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Section 29(1) of the Offences Against the State Act, 1939 (as inserted by s. 5 of the Criminal Law Act 1976) found to be repugnant to the Constitution.
An Irish registered car was stopped at a Garda checkpoint. A Latvian insurance company had issued its certificate of insurance. The Latvian company was not a member of Motor Insurers Bureau of Ireland.
b) Whether, on the charge before me, a policy of insurance attested to by way of the Green Card for a vehicle bearing an Irish registration plate may be a defence to such a charge.
The Green Card is not a certificate of insurance. It is a device by which a vehicle, registered in one state and visiting another, is deemed to be insured. Compensation is provided to an injured party by the Motor Insurers Bureau of Ireland who recoup the amount from the foreign insurer who issued the Green Card or the Bureau of the country in which the vehicle is registered.
The answer to both questions posed in the case stated is: No.
The Green Card system does not operate as a policy of insurance per se. An Irish registered vehicle can only be insured by an insurance company registered with the Motor Insurers Bureau of Ireland.
The Appellant was charged with 14 counts of indecent assault, offences alleged to have occurred between 1974 and 1978, beginning when the complainant was 8. The complaint was first made in 1999. The Appellant was put on trial in Waterford Circuit Criminal Court on three occasions in 2006. On each occasion the jury was discharged as the complainant had given inadmissible and prejudicial evidence. The Appellant sought an order by way of judicial review prohibiting the fourth trial on the grounds that it would amount to an abuse of process, and a breach of his constitutional right to a fair trial.
A letter was alleged to have been written by the complainant to the appellant, prior to the first trial demanding money in return for not proceeding with the case. However neither the question of delay or of the letter were mentioned in the grounds on which leave to seek judicial review was granted. Furthermore, no attempt was made to amend or extend those grounds.
In the High Court McCarthy J refused to prohibit a fourth trial. He distinguished the decision of the Supreme Court in D.S. v Judges of the Cork Circuit and the DPP  4 I.R. 379, because that case was concerned with successive disagreements by a jury after a complete trial. He also held that this case concerned more serious offences than in DS and that there was no specific prejudice or any unavoidable risk of a fair trial. McCarthy J considered the arguments relating to delay and the alleged letter from the complainant.
Counsel for the Appellant emphasised his reliance on the cumulative effect of the delay, the alleged letter, stress and anxiety and the fact that there had been three previous attempts at a trial. Counsel submitted that the delay and the letter were in fact before the court and should be considered.
Counsel for the Respondent argued that the decision whether to proceed with a fourth trial was primarily a matter for the Director, who had knowledge of the relevant facts, is an independent officer and who had taken the view that there is a strong public interest in the prosecution of these offences. Counsel submitted that the issue of delay and the letter were not properly before the court.
1. A court is limited in a judicial review to the grounds ordered for the review on the initial application, unless the grounds have been amended. In this case the grounds for review were limited, essentially that a fourth trial would be an abuse and unfair, and were not amended. The issues of delay and the letter allegedly sent by the complainant were not before the court and the learned High Court Judge erred in considering them.
2. A court would be slow to intervene in the exercise of the DPP’s function in initiating prosecutions, but would intervene if necessary to protect constitutional rights and any relevant aspect of the public interest, including the due process of the trial.
3. A fourth trial may not per se be a breach of a trial in due course of law. There is no rule under statute law, common law or the Constitution, which limits the number of prosecutions, or retrials, which may occur. Each case requires to be considered on its own facts to determine whether, in all the circumstances, a further prosecution would be constitutional.
4. The Appellant failed to discharge the burden upon him to show that it would be a breach of his right to due process in the sense that it would be oppressive to put him on trial for a fourth time, having particular regard to the fact that the case had not gone to the jury in any of the previous trials.
5. (Per Murray CJ) The grounds upon which judicial review is sought should be set out clearly and precisely. If at the leave stage it appears to the High Court that the grounds could or ought to be stated with greater clarity and precision then any order granting leave should specify the ground or relief in such terms.
6. Where additional arguments arise during a judicial review hearing, the High Court may permit these matters to be argued, especially if the respondents consent, but the applicant should seek an order permitting any extended or new ground to be argued.
7. (Per Hardiman J) There were, or might have been, substantial issues both of delay and issues arising from the alleged letter. However although the question of delay and of the letter was raised by the appellant’s solicitor in his affidavit, neither question was reflected in the grounds on which leave to seek judicial review had been granted. Therefore, they could not be considered.
There is no numerical limit on the number of prosecutions which may be brought by the DPP in respect of the same charges. Practitioners should note that in judicial review cases, the definition of the issues before the reviewing court at the leave stage is crucial and grounds where leave was not granted will not be entertained. There is the strong indication, at least from Hardiman J that had the leave stage been approached in a different way, another outcome might have been reached.
The Appellant was arrested in possession of 10 packages containing approximately one kilo each of white powder, which he admitted to the Gardai contained amphetamine. The Appellant was charged with offences under s.15A and s.15 of the Criminal Justice Drug Trafficking Act 1996. A conviction under s.15A required that the drugs had a market value of €13,000 or more. The Appellant pleaded guilty to s.15, but not guilty to s.15A. Gardaí gave evidence estimating value at €145,755, using a price of €15,000 per kilo, which assumed at least 10% concentration of amphetamine. A forensic scientist, Dr. Casey, gave evidence that she had analysed five of the packs and found them to contain a white powder which contained amphetamine.
On cross examination, Dr Casey said that the analysis of the sample of five packages was carried out in accordance with accredited laboratory procedure, which was routinely to analyse half of the packs. She could say with 100% certainty that the five packs contained amphetamine and with 99% certainty that at least seven of the packs contained amphetamine. She accepted that she had not examined the concentration of amphetamine in the packages. She gave evidence that the range within which amphetamine purities ‘generally fall between is maybe 10 and 40%’. She accepted that a 1% concentration of amphetamine would trigger the test.
The Court of Criminal Appeal emphasised that the burden remained on the State to satisfy the jury beyond reasonable doubt as to the market value of the drugs. The Court held that there was no principle in law requiring every package to be individually analysed. The Court also noted that a purity of 10% would place the value at approx €70,000, but a purity of 1% would put the value at approx €7,000. The Court held that there was evidence to go to the jury from which it could accept or reject this evidence and it was open to the jury to find that the quantity of the drug present in each pack was at least 10%.
2. Proof of value is an essential ingredient of the offence under section 15A. The ingredient of value must be proved to the satisfaction of the jury beyond reasonable doubt. The words used by Dr. Casey in evidence (‘generally’ falling within a particular range) cannot be taken to mean more than that there was probably 10% to 40% amphetamine present. Probability is not enough.
3. The proof of value is an objective matter. In the present case, there is nothing to prove value except the scientific evidence combined with that of the arresting Garda. The Court did not exclude, in other circumstances, that such evidence combined with other non-scientific evidence could be considered sufficient to allow the case to go to a jury.
4. It was not sufficient for the prosecution to prove the mere presence of amphetamine and to rely on an unexplained range of values which generally applies without evidence which addressed the extent to which there are cases outside the range. This left a gap in the prosecution evidence. The case should have been withdrawn from the jury.
The case could have major implications for s.15A prosecutions. The State may in many cases be obliged to combine Garda opinion evidence with quantitative as well as qualitative analysis of the drugs in order to prove value. Accused persons in possession of poor quality drugs may benefit from falling without the terms of s.15A. However, it may be a double edged sword as quantitative analysis could well have the effect of increasing the purity level, and hence value, from the estimate.
1. That the AG’s scheme was an ex gratia discretionary scheme and as such did not satisfy the requirements of the 2003 Act as regards legal representation.
2. That a decision to prosecute him had not been made in Sweden and that he was being sought for the purposes of the investigation of offences.
The Appellant was unsuccessful in the High Court (where he argued slightly broader grounds on the first point).
Article 11.2 of the Framework Decision provides for a right of representation; and then only in accordance with the national law of the executing member state.
S.13 of the EAW Act 2003 provides that on arrest a person has a right to be informed of his right to obtain, or be provided with, professional legal advice and representation.
The existence of a right to legal assistance in EAW cases was accepted by the respondent.
Solicitors for the AG gave evidence that if there was a residual discretion not to follow a Court’s recommendation regarding the scheme, that discretion was only every exercised in favour of the respondent in EAW cases.
S. 21A (1) of the EAW Act provides that the High Court shall refuse to surrender a person if it is satisfied that a decision has not been made to charge the person or try him for the offence. S.21A (2) provides that the issuing of a warrant creates a presumption that this decision has been reached until the contrary is proved.
It was not disputed that the Appellant would not be charged until after he had been interviewed by the Swedish authorities. The Appellant’s Swedish lawyer submitted an affidavit to the effect that the Appellant was suspected of committing serious crimes, but that the decision to charge had not been made. An affidavit from the Swedish prosecutor indicated that the decision to charge had been made, but that the physical presence of the accused was necessary for the laying of formal charges.
1. The Attorney General’s Scheme operates by the making of a recommendation by the court which the Attorney General almost always follows, although he or she is not obliged to do so. Application of Woods  I.R. 154 considered.
2. Since in EAW cases, there is no residual discretion on the part of the Attorney General, the provision of legal services in such cases are properly described as being provided as of right.
3. Cogent evidence is required to raise a genuine issue as to the purpose for which a warrant has been issued. The surrender of the person for the purpose of prosecution requires that the decision to prosecute not be contingent on the outcome of further factual investigation. That does not preclude the pursuit of any continuing investigation into the circumstance of the offence. Minister for Justice v. McArdle  4 I.R. 260 considered.
4. The words “charge” and “prosecution” in the Act should only have the meaning assigned to them in the Irish criminal justice system. A purposive approach should be had with regard to other legal systems. Re Ismail  A.C. 320 and Dundon v. Governor of Cloverhill Prison  1 I.R. 518 considered.
5. The “decision to charge and try” need not be irrevocable and it need not be demonstrated by the requesting state. A court may refuse to surrender where no decision has been made to charge or try.
6. A “decision” for the purposes of investigation alone is insufficient. However, in the instant case it was clear that Sweden intended to bring proceedings against the Appellant.
7. In the circumstances the High Court was entirely correct to conclude that there was a clear intention to bring proceedings within the meaning of s. 10 of the Act, and that the Appellant was not being sought solely for the purposes of an investigation.
The Court has affirmed a broad purposive approach taken to the interpretation of fundamental legal concepts in the Act of 2003, in line with the principles of mutual confidence and recognition. The issue of an arrested person’s right to legal aid under the AG’s scheme has now been clarified.
Click to Access Case Report.
Supreme Court:Fennelly, Finnegan, O’Donnell JJ.
1. The accused was charged with s.2 assault and s.2 criminal damage arising out of an incident on 7th April 2004 in a Centra shop where he was alleged to have thrown items and been verbally abusive to staff. The accused was arrested on the scene by Gardaí. Witness testimony of Gardaí and the staff comprised the bulk of the evidence against the accused. The shop was equipped with a CCTV system which allowed the printout of still images but not the downloading of video to DVD. The complainant printed out 8 still images which were given to the prosecuting Garda.
2. On the 26th May 2004, the solicitors for the Applicant wrote to Gardaí seeking, inter alia, any video evidence, relying on the SC decision in DPP v Braddish. The Gardaí furnished copies of the 8 still images. The solicitors then sought a copy of the video from which the stills had been taken. The Garda responded on 10th August 2004 that there was no CD burning facility on the system and “arrangements are being made to have the images transferred for viewing”. On the 10th February 2005 however, the Gardaí informed the solicitors that the footage was “no longer on the hard drive”.
3. The Applicant brought judicial review proceedings to prohibit the trial on the basis of the authority in DPP v. Braddish. During the proceedings evidence of the Gardaí as to the steps taken to secure the evidence was not challenged either by replying affidavit, or by cross-examination.
1. Other than the very straight forward type of Braddish case [where the missing CCTV footage which had been viewed by the Gardaí not only showed the incident alleged to constitute the offence, but was the basis upon which the accused had been identified],something exceptional will be required for the Superior Courts to intervene and prohibit a trial, particularly on the basis that evidence is sought to be adduced (in the case of video stills), or is not available (in the case of CCTV evidence itself). The Trial Judge retains a discretion to exclude evidence if its admission would be unfair to the accused.
2. This was not a Braddish type case as there was witness testimony and the Applicant was arrested at the scene. The Applicant failed to engage with the facts of the case – not for court to speculate as to how the missing evidence would help his case.
3. The duty to seek out and preserve evidence, is one which must, on all the authorities, be interpreted realistically.
4. The fact the Gardaí had never had the particular evidence in their possession, but made efforts to obtain it, is relevant in the assessment of the case.
1. A substantial part of the High Court Judicial Review lists and Supreme Court appeals involving two lines of authority, delay and missing evidence cases, can be traced back to an observation in State (O’Connell) v. Fawsitt that JR is the appropriate remedy to an anticipated trial on indictment. The court questioned whether this is “necessarily so”.
2. The court questioned whether the appropriate test for prohibition of a pending trial in a court established under the Constitution is the existence, on the balance of probabilities, of a “real risk” of an unfair trial, but left the question open for further consideration.
3. The Court noted State (O’Connell) v. Fawsitt expressly limited its decision to the case of trial on indictment, while accepting that in summary trials, an application to the Trial Judge to dismiss on grounds of delay might be an equal or alternative remedy. The Court held the same must apply to missing evidence cases.
The surrender of the appellant was sought so that he could be prosecuted in the UK for four offences, being three counts of conspiracy to cheat the public revenue contrary to s.1(1) of the Criminal Law Act 1977 and one count of cheating the public revenue contrary to common law. The issuing judicial authority marked “fraud” and “money laundering” in the boxes provided for categories of offence coming within Article 2.2 of the Framework Decision on the warrant, and therefore being offences in which no proof of double criminality was required (‘ticked box’ offences). The warrant also indicated that the offence of conspiracy was not covered by the marking of the boxes referred to, and therefore would require proof of double criminality.
In the High Court ( IEHC 33), Peart J held that correspondence must be established in regard to the offence of conspiracy. Under UK law conspiracy to commit an offence is provided for by s.1(1) of the Criminal Law Act, 1977. There is no such equivalent provision in this jurisdiction, but the existence of the common law offence of conspiracy here is sufficient to satisfy correspondence for conspiracy.
1. The EAW Act of 2003 has introduced a novel system whereby a list of offences has been created where double criminality need not be found in Article 2.2 of the Framework Decision. Accordingly a significant amount of detail, including the nature of the offence, its classification under the law of the issuing state, the circumstances of the offence, and its penalties are required to be stated on the warrant. MJELR v. Desjatnikovs  1 IR 618 approved.
2. The offence of conspiracy to defraud the public revenue does not correspond to an offence in Ireland. The offence would be unlikely to meet the requirements of Irish law that a criminal offence be certain and specific in its definition. DPP v Cagney and Mcgrath  2 IR 3 considered, Attorney General v Hilton  2 IR 374 approved.
3. There is no general offence of conspiracy at common law, it is criminal only in the context of a specific agreement to commit a specific unlawful act.
4. It is uniquely for the issuing state to say whether and if so where in the list of actions in the Framework decision the particular offence is to be found. In the instant case, it was certified in the warrant that three of the four offences charged were within the list of criminal conduct in the framework decision, and later in the warrant, that they were not (as conspiracy was an element of the first three charges and later certified as not being within Article 2.2.) This was a serious internal conflict in the warrant. Correspondence would need to be established for the conspiracy charges, however, nothing in the warrant aimed to establish dual criminality. Correspondence on the particular charge could not have be established in any event. Attorney General v Hilton  2 IR 374 applied.
5. The fourth charge of Cheating the Public Revenue was a substantive offence which on the warrant claimed to come within the ambit of “fraud” in the list of criminal offences in article 2.2 of the Framework Decision. However the warrant failed to provide enough detail as to the circumstances in which the offence was alleged to have been committed. It is also a charge which had previously been held not to correspond to an offence in this jurisdiction (see Hilton above). Accordingly surrender was also refused on this charge.
Practitioners in the EAW list will be interested to note that the very common “belt and braces” approach of issuing authorities to claim that an offence is within the Art 2.2 list of offences and also that it corresponds to an offence in this jurisdiction has been severely questioned by the Supreme Court. Where such an approach is taken, it appears that correspondence will need to be established in the warrant.
McCrea arrested on suspicion of drunk driving. He was brought to Blanchardstown Garda Station, where he was Sgt Synnott made a demand for a breath sample in the Intoxyliser room. Immediately after the making of the demand, Mr McCrea asked to see a solicitor. Sgt. Synnott refused his request indicating that he could not see a solicitor until after he had provided the sample. Sgt. Synnott mistakenly believed that only one demand for a sample was possible under the legislation and that once she had made the demand, she could not stop the process. Mr McCrea was subsequently charged with refusing to provide a breath sample, contrary to s.13 of the Road Traffic Act 1994 (as amended).
In the District Court, Judge Watkin dismissed the charges against Mr McCrea. She held that under Treatment of Persons in Custody Regulations 1987 and the Notice of Rights as communicated to Mr McCrea, he was entitled to consult a solicitor at any time. She accepted that his refusal to provide a sample may have been a consequence of this refusal of this right. The prosecution appealed by way of case stated to the High Court. Edwards J in dismissed the Appeal.
The prosecution appealed High Court decision to the Supreme Court. Their argument in the Supreme Court was restricted to two points. First, that the refusal of access to a solicitor, even if it was mistaken, was reasonable. Secondly, that a refusal of the right to access to a solicitor at the time the request was made was reasonable even if the Garda had known that a second demand for a sample would have been possible after legal advice was taken.
2. What the Gardai tell a suspect about his rights is relevant for consideration of the reasonableness of a request for access to a solicitor and is also relevant to a refusal of such a request. In this case, the Gardaí had told Mr McCrea that he had a right to consult a solicitor at any time while at station, based on the Custody Regulations 1987.
3. The court declined to consider the scope of the constitutional right of reasonable access to a solicitor and whether it applies to a person arrested solely for purpose of a breath test. The case was to be considered on its own facts and on the Custody Regulations.
4. On the specific facts of this case, the District Court Judge was entitled to make the following findings: that Mr McCrea was entitled to rely literally on what the Gardaí had told him; that a solicitor’s advice could have been of benefit to Mr McCrea; and that Mr McCrea had not had reasonable access to a solicitor.
The Court determined the case narrowly on its own facts. It does not represent any significant sea-change in the right to access to a solicitor. However, it does suggest that where a District Judge is minded to dismiss a case on the grounds of a refusal of reasonable access to a solicitor, then the Superior Courts are unlikely to interfere with that dismissal.

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Strumpf, Faye & Ann Modisette. Limoges Boxes. Inscribed by the author and illustrator. A Complete Guide. Contains More than 400 Full-Color Photos, a Value Guide, and Manufacturers' Marks Identification Guide. Photo available. Iola. Krause. 2000. 176 pps. 4to. Soft cover. First edition. Illustrated in black, white and color. Important reference work. Inscribed by the author and illustrator "Glad to have written this for you Faye / Enjoy the photographs Ann Mosisette". Fine copy.
Stuart, Otis. Perpetual Motion. The Public and Private Lives of Rudolf Nureyev. Photo available. New York. Simon and Schuster. 1995. Octavo. Hard cover. First edition. Illustrated. Fine copy in fine dust jacket (in mylar).
Stubbs, Burns. James McNeill Whistler. A Biographical Outline Illustrated from the Collections of the Freer Gallery of Art. Freer Gallery of Art. Volume One, Number Four. Washington. Freer Gallery of Art. 1950. Octavo. Soft cover. First edition. Illustrated. Fine copy.
Stuckey, Charles F. Monet. 1840-1926. Chicago. Thames & Hudson. 1995. 4to. Soft cover. Reprint. Illustrated in black, white and color. Fine copy.
Stuckey, Charles F. Monet. Water Lilies. Photo available. New York. Park Lane. 1991. Oblong folio. Hard cover. First edition. Illustrated in black, white and color. Folding plates. Fine copy in fine dust jacket.
Stuckey, Charles F. & William P. Scott. Berthe Morisot. Impressionist. Photo available. New York. Hudson Hills Press. 1987. 228 pps. 4to. Soft cover. First edition. Illustrated in black, white and color. Important reference work. Fine copy.
Stuckey, Charles F. (ed). Monet. A Retrospective. New York. Park Lane. 1986. 386 pps. Folio. Hardcover. Reprint. Illustrated in color and black & white. Folding plates. Fine copy in fine dust jacket (in mylar).
Stuckey, Charles. Toulouse-Lautrec: Paintings. Photo available. Chicago. Art Institute of Chicago. 1979. 4to. Soft cover. First edition. Illustrated in black, white and color. Near fine copy (very light shelf wear).
Stuckley, Charles F. Monet. Water Lilies. Photo available. New York. Barnes & Noble. 2000. 132 pps. Folio. Decorated hard cover. First edition. Full number line. Illustrated in black, white and color. Folding plates. Important reference work. Fine copy.
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Stullman, Andrea (ed) and Ansel Adams. Ansel Adams. Our National Parks. Photo available. Boston. Little, Brown Co. 1992. 127 pps. Octavo. Soft cover. Stated first edition. Illustrated. Important reference work. Fine copy.
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Respondent North Dakota filed an action in state court to require petitioner Quill Corporation -- an out-of-state mail-order house with neither outlets nor sales representatives in the State -- to collect and pay a use tax on goods purchased for use in the State. The trial court ruled in Quill's favor. It found the case indistinguishable from National Bellas Hess, Inc. v. Department of Revenue of Ill., 386 U.S. 753, which, in holding that a similar Illinois statute violated the Fourteenth Amendment's Due Process Clause and created an unconstitutional burden on interstate commerce, concluded that a "seller whose only connection with customers in the State is by common carrier or the . . . mail" lacked the requisite minimum contacts with the State. Id. at 758. The State Supreme Court reversed, concluding, inter alia, that, pursuant to Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, and its progeny, the Commerce Clause no longer mandated the sort of physical presence nexus suggested in Bellas Hess; and that, with respect to the Due Process Clause, cases following Bellas Hess had not construed minimum contacts to require physical presence within a State as a prerequisite to the legitimate exercise of state power.
1. The Due Process Clause does not bar enforcement of the State's use tax against Quill. This Court's due process jurisprudence has evolved substantially since Bellas Hess, abandoning formalistic tests focused on a defendant's presence within a State in favor of a more flexible inquiry into whether a defendant's contacts with the forum made it reasonable, in the context of the federal system of government, to require it to defend the suit in that State. See, Shaffer v. Heitner, 433 U.S. 186, 212. Thus, to the extent that this Court's decisions have indicated that the clause requires a physical presence in a State, they are overruled. In this case, Quill has purposefully directed its activities at North Dakota residents, the magnitude of those contacts are more than sufficient for due process purposes, and the tax is related to the benefits Quill receives from access to the State. Pp. 305-308.
2. The State's enforcement of the use tax against Quill places an unconstitutional burden on interstate commerce. Pp. 309-319.
(a) Bellas Hess was not rendered obsolete by this Court's subsequent decision in Complete Auto, supra, which set forth the four-part test that continues to govern the validity of state taxes under the Commerce Clause. Although Complete Auto renounced an analytical approach that looked to a statute's formal language, rather than its practical effect, in determining a state tax statute's validity, the Bellas Hess decision did not rely on such formalism. Nor is Bellas Hess inconsistent with Complete Auto. It concerns the first part of the Complete Auto, test and stands for the proposition that a vendor whose only contacts with the taxing State are by mail or common carrier lacks the "substantial nexus" required by the Commerce Clause. Pp. 309-312.
(b) Contrary to the State's argument, a mail-order house may have the "minimum contacts" with a taxing State as required by the Due Process Clause, and yet lack the "substantial nexus" with the State required by the Commerce Clause. These requirements are not identical, and are animated by different constitutional concerns and policies. Due process concerns the fundamental fairness of governmental activity, and the touchstone of due process nexus analysis is often identified as "notice" or "fair warning." In contrast, the Commerce Clause and its nexus requirement are informed by structural concerns about the effects of state regulation on the national economy. P. 312-313.
(c) The evolution of this Court's Commerce Clause jurisprudence does not indicate repudiation of the Bellas Hess rule. While cases subsequent to Bellas Hess and [112 S.Ct. 1907] concerning other types of taxes have not adopted a bright-1ine, physical presence requirement similar to that in Bellas Hess, see, e.g., Standard Pressed Steel Co. v. Department of Revenue of Wash., 419 U.S. 560, their reasoning does not compel rejection of the Bellas Hess rule regarding sales and use taxes. To the contrary, the continuing value of a bright-1ine rule in this area and the doctrine and principles of stare decisis indicate that the rule remains good law. Pp. 314-318.
(d) The underlying issue here is one that Congress may be better qualified to resolve, and one that it has the ultimate power to resolve. P. 318-319.
470 N.W.2d 203 (N.D.1991), reversed and remanded.
STEVENS, J., delivered the opinion for a unanimous Court with respect to Parts I, II, and III, and the opinion of the Court with respect to Part IV, in which REHNQUIST, C.J., and BLACKMUN, O'CONNOR, and SOUTER, JJ., joined. SCALIA, J., filed an opinion concurring in part and concurring in the judgment, in which KENNEDY and THOMAS, JJ., joined, post, p. 319. WHITE, J., filed an opinion concurring in part and dissenting in part, post, p. 321.
This case, like National Bellas Hess, Inc. v. Department of Revenue of Ill., 386 U.S. 753 (1967), involves a State's attempt to require an out-of-state mail-order house that has neither outlets nor sales representatives in the State to collect and pay a use tax on goods purchased for use within the State. In Bellas Hess, we held that a similar Illinois statute violated the Due Process Clause of the Fourteenth Amendment and created an unconstitutional burden on interstate commerce. In particular, we ruled that a "seller whose only connection with customers in the State is by common carrier or the United States mail" lacked the requisite minimum contacts with the State. Id. at 758.
or overrule Bellas Hess. While we agree with much of the State Court's reasoning, we take the former course.
Quill is a Delaware corporation with offices and warehouses in Illinois,, California, and Georgia. None of its employees work or reside in North Dakota, and its ownership of tangible property in that State is either insignificant or nonexistent. Quill sells office equipment and supplies; it solicits business through catalogs and flyers, advertisements in national periodicals, and telephone calls. Its annual national sales exceed $200,000,000, of which almost $1,000,000 are made to about 3,000 customers in North Dakota. It is the sixth largest vendor of office supplies in the State. It delivers all of its merchandise to its North Dakota customers by mail or common carrier from out-of-state locations.
solicitation of a consumer market in th[e] state." § 57-40.2-01(6). State regulations in turn define "regular or systematic solicitation" to mean three or more advertisements within a 12-month period. N.D.Admin.Code § 81-04.1-01-03.1 (1988). Thus, since 1987, mail-order companies that engage in such solicitation have been subject to the tax even if they maintain no property or personnel in North Dakota.
The North Dakota Supreme Court reversed, concluding that "wholesale changes" in both the economy and the law made it inappropriate to follow Bellas Hess today. 470 N.W.2d at 213. The principal economic change noted by the court was the remarkable growth of the mail-order business "from a relatively inconsequential market niche" in 1967 to a "goliath" with annual sales that reached "the staggering figure of $183.3 billion in 1989." Id. at 208, 209. Moreover, the court observed, advances in computer technology greatly eased the burden of compliance with a "`welter of complicated obligations'" imposed by state and local taxing authorities. Id. at 215 (quoting Bellas Hess, 386 U.S. at 759-760).


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Before Judges Wefing, Wecker and Graves.
Zapcic, attorneys; Mr. Maybruch and Nicholas P.
attorneys; Mr. Edelstein, of counsel; Nuris E.
Portuondo and Danielle Disporto, on the brief).
(Ansell Zaro Grimm & Aaron, attorneys; Barry M.
and Amanda L. Schultz, on the brief).
These appeals involve related questions of law and fact and were calendared before us back-to-back. We consolidate them for purposes of this opinion. Asbury Park Board of Education ("Board") and H.D. Dunn Associates, Inc. ("Dunn") each filed a complaint in lieu of prerogative writs challenging ordinances adopted by the City of Asbury Park authorizing the acquisition, by eminent domain, of property owned by the Board and by Dunn. The trial court eventually granted summary judgment in favor of the City and Asbury Partners, LLC, the city's designated redeveloper, who intervened in the actions. The Board and Dunn appeal from those summary judgments. After reviewing the record in light of the contentions advanced on appeal, we affirm.
The ordinances at issue were passed pursuant to the City's amended waterfront redevelopment plan, approved by the City on June 5, 2002. Various aspects of that redevelopment plan were challenged by a number of affected parties in prior litigation and were upheld by the same trial court that handled these matters. This court recently upheld the validity of the plan in D & M Asbury Realty v. City of Asbury Park, Nos. A-3022-03, A-3239-03, A-3240-03 (App. Div. Jan. 24, 2006).
Within that opinion, we traced the history of the City and its various efforts at redevelopment. There is no need to restate that history here; we incorporate it by reference.
Both the Board and Dunn own property within the area slated for redevelopment. The Board's property is identified as Lots 4, 5, 6 and 8 in Block 118, located at 407 Lake Avenue. It is a one-story structure that the Board uses as its central administration headquarters. No classes are held there, and students do not use the building.
Dunn owns Lot 7 in Block 118, located at 104 Grand Avenue, a two-story commercial office building. Dunn uses the building to conduct its janitorial business.
Asbury Park's amended waterfront redevelopment plan divided the city into three areas for purposes of redevelopment: Wesley Lake Village, Ocean Avenue and North Shore. The subject properties are located in the area denominated Wesley Lake Village, the southeastern end of Asbury Park, adjoining the municipality of Ocean Grove. Also located within this section are the Palace Amusement Building and the Casino, buildings that played a significant role in Asbury Park's earlier years but which have fallen into substantial disrepair.
Block 118, upon which both properties are located, is bounded by Grand, Cookman, Summerfield and Lake Avenues. Because the two subject properties are in such close proximity to each other, Dunn concedes that the success of its challenge is dependent upon the success of the Board's; that is, if the Board does not succeed, Dunn cannot succeed either. Conversely, the Board concedes that if it cannot condemn the Board's property, neither can it take Dunn's.
Of the four lots owned by the Board, three are paved for parking. The Board's building is located on the remaining lot. It is a one-story masonry block building, constructed in approximately 1940 and containing nine thousand square feet. Dunn's building is a two-story masonry block building containing three thousand square feet.
The properties are located near the eastern terminus of Lake Avenue, which runs into Asbury Avenue. Asbury Avenue runs between the Atlantic Ocean and the Garden State Parkway. Because of its strategic location, the amended waterfront redevelopment plan characterizes Asbury Avenue as an "arrival street," the redevelopment of which is intended to create an impression of a historic, Victorian area. The plan states as the first design principle for this area the "[u]pgrad[ing of] the landscape, street furnishings, street trees and lighting along Asbury Avenue to make a grand entryway into the City . . . ."
In the Board's appeal, it raises a number of contentions, some of which have been foreclosed in light of the decision of the United States Supreme Court in Kelo v. City of New London, ___ U.S. ___, 125 S. Ct. 2655, 162 L. Ed. 2d 439 (2005), in which the Court upheld a municipality's exercise of the power of eminent domain for economic development and by our decision in D & M Asbury, supra, in which we upheld the City's amended waterfront redevelopment plan. The issues which remain before us are whether the City may, by eminent domain, take property owned by another public entity and devoted to a public use, whether the Board may be deemed an "alter ego" of the State and whether the Board's status as an Abbott district, Abbott v. Burke, 100 N.J. 269 (1985) (Abbott I), required joinder of the State Department of Education and, finally, whether the procedure utilized by the trial court unfairly prejudiced the Board. Dunn has raised these same issues in its brief on appeal.
We deal first with the plaintiffs' contention revolving around the prior public use doctrine, under which the power of eminent domain may not be exercised to take property devoted to an existing public use "unless the authority to do so has been expressly given by the Legislature or must necessarily be implied." Weehawken v. Erie R.R. Co., 20 N.J. 572, 579 (1956). The underlying rationale for the doctrine is the recognition that if one entity possessing the power of eminent domain could take the property of another such entity, the latter could act to take the property back by eminent domain. Ibid.
We are satisfied, for two reasons, that the prior public use doctrine is not an obstacle to the City's acquisition of these properties. First, Asbury Park adopted its amended waterfront redevelopment plan pursuant to the Local Redevelopment and Housing Law, N.J.S.A. 40A:12A-1 to -73. N.J.S.A. 40A:12A-8 authorizes a municipality carrying out a redevelopment plan to "[a]cquire, by condemnation, any land or building which is necessary for the redevelopment project, pursuant to the provisions of the 'Eminent Domain Act of 1971' . . . ." Significantly, the Eminent Domain Act specifically recognizes that public property devoted to a public use may be taken through eminent domain. N.J.S.A. 20:3-6.
The prior public use doctrine, moreover, is not self-executing; that is, a public entity is not entirely precluded from taking by eminent domain property held by another such entity. The power of eminent domain "encompasses even the taking of lands devoted to another public use, if the taker's use is necessary to accomplish a public purpose, and that purpose is paramount, either by express language of the statute or by necessary implication therefrom." Texas E. Transmission Corp. v. Wildlife Preserves, Inc., 48 N.J. 261, 267 (1966). See, Linda A. Sharp, Construction and Application of Rule Requiring Public Use for Which Property is Condemned to be "More Necessary" or "Higher Use" than Public Use to Which Property is Already Appropriated, 49 A.L.R. 5th 769 (1997).
The prior public use doctrine requires a principled analysis of the competing public interests served by permitting or precluding the exercise of the power of eminent domain. We concur entirely with the trial court that in the present situation, the greater public interest is served by permitting the City to proceed with its exercise of eminent domain against these two properties.
Several factors support this conclusion. Only administrative functions are performed at the Board's offices on Lake Avenue; no actual instruction is conducted there. And while we recognize that relocation to another office will inevitably involve some disruption, that assertion could be made by any party whose property is taken through eminent domain. We are confident that sound planning can minimize such disruption significantly. The Lake Avenue location, moreover, is essential to the success of this redevelopment plan. If the Board, and by extension Dunn, were permitted to remain at their current sites, their buildings would be an incongruity among the new low-rise residential and retail use envisioned for the immediate surroundings. We noted earlier that we did not deem it necessary to restate in this opinion the history of Asbury Park's efforts at redevelopment. Those prior efforts have, for a variety of reasons, failed; we decline to place such a substantial obstacle in the City's current path, particularly when we cannot perceive a countervailing benefit.
We turn now to the plaintiffs' argument that reversal is required both because the Board constitutes an "alter ego" of the State and because Asbury Park is a "special needs" district under Abbott, supra. We are satisfied that reversal is not appropriate under either theory.
We agree with the trial court that the Board is not an alter ego of the State. Rather, a board of education is a local body corporate, N.J.S.A. 18A:10-1, and a separate political entity. Otchy v. City of Elizabeth Bd. of Educ., 325 N.J. Super. 98, 109 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000). Courts have consistently recognized that a local board of education is a local governmental unit. Botkin v. Mayor & Borough Council of Borough of Westwood, 52 N.J. Super. 416, 425 (App. Div. 1958); Kaveny v. Bd. of Comm'rs of the Town of Montclair, 69 N.J. Super. 94, 101 (Law Div. 1961). Further, the amount of funding the Board may receive from the State as an Abbott district, and the extent of the supervision to which it is subject in terms of its financial decisions, are, in our judgment, fundamentally immaterial to the legal question before us.
In connection with their assertion that the Board is an alter ego of the State, plaintiffs point to N.J.S.A. 40A:12-4(a), under which property owned by the State or any of its agencies may not be acquired without its express consent. That statutory argument is misplaced, however. Not only is the Board not an agency of the State, the City is not acting under N.J.S.A. 40:12-1 to -38, the Local Lands and Buildings Law, but under N.J.S.A. 40A:12A-1 to -73, the Local Redevelopment and Housing Law, which does not contain a comparable provision.
Plaintiffs' remaining position is that the procedures adopted by the trial court were fundamentally unfair to them. The trial court held a telephone conference with counsel and set forth the parameters of the parties' cross-motions for summary judgment. According to the transcript of that telephone conference, the trial court and counsel agreed that the trial court would initially decide the legal question whether the City had the authority to condemn this property, and only if the trial court answered that question in the affirmative, would the parties proceed to discovery on the proper balancing of the competing interests. After receipt of the parties' briefs and oral argument, however, the trial court proceeded to decide both aspects, without any further notice to the plaintiffs.
While the procedure utilized by the trial court in this instance is facially troubling, we are satisfied that it does not provide a basis for further proceedings. We questioned counsel closely at oral argument as to what facts they would seek to establish through discovery that might have led to a different result. Having reviewed the record in this matter, we are satisfied that the essentials of that information were, in fact, before the trial court. Just as the plaintiffs in D & M Asbury, these plaintiffs "have not provided any particulars as to how additional discovery will demonstrate why the City's decision to include properties was arbitrary . . . ." D & M Asbury, supra (slip op. at 48).
We are also cognizant, moreover, that the trial court that handled these matters was intimately familiar with the background, the scope and the details of the amended waterfront redevelopment plan. It is the nature of the plan itself, with its focus on block-by-block redevelopment, that mandates inclusion of these two parcels.
The order under review is affirmed.

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Pending before the court is Defendant Kevin Harden's ("Harden") Motion for Pretrial Release (#344) and Motion for District Court to Review the Magistrate Judge's Detention Order (#345) and the United States' response to these motions and other motions (#346). After reviewing the motions and the response, reading the transcript of the detention hearing held on August 29, 2011, the transcript of the Motion to Reopen Detention Hearing held on November 29, 2011, and the transcript of the Motion Hearing for Psychiatric Examination and to Proceed Pro Se held on June 5, 2012, examining Magistrate Judge Don Bush's Order of Detention dated August 31, 2011, and considering the matter de novo pursuant to 18 U.S.C. § 3145, the court is of the opinion that the order of detention should be AFFIRMED and Harden's motions should be DENIED.
Harden is charged by indictment with conspiracy to possess with intent to distribute 1000 kilograms or more of marijuana in violation of 21 U.S.C. § 846. The conspiracy is alleged to span the period from June 2006 until June 2011. If Harden is convicted of this offense, he could be imprisoned from 10 years to life, fined up to $10,000,000, and placed on supervised release for at least 5 years. Having found that there is probable cause to believe that Harden has committed an offense for which the maximum sentence is life imprisonment and a penalty of 10 years or more is prescribed in the Controlled Substances Act, 21 U.S.C. § 801 et seq., a rebuttable presumption exists that he is a flight risk and a danger to the community. See 18 U.S.C. § 3142(e).
The testimony and other evidence adduced at the hearings establish by a preponderance of the evidence that Harden poses a flight risk and by clear and convincing evidence that he constitutes a danger to the community. Agent Chris Ernest ("Ernest") of the Criminal Investigations Division of the Texas Department of Public Safety testified at the detention hearing that Harden operated a stash house in Indiana on behalf of the Eric Pieper ("Pieper") drug trafficking organization. According to Ernest, Harden would deliver and pick up large quantities of marijuana and deliver cash proceeds from the drug trafficking activities to coconspirators. Ernest detailed deliveries of $75,000 in currency in November/December 2010 and $90,000 in January 2011. The latter delivery was made to an individual identified as Dale Zigler ("Zigler") at a Ruth's Chris Steak House in Indiana. Harden was subsequently involved in engaging in intimidating activity directed at Zigler where he acted as the go-between in facilitating telephone calls from Pieper to Zigler, who was no longer taking calls directly from Pieper after the investigation began. Ernest further testified that Harden engaged in elusive behavior after he became aware that law enforcement officials were trying to contact him.
Harden's criminal history dates back to January 1990 in Detroit, Michigan, when he was adjudicated as a juvenile for fleeing from a police officer and driving without a license. Later in 1990, he was arrested for possession of a stolen vehicle, but the disposition of that charge is unknown. In 1992, Harden was convicted of attempting to receive stolen property and was placed on probation for 3 years. In 1993, he was convicted of committing an unarmed robbery and was sentenced to serve a jail term of 1 year 6 months to 15 years. Also in 1993, he was convicted of carrying a concealed weapon for which he was sentenced to 3 to 5 years in jail and of being a habitual offender for which he was sentenced to 4 to 5 years in jail. In 1994, Harden was convicted once again of unarmed robbery in Detroit and was sentenced to 5 to 15 years in jail. In 2002, he was convicted in Kentucky of aggravated assault and was sentenced to 12 months in jail.
The Pretrial Service Report indicates that Harden, age 38, resided in Avon, Indiana, at the time of his arrest. According to the evidence presented at the detention hearing, he lived there with his wife and children, although his wife was hospitalized at the time of the hearing and his children were residing with their grandmother in Detroit. As highlighted at the detention hearing, Harden's home environment is far from stable, as his wife reportedly has stabbed him, poured gasoline on him, and beat him with a shower rod, leading him to obtain a protective order against her. He proffered no suitable, alternative third-party custodians. In 2007, Harden had heart surgery as well as a follow-up procedure, and, according to Harden, he continues to suffer from heart problems and associated pain. Nevertheless, he appears to be receiving adequate medical care at the Fannin County Detention Center. According to the nurse at the facility, Harden has been prescribed medication but has repeatedly refused to take it. The doctor at the facility noted on his chart that Harden is addicted to Lortab, which the physicians have declined to prescribe, and commented that whatever pain he has is not related to a cardiac problem. Although Harden is once again attempting to rely on his history of heart problems to obtain pretrial release, this court, as did Magistrate Judge Bush and Magistrate Judge Amos Mazzant, finds his arguments unavailing. Indeed, he advised Judge Mazzant that he has no medical or physical condition that would affect his ability to represent himself and that any pain he experiences will not affect his ability to function as his own lawyer in the case. Therefore, Judge Mazzant has acquiesced to Harden's repeated entreaties to proceed pro se and to represent himself, a task he has undertaken with gusto by filing myriad motions.
In view of the nature and circumstances of the offense charged, the strength of the evidence, the large quantities of drugs and currency involved, his criminal history, his unknown employment, educational, mental health, substance abuse, and financial background, his unstable domestic situation, his lack of ties to this community, and the substantial penalties he is facing if convicted, Harden's pretrial release is not warranted. Harden has not rebutted the presumption that he poses a risk of flight and a danger to the community. See United States v. Rueben, 974 F.2d 580, 586-87 (5th Cir. 1992), cert. denied, 507 U.S. 940 (1993); United States v. Hare, 873 F.3d 796, 798-99 (5th Cir. 1989).
Accordingly, in conformity with the order of detention dated August 31, 2011, Harden shall remain in custody pending trial.


2.70.020 Appointment and term of chief.
2.70.030 Appointment and terms of assistant chief, other officers and privates.
2.70.040 Appointment of emergency firemen.
2.70.050 Police powers of officers and members at time of fire.
2.70.060 Driving vehicle where department is assembled to fight fire.
2.70.070 Obedience to officer in command at fire.
The fire department of the city shall consist of a chief, assistant chief and such other officers and privates as the council may, on recommendation of the city manager, deem necessary for proper fire prevention and protection of property in the city. (Code 1964, § 12-13; Code 1985, § 13-12; Ord. 8-8-00).
Cross reference – Fire department designated as part of city’s official safety program, SCC 2.05.040.
The city manager shall appoint, subject to approval of the council, a chief of the fire department, whose term of office shall be at the pleasure of the city manager. (Code 1964, § 12-14; Code 1985, § 13-13; Ord. 8-8-00).
The city manager shall appoint, subject to approval by the council, an assistant chief and such officers and privates as the efficiency of the department requires and the appropriation for the department justifies. Their terms of office shall be at the pleasure of the city manager. (Code 1964, § 12-15; Code 1985, § 13-14; Ord. 8-8-00).
In times of emergency, the chief of the fire department may appoint such additional number of firemen as may seem necessary, report of which shall be made to the city manager. (Code 1964, § 12-16; Code 1985, § 13-15; Ord. 8-8-00).
The officers and members of the fire department are hereby granted, during the time of a fire, the powers and functions of policemen and in such capacity may do all things necessary for the public safety. (Code 1964, § 12-18; Code 1985, § 13-16; Ord. 8-8-00).
Cross reference – Authority of fire department officers to direct traffic at scene of fire, SCC 10.05.070.
(1) It shall be unlawful, without the authority of the officer in command, for any person to drive a vehicle through the streets in which the fire department is assembled for the purpose of extinguishing a fire.
(2) A violation of this section shall constitute a traffic infraction punishable by a fine of not more than $100.00. (Code 1964, § 12-19; Code 1985, § 13-17; Ord. 8-8-00).
If any person at a fire shall refuse or neglect to obey any order duly given by the fire department officer in command, he shall be guilty of a Class 3 misdemeanor. (Code 1964, § 12-20; Code 1985, § 13-18; Ord. 8-8-00).


Harper, Lavine and Alvord, Js.
The plaintiff sought to recover damages for breach of a lease agreement from the defendant, which pleaded by way of a special defense that the plaintiff brought the action without the proper authority of the plaintiff’s members and, therefore, lacked standing to maintain the action. Thereafter, the defendant’s attorney withdrew his appearance and, at a subsequent scheduled trial date, L, one of the defendant’s managing members, sought a continuance to find a new attorney and again directed the court’s attention to the standing issue. The trial court determined that because L arrived without counsel and was unable to represent the defendant as a self-represented party, the defendant, in essence, had failed to appear. After the defendant was defaulted for failure to appear, a hearing in damages was held, after which the trial court rendered judgment for the plaintiff. Subsequently, the trial court denied the defendant’s motion to open the default judgment and to reargue, and the defendant appealed to this court Held that the trial court improperly denied the defendant’s motion to open the default judgment: once the issue of subject matter jurisdiction is raised, a trial court is bound to address it, and the trial court here failed to acknowledge the jurisdictional issue despite the fact that the court had been apprised of the issue multiple times during the pendency of the matter in that it was pleaded in the defendant’s special defenses, brought to the court’s attention in the defendant’s pretrial memorandum, and then argued once more before the court that the defendant had defenses that needed to be heard; accordingly, the case was remanded for further proceedings on the motion to open the default judgment so that the trial court could properly determine whether it had subject matter jurisdiction.
appear; subsequently, the court, Moore, J., after a hearing in damages, rendered judgment for the plaintiff; thereafter, the court denied the defendant’s motion to open the judgment and to reargue, and the defendant appealed to this court. Reversed; further proceedings.
David R. Gronbach, for the appellant (defendant).
Andrew M. McPherson, with whom, on the brief, wa William J. Kupinse, Jr., for the appellee (plaintiff).
The defendant, One Solution Services, LLC, appeals from the trial court’s January 22, 2010 judgment denying its motion to open the default judgment rendered against the defendant, claiming, inter alia, that the court improperly failed to address standing and to determine if it had subject matter jurisdiction. Although we generally defer to the trial court’s discretion in matters of docket management and judicial economy, the unique procedural circumstances and jurisdictional issue presented in this case compel otherwise. Accordingly, we reverse the judgment of the trial court denying the motion to open the judgment and remand the case for further proceedings.
The relevant facts and procedural history are as follows. Barbara Levine and Steven Levine were the original owners of the plaintiff, 418 Meadow Street Associates, LLC, until Levine sold his 50 percent interest to Michael Weinshel and Mark Wynnick, making them joint owners with Barbara Levine. Thus, Weinshel and Wynnick collectively own 50 percent of the company and Barbara Levine owns the remaining 50 percent.
agreement. The defendant pleaded by way of a special defense that the plaintiff brought the action without the proper authority of the plaintiff’s members, and, therefore, it lacked standing to maintain the action. The plaintiff generally denied all of the special defenses without responding directly to the issue of standing.
Both parties filed pretrial memoranda during September, 2009. Therein, the defendant, once more, claimed that the plaintiff lacked standing to maintain this action. See footnote 1 of this opinion. The plaintiff, again, did not respond to the standing issue but argued breach of the lease agreement.
On November 3, 2009, the defendant’s attorney moved to withdraw his appearance citing a breakdown in communications, unreasonable financial burden and professional considerations. Pursuant to Practice Book §3-10, he notified the defendant of his motion to withdraw his appearance. Service of the motion was made on the defendant on November 14, 2009. Permission to withdraw was granted by the court on November 18, 2009.
members.” He explained that he had attempted diligently to find a new attorney to no avail and requested a two week continuance to retain counsel. Steven Levine directed the court’s attention to the standing defense, stating, “Judge, there’s standing issues on this” and “[b]ut there are standing issues. . . .” The plaintiff did not object to Steven Levine addressing the court. The court indicated that the “bottom line” was that Steven Levine arrived without counsel, he was unable to represent the defendant as a self-represented party and thus, in essence, the defendant had failed to appear. The court, therefore, rendered a default judgment against the defendant and held a hearing in damages, with only the plaintiff present, that afternoon. On December 16, 2009, the court awarded the plaintiff total damages in the amount of $66,508.40.
not file an objection to that motion. The hearing on the motion was scheduled for January 22, 2010. At the commencement of the hearing, the court refused to consider the motion to reargue because the defendant had failed to appear when it had notice that the matter was set for a firm trial date. The court allowed argument on the motion to open. Specifically, the defendant’s new counsel claimed that there were defenses pending that the court should consider.
After argument, the court denied the motion to open the default judgment, referring to the abundance of litigation between the parties. It declined to open the judgment because, inter alia, (1) the parties already had been granted previous scheduling flexibility, (2) the court had “no choice” but to render a default judgment when the defendant arrived at trial without counsel, (3) the court clearly had told the defendant’s original counsel, upon granting the motion to withdraw, that he was to communicate that the trial would not be continued and (4) the defendant had called his new counsel “barely the night before” and, therefore, “just really waited too long.” This appeal followed.
issue of subject matter jurisdiction at any time. . . . Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it. . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction. . . . The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings, including on appeal.” (Internal quotation marks omitted.) Ajadi v. Commissioner of Correction, 280 Conn. 514, 532-33, 911 A.2d 712 (2006).
“Once the question of lack of jurisdiction of a court is raised, it must be disposed of no matter in what form it is presented. . . . Whenever a court finds that it has no jurisdiction, it must dismiss the case, without regard to previous rulings. . . . In determining whether a court lacks subject matter jurisdiction, the inquiry usually does not extend to the merits of the case. . . . Nevertheless, the court must determine whether it has the power to hear the general class [of cases] to which the proceedings in question belong. . . . Because the elements of subject matter jurisdiction are dependent upon both law and fact . . . in some cases it may be necessary to examine the facts of the case to determine if it is within a general class the court has power to hear. . . . Further, [w]hen issues of fact are necessary to the determination of a court’s jurisdiction, due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses.” (Citations omitted; internal quotation marks omitted.) Equity One, Inc. v. Shivers, 125 Conn. App. 201, 204-205, 9 A.3d 379 (2010).
rightfully invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy.” (Internal quotation marks omitted.) Id., 205. When the defendant raised standing, the burden rested with “the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute.” (Internal quotation marks omitted.) Assn. Resources, Inc. v. Wall, 298 Conn. 145, 164, 2 A.3d 873 (2010).
In the present case, the court had been apprised of a subject matter jurisdiction issue multiple times during the pendency of the matter. Prior to the hearing on the motion to open, the defendant brought the standing defense to the attention of the court by (1) pleading it as a special defense and (2) claiming it as an issue in its pretrial memorandum. Then, at the argument on the motion to open the default judgment, the defendant’s counsel again noted that there was a compelling reason to open the matter because there were “defenses that should be heard . . . that were not heard.” Instead of addressing the issue of subject matter jurisdiction, the court’s reasoning for its denial of the motion to open rested primarily on its previous scheduling flexibility and its conclusion that the defendant did not secure new counsel in a timely fashion. The court did not acknowledge the fact that an issue of subject matter jurisdiction had been raised.
to acknowledge the jurisdictional issue despite the fact that it was pleaded in the defendant’s special defenses, brought to the court’s attention in the defendant’s pre-trial memoranda and then argued once more before the court that the defendant had defenses that needed to be heard. Standing in this case hinges on a determination regarding Weinshel’s and Wynnick’s authority to bring an action on behalf of the plaintiff. Accordingly, we remand the case for further proceedings on the motion to open the default judgment so that the trial court can properly determine whether it has subject matter jurisdiction. Because of our disposition of this claim of error, we need not address the defendant’s other claims.
The denial of the defendant’s motion to open the default judgment is reversed and the case is remanded for further proceedings on that motion.
 The defendant’s standing defense rests on the fact that Weinshel and Wynnick were not given permission to bring the action from co-owner Barbara Levine, and, in fact, she expressly disapproved of the legal action. The plaintiff’s operating agreement, and our statutes, both require that any action taken on behalf of the plaintiff as a limited liability company must be supported by a vote of the majority in interest of its members. See General Statutes § 34-187 (a).
General Statutes § 34-187 (b), however, introduces an exception to that rule, providing that a member may be excluded from the vote if that member “has an interest in the outcome of the suit that is adverse to the interest of the limited liability company. . . .” Weinshel and Wynnick filed a general denial to the special defenses but never directly pleaded this statutory exception.
 Specifically, Steven Levine stated that (1) he spoke to Attorney James Welcome immediately upon the court’s granting of his original counsel’s motion to withdraw; (2) during the two weeks between the granting of the motion to withdraw and the trial date, Steven Levine attempted to facilitate an exchange of his file between his original counsel and Welcome; (3) it was not until December 1, 2009, the day before the trial, that Welcome rejected the defendant’s case; and (4) upon suffering rejection, the defendant immediately contacted Moynahan Minnella, LLC, in an attempt to secure representation.
 “The authorization to appear [self-represented] is limited to representing one’s own cause, and does not permit individuals to appear [self-represented] in a representative capacity.” Expressway Associates II v. Friendly Ice Cream Corp. of Connecticut, 34 Conn. App. 543, 546, 642 A.2d 62, cert. denied, 230 Conn. 915, 645 A.2d 1018 (1994).
 The defendant did not appeal from the underlying default judgment.
Practice Book § 1743 (a) employs similar language to § 52-212 (a), and they are applied interchangeably on appeal. See, e.g., Priest v. Edmonds, 295 Conn. 132, 137, 989 A.2d 588 (2010); Langewisch v. New England Residential Services, Inc., 113 Conn. App. 290, 294, 966 A.2d 318 (2009).
 Generally, a motion to dismiss is the proper way to challenge the court’s subject matter jurisdiction. See Practice Book § 10-31.


Of course, no association is perfect. But, if problems arise, state HOA laws provide important legal protections for homeowners. And the democratic character of community associations ensures that every member gets the opportunity to have a say as long as he or she takes the time to participate.
Where do HOA’s Get their Authority?
An HOA or condo association derives its power from its governing documents, including a declaration and bylaws recorded in the county land records, and from state statutes authorizing community associations. In Ohio, homeowners and condominium associations are authorized by the Ohio Planned Community Law and Condominium Law, enacted as Chapters 5312 and 5311 of the Ohio Code, respectively. The two statutes are similar in their overall framework, though the condo statute goes into greater detail as to association powers and restrictions. Ohio HOA’s are afforded considerable flexibility, but if there is ever a conflict between an HOA’s declaration or bylaws and state law, the statute takes precedence.
What Does an HOA Do?
A homeowners association’s primary functions are to maintain common areas within the community and enforce restrictions and covenants. Common areas (or “common elements” in the statute) are the property within a development that is collectively owned by all homeowners through the association. Common elements might include private roads, a community pool, playground, or other recreational facilities, or - in the case of a condo association - the portions of the building that are not part of any particular owner’s unit, like the roof, elevator, or lobby. Keeping common elements in good repair and safe condition is in the interest of all homeowners and is one of every association’s most vital jobs.
HOA’s are also responsible for enforcing community covenants and restrictions - the shared rules all members of the community must abide by. Covenants and restrictions (sometimes just called “covenants”) are designed to maintain high property values by preserving a development’s aesthetic appeal and promoting a generally pleasant atmosphere and good quality of life for members. For example, an association might prohibit members from making excessive noise, thereby protecting neighbors from potential nuisances. If an owner violates a covenant, an association usually provides a warning notice and, if the problem persists, can file a lawsuit against the owner seeking compliance through a court order.
When an HOA acts, including filing or defending against a lawsuit, it acts through its board of directors and officers. Ohio’s HOA law requires election of board-members by homeowners under terms established in the declaration. O.R.C. §5312.02(B). In turn, the board appoints officers (e.g., president, treasurer, etc.) from among the elected board-members. O.R.C. §5312.04(A). Along with establishing the election process, the declaration and bylaws set forth the number of board-members, how long they serve, and the board’s general powers and duties. Board-members and officers are usually volunteers, though compensation can be provided if permitted by the declaration and approved by the board.
Things to Consider When Purchasing a Home in an HOA Community.
Before purchasing a home that’s part of a homeowners association, you should research the community’s covenants and assessments, both of which will be set forth in the declaration and bylaws. The HOA’s board or the seller can usually provide copies, or the documents can be viewed in the county land records, which are often available online. Remember, when you accept the deed to a property, you are agreeing to be bound by any covenants that come with it. So, make sure you know what you’re getting into.
The restrictiveness of covenants varies considerably between communities, depending in large part on the nature of the community and where it is located. A laissez-faire rural development with large lot sizes, for example, might be fairly permissive - not requiring much more than that you keep your lawn mowed and remove any eyesores like visible trash or debris from the property. On the other hand, a suburban community with more closely situated homes might restrict everything from the color you can paint your house, to the size and breed of dogs you can keep, to the type of garden you can have (if any). Covenants are mandatory and strictly enforced by most associations, so be certain the community’s standards are compatible with your lifestyle before buying a home.
It’s worth noting that, while Ohio law expressly requires homeowners to abide by applicable covenants, certain restrictions are prohibited. Condo associations, for instance, cannot prevent their members from displaying the American flag. O.R.C. §5311.191. Likewise, any covenant that violates the federal Fair Housing Act or Civil Rights Act is unenforceable and void.
Assessments are the fees each member contributes toward an association’s common expenses, providing the necessary funding for the “administration, governance, and maintenance” of the association. O.R.C. §5312.10(A)(1). Like covenants, assessments vary substantially between communities. A smaller association with few common elements might charge as little as $100 per year, while assessments in a large association with elaborate recreational facilities might be as much as a few thousand.
As with covenants, you’ll want to be sure you’re comfortable with the annual assessments before acquiring a home in an HOA. Because an owner’s failure or refusal to pay assessments impedes an HOA’s ability to function and burdens other owners, the board is granted strong enforcement powers. Under Ohio law, boards have the authority to suspend voting rights and common facility privileges of delinquent owners. O.R.C. §5312.06(D)(15). An association can also record a lien against a non-paying owner’s property and foreclose on the property to satisfy the lien in the same manner that a bank forecloses on a delinquent mortgage. O.R.C. §5312.12. If an association is required to file a civil lawsuit to collect assessments or to otherwise enforce community covenants and restrictions, it can recover its attorney’s fees and other costs of enforcement from the member. O.R.C. §5312.11.
In most cases, good communication and the democratic process are sufficient to resolve problems with a community association. Attendance at member meetings, voting, and simply speaking with board-members often goes a long way toward resolving disputes that might otherwise seem implacable.
Ohio law requires HOA’s to hold owner meetings at least once per year, and special meetings can be called by the president, the board, or a majority of owners. Members can voice concerns over how the board is enforcing association rules or performing obligations, and the board and homeowners can work cooperatively toward solutions. Overzealous board-members or officers can be removed democratically. When necessary, members can amend the declaration by 75% vote.
Concerned members can also exercise their record-inspection rights. An HOA board must keep records and receipts of all expenditures, and members can examine all association records other than a few privileged items. O.R.C. §5312.07. If problems are identified, the member should raise the issues at a member meeting or directly with the board.
When cooperative resolutions aren’t possible, both members and associations are authorized to seek redress in the civil court system. The Court of Common Pleas of the county in which the development is located has jurisdiction over HOA disputes, or, if the amount in controversy is less than $6,000, the case can be filed in small claims court.
Is Your HOA Following the Law with its Enforcement Measures?