NJMS Won't Certify, A-804 Won't Help, States' "Woefully Inadequate" Marijuana Programs, AMA's Call for Clinical Research & FDA Sativex Trials Require Tabling NJ's Compassionate Use Medial Marijuana Act

NJMS Won't Certify and A-804 Won't Help BUT More Kids, Mr. Wilson Smoking "safe","medical" marijuana. (updated 12-17-09)

All earlier evidence aside (updated further below) how can NJ legislators, intentional or not, encourage vulnerable kids and desperate people like Mr. Wilson marijuana is a medicine and thus safe to smoke, when the NJ Medical Association will not, like F.D.A. approved medicines, certify its actual risks and it is actually a valid, accurate, and reliable treatment, nor determine the appropriate quality and dosage?

1. A study, compiled by the University of Michigan for the federal National Institute on Drug Abuse (A) found "...use of marijuana across all three grade-levels increased [over 46,000 8th,10th & 12th graders participated]. The study attributed the rise, at least in part, to the growing acceptance of marijuana use for medicinal purposes. That trend has made the drug appear less dangerous to teens, the study said. CSMONITOR, Daniel B. Wood, December 14, 2009. (B). This finding is consistent with the 2004 Pediatrics' technical report "Legalization of Marijuana: Potential Impact on Youth." It concludes the "Legalization of marijuana could decrease adolescents’ perceptions of the risk of use and increase their exposure to this drug. Furthermore, data concerning adolescents’ use of the 2 drugs that are legal for adults (alcohol and tobacco) suggest strongly that legalization of marijuana would have a negative effect on youth." (C) (pdf).

2. The irony associated with this perception is its disconnect with the refusal of the New Jersey Medical Society to certify the risks and benefits for any use of marijuana as a medicine. In fact, the Medical Society of New Jersey is said to have relaxed its opposition to the state bill after lawmakers removed provisions requiring doctors to certify the risks and benefits of medical marijuana. (D). And, of course, Assembly Bill A-804 expressly disavows any Government liability for any use.(E).

The contrast is more obvious when compared to Pennsylvania and Wisconsin. The Pennsylvania Medical Society has not taken a position on the state measure, but it pointed lawmakers to American Medical Association policy calling for further research into medical marijuana's efficacy. (D). Dr. Michael Miller, who was representing the Wisconsin Medical Society, said despite the growing popularity of legalizing medical marijuana both in the state and across the country, it’s not an effective pain killer and smoking it causes other health problems. (F). Miller also told lawmakers the Wisconsin Medical Society opposed the bill because drug approvals should be based on science and left to the Food and Drug Administration. (G) .

3. Which leads us to Mr. Wilson. Based on press reports of the facts it appears Mr. Wilson has a mild form of an admittedly horrible chronic illness, Multiple Sclerosis. Desperate for relief he was growing marijuana because (1) he could not afford other medications, (2) he believed it to be a "safe" "medicine", and there is no indication his intent was other than for self medication. Based on these facts one would hope whoever is governor would effect a one off pardon as a source of mercy but also as a warning it is not a defense. This is not to relieve Mr. Wilson of his responsibilty. He had to get the seeds from someone and it is equally possible kids or even drug dealers could have found his grow site. And, what about the small bag of illegal, hallucinogenic mushrooms. (H).

That said however, however, pending legislation would not substantially aid Mr. Wilson. Marijuana is generally discussed in terms of an ounce (google search). Assuming there was a medical exemption, which assumes it really is a medicine, Mr. Wilson had 17 plants, which is + / - 120 ounces (google search). That's 10 ounces per month. A-804 allows a "patient" one (1) ounce per 30 day period. For comparison, a .6 ounce pouch of tobacco makes 40 cigarettes. Thus 10 ounces roughly equals 800 cigarettes or 2 cartons per month.

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Smoking A Joint Doesn't Make Marijuana Medicinal- It Does However Diminsh Medical Science and Scientific Certainty.

Said differently, the next time you're in a drug store - look around at the safe, accurate, valid and reliable F.D.A. approved medicines, both prescription and over the counter, covering a wide range of illnesses. Then ask yourself a question - do you want science corrupted by the emotional, anedotal, preclinical evidence (Ephedirin, the Oxygen Vitamin, and early cigarrette (Old Gold) promotions, etc.) offered by special interest groups or the dispassionate scientific certainty associated with the expert scientific process devoid of political considerations to be the standard for determining both the medications and amounts of medications the public uses?

Politics cannot be allowed to corrupt science. The issue of whether marijuana has a medicinal use is a question for science to be answered with scientific certainty and not a popularity contest resulting from the political promotions of special interests or a tool of litigation public relations. If the interest in marijuana is indeed medicinal then its time to walk the talk by deferring any pending legislation until scientific inquiry (such as the F.D.A. Sativex trials) demonstrates its use is safe, valid, accurate and reliable as well as administratively manageable. In short, the dispassionate process of scientific certainty is in the interest of those who truly suffer while preventing those with less altruistic motives from using people with severe illnesses as human shields.

1. Smoking a joint does not make marijuana medicinal. Neither the MS Society or American Cancer society advocates its use. The November 21, 2009 LA Times Editorial "The AMA's Reversal on Marijuana"  (pfd) specifically notes: For all the debate over whether marijuana has medicinal value, arguments that the drug has significant palliative properties or that it has none suffer from the same flaw: There's little scientific proof either way."

The American Medical Association, LA Times & Washington Post are calling for extensive federal research of marijuana's medicinal purpose(s). The A.M.A. House of Delegates has called "for further adequate and well-controlled studies of marijuana and related cannabinoids in patients who have serious conditions for which preclinical, anecdotal, or controlled evidence suggests possible efficacy and the application of such results to the understanding and treatment of disease."

2. At the same time, the AMA specifically rejected state-based medical marijuana programs & the Washington Post editorial (Oct 25 "Questions About Pot") calls for a moratorium on new state programs.


"The AMA supports the concept of drug approval by scientific and regulatory review to establish safety and efficacy, combined with appropriate standards for identity, strength, quality, purity, packaging, and labeling, rather than by ballot initiative or state legislative action." ... Unoffical [ AMA Witholding from publication to allow peer review]. AMA Report  3 of the Council on Science and Public Health. (pfd) (last page)

Accordingly, "the patchwork of state-based systems that have been established for “medical marijuana” is woefully inadequate in establishing even rudimentary safeguards that normally would be applied to the appropriate clinical use of psychoactive substances. " Executive Summary, AMA Report 3 of the Council on Science and Public Health.

Indeed, even The Washington Post (Oct 25 "Questions About Pot") is calling for a moratorium on new state programs.

3. The F.D.A. is currently near the end of extensive clinical trials of Sativex for cancer and M.S.
It is the AMA's position that smoking it is not a solution:

"If there is any future for marijuana as a medicine, it lies in its isolated components, the cannabinoids and their synthetic derivatives. Isolated cannabinoids will provide more reliable effects than crude plant mixtures. Therefore, the purpose of clinical trials of smoked marijuana would not be to develop marijuana as a licensed drug but rather to serve as a first step toward the development of nonsmoked rapid-onset cannabinoid delivery systems." Unoffical version of AMA Report.

Dr. Edward Langston, an AMA board member, states more studies, in particular randomized, controlled trials, need to be carried out on smoked cannabis. According to Dr. Edward Langston the small number of that have been conducted in the past 30 years have been "insufficient to satisfy the current standards for a prescription drug product." LA TIMES, Medical marijuana gets a boost from major doctors group, 11-11-09.

Dr. Michael M. Miller, a psychiatrist who practices addiction medicine, proposed the amendment. "Smoking is a bad delivery system because you're combusting something and inhaling it," he said. LA TIMES, Medical marijuana gets a boost from major doctors group, 11-11-09 .

The October 25 Washington Post editoral article recognizes the medical marijuana controversy may be moot in the near future as a number of extensive FDA supervised clinical trials of a drug known as Sativex (cancer & MS) have ended or are near an end. Sativex meets a diverse range of criteria by delivering the cannabis product via an inhaler it allows a user to function "normally" because it relieves [1] the pain [2] without the "high" and [3] prevents the rapid deterioration to lung function associated with smoking marijuana.

DETAIL
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The Washington Post's Editors write in "Questions About Pot?" "More information -- good old-fashioned scientific information -- is needed before the federal government or more states formally endorse marijuana smoking for medicinal use. The Institute of Medicine, an arm of the National Academy of Sciences, in 1999 published what is widely considered to be the most comprehensive study; it was decidedly mixed, listing the many possible drawbacks of smoking marijuana, including respiratory problems, while noting that such use seemed to provide some patients with relief not obtained from pills containing marijuana's active ingredients.

More recently, Dr. Peter J. Cohen, an adjunct professor at the Georgetown University Law Center, noted in a 2009 law review article that reputable studies released in the past few years showed that patients with AIDS and hepatitis C experienced reduced pain and nausea and were better able to tolerate traditional treatment as a result of smoking marijuana. Yet these preliminary results -- as Dr. Cohen points out -- have not been subjected to rigorous testing by the Food and Drug Administration. The reason: A manufacturer must submit the drug for review before the FDA will tackle the assignment. So far, no such "manufacturer" has come forward.

The medical marijuana controversy may be moot in the near future because of a drug known as Sativex, a spray mist approved for conditional use in Canada and the United Kingdom that delivers the active ingredients found in marijuana. If cleared by the FDA, patients will have some confidence that it is safe and effective. Patients have the right to know if the same can be said about smoked marijuana."

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It should be said upfront that we strongly disagree with "Executive Branch nullification (as opposed to prosecutorial discretion)" of Constitutional legislation and Supreme Court review because it embodies the essence of "arbitrary government." It not only ignores the Constutional seperation of powers between the Executive and Congress and the Court, it shreds "our Federalsim", i.e. the Constitutional relationship between the Federal and State Governments. That said, however, and for the reasons set forth below, the Post's focus on science over interest group politics is compelling.
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Scientific Certainty of F.D.A. Sativex Trials Moots NJ's Compassionate Medical Marijuana Act If any decision concerning the medicinal use of marijuana is as simple as some suggest one must ask why the U.S. & U.K. National MS Societies & the American Cancer Society question its use and continue to withhold their approval. In reality there are many obstacles. For example, "Marijuana Smokers Face Rapid Lung Destruction -- As Much As 20 Years Ahead Of Tobacco Smokers." January 2008 Respirology. And, as the Center for Disease Control points out in its 09-04-09 MMWR weekly, eating marijuana gives rise to a seperate set of problems - including efficacy, doseage, duration, etc. Finally, people with MS have higher rates of depression and suicide compared to the general population. “Since marijuana can induce psychosis and anxiety in healthy people ... it was especially important to look at its effects on people with MS ... February 13, 2008, online edition of Neurology, the medical journal of the American Academy of Neurology.

George Washington University Constitutional law Professor Turley has commented the partisan political interests involved in the issue of marijuana for medicinal purposes has resulted in the major political party's acting in a manner that is completely at odds with their traditional view of the Constitution and the prevailing status of the defined Constitutional relationship between Federal and state governments. (1). So too, Georgetown University adjunct law professor Peter J. Cohen, an apparent advocate for marijuana, provides a substantive confirmation of the problem in his Utah Law Review article "Medical Marijuana: The conflict Between Scientific Evidence and Political Ideology. (2). In effect, Cohen agures any medicinal use must be determined soley by science while any recreational use is a political question.

According to Cohen "... advocacy is a poor substitute for dispassionate analysis [and] popular votes should not be allowed to trump scientific evidence in deciding whether or not marijuana is an appropriate pharmaceutical agent to use in modern medical practice. ... scientific evidence devoid of political considerations should be allowed to guide future decisions regarding the status of Cannabis sativa when used for medical purposes." Cohen, Peter, Medical Marijuana: The conflict Between Scientific Evidence and Political Ideology, Utah Law Review,  p.41-42.

To make a scientific decision requires help. It enhances public trust and confidence in the legislature when it recognizes it lacks the expertise, resources and organization to make such a decision. Such decisions are first the provence of a peer review of the testimony and studies of pharmacologists, epidemiologists, and psychologists. For example, the Iowa legislature is currently faced with a similar question. Unlike NJ, however, the Iowa Pharmacy Board is engaged in hearings that will lead to a recommendation to Iowa legislature as to what, if any, use of marjiuna should be permitted. (3). The Board consists of five licensed pharmacists and two public members. Four are Democrats, two are republicans and one is an independent.(4).

Even with their expertise the Iowa Board has a Herculean task. The Iowa Pharmacy Board's actions to determine if there is any appropriate medicinal use for marijuana, including any recommendations concerning production, distribution and consumption, will quite rightly be compared (5) to the standards and process by which the U.S. Food and Drug Administration approves any drug for human use. (6) (7).

There are many criteria that must be met. Unless a state government’s expertise,resources and organization are at least equal to that of the F.D.A. it is questionable any state can reinvent the wheel (the next time you’re in a drug store look around at the over-the-counter and prescription medicines). Scientific certainty, while not absolute certainty, seems precise. Scientific testing is not a hodge podge of studies based on too few few participants or a collection of personal testimonials.

While those studies and antedotes may be relevant and may inform an F.D.A. review, the F.D.A. requires several phases of testing that generally includes the monitoring of several thousand participants. Indeed, the Iowa Globe-Gazzette's 10-07-09 report "Consensus: Medical marijuana helps pain, needs more research" (8)  on yesterday's Iowa Board hearing notes an apparent consensus that while marijuana may relieve pain, more testing is necessary. The Iowa Globe's observation is important because it is exactly the same conclusion reaced by the IOM study relied on in the NJ Compassionate Use Medical Marijuana Act.(9).

It now appears the F.D.A. is close to resolving many of the outstanding issues. In 2006 GW Pharmaceuticals (gwpharm DOT com) began clinical trials of "Sativex" under the supervision & in accord with F.D.A. guidelines. Sativex meets a diverse range of criteria by delivering the cannabis product via an inhaler and thus allows a user to function "normally" because it relieves [1] the pain [2] without the "high" and [3] prevents the rapid deterioration to lung function associated with smoking marijuana. .

Clinical trials are presently in or at the end of their phase II or III level. These trials provide a clear meaning to the "scientific certainty" required for approval by measuring both its purported benefits while seeking to mitigate its potential harms. In short, the tests address the foreseeable consequences of the drugs use in order to insure its application is not only accurate, valid and reliable, but its harm is insignificant and the potential for abuse minimized. Specifically, the Sativex trials for MS, cancer and other disorders demonstrate how science must be applied to discern if there is any benefit to patients without damage from ingestion and discouraging recreational use.

In sum, the F.D.A. will soon settle the issue as to whether and under what cirumstances marijuana has any medical value.
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NOTE:

According to the previous 2008-09 GW pharmaceuticals web site:

(i) "GW intends to seek marketing approval for "Sativex" by means of the conventional FDA regulatory process. As GW moves through that process, we will naturally follow the FDA's guidance …"

(ii) "It is important to understand that the medical benefits of cannabis-based medicines are separate and distinct from the “high” associated with cannabis. Evidence from GW's clinical trials shows that the majority of patients can obtain the medical benefits of cannabis before any feeling of a "high". Patients emphasize that they seek to obtain the medical benefits and do not wish to experience intoxication. This is similar to the reports of patients who use self-administered morphine for pain control. Patients control or “titrate” the dose that they need to relieve their pain while minimizing unwanted side effects such as intoxication."
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* URL's Updated 12-01-09 2:15 P.M. EDT. If link is gone contact us or use Google.com (not google.com/news)

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.

WILSON v CORZINE & KATZ: IS GOV. MENACING JUDICIAL INDEPENDENCE?

This post has three purposes concerning the Corzine-Katz emails. The first is to recognize that by all appearances the Judge has done his best governing the case. The second purpose is to recognize a unique confluence of events that, intentional or not, may open the door for an increasingly unpopular Governor to silently exert an inappropriate influence on the decision in Wilson v. Corzine & Katz. The third, and ultimate purpose, is to let Governor Corzine know we know what he knows and thus he should forget about it.


BACKGROUND

For Hamilton, Jefferson and Jay the ability of either the Executive or Legislative branch to exercise any power over judicial decision making is incompatible with a democratic republic: "`Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for THE JUDGE would then be THE LEGISLATOR. Were it joined to the executive power, THE JUDGE might behave with all the violence of AN OPPRESSOR.'" Federalist Papers, No. 47.


The founding fathers sought to protect the judiciary from both Executive and Legislative encroachment by memorializing what is likened to lifetime tenure and permanent compensation in Article III, Section 1 of the Constitution. They reasoned;


“The standard of good behavior for the continuance in office of the judicial magistracy is certainly one of the most valuable of the modern improvements in the practice of government. ... it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.” Federalist Papers, No.78. “NEXT to permanency in office, nothing can contribute more to the independence of the judges than a fixed provision for their support. The remark made in relation to the President is equally applicable here. In the general course of human nature, A POWER OVER A MAN’S SUBSISTENCE AMOUNTS TO A POWER OVER HIS WILL.” Federalist Papers, No. 79.


INFLUENCE


The issue of Executive influence takes two forms in Corzine – Katz. The first is somewhat subtle and indirect – The matter of another judicial pay increase is to be decided during the November lame duck session of the legislature. The second is direct and obvious – the Judge deciding Corzine- Katz does not have life tenure and is thus dependent on favorable near term action by the Governor to obtain it.


First, Corzine – Katz is being tried by a bench trial in the Mercer County Superior Court, Trenton, N.J. It also appears the Judge may live in the Mercer County. This is important because on September 25, 2007, ten days before the most recent hearing in Corzine-Katz, the article about judicial pay increases suddenly appears in the Trenton Times. Reporter Linda Stein writes that “Two months after getting their first pay raise in five years, Superior Court judges are seeking another increase, officials confirmed on Tuesday.” Stein goes on to write:


“Tammy Kendig, a spokeswoman for the state judiciary, said the administrative Office of the Courts will ask the legislature to consider another salary boost for the Judges in November after the election.” The next hearing date concerning the Corzine- Katz emails is scheduled for November 15, 2007.


Furthermore, since the first article, numerous news stories concerning a judicial pay raise are published. The following news report list is meant to be representative rather than inclusive. Moreover, it is not to suggest a press conspiracy. Rather, it is a statement that another pay increase is news and good news distribution includes frequency and reach.


“Shame on Judges for Salary Whining” - Asbury Park Press, 09/30/07

“Judges Don’t Need Another Pay Bump” – Courier Post, 09/30/07

“Chief Justice Says State Judges Deserve Another Raise” – Press of Atlantic City, 10/11/07

“Judges have No Case for Another Pay Raise” – Home News Tribune, 10/11/07

“N.J. Chief Justice Calls judges Underpaid” – Asbury Park Press, 10/12/07


Now, at first glance, the Governor’s power to determine whether or not the State’s judges get a pay raise may appear to make no difference in Corzine-Katz. Each and every New Jersey Superior Court Judge would face the same outside pressure as Judge Inness. Moreover, there is no plan to lower judicial pay. The purpose is more subtle. Objectively, both the timing and detail of these stories is to matter-of-factly catch the attention of all the Judges in general, and the attention of Judge Innes in particular. Peer pressure.


Accordingly, Judge Innes faces the carrot and the stick. He faces Governor Corzine’s informal power to push the legislature for or against a raise, as well as the Governor’s real power to approve or veto any lame duck November legislation that raises judicial pay.


Second, Judge Inness does not have life tenure (tenure during good behavior). The Judge was appointed for a seven year term in 2002. Governor Corzine was elected in 2006 and his term expires in 2010. Thus, Judge Inness must again be nominated by Governor Corzine and confirmed by the Senate in 2009 before his tenure can be permanent. The decision as to whether the Judge continues on the bench rests first and therefore solely, with whether Governor Corzine chooses to nominate him. If not, he will no longer be a judge.


It would therefore seem prudent to remember ;


The benefits of the integrity and moderation of the judiciary have already been felt in more States than one; and though they may have displeased those whose sinister expectations they may have disappointed, they must have commanded the esteem and applause of all the virtuous and disinterested. Considerate men, of every description, ought to prize whatever will tend to beget or fortify that temper in the courts: as 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. And every man must now feel, that the inevitable tendency of such a spirit is to sap the foundations of public and private confidence, and to introduce in its stead universal distrust and distress. Federalist papers, No. 78.

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.

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.

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... "

CORZINE - KATZ: BRAND HIJACK ! SEARCH FOR TRUTH ? ROSEBUD.

“Welcome my friends to the show that never ends
We’re so glad you could attend, come inside, come inside ...”

KarnEvil 9, Emerson, Lake and Palmer

"Brand hijacking is about Consumers shaping the brand meaning and endorsing it to others ... Special brands offer up a vision that people can identify with, one they want to involve themselves in more deeply. At its best, market involvement creates a cultural benefit, offering meaning in an otherwise chaotic modern world.” Brand Hijack, Chapter1.

The Corzine Brand is generally identified as shrewd businessman (Goldman Sachs), straightforward person (ethics reformer), and socially concerned citizen (Good Samaritan). The ill-fated relationship between Governor Corzine and Ms. Katz, however, may re-brand the product. As such, it’s a propagandist’s best daydream and a reputation managers worst nightmare.

The beauty of the ongoing Corzine - Katz saga is the story is so easy to hijack. First, its sticky because it is primal. The relationship will be long remembered because it combines soap opera with reality tv. A Master of the Universe dating Cinderella entices us with a promise of glamour, romance, power, money and sex. Second, the end of the relationship is increasingly mysterious and curiosity increases the susceptibility to a hijack. Coupled to the fact the alleged wrongdoing is so vague and the facts are so tenuous, the interpretation of what happened is settled by personal attribution: "Romeo and Juliet", "War of the Roses", "Play Misty for Me" (Fatal Attraction), or "All the Kings Men." "Citizen Kane" or Mae West. As we feel we have experienced it we will name it. Thus, rumor psychology fuels the increasing word of mouth. Each side however, seeks to ultimately control the Corzine Brand identity and each side can only allow the public to go so far in determining brand identity. Ergo, each group seeks to manage the direction. Republicans spin for political gain. Democrats counter-spin for damage control.

Doctor Strangelove or Doctor Feel-Good

Republicans contend that the recent NYT article is new evidence that Governor Corzine cannot appear or cannot actually administer State business when these activities involve interaction with Ms. Katz. Moreover, with the “liberal” Times as the basis for their authority it is argued Governor Corzine is not the forthcoming person he portrays himself to be as the funds given to Ms. Katz were not a half million dollars (plus or minus), but $6 million. The payments were not the act of a good samaritan exercising kindness by forgiving a loan, but were a self-interested financial settlement arising from unknown acts or omissions committed by Governor Corzine during his relationship with Ms. Katz. And, finally Governor Corzine is not the shrewd business mogul he appears to be as the payments were either restitution for some wrongdoing or hush money. In short, it is not Ms. Katz who is in obligated to Governor Corzine. It is Governor Corzine who is in beholden to Ms. Katz.

The Democrats appear to have chosen to ignore “the establishment” NY Times article. Rather, they seek to counter Republican concerns by relying on a cursory recognition of Ethics Advisory Panel authority and a general public awareness of its’ “opinion” the Governor had no pecuniary interest to be a total vindication. Nothing is said about the numerous unseen, and inappropriate emails between Governor Corzine and Ms. Katz. Nothing is said about why such communications were not immediately stopped after the first email, but rather were allowed to continue well into the negotiations. Ironically, this is the one action the Advisory Panel “advised” Governor Corzine was improper. And, nothing is said about why the unfounded “advice” of the Governor’s Executive (as opposed to judicial) Branch Panel should be accorded any sort of finality or respect.

The bottom line is no one knows whether the personal relationship is inextricably intertwined with the personal relationship.

“Interviews with some three dozen people who know the pair - from union administration officials to lobbyists and friends - leave no clear explanation as to why he paid the settlement or why their interactions have become strained. Some see her as a spurned lover still nursing hopes of reconciliation: others say she is a savvy advocate eager to leverage any avenue for political results. He is alternatively viewed as afraid of what she might say about him, or simply as a rich and generous man who considered the relationship significant enough to warrant helping her maintain the lifestyle they had shared.” NY Times, May 23, 2007 (subscription).

Rosebud.