Thursday, October 11, 2012


Election Alert for October 9, 2012
28 Days and Counting…..
 
 New Hampshire needs you – please be sure to vote on Tuesday, November 6.
 
 
 
Ballot Question 2

O’Brien’s Excellent Adventure to the Colonial Era – Taking Back the Courts!
 
In an attempt to erase decades of statutory and judicial work on separation and balance of powers, the whiz-kids of the current legislature muscled through a constitutional amendment that will appear as Question 2 on your ballot as follows:
 
2. “Are you in favor of amending article 73-a of the second part of the constitution to read as follows: [Art.] 73-a [Supreme Court, Administration.] The chief justice of the supreme court shall be the administrative head of all the courts. The chief justice shall, with the concurrence of a majority of the supreme court justices, make rules governing the administration of all courts in the state and the practice and procedure to be followed in all such courts. The rules so promulgated shall have the force and effect of law. The legislature shall have a concurrent power to regulate the same matters by statute. In the event of a conflict between a statute and a court rule, the statute, if not otherwise contrary to this constitution, shall prevail over the rule.” (Passed by the N.H. House 242 Yes 96 No; Passed by State Senate 19 Yes 5 No) CACR 26             Yes                  No
 
Be Afraid, Be Very Afraid!
The O’Brien legislature has taken a number of actions with very dangerous consequences for our citizenry. Underfunding our court system has caused delays in our citizens’ ability to obtain justice. They have also created a competing mechanism, the Committee of Redress, that reviews court decisions filed by petitioners (without the bother of such little things as court procedures, equal protection for all parties, or even hearing the other side of a case). To date, the Committee of Redress has recommended the impeachment of four justices on virtually the sole testimony of a petitioner who claims to have been wronged (or otherwise simply didn’t like the verdict). The concept of due process seems hopelessly lost on this crowd.
 
Ballot Question 2 will give over to the legislature complete and final authority over our judicial system, turning it into little more than another political body. Although, as you can see from the question above, the ability to write rules will still reside with the judicial branch, the legislature will be able to concurrently change statutes relative to these rules and the latter will “shall prevail.”  Does anyone really doubt that a legislature wedded to the extreme ideology of the current one will fail to turn our courts into an extension of themselves?!
 
Scholars who argue for a well-functioning judiciary, one that functions objectively and in the pursuit of the rule of law, without undue influence of the political climate, cite the critical need for a clear separation of powers. G. Alan Tarr, professor at Rutgers University and a scholar in constitutional law, state constitutions and the courts and judicial process, puts forth four principals that should form the foundation of any reform of our judicial system. These include: judicial independence from political institutions, interest groups and the general public; judicial autonomy with the power to govern and manage its own affairs; effective delivery of judicial services with access for all citizens and expeditious administration of justice; and, accountable to the rule of law and to the people and their representatives (we already have a process in place when a justice violates his/her position in any way and that is the impeachment procedures). For more information on this topic, see G. Alan Tarr, The State Judicial Article, http://camlaw.rutgers.edu/statecon/judicial.pdf
 
Ballot Question 2 violates every one of these principles. The first two are self-evident. Violation of the remainder stems from the fact that by underfunding and interfering with the judicial process hobbles our court system’s ability to effectively deliver its services and makes it difficult to appropriately hold it accountable.
 
Nothing New Under the Sun
 For those who may have imagined that with the writing of the US Constitution, and subsequent state constitutions, the establishment of three branches of government was a settled matter, a reading of history on this topic immediately disabuses one of that notion. As it turns out, there has been a protracted battle between the legislative and judicial branches of government for decades and longer following independence.
 
New Hampshire’s own history in this regard is instructive of the desire of past legislatures to exert significant control over the judiciary. Our legislature once had a participatory role in dispensing of justice through an archaic device called the Committee of Redress (yes, similar to the one mentioned above!). This legislative body heard complaints by our citizens and ruled on those. It didn’t take long, however, for our forebears to recognize that there was a bit of a conflict of interest in having those who wrote the laws also interpret the laws and dispense with justice – not to mention write the laws to settle cases. It was a rather circuitous way of administering justice fraught with a host of problems for both public policy and justice. (Consider just one example of someone who has a complaint against the state, one that might result of in an injured party being awarded a judgment against the state. And, all of this being heard by the a unit of the same body that formulates a budget for the state.)
 
Even after the establishment of a separate judicial system, however, past New Hampshire legislatures grappled with the concept of a judiciary over which they had little control. Consequently, at least twice over the course of our history, “New Hampshire legislated out of office all justices of its supreme court by repealing the statute the created the tribunal and establishing another court in its place.” (G. Alan Tarr, “Contesting the Judicial Power in the Statest,” http://www.harvard-jlpp.com/wp-content/uploads/2012/03/TarrFinal.pdf
 
For those interested in an in-depth discussion of the tensions between legislatures and the judiciary, Tarr’s 19 page article on the topic provides a great overview of the topic.
 
Just Say No!
 If you want to defeat Question 2, you must cast a “No” vote. Passage requires two-thirds approval by those who vote on the Question. Please help to spread the word of the dangers of this constitutional amendment. Encourage your friends, family and neighbors to make plans now to vote and also to vote “no” on this question.
 
 
Update on Ballot Question 1:
Hold onto Your Seats – Here Comes the Money
 
As you may recall, the previous Election Alert covered Question 1, a constitutional amendment banning an income tax for “natural” persons and concerns analysts have expressed over the potential passage of this amendment. I warned about a last minute push for passage of Question 1. Sadly, almost immediately after the send button was hit on the Election Alert, the news broke that a new PAC has been set up to do precisely that.
 
The “No Income Tax” PAC is headed up by former gubernatorial candidate and former Executive of Cornerstone Policy Group, Kevin Smith. The PAC is chaired by three former Governors, Steve Merrill, John E. Sununu and Craig Benson.   The PAC can take unlimited amounts of contributions from individuals and organizations. You can count on this being a very well financed effort to get voters to approve the passage of this very dangerous constitutional amendment.
 
For some additional updated information on Question 1, visit the podcast of Attitude with Arnie, October 5, 2012, Hour 1 starting about 31 minutes in to hear the interview with Jeff McLynch of the NH Fiscal Policy Institute: http://www.nhnewsviewsblues.org/podcasts/Attitude_with_Arnie_Podcasts.xml Jeff responds to a number of questions about this ballot initiative that you may find of interest.
 
NOTE: Remember that it takes two-thirds of those who vote on the question for it to pass. If you want to defeat Question 1, you must vote “no” on it. Moreover, with the influx of influence and money to push for passage, it is now more important than ever that you spread the word about the pitfalls of this constitutional amendment and get your friends, family, neighbors and co-workers to the polls to vote on November 6.
 
 
Voting Tip of the Day:
Unregistered voters may register to vote on General Election Day and will be allowed to vote in that election. If you wish to register before the General Election you can do so up until October 27. That is the last day to register until the General Election.  
As mentioned in the last Election Alert, you will be asked to present a valid photo ID (see http://sos.nh.gov/ for list of acceptable forms of ID). NOTE: If you do not have a valid photo ID you will be permitted to vote after executing a “challenged voter affidavit.” 

Opinion Piece of the Day:

OP-ED COLUMNIST
Buying the Election?
Fred R. Conrad/The New York Times
By JOE NOCERA
Published: October 09, 2012

….Not all that long ago, the ability to partake of public financing was a sign that you had arrived as a serious candidate; today no candidate in his right mind would want to be so constrained….This election season, Mitt Romney and President Obama could end up spending more than $1 billion each. They seem to spend more time fund-raising than pressing the flesh with voters.

And that doesn't even account for what's truly different about this election: the rise of the "super PACs" and 501(c)4s, which are essentially a form of campaign money-laundering, allowing wealthy people to contribute millions toward supposedly "independent" spending on campaign advertising, polling and other expensive campaign goodies…

Although individual contributions to a particular candidate remains severely restricted - no more than $5,000 - the amount someone can pour into a super PAC is limitless. The means by which the country finances its campaigns is utterly broken. In a recent cover story in The Atlantic, James Bennet, the editor, traces how that happened. He focuses on a man named Jim Bopp Jr., a lawyer from Terre Haute, Ind., who has largely devoted his life to freeing the nation of campaign spending limits…What is astonishing is the way Bopp makes unlimited spending seem actually democratic. "Most people don't even know who their congressman is," Bopp tells Bennet. If there were more spending on campaigns, voters would be more educated about the candidates. The Supreme Court majority, meanwhile, has essentially said that, by definition, campaign spending that is independent of the candidate cannot be corrupting.

What we also know in the real world is that unlimited spending will not serve to enlighten voters. It will deaden them to political argument - as is happening in just about every swing state, where the ads are running with such frequency that people are tuning them out. Finally, we know from hard experience that the money that comes into politics has the potential to corrupt.

"This can't be good for Democracy," Bennet told me in an e-mail. It's not.

For full article see: http://mobile.nytimes.com/2012/10/09/opinion/nocera-buying-the-election.xml

Stay tuned for the next Election Alert that will discuss Question 3 on your ballot – pros and cons of a constitutional convention.
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