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IN THE SUPREME COURT OF THE UNITED STATES
October Term, 1998
John Murtari, Petitioner,
vs.
Adrianne Phillipson Murtari, Respondent,
PETITION FOR A WRIT OF CERTIORARI TO APPELLATE DIVISION, FOURTH
JUDICIAL DEPARTMENT, FOR THE STATE OF NEW YORK
Mr. John Murtari respectfully petitions for a writ of certiorari to review the judgment
of the Appellate Division, Fourth Judicial Department, for the State of New York.
The opinion of the Appellate Division is reported as Murtari v. Murtari, 673 NYS
2d 278 (1998 NY Slip Op 03968). The Court of Appeals decision is yet to be reported. Both
are included in the Appendix.
The decision from the Appellate Division, Fourth Judicial Department, State of New
York, was entered on April 29, 1998. An order, from same, denying reargument was issued on
July 8, 1998. The New York State Court of Appeals denied review of the decision on August
31, 1998. The jurisdiction of this Court is invoked under 28 U.S.C. (1257).
The Domestic Relations Law (DLR) & CPLR for the State of New York prohibit the
appointment of a jury in divorce proceedings on the issues of custody or equitable
distribution. The CPLR also does not provide for the right to Counsel in a proceeding
which will determine child custody in State Supreme Court.
The Petitioner prays the Court will review these restrictions, which also appear to be common
among many states, in the light of the following sections of the U.S. Constitution:
Seventh Amendment - In suits at common law, where the value in controversy shall
exceed twenty dollars, the right of trial by jury shall be preserved . . .
Ninth Amendment - The enumeration in the Constitution, of certain rights, shall
not be construed to deny or disparage others retained by the people …
While Petitioner acknowledges the framers of the Constitution did not intentionally
include "matrimonial" issues within these amendments, and that divorces were
not then considered matters within the "common" law, but rather church law - he
asks the Court to consider the present day frequency and ease of Divorce proceedings (and
their devastating effect on families). Might this "evolution" have caused the
"founding fathers" some concern. Especially when considered with those words
from our Declaration of Independence:
We hold these truths to be self-evident, that all men are created equal, that they are
endowed by their Creator with certain unalienable Rights, that among these are
Life, Liberty, and the pursuit of Happiness.
The Court has always held to the tradition that "Liberty" and
"Life" rights deserve our greatest protections. What of "Happiness?"
And what greater and purer "Happiness" can there be in life than the relation
between parent and child?
Who among us, when faced with a Court proceeding in which we felt a Judge was about
to unjustly limit contact with our children - would not want the safety valve of a jury?
Who among us would not want a presumption we be allowed equal contact with our children?
Is not the right to the company of one's children/parents, a right preserved to the
people?
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