[Jerk Kuskin] The matter before the court this afternoon is Gary Mosher verses Division of Taxation docket number 00180-2002 . We're on the record by telephone. The purpose of this afternoon's proceedings are to *** motion for summary judgment filed by defendant Division of taxation. Mrs. Goldschmidt I will hear your oral argument. [Mary G-oldslut] Your honor its undisputed that between August of 1999 and March of 2000 Plaintiff purchased 52 carton's of cigarettes from smokes advantage of Louisville Ky which was an unnlicensed distributor of cigarettes in New Jersey conducting sales of cigarettes through the Internet and by phone. The director Division of Taxation received information about Mr. Mosher's purchases from smokes advantage through the Jenkins act.. Smokes advantage failed to remit the sales and use the use, and the cigarette tax due on the purchases subsequently billed Mr. Mosher for them. *** material facts of this matter undisputed and don't raise any genuine issues to preclude it and the Director is entitled to judgment as a matter of law this court should enter summary judgment in favor of the director. [JK] Anything further? d [MG] No thank you [JK] Allright thank you [JK] Mr. Mosher [Gary Mosher] Yeah.. um.. what is also undisputed material fact, I suppose, is that a.. a.. at its worst it took 16 months for the Division to notify Plaintiff of the tax liability. It is also undisputed, I suspect, material fact that the Plaintiff was a.. quoting the Division of Taxation "unsuspecting victim" of this tax racket and the Division has provided no explanation for either the delay, the rhetoric of "I could take 10 years to send out a tax notice if I felt like it" or any other element of their insensitivity, and unresponsiveness, to the hazard-- we could call it --that the state helped create for victims to crash into. In any other circumstance the state would have to be liable for its contribution to creating the circumstance that is completely reliant on deception, deception that is easily fixed, there is absolutely no explanation for why it shouldn't be fixed, why the state should'nt simply require that if a company is going to do out of state business, as they require other things of them, that they would require them to simply notify the proposed victims that New Jersey the New Jersey Tax Division is going to be assessing a tax liability. That information would not be hard to provide there's no obstacle, no financial impediment, no practical impediment and Plaintiff would simply argue that until the Division provides evidence that that circumstance is not maintained simply for the purpose of creating victims instead of um doing this the honest way and providing that notice-- they like to create tax victims--- so they can make demonstration models out of us an prove their authority and I would claim that that their authority is severely .. questionable .. under their lack of sensitivity, their recklessness in in terms of their undue diligence in providing this simple notice that would have prevented this whole circumstance. Obviously I think it's a material fact of this case that yes I made a mistake okay I bought cigarettes for other people by mistake not for resale not for any profit not for any militias purpose and now I am being held liable for that mistake. And also considering the fact that cigarettes are an addictive substance this lack of insensitivity has no excuse it has no justification in the in the United States of America -- especially as I said it relies on deception, willful deception, and I would also argue that that none of my other claims that I have outlined in my motion papers in response to their motion for summary judgment. That none of my claims concerning any of the behavior of the Division of Taxation has been countermanded by a single explanation .. anything.. they simply say we can do it anyway we wanna do it and that's the law and and and that in a constitutional democratic society that shouldn't be acceptable they should be able to provide a little better justification for a circumstance that creates as they put it in their own words an "unsuspecting" victim and there's just no excuse for the court or or the state to take a blind eye to this circumstance.. None! That would be an outline of my request that you deny this motion for summary judgment and that you require a full investigation of this case and if need be and since it does contain constitutional claims regarding the behavior of the Division of Taxation that you perhaps remand the case to a higher court to make accountable and clear determination regarding the legal status of the states approach to collecting this tax. thank-you [JK] All right thank you Mrs. Goldschmidt any response: [MG] Well .. Your Honor as I understand it both the sales and use tax and the cigarette tax would be essentially self assessing taxes so that regardless of the fact that the information that the Division of Taxation received was turned over pursuant to the Jenkins act and .. Mr. Mosher was subsequently billed Mr. Mosher is still as the ultimate end user of these cigarettes under the acts themselves, independent of the Jenkins act, under the cigarette tax act and the sales and use tax Mr. Mosher is responsible for these taxes as an end user where the distributor has not turned over the taxes on his behalf. [JK] Sense when did the Division of Taxation received notice of the sales to Mr. Mosher? [MG] I believe uha shortly before no I'm sorry they did receive them shortly after within a week or two of the month of which each purchase was made. So they did receive them shortly after the the purchases were made. [JK] So they received the notifications from smok sm.. [MG] smokes advantage [JK] smokes advantage in 99 but the notices were not sent out until 2000 is that right? [MG] I believe that the first notice.. Mr. Mosher says in his papers that he received some sort of letter or Bill in March of 2000 and that I believe that the first notice and demand went out in September of 2000 if that's true... [JK] What's the time period for imposing this tax? **** what you're relying on? [MG] Your Honor I'm not aware that there's any limit in which the Division has to operate in terms of a time limit on imposing it I know for instance I guess, a in a sales and use context um an assessment can go back 4 years I believe from when a returned would be due. as I understand it. [JK] Anything else. [MG] No Your honor. [JK] Mr. Mosher any additional argument. [GM] Yeah I would just say that responsible behavior or behavior that you're going to hold people accountable for requires informed judgments and I would say that the state of New Jersey made no effort to provide that informed judgment and for example as I have used the example of the seat belt law. Great expense was expanded by the state a tremendous campaign, got full news coverage, two-year probation periods I mean it was incredible latitude given to people to accommodate this change. I would state that the cigarettes, the prices of cigarettes-- this is an addictive substance you know --in a five-year span.. you know more than quadrupled in price and four anybody of limited income this is a substantial change in their expectations of how they are going to live their life. I mean they're effectively obligated to quit smoking or else there going to damage their own capacity to pay their bills.. ok and that is a circumstance I was placed in and I wasn't given.. I wasn't able to make an informed judgment regarding my behavior. Especially when it comes to my behavior in terms of securing cigarettes for neighbors who didn't have a credit card.. that was a.. half of this liability and that was just a stupid mistake on my part in retrospect-- but you know.. but hindsight is 100% ok. I would just say that to have accountable behavior you've got have informed behavior and I would say that no effort was made that I would have the opportunity to make informed behavior and that I can't be held accountable for this error in judgment because the state didn't make it possible didn't make any effort anyway that this mistake wouldn't be likely and I would also state that their own records indicate that there are plenty of other people who made the same mistake and so it is not an reasoned mistake or a reckless mistake or an unusually stupid mistake for which you can put me in some category and say that... that person's judgment was just so bad that we can't use that as a standard. I think it is a reasonable standard. I think I fell into a trap it's that simple and... and that's not the way the state government should be operating. Thank-you [JK] Thank you. [JK] Mrs. Goldschmidt anything else? [MG] I would just want to reiterate your honor that a that.. the sales and use tax cigarette taxes are self assessing taxes so that from the purchase date these taxes were due by Mr. Mosher and it was his obligation to turn those funds over and I'm certain, I'm confident in saying that Mr. Mosher was likely aware that he was not paying taxes on those purchases from day one when he began purchasing them online or by phone. [JK] Mr. Mosher [GM] I was aware that I was paying federal taxes and a.. and yea I mean I didn't know what state taxes I was paying to tell the truth I wasn't sure whether I was paying Kentucky state taxes or New Jersey state taxes I just.. my contention is that simple, is that.. one assumes that if a website is going to be allowed to function and a business is going to be allowed to have 800 numbers and send out promotional materials and advertise in local newspapers that their would have to be some legal restraint that their operating under and so for me to assume... like I said we even have a law in the state in New Jersey that does require a disclaimer be placed on cigarette ads in magazines for out of state. I continue find them in my Star-Ledger from New York State Indians there obviously out of state you can't claim that they... that because they're Indians they don't count, because they are out of state Indians. Regardless that notice wasn't clear and explicit to me or to any other purchasers like I said I wasn't the only victim as the state concedes and.. and.. so I would theirfore just simply argue that yes I understood that the state of New Jersey has taxes but I also understood.. that I figured.. that I assumed that blatantly illegal behavior couldn't take place.. that a company couldn't advertise... if I saw an advertisement for car at a reduced rate or some other item people don't sit there and and go through the calculations to figure out why is this deal better than some other deal there's a certain assumption that if their advertising in a statewide newspaper that they're required to fulfill some legal burden and so yes I assumed that..what I was doing was not illegal ok.. I.. did I know that some taxes from one state to another state whoever was getting paid whoever wasn't getting paid well I wasn't.. I didn't sit there and figure out those details I just new I was still paying an awful lot for my cigarettes and I still knew I was paying a lot of taxes so a regardless I would say that the seduction itself of advertisement that provides an opportunity to find some escape from this incredible tax burden, itself the mir seduction of that should.. should to some extent mitigate the a wrongness of the behavior because cigarette smokers are being seduced to break law they're being enticed to break the law and they're doing it under auspices of of the state government who is who is a.. a regulating them. so I would say the state has has has basically endorsed this "method" of of advertising and its deceptive. [JK] Thank-you. The matter before me involves the motion by defendant director of the Division of Taxation for summary judgment with respect to Plaintiffs appealed which challenges the imposition upon him of taxes under the cigarette tax act NJ 64:40 a-1 and following particularly Section 8 of that statute. And under the New Jersey sales and use Tax Act NJ 54:32 B-3a which taxes retail sales of tangible personal property*** cigarette sales were exempt from sales tax but that exemption which was contained in NJ. S. 54:32 B-8. 24 was repealed by the laws of 1990 Chapter 40 Section one and that so after the effective date of that statute which I believe was 1991 cigarette tax ..cigarettes sales were subject not only to tax under the cigarette tax act but also to sales and use tax. The factual background to the matter is as follows au the New Jersey Division of Taxation received information from smokes advantage of Louisville Ky which is an unlicensed distributor of cigarettes in New Jersey a that it had shipped cigarettes to Mr. Mosher aum *** in connection with those sales no cigarette tax or sales and use tax was paid. um purchases included 52 carton's of cigarettes between August of 1999 and March of 2000 the purchases were made either by Internet or by telephone from smokes advantage. the information was forwarded to the Division of Taxation by smokes advantage pursuant to the Jenkins act 15 United States Code Section 375 and following. and um the selling price of the cigarettes the were sold by smokes advantage were included in the notification provided to the director and to the Division. in September and October of 2000 and in one instance in April of 2001 the director sent letter notifications to Plaintiff advising him of his tax liability based upon various invoices of sales from smokes advantage to him from the Plaintiff protested the director's effort to impose the tax and a telephone conference was held in December of 2001 the director issued his final determination on January 8th of 2002 sustaining the tax assessments under the cigarette tax act and the sales and use Tax Act the total liability for those taxes including interest through 2002 $569.82 Plaintiff filed a timely appeal with the Tax Court after the director's final determination. Plaintiff does not dispute that he purchased the cigarettes I've described for his own use and for use by friends. That he purchased them from smokes advantage an out of state vendor via the Internet or telephone. He does not dispute that neither cigarette tax or sales and use tax was paid in connection with his purchases. He challenges the imposition of tax on constitutional grounds a noting that aum "the power to tax carries with it the potential to persecute" and he regards the imposition of taxes here as a form of persecution. In addition to that allegation in Mr. Moshers brief in response to the summary judgment motion *** states as follows " I would contend that even by today's established "judicial perspective," consistent logic and justice requires any honest trier of fact to conclude that cigarettes have been taxed to unConstitutional excess. Current legal jargon requires a "liberty interest" to achieve "fundamental" status to be entitled to to the protection of obligating the state to demonstrate a "compelling interest" before it is allowed to abridge that liberty. I would simply argue that you cannot get more fundamental a liberty interest than the one produced by a decades-long legal physical addiction. " He also raises the following point "Excessively taxing minority vices in an "all-or-nothing" form of "democracy," where an un-geographically-segregated minority's political disenfranchisement is assured, amounts to taxation without representation " of further ground is " In light of recent Supreme Court decisions, it is difficult to argue that the words "Due Process and Equal Protection" hold any meaning whatsoever under the tyranny of the political despots who have seized control of our legal system" he argues under the burden of proof " It should not be my responsibility to prove to this judge that he violated fundamental Constitutional law when he threatened me with added monetary damages if I did not hastily retreat from his court and from my pursuit of "redress of grievances" (also included the added obligation to leave behind the filing fee I already paid and any future legal rights regarding the disputed issues). Nor should it be my responsibility to prove that the state can't, in legal fact, "wait 10 years to send out a tax notice if [it] felt like it.." I will address each of the issues raised by Mr. Mosher. I should note first of all that with respect to the language I have quoted relating to ua the a.. what he regarded as a threat that he hastily retreat from my court. I assume that that allegation is a based on a conversation that was held at the very inception of my handling of this matter were I attempted to ua notify or be sure that Mr. Mosher was aware of the tax amnesty program then in effect and pointed out to him that if he was eligible for amnesty which I believe he was that if he did not except the amnesty he would be subject by statute to additional 5% penalty. As I have explained to him in previous proceedings in this matter there was no intent on my part to threaten Mr. Mosher or to indicate to him that he had no rights to proceed in this matter I simply wanted to alert him to the legal consequences of not accepting amnesty. In the course of that conversation which was recorded by Mr. Mosher but was not on the record, unfortunately, in any event it has been recorded. I believe I made a statement that I did not have jurisdiction over federal constitutional questions. Assuming I made that statement I misspoke, I apologize to Mr. Mosher and miss Goldschmidt I do have jurisdiction over those questions and I will address them over the course of my opinion today. Mr. Mosher challenges the constitutionality of the cigarette tax act NJsa 54: 48-1 to45 and um presumably the constitutionality of the Jenkins act 15 United States Code sections 75 and following particularly I assume Mr. Mosher challenge is to Section 376 of the Jenkins act which in paragraph A2 provides that " not later than the 10th day of each calendar month" in other language " a person who sells or transfers for profit cigarettes in interstate commerce whereby such cigarettes are" let me go back and rephrase that Section 376 a of the Jenkins act provides " any person that sells or transfers for profit cigarettes in interstate commerce whereby such cigarettes are shipped into a state taxing the sailor use of cigarette to other than a distributor of license by are located in such state or who advertises and offers cigarettes for such sale or transfers and shipment shall" item 2 not later than the 10th day of each calendar month file with the tobacco tax administrator of the state into such shipment is made a memorandum or copy of the invoice covering each and every shipment of made during the previous calendar month in to such state. the memorandum or invoice in each case to include the name and address of the person to whom the shipment was made the brand and the quantity thereof " um... *** of determining the constitutionality of taxing provisions are well-established and have been articulated by not only the New Jersey courts but also by the United States Supreme Court. MADDEN v. COMMONWEALTH OF KENTUCKY, 309 U.S. 83 a decision of the United States Supreme Court in 1940 the court stated as follows at pages 87 and 88 " the broad discretion quote "the broad discretion as to classification process by Legislature in the field of taxation has long been recognized this court 50 years ago concluded that the 14th Amendment was not intended to compel the states to adopt an iron rule of equal taxation and the passage of time has only served to underscore the wisdom of that recognition of the large area of discretion which is needed by Legislature in formulating sound tax policy traditionally classification has been a device for fitting tax programs to local needs and usages in order to achieve an equitable distribution of the tax burden it has because of this been pointed out that in taxation even more than in other fields legislatures process the greatest freedom in classification since the members of the Legislature necessarily enjoy a familiarity with local conditions which this court cannot have the presumption of constitutionality can be overcome only by the most explicit demonstration that a classification is a hostile and opressive discrimination against particular persons and class's. the burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it." ALLIED STORES OF OHIO v. BOWERS, 358 U.S. 522 decided by the court in 1959 the Court states at page 526 and 27 that "of course the states in their exercise of their taxing power are subject to the requirements of the equal protection clause of the 14th Amendment but that clause imposes no iron rule of equality prohibiting the flexibility and variety that are appropriate to reasonable schemes of state taxation. the state may impose different specific taxes on different trades and professions and very the rate of excise upon various products it is not required to resort to close distinctions or maintain a precise scientific uniformity with reference to composition use our value" and then on page 528 "it has long been settled that a classification though discriminatory is not arbitrary or violative of the Equal Protection clause of the 14th Amendment if any state of facts reasonably can be conceived that would sustain it." lien hausen verses LEHNHAUSEN v. LAKE SHORE AUTO PARTS CO., 410 U.S. 356 decided by the court in 1973 the court states at au page 359 quote "The Equal Protection clause does not mean a state may not draw lines that treat one class of individuals or entities different from the other differently from the others the test is whether the difference is an invidious discrimination where taxation is concerned no specific federal right apart from equal protection is inperiled the states have large leeway in making classifications and drawing lines which in their judgment produce reasonable systems of taxation." letters verses Madlock 499 U.S. 539 decided in 1991 the court pointed out aa page 457 that quote "inherent in the power to tax is the power to discriminate in taxation legislatures have especially broad latitude in creating classifications and distinctions in tax statutes" those are the federal cases In New Jersey the constitutional bases for taxation have been discussed in kidlman I'm sorry Greenberg verses Kimmelman 99 New Jersey where the court stated at page 563 "in so far as most rights are concerned a state statute does not violate substantive due process if the statute reasonably relates to a legitimate legislative purpose does not arbitrary or discriminate discriminatory" briefly stated if a statute is supported by conceivable rational basis it will withstand substantive due process attack. In dealing with equal protection the Appellate Division in Snyder verses the city of East Orange 196 New Jersey Super decided in 1984 stated it page 594 equal protect quote "equal protection that all persons must be treated identically but rather that similar people be dealt with in a similar manner and that people of different circumstances will not be treated as if they were the same and unless legislation creates inherently suspect classification a legislative classification will be presumed valid even if it has the effect of treating some differently from others so long as it bears some rational relationship to a permissible state interest it must be noted that in classifying subjects for different treatment even in the field of taxation the Legislature possesses the greatest freedom in classification" It is in the context of those of those standards or that standard for constitutional challenges that I will consider the various grounds for appeal raised by Mr. Mosher. One challenge as I've indicated is to the constitutionality of the cigarette tax act. The constitutionality of that tax was challenged in lane distributors verses Tilton 7 NJ 349 a decision by the New Jersey Supreme Court in 1951. The court held that the act was not an undue restraint on interstate commerce was not special legislation stating quote "this is general legislation though directed to the taxation and regulation of the sale of a specific product and even though in its operation it may as a matter of fact Act to the benefit of some and to the detriment of others" that's at page 358 *** also stated ring verses mayor and council of North Arlington this is quoting from page 359 it was held that the state has a wide discretion as to the classification of businesses and occupations for revenue and regulation and that the constitutional requirement is satisfied if the legislation is reasonably related to the object of the legislation and further that there may be a reasonable classification of the objects of the legislation or of the persons who it effects" skipping some language " considering first the cigarette tax act it is beyond question that the state can levy an excise tax on any commodity and can levy a license tax on persons engaged in any business. such taxes are not sorry "such taxes are imposed under the power raise revenue not under the police power" the court concluded notwithstanding that language that the definitions of wholesale dealer retail dealer and vendor as then contained in the cigarette tax act were arbitrary discriminatory and unconstitutional. the statute was then amended and as pointed out in Coast cigarette sales verses mayor and council of Long Branch 121 NJ Super 439 at page 447 a law Division opinion in 1972 a the statute was a quote "amended to conform with that opinion in 1952" close quote. The reference to that opinion is lane distributors verses Tilton. Therefore I conclude that the cigarette tax act is constitutional not only under the General Standards I've set forth but also under the specific ruling with respect to the act has set forth in lain distributors verses Tilton. I recognize that that decision does not deal with the invasion of privacy that Mr. Mosher asserts and I will discuss that issue in a few minutes. As to the Jenkins act the purpose of the act was set forth in Neil verses jarue 24 NJ 224 a decision of the New Jersey Supreme Court in 1957 there the court stated as follows at page 228 quote "the cigarette tax is an important source is an important source of state revenue the opportunity the opportunities for evasion are evident and evasion has been so widespread that the Congress enacted the Jenkins act 15 us 385 and following to assist the states in the collection of sales and use taxes on cigarettes" skipping some language from the circuit report "the authority of Congress to thus lend its hand has been up held citing consumer mail-order Association of America verses mcgraph in that opinion reported that 94 federal supplement at page 6 705 decided by the district court for the District of Columbia in 1951 " we find no constitutional infirmity in the Jenkins act" in United States verses Morris 516 federal second 959 a decision by the fourth Circuit Court of Appeals in 1975 the court stated quote "we are of the opinion that the act referring to the Jenkins act is not invalid for any reason for any reason advanced by Morris" Based on those decisions I conclude that the Jenkins act is constitutional again I recognize the decisions I've cited do not discuss invasion of the right of privacy and again I will discuss that in a few minutes few moments. As to the other arguments raised in Mr. Mosher's brief excuse a second . *** on page 8 of the brief one argument is " my claim that threat bargaining is an unconstitutional of the right of redress has not been answered by this court" I believe I address that argument a few moments ago where I indicated that in my view there was no threat bargaining but simply an effort by the court to advise Mr. Mosher of the provisions of the amnesty statute then in (*** cough ) and which would expire shortly thereafter to be sure he was aware of the consequences of not participating in the amnesty program. A second argument is that the Jenkins act constitutes a constitutionally illegal of constitutionally protected private property *** I have already addressed that argument and will address the invasion of privacy aspect of that argument. on a *** also argues that a "the state is dishonestly and therefore illegally using the mask of a broad sales tax to do nothing more than established another cigarette tax" and that that has not been sufficiently addressed by the state. He notes that "the state has not provided a complete listing of what was exempted from the sales tax act and any evidence mitigating claim that the exemptions are in fact merely convenient indulgences to politically powerful special and majority and interests and constitute a violation of due process and equal protection." There is no doubt about the constitutionality of the sales and use Tax Act the [*** 70 years] that Mr. Mosher sites have no bearing upon the validity of that act or upon the tax liability which is the subject of this appeal. To the right of privacy this is a right that has been recognized under federal and state constitutions the federal view of the right of privacy is articulated in among many other cases in Paul P verses DeNiro 170 F federal third 396 a decision of the Third Circuit Court of Appeals in 1999 this was a case involving the constitutionality of what is commonly known as Megan's Law requiring disclosure of the identity of sex offenders in the course of its opinion court states as follows legal quote" the legal foundation of Plaintiffs claim is the Supreme Court's recognition that there is a right of personal privacy or a guarantee of certain areas are zones of privacy protected by deny States Constitution the guarantee of personal privacy covers only personal rights that can be deemed fundamental or implicit in the concept of ordered liberty that's at page 399 *** also states at page 40~ quote even information that is entitled to privacy protection may nonetheless be subject to disclosure when the government's interest in disclosure is compelling " the recognition that the right of privacy exists but is not absolute also appears in the decisions by the New Jersey Supreme Court in state verses Saunders 75 NJ 200 decided by the court in 1977 the court recognized that the right of privacy is neither specifically mentioned in the New Jersey are United States constitutions but states at page 210 quote "both documents have been construed to include such a right " on page 216 the court states that is now settled that the right of privacy guaranteed under the 14th Amendment has an analog in our state constitution citing article one paragraph one although the scope of the state right is not necessarily broader in all respects the lack of constraints imposed by considerations of federalism permits this court to demand stronger and more persuasive showings of a public interest in allowing the state to prohibit sexual practices than then would be required by United States Supreme Court the Court goes on to state at page 217 having found that the statute impinges on the fundamental right of privacy we must go on to consider whether that impingement can be justified by some compelling state interest" The most thorough discussion and analysis of the right of privacy that I found appears dove verses porridges reported at 142 NJ page one decided by the state Supreme Court in 1995 this was another case involving Megan's Law particularly the registration and community notification laws which were part of what's called Megan's Law on page 77 the court stated as follows quote "grounded in the 14th Amendments concept of personal liberty the right of privacy safeguards at least two different kinds of interests be individual interest in avoiding disclosure of personal matters and the interest in independence in making certain kinds of important decisions those interests have been characterized confidentiality and autonomy strands of the right of privacy the right of confidentiality comprises two strands the right to be free from the government disclosing private facts about its citizens and from the government inquiring into matters in which it does not have legitimate and proper concern. skipping some language in assessing Plaintiffs claim we must determine whether and to what extent has a reasonable expectation privacy in the information disclosed under the registration and notification laws if there is a reasonable expectation of privacy in the information disclosed we must decide if the intrusion on the right of privacy justified balancing the government interest in disclosure against the private interest in confidentiality" pages 87 and 88 the court states "having found privacy interest implicated only by the notification law however diminished those interest may be by the public nature of the individual pieces of information disclosed we must determine whether the state interest justifies disclosure courts in this circuit have considered the following factors one the type of record requested to the information it does are might contain three the potential for harm in any subsequent non consentual disclosure for the injury of disclosure to the relationship in which the record was generated five the adequacy of safeguards to prevent unauthorized disclosure 6 the degree of need for access and seven whether there is an expressed statutory mandate or articulated public policy or other recognized public interest militating towards access close quote" on pages 89 and 90 the Court states that the standards applicable in deciding whether disclosure is permissible under the state constitutions right of privacy are virtually identical to those applicable under the federal statute here Plaintiff asserts a right of privacy [turn tape] ***** (The advertisement\} to which Mr. Mosher responded indicated indeed proclaimed that the sale of cigarettes were quote "tax-free" that however does not excuse him from the from being chargeable with knowledge that New Jersey imposes tax on the sale of cigarettes and that notwithstanding the advertisements the tax could be collected in this state. the advertisements in themselves appear to be misleading but that is the subject matter of a different claim and not before this court my concern is simply with whether there is a tax liability and whether it has been paid or whether there are any bases for not enforcing it against Mr. Mosher. The misleading statements in the advertisements which he has provided in his response to the motion are not in my view a basis for avoiding tax liability here the only impact of the disclosure required by the Jenkins bill is to reveal the Plaintiff is a smoker the brand smokes or buys the amount of his purchases and in this case the price paid was disclosed applying the standards articulated in doe verses porridges I find there is no significant potential for harm in any subsequent non consentual disclosure there's no demonstrable injury other than being subjected to tax and I conclude the state has significant need for access in order to maintain integrity the integrity of and to enforce its tax-laws particularly the cigarette tax act and the sales and use Tax Act as applied to the sales of cigarettes. Fnely there's an express statutory mandate for disclosure in the Jenkins act supported by well articulated public policy which was set forth and quoted from lane distributors verses Tilton. The right of privacy which Mr. Mosher asserts in my view is not the type of fundamental right protected by either this federal or state constitutional concept of privacy. even if I ever to regard the right as a fundamental right I conclude that the state has a compelling and substantial need for the information which is contained in the notification from the Jenkins act and that compelling substantial need far outweighs Plaintiffs privacy interest. Mr. Mosher on page 9 of his brief raises a variety of rhetorical questions I do not believe that they require any additional comment by me beyond what I have already set forth based on the analysis that I have placed on the record. The defendants' motion for summary judgment will be granted. Mrs. Goldschmidt please present form of order and judgment which contains a calculation of the tax and interest due to a specific date the order should provide the order and judgment should provide that interest will continue run until payment and the order and judgment should contain any appropriate provisions with respect to the 5% penalty imposed under the amnesty statutes particularly NJ as a 54: 53-18 *** when you submit the order in judgment please include a certification if appropriate that this claim qualified for amnesty based on the years involved it appears under my reading of the statute and set forth in the certification amnesty was offered to Mr. Mosher and that it was declined which is also my understanding of the factual background to this matter. Mr. Mosher you have any questions [GM] yea I would just like to request an extension of time regarding my appeal [JK] you can request that from the Appellate Division Mr. Mosher your right of appeal will not begin to run until 45 days after the entry of the judgment which mis gold Schmidt will submit you will have five days from the date you get it to notify me of any objections to the form of the judgment once it's entered your time period will start to run if you need additional time I would suggest that you communicate with the Appellate Division [GM] ok if you don't ever fulfill those requests [JK] Well you could request a stay of my judgment but I see no basis to grant a stay the Appellate Division may or may not be willing to grant you additional time [GM] ok I just want to make clear that you're not giving me a stay then [JK] I'm am not [GM] ok thank-you very much [JK] any other questions [GM] um let me think for a second what other question could I possibly ask you? no I'll let I'll let your God let you know.... eventually. [JK] Mrs. Goldschmidt any questionsMrs. Goldschmidt [MG] no Your honor [JK] is it clear what is to be included in the order and judgment [MG] yes [JK] please include a sentence indicating that the order is based upon reasons placed on the record today [MG] ok [JK] thank you both [MG] thank you [GM] drop dead [JK] by by