By Lisa Soronen
Kelly v. United States is a conflux of fascinating law and facts.
The basic question the U.S. Supreme Court will decide is whether the masterminds of “Bridgegate” committed fraud in violation of federal law. The more technical question is whether a public official “defrauds” the government of its property by advancing a “public policy reason” for an official decision that is not the subjective “real reason” for the decision.
Former New Jersey Governor Chris Christie’s deputy executive director of the Port Authority of New York and New Jersey, the Port Authority’s director of interstate capital projects, and Christie’s deputy chief of staff for intergovernmental affairs orchestrated “Bridgegate.” Under the guise of conducting a traffic study, they conspired to reduce traffic lanes from the George Washington Bridge (the busiest bridge in the world) to Fort Lee, N.J., during the first week of Fort Lee’s school year, because the mayor of Fort Lee refused to endorse Christie for reelection as governor.
Two of the former employees were convicted of violating a number of federal fraud statutes; one was a cooperating witness.
The 3rd U.S. Circuit Court of Appeals the United States’ argument that these convictions should stand because the former employees deprived the Port Authority of tangible property. This tangible property was the lanes of traffic and the time and wages of both the former employees and the 14 Port Authority employees they “conscripted” in the scheme.
In their certiorari petition the former employees argue that the 3rd Circuit read the fraud statutes too broadly and that concealing political motives for an otherwise legal act cannot be the standard. They claim this broad interpretation would “allow any federal, state, or local official to be indicted based on nothing more than the (ubiquitous) allegation that she lied in claiming to act in the public interest.” If using government resources while misrepresenting a subjective motive is fraud, they continue, a “nearly limitless array of routine conduct” will be criminal.
The 3rd Circuit disputes the former employees’ characterization of their conduct as “official action” that was “merely influenced by political considerations.”
“Trial testimony established that everything about the way this ‘study’ was executed contravened established Port Authority protocol and procedures. Indeed, witnesses testified that traffic studies are usually conducted by computer modeling, without the need to realign traffic patterns or disrupt actual traffic. When traffic disruptions are anticipated, the Port Authority gives advance public notice.”
It seems possible the Supreme Court will separate the facts of this case from an example contained in the former employees’ certiorari petition: A municipal official who orders speedy pothole repair for neighborhoods that support the incumbent but doesn’t admit this motivated his or her decision.
Lisa Soronen is executive director of the State and Local Legal Center and a regular contributor to the NCSL Blog on judicial issues.