Media Reports of Public Opinion of Courts a Sort of Self-Fulfilling Prophecy

Because the only information most Americans get about court decisions (as just about any other public institution) comes from an increasingly opinion-dominated professional news media, and those media emphasize the politics and personalities of major judicial decisions rather than the actual legal issues and arguments, it is not surprising, as ABC News recently reported,1 that public opinion tends to accept the narrative that judicial decisions are driven by politics.

We don’t have to rely solely on major media. The United States Supreme Court’s website is a comprehensive resource to learn about the cases before it, the arguments of the parties and the Court’s own decision. A reader can find all the briefs, on the day the case is argued a live audio feed is provided, later that day both the recorded feed and a transcript is available, and of course all the opinions are available as soon as they are released. Other courts are not quite so comprehensive, but usually at least the decisions can be found.((New reports of judicial decision, at least the on-line stories, should link to a freely available opinion or at least provide sufficient information, like case name and docket number, that a search can locate it.))

Of course, the subtext of the most media coverage is that being driven by politics is a bad thing only of the judicial decisions under discussion are viewed as supportive of conservative policies. Many conservatives advocate interpreting constitutional and legislative texts according to the meaning they would have conveyed at the time of their adoption. Liberals decry reliance upon originalism and might well argue that the law’s text must not get in the way of its primary goal which is . . . well, whatever the judge wants to say it is. If that’s not politics, what is?

Jay Bohn

May 11, 2023

  1. More say politics, not the law, drive Supreme Court decisions: POLL [↩]

Not a Fan of Term Limits

The House of Representatives is considering an amendment to the Constitution that would limit the terms of members of Congress. H. J. Res. 11. The Twenty-Second Amendment already restricts the number of times a person can be elected President. In many States a two-term (or at least two consecutive term) limit is standard.

Many good government advocates believe that term limits are good for democracy, but I’m not so sure.

Rather, I believe that term limits (and all but the most basic legal qualifications for office) limit democracy by reducing the choices that the people can make. It is common, but not universal, to require would-be legislators to reside in the district they seek to represent. One the one hand this is fully understandable, but on the other, perhaps the non-resident is really a better candidate. I’d rather have us be able to elect a non-resident than encourage carpetbagging.

Jay Bohn

May 8, 2023

Trump’s Decision Not to Testify in Civil Rape Trial Perplexing

Unless you are completely oblivious to national news, you may have heard that former President Donald Trump is currently on trial in civil court for sexual assault and defamation. E. Jean Carroll accuses Trump of raping her in New York City’s Bergdorf Goodman department store in 1995 or 1996. He has denied the event and these denials form the basis of the defamation claim. I wasn’t there and I have no particular insight on the truth of the charges, but I am really perplexed about the decisions that Trump has made in how the case is being tried.

Donald Trump is running for President (again — how I wish he wouldn’t). With any other candidate you would think that the prospect of being found by a jury to have raped someone would be an existential threat that would call for the most vigorous defense. Yet, although Trump has denied the accusation in various public statements, he is not going to testify at the trial to deny it under oath. Moreover, his attorney announced yesterday that when the plaintiff rests, he is not going to present a defense.

True, he’s not going to jail over this, and he has a hard core of followers for whom it would not be disqualifying even if he admitted to the assault, but if he really didn’t do it, why not tell the jury so? It makes one wonder if the denial would be perjury.

Jay Bohn

May 4, 2023

Supreme Court Case May Require Significant Changes to the Way New Jersey Collects Real Estate Taxes

Until the recent oral argument, the major media have not given much attention to Tyler v. Hennepin County, Minnesota, a case before 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.((There was a guest column in the Star-Ledger on the issue last September that appears as a subscriber exclusive on NJ.com, under the title “New Jersey stole an immigrant mother’s investment.”)) Last Wednesday’s oral argument (audio | transcript) should be a warning for the Legislature to put together a replacement mechanism.((See, for example, Amy Howe, Justices appear likely to side with homeowner in foreclosure dispute, SCOTUSblog (Apr. 26, 2023, 3:22 PM).))

The Pacific Legal Foundation, which describes itself as “a national nonprofit legal organization that defends Americans from government overreach and abuse,” represents the plaintiff in Tyler and is campaigning to end what it calls “home equity theft.” As the PLF concisely described the case, “When Geraldine [Tyler] fell behind on the property taxes for her one-bedroom condo, the government seized the home, sold it, and kept every penny—even though it was more than double what Geraldine owed. ‘When the government takes more than it is owed in taxes, that’s home equity theft’ . . .” While Tyler may not be the best case factually to achieve this goal (there is some question whether the plaintiff actually had any equity on the condominium unit after mortgage and condominium association liens), other cases are pending with better facts, as the attorney for the county acknowledged.

New Jersey real estate taxes((This discussion is somewhat simplified and for its purposes I am considering other amounts enforceable by municipalities as taxes, such as municipal utility charges, as taxes.)) are a lien on real estate superior to every other lien (except subsequent taxes). When taxes become delinquent, the municipal tax collector sells the tax lien and issues a tax sale certificate. (It is a public sale and if more than one person wants to buy the tax lien there is an auction process in which they bid down the interest that will accrue. Interest rates start at 18%.) 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 two years (for a private lien holder, if the lien holder is the municipality the period is six months), 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.((As noted, this discussion is somewhat simplified.))

This procedure differs from the manner in which other liens, such as mortgages, are enforced. There the foreclosure process will result in a court order for the sheriff to sell the property at auction. After the sheriff’s fees, the proceeds are paid to the lienholder, up to the amount adjudicated to be due, and thereafter paid into court. If there are no other liens to be satisfied, the surplus funds go to the (former) property owner.

The purchasers of tax sale certificates do so because it is a relatively secure investment, backed by real estate, with a good return and the possibility of a significant windfall if the value of the property is much greater than the tax debt. It also works for the municipalities because they do not carry large delinquencies for years as the purchasers of tax sale certificates will not only have paid what was due as of the sale but are also likely to continue to pay subsequent taxes that come due to protect their investment from future tax sales.

Whether in this case, or one of those others pending, I expect the Supreme Court to find that the windfall to the foreclosing tax sale certificate holder violates some constitutional right of the property owner and our Legislature would be well advised to change the way that property tax liens are enforced, such as by judicial sale like mortgages.

Jay Bohn

May 1, 2023

Post script

Earlier today the Supreme Court ruled unanimously that the former owner’s takings argument stated a claim and remanded for further proceedings. Here is some additional coverage of the decision on SCOTUSblog.

J.B.B.
May 25, 2023

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

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

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

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

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

Jay Bohn

April 27, 2023

Destruction of 98 Cases of Miller High Life Seems Extreme

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

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

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

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

Jay Bohn

April 24, 2023

Upcoming Demise of the Waterfront Commission May Be a Good Start

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

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

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

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

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

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

Jay Bohn

April 20, 2023

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

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

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

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

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

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

Jay Bohn

April 17, 2023

Not Every Bill Becomes a Law

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

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

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

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

Jay Bohn

April 13, 2022

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

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

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

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

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

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

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

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

Jay Bohn

April 10, 2023.