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Saturday, May 8, 2010

Clueless Lawyer Warning: Union Lawyer Carla Katz, Esq.


The Sunday Star-Ledger reports that New Jersey Governor Chris Christie is ready to propose another, stricter round of reforms on public workers.
Love him or loathe him, Christie has successfully framed the debate. "People in New Jersey now feel as if there have become two classes of people in New Jersey: Public employees who receive rich benefits, and those who pay for them," Christie said in a recent speech to mayors.
The response from union advocates has been predictable.   After all, they represent their constituency well.   However, one prominent union leader, a recent law graduate named Carla Katz, came up with an absolutely clueless retort that is an embarassment, even among the members of the New Jersey Bar.   (Yes, that same Ms. Katz who was on the arm of former Governor Jon Corzine; the same Ms. Katz who negotiated a union contract with the Governor while dating him.   Don't blame Carla, she did her job very well.)
Here is Carla Katz's brain-dead, over-the-top quote:
 "It looks like an illegal attack on the constitutional rights of public employees disguised as reform." 
Earth to Carla -- there is no "right" to work for the government, and it surely isn't a constitutional right.  Even in New Jersey. If I were the dean of Seton Hall Law School --  which I'm sure is a fine institution and certainly the third-best law school in the state -- I would order Ms. Katz to retake first-semester Constitutional Law.   

There's a second problem (which also applies to the argument that health care is a right):  If Carla is correct in asserting a constitutional right to have a public payroll job, then others (i.e., that's you and me, we the taxpayer-suckers) have an offsetting constitutional obligation to pick up the tab.

That is utter nonsense.  To argue that some have the right to enjoy the fruits of the labor of others who are obliged to provide such labor, is to argue for feudalism. 
If there were doubts about how Ms. Katz rose to her present "stature," Ms. Katz is quickly dispelling them.   She has obviously ignored the saying, "Better to be silent and thought a fool, than to speak and erase all doubt." (Paraphrased somewhat.) 
In addition, as an advocate, that remark is a disaster.  The overt recalcitrance of union leaders in the face of a major budget deficit -- under anyone's math -- is an insult to the average New Jersey taxpayer who works in the private sector with no benefits other than those he pays for, with little or no job security and while getting hammered with taxes, regulations and restrictions on all sides.   While the current Governor's rhetoric has at times been offensive and strategically erroneous, the union rhetoric has often surpassed the Governor's.  The Bergen County teachers' union representative's infamous "prayer" joke -- which should have gotten the speaker fired for outright stupidity -- is but one example.  
Eric Dixon is an attorney and member of the Bar of New York and New Jersey.  He specializes in strategic analysis, legislative analysis and legal analysis, and has extensive experience in the federal securities laws, corporate governance laws, and ballot access election law.  

1 comment:

  1. Might we consider the seldom used but not quite moribund Contracts clause? My understanding of the matter, which is by no means complete, is that as part of the overall reform the governor has at least opened the door to the prospect of unilateral recission (or breach, depending on your perspective). As such, this being potential governmental action concerning governmental contracts, a heightened scrutiny would be, it seems, called for. The following from wikepedia is by no means to be considered exhaustive, merely a start of an analysis which would seemingly lay the groundwork for the possibility of challenge in the event of unilateral recission/breach. United States Trust Co. v. New Jersey (below)is of particular note. As such, one might consider Ms. Katz's statement fairly to be less than "clueless."

    In addition,Seton Hall Law is the highest ranked law school in the state.

    No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

    During the New Deal Era, the Supreme Court began to depart from the Lochner era constitutional interpretation of the Commerce Clause, Due Process, and the Contract Clause.

    In Home Building & Loan Association v. Blaisdell 290 U.S. 398 (1934), the Supreme Court upheld a Minnesota law that temporarily restricted the ability of mortgage holders to foreclose. The law was enacted to prevent mass foreclosures during a time of economic hardship in America. The kind of contract modification performed by the law in question was arguably similar to the kind that the Framers intended to prohibit. The Supreme Court held that this law was a valid exercise of the state's Police Power. It found that the temporary nature of the contract modification and the emergency of the situation justified the law..[18]

    Further cases have refined this holding, differentiating between governmental interference with private contracts and interference with contracts entered into by the government. Succinctly, there is more scrutiny when the government modifies a contract to alter its own obligations. (See United States Trust Co. v. New Jersey, 431 U.S. 1 (1977).)[18]
    [edit] Modification of Private Contracts

    The Supreme Court laid out a three-part test for whether a law violates the Contract Clause in Energy Reserves Group v. Kansas Power & Light 459 U.S. 400 (1983). First, the state regulation must substantially impair a contractual relationship. Second, the State "must have a significant and legitimate purpose behind the regulation, such as the remedying of a broad and general social or economic problem." 459 U.S. at 411-13 Third, the law must be reasonable and appropriate for its intended purpose. This test is similar to rational basis review.[18]
    [edit] Modification of Government Contracts

    In United States Trust Co. v. New Jersey, the Supreme Court held that a higher level of scrutiny was needed for situations where laws modified the government's own contractual obligations. In this case, New Jersey had issued bonds to finance the World Trade Center and had contractually promised the bondholders that the collateral would not be used to finance money losing rail operations. Later, New Jersey attempted to modify law to allow financing of railway operations, and the bondholders successfully sued to prevent this from happening.[19

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