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.

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.

GOV. CORZINE ETHICS ADVISORY PANEL’S “JERSEY JUSTICE” BAD OMEN ON NEXT SUPREME COURT CHIEF JUSTICE

“And thus I clothe my naked villany with odd old ends stol’n forth of Holy Writ, And seem a saint, when most I play the devil.” Richard III.

The Ethics Advisory Panel’s “legal opinion” in the Corzine-Katz matter is so untrustworthy that it appears to be little more than a public relations tool to silence critics, spin the Press, and create an unfounded public impression of blamelessness. The fact Governor Corzine readily embraces the Panel as is and accepts its “vindication” without further action raises serious question of whether Governor Corzine’s appointments to the NJ Court, Supreme Court, or its Chief Justice are based on political expediency or judicial temperament.

BACKGOUND SUMMARY

It seems beyond dispute the March – April outcry surrounding the Corzine-Katz relationship and its possible impact on the New Jersey-Communication Workers of America contract, rather than going away, grew loader with each official denial. It also seems beyond dispute that both Governor Corzine and Ms. Katz, aside from making denials, had no intention of offering proof of their statements. When Bogota’s Mayor Lonegan asked the Ethic’s Advisory Panel to intervene, the Governor also asked for a review and the Panel assumed jurisdiction.

During the period that followed the Governor Corzine was critically injured in a car accident. On his way to meet with the Rutgers’ Basketball team and Don Imus, the SUV hit a guard rail. The SUV was traveling at 91 miles per hour although the Governor has stated there was no rush because the meeting had been pushed ahead. Moreover, although the Governor was sitting in the “death-seat”, he was not wearing a seat belt.

Governor Corzine returned to work on Monday, May 7, 2007 and the Panel issued its “legal opinion” the next day.

PUBLIC RELATIONS IN PRACTICE

“A popular Government, without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy; or, perhaps both. Knowledge will forever govern ignorance; and a people who mean to be their own governors must arm themselves with the power which knowledge gives.” U.S. President James Madison, 1822.

The quasi-judicial opinion appears to be mostly public relations as it is untrustworthy. There are four reasons. First, it was conducted by persons who lack judicial independence as they are solely appointed by the Governor for three year terms. Second, the “hearings” were secret. Thus, there is no record except for the opinion which is based on secret communications between advisors acting as quasi-judges and the witnesses, who are giving testimony about other secret communications about union points that actually took place between the Governor and Ms. Katz during the State-Union negotiations. Without copies of transcripts and copies of the emails, and without a fair but reliable process of distinguishing between relevant and person communications, there can be no transparency or public oversight. Without a record of the proceedings there is no way to test, let alone clarify or challenge, the facts revealed by Justice O’Hern’s telephone “depositions.” Three, the O’Hern Panel failed to distinguish between the appearance of impartiality and actual impartially. The O’Hern panel held there were secret communications between the Governor and Ms. Katz. Thus the appearance of impropriety. They also held the communications did not influence the negotiations as a matter of fact. Hence, the lack of actual bias. They only problem is that in both instances no one has seen or heard the evidence. Moreover, the O’Hern panel failed to discuss if and why an ex-husband and wife would or would not be allowed to appear together in Court as Judge and lawyer. Finally, although the ex parte communications between Governor Corzine and CWA President Katz create the appearance of impropriety the Panel can only advise against such communications. It has no power to provide a remedy because of the rule of necessity, only the Governor, and not Senator Codey Acting as Governor, can negotiate the contract. Thus, there is no offense.

NEW “JERSEY JUSTICE”

If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. Hamilton or Madison, Federalist Papers #51.

One cannot say that Governor Corzine’s request the Ethics Advisory Panel advise him as to any conflict between his personal and political relationship with Ms. Katz is a deal with the devil. One can say, however, Governor Corzine was certainly willing to accompany him on the journey.

Governor Corzine could, as Governor, have insisted on a meaningful and credible review. And, it is only necessary and proper it be independent, fair and reliable. Instead, Governor Corzine went alone for the ride, apparently because he has stated on numerous occasions he didn’t want a public record and thus did not want public scrutiny. Yet it was he who requested the review.

As important, Justice O’Hern could have refused to participate in a shame proceeding. Can you image anything more abhorrent to traditional democracy and more partisan than Justice O’Hern agreeing to act unchecked as judge, prosecutor, defense counsel and jury? Can you imagine sitting in a court where the judge leaves the bench and calls the witnesses from a phone in his or her office? Or, can you imagine not being able to challenge the completeness, authenticity or veracity of the verbal and written evidence.

THE PUBLIC RELATIONS RESULT

The actions of the Ethics Advisory Panel are presumed to be a search for the truth and the light it purports to shed to fairly resolve the matter. They do not. Still, the Corzine-Katz favorable Report corroborates and enhances political support for Governor Corzine while it simultaneously contradicts and discredits the opposition. Over 82 stories (using corzine & ethics) headlined the Ethic’s Advisory Panel had found no ethics violations from Governor Corzine’s involvement with Ms. Katz. Such generous, but short lived, press coverage of the Report thus strengthened the decree because the reporting press is presumed to be a guardian of the people against government wrongdoing. In short, massive, repetitive, and rapid distribution of the vindicating headline is social proof. The cumulative result of the spin process is to mislead the public by substituting hidden details for proof and appearances for reality.

GOVERNOR CORZINE’S EMBRACE OF THE “QUASI-JUDICIAL “LEGAL OPINION” IS AN OMINOUS SIGN ON JUDICAL APPOINTMENTS.

Soon Governor Corzine will announce the appointment of a new Supreme Court Chief Justice. How will that person respond to things not in the Governor’s or his partisan interest? Like when the “devil is in the details?” In light of the above, the cautionary words of Publius are appropriate.

“. . . 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.” Hamilton, Federalist Papers #78.