Month: April 2023

Moderate Party Is Relying on Some Extreme Views in the Lawsuit Seeking to Justify Its Existence

Last August I wrote about the Forward Party that includes former Governor Christine Todd Whitman among its founders. I had entirely missed the forming of another third party, the New Jersey Moderate Party. The Moderates’ path to electoral success relies upon what it calls “fusion” voting. Essentially, the party is going to endorse either the Republican or Democratic candidate for an office and wants to have that candidate’s name appear on its line as well. In that way a disaffected Democrat who can’t stomach voting for a Republican (or vice versa) can pretend not to by voting for that candidate as a Moderate. The problem with this scheme is that it is not permitted by New Jersey’s election law, which prohibits a candidate from accepting more than one nomination.

Knowing that to be the case, the Moderate Party filed its nominating papers for then Representative Thomas Malinowski along with an extensive brief and other documents seeking to have Tahesha Way, New Jersey’s secretary of state (the chief election official), declare the anti-fusion statute unconstitutional. When she refused to do so, the Moderate Party and three of its members appealed that decision to the Appellate Division of the Superior Court (which has jurisdiction to review the final decisions of administrative agencies).

Maybe you’ve heard of what the media has taken to calling the “rocket docket” of the U.S. Supreme Court, those cases that arise suddenly with a great clamor that justice demands an immediate decision (usually the granting or vacating of a stay). The Moderate Party appeal was initially going to be considered on an accelerated basis because without a decision in the appellants’ favor in time for the ballots to be printed, the case would be moot. When it became clear that there would be no decision in time to allow Malinowski the benefit of a second line on the ballot, all parties agreed to deceleration of the appeal and both sides sought and obtained extensions of time to file their merits briefs. Recently the Secretary of State and the Republican Party, who intervened to defend the statute, filed motions to dismiss the appeal or to transfer the matter to the Law Division for the creation of a record, rather than file their merits briefs.((In a Star-Ledger guest column published last Sunday, and on NJ.com under the title “Whitman & Torricelli: Why we need a 3rd political party in New Jersey“(paywall), its authors indicate that the case is pending in the Supreme Court (not yet as far as I can tell) and will likely be decided in the next several months (don’t hold your breath).))

This post is not intended as a full-scale analysis of the merits of the Moderate Party’s appeal. Rather, I want to express my thoughts on the assertion that the First Amendment (the Free Speech Clause in particular)((See my prior posts Free Speech is a Bitch, Free Speech, but Not for All Ideas, and Freedom of Religion, As Long As You Agree With Me for my views on Free Speech.)) is appropriately cited to challenge regulations of voting mechanics. While in one sense voting is the pinnacle of free expression, it also has a specific purpose vital in a democracy: it selects those who will govern the rest for the next little while. The voter cannot be punished for the tenor of the vote. So long as the ballot is properly marked and no more candidates are voted than permitted, the vote is counted. But the voter does not get to write an essay explaining and justifying the vote and require that the returns report it. The vote is the vote, the why doesn’t change it. This is my problem with sentiments, such as expressed by William Kibler, one of the appellants, in his guest column “I’m suing New Jersey because I shouldn’t have to vote for a Democrat or a Republican” (again, subscriber exclusive) in which he says fusion is necessary to avoid “forc[ing] people to associate with a major party in order to cast a meaningful vote.” But giving one of the candidates already on the ballot an additional line with a different party affiliation does nothing to add any perspectives to the ballot. The cross-endorsed candidate still has the same positions.

Jay Bohn

April 27, 2023

Destruction of 98 Cases of Miller High Life Seems Extreme

The song starts “99 bottles of beer in the wall,” but Belgian customs officials recently destroyed (with the utmost respect for environmental concerns of course) 98 cases, that’s 2352 cans, of Miller High Life, the “Champagne of Beers.” In fact, it is exactly that nickname that led to the action.

Trademarks and brand names can be very valuable, and their owners will go to great lengths to prevent their genericization. The Coca Cola Company does not want “Coke” to be used for just any carbonated beverage, and “Xerox” is not a synonym for photocopy.

In Europe various regions have given their name for certain products and legal efforts are made to prevent the use of the regional name for similar products made elsewhere through the European Union’s protected designation of origin (PDO) regulations: feta for cheese produced in certain areas of Greece; Parmigiano-Reggiano and Parmesan for the Italian cheese,((“Parmesan” can legally be used outside the EU.)) and champagne for sparkling wine produced from certain grapes grown in the Champagne region, pressed in certain way and vinified by the méthode champenoise.((French wine regions have long had similar protections under the appellation d’origine contrôlée (AOC) system.))

I get it that Europe has its own laws and it could be misleading to label a sparkling wine as “champagne” if it does not meet the legal requirements, but even “coke” has other meanings beyond the carbonated soft drink, e.g., a solid carbonaceous residue derived from the destructive distillation of coal. There should be no confusion between the sparkling wine and beer (especially in cans).

Jay Bohn

April 24, 2023

Upcoming Demise of the Waterfront Commission May Be a Good Start

In On the Waterfront (Commission), I wrote about a pending case before the U.S. Supreme Court in which the State of New York was suing the State of New Jersey to compel NJ to remain a party to the compact which created the Waterfront Commission of New York Harbor (the Waterfront Commission). On Tuesday the Supreme Court decided the case, granting New Jersey’s motion for judgment on the pleadings and denying New York’s.

In the end the result was not a surprise as oral argument (transcript | audio) had effectively telegraphed that the Court had many problems with New York’s position. Justice Kavanaugh wrote the Court’s opinion in which all other justices joined.

NJ.com’s initial coverage, “In a big win for N.J., U.S. Supreme Court rules against N.Y. in long fight over waterfront watchdog,” while accurate in its reporting of the decision, throws shade on NJ’s decision to quit the Commission. It asserts that the State Legislature’s action was the result of political pressure from the unions and that “reports showing the continued influence of organized crime and abuses by local unions in hiring practices had been suppressed for political reasons.” The wisdom of NJ’s decision was properly not a factor in the Supreme Court’s decision.

I would not be surprised if the Waterfront Commission had its own share of plum jobs for the politically connected. If there is continuing influence from organized crime and graft and corruption continue to be practiced by the unions, maybe the Waterfront Commission wasn’t up to the task. New Jersey is going to have a special unit of the state police take over supervision of port activities in the state.

Bi- (or multi-) state commissions created by interstate compacts seem to me to be especially susceptible to political abuse. They are not accountable to either/any state that created them and certainly not to the electorate. There will be a tendency to expand their activities beyond, say, mere bridge maintenance to justify their continued existence. They may be given their own ability to raise funds (bridge tolls for example), moving them even further from legislative oversight. They become a source of patronage for the governors who can allocate “spheres of influence” for each other.

A thorough review of all such commissions is in order, with needed reform to follow.

Jay Bohn

April 20, 2023

Axon Case May Get Little Publicity, But Has Many Interesting Features

Last Friday the Supreme Court of the United States issued its decision in Axon Enterprise, Inc. v. Federal Trade Commission (and its companion case, Securities and Exchange Commission v. Cochran). I haven’t seen any news coverage of it, and it is going to be one of those decisions that has little to no public interest. I, however, have found several nuggets worthy of a blog post.

To start with the most basic facts, the Securities and Exchange Commission (SEC) started an enforcement action against Michelle Cochran, a certified public account. The Federal Trade Commission (FTC) started a separate, unrelated enforcement action against Axon. The targets of both actions sought to challenge the legal ability of the agency based upon constitutional claims((Neither the merits of the investigations nor of the targets’ challenges thereto were before the Court.)) and did so by filing an action in a United States District Court, based upon 28 U.S.C. § 1331, which provides that “district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” The district courts, however, noted that the agencies’ ultimate decisions were subject to some form of judicial review by a United States court of appeals and questioned whether, and ultimately held that, Congress’s establishment of the administrative adjudication((The initial decisions are made by “administrative law judges” (ALJs) appointed by the agency, which can be appealed to the commission itself. Both agencies also have the option to bring their enforcement actions in court.)) followed by judicial review process impliedly displaced the district court’s original jurisdiction. In Axon the Ninth Circuit affirmed, while in Cochran the Fifth Circuit, on en banc review,((Appeals are decided by panels of three judges, but the unsuccessful party can ask that a decision be reconsidered by all active judges in the circuit. Grants of such petitions are rare.)) ultimately reversed. The Supreme Court granted certiorari to review both decisions.

The first interesting bit is that every Justice agreed that Axon and Cochran get to have their challenges adjudicated by the district court and do not have to wait to appeal an adverse agency determination, but they came to this result by somewhat different routes. The Court’s opinion was written by Justice Kagan and joined by all but Justice Gorsuch. This opinion applied a previous case, Thunder Basin Coal Co. v. Reich, 510 U. S. 200, 212 (1994), to identify and apply various factors to determine whether Congress’s creation of a special statutory review scheme for the SEC and FTC precludes district courts from exercising jurisdiction over challenges to agencies’ actions. The ultimate conclusion, for these challenges to these investigations, was that it does not.

Justice Thomas, as he is wont to do, joined the Court’s opinion in full but wrote a concurring opinion to express his thoughts about matters suggested by the issue but that did not have to be decided to resolve the case, here his “grave doubts about the constitutional propriety of Congress vesting administrative agencies with primary authority to adjudicate core private rights with only deferential judicial review on the back end.”((I raised similar concerns last fall in my post Administrative Agency Should Not Be Lawgiver, Prosecutor, Judge, Jury, and Executioner.)) As Justice Thomas points out, the commissions overwhelmingly agree with their own agency decisions: “between October 2010 and March 2015, SEC won more than 90% of cases brought before its ALJs as compared to 69% of cases brought before federal courts” while “the FTC has not lost a single case [in administrative proceedings] in the past quarter-century.'” [Slip op. at 2, n. 1, quoting Cochran’s brief, bracketed text in Thomas’s opinion.]

Justice Gorsuch concurred in the result. Eschewing “the ‘Thunder Basin factors,’” Justice Gorsuch looks to the language of 28 U.S.C. § 1331, quoted above: “Not may have jurisdiction, but shall. Not some civil actions arising under federal law, but all. The statute is as clear as statutes get, and everyone agrees it encompasses the claims Ms. Cochran and Axon seek to pursue. [citation omitted] End of case, right?”((Add this effort to my list of recommended Gorsuch opinions, Gorsuch’s Buffington Dissent a Well-Written Critique of Chevron Deference and Justice Gorsuch’s Dissent in Arizona v. Mayorkas a Good Read.))

Jay Bohn

April 17, 2023

Not Every Bill Becomes a Law

Sometimes you will see a news article describing a trend (usually one of which the author disapproves) derived from bills introduced in a legislative body. An example is a recent piece from Reckon((Reckon describes itself as “an award-winning national news organization that covers the people powering change, the challenges shaping our time, and what it means for all of us.”)), “Texas is on a crusade to kill the state’s stunning renewable energy progress” that was republished on LeghighValleyLive.com a couple of days ago.

The piece complains about “a series of anti-environmental bills . . . .” Well, I don’t know about Texas, but in New Jersey thousands of bills are introduced in each Legislature,((As of yesterday the highest numbered Assembly bill was A5415 and the highest numbered Senate bill was S3792.)) many time and time again. Most are referred to committee and never heard from again. The sponsor can at least claim an attempt to do something.((The plethora of bills is actually a bad thing because it makes it all the harder for citizens to monitor what their representatives are doing. I haven’t come up with a solution yet.)) No doubt there is a lot of duplication so that everybody gets a chance to take credit.

The author is particularly alarmed by HB33, “which would prevent state agencies from assisting federal agencies in enforcing oil and gas production laws if they contradict state laws.” The executive director of Environment Texas is quoted as saying “It seems to be very problematic from a legal perspective to tell local officials they aren’t to follow federal law.” The bill doesn’t do that. Although a federal law is supreme over a contradictory state law, and we long ago realized that the States cannot “nullify” a federal law with which they disagree, the Tenth Amendment prevents the federal government from “commandeering” State resources and personnel to implement federal law.((This was the legal basis for the Supreme Court’s decision in Murphy v. National Collegiate Athletic Association, 584 U.S. ___, 138 S. Ct. 1461; 200 L. Ed. 2d 854 (2018), which overruled a federal law that essentially required most States to prohibit sports betting as well as the policies of many States not to cooperate with the enforcement of federal immigration law.)) HB33 merely proposes that Texas State resources not be used to implement policies with which the State disagrees.

The article also expresses concern about bills that would prevent localities from banning natural gas appliances (see my post Now We’re Cooking With Gas, But For How Long?) or gasoline-powered lawn equipment (which has similar issues).

Jay Bohn

April 13, 2022

Tennessee Three Perhaps Different in Degree, but Not in Kind, from January 6 Mob

A number of my posts have been about free speech.((See Free Speech is a Bitch and Free Speech, but Not for All Ideas.)) But my support for that right does not mean that I believe that there may not be reasonable restrictions of the time, place, and manner of the expression of ideas and consequences for violating those restrictions.

On January 6, 2021, a mob invaded the U.S. Capitol during the formal counting of electoral votes that would certify President Biden’s election. The mob was certainly expressing political ideas, but not in a way that is protected by the First Amendment. It sought to disrupt and improperly influence an official proceeding. A large number of them are being prosecuted and some will serve substantial jail time. I have no sympathy for them.

Compare that with what happened in Tennessee on March 30, 2023. Hundreds of protesters, reacting to a recent school shooting, entered the Tennessee state capitol to call for greater regulation of firearms. That is not the bad part. Three members of the state house of representatives:  Justin Jones, Gloria Johnson, and Justin J. Pearson, then occupied the well of the House while it was in session and used a megaphone to lead protesters in the gallery.((One of my complaints about the coverage of these events is the lack of detailed factual accounts of what happened. Certainly, Jones used a megaphone, and I have read accounts stating that Johnson did not. Whether Pearson used the megaphone is unclear.)) The “Tennessee Three” sought to disrupt and improperly influence an official proceeding. Two of them were removed from office in consequence.

The disruption of the House session was the anti-democratic act here. It was wrong and even more so because it was done by members who presumably took an oath to support the Tennessee Constitution. On April 6, 2023, the House voted to expel Jones and Pearson; the vote to expel Johnson failed by one vote.

The media coverage has been focused on the expulsions and not the conduct that preceded it. Over the weekend the Star-Ledger re-published the Washington Post‘s story under the title “Experts: Tenn. vote is latest GOP move to stifle dissent.”((The Washington Post‘s on-line version is entitled “Tennessee vote marks latest GOP move to stifle dissent, experts say.” and is behind its paywall.)) I have previously commented that when I see reference to an “expert,” or multiple “experts,” in a headline, it means that the article is going to be a disguised opinion piece.

One can certainly question whether the expulsion of two of the members matched the gravity of the offense. I actually think it a bit too harsh, but not by much. Jones’ response did not help his case. He is quoted as calling the process “unconstitutional,” but of course the reporting of that comment did not specify exactly what constitutional provision was violated. (Perhaps Jones was not clear, but there is no evidence that the authors of the article sought clarity on this point.) He also stated that he did not believe he did anything wrong.

There are also those trying to put a racial spin on the proceedings as the two expelled members are Black and the woman who was not is White. The votes on all three were different,((The vote to expel Jones was 72-25, Johnson 65-30 (failed, 66 votes were required), and Pearson 69-26.)) and you would have to analyze the reasons given by the few representatives who voted differently as to why Johnson was spared. The fact that she did not use a megaphone could have been the difference.

Jay Bohn

April 10, 2023.

Everybody’s Special

First, it was accessible spaces, which have been with us a long time and are required and regulated by law. But then you started to see more and more spaces reserved for all sorts of categories of people: employees of the month, pregnant women, (in Germany there are spaces specifically for all women), veterans. Go to a municipal building parking lot and you may see that every department head has a reserved space right next to the building. Some New Jersey legislators have introduced a bill to require special parking spaces for those driving with children 12 and under in their car.

It may seem churlish to oppose what may bring a degree of convenience to those with young children (although I think by twelve they should be able to work out how to walk into a store), but it just makes me feel that everyone wants to play a victim’s card to get some privilege, not because the 20, 50, or even 100 extra feet that they’ll have to walk to get to the store will make a world of difference, but because they want to be special.

The reform we really need in shopping center parking lots is getting the shopping carts that many can’t be bothered to put in a cart corral out of the way.

Jay Bohn

April 6, 2023

School Funding Formulas Will Never Work: It’s Time for the State to Run All Public Schools

Paul Mulshine had an interesting column on school funding yesterday. He was reporting on the unanimous passage of a bill providing supplemental school aid the ease the pain many districts feel due to the reduction in school aid. Although agreeing that the statutory formula for the distribution of school aid needs to be fixed, the only recommendation I see from Mulshine is that there should be a limit on property taxes and property tax increases. Indeed, there should, but that does not tell us anything about how the distribution of state tax dollars for education funding should be reformed. I believe that school funding (and just about everything else involving the running of schools) should be handled by the state and strict limits to the remaining spending supported by the property tax should be imposed.

Let’s start with some basics. The New Jersey Constitution provides: “The Legislature shall provide for the maintenance and support of a thorough and efficient system of free public schools for the instruction of all the children in the State between the ages of five and eighteen years.” [NJ Const. (1947), art. VIII, s. 2, p. 1.] Education is, according to the plain text of the constitution, a state, not a local responsibility. Yet, forever has it been administered, and in large part funded, by local revenues arising from the taxation of real property.((Let me state early on that I understand that money alone does not assure that the school district will provide a good education, but it is certainly a factor.))

The sting of the property tax was supposed to be relieved by the adoption of a state income tax. Article VIII, Section I, paragraph 7, adopted in 1976, provides: “No tax shall be levied on personal incomes of individuals, estates and trusts of this State unless the entire net receipts therefrom shall be received into the treasury, placed in a perpetual fund designated the Property Tax Relief Fund and be annually appropriated, pursuant to formulas established from time to time by the Legislature, to the several counties, municipalities and school districts of this State exclusively for the purpose of reducing or offsetting property taxes. ” Both property taxes and income taxes have increased since then.

As onerous as property taxes are, in many districts they are simply not sufficient to fund the constitutionally required thorough and efficient education.((And no doubt in many others the issues are waste, fraud, and abuse.)) Two things arise from this fact: the Legislature channels state tax funds to local school districts and the courts have mandated certain minimum funding for poorer districts. The allocation of state funding among school districts has been a perennial problem. The more state funding the less the local politicians have to rely upon the property tax, so favored districts would get more money so that they could tax at a lower rate and still have the same dollars to spend. Other districts were not so fortunate.

This was supposed to have been solved when the Legislature adopted the “School Funding Reform Act of 2008” (SFRA) to assure that districts could provide a thorough and efficient education so long as they generated local revenues in accordance with the formula. The basic idea of the SFRA was that there would be a formula based upon the relative ability of the residents of the district to support their schools via the property tax to determine the local share and state aid would make up the difference.((The SFRA is complex, and I do not pretend to understand it in any great detail.))

The SFRA resulted in winners and losers. The winners were those districts that were not able to provide a thorough and efficient education because the money they could raise locally, even when state aid was added, was simply insufficient.((I have come to understand that we expect our school to do much more than teach our children. The cost of these other social responsibilities is higher in poorer districts, much the education goal even harder to attain.)) The losers were those districts whose state aid allocation enabled them to tax less. They were supposed to see relatively less state aid and generate more local revenues.

Instead of being grateful for their long-enjoyed ability to have the residents of other parts of the state pay a portion of the local share, these loser districts complained about how unfair it was and for a long time they were sheltered from any real aid reductions. Finally, the state started to phase in the reductions and the howls have been loud and unceasing. Now, as Mulsine points out, in an election year, the Legislature is taking the politically popular step of using the non-recurring surplus to soften the blow.

We will face the same complaints year after year. The desire for more education funding is infinite. We must determine exactly what resources we are going to devote to this effort. (I thought that was the goal of the SFRA; whether it achieved the right result, I do not know). Local school districts want the delight of spending while leaving the burden of taxing on others.

Despite the huge state funding for education, the quality of education is still far too dependent on where the student lives. Municipal land use decisions are driven to too high a degree by the impetus to avoid school children. I simply do not believe that the constitutional obligation of thorough and efficient schools statewide is consistent with home rule.

I do not believe that we will ever have a fair education system until we place responsibility where the constitution puts it, the State. With the obligation to fund comes not only the right, but also the responsibility, to see that the money is used efficiently. The State should run our public schools with substantially equal facilities and opportunities for all. How that can be done without simply moving the spoils system that is any large government undertaking to a more cental location is another question entirely.

Jay Bohn

April 3, 2023.