Category: Government/Politics

Ruminations on Voting

The lifeblood of democracy is voting. Many politicians would not act the way they do if the faced an interested and informed electorate. That does not mean, however, that we should not expect voters to make an effort and put up with a degree of inconvenience in order to cast their ballots.

One of my gripes with many COVID emergency measures related to voting is that the pandemic was used as an excuse to put in place voting changes that had not been, and under normal circumstances would not have been, approved in the legislative process. Once in place, and justified by a once-in-a-lifetime emergency (which is now looking like it’s going to last significantly longer than any public official was willing to admit a year and a half ago), these measures become the new normal. Anyone who opposes making these temporary, emergency measures permanent is subject to the harshest criticism and accused of voter suppression.((There are any number of policy proposals that are like ratchets: once in place, by however narrow a majority or whatever other means, they can never be repealed, like the Affordable Care Act a/k/a Obamacare.))

An involved electorate must be an informed electorate. Despite the rise of the internet and social media (and largely (or entirely) unread blogs, like this one), the traditional media sources, like newspapers and television, still have the lion’s share of opportunity (and responsibility) to educate the people about the issues. This is serious stuff and they are failing. Part of the failure is the result of underestimating the capacity of the audience to understand the issues. Instead of providing details,((See my post from almost five months ago, The News Media Should Give Us More Details — Not Just Conclusions.)) we get sound bites. Judicial decisions are reported through the lens of partisan politics with little to no mention of the actual bases of the decisions. Many opinion pieces are labelled as “analysis.”

As to the mechanics of voting, I believe that the method for voting most likely to impress the voter with the significance of the act is the traditional one, showing up at a polling station on one specified day. I would prefer that to be the common means of voting (and it is the duty of election officials to make certain that polling places are reasonably convenient in location and sufficiently staffed and equipped to handle a turnout of 100%). That is not to say that there should never be provision for what used to be called “absentee voting” and is now (to make it sound better) called “voting by mail,” but that should not be the default method.

Jay Bohn
September 9, 2021

COVID-19 and Emergency Powers II – Not Much Has Changed

About four months ago I wrote a post entitled COVID-19 and Emergency Powers in which I commented on the tendency of the nation’s governors to seize upon the COVID-19 pandemic to exercise emergency powers. I said

attempts to rein in the use of emergency powers have been viewed through the prism of politics or the perceived merits of the action taken rather than process considerations or the constitutional separation of powers.

Nothing has changed.

In a recent article, Kentucky gov suffers legal defeat in combating COVID surge, ABCNews.com reported on a ruling of the Kentucky Supreme Court ordering the dissolution of an injunction against legislation which limited the governor’s emergency powers. The ABC News article seems to imply that only governors can aggressively and correctly decide what’s best for the rest of us to combat COVID.((Unless of course the governor wants to prohibit mask and vaccine mandates, in which case local control becomes more important.))

Governors, like the President, exercise executive authority.1 State legislatures may have delegated to their respective governors some portion of their legislative power to exercise when necessitated by an emergency. In the absence of a specific state constitutional provision, why shouldn’t the same legislature be able to exercise its law-making power to act as a check on this delegation?

COVID has been with us for a year and a half. True, there always seem to be developments, but it is no longer something new that justifies allowing one person to be the sole decider of each state’s response. Every exercise of emergency power to avoid the inefficiencies of the legislative process makes it that much easier to see the next event as an emergency .

Jay Bohn
September 6, 2021

  1. The extent to which they share this authority with other officials not subordinate to them is a matter of the constitutional law of the specific state. [↩]

Too Much Hyperbole in Public Discourse

On Monday LehighValleyLive.com (the on-line version of the Express-Times) reported (based upon a video on the candidate’s Facebook page) that Steve Lynch, the Republican candidate for Northampton County executive, told a rally

“I’m going in with 20 strong men. I’m going to speak in front of the school board and I’m going to give them an option: They can leave or they can be removed. And then after that, we’re going to replace them with nine parents and we’re going to vote down the mask mandates that evening. … This is how you get stuff done.”((A more detailed account of the comments in context and responses is carried in the Pennsylvania Capital-Star.))

While it is undoubtedly worse if he meant this threat (the only word that fits) literally, even if it was just “talk” it is irresponsible. Words matter.

The same article quotes Lynch’s opponent, Democratic incumbent Lamont McClure, in a less-shocking but still hyperbolic response, calling Lynch a “domestic terrorist” because he was present in Washington, D.C., on January 6, 2021, attending President Trump’s rally, but with no indication that he was at all involved in the storming of the Capitol.((While merely attending the rally does not make one a terrorist, I believe that all those who entered the Capitol building itself should be prosecuted even to the point of felony murder because a police officer was killed during the riot.))

Everybody, stop shouting and talk like grown-ups.

Jay Bohn
September 2, 2021

When a Politician Promises to Reduce Taxes, Ask How.

While perhaps not universal, the typical candidate for elected office (especially local office) in New Jersey campaigns on a platform of lowering property taxes.

The hard truth is that any tax decrease requires at least one of the following actions:

  • increased revenue from some other source (usually a different tax, but maybe borrowing) or
  • decreased spending.

Proposals to reduce spending typically take the form of promises of greater efficiency, not hard choices like job cuts (and certainly not identification of specific jobs that would rally supporters of those employees against the candidate).

If you recall, some years ago a governor called a special session of the Legislature dedicated to reducing property taxes. All of the proposals that I saw involved the creation of new or increase of existing taxes to replace property tax revenue. Any reference to new or increased taxes will be vague and will often suggest that “somebody else” is paying and that “somebody else” has not been paying his or her “fair share” previously. (One saying I quite like is “The government that robs Peter to pay Paul can always count on the support of Paul.”)

This behavior is perfectly understandable in a candidate. There will be winners and losers, but candidates naturally emphasize only the winners.

Jay Bohn
July 29, 2021

EO 128 Neither Fish Nor Fowl

A few days ago I posted about an Appellate Division decision which upheld Governor Murphy’s Executive Order 128, which permitted residential tenants to apply their security deposits against rent due during the COVID-19 pandemic. Given the length of the pandemic, this order is of relatively little help to tenants and relatively little harm to landlords. The eviction moratorium is the bigger issue.

We should all recall the initial panic arising from the pandemic’s effect on the economy, coupled with Governor Murphy’s stay-at-home order and the closing of large sectors of the economy. However, few publicly admitted that it would last as long as it has.

Early on, on March 19, 2020, by EO 106 Governor Murphy decreed a temporary emergency moratorium on evictions for the stated purpose of preventing greater spread of COVID if tenants who could not pay their rent became homeless,((Unlike the CDC’s eviction moratorium, New Jersey’s suspension of this legal remedy is not means-tested. The tenant does not even have to allege, much less prove, a loss of income, whether due to COVID or any other factor.)) a moratorium that was subsequently ratified by the Legislature and is now scheduled to end on December 31, 2021. Just over a month later, on April 24, 2020, the governor issued EO 128, which permitted the tenant to direct the landlord to apply the security deposit to rent due. But by that point it was clear that reducing rent arrearages (already accumulated or which would accumulate as the pandemic continued) of those tenants who had stopped paying rent would not cure the default. Even with this relief the tenant is still going to owe rent; at best application of the security deposit to rent would marginally reduce accumulated late charges and interest (if the lease provides for same) and the total amount due.

Given the length of the pandemic, the loss of the security deposit is also of little harm to the landlord. The purpose of a security deposit it to protect the landlord from the tenant’s violation of the terms of the lease, primarily by the failure to pay rent or damage to the leased property. Application of the security deposit to rent due during the lease((As the court pointed out a couple of times, it is common for tenants even in non-pandemic conditions to apply a portion of the security deposit to rent by simply not paying the last month’s rent. The tenant will have vacated the property before an eviction could be effected and the landlord is belatedly made whole by getting a portion of the security deposit. If the last month’s rent plus damage to the property exceeds the security deposit, the landlord is put to the trouble of suing the (former) tenant and then collecting any judgment obtained.)) does mean that there is less (or none) available to address damages, but there is also less rent due. Because money is fungible, the landlord is really in the same position.

There have been various programs whereby the government (meaning of course we taxpayers) will assist tenants with the payment of rent. They have been long in coming. Perhaps the government should have bought up overdue rent arrearages (at par), and then sought to collect (or forgive) it after the pandemic was over. At the least, landlords should have been permitted the same grace periods to pay property taxes on rental housing whose tenants were not paying rent.

But, given the length of the crisis, EO 128 was really a solution in search of a problem. Although it did not substantially help, I don’t see that it substantially hurt either.

EO 128 a Microcosm of Much That’s Wrong with COVID Emergency Orders

On Tuesday the Appellate Division of the Superior Court (New Jersey’s intermediate appellate court and the last word for most cases) issued its opinion in Kravitz v. Murphy, which was a challenge to Governor Murphy’s Executive Order 128, one of the governor’s many COVID-19 emergency orders. EO 128 permits residential tenants to direct that their security deposits be applied to monthly rent. Although the decision is probably legally correct, the order itself is a poster child for much that is wrong with rule by decree during the pandemic.((In one of my earliest posts on this blog, COVID-19 and Emergency Powers I cautioned against the continued use of “emergency” powers to deal with the pandemic. “That the situation is still dire does not mean it remains an emergency in the sense of requiring urgent action. “

In What’s More Important: Process or Substance?, I commented: “While many might accept rule by an all wise and benevolent despot, remember the democracy is a process.”))

The legislative process is a collaborative one. A bill may have many versions and amendments can be made during the process. Few lawmakers would claim that the initial versions of their bills are always perfect. Indeed, administrative regulations, which are a matter of grave concern to me, are subject to public notice and comment and, at least theoretically, the agency can modify its proposal in response to the comments. The process of crafting executive orders is not, to use the current term “transparent” in the least. There is no process by which anyone outside the governor’s inner circle can comment on an executive order before its issuance.

The responses to the pandemic’s economic effects have often been a blunt object rather than a scalpel. The state eviction moratorium assumes that failure to pay rent must arise from the pandemic (or does not care). The CDC’s moratorium (of dubious legality) at least requires a claim by the tenant of an income loss. Indeed, in the early stages of the pandemic last spring and summer, all persons collecting unemployment compensation got an additional $600 which could, and often did, result in a higher weekly take home pay than when they were working.

Less obvious here, COVID executive orders were also looked upon as a way to enact policy preferences not directly related to the pandemic that would not have passed the legislature in normal times and, once in place, they become the status quo. Many of the so-called “voting restrictions” criticized by the traditional media simply attempt to roll back temporary, emergency provisions that were not and would not have been approved affirmatively.

By no means do I think the pandemic is over (anti-vaxxers are seeing to that), but the time has come for a sober reflection on the conditions under which we are going to allow governors to exercise both executive and legislative power under the guise of an emergency.

Jay Bohn
July 22, 2021

Convenience Fees Are Decidedly Inconvenient

In a recent article behind its paywall, LehighValleyLive.com (the on-line version of the Express Times) reports that Pennsylvania officials are considering the institution of an “e-commerce convenience fee” in the form of a per-box fee or a tax for online purchases as an additional tax to fund transportation. The theory behind the proposal is that there are some who benefit from the state’s transportation system do not pay for its upkeep or improvement.

But the purchasers of the packages pay sales tax and the trucks that deliver the packages undoubtedly generate gasoline and other taxes. The article does not indicate why trucks delivering e-commerce packages would disproportionately require additional roadway maintenance than say trucks delivering inventory to brick and mortar stores.

This is clearly just a money grab. If Pennsylvania is really concerned about its road network, it would stop diverting a constitutionally mandated funding source to fund the state police.

Jay Bohn
July 15, 2021

Some Reasons Why Public Notices Should be in the Newspaper

In my recent post The Purpose of Legal Advertising is to Inform the Public, Not to Support Newspapers, I wrote about news coverage of a New Jersey legislative bill that would have allowed the county sheriff to advertise the sales of foreclosed properties on the sheriff’s website in lieu of advertising in a traditional print newspaper. Predictably the news media is aghast at such a proposal because it threatens their revenue.

I noted that “[l]Legal advertising, whether of sheriff’s sales, land use applications or ordinances is required to provide notice to the public, not as a tax to support print newspapers. ” I further posited that proposals to provide notice by different means should be evaluated on their own terms based on their effectiveness as a tool for notice and not on their economic impact on newspapers.

That post should not be taken to mean that I want to eliminate legal advertising in print newspapers. In keeping with that caveat, this post will address some of the advantages of newspaper publication over posting notices on line.

First, there is an advantage in knowing where a notice is going to be published. Publication in the newspaper is traditional, and that is probably the first place most people who are actually looking for a notice are going to look to find it. If the party posting the notice is given the option of doing so online in lieu of publishing in print, a person looking for the notice might miss it.

Second, newspapers that publish legal notices will typically have a specific space assigned to that content and the reader who is looking for legal notices will be able to find it relatively easy. With the great variety of municipal and other government or websites (not to mention the lack of any particular common method of finding them), the reader looking for a particular notice might have to do quite a bit of searching.

Third, publication in a print newspaper is or will be a historical fact that merely has to be verified by an affidavit of publication or a copy of the newspaper itself. Once published a notice can never be unpublished. However, even if a legal notice is posted online in a timely fashion in a location where it can be found, it is all too possible for the notice (or the entire website) to become unavailable.

The foregoing are reasons supporting retention of newspapers as the location for legal notices and they have nothing to do with economic support for the print media.

Jay Bohn
June 28, 2021

What’s Good for the Goose II: Giving Ex-Cons a Chance

Last Governor Murphy Friday signed the Fair Chance in Housing Act. The new law prohibits landlords from asking prospective tenants most questions about whether they have a criminal record until the landlord makes a conditional offer of a lease. Then the landlord may ask, but is limited in what can be done with the information. Landlords who violate the act can be sanctioned via an administrative process; appeal to the courts will no doubt be extremely deferential to the bureaucracy.

I do not oppose the concept of limiting the ability of vendors (including landlords) to refuse to their goods and services to persons who have been released from prison and should be reintegrated into society. In some ways, however, the new law is a bit heavy-handed and does not go as far as it should in protecting landlords from litigation resulting from claims that they should not have rented to an ex-con or should have notified other tenants when they did (presumably so all the tenants who are not ex-cons could choose to move), but I am not here focusing on details.

My biggest issue is that the State puts a burden on landlords (with significant potential penalties if they get it wrong), but State agencies who license professions and occupations are free to ignore a similar obligation, the New Jersey Rehabilitated Convicted Offenders Act. That statute seems to prohibit licensing authority from disqualifying or discriminating against an applicant for a license on the grounds that the applicant has been convicted of a crime. That law, however, gives licensing authorities an out, they can decide that the conviction “relates adversely to the occupation, trade, vocation, profession or business for which the license or certificate is sought,” and the law provides a non-exclusive list of factors the agency is supposed to use in order to provide an explanation as to why it determined that the conviction related adversely to the particular license sought. It’s not a very creative decision-maker who cannot find an argument that a criminal conviction relates adversely to a professional or occupational license.

In reality, the agency will deny the license without explanation, then provide an after-the-fact justification if the applicant proceeds with the administrative process, a process where the agency gets to make the final decision and, as I stated above, appeal to the courts meets with an extremely deferential standard of review.

Praise for the new statute will no doubt emphasize that housing is a basic need and, perhaps, a right. A source of legal income (which for most of us means a job) is the basic means by which we acquire what is needed to satisfy most of those needs. With the heavily regulated society in which we live, many, many jobs require some form of licensing. Licensing authorities should show at least as much solicitude for former prisoners as landlords must.

Jay Bohn
June 21, 2021

The Purpose of Legal Advertising is to Inform the Public, Not to Support Newspapers

Yesterday NJ.com ran an article, Bill opponents called ‘vendetta against newspapers’ stalls in Assembly committee, which reported on a bill which would allow the auction of sheriff’s sales of foreclosed homes to be done online. The concern was not on-line auctions, but with a recently added feature that would allow county sheriffs (the officers who conduct such sales) to provide notice of the sales on their websites in lieu of advertising in a newspaper.

The article is mostly concerned about this feature, not because of detailed concerns regarding which method will provide the greatest exposure of the sale, but because it would have an economic impact on newspapers.

Although I appreciate the importance of old-fashioned printed newspapers to an informed citizenry (and I subscribe to several), I cannot agree with the position that legal advertising should be mandated for the purpose of their economic support. Legal advertising, whether of sheriff’s sales, land use applications or ordinances, is required to provide notice to the public, not as a tax to support print newspapers. Where there is a proposal to provide notice by a different means, it should be evaluated on its effectiveness as a tool for notice, not its economic impact on newspapers.

Jay Bohn
June 17, 2021