GOV. CORZINE’ S SCHOOL FUNDING FORMULA: THOROUGH AND EFFICIENT OR JUNK SCIENCE

The Governor is rushing the New Jersey Legislature to approve his School Funding Formula legislation by January 7, 2008. New legislation is required by the ongoing mandate of the New Jersey Supreme Court to provide all students a thorough and efficient education. Unfortunately, no one, including the Governor Corzine, seems either willing or able to provide a working understanding of what constitutes a thorough and efficient education. A review of the attributes of a reasonable formulation of any problem are absent from the legislation presented by Governor Corzine. Rather, the legislation appears to substitute junk science for scientific inquiry. Indeed, the Legislation may effectively fund education in a totally arbitrary and unconstrained manner.

(1) The Mandate for a Thorough and Efficient Education.

The New Jersey Constitution specifically requires “The Legislature shall provide for the maintenance and support of a thorough and efficient system of free public schools for the instruction of all children in the State between the ages of five and eighteen years.” NJ Constitution, Art. 8, § 4, par. 1. It also provides “All persons are by nature free and independent, and have certain and natural inalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property, and of pursuing and obtaining safety and happiness. NJ Constitution, Art. 1, par 1. (The New Jersey Supreme Court has held the guarantee of “equal protection” is implied in this paragraph and that said guarantee is more flexible than the Federal clause. The New Jersey Constitution, William, Robert F, pg. 29.

According to the New Jersey Supreme Court, equal protection as applied to a thorough and efficient education, at first and at least, means spending the same amount of money, based on an unspecified unit(s) of measurement, in the poorer districts as is spent in the wealthier districts. Robinson v. Cahill, 118 N.J. Super 223 (1972); Robinson v. Cahill, 60 NJ 473 (1973)( Also, see a. Fact Sheet, b. History of Abbott, c. Abbott Archives, & d. Abbott v Burke decisions). This mandate has been expanded to effectively incorporate the concept of a “meaningful opportunity” to obtain an education. Students in certain communities, such as those less well off, are not as well prepared or situated, to receive an education. For the opportunity to a thorough and efficient education to be meaningful, the State must address the special risks that distract or impair the learning process. Said differently, the State must create conditions that enable at-risk students to participate in schooling and engage in learning at a similar level to not-at-risk students. Therefore, to provide at-risk students with a reasonably level learning environment, the State education system must provide the additional funds necessary to remedy or overcome such risks.

It is within this context that Governor Corzine’s School Funding Formula purports to comply with the Court’s demand for equal protection. The pending legislation claims that funds are disbursed according to the measured needs of the individual student. If so, Corzine’s School Funding Formula is in accord with the demand for equal protection because it funds the creation of a level education playing field for all New Jersey students on an individual basis. School Funding Reform Act, § 2, par. d.

(2) The Elements of a Thorough and Efficient Education.

It seems obvious from the case law and its rulings that no one has a clue as to what thorough and efficient means or what elements compose a thorough and efficient education.

Governor Corzine’s proposed school funding formula legislation refers to this anomaly with the declaration “Although the Supreme Court of New Jersey has held the prior statutes did not establish a system of public education that was thorough and efficient as to certain districts, the Court has consistently held that the Legislature has the responsibility to substantively define to define what constitutes a thorough and efficient system of education responsive to that constitutional requirement. School Funding Reform Act, § 2, par. c.

Of equal irony, however, is the inability, unwillingness, or both, of Corzine’s school funding formula to set forth a reasonable, precise, working definition of thorough and efficient education. Aside from the New Jersey Supreme Court’s normalized spending requirement, Governor Corzine’s legislation fails to provide a quantified definition of “thorough and efficient education” and fails to identify its components. It is incomprehensible and appears outrageous that, 35 years after the Cahill ruling, that Governor Corzine has presented a 106 page proposal, that while chuck full of equations, is totally lacking in both the scientific and supportive empirical detail necessary to make a reasoned assessment of their reliability. Indeed, it seems the best the Governor is able to do is mimic the Court by memorializing the aspiration the legislation will “provide resources in a school funding formula that optimizes the likelihood that children that children will receive an education that will make them productive members of society.” School Funding Reform Act, § 2, par. b.

(3) The Attributes of a Reasonable Formula

To people with Governor Corzine’s background the word “optimize” has a very specific and rigorous meaning since during his tenure Goldman Sachs became a premier service provider to pension funds. The service provided was the ability to structure a pension fund to meet the funds future annual payout schedule by (1) choosing from a variety of permissible investment vehicles, (2) the investment vehicles and their respective amounts that require the smallest possible dollar outlay while (3) simultaneously getting the maximize return on each dollar invested, (4) in a manner consistent with the pension funds regulatory and actuarial constraints.

Let’s be more specific. First, a formula is a recipe for making something
and a recipe is a set of instructions about how to make something. Said differently, a formula and a recipe is an input-output model.

An education input-output model seems generally similar to a portfolio model. Like any other input-output model the product is the result of the accurate identification and combination of inputs allowed by current social, fiscal and legal constraints. So too, there must, to at least a reasonable degree of scientific certainty, be an identification of what constitutes a thorough and efficient education and which variables, that is the programs, proximate cause is most likely to produce it.

Once the inputs and output are known, modeling allocates money by minimizing the cost to buy the best combination of scientifically determined inputs in amounts and under conditions that enable every student to produce their own maximum proficiency in grade appropriate levels of reading, writing, and mathematical skills.

Assume there is an output variable that is the norm or normative range of the five year olds ability to verbalize. Other variables, input variables, must be identified that give proximate cause as to how and why said norm is and is not achieved by a child. Hence if the proximate cause of a five year old’s ability to verbalize is determined by interacting with adults but the child’s parents are working twelve hours a day, six days a week, for a minimum wage, in order to make ends meet, it is prudent to examine what can be done to compensate for the loss of parent time.

Suppose it is found that breakfast, story hour, child story telling, group play involving adult participation, and a rest period each produce, with varying degrees of success and tolerances, a verbal ability similar to that obtained from parent interaction. Maybe it’s also found a rest period is necessary for health, groups should be no larger than 10 children per adult, and the skill level and impact of the adults in different groups are directly and / or inversely related to cost. Further assume the same procedure is repeated for any variable, be it math, reading, or writing based. Once each education objective is reasonably decided upon and once the set of scientifically possible solutions, tolerances and constraints are reasonably known, they can be modeled to optimize a child’s meaningful learning opportunity at minimal cost.

(4) Governor Corzine’s School Funding Formula is Junk Science

There is no doubt that creating a school funding formula is an inherently more difficult task than portfolio management because it forces one to reduce the vagaries of human behavior into quantifiable variables. But our children deserve our best effort. Hence, it is no excuse for not doing so to the extent made possible by the current state of the science.

Yet, it is the apparent failure of the pending legislation to do so that makes the pending school funding formula seem to be nothing more than a substitution of junk science for science.

Scientific inquiry is founded on the general presumption that experts must identify the factual bases for their conclusion, explain the methodology, and show that both the methodology and conclusions are reliable. Atlantic Legal, pg 15, 2. Yet, the proposed Legislation and Department of Education (“DOE”) background is devoid of such content.

Scientific inquiry is based on the scientific method. Again, however, the proposed Legislation and DOE background is devoid of such content.

And, good science, like good due diligence, can withstand and needs critical review. Without the Appellate court ordered release of the three alternative school funding formulas, and a full opportunity for informed critical input, there can be no in thorough and efficient examination of the legislation. Accordingly, the impatient public’s view the approach is “Courtroom Alchemy” concocted by political “Confidence Men” can only be be reinforced.

Finally, even if the school funding formula is scientifically sound, it appears that in the end, it is irrelevant because, without good cause, it need not be followed. Ergo, the justification for a level of the funding and the standard of thorough and efficient education becomes arbitrary and useless.

According to the DOE: “Some districts may choose to spend funds differently – different programs, more or less personnel, higher or lower salaries – which are district decisions about how to best meet the standard {sic}.” The PJP Approach, pg.6.

Indeed, the DOE prominently alerts its readers that “It is critical to note, however, that panelists only identified a set of resources to be used in a series of hypothetical scenarios and did not specifically examine any existing school or district in the state. It is therefore not appropriate to suggest that any specific resources or programs identified by the panels should be applied to all New Jersey schools. … Instead the panel recommendations are perhaps best viewed simply in terms of identifying an overall level of funds which should be available to purchase personnel, resources, and programs as individual school or district leaders see fit.” Report on the Cost of Education, pg. i, pars. 4&5.

In the absence of the regular implementation of sound scientific and policy attributes all that is left is junk science.

MERRY CHRISTMAS: SANTA CORZINE TAXES OUR TOWNS

SANTA CORZINE TAXES OUR TOWNS
(Sung like Shirley Temple to the tune "Santa Clause is Coming to Town")

Oh! You better watch out,
You better not pry.
Better not speak out,
And never ask why.

Santa Corzine Taxes Our Towns.

Gov’s making a hit list,
Adler’s checking it twice,
But Milgram won’t say who’s naughty or nice.

Santa Corzine Taxes Our Towns.

He knows when you’ve been surfing,
He knows who’s on the take.
He knows when you’ve been IM’d,
So encrypt for goodness sake.

Oh! You better watch out,
You better not pry.
Better not speak out,
And never ask why.

Santa Corzine Taxes Our Towns.

Little tax relief,
Lotsa tax hikes.
No Money left for our little tykes.

Santa Corzine Taxes Our Towns.

Likes little toy dolls
That cuddle and coo,
But doesn’t get email from the union,
Yes, it’s true!

Santa Corzine Taxes Our Towns.

The kids in subprime bond land,
Will have a jubilee.
They’re gonna build some toll booths,
All around our Christmas trees.

So! You better watch out,
You better not pry.
Better not speak out,
And never ask why.

Santa Corzine is taxin’
Santa Corzine is taxin’
Santa Corzine is taxin’
Our Towns.

WILSON v CORZINE & KATZ: IS GOV. MENACING JUDICIAL INDEPENDENCE?

This post has three purposes concerning the Corzine-Katz emails. The first is to recognize that by all appearances the Judge has done his best governing the case. The second purpose is to recognize a unique confluence of events that, intentional or not, may open the door for an increasingly unpopular Governor to silently exert an inappropriate influence on the decision in Wilson v. Corzine & Katz. The third, and ultimate purpose, is to let Governor Corzine know we know what he knows and thus he should forget about it.


BACKGROUND

For Hamilton, Jefferson and Jay the ability of either the Executive or Legislative branch to exercise any power over judicial decision making is incompatible with a democratic republic: "`Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for THE JUDGE would then be THE LEGISLATOR. Were it joined to the executive power, THE JUDGE might behave with all the violence of AN OPPRESSOR.'" Federalist Papers, No. 47.


The founding fathers sought to protect the judiciary from both Executive and Legislative encroachment by memorializing what is likened to lifetime tenure and permanent compensation in Article III, Section 1 of the Constitution. They reasoned;


“The standard of good behavior for the continuance in office of the judicial magistracy is certainly one of the most valuable of the modern improvements in the practice of government. ... it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.” Federalist Papers, No.78. “NEXT to permanency in office, nothing can contribute more to the independence of the judges than a fixed provision for their support. The remark made in relation to the President is equally applicable here. In the general course of human nature, A POWER OVER A MAN’S SUBSISTENCE AMOUNTS TO A POWER OVER HIS WILL.” Federalist Papers, No. 79.


INFLUENCE


The issue of Executive influence takes two forms in Corzine – Katz. The first is somewhat subtle and indirect – The matter of another judicial pay increase is to be decided during the November lame duck session of the legislature. The second is direct and obvious – the Judge deciding Corzine- Katz does not have life tenure and is thus dependent on favorable near term action by the Governor to obtain it.


First, Corzine – Katz is being tried by a bench trial in the Mercer County Superior Court, Trenton, N.J. It also appears the Judge may live in the Mercer County. This is important because on September 25, 2007, ten days before the most recent hearing in Corzine-Katz, the article about judicial pay increases suddenly appears in the Trenton Times. Reporter Linda Stein writes that “Two months after getting their first pay raise in five years, Superior Court judges are seeking another increase, officials confirmed on Tuesday.” Stein goes on to write:


“Tammy Kendig, a spokeswoman for the state judiciary, said the administrative Office of the Courts will ask the legislature to consider another salary boost for the Judges in November after the election.” The next hearing date concerning the Corzine- Katz emails is scheduled for November 15, 2007.


Furthermore, since the first article, numerous news stories concerning a judicial pay raise are published. The following news report list is meant to be representative rather than inclusive. Moreover, it is not to suggest a press conspiracy. Rather, it is a statement that another pay increase is news and good news distribution includes frequency and reach.


“Shame on Judges for Salary Whining” - Asbury Park Press, 09/30/07

“Judges Don’t Need Another Pay Bump” – Courier Post, 09/30/07

“Chief Justice Says State Judges Deserve Another Raise” – Press of Atlantic City, 10/11/07

“Judges have No Case for Another Pay Raise” – Home News Tribune, 10/11/07

“N.J. Chief Justice Calls judges Underpaid” – Asbury Park Press, 10/12/07


Now, at first glance, the Governor’s power to determine whether or not the State’s judges get a pay raise may appear to make no difference in Corzine-Katz. Each and every New Jersey Superior Court Judge would face the same outside pressure as Judge Inness. Moreover, there is no plan to lower judicial pay. The purpose is more subtle. Objectively, both the timing and detail of these stories is to matter-of-factly catch the attention of all the Judges in general, and the attention of Judge Innes in particular. Peer pressure.


Accordingly, Judge Innes faces the carrot and the stick. He faces Governor Corzine’s informal power to push the legislature for or against a raise, as well as the Governor’s real power to approve or veto any lame duck November legislation that raises judicial pay.


Second, Judge Inness does not have life tenure (tenure during good behavior). The Judge was appointed for a seven year term in 2002. Governor Corzine was elected in 2006 and his term expires in 2010. Thus, Judge Inness must again be nominated by Governor Corzine and confirmed by the Senate in 2009 before his tenure can be permanent. The decision as to whether the Judge continues on the bench rests first and therefore solely, with whether Governor Corzine chooses to nominate him. If not, he will no longer be a judge.


It would therefore seem prudent to remember ;


The benefits of the integrity and moderation of the judiciary have already been felt in more States than one; and though they may have displeased those whose sinister expectations they may have disappointed, they must have commanded the esteem and applause of all the virtuous and disinterested. Considerate men, of every description, ought to prize whatever will tend to beget or fortify that temper in the courts: as no man can be sure that he may not be to-morrow the victim of a spirit of injustice, by which he may be a gainer to-day. And every man must now feel, that the inevitable tendency of such a spirit is to sap the foundations of public and private confidence, and to introduce in its stead universal distrust and distress. Federalist papers, No. 78.

Corzine Letters: Asset Monetization of Sex

My Dear Brother Jon,

Plutocrat Corzine, greetings! Your continuing excellent progress as New Jersey's Minister of Public Enlightenment appears to know no bounds. Only a master of the universe could monetize sex. The coronization of birth as death and death as life. A real Triumph of the Will!

Sex has long been seen as an asset subject to monetization. In fact, the monetization of sex, i.e. the exchange of sex for money is this world's oldest profession. So too abortion is a multibillion dollar business whose act only kills an innocent and irrevocably transforms the killer. The Wretched of the Earth (Letter V, p.7) But, Governor Corzine, your asking the people for "The Permission to Destroy Life Unworthy of Life", to dissect human embryos in return for money is breathtaking in its brilliance: New Jersey's contract with the Devil.

Well done.

It is of course axiomatic that "promising life to the dying, encouraging the belief that sickness excuses every indulgence ..." is the perfect distraction. People cannot be concerned with what they do when they are thinking about what will happen to them.

And the advertising thing, the $150,000 to promote passage of the stem cell and embryo bond contract? Genius, pure Genius. There’s nothing better than frequency and reach to enforce compliance. And, they may think you so generous for it!

But remember, stick with jargon not argument. Stay with words like "hope", "save lives", and "investment". And say stem cell, but never say embryo.

Don't argue because people might think for themselves. And, if you use facts, only use selective facts because facts lead people to think. For instance don't tell them the $450 million, which is really $720 million, in bonds are to be paid from general taxes you can't collect. They might think "if this deal is so good, why not use the project's revenues to pay off its debt?" Or, "this deal must be really risky because a general tax obligation bond is the only thing investors will buy." They might think about the State being bankrupt or how it could be used for schools, childcare or bridges and the like. And, don't talk about the actual amount of money made by the project because they might ask why Rutgers projections, p. 5, show the return to state coffers ( $19.7 million in state taxes) won't begin to cover the cost.

In short keep it "real", keep it fuzzy, but don't let people think about what you mean by "real" and never clarify fuzzy.

Your Affectionate Spirit,
Mephistopheles

POLLS: KATZ NOT BRAND, CORZINE – KATZ MADE PUBLIC

Farleigh Dickenson and Quinnipiac University have both released polling data which seem to contradict each other as to the impact of local Communication Workers of America (CWA) President Carla Katz's relationship with Governor Corzine. From September 18 – 23, Quinnipiac University surveyed 1,230 , pg.3, New Jersey voters with a margin of error of +/- 2.8 percentage points. Fairleigh Dickinson University's PublicMind poll of 701 likely voters statewide was conducted from September 17 through September 23 and has a margin of error of +/- 4 percentage points.

At first blush the polls may appear contradictory and therefore open to spin. Fairleigh reports that 428 (61 %) of the 701 surveyed have not heard of Carla Katz (pg.3) . Quinnipiac, however, finds that 677 (55 %) of the 1,230 surveyed (pg.12) think Corzine - Katz - Riccio should be a matter of public record. The implied contradiction is if people do not know recognize the name “Carla Katz” how can they think the Corzine -Katz emails should be released to the public? The apparent inconsistency is especially interesting because the July 22, 2007 Monmouth University - Gannett poll found "about half (49%) , pg.6, of the New Jersey public have heard reports about emails Corzine exchanged with Carla Katz, a former girlfriend who heads one of the CWA locals involved in the state contract negotiations this year.

Finally, none of the polls demonstrate the attributes of bias or disinformation associated with a “push poll”.

The answer seems to be context. Fairleigh asked participants’ , pgs. 1 - 3, were asked four similar questions in succession; (1) have you heard of Jon Corzine? (2) Have you heard of Frank Lautenberg? (3) Have you heard of Bob Menendez? And, (4) have you heard of Carla Katz?

The conclusion to be drawn from this progression is the independent brand name recognition for “Carla Katz” is somewhat low. Why independent? It’s called the Zeigarnik effect. Just as a restaurant waiter only remembers orders as long as the order is in the process of being served,
so survey participants only remember the question until it is answered. Therefore, survey respondents are associating the names as separate brands of politician and are not thinking about and in fact have forgot about Jon Corzine when they answered the Katz question.

Carla Katz’ low name, or brand, recognition, however, is not a plus for the Democrats since voters’ not familiar with her apart from Governor Corzine have yet to form, or more probably express, their opinion about the Corzine – Katz email matter.

This leads one to the Quinnipiac poll. First, its strucure is equivalent to the Monmouth University - Gannett poll , pg.6.

Quinnipiac question 51, pg.11, reads as follows:

“It was recently reported that Governor Corzine gave gifts totaling $15,000 to Rocco Riccio, the brother-in law of former girlfriend Carla Katz. How much have you heard or read about this issue - A lot, some, only a little, or nothing at all?”

Question 52 reads (pg.12):

“The Governor says that he used private resources to help someone in financial trouble, it is a private relationship and should be a private matter. Others say these monetary gifts should be a matter of public record and suggest an independent investigation to be sure there is no conflict of interest. Which comes closer to your view on this issue - It is a private matter between Jon Corzine and Rocco Riccio or it should be a matter of public record and independent investigation?”

Answers to # 51 show 873 (71%) of the 1230 people surveyed had at least some familiarity with the matter. And, answers to #52 show 677 (55%) think Corzine-Riccio should be a matter of public record and an independent investigation.

CORZINE – KATZ – RICCIO: ARE WE ALL ENEMIES OF THE STATE?

The words of Josh Margolin and John Martin are horrifying:

"Rocco Riccio, who is married to Katz's sister, received the money after the governor forced him in January to quit a Turnpike Authority job. At the time, reporters had been pressing Corzine's office for answers about Riccio's work record and how he got hired. … He became the target of rumors that he had been improperly accessing taxpayer records -- to find information about political enemies --while working as an analyst in the Human Services Department. The allegations sparked an internal audit and inquiries from the Star-Ledger.”

"The administration has denied that those records belonged to the governor's political enemies. Riccio said yesterday that 'any records that were reviewed have been in the scope of work.' "

John Dean said it best when he wrote to then President Nixon:

“This memorandum addresses the matter of how we can maximize the fact of our incumbency in dealing with persons known to be active in their opposition to our Administration; stated a bit more bluntly—how we can use the available federal machinery to screw our political enemies.”

A perverted use of government machinery, a use that knows no constraints nor respects the rights of dissent, triggers memories of how earlier government terror campaigns squashed dissent and ruined peoples lives. In such a campaign, the secret, illegitimate exercise of power is overwhelming.

There was the blacklisting of the “Hollywood Ten”. The trashing of academic freedom with political tests for professors. And, by any standard, the Nixon era “enemies list” is so outrageous it defies comprehension. Not even the lawyers who defend unpopular clients have been immune from these tactics.

Closer to home, there was the New Jersey judiciary’s persecution of Rubin “Hurricane” Carter. And, more recently, because We’re All Journalists Now, we cannot forget Jay Lassiter’s capacity to matter.

“Screwing” political enemies is nonpartisan. There is no doubt that Richard Nixon was a Republican. But Governor Corzine is not. And, there’s the rub.

Governor Corzine is refusing to immediately address ethics issues because he wants cooler heads to prevail. But cooler heads, and therefore older memories, like all facts, fade, grow stale and disappear with time. Thus, blacklists and enemies lists only become increasingly untraceable. And, we’ll never see it coming.

THE BOOK THE ACLU DOES NOT WANT YOU TO READ ! - And it’s FREE !!

Now, we're not prone to Public Service announcements. Not in keeping with our brand image, ya know. But, it’s the end of summer and we're bored beyond belief. So;


An organization named American Vision is selling the book "The Christian Life and Character of the Civil Institutions of the United States of America. Their price is $39.95.


The claim is the book is a "140-Year Old Book [that] Challenges the ACLU". Also, it is "The Book the ACLU Does Not Want You to Read!"


It also appears the book is in the public domain. And, it appears to be worth a look. So, for all you tremblingly ACLU'ers, godless liberals, and commie-pinko ner-do-wells quit quaking and link to Google for your free copy.


Hey! You might even take that $39.95 you saved and send to the ACLU.

WILSON v. CORZINE & KATZ: NO SHIELD FOR ROGUE COMMUNICATIONS

At first glance it seems that Tom Wilson has a steep mountain to climb if he is to gain public access to the Union email negotiation communications between Governor Corzine and Ms. Katz. News articles’ phrases like “executive privilege”, “confidential process privilege”, and “rights of privacy” portray a daunting challenge. So let’s play Devil’s Advocate. Let’s conjure up some offhand scenarios, amateur views and quite possibly totally wrong conclusions. And unfold them in the court of public opinion (“be they the quick or the dead”). Let’s think about why the underdog should win this one.

There seems to be no factual issue Governor Corzine abused his Office by placing his personal emotional attachment to Ms. Katz above his official duties when the Governor accepted and perpetuated the practice of receiving secret emails and telephone calls from Ms. Katz. Governor Corzine and Ms. Katz knew the proper negotiating procedures and their subsequent acts and omissions in opposition to those procedures show that, because of their personal relationship, they willfully violated the procedures. Since neither New Jersey nor Ms. Katz have any legitimate interest, let alone a substantial or compelling confidential privilege interest, in rogue communications, the emails and telephone conversations fall outside any exceptions to public release. Conversely, since the Government and the Public have a substantial and compelling interest in the appearance and actual integrity of the negotiating process and both the Government and Public have a substantial and compelling interest in both the appearance and actual trust in the integrity of Government functioning, the emails and telephone conversations should be released to the public arena.

THE SECRET COMMUNICATIONS BETWEEN GOVERNOR CORZINE AND MS. KATZ CONSTITUTE AN ACTUAL IMPROPRIETY.

The Governor’s Ethics Advisory Panel condemned the act of secret communications, regardless of content, between the Governor and Ms Katz because such communications, standing alone, are in and of themselves an actual impropriety.

“Our advice, moving forward, is the Governor’s friends and other close associates be briefed in advance by the Governor’s Counsel or Ethics Liaison officer that they must have no direct communication with the Governor concerning matters involving the exercise of his duties as Governor in which they have a personal, professional, or pecuniary interest. If the close associate is unable or unwilling to honor such a commitment, then the governor must cease communicating until the issue is resolved. This is a difficult standard to meet; it is by its nature awkward, and may strain relationships. It is never easy to rebuff a friend or a loved one … [S]uch a bright-line prohibition is the surest way to p[reserve the Governor’s private life while respecting his public duties. The boundary between public duty and private life must be strictly observed, or it will not be respected.” Ethics Advisory Panel Report, May 8, 2007, P.33.

BOTH GOVERNOR CORZINE AND MS. KATZ NEW THE SECRET COMMUNICATIONS WERE FORBIDDEN.

It is a common experience in collective bargaining that a participants attempt to ‘end run’ the process by approaching interested parties informally. At the outset of the State’s process, Mr. Genova cautioned the entire State team, including the Governor, of this likelihood. Mr. Genova further instructed the State team, including the Governor, to try to avoid such informal discussions, and to redirect the caller to the formal bargaining process. According to Mr. Genova, he instructed all involved that ‘[t]he extent a Union official would seek to barging, and you find yourself in a position where such an exchange occurs, you should undertake efforts to divert that Union official to the bargaining table and back to me as lead negotiator as best as you can. …’ The Governor recalled that this cautionary instruction was ‘drilled into me’ by the negotiating team”. Ethics Advisory Panel Report, May 8, 2007, pgs. 13-14.

“… Thomas Shea, the Governor’s Chief of Staff … had been with Senator Corzine in Washington, D.C. and came to know Ms. Katz at that time. He said he did not need Mr. Genova to tell him that overtures might be made toward the Governor, and that caution need be taken. He informed us that as the Governor’s gatekeeper, he informed Ms. Katz that the Governor ‘is under strict instructions’ not to discuss these matters.” Ethics Advisory Panel Report, May 8, 2007, p. 22.

GOVERNOR CORZINE CONDONED ONGOING SECRET COMMUNICATIONS WITH MS.KATZ SOLELY BECAUSE OF HIS PERSONAL RELATIONSHIP WITH MS. KATZ.

Although the Governor may not have created the situation, he certainly condoned and encouraged such communications by allowing them to continue. And, Governor Corzine, in opposition to his duty as Governor, did not attempt to end the secret communications and allowed them to continue because of his relationship with Ms. Katz. .

Ms. Katz “stated that she and the Governor have remained friends and acknowledged that they had contact through the early stages of the negotiations. Contact was by e mail and telephone.” Ethics Advisory Panel Report, May 8, 2007, p. 25.

“On several occasions during the process, State negotiators recalled, the Governor during the course of a conversation would mention the fact that Ms. Katz had contacted him.” Ethics Advisory Panel Report, May 8, 2007, p.19

“He [Governor Corzine] described that it is not easy to disengage from a relationship that is both personal and political.” Ethics Advisory Panel Report, May 8, 2007, p. 23.

ASSET MONETIZATION: SUBPRIME, HEDGE FUND & PRIVATE EQUITY MELTDOWN POINTS CORZINE TO LONGTERM STRATEGY

In the lead up to the November elections one would well expect Governor Corzine's "asset monetization" to take on an increasingly negative connotation and its supporters ostracized by the electorate as advocates of an "Ivy League Ponzi scheme.”

As the mainstream press gains a greater familiarity with the problems, as calls for greater disclosure by and stricter regulation of Hedge Funds and Private Equity Funds grows, and as the availability of buyers for structured product diminishes, the aftershocks of current global financial turmoil will leave a bitter aftertaste in the economy and a new sense the "cultural of credit" has come to an end.

Despite the current financial meltdown, however, Governor Corzine has made no showing that he has abandoned his drive to use asset monetization to restructure the State's balances sheet. Indeed, if we believe what former Chief of Staff Tom Shea told NJN’s Michael Aron (On The Record) the drive to securitize future revenue is more a function of when rather than if.

The question, therefore, is what is Governor Corzine's monetization strategy, and what is a likely timetable?

Part 1. It is said that it is better to be lucky than smart. Regardless of which is the case in this instance, Governor Corzine is positioned to weather the current financial storm. The Governor has, since returning to Office, been relatively silent on the subject. During this pause, the Governor has listened to objections, made several principle adjustments, but has generally refused to engage his critics on the particulars of his plan.

Silence prevents recrimination. No on can compare his plan to the hedge funds and private equity firms currently falling by the wayside or point out the structure of his proposed financing has defects similar to the financings that set off the current round of turmoil.

Indeed, watching the turmoil develop has allowed the Governor to preempt criticism. Hedge fund and private equity firm involvement would taint the plan and thus has been removed by committing not to “sell the turnpike” to such firms, but rather to sell future revenues to the State through a “public benefit corporation.”

Furthermore, seeking to place the approval of any asset monetization on the ballot not only disengages the issue from the November election (or at least provides Democrats with cover), it kicks the can down the road until there is a settling of the market’s dust. Maybe the next budget.

Finally, with Treasury Secretary Abelow as Chief of Staff, Governor Corzine makes a surrogate expert voice available to the press and the public. This voice serves to (1) deflect criticism of the concept, (2) rehabilitate legislative and public opinion about asset monetization and restore their confidence in, or at least a necessary evil acceptance of, the concept, and (3) to do all of this in a manner consistent with new legal, political and market realities. In effect, Chief of Staff Abelow is the Investment Banker brain, the deal man driving and reshaping both the product and the ongoing public relations effort.

Part 2. Going forward, the first task of Governor Corzine and Chief of Staff Abelow will be to defend their past actions and assure the public all is well. The New Jersey track record with the hedge fund world is mixed. Although Amaranth Advisors may have cost NJ $8 million on a $25 million investment, the thirst for higher returns has not been dampened by the higher risk. And, while NJ investment types are scattered throughout various sectors of the world economy, and thus generally impacted by the global crisis and any resultant downturn, primary focus will be on the infrastructure investments. As of May 23, 2007 NJ owned 32 million shares in the private equity firms of Cintra and Macquarie Infrastructure. Both Cintra and Macquarie are managers of public goods like toll roads and bridges. Both have been mentioned as potential buyers for the Turnpike.

Part 3. Words like monitor, assess, gauge and manage, adjust and refashion are the bywords for the foreseeable future. Short term, market volatility should set the tone for any monetization strategy. At this point tactics seem reactive. Only when the markets really stabilize and the damage to economic growth better understood will the Governor be able to shift asset monetization from a defensive to offensive posture.

WILSON v. CORZINE & KATZ – A TIME TO EVERY PURPOSE, EVEN EMAIL

This time and space had originally been blocked out to discuss why it is thought the Union negotiation emails between Governor Corzine and Ms. Katz should be released to the public via Mr. Wilson. It has, however, been decided to delay those posts at least until after the hearing – maybe until after the decision. Based on the considerations below it was decided there is “a time to every purpose” and the time for that discussion is sometime after the August 3, 2007 hearing. Here’s why.

When, logically speaking, the lawyers try to persuade Judge Innes their respective positions are correct and the opposing views are not as valuable to the debate, they will, by the nature of the issues, transcend parochial interests. Yes, it seems clear that Governor Corzine and Ms. Katz have an interest in keeping the emails confidential because they do not want to be embarrassed by any misinterpretation or just plain punditry humor. And, yes Republican Tom Wilson has a political interest in demonstrating the Governor showed poor Executive skills by the mix of his personal life with political decision making. And, yes both are important private interests.

But the potential of mere personal embarrassment does not seem to be enough to keep government records confidential. Conversely, charging a person with errors in political judgment would not seem to be enough to gain release of government documents. The Founding Fathers were well aware of the potential for individuals to use government office for their personal benefit. James Madison said it best:

“In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. ...” Madison, Federalist Papers, # 51.

His solution is equally straightforward:

“The interest of the man must be connected with the constitutional rights of the place. …” Madison, Federalist Papers, # 51.

Thus, it would seem Governor Corzine must show that he needs to keep the documents confidential in order to govern. It would also seem that Mr. Wilson needs to show the documents must be released to insure that the ability to govern actually includes the duty of the government to govern itself. And, after that hearing the weight of the world might well be sitting on Judge Innes’ shoulders.

One might well conclude that if the issues are so important, discussion of the issues are equally important. We each have an interest in the outcome.
ut it is also true that because the issues are so important the timing of the discussion is also important to everyone. As crafting current final drafts has approached their intersection with the hearing date the question of timing has grown. The question is simple: would posting them now be an unhelpful act of advocacy spin or a constructive search for the truth. Don’t know the answer. Maybe both. Both have many implications. However, since the issues are so important, since the answer isn’t clear, and since the shelf life of the posts hopefully extends beyond August 3rd its seems the better practice is not to post prior to the hearing.

WILSON v CORZINE: PUBLIC RELATIONS KING TILL AUG 3 SMACKDOWN

On August 3, 2007 the attorneys for Governor Corzine, Ms. Katz , and Mr. Wilson will arrive in Trenton at the Mercer Vicinage of the Superior Court of New Jersey. Oral argument is "High Noon" in Wilson v. Corzine. The Honorable Judge Innes is presiding.

For Governor Corzine and Mr. Wilson the stakes couldn't be any higher. The Governor needs a favorable ruling that can be held up as a vindication of his claim to be a reform politician. A loss here, regardless of a stay pending appeal and / or a successful appeal would not only put a hole in his image, but would also be a critical blow to the credibility necessary to gain public acceptance of Asset Monetization.


For Mr. Wilson and the New Jersey Republican Party an adverse ruling eliminates the issue as a fulcrum for attacking Asset Monetization and crushes the momentum the underdog Party has sought to build as the State approaches the November Legislature elections. Failure to retake the Senate or the Assembly would seem to assure that Asset Monetization, in whatever form presented, will be implemented. Conversely, a favorable ruling may well redirect Republican fortunes from the doghouse to the Statehouse.


This clash of titans and their ginormous political interests requires no expense be spared and no leaf is unturned. Mr. Wilson is represented by the politically astute and well respected law firm of Drinkle Biddle. Attorney Mark D. Sheridan for the plaintiff. Governor Corzine has all of the power and resources of the State at his command. Assistant Attorney General Patrick DeAlmeida for the defendant. And, then, there is Ms. Katz. Covering the Governor's back. The wildcard, the potential to spoil or be a loose canon. Attorney Jeffrey P. Blumstein for defendant Katz.


Each attorney awaits the entrance of Judge Innes. Maybe they review their arguments - except the time for that preparation is really over. More likely they try to connect to the press. Searching the reporters' faces - listening to their voices – a last minute attempt to focus them on his points. Did Governor Corzine's publicizing the fact he would no longer use email persuade public opinion that releasing email seriously hurts the Governor's ability to conduct State business? What are they saying about the Governor's belated 1.5 % giveback on retiree contributions? Did the Governor's announcement that, as a result of his negotiations, the cost of unfunded health benefits had fallen from $80 billion to $58 billion neutralize that news? Do people think they have a right to the emails and that the Governor is covering up some unsavory dealing(s)? Will they think less of the Judiciary if the judge does not release the emails to Mr. Wilson?


Has the Judge seen these stories? If not, oral argument provides the opportunity to mention them. "Your Honor, it is generally well known that ..."


Judge Innes takes an introspective walk from his chambers to the courtroom. "Just hearing the case raises the potential for a public outcry of judicial encroachment on the executive branch. Does Sheridan really believe that being a public figure is the same as a state agent? And Corzine. What's he doing exchanging emails with Katz in the middle of negotiations? And, this Advisory Panel opinion is a hornet's nest. Bloggers, all I need now is bloggers."


"All rise." Judge Innes enters the court. He sits with his back to the wall and surveys the courtroom. He sees the expressionless faces of the Lawyers in front him. He knows the Governor has a tremendous power to influence the judicial branch. An $8,000 pay raise signed into law. He also knows prominent law firms can exert a tremendous influence on the Judiciary through such back channels as the bar, the press, political contributions and personnel connections. And, He knows the press crowding the room for the story will be both a witness to and a judge of his proceeding.


"Please be seated. ... Mr. Sheridan." "Your Honor, if it please the Court... "

JAY LASSITER’S POTENTIAL TO MATTER ? A KINETIC CONSTITUTIONAL QUAKE!

The purpose is to review two matters concerning the termination of Jay Lassiter’s access ID to the New Jersey Statehouse which was originally issued for the purpose of reporting on the Legislature. Thus it’s asked:

1. Whether the termination of Blue Jersey Jay Lassiter’s state house ID involves First Amendment Free Speech rights, is a police power issue, both, or neither.

2. And, in light of looking at the above, whether Blue Jersey “Jay Lassiter’s Potential to Matter” is actually a wrongdoing of Constitutional dimension.

Subjective and objective methods are the basis for deciding whether, intentional or not, the Free Speech Rights of Blue Jersey and Jay Lassiter have been violated.

The subjective method primarily relies on the acting party(s) explanation of their motive for taking the action. The objective method looks at all the facts that can be gathered and asks whether observers of the incident would draw the conclusion that it is more probable the act was taken to suppress speech and, if so, the subjective explanation is a pretend reason used to cover-up the suppression speech.

The reasons offered for taking Blue Jersey Jay Lassiter’s permission rely on two archetypical political defenses. The first excuse is there are no issues of Free Speech involved in the revocation. More to the point, Free Speech is not an issue because the elements that identify a matter as a Free Speech issue are not present in either a general action or in the specific application to Blue Jersey’s Jay Lassiter. This line of reasoning seldom holds water and such is the case here.

Strictly speaking, the First Amendment provides “Congress shall make no law … abridging the freedom of speech, or of the press …” If , however, one believes the U.S. Supreme Court rulings that applying these rights to State governments is “judicial activism”, these rights are also, strictly speaking, explicitly embodied in the New Jersey Constitution (“No law shall be passed to restrain or abridge the liberty of speech or of the press.”).

The second excuse says that even if issues of Free Speech do come into play, the “but-for” police power of the State is an exemption. A typical example is making it a crime to lie when yelling “fire” in a theatre. Obscuring Constitutional rules, however, is a slippery slope as exceptions, be they partial birth abortion or bong hits for Jesus, gradually hollow out the rule, build like a tidal wave to overwhelm the right, and only recede when the right becomes the exception.


With this in mind, let’s look at some the pertinent facts. No one disputes that Blue Jersey and Jay Lassiter have a substantial interest at stake, buttressed by the fact the State concedes “Mr. Lassiter … was selected [by the State] in April to become … the first blogger to cover the Legislature.” Since the State Police issue the IDs one must assume they reviewed the situation and provided the ID. So too, one must also concede that while Jay Lassiter may not meet every possible criteria for issuing the pass, he meets sufficient and determinative criteria to warrant the ID being issued, i.e. he regularly worked in the building. And, without more, one must also presume the issuers are competent and thus Jay Lassiters’ ID is valid. Furthermore, the State’s interest in security does not appear to be an emergency and is neither “necessary or compelling” as “[o]fficials said there is nothing in Mr. Lassiter’s background that prompted the reversal.” Finally, aside from an assertion he described something(s) or someone as a “nincompoop”, and with out knowing whether these things could be reasonably described as nincompoopery, it seems clear Jay Lassiter did not disturb Legislative functioning.

The question, therefore, is what legitimate authority gave AG Rabner the power, in what might well be his final act before assuming the office of Supreme Court Chief Justice, to act as the court of final review, and without notice, revoke Blue Jersey Jay Lassiter’s presumably valid building ID? Since Blue New Jersey and Jay Lassiter have a valid First Amendment interest in working regularly at the Legislature, and since the State recognized Jay Lassiter met sufficient relevant criteria to issue the ID, and since there was no emergency the lack of an administrative hearing prior to termination is inexcusable. Thus, both Blue Jersey’s and Jay Lassiters’ Free Speech rights and First Amendment interests are presumably abridged and the Constitution violated by AG Rabner’s whimsical termination of them.

Ain't that right, Stu.

WHAT TOLLS? GOV CORZINE, ASSET MONETIZATION & SECURITIZATION

For whatever reason Governor Corzine and the loyal opposition are not talking about “Asset Monetization” and “Securitization”. Yet there must be some basic rules that form the foundation for any and every such program. Accordingly, the purpose of the following is to begin thinking about that discussion.

At first glance the structure would appear to be a broad balance sheet reorganization that structurally matches disparate groups of capital assets with dissimilar groups of capital liabilities.

DEFINITIONS:

ASSET MONITIZATION: Future cash receipts generated over a set time period in the future are traded for cash today, i.e. Turnpike or Parkway tolls from 01/01/08 through 01/01/18 may be sold to investors. The sale price is today’s value of that cash flow where each future flow is discounted to give the investor a current market rate of return on the investment.

Issuing debt as a means of receiving cash today with the promise to repay with toll revenues tomorrow is called SECURITIZATION. Using a bond to borrow against future toll revenues securitizes the future toll revenues.

AN IMAGINARY ILLUSTRATION TO UNDERSTAND THE COST.

The following projections are totally made up and for demonstration purposes only. And, keep in mind that the issuance of debt can take many different forms. For instance, New Jersey could sell one fixed maturity bond backed by 10 years of toll revenues and repay the total debt in year 10. Or, costs might be lowered by treating each year’s receipts as a separate bond that will be repaid when that year’s tolls are received. The theory is the shorter the time to maturity, i.e. the time until the loan is due to be paid, the lower the interest rate that will be paid. In effect the shorter pay date lessens the lenders time exposure to deterioration in the borrower’s ability to pay or that interest rates will move higher. In reality there are many more possible debt structures. All have unique costs as well as unique benefits.

If we unrealistically assume the current years revenues are $1,000,000 and those revenues grow at 2% per year, the annual income stream from tolls over the next 10 years is as follows:

TOLL REVENUE PER YEAR

2008-2009 1,020,000
2009-2010 1,040,400
2010-2011 1,061,208
2011-2012 1,082,432
2012-2013 1,104,081
2013-2014 1,126,162
2014-2015 1,148,686
2015-2016 1,171,659
2016-2017 1,195,092
2017-2018 1,218,994

TOTAL 11,168,714

If investors demand a 6% taxable return on their investment, the amount the State can borrow in 2008 is $6, 236,251. At the 6% rate $6,236,251 grows to $11,168,714 in 2018 and that total is thus the sum paid to investors as a lump sum in 2018.

This means the borrowed funds received must reduce expenses whose annual cost is greater than 6%. If used to reduce expenses or fund a project where the the cost is less than 6% the State loses money. If used to reduce expenses or fund a project that costs more than 6% the State saves money.

State, county and local government bonds are generally exempt from federal, and in certain instances State, income taxes. Because they are exempt the interest rate paid on “municipal bonds” is determined in part by an investor keeping more tax free interest than would be kept after paying taxes on a taxable bond. Ask yourself, all things being equal, would you buy a 6% bond that is taxed or a 6% bond that is tax-exempt. Logic dictates you will buy the tax exempt bond until the tax exempt interest rate is equal to the after tax interest rate you receive on taxable bonds.

The tax-free rate equivalent to 6% taxable is 4.62% for someone in the 30% tax bracket. Given a premium to induce such an investor to buy the new security the price might be 4.75% or higher. At 5.00% tax free, the present value of $11,168,714 – the amount the State of New Jersey borrow in 2008 – is $6,856,623.

SOME INITIAL THOUGHTS ABOUT ASSET – LIABILITY MATCHING

(1) The trick appears to be in the issuance of lower cost tax exempt bonds (in effect a federal subsidy) to reduce higher cost expenses or to fund higher cost projects.

Historically, this was done through what is called a pre-refunding. The borrowed funds were used to retire outstanding higher cost debt. In effect the proceeds from the sale of future toll revenues as tax exempt bonds would be reinvested in taxable bonds. As the taxable bonds pay off the proceeds are used to pay off the old debt. The higher interest earned by the State on the taxable bonds lessens the total amount which must be borrowed to retire the older, higher cost debt. The issuer saves by paying a lower interest rate on the new, substitute debt.

The problem with this structure and its distance cousins is whether the IRS allows the tax exemption to be used in this manner. Don’t count on it.

(2) Or, the proceeds from tax exempt toll revenue bonds could be used to make capital improvements, i.e. a turnpike extension. In this instance the issuance of toll revenue bonds is nothing new. A Turnpike or Parkway bond paid for by toll revenue is a typical financing. Assuming the money can be used to build new schools, however, toll revenues are a (partial?) substitute for the property tax as a new source of construction funds. In effect toll revenues are a selective, steadily increasing tax (based on the cost of living?) whose proceeds are used as an alternative to the more general property tax. In this instance the school is an asset matched with a self-liquidating liability.

Here too, one must ask if the use of toll revenues to fund non-road related capital improvements is the cheapest way to fund such projects as opposed to merely reallocating the cost via a hidden tax. Increasing the debt load of the toll roads by a substantial sale of its toll income, regardless of whether it is through a public benefit corporation or not, weakens the credit rating and increases borrowing costs while limiting future borrowing capacity. And, how does one make any reasonable estimates about spending needs without a school funding formula.

Furthermore, one has to wonder if this form of financing fatally conflicts with the Governor Corzine’s commitment to reduce greenhouse gases. On the one hand he needs to raise tolls in a manner that at least does not reduce traffic, i.e. congestion pricing in fact. On the other hand, Governor Corzine needs to reduce emissions and may therefore need to reduce auto and truck traffic. If it costs more to use the toll roads and it costs more to reduce emissions on those roads (less traffic, higher costs, or both), the diseconomies could have a rippling negative effect as the costs are passed on in the form of higher prices and / or insufficient revenues to repay the bond (more people and freight take the bus and train).

Finally, the most important question, however, is how does such a financing scheme encourage thoughtful spending rather than merely expand it. What are its political and economic boundaries and limitations and how strong are those breaks? Without such circuit breakers this form of financing is open to debilitating abuse.

(3) If the money can be used to fund earlier pension liabilities, i.e. cover the payments that were never made, the use is essentially borrowing to play the stock market. New Jersey’s been there, done that. Hopefully, never again. The more prudent alternative, if possible, might be to directly pay any increase in toll revenues directly into the pension fund.

BORN ON THE 4TH OF JULY - BLUE JERSEY, JAY LASSITER & THE NATTERING NABOBS OF NEGATIVITY

For the last five days, urban, suburban and rural Americans have been practicing the rituals associated with the founding of the nation. The Fourth of July is a time for parades, barbeques and fireworks. Time at the shore or lake. Stories honoring the troops in Iraq, movies about Patriot troops and militias battling British regulars and mercenaries. And, underling it all, sprinkled throughout the mix, a flow of deferential remarks about the Declaration of Independence and reverent speeches about the Constitution parse the Holiday conversations. Homage is paid to the blessings of being an American and the need for the vigilance necessary to perpetuate these good things.

In keeping with the spirit and basis for the holiday it is appropriate and necessary to take a moment to ask what are we celebrating? What are we fighting for? What do these documents mandate and what resultant way of life do we truly value?

Central to both the act of governing and the check and balances of the people on its government are the “nattering nabobs of negativity.” Since our inception, from the time of Publius and the Pennsylvania Farmer through the Pentagon Papers to the Abu Ghraib photos, reports of wireless wiretapping, and the U.S. Attorney scandal, the press, in all its forms and machinations, for all the criticism and its faults, has somehow continued to stir the pot and defend the right of the people to know. In doing so the press facilitates the right of the people to make informed judgments about their government and their right to be heard. Their right to say “enough.” So in that quite moment of reflection on this day cherish the irreverence of Thomas Nast, be thankful for papers like the New York Times, defend the right of the Don Imuses and Ann Coulters to make outrageous remarks, and be comforted by the taking-up of the torch by a new generation of nattering nabobs like BlueJersey’s Jay Lassiter.

SUPPLEMENTAL BACKGOUND

Our politicians talk endlessly about the “freedom of the people” and “the people’s exercise of liberty” in the pursuit of individual happiness. So far so good. But let’s take it one step further. It seems to go without saying that without the Bill of Rights there would be no Constitution and the Declaration of Independence would be nothing more than a failed articulation of human aspirations.

The Constitution recognizes three independent branches of Government: (1) the congress that makes the laws of the land, (2) the executive who implements the laws of Congress, and (3) judiciary that resolves disputes arising from the laws and their implementation. The Anti-federalists, however, saw the establishment of the horizontal machinery of Government as necessary but not sufficient because it did not provide vertical checks and balances. It did not formalize the vertical relationship between the first three branches of government and the fourth, the people. Thus the Bill of Rights was created as a mechanism to insure the government did not usurp the power of the people and suppress the legitimate role of the people in their own governance. It was created to require the government control itself.

The New Jersey Constitution, whether by incorporation or declaration, is a cut of the same cloth. It is a product of the same concerns.

CORZINE,GILL, RABNER PUNK REPUBLICAN SEXISM, RACISM

Brer Rabbit meets a Tar Babyretold by S. E. Schlosser


Well now, that rascal Brer Fox hated Brer Rabbit on account of he was always cutting capers and bossing everyone around. So Brer Fox decided to capture and kill Brer Rabbit if it was the last thing he ever did! He thought and he thought until he came up with a plan. He would make a tar baby! Brer Fox went and got some tar and he mixed it with some turpentine and he sculpted it into the figure of a cute little baby. Then he stuck a hat on the Tar Baby and sat her in the middle of the road.

Brer Fox hid himself in the bushes near the road and he waited and waited for Brer Rabbit to come along. At long last, he heard someone whistling and chuckling to himself, and he knew that Brer Rabbit was coming up over the hill. As he reached the top, Brer Rabbit spotted the cute little Tar Baby. Brer Rabbit was surprised. He stopped and stared at this strange creature. He had never seen anything like it before!

"Good Morning," said Brer Rabbit, doffing his hat. "Nice weather we're having."

The Tar Baby said nothing. Brer Fox laid low and grinned an evil grin.

Brer Rabbit tried again. "And how are you feeling this fine day?"

The Tar Baby, she said nothing. Brer Fox grinned an evil grin and lay low in the bushes.

Brer Rabbit frowned. This strange creature was not very polite. It was beginning to make him mad.

"Ahem!" said Brer Rabbit loudly, wondering if the Tar Baby were deaf. "I said 'HOW ARE YOU THIS MORNING?"

The Tar Baby said nothing. Brer Fox curled up into a ball to hide his laugher. His plan was working perfectly!

"Are you deaf or just rude?" demanded Brer Rabbit, losing his temper. "I can't stand folks that are stuck up! You take off that hat and say 'Howdy-do' or I'm going to give you such a lickin'!"
The Tar Baby just sat in the middle of the road looking as cute as a button and saying nothing at all. Brer Fox rolled over and over under the bushes, fit to bust because he didn't dare laugh out loud.

"I'll learn ya!" Brer Rabbit yelled. He took a swing at the cute little Tar Baby and his paw got stuck in the tar.

"Lemme go or I'll hit you again," shouted Brer Rabbit. The Tar Baby, she said nothing.

"Fine! Be that way," said Brer Rabbit, swinging at the Tar Baby with his free paw. Now both his paws were stuck in the tar, and Brer Fox danced with glee behind the bushes.

"I'm gonna kick the stuffin' out of you," Brer Rabbit said and pounced on the Tar Baby with both feet. They sank deep into the Tar Baby. Brer Rabbit was so furious he head-butted the cute little creature until he was completely covered with tar and unable to move.
Brer Fox leapt out of the bushes and strolled over to Brer Rabbit. "Well, well, what have we here?" he asked, grinning an evil grin.

Brer Rabbit gulped. He was stuck fast. He did some fast thinking while Brer Fox rolled about on the road, laughing himself sick over Brer Rabbit's dilemma.

"I've got you this time, Brer Rabbit," said Brer Fox, jumping up and shaking off the dust.

"You've sassed me for the very last time. Now I wonder what I should do with you?"

Brer Rabbit's eyes got very large. "Oh please Brer Fox, whatever you do, please don't throw me into the briar patch."

"Maybe I should roast you over a fire and eat you," mused Brer Fox. "No, that's too much trouble. Maybe I'll hang you instead."

"Roast me! Hang me! Do whatever you please," said Brer Rabbit. "Only please, Brer Fox, please don't throw me into the briar patch."

"If I'm going to hang you, I'll need some string," said Brer Fox. "And I don't have any string handy. But the stream's not far away, so maybe I'll drown you instead."

"Drown me! Roast me! Hang me! Do whatever you please," said Brer Rabbit. "Only please, Brer Fox, please don't throw me into the briar patch."

"The briar patch, eh?" said Brer Fox. "What a wonderful idea! You'll be torn into little pieces!"

Grabbing up the tar-covered rabbit, Brer Fox swung him around and around and then flung him head over heels into the briar patch. Brer Rabbit let out such a scream as he fell that all of Brer Fox's fur stood straight up. Brer Rabbit fell into the briar bushes with a crash and a mighty thump. Then there was silence.

Brer Fox cocked one ear toward the briar patch, listening for whimpers of pain. But he heard nothing. Brer Fox cocked the other ear toward the briar patch, listening for Brer Rabbit's death rattle. He heard nothing.

Then Brer Fox heard someone calling his name. He turned around and looked up the hill. Brer Rabbit was sitting on a log combing the tar out of his fur with a wood chip and looking smug.
"I was bred and born in the briar patch, Brer Fox," he called. "Born and bred in the briar patch."
And Brer Rabbit skipped away as merry as a cricket while Brer Fox ground his teeth in rage and went home.

BROKEN TRUST- CORZINE USING RABNER NOM. TO PLAY SENATE, GILL

The manner of nominating AG Rabner to be the next State Chief Justice allows the State's Executive Branch, i.e. Governor Corzine, to usurp the State Constitution's delegation of power and duty to the legislature, i.e the Senate's check and balance duty to advise as well as consent.

THE NEW JERSEY CONSITUTION REQUIRES ADVICE AND CONSENT

The New Jersey Constitution lists ten current instances that reguire a Governor to "nominate and appoint, with the advice and consent of the Senate... ." In terms of Justices and Judges the Constitution (Article 6, Section 6, Paragraph 1) demands "The Governor shall nominate and appoint, with the advice and consent of the Senate, the Chief Justice and associate justices of the Supreme Court, the Judges of the Superior Court, and the judges of the inferior courts with jurisdiction extending to more than one municipality;"

Nothing in the Constitution, however, states the procedure by which the Governor "nominates and appoints" and the Senate "advises and consents". But, both the plain text and continuous historical practice identify "Senatorial Courtesy" to be the appropriate procedure.

THE PLAIN TEXT MAKES ADVICE THE PRECONDITION TO NOMINATION

The precondition for Governor Corzine's nomination of AG Rabner is advice from the Senate about whether to nominate Rabner. In general, one gives advice by giving an opinion about a future action. What good is it to advise a person not to jump off a bridge after the jump? Or, more to the point, what good is it for the Senate to advise the Governor about Rabner's nomination once he has been nominated? Once Governor Corzine nominated Rabner to be the next Chief Justice the next step is to consent to or not consent to the nomination.

DEEPLY ROOTED PRINCIPLE VALIDATES THE PLAIN TEXT

Senatorial Courtesy is "closely related to the nominations process. ... At least seven [U.S.] Supreme Court nominations have failed to be confirmed partly on the basis of deference to the nominee's home-state senators." The practice "... was born in the very first [U.S.] Congress and continues today." "By the 1940's 'Senatorial Courtesy' was formally institutionalized through the development of the so-called 'blue slip procedure.' ... it is understood that failure to return the blue slip amounts to a de facto invocation of senatorial courtesy that will prevent committee hearings on the nominee and thereby block the nomination."

SENATORIAL COURTESY IN NJ

In New Jersey Senatorial Courtesy ensures that senators largely control the identifiction of candidates for the bench. Even if the Governor does not rely outright on the senators to identify candidates for particular appointments, the practice ensures that the Governor typically asks the approval of the Senators in question well in advance of making a formal nomination.

THE STATEGY TO CRIPPLE ADVICE AND CONSENT

Governor Corzine has quietly, but persistently, sought to eviserate the checks and balances of the State Constitution "advice" requirement. Until now the job of identifing potential judicial candidates has fallen largely to the State's Senators. One purpose is to assure at least some local control from the encroachment of a larger government body. Accordingly, the first step was Governor Corzine's largely unoticed "Order establishing a Judicial Advisory panel that will be charged with evaluating judicial candidates."

The second step is "a death by a thousand cuts as exempliied by the nomination of Robert A. Bianchi followed by the nomination of AG Rabner.

The third step is "sit back and watch." Corzine has sought to create Brand Rabner as a brand with broad popular appeal regardsless of his qualifications to be Chief Justice. Smart working class guy with best education (Princeton and Harvard as opposed to Rutgers and Yale), Crime fighter (Assistant U.S. Attorney), and apolitical (not connected and couldn't get a judicial appointment). Thus, the last minute nomination of Rabner without the advice of the Senate receives popular support. Add in that Senatorial Courtesy (like Executive Courtesy or the pocket veto) is easily misunderstood and thus an easy target for those who use demagoguery to oppose it. Then bait a sometimes controversial but pro-active Senator to enforce the "Advice Clause" - and BOOM- the wheels spin.

Some call it arcane - although its is as arcane as the Constitution is musty. Some call it blackmail without offering any hard facts that lead to the conclusion. Some simply jeer. And some, as with the sham appointment of the disastrous Judge Marianne Espinosa Murphy, seek to circumvent it.

SENATORIAL COURTESY PROTECTS THE CONSTITUTION

How then, does the Senate keep the Executive Branch from commandeering the Constitutional powers and duties expressly assigned by the Constitution to the Legislative Branch? Holding confirmation hearings only absolves the usurper and seeks to legitimize the usurpation. Holding confirmation proceedings that lead to a predetermined "no" vote are a waste of time and money. And, using a sham to fight a sham only further detracts from public confidence and faith in the government's integrity.


Senatorial courtesy solves these problems as the nomination is void and never acted upon. There are no Judiciary Committee hearings and thus no vote. If Governor Corzine wants his candidate appointed he must respect the Constitution by seeking the advice of the appropriate Senators prior to the nomination. At times when the Senate is in the hands of mostly corrupt or self-serving politicans Senatorial Courtesy gives the Constitution and the integrity of the Judiciary the utmost protetion. For like Sodom and Gomorrah only one person need speak up to save it.

FUNNY THINGS ARE HAPPENING ON THE WAY TO RABNER'S CONFIRMATION

SOMETHING FAMILIAR

On the one hand, Governor Corzine's office leaked the nomination of Rabner’s appointment, refused to comment on the leak, and more than several days later made the formal announcement at a press conference. THAT'S OK.

On the other hand, Newsday reports: I have no comment,’ Gill said repeatedly as she arrived at a Senate Commerce Committee meeting in the State House Annex. ... When approached by reporters as she took her seat to chair the hearing, Gill had legislative security staffers keep reporters away." THAT’S NOT OK?

The only difference seems to be the paparazzi couldn’t stalk the Governor.

Ya know, if the press really cared about the nomination they would actually investigate and report on the criteria for being a chief justice and how or how not AG Rabner fills those criteria. Small things even. Like a review of published and unpublished opinions. Oh, Rabner has never been a judge so there are no opinions. Well, how about scholarly articles then. Oh, none of those either. Well how about his feelings concerning the Ethics Advisory Panel's opinion from the secret Corzine-Katz hearing using secret depositions about secret emails.... He did go to Yale Law School. Not Yale?

SOMETHING PECULIAR

A Home News Tribune report concerning U.S. Attorney Christies’ rant is just mindboggling. The best is the statement "Christie said New Jersey has no better person for the high court." Didn't know the U.S. Attorney had a Supreme Court selection process, committee or candidate list. Maybe he does know. Warrantless searches – billions of phone conversations and emails intercepted - monsterous web crawlers - hey, ya never know.

Second best is "Christie had also likened Senate Judiciary Committee Chairman John Adler, D-Camden, to 'a third-rank bureaucrat' because he had said he would not schedule a hearing for Rabner without the OK from Gill."

Go Get’em; hit them with the nonpartisan "nuclear option". P.S. Senator Adler went to Harvard too.

SOMETHING FOR EVERYONE

June 14, 2007 Star-Ledger article states:" Gill has refused to say why she is opposed to Rabner's nomination, although her colleagues said she feels that Corzine did not pay enough deference to the Senators by choosing Rabner without first consulting his home-county delegation.

June 13, 2007 Star-Ledger article states "Sen. Nia Gill (D-Essex), using a traditional courtesy extended to senators representing the home county of nominees, has not signed off on Rabner's nomination to lead the New Jersey Supreme Court and has raised questions about his inexperience in civil law and the rush to confirm him, the sources said yesterday."

Those are distinctions with a difference. Remember?

NO MORE VERNIEROS: SENATORS GILL & RICE SHOW COURAGE BY GIVING CORZINE AND RABNER HELL

The coverage of Stu Rabner's credentials to be New Jersey's next Chief Justice has been dismal. It would seem some Democrats are all afraid they will appear before the next one and some Republican's can't figure out what one does.

So, for all the right reasons Senators Gill and Rice have said enough is enough.

Take notice, neither Corzine nor Rabner have talked about racial profiling being at its high point. Neither Corzine nor Rabner have talked about his limited eperience in civil practice and dearth of knowledge and experience appellate practice.Neither Corzine nor Rabner have talked about his obsecuring crime with speech. And be assured the list gets longer.

So, hats off to the Senators for critical thinking and positive action. Thanks for working to assure the next Justice is not Peter Verniero.

BROKEN TRUST: IS AG RABNER A MECHANIC WHO WANTS TO BE AN ENGINEER, PART 3.

If AG Rabner were a trained and experienced auto mechanic would you fly on an airplane he designed?

We trust auto mechanics to fix our cars but require automotive engineers to design them. We trust nurses to administer day to day hospital care but require doctors determine the health care given. And, we go to bank tellers to deposit and withdraw money but require financial managers to preserve the money we leave in the bank. It is no different with the court. A trial attorney, including prosecutor Rabner, or a trial judge, like the nurse, handle the day to day administration of the law in individual cases. Their job is applying the law as settled by the appellate or Supreme Court. They are not litigators or appellate judges. They do not resolve questions of law - they do not say what the law is. That is really the ultimate role of
the Supreme Court.

Stu Rabner is a trial lawyer. His job has been to act as the U.S. Government's advocate in administering Federal law. That experience may well qualify him to be a trial court judge either in the federal district court or in the New Jersey Superior Court. Even at the Superior Court level, however, it is uncertain the AG is an appropriate choice.

Assume for a moment you are accused of some awful crime. AG Rabner may well be prepared to prosecute against you, defend you, or decide your case. But would want him to advocate for you, defend you, or decide your case in a civil matter. If he were to be your lawyer he would be a neophyte facing experienced trial attorneys. As a new judge he would be continually challenged by a diversity of civil actions, rules and standards that bear little relation to those in a criminal court. And, he would face the rich and the powerful corporations with their well heeled outside counsel and litigation public relations firms. If they were your opponents and your home, job and / or family life were at stake would you want AG Rabner to be the trial lawyer who represents you or the judge who decides your case. In short would you want the auto mechanic to repair the airplane? Do you want to be his on the job training?

Taking the analysis one step further, ask your self, would you want the best auto mechanic in the world to design the airplane you were flying on? Because in making the AG the Chief Justice of the Supreme Court you are not just asking the mechanic to design the airplane - you are asking him to lead the design team.

BROKEN TRUST- IS A.G. RABNER A JUDICIAL ACTIVIST - PART 2.

To date A.G. Rabner has sought to reinforce the notion he is “Mr. Clean” by simply saying “trust me; for years I was a (mediocre?) Assistant U.S. Attorney”, that he has “no agenda” and in the absence of bias he will make decisions based on the facts and legal precedent(s) (itself an odd statement given his role is to review conflicting appellate panels'opinions). Nevertheless, given recent, lesser known remarks, it appears A.G. Rabner is a judicial activist who will not respect the First Amendment and thus cannot serve on the New Jersey Supreme Court.

The matter at hand pits “hate crime” against “hate speech.” Making the two indistinguishable is a slippery slope. It’s always hard to defend speech that is disliked. And, it is the mark of a politician to judge according to interest. Except in Rabner’s case the implications are far more severe. Will he find words like wife and husband or natural marriage to be hate speech. Will he force all statutes and codes to be sexual orientation neutral. Will he handle dissenting heterosexual views of students in the schools as harassment? Will he respect the First Amendment or will he serve the political interests that appoint and confirm him. Think it’s crazy – much of it’s the law in the Ninth Circuit Court of Appeals. Some is now being made law by the California legislature.

The A.G. recently obscured the difference and has made no attempt to correct it. Indeed, according to Rabner we must all be afraid of people who think bad thoughts as they will surely hurt us. Thus we must control what they think.

On April 19, 2007 A.G. Rabner addressed the first "New Jersey Unites Against Hate" summit at the State House Annex in Trenton. The goal was to demonstrate to the people in New Jersey that we are united in our efforts to combat bias and hate crimes … Rabner opened the forum by remembering the Virginia Tech massacre just a few days earlier and connecting it to the work of the anti-hate organizations. Raber said ‘When thinking about the incident at Virginia Tech, the Oklahoma City bombings, and Don Imus, you may have realized that, unlike the Waco situation or the Holocaust, these acts of hatred were carried out by individuals, and not a larger group,’ the attorney general continued. ‘The majority of those who commit hate crimes are individuals who have heard the ethnic and racial stereotypes, wholeheartedly believe them to be true, and decide to act on impulse.’ "

In the view of the U.S. Department of Justice: “In its broadest sense, the term [hate crime] refers to an attack on an individual or his or her property (e.g. vandalism, assault, arson, murder) in which the victim is intentionally targeted because of his or her race, color, religion, national origin, gender, disability, or sexual orientation.”

Aside from Rabner’s apparent desire for thought control, he needs to explain how the shootings at Virginia Tech are a hate crime as opposed to a deliberate misstatement of the act. He needs to tell us what he knows that takes the matter to the area of race, religion, etc. as opposed to a mentally ill person who was a danger to himself and others?

A.G. Rabner also needs to explain how the words of Imus constitute a hate crime as opposed to revolting speech. Did they incite the team to violence. Did they harass the players. The words Imus used are protected at law and precedent. Aren’t they Stu.

A.G. Rabner’s statements show he has an agenda because they fail to distinguish between an act made criminal by law which includes some element of bias and protected words which he personally deems hateful. As a prosecutor he should know the difference. If he doesn’t he is not competent to be Chief Justice. If the A.G. is as well versed in the law as Governor Corzine would have us believe, then Rabner knows the difference and his remarks reflect a deliberate insensitivity in decision making. Thus Rabner’s bias is his deliberate indifference to the First Amendment and his blatant lack of respect for the Constitutional rights of others with whose views he differs. In short, the agenda of a judicial activist.

BROKEN TRUST: IS A.G. RABNER A JUDICIAL ACTIVIST, PART 1.

The overarching question for New Jersey’s Senate Judiciary Committee Hearings considering Gov. Corzine’s appointment of A.G. Rabner to Chief Justice of the Supreme Court is whether A.G. Rabner is a “judicial activist” and if so what kind?

Justices or judges may act as judicial activists in two ways. First they may usurp authority. A judge or justice who exercises the power to decide that is not given to him or her by a lawful authority (the constitution or a legislature) overrides the authority of the U.S. or state constitution or commandeers the power of and acts as a legislator. Second, a justice may misuse lawfully given power by abusing his or her discretion when deciding a case(s). An abuse of discretion occurs by deciding a case or cases in a manner that is arbitrary, capricious, whimsical or somehow otherwise incorrect (an error in interpreting fact or law or both). In such instances, however, recourse is generally available from a higher court.

However, there is generally no meaningful recourse from the decision of a supreme court.
The U.S. Supreme Court is the final authority on questions concerning the U.S. Constitution. Thus, when the U.S. Supreme Court decides a U.S. Constitutional matter the only recourse is to amend the Constitution. Examples of this situation are (1) the use states and local governments of eminent domain to seize homes for office parks and (2) applying the commerce clause to regulate truck routes.

Most importantly, each state’s supreme court is the final authority on questions that only concern the application of a state’s constitution, i.e. it does not involve the U.S. Constitution. Here too, the only recourse from a state supreme court ruling on the state’s constitution is to change the state’s constitution. And finally, where there are no issues involving the U.S. Constitution, a state supreme court is also the final authority on statutory questions. An example in New Jersey is the finding the State’s Constitution requires homosexual couples have the same State rights as heterosexual couples.

Assemblyman Richard Merkt, R-Morris, has argued that the Supreme Court ruling showed "astonishing judicial contempt." Furthermore, "Republicans have introduced several measures to unravel the law, but no measures have advanced in the Democratically controlled Legislature, where its leaders have vowed not to consider proposals to take rights away from anyone."

At the opposite end of the spectrum Frank Askin, General Counsel of the American Civil Liberties Union [aclu] has said "We really do not know a whole lot about his commitment to social justice, which for years has been the hallmark of the New Jersey Supreme Court." Askin has more than a passing interest that includes the Ocean Grove Camp Meeting Association's policy banning same-sex civil unions at the boardwalk pavilion. Rabner has for the moment, declined comment.

If Senate Judiciary Chairman Adler and company exercise due diligence A.G. Rabner will be questioned about judicial ideology concerning the basis, methodology and rules of construction for such decision making in general and the Lewis case in particular. How he does or does not answer the question will be informative. After all, as a graduate of Princeton and Harvard and as Attorney General, one must expect A.G. Rabner to have an opinion on the law, even if he disagrees with it. And, as an assistant U.S. Attorney the A.G. knows his first duty is not to prosecute, but to search for the truth. Thus, it is only proper he be forthcoming on the issue at his confirmation hearing.