Kelly v. United States is a conflux of fascinating law and facts.
The basic question the Supreme Court will decide is whether the masterminds of “Bridgegate” have 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 making 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 the first week of Fort Lee’s school year, because the mayor of Fort Lee refused to endorse Governor Christie for governor.
Two of the former employees were convicted of violating a number of federal fraud statutes; one was a cooperating witness.
The Third Circuit accepted the United States’ argument that these convictions should stand because the former employees deprived the Port Authority of tangible property. Specifically, the court concluded the time and wages of the former employees and the 14 Port Authority employees they “conscripted” in the scheme was sufficient to deprive the Port Authority of money or property.
In their certiorari petition the former employees argue that the Third Circuit read the fraud statutes too broadly. They claim it can’t be that “any official (federal, state, or local) who conceals or misrepresents her subjective motive for making an otherwise-lawful decision—including by purporting to act for public-policy reasons without admitting to her ulterior political goals, commonly known as political ‘spin’—has thereby defrauded the government of property (her own labor if nothing else).” If using government resources while misrepresenting a subjective motive is fraud they continue, “nearly limitless array of routine conduct” will be criminal.
The Third Circuit disputes the former employees’ characterization of their conduct as “official action” “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.
About the author: Lisa Soronen is the executive director of the State and Local Legal Center, which files Supreme Court amicus curiae briefs on behalf of the Big Seven national organizations, including the National League of Cities, representing state and local governments. She is a regular contributor to CitiesSpeak.