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.
Showing posts with label emails. Show all posts
Showing posts with label emails. Show all posts
Friday, June 6, 2008
Monday, August 20, 2007
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.
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.
Thursday, August 2, 2007
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.
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.
Thursday, July 26, 2007
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... "
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... "
Wednesday, May 9, 2007
O’HERN’S SECRET CORZINE - KATZ HEARINGS: HOUSE OF CARDS BUILT ON SAND?
The May 8, 2007 Ethics Advisory Panel Report (“Report”) vindicates the Governor. The Report seems so poor however, it cannot add or detract from the earlier belief Governor Corzine acted impartially (… Under what circumstances did Justice O’Hern leave the Court …). But, it certainly doesn’t help.
The reason seems obvious (but read the review and see for yourself).
THE SAND
The QUESTION before the Panel was “whether there was a conflict of interest on the part of the Governor [Corzine] in conducting recent CWA contracts negotiations.” Report, p.1.
The ANSWER the panel gives Governor Corzine is “The Governor has a non-delegable duty to govern....” Report, p. 6, Pt. 4. “Even when there is a direct financial benefit . . . there is not a conflict of interest when ‘[1] the action reasonably cannot be avoided under the doctrine of necessity, and where [2] the action is preceded by public disclosure of the relationship or the proposed action and the personal interest of the Governor or his immediate family.’” Report, p.6, par. 4, citing Code of Conduct for the Governor, (F) Conflicts and Appearances of Conflicts, (c).
This is probably the only conclusion in the Report that matters, one ruling that overrides all other findings, all other facts, all other law, all other errors. The title of that conclusion is the “Rule of Necessity.” The Rule of Necessity seems to be a common law provision generally applied to judges. Its substance is that where all available judges are somehow biased and thus disqualified from acting in some matter, no judges are disqualified from acting in that matter. The logic is that the issue (contract) must be resolved (negotiated) so people can move on. Justice is done by a disqualified person(s) even if the result is injustice. Assuming the invocation of the necessity rule is appropriate; the Governor’s Code of Conduct is not mandatory and may be violated with impunity by Governor Corzine or any Governor or Acting Governor.
The reason seems obvious (but read the review and see for yourself).
THE SAND
The QUESTION before the Panel was “whether there was a conflict of interest on the part of the Governor [Corzine] in conducting recent CWA contracts negotiations.” Report, p.1.
The ANSWER the panel gives Governor Corzine is “The Governor has a non-delegable duty to govern....” Report, p. 6, Pt. 4. “Even when there is a direct financial benefit . . . there is not a conflict of interest when ‘[1] the action reasonably cannot be avoided under the doctrine of necessity, and where [2] the action is preceded by public disclosure of the relationship or the proposed action and the personal interest of the Governor or his immediate family.’” Report, p.6, par. 4, citing Code of Conduct for the Governor, (F) Conflicts and Appearances of Conflicts, (c).
This is probably the only conclusion in the Report that matters, one ruling that overrides all other findings, all other facts, all other law, all other errors. The title of that conclusion is the “Rule of Necessity.” The Rule of Necessity seems to be a common law provision generally applied to judges. Its substance is that where all available judges are somehow biased and thus disqualified from acting in some matter, no judges are disqualified from acting in that matter. The logic is that the issue (contract) must be resolved (negotiated) so people can move on. Justice is done by a disqualified person(s) even if the result is injustice. Assuming the invocation of the necessity rule is appropriate; the Governor’s Code of Conduct is not mandatory and may be violated with impunity by Governor Corzine or any Governor or Acting Governor.
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