This case embodies the most important issue the Court has been asked to decide. If you think N.J.’s politicians ignore you now – wait – it can get worse. Here’s why.
Review will either reaffirm or destroy the inherent superior authority, function and need of the people to define and demand“good behavior” from those they elect. When all is said and done, either the people will retain the constitutional power to make politicians serve the public or the politicians will confiscate the people’s most basic safeguard, i.e. the right to know, against politicians serving themselves.
The Founding Fathers recognize early on the structure of the new government had to possess the capability to govern while the people had to have the power to make sure those elected govern in a manner that both appears to and in fact does act on their
behalf.
"If angels were to govern men, neither external nor internal controls on government would be necessary. 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. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.” Madison, Federalist Paper # 51, par. 3.
The Founder's also recognize knowlege that comes from the right to know is the key to the public's exercise" of its primary function to control thegovernment.
"Enlightened choice by an informed citizenry is the basic ideal upon which an open society is premised ... [a] popularGovernment without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. ... (Quoting Letter from James Madison to W.T. Barry (Aug. 4, 1822), in 9 Writings of James Madison 103 (G. Hunt ed. 1910)).” Atlantic City Convention Center Authority v. South Jersey Publishing Company, (A-52-93), pg.5-6.
Executive privilege also reflects the belief that effective decision making is facilitated by an environment that is favorable to a frank and thorough examination of the matter at hand. It is assumed, however,that confidentiality encourages a robust dialogue while openness may inhibit candor. Within this context, Governor Corzine claims the Office of Governor, as Chief Executive of the State, has a general right to confidentiality in decision making that it interprets is equivalent to the United States President’s right (But See, Raoul Berger, "Executive Privilege: A Constitutional Myth").
Tom Wilson, however, doesn’t appear to dispute the general need, right, or function of the Governor to use Executive Privilege to best execute the duties of the office. What he does appear to be saying, however, is that the Governor needs to respect and therefore the Court balance his right with the “primary” need, right and function of the people to insist the Governor acts in a manner that, in both appearance and fact, is consistent with the majority of the people’s definition of good behavior. N.J. Supreme Docket # 63,765.
An example away from Wilson, is that while national security may protect the government from the disclosure of information that would reveal military secrets, it has no right to confidentiality when the claim to secrecy represented to a court by its lawyers is a lie. Neither Corzine nor Wilson dispute the public’s right to throw Corzine out of office when they disapprove of the Governor’s conduct. And, at least since the Nixon administration, there appears to be a general agreement that confidential discussions and information are, subject to case by case specifics, accessible to the public in criminal matters.
Where Corzine and Wilson disagree is Corzine believes the public has no independent right to know. Thus, according to the appellate court opinion, it is only in those instances when government prosecutors - who are either appointed by the President, i.e. Chris Christie, or are appointed by the Governor, i.e. Ann Milgram - exercise their freedom of choice to prosecute a criminal case will the public ever have some uncertain right to know. In essence, the Appellate Court ruling extinguishes the fundamental need, right, and function of public to make informed, independent decisions to most effectively address any Governor’s lack of good behavior.
Historically, Executive Priviledge is negated when the integrity of the government’s decision making process has been successfully put at issue. Escaping the Fishbowl, pgs. 1772, 1787.
There may be blindness, but there is no doubt. The appellate court's tortured distinction between those who 'negotiate" and those who "advocate", is a distinction without a difference. Governor Corzine diminished the public's respect and confidence in the integrity of his Office when, because of his personal relationship with Ms. Katz, he acted with deliberate bad faith toward the public and the union. Anyone who deals with the Governor will easily conclude the appellate court has given the Governor a license to pursue similar antics in his dealings with them. To that end the Court has long recognized when it comes to the Office of the Governor the "overwhelming importance of having able, honest and honorable persons ... is self-evident." Nero v. Hyland, 216 N.J. 216, 224 (1978). The Supreme Court should not let such a precedient pass in silence.
