The purpose of this post is to posit the inexpert, non-authoritative and quite possibly nonsensical scenario that NJ Superior Court Judge Innes might only grant a partial stay,, or postponement, of the release of the Corzine and Katz emails pending their appeal.
On May 29, 2008 Superior Court Judge Innes decided the emails exchanged by Governor Corzine and Ms. Katz during recent labor negotiations are public documents and must therefore be released to the public. Upon the opinion's May 30, 2008 release, Attorney General Ann Milgram immediately responded by stating the decision by Judge Innes will, if necessary, be appealed all the way to the Supreme Court. A result of her commitment to pursue the appellate process is the likely hood the case will drag into the 2009 gubnatorial election year.
CORZINE MAY ASK THE COURT TO STAY RELEASE OF ALL DOCUMENTS PENDING APPEAL BUT MIGHT ONLY GET A PARTIAL STAY.
Pursuant to the Judge Innes' order it appears that approximately 796 pages of documents are ordered to be released to the public. According to the Asbury Park Press "Corzine's office gave up to 796 pages to the judge to be reviewed ... Corzine spokeswoman Deborah Howlett said 'Friday's court decision requiring Corzine to release e-mails between himself, his staff and Carla Katz involved 72 e-mails.' ... Howlett said they include 11 from the governor to Katz, 50 from Katz to the governor and 11 from Katz to Tom Shea, who was Corzine's chief of staff at the time. Howlett said these e-mails account for exactly 100 pages. ... Howlett said most of those [other] pages were legislation and newspaper articles, for example, that explain and support the
e-mails."
It seems that Governor Corzine and Ms. Katz are entitled to have the trial court order that releases these documents, and thus the opinion the order is based on, reviewed by an appellate panel. N.J.R.CP. 2:2-3.
Because Governor Corzine and Ms. Katz have a right to an appellate review it also seems they have the right to ask the court to stay the order releasing the Corzine & Katz emails until after the appellate court has made and announced its decision. N.J.R.CP. 2:9-5B. Logic suggests, however, the court may only partially grant the request.
The reasons to grant a stay are (1) release of emails alleged by Corzine and Katz to be deliberative prior to appellate review would effectively make any appellate decision meaningless, and (2) release risks irreparable harm to the Governor and Ms. Katz as an appellate ruling favorable to them could not have the intended result of preventing public disclosure.
Conversely, it seems utterly fantastic that the Governor will claim that documents such as newspaper articles are confidential. Thankfully, Governor Corzine's characterization of the emails or attachments as deliberative, however, will not decide the matter. One must believe the court will differentiate between deliberative writings and plain and / or investigative facts. This is especially true for documents available at the local library or available from the Office of Legislative Services.
Thus, it seems reasonable that simple facts such as legislation and newspaper articles, standing alone, are not inherently deliberative, and without more, do not deserve protection pending appeal. Furthermore, it also seems reasonable that, given the court has a power to redact deliberative material; such facts should not be allowed to be concealed by their placement in a deliberative document. If so, such documents or such portions of documents could well be immediately released despite a pending appeal.
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