Unidentified Speaker: Earlier in the week that continues to maintain that are issues unresolved below (laughter) so I’m not exactly sure what, ahh…. What the appellate division intends to do with all that, (deep sigh)
Judge Millenky: Jackie did we get anything from Mr. Mujaddid indicating that he wanted to be contacted by phone and to appear by phone.
Jackie: not, not, He sent us things but not about that,
Judge Millenky: Who do we have appearing by phone anybody?
Jackie: for this one no, i think that was for next, because we need to…
Judge Millenky: so these are all Mr. Mujaddid’s not Mr. Owens in this case,
Jackie: right, I think…
Mr. Leinhauser: but i don’t know…
Judge Millenky : No he was it was a cell phone number, because he, the problem was, he was out,
Mr. Leinhauser: out, that’s right, clerk: get em on the phone…
Judge Millenky : get me both, get him and if you would have him get, let me just write this down, Mr. El Mujaddid at 724 633716
Mr. Leinhasuer: whispers: I can use this in my office sorry……..Judge: Good Afternoon ummm… Mr. El Mujaddid
El Mujaddid: Yes…
Judge Millenky: and Mr. Baker,
Mr. Baker: Yes your honor I’m here….
Judge Millenky: okay and let me announce the name of the case and then I’ll get the appearance of the attorney whose here in the court room as well, this is the matter of El Aemer El Mujaddid versus the City of Vineland et. al it is docket L-L-4550-13 can i ask everyone to enter their appearance, I’m going to start with the plaintiff, so Mr. Mujaddid if you would just announce your name on the record, then Mr. Baker… I would ask you to announce your name and then will move to the court room itself himself okay Mr. El Mujaddid…
El Mujaddid: Mr. El Mujaddid Present, ahh yes, thank you honor, Theodore E. Baker County counsel for the Cumberland county prosecutor’s office and all of their ah related employees ..Judge: Thank you and Mr. Leinhauser…
Mr. Lienhasuer: Brian Leinhauser on behalf of the city of Vineland defendants your honor… Mr. El Mujaddid you bring several motions before the court , you ask the court to recuse itself you ask the court to vacate an order dismissing the action in lieu of prerogative writs against the criminal division and you ask to vacate the order of this court dismissing the action in lieu of prerogative writs against Cumberland and Vineland defendants, Mr. El Mujaddid the first issue that i have to deal with, with respect to these motions is the issue of whether or not the court retains jurisdiction, to hear them, because my best understanding is that you have filed an appeal, am I correct in understanding that sir?
Mr. El Mujaddid: Yes….
Judge Millenky: and there may be some question as to whether this is final, that is that the decision of the court was final but this court interprets it’s decision as a final decision, that is a decision that resolved all matters and that’s because the essence of the decision was a dismissal, to the extent that’s the that’s the case, if there is a reconsideration the court can hear the reconsideration and i believe there was a motion for reconsideration previously, the court denied that and after the denial, Mr. El Mujaddid I believe you filed your appeal, by doing that part from the enforcement of an order, the jurisdiction of this court is lost, and your matter proceeds in the appellate division and the only time that this court would then resume jurisdiction, if at all would be at the direction of the appellate division either by way of asking this court to do something pending the outcome of the appellate process, or because the appeals court could remand the matter to this court, in which case of course, of course this court would proceed, so Mr. El Mujaddid how would this court to be able now to hear your applications,
El Mujaddid: well the application I filed was a motion to vacate under R. 4:50 it wasn’t a motion for reconsideration irrespective to the characterization by the defense counsel to my understanding the court can make a determination upon a motion to vacate,
Judge Millenky: Mr. Baker and Mr. Leinhauser
Mr. Baker: “umm wol, uh your honor, as, as, i understand it, this is Ted Baker speaking, umm a, a motion to vacate would be from a final judgment generally within one year, but that would not pertain to a matter that is on appeal, i don’t see how anyone can vacate a judgment that is on appeal, the appellate process has to come to an end, and then it might be possible to try to vacate based upon the ground set forth in R. 4:50-1, but, I don’t believe that a motion to vacate uh, a judgment can be raised while a matter is on appeal, at all, if it’s not a motion for reconsideration then the court doesn’t have jurisdiction on a motion to vacate while the matter is before the appellate division”
Mr. Leinhauser: I would agree with that act…
El Mujaddid: “Actually it would be the reverse, the court does have the ability to make a determination in the event of a motion to vacate, now if it was a motion for reconsideration, then i would agree that the court wouldn’t have the jurisdiction to hear it, but it’s not a motion for reconsideration, it’s a motion to vacate and vacates can be filed at anytime,….”
Unidentified: would you grab the court rules off my desk,
Judge Millenky: Mr. Lienhasuer…
Mr. Leinhasuer: “Your honor I would a, as i indicated in the letter that i sent to the court it’s my understanding that under the rules of civil procedure once a notice of appeal is filed the court’s jurisdiction going forward is extremely limited and in this case, would, the court would not be able to act on an order to vacate it, when the matter is now, under the review of the Appellate division and as such, I, my belief is that the court does not have the ability to act on either motion that pertain to my client, or the motions that pertain to the county or to uh the request to have the court recused, so”.
Judge Millenky: “okay, Uh, this court evaluates the application before it, by first of course examining the question of whether or not it retains jurisdiction and the court looks to rule 2:9-1 section a deals with control prior to appellate disposition and it provides that, except as otherwise provided and that is discussing the issues of bail and a stay pending appeal, the supervision in control of proceedings on appeal or certification, shall be in the appellate court from the time the appeal is taken or the notice of petition for certification filed so here of course were in the appellate court so it is the umm time from the appeal taken, and Mr. El Mujaddid, I certainly understand that you have taken appeal, and the only exception to that would be this, that the trial court does have continuing jurisdiction to enforce judgments and orders pursuant to rule 1:10 and as otherwise provided and that has to do with the issue of enforcing a judgment unless there is a stay, and the court rule therefore goes on to describe in addition, when an appeal is taken from an order compelling or denying arbitration the court shall retain jurisdiction to address issues relating to the claims and to the parties, and the appellate court may at anytime entertain a motion for directions to the court, or courts and agencies below to modify or vacate any order by such courts or agencies or by any judge below, ummm……so the court would understand from that very last sentence, that if in fact, you would seek to have the trial court vacate its order, you would have to pending the outcome of the appeal, make an application to the appellate court to instruct the trial court to hear you application, but in the absence of that Mr. El Mujaddid, this court finds that it has no jurisdiction to hear your applications there has been a motion for reconsideration this court ruled on that, you took your appeal, and to the extent that relief may be accorded to you, your forum is the appellate forum, from this point forward, unless the appellate court were to remand this matter either on some interim basis or because there was a final determination, so with respect to your applications there denied, but not on their merits, but based upon the absence of this court’s continued jurisdiction, uhh with that counsel, umm certainly someone if there was a remand, would keep me apprised of that, but in the absence of that this court has no continued ability to hear matters, except for enforcement of a judgment, of course there’s no judgment that requires enforcement in this instance, so umm Mr. El Mujaddid and counsel thank you for your attention to this matter, good luck all of you on your appeals.
Baker: Thank you,
Leinhauser: Thank you your honor