Month: June 2023

The State Legislature Should Be Full-Time

It has been a while since I have commented on the structure of our government.

Most, if not all, members of the New Jersey State Legislature have other employment, some private and some public. A few still hold elected office. I believe that employment beyond the Legislature carries with it too much conflict of interest. I would prefer that legislators should be subject to the same limits on outside employment as full-time State judges.

I know that the idea is that public-spirited men and women will dedicate a part of their time to legislative duties but spend most of it as part of the governed. Nice idea, and maybe once true, but government has become too all-pervading.

As we are expecting more time from legislators, and prohibiting external income, their legislative pay will have to be increased. Still, I do not expect the increase to make up for the total amount of outside income they will have to forego. It is a sacrifice they must be willing to make if they want to hold public office.

Of course, I expect the legislators to earn the extra pay. For reasons I have previously expressed, most, if not all, regulatory authority should be taken back from administrative agencies in the executive branch. The Legislature should make the laws.

Jay Bohn

June 29, 2023

Ruminations on Parking

In his NJ.com column yesterday, “New book on parking is just the ticket” (also published in yesterday’s Star-Ledger, for once with the same title), Paul Mulshine discusses a recent book by Henry Grabar, Paved Paradise: How Parking Explains the World. As articulated by Mulshine, Grabar traces a lot of modern evils to the requirement the new development include a minimum number of parking spaces.

In my day job I’m an attorney, in part practicing land use and zoning law. (I often represent clients before municipal boards that meet in the evening, so I guess it’s a night job too.) The towns in which I appear all have minimum parking requirements. (Even in one city that had a zone that specifically did not require onsite parking, the planning board always wanted to know where the residents of the apartments that my client was going to create would park. What part of “no parking requirement” didn’t they understand?)

I think that a lot of the impetus behind parking requirements is the desire to use the requirement as an additional limitation of what can actually be built. Residential developers usually want to know how many units they can get while commercial developers want maximum floor area. Modern zoning codes control the intensity of residential development by limiting density, the number of dwelling units per gross area of land, as well as by limits on building and impervious cover and floor area compared to the total area of the site. The intensity of commercial development is controlled by similar coverage limits as well as detailed minimum parking requirements, usually based upon the floor are of the building (often one parking space is required for every 200-300 square feet of floor area depending upon the use.)((Parking requirements for restaurants and houses of worship are often based upon stated seating capacity, on the order of one space for every three seats.))

Whatever the ostensibly permitted floor area for a commercial development based on lot size, once you add required parking spaces, you may have no room for the building. Towns regulate not only the number of parking spaces, but also their size. Typical minimum stall sizes are 10 x 20 and 9 x 18 feet. Even at the smaller size a 9 x 18 space is 162 square feet (not counting pavement needed for drive aisles and driveways.((Some towns allow a developer to “bank” spaces, meaning that they are all designed but do not have to be built unless the town determines that they are needed. The land is still reserved for future parking and so is still subtracted from what can actually be developed.))

Buildings can be multi-story (depending on local height limitations), but parking lots are usually a single level. (Mulshine’s column contains a cost figure for parking garages at $40,000 per parking space.)

Now, in addition to providing off-street parking spaces, developers must make a certain number of the spaces “EV-ready” so that electric vehicle drivers will be able to charge them. That legislation contains a small compensation, EV spaces count as two towards minimum requirements, but cannot reduce that actual requirement by more than 10%. Nothing, however, prevents municipalities from raising the requirements to soak up that bonus.

Jay Bohn

June 26, 2023

StayNJ Should Go Away

In the end it will be seen as inevitable. In late May New Jersey Assembly Speaker Craig Coughlin his “StayNJ” plan that he said would “effectively cut most seniors’ property taxes in half.” (emphasis added) I said it seemed like a gimmick, indeed an expensive gimmick. We later learned some details. As should have been obvious form the start, it was not a real tax cut. No government is going to be deprived of any revenue, but qualifying property owners would see a credit on their tax bills.((I have seen no detailed reporting of the exact mechanics.)) And just like other rebates, it will depend upon the vagaries of the annual closed door budget negotiations. I concluded that it was what it seemed to be: a gimmick.

Why don’t I want to benefit senior citizens, a group I hope to join one day? My first concern is why everyone seems to think that senior citizens should get this special benefit. I haven’t seen an explanation, but I posited two reasons: either age is used as a proxy for ability to pay or there is the thought that by age 65 senior citizens have “done their bit,” particularly in paying for schools.

Another problem is that StayNJ (and all the other tax rebates) are just a band-aid solution. They actually do nothing to address the root causes of high property taxes; they just reduce the pain for the favored few. I have suggested that public education, which is the single biggest payee of property taxes, should be funded, and run, by the State. (Although I am realistic enough to know that New Jersey will have self-serve gasoline long before that happens.)

Although none of the opinions that I have seen from others raise any of these issues, there is substantial agreement about a third objection: cost.((Although I don’t agree with everything he says, Tom Moran has some good comments in In Trenton, Democrats call Murphy’s bluff. Tequila shots all around!)) The money will have to come from somewhere. Sure, the State seems flush at the moment, but just as the biblical seven years of plenty were followed by seven years of famine((Genesis 41:52-53.)), so New Jersey will, probably much sooner than seven years, suffer more budget woes and StayNJ will be on the chopping block. In the future the spendthrift attitude toward the current surplus will be as reviled as skipping the pension payment.

But there was hope. Governor Murphy came out against it, even threatening to shut down state government by vetoing a budget that included StayNJ. But his heart wasn’t in it, and a compromise was recently announced: means-testing the benefit at an annual income of $500,000 and reducing the maximum rebate to $6,500.

Jay Bohn

June 22, 2023

The Wealth Piled by the Bondsman’s Toil Continues to Sink

Aside from Jesus and His mother Mary, every human sins. The means that we all have things that we’ve done or failed to do of which we are ashamed, sometimes deeply so. This truth applies to societies as well. One of America’s greatest shames is slavery. We learn in history that the first African slaves were brought to America in 1603, and the legal institution lasted until 1865, but its pernicious effects continue until today.

I am reminded of this particular passage from Abraham Lincoln’s second inaugural address, delivered during the Civil War:

“Woe unto the world because of offenses; for it must needs be that offenses come, but woe to that man by whom the offense cometh.” If we shall suppose that American slavery is one of those offenses which, in the providence of God, must needs come, but which, having continued through His appointed time, He now wills to remove, and that He gives to both North and South this terrible war as the woe due to those by whom the offense came, shall we discern therein any departure from those divine attributes which the believers in a living God always ascribe to Him? Fondly do we hope, fervently do we pray, that this mighty scourge of war may speedily pass away. Yet, if God wills that it continue until all the wealth piled by the bondsman’s two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said “the judgments of the Lord are true and righteous altogether.”

America’s long history of slavery and the bloody war that was necessary to end it as a legal institution has led to the continued existence of racism almost 160 years later.

Racism in its most conventional application is judging other by the color of their skin. Racism in its widest sense, the belief that any particular ethnic group in inherently superior or inferior to another, is as wrong as it is commonplace. It is a widely shared trait to fear the “other,” to be more comfortable with those “who are like us,” who, for that very reason, must be better than “others.”

I don’t believe that this will be ended by reversing the hierarchy for a similar period of time. Any scheme that seeks to allocate benefits based on race will only make the divisions stronger. I agree with Chief Justice Roberts when he said: “The way to stop discrimination on the basis of race is to stop
discriminating on the basis of race.”((Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701, 748 (2007).)) The desire to see every governmental organization, college class, or other group “look like America,” as if that will signal triumph over racism, can only be achieved by a quota system.((And once you define a non-racist society as one in which every group is represented everywhere in proportion to its representation in the general population, every “group” that sees itself under-represented will clamor for recognition and its reserved spaces.)) Look at the articles((For example, Joseph Ax says “A decision banning affirmative action would force elite colleges and universities to revamp their policies and search for new ways to ensure diversity in their student populations. Many schools have said other measures would not be as effective, resulting in fewer minority students on campuses.” What happens if the Supreme Court bans affirmative action? Aya M. Waller-Bey writes in her article for The Atlantic, “A Big Problem With College Admissions Could Be About to Get Worse ,” that the college admissions essay has become the place to write about one’s trauma to increase the chance of success in gaining admission to selective colleges that are looking for “diverse” student bodies.

This reminds me of the Seinfeld episode “The Andrea Doria,” the one where George uses tales of the tragedies of his life in an attempt to prevail over an Andrea Doria survivor in the competition for an apartment. In the end neither gets it.)) about how colleges are going to deal with the Supreme Court’s widely expected decision to end affirmative action in college admission.((Students for Fair Admissions v. President and Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina.)) They indicate that the schools are determined to force a racially diverse class, one that “looks like America” even if they cannot openly consider the race of the applicants. Using quotas to achieve racial diversity is still judging applicants by the color of their skin. It is going to create winners and losers. The losers will resent the system and blame “the other” for the loss of “what might have been.”((I cannot help but think that many of the institutional leaders who push “affirmative action” are comfortable doing so because they will not personally bear the burden of losing a college seat or a job under such programs. Someone else is paying that price.))

Jay Bohn

June 19, 2023

Star-Ledger Missing the Chance for Helpful Journalism by Concentrating on the Politics, Rather Than Details, of StayNJ

As I reported last month, New Jersey Assembly Speaker Craig J. Coughlin has proposed a new tax “cut” he calls “StayNJ” which would, he says, “effectively cut most seniors’ property taxes in half.” (emphasis added) Once the details were revealed, we learned (surpise!) that it is not a tax cut at all, but another rebate scheme, no doubt intended to assure Democratic victories in November’s legislative elections.

The Star-Ledger/NJ.com extoll the importance of journalism and seek ever more of their readers’ money, but I wish they (and all journalists) did a better job of reporting facts and useful analysis, rather than rank opinion.((See, for example, my comments in Ruminations on Voting.)) It seems to me that they would better serve their readers by reporting on the details of the plan as it moves through the Legislature instead of concentrating their efforts on the conflict between the Democratic legislators and Governor Murphy, who is said to be ready to shut down the state if StayNJ is part of the budget. As usual, the reporting emphasizes the conflict of personalities over the issues.

One of the details that have been reported is the fact that StayNJ will not take effect until January 1, 2025. What is not explained is why it is part of the 2023-2024 budget (other than to seek votes for Democrats).

Jay Bohn

June 15, 2023

Passage in Unpublished Opinion Should Sound Red Alert for Tax Foreclosure Process

At the beginning of May I wrote about Tyler v. Hennepin County, Minnesota, a case then pending in the United States Supreme Court “that may up-end the way in which New Jersey and many other States enforce the requirement to pay real estate taxes.”

In New Jersey, when property taxes become delinquent, the municipal tax collector sells the tax lien and issues a tax sale certificate. The purchaser pays the delinquent taxes and may pay subsequent taxes and add that amount to the lien. If the property owner has not redeemed the property by paying the amount of the lien, accrued interest, and costs and penalties within the applicable time period, the lien holder may start a foreclosure action that will ultimately result in an order setting the time, place, and amount necessary for redemption. If the property owner does not pay by that deadline, the lien holder then has title to the property. When the lien is sold to an outside “investor,” the municipality merely gets the taxes and interest it was owed; any windfall goes to the investor.

Although the mechanics of Minnesota’s process differ from New Jersey’s, the relevant similarity is that the property owner loses her entire equity in the property, even if it far surpasses that amount of the delinquency. Based upon the tenor of the arguments before the Supreme Court, I predicted that it would find that the windfall to the foreclosing tax sale certificate holder violates some constitutional right of the property owner and I concluded that “our Legislature would be well advised to change the way that property tax liens are enforced, such as by judicial sale like mortgages.”

The Court decided the case promptly and unanimously, ruling that Geraldine Tyler’s complaint indeed stated a takings claim and remanding for further proceedings.

I have not seen any significant coverage of the Tyler case in New Jersey news source or any hint that the Legislature is paying any attention to my warning. That may change due to a single sentence in an unpublished Appellate Division opinion issued last Friday. Absent Tyler, the case, PC7 REO, LLC v. Johnson, would be of interest only the parties. The property owner was seeking relief from a default judgment foreclosing a tax sale certificate for $250,000 in taxes on property that she claimed had a value of $1 million, relief which the trial court denied, a decision which, but for the intervening decision in Tyler, would almost certainly have been affirmed. But Tyler had been decided and the appellate court remanded the matter to the trial court for further proceedings, with the following ominous comment: “We leave to the trial court the determination of whether Newark, the entity that we assume, without deciding, would be responsible for providing just compensation to Johnson in the event of a taking, should be joined as a party in this matter.”

Jay Bohn

June 12, 2023

Too Much Hyperbole in Reaction to Glacier Northwest Decision

Lately Thursday has become the day that the U.S. Supreme Court announces its opinions as it marches steadily on to decide by July 4 the cases that have been argued this Term. We haven’t gotten to the hard cases yet. A fair number of the decisions issued in the last several weeks have been unanimous or nearly so, at least as to the result.

Take last Thursday for example. Unanimous decisions by Justice Thomas1 and Justice Gorsuch2 and an 8-1 decision by Justice Barrett in Glacier Northwest, Inc. v. Teamsters. The Court’s opinion in Glacier Northwest, however, only commanded the votes of five justices (Barrett was joined by Chief Justice Roberts and Justices Sotomayer, Kagan, and Kavanaugh), with Justices Thomas, Alito, and Gorsuch concurring in the result and Justice Jackson strongly dissenting. Most of the coverage I have seen sides with Jackson and considers the decision to be a disaster for labor unions and the right to strike.3

In Glacier Northwest a concrete company sued the union representing its employees. The complaint alleged4 that the union waited to start a strike of the drivers of the company’s concrete trucks until the trucks had been loaded with concrete for the day’s deliveries. The trucks were left spinning the concrete which, even so, would eventually harden, wasting the concrete itself and severely damaging the trucks. Although the company’s emergency measures were sufficient to unload the concrete and thus prevent damage to the trucks, but it still suffered damage to its property (the hardened, useless concrete) and sued the union in Washington state court.

The union sought dismissal of the complaint by arguing that the application of state tort law to this dispute was preempted by the National Labor Relations Act which grants the National Labor Relations Board primary jurisdiction. It cited San Diego Building Trades Council v. Garmon, 359 U. S. 236 (1959), which found preemption even where state law and the NLRA only arguably conflict (in other applications preemption is only found in the case of an actual conflict). The trial court agreed with the union, and the Washington Supreme Court affirmed.

The Court’s opinion ruled that, given the undisputed obligation of strikers to take reasonable precautions to protect their employer’s property from foreseeable, aggravated, and imminent danger due to the sudden cessation of work, the union’s conduct, as alleged in the complaint, failed to satisfy this obligation. Justice Alito (joined by Thomas and Gorsuch) concurred in the result because he believed that the Court had already held that the type of conduct alleged is not protected. Thomas also wrote an opinion concurring the result (which Gorsuch joined) in which he questioned the Garmon preemption rule and suggested that in an appropriate case the Court should “carefully reexamine whether the law supports Garmon’s ‘unusual’ pre-emption regime.”

Jackson was the only justice to dissent. She pointed out that the NLRB’s General Counsel, a presidentially appointed official responsible for initiating unfair labor practice charges, has in fact done so, not against the union but against the company for filing the lawsuit. She asserted that the filing of the complaint by the general counsel implies “that the union’s conduct is at least arguably protected by the NLRA” and that courts “should suspend their examination.” (emphasis added)5

The facts of this case, as least as alleged by the company, are pretty bad for the union. Indeed, unions should be glad the factual allegations are such that the Court was not asked to revisit Garmon preemption. It is by no means clear to me why the preemption analysis should be different for labor relations than other matters where an administrative agency is tasked with implementing federal law.

Jay Bohn

June 8, 2023

  1. See, for example, CBS News: Supreme Court ruling deals another blow to organized labor, NBC News: In blow to unions, Supreme Court rules company can pursue strike damage claim, Vox: The Supreme Court deals another blow to labor unions. I think this reaction is overblown (pun a happy accident). ↩︎
  2. The case had not reached any point where there would have been any factual adjudication, so the plaintiff’s factual allegations are assumed to be true in connection with the defendant’s motion to dismissing invoking the “so what?” defense. ↩︎
  3. Maybe I don’t fully understand Garmon preemption, but it seems to me that if the filing of a complaint by the general counsel is sufficient to establish that the union’s conduct was “arguably” protected, then why should courts merely “suspend” review of that conduct? If the conduct was arguably protected at the time it occurred, does it matter if sometime later the NLRB were to rule that it is not actually protected? ↩︎

Another Good Gorsuch Opinion in Mayorkas Case

In the beginning of the year, I commended any reader’s attention to Justice Gorsuch’s dissenting opinion in Arizona v. Mayorkas, a Supreme Court case involving a challenge to “Title 42” orders. (The specific issue was whether the court of appeals should have allowed several states to intervene in the case; the court had denied the motion.) I said then:

Justice Gorsuch correctly notes that the public health justification for the exclusion orders is no longer in force. “The States contend that they face an immigration crisis at the border and policymakers have failed to agree on adequate measures to address it.” But, as Justice Gorsuch concludes, “courts should not be in the business of perpetuating administrative edicts designed for one emergency only because elected officials have failed to address a different emergency.”

The Title 42 orders were premised upon the existence of the COVID-19 emergency, which has now been terminated. As a result, the Supreme Court vacated the order denying intervention and remanded to the court of appeals with directions to dismiss the motion.

Gorsuch issued a statement in which he recounted the “head-spinning” procedural history in detail “because it is so typical . . . [n]ot just as an illustration of the quandaries that can follow when district courts award nationwide relief, . . . [but e]ven more importantly, the history of this case illustrates the disruption we have experienced over the last three years in how our laws are made and our freedoms observed.” Justice Gorsuch proceeds to criticize the plethora of COVID emergency decrees I have previously discussed. Because I perceive much agreement with what I have said, I naturally find the discussion profound.

Jay Bohn

June 5, 2023

Moran Editorial Against Expiration of “Temporary” Surcharge Shows Importance of Caveat Emptor for Political Promises

We all know that “temporary” tax increases have a tendency to become permanent. At the time they are first imposed, their proponents deny that they are really tax increases at all because they are only temporary, justified as necessary for some particular, presumably equally temporary, economic condition. Then, when the temporary increase is made permanent just as it is supposed to expire, the proponents again deny that there is really a tax increase: the temporary increase is just being made permanent. Despite there being no tax increase on the front or back end, taxes have in fact been raised, but no one is responsible. Now suppose that the temporary increase is allowed to expire; that is criticized as a tax cut.

The constant refrain of those who wish to have the government be in charge of spending more of your money is the claim that “the rich” do not pay their fair share. We know this because they have some left. The view that others should pay more taxes so that we can get more benefits is exactly what I talked about almost two years ago as the “SEP Problem;” which means that “someone else is paying.”((Charity is indeed a virtue, but is it really charity to give other people’s money to the poor?)) This view is reflected in Tom Moran’s recent editorial “Murphy’s temper tantrum, and the makings of a budget deal” (subscriber exclusive).

Moran begins by describing mansions in Montclair((Opinion pieces, whether labeled as such or not, often begin by personalizing the argument; either by introducing a sympathetic person who would be benefitted by the writer’s position or vilifying those who would be hurt.)) and asserting that their owners should not qualify for StayNJ, Assembly Speaker Craig Coughlin’s proposal to provide a property tax credit/rebate for senior citizens with no income limit for eligibility.((This proposal is discussed in my two most recent posts: Plan to Cut Property Taxes for Senior Citizens Seems like an Expensive Gimmick and StayNJ Details Revealed: It Is a Gimmick.)) Moran cites as support for his position none other than well-healed Governor Murphy, whom he quotes as saying, “I don’t think we should be in the business of giving the likes of me tax breaks.”

Moran then pivots to say that Murphy is in fact giving the rich (personified as Jeff Bezos, the Amazon founder and multi-billionaire) a tax cut because Murphy insists that the 2.5% corporate tax surcharge imposed in 2018 should be allowed to expire at the end of the year, almost as promised. (The surcharge has already been extended once, among the many things blamed on COVID.) Moran’s point is that the the temporary tax increase should be made permanent and used to fund a means-tested tax subsidy.

What about the promise that it would be temporary? “[Murphy’s] promise in 2018 does not obligate the Legislature of 2023 even one bit.” Legally correct, which only strengthens the view that voters should NEVER rely upon the promises of politicians. They have no credit because there is no obligation to keep their word.

Jay Bohn

June 1, 2023