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Steven Malanga
The Court That Broke Jersey « Back to Story

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An excellent reason for the election of judges. The Legislature and Governors were complicit with the usurpation and abuse, as they had the power to reign in the court through its impeachment and removal. Words do have meaning, but not to liberals. I'm so glad my family left New Jersey.
Not to trivialize this issue, but it's always great to see Arnold Roth go at it.
Renfield; precisely what I was getting at - "we need separation of school and state."
A free market in education. If we had that, the courts would be out of the picture - and so would the legislature. No branch of government has any legitimate business running or funding the schools.
@Mike L: Good post. It reinforces my belief that we need separation of school and state.
There comes a time when errant judges should be removed from the bench. The problem is the legislature. If they are not willing to uphold the constitution (whether federal or state), then they are simply handing over their power to the judges. Sometimes I think the best way to deal with these errant judges is to take Lincoln's approach. Ignore them. Oh, wait, that's what the present occupant is doing.

Unless a people is willing to abide by the ideals of the founding fathers, this people shall lose those rights preserved for them under our Constitution.
The “living constitution” doctrine has long been a tool of statists for making an end run around the Founding principles that center on individual rights. But there is more to it than that.

Mr. Malanga states that “In short, the Supreme Court seized power in education policy.”

No, it didn’t. I argue that the NJ State constitution’s “thorough and efficient” clause, enacted through the “democratic” process, empowered the court. All it took was a savvy former governor to recognize and exercise it.

That clause dates back to 1873. Hughes understood its meaning and discovered how to use it. Article VIII, section 4 empowers the courts, which must uphold the constitution. As I understand it, that clause gives the court the reigns over the legislature in one way or another.

In fact, in its educational rulings, the court actually did “interpret the law as written.” The state constitution reads: “The legislature shall provide for the maintenance and support of a thorough and efficient system of free public schools…” What if it doesn’t, according to the justices’ interpretation of that vague clause? The state is then in violation of constitutional law. The court is now faced with an impossible dilemma. It must either neglect its duty to uphold the constitution, or usurp the proper function of another branch of government.

The elephant in the room that few seem to want to confront is that the only solution to the court’s “massive redistribution of wealth” is to get rid of the constitutional mandate for state provision of the schools. It’s a daunting task, to be sure. But to find the philosophical unpinning for repeal, look no further than America’s Founding principles. The proper purpose of government is not to provide an education (or any material product or service, which by definition requires the redistribution of wealth). It is to protect individual rights, which includes the rights of parents to educate their children with their own resources as they see fit. Government-run schools violate everyone’s rights in two ways: They force people to pay for the education of other people’s children, and they put government in charge of what is taught, how it is taught, and who should pay for it.

The courts affordable housing mandates are also rooted in the violation of individual rights; the extraordinary powers of local zoning boards over private land use. For decades, town zoning boards routinely practiced “exclusionary” zoning, violating the rights of property owners, developers, and housing consumers to contract freely and voluntarily.

In 1970, Mount Laurel zoning ordinances forbade the African Methodist Episcopalian church from building a 36 unit apartment complex in the town. The state Supreme Court saw exclusionary zoning (which it was), and issued the decision that led to COAH. In doing so, it correctly identified the problem – local zoning regulations – but then proceeded to compound rather than solve the problem. The question that should have been asked and answered was: Why should any central planning authority have the power to stop the African Methodist Episcopalian congregation, or any property owner, from building what they please on their own land? The issue is not who should impose housing quotas, but the legitimacy of zoning powers as such.

If the court had used individual rights rather than the vague “general welfare of the Jersey population” as the standard, it could have arrived at the correct decision; to reign in the zoning boards, and restrict them to protecting everyone’s individual rights, including mediating legitimate disputes between developers and local residents, rather than dictate private property usage. Instead, the court granted override powers to the state to correct what it considered local zoning abuses. This simply shifted central planning abuses to the state level. Instead, it should have overturned those powers at the local level, thus liberating the housing market.

There are few problems that can’t be solved by returning to America’s Founding principles of individual rights and limited, rights-protecting government.
Hugo S. Cunningham February 14, 2012 at 1:21 PM

The best way to choose judges is a hybrid like California's:
The executive (governor) nominates judges, subject to confirmation by the (State) senate, but the public get a chance to vote judges out after 6-year (first time) or 12-year (subsquent time) intervals. This establishes accountability, but reduces the incentives for corruption: special-interests paying to defeat a judge have no guarantee who the governor and senate will replace him with.

The US Constitution should be amended to set 14-year terms for US Supreme Court justices. That would end an increasing temptation for ideological Presidents to bypass best-qualified older nominees in favor of younger ideologues expected to live for decades.
Hugo S. Cunningham wrote:

>In the cartoons, the robed character(s) presumably represent(s) the NJ Supreme Court, but what does the "O" in "ONJ" stand for?

Never mind. If I had read further, I would have found Renfield's answer ("Occupy NJ") which is almost certainly correct.
In the cartoons, the robed character(s) presumably represent(s) the NJ Supreme Court, but what does the "O" in "ONJ" stand for?
No wonder New Jersey has turned into the most repressive tax state in the country.
I saw this coming with Gov Whitman..Her magic act started the landslide. I always felt that the supreme court needs to be challenged on so many issues.I can foresee in th future some Govenor will throw his hands up, in the air and say "It's the State Supreme Court stupid".
Harris is a proppnent of same sex marriage and manifests the temperament of a judicial activist.Terrible mistake.
Excellent story. A book that addresses the same problem - judicial overreach - is Robert Bork's "Coercing Virtue." He shows this to be a national and global problem.
Now I know why the people of Israel demanded that God give them a king to replace the rule of the Judges. At least kings have to keep track of the money they are spending. Oh Lord, send us a David or even a Saul!
"Czar" begins with a "c", Fuehrer with an "f".

What does the "o" in the cartoons stand for?
@Larry: ONJ? Gotta be "Occupy New Jersey."

@Rich K: Good point. On one level, it's hard to sympathize with voters in the Soprano State. NJ year after year votes for the same people whose campaign promises guarantee tax hikes and a growing nanny state. Further, as the productive middle class flees, the state's population becomes ever more concentrated into certain categories: (1) ultra-rich Jon Corzine/Bruce Springsteen types, (2) wealthy professionals (surgeons, chemists), (3) academics and intellectuals, (4) members of public sector unions, and (5) the chronic poor.

Guess which party wins the votes of those groups.

A guy in Princeton saw his property taxes rise from $21,000 in 2010 to $40,000 in 2011. I wonder whether he has made any connection between his tax bill and the lever he pulls in November.
@OPUS: Funny, isn't it, how the states that do the best job of crushing their citizens' spirits are also the national leaders in "gun control?" Here's a secret: it's not peon-on-peon crime they're afraid of.
Maybe I'm missing something obvious… but why are all the judges and liberal bongo-players in the cartoon illustrations labeled with "ONJ"? What's the O for?
Here's the solution. The legislature should put everyone in the supreme court on minimum wage. Nothing unconstitutional there. If that doesn't pay them enough I'm sure there must be something for them in the private sector.
It seems Jerseyites enjoy living under such tyranny because year after year they select and elect the SAME/OLD/CLOWNS.If your dumb enought to live there you deserve to suffer economic distress.Dont like my attitude? Then vote with your feet.49 other states will gladly let you drop in and stay,for a smaller fee of course.
I'm the most conservative person around. RKBA, RTL, Tea Party, old-time Red-baiter--you name it.

I have this one avant-garde idea about public education. Even though I don't much like public education, and would like to see it done away with altogether, if the state requires it, and regulates it, it should be uniformly funded throughout the state.
Mr Malanga nailed it perfectly! His article says it all about the high tax problem in NJ and it should be required reading for the NJ Assembly and Senate.
"...We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government..."
In 2008, the FBI ranked Camden, NJ, the most dangerous city in America.

"Camden High School, with an enrollment of 1,200 students, has less than a 40 percent graduation rate, and the former district chief of security . . . has called it a 'mini-jail.' Yet the district spends $23,356 per student, more than twice the national average."

For more on what a 28 million annual taxpayer dollars doesn't buy:
i left new jersey ten years ago because of this environment...the only thing i miss is the rolling hills of northwest jersey where i lived for 30 years
Wow. This article sums up NJs politics pretty well.
Fred Bartlett - I disagree with your "too many local governments" argument.

I live in one of those small towns. We have an effective volunteer fire department, and excellent K-8 school (without significant state aid), and we pay the State Police to patrol.

When we try to share services with other towns we get nothing but interference from the state. Our planned multi-town police force was shot-down by the state. They don't want well-run small towns, they want Democrat run big towns.

Great summary of how court activists have done their utmost to legislate bad ideas from the bench.

Paul Mulshine at the NJ Star Ledger has spent years exposing the waste and stupidity caused by Abbott. Classic old schools torn down, not because they were decrepit, just to pay off connected contractors. Rich towns (Hoboken) lucky enough to get on an Abbott list building extravagant facilities (i.e. indoor Olympic pools)at state expense, while the rest of the state is starved for cash. Millions wasted on school administrators and middle managers while the class room instruction remained as bad as ever.

The only benefits: The false argument that funding drives school quality is dead. School teachers and their unions are no longer untouchable.
So NJ is a destination on the road to serfdom. I believe CA and IL are at the end of the road.
Many years ago Ohio was considering appointing its Supreme Court judges rather than elect them. I was young and idealistic. As a lawyer I argued to my mom how much better it would be for lawyers to pick our judges. My mom, who had never graduated from high school, was wise in many ways beyond my then ability to appreciate. She was adamant that the system of electing the judges remain. Thank goodness that view won out.

Now I practice routinely in federal court, where the judges are appointed for life. Rather than taking the politics out of the judiciary by appointing them, instead you have political agendas that are not accountable to the electorate. I have seen these political appointees ignore the law to further their personal political agendas and to award their personal friends and ideological allies monetarily.

So, if there would be any way to change the system so that these judges had to run for election, then a system of accountability to the citizens of New Jersey would be in place. The problem of course is that once you give the political class power it is very difficult to take it away.

Alena Hromádková,Prague February 07, 2012 at 6:40 AM
Very good explanation of the leftist ´long march through institutions´ or slow de-constitutionalisaton of some states. Thanks - but it´s not new phenomena for a veteran of the Cold war. How sad that the modern version of a Kulturkampf is weakening U.S.A. internally and is opening doors for explicit socialist policies and their further expansion.
Yeah, right. How long do you think it will be before glowing articles are written about Harris and Kwon and how much they've "grown" on the bench?
@DeLuxeJersey: If those things happened, then those particular wrongs should have been rectified. However, it was at least as wrong to use the unique situation in Mount Laurel as a blanket excuse to spend decades bludgeoning towns across the state into raising taxes to serve somebody's notion of "proper" racial or socioeconomic balance.

Hey, I can't afford to live in Beverly Hills. Should I sue?
I lived in New Jersey for 54 years and watched the slow-motion train wreck with my own eyes. My property taxes climbed steadily from $125 a month in 1974 to $1,250 a month in 1994. (So I moved to a smaller house nearby, whose monthly taxes were "only" $700.)

The article is truly depressing. It is no wonder that virtually everyone I grew up with has moved to Pennsylvania or points south, mostly Virginia and North Carolina. In fact, only the huge influx of Asians (and Central Americans) over the past three decades has kept New Jersey's population from sinking even lower. (NJ gave Lyndon Johnson and Jimmy Carter 17 electoral votes; it will give Barack Obama only 14 next November.)

Still, despite the dire warnings and the obvious evidence, nothing is going to change in the Garden State until there's no more public money to steal, as from Newark's $1 billion school budget. Although the SS New Jersey has a large hole in its hull and the lifeboats are filling up, NJ politicians will continue to party in their staterooms even as the water starts flowing under their doors.

PS. I moved south, too, three years ago. Beautiful new house, gated community, friendly people, property taxes of $650----YEARLY.
Pay or get out, ok i'm leavin' WEEEEEEEEEEEEEEE!!!!!
I see you conveniently did not discuss the actual REASONS behind the Mount Laurel decision. Mount Laurel wasn't some little haven for the rich that was infiltrated by the poor thanks to the activist courts. Mount Laurel began as a poor farming community with poor residents, and many were black. Many families had been there for centuries and were literally forced out because they were not wanted in the new suburban, non black paradise. Ethel Lawrence a black affordable housing advocate, who lived in Mount Laurel her entire life was terrorized. Long time residents also tried to force the long time black residents out of the town they had every right to live in. The GOD for the court decision. I am a tax paying citizen that currently lives in Mount Laurel, and NO I do not live in affordable housing. But if it weren't for the NAACP and the courts, I probably wouldn't be living there.

Thanks for a comment with an intersting perspective. Here is a quotaiton you might like

Of all tyrannies, a tyranny exercised for the good of its victims may be the most oppressive. It may be better to live under robber barons than under omnipotent moral busybodies. The robber baron’s cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end, for they do so with the approval of their consciences.

-- C.S. Lewis
Sure, the court's bad -- but we have plenty of other problems. Too many local governments, many (most? all?) of which are corrupt, and a legislature full of nitwits.

I well remember about 10 years ago, during one of our periodic hand-wringing spasms about unfunded pensions, reading the Trenton Times. One of our legislatrices responded to testimony from the state auditor thusly: "No one every told us we had to pay for it!"
The Court didn't just break the budget. It broke the back of the individual inititative needed to maintain local schools and institutions. Because of course, it knew better. Of course it's efforts were enlightened and only the willfully ignorant refused to acknowledge it.

Like the "Ugly American" abroad, insisting on "big" projects and centralized control, the Court had no interest in what the people wanted. "We'll tell you what's good for you."

50 years ago, people had pride in their schools, wherever they were. Literacy was better and drop out rates smaller. Teachers were just that, not cold-souled "educators" aiming for an administrative job. Parents showed up, talked and spoke up. Yes, even the annoying ones. Even the rich parents. Fund drives were not politicized, and were for the most part, widely supported.

The NJ court broke all that. The poorest man will keep his own car clean, but few treat a rental with the same care. And the parents were virtually ejected from their schools and made to feel like trespassers.

As in California, individual and local initiatives were discouraged and even effectively prohibited as funds were gathered and disbursed from a central location.

Where the funds are the control is, so the locusts were able to focus on one disbursing control group, not hundreds of school boards. Parents can't travel to the state capitol to monitor the money and decisions and were eased out.

Parents that had made it a goal to raise money either could not or were induced into believing they didn't need to.

In the name of "equality", and "fairness," students have all been made progressively less equal.

Rich and middle class students and their talkative, nosy parents--the ones that really were interested in schools--left in large numbers. They didn't want to be jerked by strings from some distant state control.

Remaining students were disadvantaged for that: in place of concerned parents, they had distant beauracrats, administrators and "educators," as opposed to teachers.

Most public schools are really outposts of a distant state-controlled group of administrators imposed on the local districts.

Then the unions came. With larger schools it was easier to threaten a crippling strike. With state control of the money, state unionized employees and and democrats in office, it was easier to unionize, just as GM is unionized and a small elegant restaraunt is not.

In California the Unions care so much about the "children," the Education Code prohibits the hiring of unpaid volunteers (read: "parents") to fill positions like library aides that were formerly filled by members of a bargaining unit.

In most states, an idiotic "education" credential is required to teach in a public school: so Bill Clinton could not teach "Politics in the 90's" and George H. W. Bush could not teach one on WWII.

Local control was a great thing. Courts in several states have destroyed it, and into the void, came people with no local interests at all. Hence our current mess.

Worst of all, increased spending on education does not improve education. Unfortunately, the single thing that could be done to improve the educational prospects of poor children would be to increase their family incomes.

I am poverty survivor myself. I had many difficulties in the educational system, although I eventually went to college nevertheless. Am I not entitled to an opinion about what would have been beneficial to me? And what would be beneficial to poor children today? I'll tell you my opinion, and it will not be popular halls of the teacher's unions. If you do nothing else, hire teachers who energetic, charismatic and likely to be popular with their students. In general, you do not get these people out of college and university education programs. Then make sure that you have basic extracurricular programs, particularly music and sports. Having enough athletic programs so that a large number of the kids can participate, especially the boys, would be a good thing too. These are things that are not too expensive to put in place or excessively administrator heavy.

Ask the survivors what they think is needed, not the do gooders. You'll get a different answer.
My God. Why would anybody choose to live in New Jersey if they didn't have to.

Fly. Be Free. There are other states nearby that will not only not punish you, but will welcome you.
While I agree that the NJ Court was out of line in ruling for massive wealth distributions and spending money the state do not have on the school system, it is not the court's fault that the education system is extremely corrupt and inefficient.

The Court gave the schools everything they needed to succeed, yet the educational system, run by the executive branch (the governor), is in complete shambles, and you think only the Court is to blame for NJ's ills? If the Governor's office can't get a ridiculously well funded program to run well, why would it be successful in anything else?

The problem with NJ is massive corruption from its politicians, including the courts, singling out the courts while ignoring 50 years of corruption from the Governor's Mansion to the Legislatures will hardly fix any problem.
Where to begin? The article only touches on the most egregious examples of the Court's rulings - there is PLENTY more.

Here in New Jersey, we residents live subject to the decrees of our Supreme Court, which rules in ways that bear similarity to Alice in Wonderland. For example, the Court's Abbott decision is not applicable to ALL poor districts, but only the 17 or so "Abbott Districts." Why do these particular school districts get the benefit of extreme state largess and no others? Because they were the ones that were in the original suit - LUCKY! Make sense? Of course not, even assuming that the Abbott decisions make any kind of sense, which they certainly do not.

Most important, as pointed out in the article, having adopted the simplistic formula that equates education with money, the self appointed rules of the kingdom of New Jersey have put the squeeze on, and the results haven't been pretty. I recall working with the New Jersey School Construction Corporation - the so-called experts in this agency simply forgot that part of the expense of building a school included land acquisition! Alice in Wonderland indeed - six billion spent and not much to show for it - in fact, land purchased by the SCC is still laying vacant waiting for schools that will never be built. The law of unintended consequences strikes again, as it has with everything the Court does.

Plus, the guiding principle of the Court has been to see everything from the Democratic left - the very liberal left, which believes gov't can solve any problem. Thus, and not mentioned is that the Court has never seen an environmental law that it didn't like and wouldn't uphold, no matter what the impact on property ownership. Thus the Court has upheld laws that have made it impossible to use land, but it also has made it functionally impossible to make a claim of regulatory takings - requiring not only that the laws and regulations leave the owner with no value whatsoever, but also that the owner go through the time and expense of having a development plan rejected, again and again. In the process, the Court has upheld laws that placed huge areas of the Republican part of New Jersey off limits to development, thus ensuring that the power stays in the Democratic urban areas.

The Court has adopted rulings that affect every area of life, from, as pointed out, zoning and education, but also reproductive health, going even further than Roe v, Wade. Every time the Court usurps another area given by the Constitution to the legislature, the people lose more liberty - there being no appeal from the real rulers of New Jersey.

As noted, this article barely scratches the surface of the pervasiveness of the Court and its rulings. The people of New Jersey have, of course, voted with their feet - even massive immigration didn't prevent the state from losing another Congressional seat after the last census. It is a trend likely to continue here in the Kingdom of the New Jersey Supreme Court.
It's a shame Governor Christie while stomping around the State and country spewing the marvels of his his slash and cut agenda didn't enlighten the public as to the real reason(s) for New Jersey's financial crisis as outlined in this very poignant article. Instead, being the virulent politician that he is, he attacked an easy target: Police Officers, Firefighters, Public School Teachers and Public Employees as being lazy, rich, fat cats draining public coffers because of evil public unions and contracts. His premise is laughable when you consider the average retired NJ Police Officer/Firefighter earns less than $40,000. a year, and only as a result of 25 years of contributing 8.5% of their salary into a very solvent PFRS pension system, to which the State of NJ has refused to pay their mandated portion for these past 17 years going back to Governor Christie Whitman. The truth is, if it weren't for membership contributions there wouldn't be any pension distributions. Yet, Governor Christie in his magical illusion act on the stump at town hall meetings, made the uninformed public believe the cops, firefighters and teachers where the villains. He's shameless, because being a former US Attorney for the State of NJ, he knows better. In as much as this article points out the lust for power by the NJ Court, the same lust for power drips from the lips of Governor Chris Christie. Here, jealousy is the motivating force for any power-struggle revision. In either case, the people of NJ suffer losing more and more power and freedom under the thumb of tyrants representing the three branches of government. NJ is broke because of a corrupt political system that has for half a century raped its citizenry with no light at the end of the tunnel. And to think that there are those that believe Governor Chris Christie would be a good president - Heaven help us. Governor Christie doesn't want justice, he wants to stack the deck with justices who are pawns that he can manipulate for his political gain. Throughout the nation, activists courts have flexed their judicial muscles when they believe the political wing has failed society. Fix the political problem and you will have fixed the judicial.
Until the citizens of the Garden State rectify this gross abuse of the judicial role in their state government they should consider themselves the playthings of self-aggrandizing judges. That is what they are today.
This article repeatedly implies that state income tax revenues are earmarked 100% for education. I seriously doubt that is the case.
And NJ is still wondering why its populace who can flee are doing so as quickly as possible...The tri-state area is a total fiscal disaster on wheels heading off the cliff at top speed. Look out below!
I know that my Russia is called a land of no law – and rightly so. Nevertheless, even being a very seasoned Russian, I was reading this article with a feeling of dread, as some weird report from Bedlam. I think that to have no law is better than to have the law which is mad and raving… It wouldn’t be so sad if this Bedlam had the size of your Garden State only, - but, to judge from the White House easily bypassing the Congress and Attorney General easily suing the states for their laws, the huge territory of your madhouse is quite comparable with my huge criminal territory. And, you know, somehow I feel myself safer with our gangsters, than with your judges (especially with the activist kind of them). Gangsters are more predictable, first, and they have a good understanding of elementary arithmetic, second. Rostislav, Saint-Petersburg, Russia.