Public Question #1

On Tuesday, November 3, General Elections will take place in New Jersey. This election is particularly important because voters will choose the next governor. There has been much coverage about the campaigns of Gov. Jon Corzine (Democrat) and Chris Christie (Republican), even drawing national attention. President Obama, for example, has already appeared twice for Corzine, with a third visit planned for Camden and Newark.

[UPDATE #1: Obama goes to NJ for final pitch of '09 elections.]

[UPDATE #2: Obama says NJ governor is key to his own agenda.]

[UPDATE #3: Handful of elections shed light on US politics.]

Also appearing on the ballot is a Public Question that, to my knowledge, has received much less coverage. In a nutshell, this ballot initiative asks voters either to approve or reject $400 million in state funding for the New Jersey Green Acres Program. Seeing the number $400,000,000 and knowing nothing about this program, I wanted to find out more.

I found paltry information about the public debate over this. Unsurprisingly, according to one side New Jersey must devote finances to sustain and develop the State's ecology. Predictably, according to the other side allocating $400 million is fiscally irresponsible. Needless to say I kept searching.

Eventually I found the web site for the Green Acres Program. Established by N.J.S.A. 13:8C-24, this Office works with municipalities and non-profits by providing funds to acquire lands for public recreation and conservation. The Garden State, it turns out, still has 70% of the land either preserved or undeveloped. Comprised of 4.8 million acres, about 1.3 million acres are permanently preserved, 1.4 million acres are developed, and 2.1 million acres are undeveloped.

The statute that created this Office also requires Green Acres to adopt application procedures for grants and loans and develop criteria and policies for evaluating and ranking projects, which appear in N.J.A.C. 7:36-1.1 to -21.4. This achieves two purposes. First, and most obviously, applicants must follow these rules either for either loans or for grants, providing them with the objective criteria that Green Acres will consider. Second, this bolsters the appearance of regularity in government conduct. The agency could hardly be faulted for following its own administratively approved rules.

Indeed, I witnessd the evolution of one Green Acres project, Johnson Park. This park is between the Rutgers-Camden campus and the Delaware River. Interestingly, Johnson Park features a statue of Peter Pan that is strikingly similar to one in London's Kensington Gardens.

The Green Acres web site describes the Office's four divisions: (1) State Park & Open Space Acquisition, (2) Local Governments and Nonprofit Funding, (3) Stewardship - Keeping It Green, and (4) Planning & Information Management.

As I began to understand more about Green Acres, I wondered why Green Acres relies on public funding instead of private sector activities to raise capital. Speaking engagements, for example, can provide a revenue stream. I wondered whether Green Acres, since its inception, had developed or implemented any innovative solutions in its field. There might be audiences that would like to know about Green Acres' history and achievements. On a more aggressive scale, given the importance of environmentalism nowadays, why does Green Acres not provide environmental consulting services to New Jersey corporations? Instead of turning to voters for funding approval, Green Acres could take at least partial responsibility for its budget.

One objection, however, is this could lead to appearances of impropriety based on business relations with a government office. This is an understandable concern where agreements involving land use are concerned, especially because New Jersey government has a less-than-squeaky-clean reputation. For that matter, the same regulations that set forth the application procedures for municipalities and non-profits provide, "These rules shall be construed liberally to effectuate the purposes and objectives of the Green Acres laws." N.J.A.C. 7:36-1.3 (emphasis added). On the one hand, this probably allows Green Acres to foster and maintain positive relations with applicants and approved entities. It is conceivable, however, that this discretion could undercut the regularity of conduct mentioned above. As long as that possibility exists, it seems Green Acres might have to refrain from engaging in private sector activities to raise capital, and instead rely on voters.

Whether to vote "yes" or "no" on November 3 is a personal decision. Even so, this research provided me with a better understanding about New Jersey and some of the issues involved in Public Question #1.

Confrontation Clause and Prior Criminal History

"In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . ." U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10. The right of the accused to cross-examine derives from the Confrontation Clause. Bruton v. United States, 391 U.S. 123 (1968). The Anglo-American tradition relishes live in-court testimony "by testing in the crucible of cross-examination." Crawford v. Washington, 541 U.S. 36 (2004). Only by cross-examination can a defendant expose falsehood and bring out the truth in a criminal trial. Pointer v. Texas, 380 U.S. 400 (1965).

In a criminal trial, when it comes down to it, cross-examination is all the defendant really has. It is the one thing standing between the truth and the government's case in chief. This hallmark of great trial lawyers alerts the jury to holes the government might want to conceal.

But this right has limitations. The issue in the following case is whether the Confrontation Clause allows cross-examination to get into an adverse witness' criminal history. The Appellate Division held in this case that it does not. This was because the adverse witness was fully cross-examined in front of the jury about inconsistent statements, and his testimony was corroborated by evidence linking the defendant to the crime.

State v. Raafiq Leonard (App. Div. 2009).

"You don't look so bad, here's another" - Bernie Goetz

The Second Amendment does not apply to the states, at least not yet. Unless and until the Supreme Court selectively incorporates it into the Fourteenth Amendment (litigation is pending), states are free to determine how to regulate gun ownership. Some states have provisions in their own constitutions, others do not. In New Jersey, there is no state constitutional right to bear arms. Instead, it derives entirely from statute.

Indeed, New Jersey law heavily restricts gun ownership. Some support this, others oppose it. Without exploring that debate, suffice it to say this is the state's law and policy. Though regulated, obtaining a permit to purchase a weapon, as provided by N.J.S.A. 2C:58-3, is less burdensome than getting a permit to carry, as provided under N.J.S.A. 2C:58-4.

An applicant for a permit to purchase usually applies with the police in the town where he lives. Following an investigation, state law vests the police chief with the authority either to grant or to deny the application based on a grid of factors set forth by the statute. If denied, the police chief is required to send a letter with the reasons for the denial. Upon receiving the denial letter from the police, the applicant has thirty days to request a full hearing in court. Assuming the applicant submits a timely appeal, he is entitled to this hearing no more than thirty days after the court receives the request.

Before the hearing, the applicant has the right to meet with the police chief to discuss the reasons for the denial. This might provide a useful discovery tool for the applicant. But where the window of opportunity is only thirty days, time is clearly of the essence. Therefore, applicants might skip the meeting. At the court hearing, the parties develop a record with testimony from witnesses, and the court may either affirm or reverse the police chief's denial.

Although this post began with a few words about the Second Amendment, the steps described above trigger other constitutional guarantees, namely Procedural Due Process. Generally speaking, Procedural Due Process provides an individual (1) will be provided with notice of pending litigation where he is an interested party, and (2) an opportunity to be heard. New Jersey Rules of Court embrace this. Surprisingly, the opinion below involves a handgun applicant who was denied the opportunity to be heard.

In The Matter of Anthony Dubov (App. Div. 2009).

"Thank You America, You Were the Beacon of Freedom for the World."

The debate between the right and the left about the environment is simple enough to understand. Conservatives favor limited government, and so they prefer free market solutions for the greater social good. Modern liberals, however, favor expanded government and broader regulation. This basic framework makes sense for understanding the political divide on the environment. Guided by these principles, conservatives historically have embraced lenient environmental policies, while liberals have endorsed stricter regulatory agendas.

But is there more to "the environment" than appears? Below is a clip from a lecture by Lord Cristopher Monckton. Speaking on October 14, 2009, Lord Monckton characterized the forthcoming Copenhagen Treaty as a tool for the redistribution of wealth.

On that basis, Lord Monckton claims it is a tool of communism. Most likely I would be skeptical were it not for the material I have read about another major measure dealing directly with the environment, "cap-and-trade." Briefly, cap-and-trade imposes emissions limits ("cap"), and allows producers with excess credits to sell their credits to producers with excess emissions ("trade"). Critics, on the other hand, view it as a tax on consumers because the cost is passed on to them. More significantly, they deride it because it stifles the free-market economy.

There is, of course, much more to say about cap-and-trade. As to the more general issue here, this might be another instance where it pays to question the motives of our elected officials. Without personally claiming communism, because that is a very slippery slope, the politician's hallmark has never been honesty.

Snow Job

The State of New Jersey likes staying ahead of the curve. But motorists are probably not ready for this curve ball! Gov. Corzine and the Legislature are hailing a new bill requiring drivers to make all reasonable efforts to remove snow or ice from their vehicle, including the roof, hood, trunk and windshield.

Clearly automobiles with frozen ice and snow pose safety risks, especially on the highway. But this regulation, apparently the first of its kind in the nation, raises more questions than it answers. First, what is the definition of "all reasonable efforts?" Second, is a police officer to be trusted with fair decision making of this sort at the side of the road? Third, at what point will the police have the authority to issue a citation: even before or only after observing ice fragments fall from a car? Fourth, will the execution of this law provide a pretext to stop motorists? Finally, in the absence of physical evidence, how will courts fairly weigh an officer's claims against a driver's denials? This regulation does not provide an adequate solution.

Safer roads are a great idea but this law compromises too much, leaving New Jersey residents with little reason to rejoice. Not so obvious are drivers coming from other states who traverse New Jersey's all too famous roadways. They are the more likely targets.

Read more about New Jersey's latest snow job.


Many people do not like planning for "the inevitable," but most know it is important. A good ‎estate plan covers all the contingencies.‎

My brother-in-law, Jason, is a lawyer. Among other talents, he helps clients with estate planning. I studied this subject in ‎law school, ‎but he explains the practical importance of estate planning better than anyone I have ever heard. ‎A "will contest" usually means the parties either will wind up in court or will spend significant resources disputing the intentions of the testator. For better or for ‎worse, the ‎court has to make a best-guess at the intentions of any unclear terms in the will. ‎As Jason explains, this is because the star-witness is six feet ‎under and not available to testify or clean up the “messy” documents that are being challenged and reviewed.

Imagine the people in your life. When you “permanently retire,” your survivors will carry memories of you. Imagine the people you know and love going to court to decide where you should be buried or what you meant to do with your estate’s assets. Although it could have been avoided with good planning, this is the gist of what happened in Marino v. Marino (N.J. 2009).

Protecting Your Privacy

If you canned MySpace and are now hopelessly devoted to facebook, this information is crucial.
Hiding your "virtual tracks" is important nowadays because anyone with an opinion has a blog (ahem), "social networking" is more popular than "in person networking," and google searches are ubiquitous. If for no other reason, consider managers, co-workers, or prospective employers discovering your personal business. Abandoning an account leaves this sensitive information vulnerable. Without a doubt you can think of other possibilities.
How to Delete Accounts from Any Website

Res Judicata

In order to prevail on res judicata, a defendant must demonstrate:
  1. a final judgment on the merits in a prior suit;
  2. involving the same parties or their privies; and
  3. a subsequent suit based on the same cause of action.
Elkadrawy v. Vanguard (3d Cir. 2009).

Deportation: A penal or collateral consequence?

In this article the issue before the Court is whether the Sixth Amendment requires a lawyer to advise clients of the deportation ‎consequences of a guilty plea. The Court has not rendered a decision yet, so right now it is only as a collateral consequence. Therefore there is no Sixth Amendment duty to give this advice. The Court may change directions.

Practically speaking, the New Jersey Plea Form covers this point in Question 17. The client reviews this form with his lawyer, signs it before entering the guilty plea, and the judge admits this evidence during plea hearings. So in New Jersey it seems that unless a lawyer completely skips ‎this question, it should be less of a concern.‎

"Happiness is a Warm Gun."

There is powerful historical evidence that a right to bear arms would have empowered citizens to protect themselves against government tyranny. Instead, these people were annhilated. Alternatively, gun ownership is a tremendous responsibility because they are deadly. See McDonald v. Chicago, 561 U.S. 3025 (2010).

"Three Felonies a Day"

Harvey Silverglate gave this interview to the Cato Institute. During the conversation, he made points about the balance of power between the Federal Government and the States similar to what I wrote here.