Why the N.J. Supreme Court Should Review the Corzine-Katz Email Appeal

The N.J. GOP’s Tom Wilson has appealed to the N.J. Supreme Court to review the appellate panel’s decision to overturn the trial court decision and deny public access to the Governor Corzine and then C.W.A. local president Katz emails. The emails argue about the inclusion of certain features in a new union contract.

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.

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.

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: GOV. CORZINE HAS A.G. RABNER ON SUPREME COURT SPIN CYCLE

Governor Corzine appears to have initiated the second go-round in his multi-part strategy to put A.G. Rabner in the seat of retiring Chief Justice Zazalli.

The first phase was to create Brand Rabner in the public’s mind by making him the Governor’s Counsel and Attorney General.

The second phase was to wait until the last minute to announce the appointment and thus provide enough uncertainty to prevent any opposition from zeroing in on a sitting target.

The third phase began on Thursday, May 31, 2007, when anonymous "administration officials" leaked to the press that Governor Corzine will announce, at a press conference scheduled for Monday, June 4, 2007, A.G. Rabner is his choice to replace C.J. Zazalli on June 17, 2007. And, of course, Governor Corzine's Office refused to comment (1).

The purpose of the Thursday’s release, therefore, is threefold. First, it gives the press a "scoop" and thus a reason to quickly print the story, i.e. to create buzz. Second, it sets the tone and frames the buzz in those stories by sending otherwise busy reporters scurrying to put together some relevant combination of facts, quotes and analysis by deadline. Third, it uses the timing as a foil to unfavorable news . Without more then, Monday's announcement is old news, out of the headlines - a fate resigned to. By Monday night the media's eyes and reporting attention will be on the State's primary elections. And, in a week, plus or minus, Rabner will be quietly confirmed.

Based on newspaper articles it appears Governor Corzine's early head count makes the appointment of A.G. Rabner a go. But, as your read them, ask yourself some questions: Do the things said about A.G. Rabner show essential and enough attributes, as opposed to being good but not necessary nor enough characteristics, to warrant making him the next Chief Justice? Do they identify Governor Corzine’s mission, what he wants the Court to be?

Peter G. Verniero (Disgraced former Justice) "... From what I know of Stuart, he’s up to the task.” COMMENT: Then again, racial profiling is up.

Senate President Richard Codey: " 'This was expected all along.' ... Rabner 'is an excellent choice. I think he's fair,' said Codey, who represents Rabner's hometown … . 'I don't necessarily think he tilts either way, ideologically. He's a man of integrity and a voice of reason.'" COMMENT: What the hell did he say? Without a legal ideology there is neither a legal mode nor method and thus only arbitrary, as opposed to fair, judgments. Isn’t that called judicial activism?

Senate Minority Leader Leonard Lance "said he did not want to 'pre-judge' the confirmation process, but 'as a starting point, I would say that Stuart Rabner received our support when he was confirmed to be attorney general.' Lance also said he worked well with Rabner when Rabner was Corzine's chief Counsel last year." COMMENT: Looks good, feels good.

Senator Adler (Chairman of the Senate Judiciary Committee) "who graduated from Harvard Law School a year before Mr. Rabner, said of his qualifications: 'I have a very high regard for Stuart Rabner as an attorney, as a public servant and as a person. And in whatever capacity he serves New Jersey, New Jersey is better off.'” COMMENT: Rabner for Governor!

Senator Gerald Cardinale said "it would be 'one of the better appointments' that Corzine has made." COMMENT: Seems to imply Governor Corzine has pretty low standards.

The Fourth phase will begin with NJ Bar provided unsubstantiated anointing, followed by a short Judiciary Committee hearing, ASAP, with an equally quick Senate vote. Speed of approval is necessary to prevent in depth review and legislative accountability. It facilitates ignoring, silencing or ridiculing any opposition. Why? Because when you scratch the surface, Meagan's Law litigation aside, one might find A.G. Rabner to be neither qualified nor impartial.



FOOTNOTES:
(1) This post was ready for release on the morning of 06 - 04 - 07, but was not published. Please accept our apology. Because it is an analysis of Governor Corzine's strategy, however, for better or worse, it is unchnaged. thus, the decision was made to publish it today. Thank you for you patience.

(2) Monday's announcement may or may not be as advertised. It could be a feint and the Governor might name someone else. But that would anger a lot of reporters. Such an Administration in-your-face on the heels of the anonymous official certainty incorporated by so many reporters into creating their stories would hurt the reporters (source checking) and their employers' credibility (the Fourth Estate) and damage the administrations ability to spin future leaks. Or, the announcement could be a variant of the leak. If, over the weekend, an opposition with the power to stop A.G. Rabner appears stronger than anticipated, Governor Corzine could appoint him to the Supreme Court as a justice. Someone else, like tenured Justice Virginia Long, might be elevated to Chief Justice. Justice Long retires no later than 2012. This path would advance A.G. Rabner to the Court and give him another chance within 5 years. An improbable, but practical Plan B.

BROKEN TRUST: GOV. CORZINE SUPREME COURT MOMENT NO TIME AT ALL

Governor Corzine resumed his offical duties on May 7, 2007. On May 18, 2007 Governor Corzine declared the goal of his next Supreme Court appointment would be made to make a lasting impact on the Supreme Court and would be made no later than June 4, 2007. Current Chief Justice Zazalli retires on June 17, 2007.

The Memorial Day Weekend is now upon us. Yet, the longer Governor Corzine waits to make the announcement, the less time, and consequently, the harder it will be, to publicly access the appointee, and the less likely it will be to evaluate the consequences of the candidate's confirmation. It also minimizes potential objections to or threats of rejection. Although for all intents and purposes the Supreme Court will soon vacation for the summer, there is little possibility the season will be an excuse for a vacant Chief Justice seat.

The bottom line is Governor Corzine sees the confirmation process as a superficial inspection and a perfunctory courtesy. Thus, a successful appointee is one that relies on public name recognition and / or logical public coherence.

However, calling someone "eminently qualified" or noting a "long period of public (even judicial) experience" does not identify the tangible standards that one must meet in order to be a Chief Justice. Nor are they proofs from a credible public process that specifically identifies how the candidate does or does not fulfill each benchmark.

The devil is always in the details. But, as Governor Corzine seizes the moment who will "seize the time?"

BROKEN TRUST: DON IMUS, GOV. CORZINE & ZAZALLI SUPREME COURT

Governor Corzine and the Zazalli Supreme Court seem to be "one toke over the line" in their approach to judicial credibility. Or, maybe it's just that they are "ten percent to the left of center in good times and ten percent to the right of center when it affects themselves." But, whatever the reason(s), their reliance on former Chief Justice Deborah Poritz as a watchdog over the State's judicial integrity only reinforces the long standing notion of "Jersey Justice" being nothing more than a continuum of broken trust. Prior to the Rutgers' incident, Governor Corzine has appeared on the Imus program a number of times. Nevertheless, Governor Corzine was quick to call Imus out and condemn the race and gender charged remarks that Don Imus made about the Rutgers' women's basketball team. And, Governor Corzine was schedule to act as a go-between at the team-Imus meeting, when traveling at an unecessary 91 mph and without weraring a seat belt, he had a accident(Ironically, the Governor gets a ticket, the trooper takes the fall, and the repentant sinner orders the public get his dose of medicine). The irony of the Imus affair is that Governor Corzine appointed former C.J. Poritz to the Judicial Advisory Panel. The panel suggests and reviews candidates for judicial appointments. C.J. Portitz was placed on the Panel even though she usurped the U.S. Constitution with the creation of the offense known as driving-while-black, i.e. racial profiling, during her stint as the State's Attorney General. Although her apologists note that was a while ago, racial profiling appears to be a growing problem. What makes this even better (or worse), is that Deborah Poritz's racism was rewarded by first being appointed to Supreme Court Chief Justice, and later by being given life tenure. (Again, the State Troopers took the fall). Conversely, Governor Corzine's Attorney General, Zulima Farber, was forced from office for defending her intimate companion in a, you guessed it, click-it or ticket-incident. Somehow reformer Corzine's higher standards of conduct apply to Ms. Farber but not C.J. Poritz, and certainly not to Governor Corzine himself. The investigation of Ms. Farber was relatively independent and open. The investigation of C.J. poritz consisted of a closed door, one person interview with a page of notes (Not even president Bush, AG Gonzales or the Democratic Congress have that one in their play book!). And, former Justice O'Hern's investigation of Gov. Corzine & Ms. Katz was not independent of the Governor, took place in secret and without a record (Maybe AG Gonzales should be held to Governor Corzine's "Due process" standards.). Would that it would end here - damage control, ya know - but it doesn't. The Zazalli Supreme Court must also find racism palitable as it appointed C.J. Poritz to head the "Ad Hoc Committee to Advise {the} Supreme Court on {the Judicial} Code of Conduct." "In particular, the committee has been asked to make recommendations in respect to Court Rule 1:12 and Canons 3 and 5 of the Code, which set the standards for cases in which a judge shoild not participate to preserve the appearance of the court's neutrality. MY, MY, MY! What have we here??? Canon 3(a)(4): "A judge should be impartial and should not discriminate because of race, color, religion, sex, sexual orientation, national origin, language, martial status, socioeconomic status, or disability." Canon 3(a)(6): "A judge should accord to every person who is legally interested in a proceeding, or that person's lawyer, full right to be heard according to law, and except as authorized by law, neither initiate nor consider ex parte or other communications concerning a proceeding or impending proceeding... ." How would Don Imus describle this mess? What's the word he would use? Duplicity? Fits the facts, but, No. Hypocrites. Maybe. Weasels? Yep, Weasels. The word is Weasels. Labels:

draft

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.