. 352, 372 (1999) (stating that "[m]atters of law are subject to a de novo review"). Additionally, a fundamental error in balancing the facts is subject to de novo review. In re Application of Boyadjian, 362 N.J. Super. 463, 475 (App. Div.), certif. denied, 178 N.J. 250 (2003).
The development of the law governing exhumation was reviewed by our Supreme Court in 1956:
From a very early date in England the ecclesiastical courts had exclusive jurisdiction of the dead and as a consequence the early common law refused to recognize a concept of property rights in the body of a deceased person. Lord Coke . . . says it was "nullius in bonis and belongs to ecclesiastical cognizance." Thus under English law, once a body was buried it could not be removed except by order of the coroner for the purpose of an inquest or by special dispensation of the consistory court, an ecclesiastical tribunal, or by license of the Secretary of State. This concept has been modified somewhat by time and circumstance . . . .
With the repudiation of the ecclesiastical courts in the American colonies, jurisdiction over these matters passed to the temporal courts. Early Mr. Justice Story pointed out the remedy lay "in the protecting power of the Court of Chancery." In this State the development has been according to the common pattern. [In re Sheffield Farms Co., 22 N.J. 548, 555-56 (1956) (citations omitted).]
It was considered settled that there is no property right in a dead body; that, upon the death of a married person, the surviving husband or wife is entitled to the custody of the dead body, and charged with the duty of furnishing proper burial; that, when that duty has been discharged, and the remains of the dead have been buried, the right of custody in the surviving husband or wife at once ceases[.] [Smith v. Shepherd, 64 N.J. Eq. 401, 403 (Ch. 1903) (denying application of wife to rebury her husband in another plot when the wife consented to the first burial); see also In re Sheffield, supra, 22 N.J. at 556; Lascurain v. City of Newark, 349 N.J. Super. 251, 270 (App. Div. 2002); Fidelity Union Trust Co. v. Heller, 16 N.J. Super. 285, 290 (Ch. Div. 1951).]
Nevertheless, over time "the prevailing view in New Jersey [became] 'that the right to bury the dead and preserve the remains is a quasi right in property, the infringement of which may be redressed by an action in damages.'" Strachan v. John F. Kennedy Mem'l Hosp., 209 N.J. Super. 300, 311-12 (App. Div. 1986) (citing Spiegel v. Evergreen Cemetery Co., 117 N.J.L. 90, 93 (Sup. Ct. 1936)), aff'd in part and rev'd in part on other grounds, 109 N.J. 523, 531 (1988). Additionally, the view that a surviving spouse's right of custody ceases with the initial burial has been criticized as overly harsh. See Annotation, "Removal and Reinterment of Remains," 21 A.L.R.2d 472, 503 (1952).
Thus, only a court of equity could order the disinterment of human remains:
A dead human body, once buried, is in the custody of the law, and removal and disturbance of such body is subject to the jurisdiction of a court of equity, which, in such matters, in this country, is the successor of the ecclesiastical courts, but the power to disturb a dead body should not be exercised unless it be clearly shown that good cause and urgent necessity for such action exist. [Perth Amboy Gas Light Co. v. Kilek, 102 N.J. Eq. 588, 590 (E. & A. 1928) (citations omitted; see also, Guerin v. Cassidy, 38 N.J. Super. 454, 458 (Ch. Div. 1955); Fidelity Union, supra, 16 N.J. Super. at 489.]
"The circumstances which will compel a court of equity to act in this regard vary depending upon whether the moving party seeks to vindicate a public or private right." Harris v. Borough of Fair Haven, 317 N.J. Super. 226, 234 (Ch. Div. 1998).*fn4 Where the right is purely private, no showing of urgent necessity need be made. Felipe v. Vega, 239 N.J. Super. 81, 86 (Ch. Div. 1989).
In deciding whether to order disinterment, a number of factors are considered.
They include the decedent's stated preference, if any, religious considerations, ownership rights in the plot, the closeness of the relationship between the petitioner and the decedent and the lapse of time from the original interment. Also included is the petitioner's desire to satisfy a longing that those united during life shall not be divided after death. Finally, there is a general agreement that if there is a surviving spouse, that person has the primary and paramount right to the possession of the body and the right to control its burial and other disposition. [Id. at 85 (citations and quotations omitted).]
"The general rule is that although . . . legal compulsion may not attach to them, the wishes or directions of a decedent as to his interment are entitled to respectful consideration and have been allowed great weight." Fidelity Union, supra, 16 N.J. Super. at 290; see also Renga v. Spadone, 60 N.J. Super. 353, 359-60 (Ch. Div. 1960). "[Q]uestions of removal will always involve a balance favoring non-removal . . . ." Felipe, supra, 239 N.J. Super. at 87 (holding that "the natural desires and needs of the living should still be considered paramount absent some stated preference by the decedent"). In determining the stated preference of the decedent, the court may consider hearsay testimony. Bruning v. Eckman Funeral Home, 300 N.J. Super. 424, 432 (App. Div. 1997).
Where there are disputes among family members regarding the site of burial, "courts generally concluded that the surviving spouse's desires had priority over other relatives, including children of the decedent." Sherman v. Sherman, 330 N.J. Super. 638, 649 (Ch. Div. 1999).
In 1971 the Legislature "brought clarity to the general rules that may be glimpsed through the mist of the common law," id. at 649-50, when Title 8A Chapter 5 of the New Jersey Statutes governing the operation and management of cemetery companies was enacted. L. 1971, c. 333. With respect to interment, the act provided in relevant part:
The right to control the disposition of the remains of a deceased person, unless other directions have been given by the decedent or by a court of competent jurisdiction shall be in the following order:
a. The surviving spouse.
b. A majority of the surviving children of the decedent or the surviving child if one. . . .
The statute thus made the decedent's preference paramount, whether stated orally in writing. Sherman, supra, 330 N.J. Super. at 650. "Indeed, the decedent's preference may be determined by resort to both testamentary and non-testamentary statements." Ibid. Where there is no stated preference, even an estranged surviving spouse has the right to determine the site of burial. Id. at 651 (refusing to interfere with the estranged surviving spouse's choice of burial site).
With respect to disinterment, N.J.S.A. 8A:5-20 provided:
Remains interred in an interment space in a cemetery may be removed therefrom with the consent of the cemetery company and written consent of the owner or one of the owners of the interment space and of the surviving spouse and children, if of full age. If the consent of any such person or of the cemetery company cannot be obtained, the permission of the New Jersey Cemetery Board shall be sufficient.
Subsequently, the last sentence of the statute was deleted effective September 10, 1973. We concluded, "in view of the ancient and well established equitable jurisdiction over the disposition and disinterment of dead bodies," that the removal of the last sentence was intended "to eliminate any question about the continuing jurisdiction of the Superior Court as the successor to the former Court of Chancery over the protection of dead bodies." Jones v. Jones, 255 N.J. Super. 213, 216 (App. Div. 1992) (citing In re Sheffield, supra, 22 N.J. at 556). We also concluded that the statutory requirement for consent of the spouse and adult children "does not preclude a court order for disinterment in an appropriate case even over the objection of a spouse or adult child." Id. at 217.
In 2003 the Legislature enacted the "New Jersey Cemetery Act, 2003," continuing and establishing the New Jersey Cemetery Board and regulating the operation of cemeteries in New Jersey. N.J.S.A. 45:27-1 to -38. In doing so, it repealed the entirety of Title 8A Chapter 5. L. 2003, c. 261, § 42, eff. April 13, 2004. The Cemetery Act sought to clarify the standards for determining the deceased's intent by making written instructions binding:
a. If a decedent, in a Will . . . appoints a person to control the funeral and disposition of the human remains, the funeral and disposition shall be in accordance with the instructions of the person so appointed. . . . If the decedent has not left a Will appointing a person to control the funeral and disposition of the remains, the right to control the funeral and disposition of the human remains shall be in the following order . . .
(1) The surviving spouse of the decedent;
(2) The majority of the surviving adult children of the decedent . . . .
One of the purposes of the amendment was to make the decedent's decision regarding who shall make funeral arrangements binding, provided that the decision is in writing. S. Doc. No. 1992 (2003). Before the legislature passed the New Jersey Cemetery Act, a decedent's instructions about funeral plans were given "respectful consideration," but were not binding. Guerin, supra, 38 N.J. Super. 454. Now under the Cemetery Act, orally expressed preferences are no longer binding and the surviving spouse may select a burial site inconsistent with those preferences.
The adult children violated this statute and deprived the surviving spouse of the right to determine the disposition of the remains of her husband of twenty-three years. Instead, the children decided to bury their father in a plot owned by the paternal grandmother where plaintiff wife had no right of burial. The Chancery judge found that this statute was violated. However, she analyzed the request to disinter and relocate the body to another plot in the cemetery under N.J.S.A. 45:27-23 without consideration of the potential impact of N.J.S.A. 45:27-22 on the factors bearing upon disinterment. The former statute provides:
Except as otherwise provided in this section, or pursuant to court order, human remains shall not be removed from an interment space unless:
(1) the surviving spouse, adult children and the owner of the interment space authorize removal in writing;
(2) removal is authorized by a State disinterment permit issued by the local board of health;*fn5 and
(3) the cemetery finds that removal is feasible.
Thus, the statute does not prohibit disinterments that are inconsistent with even a binding preference expressed in a will.
The judge concluded that she would not order disinterment because "decedent's preference, although not memorialized in a testamentary provision, is still paramount under the circumstances." She also ruled that "[t]he decedent['s] stated preference must be accorded the same priority as if the decedent had articulated his wishes in a Will." The issue thus becomes whether an orally expressed preference can control the disinterment and essentially trump all of the factors favoring removal when it cannot control the interment.
"It is a cardinal rule of statutory construction that the intention of the Legislature is to be derived from a view of the entire statute and that all sections must be read together in the light of the general intent of the act so that the auxiliary effect of each individual part of a section is made consistent with the whole." Febbi v. Bd. of Review, 35 N.J. 601, 606 (1961) (citations omitted). "The meaning of a statute and the intention of the Legislature in adopting it must be gained, not alone from the words used within the particular section involved, but from those words when read in connection with the entire enactment of which it is an integral part." Skakel v. North Bergen, 37 N.J. 369, 383 (1962) (citing In re Sheffield, supra, 22 N.J. 548).
The Legislature did not refer to the decedent's preference as informing a decision to disinter under N.J.S.A. 45:27-23, but it did determine that only written instructions in a will are binding on interment. N.J.S.A. 45:27-22. These two sections of the New Jersey Cemetery Act should be read in pari materia and the judge should not have considered the hearsay testimony respecting the decedent's burial preferences as paramount or having priority over all other factors. Most jurisdictions give the greatest consideration to the interests of the person authorized to make the initial burial arrangements when weighing factors for disinterment. Annotation, supra, 21 A.L.R.2d at 503. Joan was the person authorized by N.J.S.A. 45:27-22 to make burial arrangements and her interest should have been given the greatest consideration.
The judge should also have considered the conduct of defendants as a factor in deciding whether to disinter. The Cemetery Act provides:
A person who signs an authorization for the funeral and disposition of human remains warrants the truth of the facts stated, the identity of the person whose remains are disposed and the authority to order the disposition. The person shall be liable for damages caused by a false statement or breach of warranty. [N.J.S.A. 45:27-22(d).]
A court of equity "is fully authorized to discharge the maxims that sustain our equity jurisprudence. Chief among these maxims is that which states 'wherever a legal right has been infringed a remedy will be given' or, as more commonly stated, 'equity will not suffer a wrong without a remedy.'" In re Mossavi, 334 N.J. Super. 112, 121 (Ch. Div. 2000). The statute does not confine the injured party to a damage award. An equitable remedy is thus available.
The judge also did not consider Joan's "desire to satisfy a longing that those united during life shall not be divided after death." Felipe, supra, 239 N.J. Super. at 85. Nor did she acknowledge that Joan had "the primary and paramount right to the possession of the body and the right to control its burial and other disposition." Ibid. The decision to disinter involves a balancing of the factors favoring disinterment against those that do not and we review a fundamental error in balancing the facts de novo. Boyadjian, supra, 362 N.J. Super. at 475. Here the judge did not engage in a balancing analysis of all of the relevant factors, instead treating the decedent's oral preference as determinative. Even if the defense witnesses were totally credible, the decedent's orally expressed preference does not outweigh all the other factors that strongly favor disinterment. That preference is even weaker coming from the mouths of witnesses who were not generally credible, as the judge found here. Under a proper balancing analysis plaintiff has clearly established good cause for removal that overcomes the presumption of non-removal. Accordingly, the trial judge is to enter an order authorizing disinterment, subject to the issuance of a disinterment permit and a determination by the cemetery that removal is feasible.
Reversed and remanded for further proceedings consistent with this opinion.
STERN, P.J.A.D., dissenting.
Because I believe N.J.S.A. 45:27-22 essentially concerns the decision regarding where a decedent is to be buried, as opposed to the independent policy relating to disinterment to which N.J.S.A. 45:27-23 refers, I would affirm the judgment which is based on substantial credible evidence in the record. Once Larry Marino, Sr. was buried, other factors in addition to the surviving spouse's decision came into play, and the trial judge upheld the position of the decedent's children based on evidence which supports that decision. Hence, because the judge applied correct legal principles, this case is one which turns on our traditional scope of review. See Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974). I would therefore affirm the judgment substantially for the reasons embodied in Judge Harriet Derman's letter opinion of November 29, 2006.*fn6
Once the decedent was buried, it seems to me that the policy restricting disinterment comes into play irrespective of how long the body is buried. But laches is a factor in the dispute concerning disinterment, and while the judge found that plaintiff's emotional distress and defendants' conduct prevented plaintiff from taking immediate legal action, it did not prevent her from taking it for eight months.*fn7 Moreover, the judge did not find that any misconduct by defendants, or any of them, prevented plaintiff from taking action or asserting her statutory rights for so long a time. To the contrary, Judge Derman noted that, "prior to the burial, the family members had made an accommodation . . . that [plaintiff] could be buried above her husband."*fn8
In any event, while the New Jersey Cemetery Act, including N.J.S.A. 45:27-22 and -23 was adopted in 2003, see L. 2003, c. 261, there is no suggestion that it in any way changed the longstanding "presumption against the right of removal." Felipe v. Vega, 239 N.J. Super. 81, 85 (Ch. Div. 1989). Thus, "although the removal or other disturbance of a decedent's remains is within the jurisdiction of a court of equity, that power should not be exercised unless it is clearly been shown that good cause and urgent necessity for such action exists." Ibid. N.J.S.A. 45:27-23 permits disinterment when, among other facts, "the surviving spouse, adult children and the owner of the interment space authorize removal in writing." Presumably when all survivors agree, they are acknowledging it will not be unsettling to the family and are respecting the clear desires of the decedent.*fn9
In addition to the presumption, the trial judge expressly found that decedent wanted to be buried with his father and would not want to have his remains disinterred. Judge Derman examined the marital relationship at the end of decedent's life, what he said to family and friends concerning not wanting to remain married to plaintiff or to be buried with her, and his relationship with his mother-in-law who actually purchased the plot for plaintiff and decedent. The judge thereafter found:
Decedent's preference at the end of his life, although not stated in his Last Will and Testament, was to have his remains located adjacent to his father's remains and not in his own plot nor would the decedent want his remains disinterred.
Thus, despite the statutory role of the surviving spouse and the facts that precluded her decision-making before interment, the judge concluded that decedent should remain where he was buried at the instructions of his adult children including plaintiff's children. I would not disturb the judgment of the Chancery Division, and cannot join the majority which rejects both the spirit and language of N.J.S.A. 45:27-23.
The judge also held that defendants should partially pay for the installation of a headstone satisfactory to plaintiff on the existing grave site if she decided to be buried with her husband. As already noted, the family had reached an "accommodation" or "compromise" at the time of burial which would have provided the opportunity for plaintiff to be buried with decedent. The final judgment provides that "the headstones be ordered and installed for the Marino plot that are satisfactory to the Plaintiff so that her name and relevant information will be as conspicuous when she dies as that of the other three individuals buried in this plot" and allocates the cost. The defendants cross appeal from that part of the judgment, and they argue that that ruling was "unfair to the defendants" and that if plaintiff wants to be buried in the Marino plot, she should pay for the costs. Defendants told us at argument that they do not object to the burial of plaintiff with her husband in the Marino family plot. I have reservations on this record about the payment for the tombstone, but in light of the majority holding, I need not address the question. Frankly, I would hope that, unless the Supreme Court rules otherwise incident to deciding the appeal, or sends the issue back to us (after granting certification because the question does not constitute part of the dissent, see R. 2:2-1(a)(2)), I would hope the issue is resolved within the family as time passes and wounds heal.
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text:
"Moonglow" by Morris Stoloff.
Sunday, July 29, 2012
Sunday Serenade: Yes, Dorothy, This is Kansas
Since I'm going to a picnic this afternoon, I'll show one of the most famous scenes from another "Picnic". This is the 1955 movie with Kim Novak and William Holden. Romantic and sexy, especially for that era.
from the mind and heart of Maureen Reynolds at 07:38
Labels: 12, 1955, movie, picnic, Sunday Serenade
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