Government/Politics – Page 7 – From the Peanut Gallery

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.

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.

Defanging of Election Watchdog No Blow to Senatorial Courtesy

I’ve seen several stories recently about the Election Transparency Act, a New Jersey bill that would, among other things, make changes to the Election Law Enforcement Commission (ELEC). The bill has been the subject of a number of editorials, such as this one and this one, primarily about the reduction of ELEC’s window to investigate matters from ten years to two and the ability of the governor as a one-time matter to appoint all of the commissioners without the need for advice and consent of the Senate. Apparently, the Assembly is going to vote on the bill today.

While I certainly see big issues with the bill, this post is about the justification articulated by Senate President Nicholas Scutari for letting the governor appoint an entirely new commission((There are supposed to be four commissioners, at the moment there is one vacancy and three holdovers who continue to serve despite the expiration of their terms.)) without the need for Senate approval: “People are always criticizing (senatorial) courtesy, and what we’re doing for this one limited time is getting rid of courtesy.” For those who don’t know, New Jersey’s version of senatorial courtesy is the practice whereby the state senate will not vote on a nomination without the okay of all senators (regardless of party) who represent any part of the county in which the nominee resides. It’s a sordid practice, but one that probably will never change as long as each senator thinks that he or she may want to use it one day.

But even the staunchest opponent of senatorial courtesy cannot think that it would just be better to eliminate the Senate’s role in the appointment process altogether.((I will say that for most “purely” executive positions the governor should be able to make the appointment of his own subordinates.)) Scutari should push a Senate rule change mandating an up or down vote on appointments within a set time.

This is not to say that ELEC does not need reform. Consistent with the position I have expressed before, no administrative agency should act as both judge and prosecutor. It’s time to move adjudications that can result in fines and other penalties out of the Executive Branch.

Jay Bohn

March 30, 2023.

Some Concerns About the Multilingual Mandate

Yesterday NJ.com published an article((It is indeed more factual than most of the unlabeled opinion pieces, but it clearly conveys support for the bill.)) about a bill((Kudos are due for not only specifically identifying the bill but also providing a link.)) that will require state executive branch agencies to “translate vital documents and information . . . in[to] the 15 most common non-English languages spoken by individuals with limited-English proficiency in this State . . . .” Implementation of the law would be paid for, in part, by federal COVID funds.¹ The article quotes one Republican senator who voted against the bill due to its cost and the requirement of 15 languages.((The article preceded the explanation with the suggestion that all but one Republican voted against the bill because they are all white.))

Cost is indeed a concern. Also, will agencies have to hold up issuing documents and information until all of the translations are completed?

My greater concern, however, is the potential for this mandate to expand from state agencies to local governments to private businesses. Cost would be a factor there too (and no doubt there will be no COVID funds left), but I am more concerned about whether the translations are deemed to be of equal weight with the English version? It is hard enough to draft a legal document in one language so that some reader cannot find or invent ambiguity, what about a translation into fifteen other languages?

Accessibility of government information to those who cannot speak English is not itself a bad idea, so long as it does not become a mandate that declares that the meaning of a document is the translation least favorable to its author.

Jay Bohn

March 27, 2023

The connection with the pandemic must be too obvious to require explanation. [↩]

COVID-19 and Emergency Powers IV – The Wrap-Up

Three years ago tomorrow, March 21, 2020, NJ governor Philip Murphy issued Executive Order 107, which mandated that people stay at home. Although it was a drastic step, the COVID pandemic was still pretty new, deaths were mounting, and we did not know how to handle it. As I recall, it was thought that the time from exposure to severe symptoms did not exceed two weeks, so I expected that the restrictions would last two weeks within which time the spread of the virus would be controlled. As we know, it didn’t work that way.

Executive Order 107 was just one of many emergency measures adopted by the executive branch under powers delegated for use in an emergency (or perhaps not((For example, in the early days of the COVID pandemic, Bergen County Executive James Tedesco ordered all malls in the county to close until further notice in order to prevent the spread of the disease. When asked about his legal authority to shut down private businesses, Tedesco responded: “I have the moral authority.” NJ coronavirus: All Bergen County malls must close (northjersey.com). Because Tedesco’s closure order was quickly subsumed by Governor Murphy’s, the question of legal authority was never authoritatively tested.))) but justified on the basis of an emergency.¹

My essential thesis is this: In the beginning the COVID-19 pandemic was an emergency requiring urgent action, and this justified the invocation of powers delegated for such events. After the initial weeks or months, COVID, although still a major problem, no longer justified the routine exercise of emergency powers. It remains dire but is not urgent. Our legislatures could assemble, personally or virtually, and pass laws to deal with the situation. While I have often criticized COVID emergency measures as “rule by decree,” I am not an anti-vaxxer² nor did I oppose the concept of requiring the wearing of masks in public.((Although it should have been put on a legal foundation with law enforcement rather than business owners responsible for enforcement of the mandate.)).

The problem, as many governors and other wielders of executive authority saw it, was that the legislators would not pass the right laws, or do it quickly enough. And so many COVID emergency declarations have remained in effect even though, for most of us (thanks in large part to rapidly developed vaccines), the daily routine is now much like it was before the pandemic. Emergency declarations allow the executive to bypass pesky limitations (described as “unnecessary red tape or bureaucratic obstacles”) on their ability to do what they want.³

Recently the Washington Post published a story by Lauren Weber and Joel Achenbach entitled “Covid backlash hobbles public health and future pandemic response,”((The story appears at https://www.washingtonpost.com/health/2023/03/08/covid-public-health-backlash/ (paywall) and is reproduced by MSN at https://www.msn.com/en-us/news/us/covid-backlash-hobbles-public-health-and-future-pandemic-response/ar-AA18mBh, and was published in the print by the Star-Ledger on March 16, 2023, at page H1.)) in which the authors bemoan the (mostly) Republican response to some of the COVID measures.((The always understated Fox News has this response to the story: Washington Post torched on Twitter after complaining health officials have limited powers: ‘Medical fascism’.)) The point of this story is that opposition to overstepping in the COVID emergency and support for the separation of powers will lead to an inability to deal with the next pandemic.

There will come a time when something else requires an emergency response. Before that happens is the time to give serious thought to what authority is to be given to the executive branch and administrative agencies, and for how long. Declaring an emergency when the legislature does not agree with the executive’s policy preferences cannot be the knee-jerk response. The emergency measures must be tailored to the emergency, which cannot be the excuse for at best tangentially related policy preferences, like widespread voting by mail and student loan forgiveness.((See, for example, Elizabth Goitein’s comments which I quoted in The Misuse of Emergency Powers: “[The] purpose [of emergency powers] is to give presidents a short-term boost in power in situations that Congress cannot have foreseen (because they arise suddenly and without warning) and that Congress is ill-suited to handle (because they require immediate or highly nimble responses). Emergency powers are not intended to address longstanding problems, no matter how serious. Nor are they meant to authorize permanent or long-term policy solutions that Congress itself could provide but has chosen not to.”)) So long as our legislators can assemble, they get to make the policy decisions. As I concluded a post entitled What’s More Important: Process or Substance? almost two years ago, “While many might accept rule by an all wise and benevolent despot, remember the democracy is a process.”

Jay Bohn

March 20, 2021

I have previously been critical of the misuses of such powers: COVID-19 and Emergency Powers; COVID-19 and Emergency Powers II – Not Much Has Changed; COVID-19 and Emergency Powers III – Still Not Much Has Changed; and The Misuse of Emergency Powers. [↩]
It is Time for Vaccine Passports [↩]
As I noted in Superstorm Sandy, Ten Years Later: The State of Emergency Continues, we are (or as of 2022 were) still in the state of emergency declared in connection with Superstorm Sandy in 2012 for exactly that reason. [↩]

Supreme Court a Scapegoat for Those Who Can’t Abide Judicial Review of Policies with Which They Agree

Stop me if you’ve heard this before. I politician addresses a rally in Washington, urging the crowd of activists to affect an official proceeding. I am of course talking about Senator Elizabeth Warren addressing supporters of student loan debt cancellation outside the Supreme Court while the justices heard arguments on whether the HEROES Act gives the secretary of education the power to do just that. ABCNEWS.com quotes Senator Warren as saying, “We are here today because President Biden has the legal authority to cancel student loan debt. Let me say that one more time and make ‘em hear it inside.” It is different less in kind than degree (albeit a lot of degree) from what Donald Trump did on January 6, 2021.

Senator Warren is then quoted as saying, “It is time for the Supreme Court to stop playing politics and just apply the law and let us cancel this debt.” What is holding a rally outside the court building, if not politics? I get it, it’s different. She’s on the right side.

While the nine justices are not as divorced from politics as one might hope,¹ their treatment of this issue can hardly be called playing. The Supreme Court is involved because the Biden Administration asked it to be when it sought review of two lower court actions that stalled the scheme. The Court granted certiorari before judgment in the courts of appeals (rare); did so within two weeks of the initial application; and scheduled the cases to be heard within a matter of months. As usual, a decision is likely before the Court breaks for the summer in late June or early July.

This timeline is much quicker than the Biden Administration’s revealing of its student loan forgiveness plan. President Biden ran on the promise to cancel $10,000 of debt per borrower, a lot like the program he ultimately approved. He took the oath of office on January 20, 2021. Of course, first he had to deal with a Justice Department legal opinion that he (or perhaps more specifically, the secretary of education) did not have the authority to cancel the debt.((As I have previously written, then-House Speaker Nancy Pelosi agreed with this position.)) The plan was finally announced in August 2022, some 19 months later, just in time for the mid-term campaign season. Then it became urgent as the Biden Administration tried to run out the clock to prevent challenges.

Lets be clear. For many who are criticizing the court, the only justification that is needed for the program is that it is good policy, regardless of by whom or how it was created. The substance rather than the process is what’s important. But, as I said before, “While many might accept rule by an all wise and benevolent despot, remember the democracy is a process.” Or, as I said in another context, “The hypothetical reader of this blog would recognize this logic– it is what supported many of the executive orders during the rule-by-decree phase of the COVID-19 pandemic: ‘the governor should have the power because the governor makes better choices than the legislature’ (or something like that).”

Jay Bohn

March 6, 2023

While there is some merit in the comment that the “fairness” of the program is not a relevant consideration for the Court, neither is the solicitor general’s assertion at the commencement of the argument [transcript here] that “Over the past three years, millions of Americans have struggled to pay rent, utilities, food, and many have been unable to pay their debts.” [↩]

There’s a Difference Between “Constitutional” and “Unreviewable”

Just because a court rejects a challenge to a government action does not mean that the court necessarily has ruled that the action is constitutional or legal. The court may have rejected the challenge on procedural grounds and not considered the merits of the question.

Procedural grounds are not merely technicalities, although they may vary in importance. The most important procedural ground is whether the court has (subject-matter) jurisdiction to decide the case in the first place. Federal courts have limited jurisdiction and are supposed to determine whether they have jurisdiction in a particular case before moving to the merits. As we’re hearing now, this is a big (and I believe decisive) issue in the student loan cases, which will be argued tomorrow, where the specific question is whether the plaintiffs in those cases have “standing.” If the Supreme Court rules that they do not, the challenges to the student loan forgiveness program will be dismissed, but that will not answer the question of whether the secretary of education’s action was legal. That may become largely academic as it will be hard to imagine anyone who would have standing.((The need for standing can be frustrating as it insulates certain actions from review, no matter how contrary to the Constitution they may be. I don’t particularly think the lack of any chance to review whether the decision to forego the repayment of $400 billion is legal is something to celebrate.))

In addition to lack of standing, a federal court will not have jurisdiction if there is some applicable immunity. The immunity conferred by the Constitution’s Speech and Debate Clause((“Senators and Representatives … for any Speech or Debate in either House … shall not be questioned in any other Place.” U.S. CONST. art. I, § 6, cl. 1.)) was the basis for the dismissal of now-Speaker Kevin McCarthy’s challenge to proxy voting in the House of Representatives. McCarthy v. Pelosi, 5 F.4th 34 (D.C. Cir. 2021), cert. denied ___ U.S. ___ (2022).

The D.C. Circuit’s ruling is binding authority only over the U.S. District Court for the District of Columbia.((The Supreme Court’s denial of review is not an indication that it agrees with the result and is not precedential.)) Recently the attorney general of Texas filed a challenge to the Consolidated Appropriations Act of 2023 in the Northern District of Texas, arguing that representatives not physically present but “represented” by proxy cannot be counted toward whether a quorum is present.¹

In a rather histrionic article, “Texas asks a Trump judge to declare most of the federal government unconstitutional,” Vox senior correspondent Ian Millhiser characterized McCarthy v. Pelosi as a ruling that proxy voting is constitutional when, as we’ve seen, it did not reach the merits. Although he has some interesting arguments on the merits and may well be right, it appears to me that the author of this article was mostly concerned with attacking Republican judges.

And just because the House of Representatives may be able to get away with proxy voting doesn’t mean it should.

Jay Bohn

February 27, 2023

Without a quorum the House of Representatives cannot act. [↩]

End Limit on Number of Liquor Licenses

Sometimes a “system” will evolve in a way that would never be consciously deigned if one were starting from scratch. I believe that New Jerey’s liquor license regime is a prime example. Aside from special cases (hotels of at least 100 rooms, airports, bowling alleys, and other politically favored locations), plenary retail consumption (bars and restaurants) and distribution licenses are issued by the local municipality and limited based upon population. The time has come to end this artificial scarcity and stop treating the licenses themselves as an article of commerce.

In his State of the State speech last month (video | text), Governor Murphy had this to say about New Jersey’s liquor licensing scheme:

And I am greatly aware that some of, if not the, hardest hit businesses from the pandemic were our restaurants. And few were harder hit than the small neighborhood establishments – many, if not most, family-owned – that couldn’t get a liquor license that is so critical to maintaining a healthy profit margin.

There’s no other way to put it – our liquor licensing regime is antiquated and confusing. We rely on a foundation of rules written in the days immediately after Prohibition to govern a 21st century economy. That makes no sense.

It makes no sense to restaurateurs like Ehren Ryan, the chef/owner – along with his wife, Nadine – of Millburn’s Common Lot, where a liquor license can ensure the stability of his establishment. Ehren is with us today.

And so, I ask for your partnership in rewriting our liquor license laws to make them not just modern, but fair. The old rules have purposely created market scarcity and driven up costs to the point where a liquor license can draw seven figures.

For many small, independent restaurateurs – folks like Ehren, and many others like him in other communities, and especially those in Black and Brown communities where access to capital has historically been limited – that’s just too high a price to pay.

Expanding the number of available liquor licenses will not only help keep our favorite local restaurants healthy, it will also help keep our economy healthy.

This won’t be easy, but it will be worth it. We project that overhauling our liquor license regime will create upwards of 10,000 jobs annually and, over the next 10 years, generate up to $10 billion in new economic activity and $1 billion in new state and local revenues.

And here is how we can do it.

Right now, the number of liquor licenses allowed to be issued by any local government is one for every 3,000 residents. I propose that over the next few years, we gradually relax this requirement and expand the number of available licenses until the restriction is eliminated in its entirety and the market can work freely.

Meanwhile, we can maintain the local control that is so critical in making sure our downtowns retain the character that makes them so special.

Now, I fully recognize that some restaurants have made significant up-front investments to obtain their current licenses. We must be fair to them and I propose a targeted tax credit to support them as the supply of licenses grows.

While I am not convinced that current license holders are entitled to any compensation if their monopoly is ended, I do have a suggestion how the first part of the gradual expansion is could be effected in a way that would provide a financial benefit to them without a tax expenditure.

Suppose that we agreed to a four-year phase-in of unlimited liquor licenses. At the beginning of year 1 give every current license holder (the “mother” license) one additional license that can be used, sold, or pocketed. (For at least this phase the license could not be used in a different municipality unless both towns consented.) Then, in year 3 each holder of a mother license, whose year 1 “daughter” license is actually in use, would get another additional license. In this way current license holders will have had the benefit of six (4+2) years of an additional premises or the equivalent market value. True, the value will drop, but this will allow “mom and pop” restaurants to afford licenses, and at the end of the four-year period the numerical limitation will end.

Jay Bohn

February 20, 2023

Continuing “State of Emergency” Could Cost Jersey City Millions

The hypothetical reader of this blog may recall that I find the overuse of states of emergency troubling.¹ The COVID state of emergency has continued for nearly three years now and it, coupled with some bad contract-drafting on the city’s part, is likely to cost Jersey City millions of dollars.

The city’s contracts with some of its labor unions call for double-time payments for work performed during a state of emergency. While they probably had in mind those two-day or so snow emergencies that sometimes are declared during the winter and presumably were intended to provide “fairness” between those public employees who were excused from work and still got paid and those who actually had to work, that’s not what the contracts said.

In its 2021 decision, Jersey City Public Employees, Inc., Local 245 v. City of Jersey City (unpublished), the Appellate Division reversed a trial court decision which had affirmed an arbitrator’s decision that the contract language, “Employees who work during a State of Emergency covering the City of Jersey City, as declared by the Governor of New Jersey, will receive[] double time pay for all hours worked during the State of Emergency.” was ambiguous. That case involved a seven-day weather related state of emergency that caused a much briefer closing of Jersey City’s municipal offices. The appellate court found no ambiguity:

We do not see an ambiguity in the language, and consider the meaning to be self-evident and straightforward. In those cases, arbitration decisions may be reversed. . . . .

The phrase regarding an emergency declaration “covering the City of Jersey City” is modified by the language which follows: “as declared by the Governor of New Jersey….” The language could have said, but did not, “covering the City of Jersey City as established by a closure of City Hall,” or “covering the City of Jersey City as determined by interference with normal City operations.” The negotiated language was precise. It simply stated if the Governor issued a declaration of a state of emergency, then City employees were entitled to double time pay.

The City’s position that the language should be interpreted to be a reference to normal operations is understandable. However, that reading of the agreement has no support in the wording of the plain language of the section. Nor does the language distinguish between essential and non-essential workers, in addition to not requiring City operations be disrupted.

Paying municipal employees double time for a week is small potatoes, however, to the COVID state of emergency which is about to celebrate its third anniversary. Earlier this week NJ.com reported that the city council was considering a resolution “to hire a consultancy agency to provide actuarial services for a payment plan . . .”

Jay Bohn

January 25, 2023

As I noted in Superstorm Sandy, Ten Years Later: The State of Emergency Continues, we are still in the state of emergency declared in connection with Superstorm Sandy in 2012. [↩]