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 supreme. Show all posts
Showing posts with label supreme. Show all posts
Friday, June 6, 2008
Sunday, June 17, 2007
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.
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.
Thursday, June 14, 2007
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?
Thursday, June 7, 2007
BROKEN TRUST: IS A.G. RABNER A JUDICIAL ACTIVIST, PART 1.
The overarching question for New Jersey’s Senate Judiciary Committee Hearings considering Gov. Corzine’s appointment of A.G. Rabner to Chief Justice of the Supreme Court is whether A.G. Rabner is a “judicial activist” and if so what kind?
Justices or judges may act as judicial activists in two ways. First they may usurp authority. A judge or justice who exercises the power to decide that is not given to him or her by a lawful authority (the constitution or a legislature) overrides the authority of the U.S. or state constitution or commandeers the power of and acts as a legislator. Second, a justice may misuse lawfully given power by abusing his or her discretion when deciding a case(s). An abuse of discretion occurs by deciding a case or cases in a manner that is arbitrary, capricious, whimsical or somehow otherwise incorrect (an error in interpreting fact or law or both). In such instances, however, recourse is generally available from a higher court.
However, there is generally no meaningful recourse from the decision of a supreme court.
The U.S. Supreme Court is the final authority on questions concerning the U.S. Constitution. Thus, when the U.S. Supreme Court decides a U.S. Constitutional matter the only recourse is to amend the Constitution. Examples of this situation are (1) the use states and local governments of eminent domain to seize homes for office parks and (2) applying the commerce clause to regulate truck routes.
Most importantly, each state’s supreme court is the final authority on questions that only concern the application of a state’s constitution, i.e. it does not involve the U.S. Constitution. Here too, the only recourse from a state supreme court ruling on the state’s constitution is to change the state’s constitution. And finally, where there are no issues involving the U.S. Constitution, a state supreme court is also the final authority on statutory questions. An example in New Jersey is the finding the State’s Constitution requires homosexual couples have the same State rights as heterosexual couples.
Assemblyman Richard Merkt, R-Morris, has argued that the Supreme Court ruling showed "astonishing judicial contempt." Furthermore, "Republicans have introduced several measures to unravel the law, but no measures have advanced in the Democratically controlled Legislature, where its leaders have vowed not to consider proposals to take rights away from anyone."
At the opposite end of the spectrum Frank Askin, General Counsel of the American Civil Liberties Union [aclu] has said "We really do not know a whole lot about his commitment to social justice, which for years has been the hallmark of the New Jersey Supreme Court." Askin has more than a passing interest that includes the Ocean Grove Camp Meeting Association's policy banning same-sex civil unions at the boardwalk pavilion. Rabner has for the moment, declined comment.
If Senate Judiciary Chairman Adler and company exercise due diligence A.G. Rabner will be questioned about judicial ideology concerning the basis, methodology and rules of construction for such decision making in general and the Lewis case in particular. How he does or does not answer the question will be informative. After all, as a graduate of Princeton and Harvard and as Attorney General, one must expect A.G. Rabner to have an opinion on the law, even if he disagrees with it. And, as an assistant U.S. Attorney the A.G. knows his first duty is not to prosecute, but to search for the truth. Thus, it is only proper he be forthcoming on the issue at his confirmation hearing.
Justices or judges may act as judicial activists in two ways. First they may usurp authority. A judge or justice who exercises the power to decide that is not given to him or her by a lawful authority (the constitution or a legislature) overrides the authority of the U.S. or state constitution or commandeers the power of and acts as a legislator. Second, a justice may misuse lawfully given power by abusing his or her discretion when deciding a case(s). An abuse of discretion occurs by deciding a case or cases in a manner that is arbitrary, capricious, whimsical or somehow otherwise incorrect (an error in interpreting fact or law or both). In such instances, however, recourse is generally available from a higher court.
However, there is generally no meaningful recourse from the decision of a supreme court.
The U.S. Supreme Court is the final authority on questions concerning the U.S. Constitution. Thus, when the U.S. Supreme Court decides a U.S. Constitutional matter the only recourse is to amend the Constitution. Examples of this situation are (1) the use states and local governments of eminent domain to seize homes for office parks and (2) applying the commerce clause to regulate truck routes.
Most importantly, each state’s supreme court is the final authority on questions that only concern the application of a state’s constitution, i.e. it does not involve the U.S. Constitution. Here too, the only recourse from a state supreme court ruling on the state’s constitution is to change the state’s constitution. And finally, where there are no issues involving the U.S. Constitution, a state supreme court is also the final authority on statutory questions. An example in New Jersey is the finding the State’s Constitution requires homosexual couples have the same State rights as heterosexual couples.
Assemblyman Richard Merkt, R-Morris, has argued that the Supreme Court ruling showed "astonishing judicial contempt." Furthermore, "Republicans have introduced several measures to unravel the law, but no measures have advanced in the Democratically controlled Legislature, where its leaders have vowed not to consider proposals to take rights away from anyone."
At the opposite end of the spectrum Frank Askin, General Counsel of the American Civil Liberties Union [aclu] has said "We really do not know a whole lot about his commitment to social justice, which for years has been the hallmark of the New Jersey Supreme Court." Askin has more than a passing interest that includes the Ocean Grove Camp Meeting Association's policy banning same-sex civil unions at the boardwalk pavilion. Rabner has for the moment, declined comment.
If Senate Judiciary Chairman Adler and company exercise due diligence A.G. Rabner will be questioned about judicial ideology concerning the basis, methodology and rules of construction for such decision making in general and the Lewis case in particular. How he does or does not answer the question will be informative. After all, as a graduate of Princeton and Harvard and as Attorney General, one must expect A.G. Rabner to have an opinion on the law, even if he disagrees with it. And, as an assistant U.S. Attorney the A.G. knows his first duty is not to prosecute, but to search for the truth. Thus, it is only proper he be forthcoming on the issue at his confirmation hearing.
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