Category: Government/Politics

Two years ago, I asserted that public notices should be in the newspaper. I did not take that position to guaranty newspapers a source of revenue, but because the reader will know where the notice will be published and will be able to find the notices section and because publication is a verifiable historical fact.

Certainly on-line publication has some advantages, such as cost and the ability to search notices.

Recently I saw an article in the New Jersey Globe which reported that the Warren County commissioners were concerned about spending taxpayer money to publish notices in newspapers that are read by only one percent of the population and suggested that some form of online publication would reach more people. (Our county government is refreshingly frugal.) The article also reported that county officials have read trouble placing notices “because newspaper employees don’t always respond to calls.”

Assuming (perhaps contrary to fact) that the purpose of the requirement that certain notices be published in to inform the public and not to subsidize newspapers, here is a non-exclusive list (in on particular order) of things to consider:

• Will the notice be in a predictable place?
• Will the notices on a website be easily found?
• How long will the notice be available? (What will the legal result be if a notice becomes unavailable prematurely?)
• Will the notices be in the same place, at least for all entities associated with the county or municipality, or will an interested member of the public have to search many websites?
• What kind of customer service will the website have for those seeking to place notices?
• What will the response time be (how quickly will an on-line notice be published after it is provided to the operator of the website)?

Jay Bohn

August 7, 2023

As I reported earlier this month, the U.S. Supreme Court has ruled that “benign racism,” using a college applicant’s race as a “plus,” is no more constitutional than the strict quota system rejected in Regents of University of California v. Bakke, 438 U. S. 265 (1978).¹ Among my initial comments on these decisions was the observation that “the individual decision-makers at universities and other institutions that favor affirmative action can do so without being concerned that it will cost them personally — others (today’s young people) are paying.”²

The defenders of affirmative action were already, and are now more, critical of “legacy” admissions, where schools give a plus not only to the descendants of previous graduates, but also children of donors and faculty members and also to potential athletes. See, for example, Star-Ledger editorial cartoonist Drew Shenemean’s column “Challenging legacy admissions in higher education.” (Subscriber exclusive) Anybody remember “varsity blues,” the prosecution of a number of wealthy (and not a few famous) parents who made “donations” so their children could be admitted to their preferred schools, sometimes supposedly as athletic recruits?

You are not going to find a defender of legacy admissions here. In fact, to the extent that children of faculty members are legacies, legacy admissions policies contribute to faculty defense of affirmative action, because they (or their children) will not have to pay for that policy.

Jay Bohn

July 31, 2023

1. This is because, in part, as the Court observed, college admissions is a zero-sum game. There are only so many admitted to each elite university each year so plusses for some are necessarily minuses for others. ↩︎
2. Borrowing of course from my earlier economic post about what I called the “SEP” problem. ↩︎

In his column this morning, “Republicans are dead right about this secret spending by Democrats” (subscriber exclusive), Tom Moran bemoans the annual ritual of legislators’ slipping pet projects into the budget at the last minute (which is when it is always passed). Moran pushes what he says is an easy fix suggested by Peter Chen: require the legislature to present a draft budget by June 1. Chen says: “This would prevent lawmakers from waiting until the last minute to finalize and vote on a budget bill that they may or may not have read.”

I don’t believe it. Don’t get me wrong, I agree that it would be good to see a draft budget in advance. But if that draft is not subject to change, then we’re just moving up the deadline and, if it is subject to change, the last-minute goodies will be part of that change. While there are what I will call structural provisions that can help, they cannot guarantee good government.

In a democracy the only way to keep politicians in line is the threat of voting them out. This requires attentive voters with access to relevant information (the last part is – I thought – part of the role of a free press).

Jay Bohn

July 27, 2023

There have been a lot of opinion pieces recently about Governor Murphy’s goal to reach net-zero emissions by 2050, how he’s going to achieve it, how much it will cost and who will pay for it. Here I’m going to concentrate on yesterday’s Star-Ledger/NJ.com guest column by State Senator Anthony M. Bucco, the Republican leader in the upper chamber.

In addition to his points about the expense of eliminating all use of natural gas¹ and the lack of transparency of how the governor is going about it, is what Bucco asserts is a constitutional issue, the use of the Board of Public Utilities to impose this policy as an end-run around the Legislature. This brings to mind a point that I have made many times² that too much power has been delegated to the executive branch and the debate over the appropriate extent of the dedication is not a procedural matter but whether the speaker approves the substantive decision that the agency has made.

I agree with Senator Bucco’s position that the substantive matter of whether natural gas should be abandoned as an energy source is a legislative rather than administrative matter.

Jay Bohn

July 24, 2023

1. Bucco says:
   New Jersey customers will bear the brunt of the exorbitant upfront costs to replace their furnaces, stoves, and other major home appliances, especially in older homes. As such, New Jersey homeowners could face tens of thousands of dollars in sunk costs to retrofit or replace their existing systems, in addition to paying higher taxes toward overhauling the state’s electric grid to accommodate the greater demand that will be placed on it. ↩︎
2. Start with The Misuse of Emergency Powers. ↩︎

Yesterday NJ.com published an editorial, “Murphy and climate, on the clock,” which urges the rapid adoption of state regulations to push for more electric rather than gasoline powered vehicles. The problem, according to the editorial, is the time it will take the Department of Environmental Protection to respond to the comments that the proposed regulations are bound to receive. You see, administrative agencies must publish proposed regulations in the New Jersey Register and allow time for the public to comment on the proposal. At the time the regulations are adopted, the agency must respond to the comments received, most often rejecting any comments that advocate any significant change in the proposal.

Such rejection is not only because the agency is unlikely to change its mind about the best way to regulate, but because any substantial change would require a revised proposal and further delay in adopting the regulation. There is a similar requirement for adoption of municipal ordinances: two readings are required, with notice given between the two and a public hearing at the time of the second with any substantial change requiring the governing body to start over.

I don’t know the answer, but it is perverse that there is such a disincentive for the government to change its proposal in reaction to public comments.

Jay Bohn

July 20, 2023

A couple days ago I saw a story on AP.com about a ballot initiative in North Dakota seeking to prevent octogenarians from representing the state in Congress. According to the article,¹ “No one who ‘could attain 81 years of age, by the end of their term could be elected or appointed to the state’s U.S. House or Senate seats, under the proposal.”

The proposal reminded me of the various state-level attempts to impose term limits in the 1980s and 1990s. In U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995), the Supreme Court ruled that the states cannot impose qualifications for prospective members of Congress stricter than those the Constitution specifies.²

In addition to the evident unconstitutionality of such a prohibition, I do not favor substantive limits upon who the people can elect.³

Jay Bohn

July 17, 2023

1. I could not find the actual text of the proposal, so I have to rely upon the article. ↩︎
2. Term Limits was a 5-4 decision. Only Justice Thomas remains on the Court, and he dissented from the decision.) ↩︎

Every couple of years a play is made to end New Jersey’s ban on self-service gasoline. The current discussions seem to arise from Oregon’s recent decision to end its own ban, leaving New Jersey as the only state to prohibit drivers from pumping their own gas.

I first saw the recent contretemps in Paul Mulshine’s column last week “New Jersey’s arguments against pumping your own gas are self-serving.” That column is worth a read.

Of course, there is opposition to that view, often expressed as “I don’t want to, so it should be prohibited,” as reflected in a letter to the editor of the South Jersey Times by Denise Brush of Glassboro, who was “very offended” by Mulshine’s column and found the idea that “everyone in New Jersey should be allowed to pump their own gas . . . insulting to those who can’t do so, or would rather not.” (Yes, it can be very upsetting to find that other people have views different from one’s own. I face that problem constantly.) She makes the point that she avoids stores with self-checkouts.

Most recently Drew Sheneman, a cartoonist/columnist with whom I usually disagree, advocated for self-service in his confusingly titled editorial “Self-serve gasoline is a fate worse than death.”

Although I first moved to New Jersey some 35 years ago, I started driving in a state that had self-service and still travel through such states (i.e., everywhere but New Jersey) on occasion. Pumping your own gas is not hard and as Mulshine points out, the training requirement is not onerous. When I first arrived in New Jersey I felt funny staying in the car while someone served me.

I really don’t expect that allowing self-service will have a great effect on prices, especially if gas stations are required to provide full-service to those who want it at the same price. What I want is the convenience of not having to wait for the one attendant for all the pumps to get to me given all the other customers who happened to pull in just before me or the other duties that the attendant has. I also use the “scan and go” of Sam’s Club’s app to avoid even the self-serve checkout line.

Jay Bohn

July 10, 2023

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

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

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