Guest Blogs

Thursday
Feb082007

ERPG’S SUIT - A FAILURE TO COMMUNICATE!

by Tom Sutliffe

To the citizens of Epping:

What we have here is pure and simple…. a failure to communicate. Epping Residents for Principled Government (ERGP) sued the Board of Selectmen and the School Board last year because it claimed both bodies illegally lobbied townspeople using taxpayer monies to influence the election without allowing opposing viewpoints. ERGP alleged that elementary school children were used to carry home political newsletters, a principal promoted a lobbying group in a public newsletter and boards spent town funds to produce a flier advocating certain positions. ERPG also claimed that town officials made statements improperly lobbying for positions in the 2003 and 2004 school and town annual report, paid for by taxpayers.

This was steadfastly denied by all Epping officials and even the school board, thus, necessitating a legal suit in the Courts of New Hampshire. The town and the school board think they are justified in spending more than $40,000 of the taxpayers’ money to defend their wrongdoing. Now wouldn’t you think that if a citizens’ group goes to court to ask if their rights are being violated, that the town and school officials would allow the courts to adjudicate un-contested whether or not they were breaking the law. They would have, had they felt they were following the law? But no, not Epping elected officials. They had to hire a plethora of attorneys to justify and defend their wrongdoing and to add insult to injury….. on your dime! How offensive and how convenient to use taxpayer money to defend themselves against suits for violating your taxpayer rights! In our Court suit, we cited several Federal cases as well as the New Hampshire Constitution that pointedly illustrated that we (ERPG) had a valid complaint. No frivolous suit here! Acting as a pro se litigant on behalf of our group, I tried to the best of my ability, to present a well-documented legal case against the town officials. The Court chose not to allow me to broaden my case, something which is highly unusual, and I guess, reserved only for pro se litigants in New Hampshire. The Court had already pre-determined what the outcome would be. The Court now had to legitimize its findings. Our group questioned the way that they arrived at its decision by asking the Supreme Court to review it. The Supreme Court chose, at its option, not to rule on the issue, thus neither upholding nor denying ERPG’s suit. Now, they had to find an excuse not to rule in on this issue. The following is an example taken from the Supreme Court’s decision:

“Because this appeal concerns important matters of public policy, which are likely to recur but continue to evade review, we exercise our discretion to consider this appeal.”

They further state in their decision:

“Although we find some of this material troubling, we decline the petitioner’s invitation to rule upon it.”

Now, what we have here is a failure to communicate. Do the above indicate to you that they ruled against ERPG, or does it appear they chose not to rule on the issues of the Petitioner’s (ERPG’S) appeal?

To further add insult to injury, the Supreme Court in their ruling stated:

“The only other issue for our review is whether the trial court erred when it removed a February 26, 2004 letter from Exhibit 1 and declined to enter it into evidence. We review a trial court’s ruling on the admissibility of evidence under an unsustainable exercise of discretion standard, and reverse only if the ruling is clearly untenable or unreasonable to the prejudice of a party’s case. Figlioli v R. J. Moreau Cos., 151 N.H. 618, 626 (2005). As the petitioner has failed to demonstrate that the trial court’s ruling prejudiced the petitioner’s case, we uphold the trial court’s decision to remove the February 26, 2004 letter from Exhibit 1.”

The above caption is the last paragraph of the Supreme Court’s Decision of October 3, 2006. Notice that the document, referenced above, dated February 26, 2004 from an attorney working with the New Hampshire School Board Association totally concurred with the ERPG suit. The document was submitted by ERPG at hearing, but it was stricken by order of Superior Court Judge Morrill after the hearing was completed, which is highly unusual. We filed a motion not to strike because the information contained in the document, if stricken would be highly prejudicial, because it supported ERPG’s complaint! Superior Court Judge Morrill struck this evidence anyhow after the hearing had ended. The Court never noticed ERPG of his decision to strike this evidence. Thus, ERPG never asked for a reconsideration of his order, having no knowledge it had been stricken. The first ERPG ever knew of the ruling was when it was asked to have its complete file sent up to the Supreme Court for the appeal process. Please note that every order issued by Judge Morrill was followed by reconsideration from ERPG, as it was quite clear Judge Morrill had his own agenda as this case’s outcome! Why strike the document…. because it contradicts Judge Morrill’s predetermined conclusion regarding the case’s outcome. Would this happen to a member of the “brotherhood”, or is this treatment specifically reserved for pro-se litigants in New Hampshire? Having no knowledge an order was entered, there would be NO request for reconsideration of such an order. Thus, after the allotted time, the issue becomes non appealable! Why... because no reconsideration was requested within the ten day allotted timeframe. The Supreme Court gang declined to act on this issue because it said ERPG failed to ask for a reconsideration of the Judge's order in a timely manner. The Supreme Court gang, referred to it as a procedural issue! Citizens looking for justice in New Hampshire.... are then required to go to Federal Court for a decision.

On another issue regarding the case, I thought you might like to see two different interpretations of the same Supreme Court decision placed on the websites of the New Hampshire School Board Association and the Epping SAU #14 websites respectively. The following reflects these two differing interpretations of the same decision, depending on your personal agenda:

1. NH Supreme Court Rules on Epping School Board Case

On October 6, 2006, the New Hampshire Supreme Court issued an order in Epping Residents for Principled Government, Inc. v. Epping School Board. The issue was whether the Epping School Board used "unwarranted advocacy" in support of certain ballot issues and warrant articles, in violation of the Constitutional rights of certain taxpayers who held opposing viewpoints.

The New Hampshire Supreme Court upheld the School Board's actions. However, the order was not a clear-cut victory for New Hampshire school boards, as the order raises more questions than it resolved and does not provide definitive guidance for the difference between appropriate and inappropriate advocacy.

The Court's decision was based largely on procedural grounds, as opposed to being decided on the merits of the law. The Court ruled that the taxpayers did not properly preserve certain of their arguments for the Court to review. The Court may have been looking for a better case upon which to make some significant rulings.

It appears that some statements by a School Board are clearly acceptable, such as "we urge you to support the budget because we need it to fund our program" and "we need a new high school and ask you for your support". These kinds of "advocacy" appear to be tolerable, especially if they appear in the School District Annual Report. However, some Epping School Board practices were, in the Court's words, "troubling."

Specifically, the Court had reservations about the Board's direct attacks upon opponents of the budget or new school and using students as "mules" or couriers to send "political" messages home.

Because the decision was unclear, the legality of some board practices is still unsettled, such as using public money for mass mailings advocating a particular position. There probably would not be anything wrong with a mass mailing that conveys information on important issues, provided that it is consistent with the acceptable language. Also, it appears to be unlikely that the Board would be required to give dissenting viewpoints equal space and time in the School District Annual Report, or pay for an opposing mass mailing. Until the law is further clarified, NHSBA urges school boards to proceed with caution when "advocating" for particular political ballot issues and warrant articles. NHSBA Policy KDCA recommends that school districts do not use student as couriers for information that advocates a particular position on bond issues, political matters, labor relations issues or District budgets. NHSBA also recommends that any mass mailings contain purely "neutral" information related to the issue at hand, as opposed to including potentially coercive statements from the school board.

The New Hampshire School Board Association

2. NH Supreme Court Affirms Decision Of Superior Court In Erpg Vs Epping School Board

On October 6, 2006 the NH Supreme Court issued an order regarding the appeal of the Epping Residents for Principled Government, Inc. versus the Epping School Board. The Supreme Court affirmed the trial court's determination. In summary the Superior Court:

1. Denied ERPG's request to declare the school district annual report as unwarranted advocacy and an incorrect expenditure of public funds in violation of the State and Federal Constitutions.

2. Denied ERPG's request to enjoin all officials as to the unwarranted advocacy in the future and to contain a statement in the next two annual reports about the constitutional prohibition against using public monies for the purpose of advocacy.

3. Ruled that the statements made by public officials were made on behalf of public purpose, not private statements.

4. Ruled that the district did not inappropriately or excessively use public funds for the annual report.

5. Ruled that the district did not violate ERPG's rights under the First and Fourteenth Amendments of the Federal Constitution or the Equal Protection under the State Constitution (to have access for presenting an opposing view).

The Epping Superintendent, Barbara Munsey

Pick an interpretation that suits your agenda. Epping Superintendent Barbara Munsey did. It appears that at this point a little more clarification is in order. The Superior Court, as well as, the Supreme Court both refused to do the right thing and uphold the citizens’ rights. These rights are the law! Now, the Town wants you to anti up another $10,000 for their legal defense team, above and beyond what has already been spent. Say buddy, can you spare a dime? We are hopeful, with the filing of a Federal Complaint, the questions left un-answered by the New Hampshire state courts, will be definitively resolved and that you will vote not to allow the Town to spend more of your money on their legal defense.

Thursday
Feb082007

THE REAGAN YARDSTICK

By Ed Mosca

Some conservatives contend that, among the Republican contenders for President, Mitt Romney is the most like Ronald Reagan because of Romney’s stands on abortion and gay marriage. For sure Reagan was opposed to abortion, and it’s safe to say that if Reagan were still with us today he would pronounce marriage the union of one man and one woman. And, unlike Romney, he wasn’t a flip-flopper on abortion. But if Reagan were running for President today, I don’t think that these issues would be the centerpieces of his campaign.

In Reagan’s first inaugural address he spoke these famous words: “In this present crisis, government is not the solution to our problem; government is the problem.” The “present crisis” that Reagan was referring to was the double-digit inflation and double-digit unemployment he had inherited from Jimmy Carter. Reagan was not proposing anarchy as he made clear later in the address: “Now, so there will be no misunderstanding, it's not my intention to do away with government. It is rather to make it work--work with us, not over us; to stand by our side, not ride on our back. Government can and must provide opportunity, not smother it; foster productivity, not stifle it.”

The problem with government in 1980 was that it had grown too big. Again quoting Reagan’s first inaugural: “It is no coincidence that our present troubles parallel and are proportionate to the intervention and intrusion in our lives that result from unnecessary and excessive growth of government.” We had allowed government to grow too big because we mistakenly believed that limited government and free markets had become antiquated: “From time to time we've been tempted to believe that society has become too complex to be managed by self-rule, that government by an elite group is superior to government for, by, and of the people.” Reagan rejected this view because he understood that America had achieved greatness “because here in this land we unleashed the energy and individual genius of man to a greater extent than has ever been done before.” And so he cut taxes and he slashed regulations. And by letting us keep more of our money and have more control over our lives, he made possible the greatest economic turnaround ever seen.

Romney clearly doesn’t share Reagan’s view about the role of government. His signature achievement as Governor of Massachusetts was a universal health care plan that compels everyone that government deems can afford it to purchase health insurance. Government forcing me to buy health insurance when I would rather invest the money in the stock market is exactly the type of heavy-handed government intrusion in our lives that was anathema to Reagan. Romney’s plan would also be anathema to Reagan because it is based on the misbegotten notion that government can solve any problem. Romney claims his plan is not “Hillarycare,” and would simply insure the uninsured. However, as the Cato Institute’s Mike Tanner has pointed out, “compulsory, government-defined insurance opens the door to even more widespread regulation of the health care industry and political interference in personal health care decisions. The result will be a slow but steady spiral downward toward a government run national health care system.” Romney, therefore, is no Reagan.

Someone else who is no Reagan is John McCain. His signature legislative achievement is the McCain-Feingold campaign finance law. This law involves government elites in Washington D.C. deciding who gets to run ads before elections and what these ads can say. This is precisely the sort of governmental arrogance and overreaching that Reagan abhorred. And, like Romney, McCain is a flip-flopper on conservative issues. In 2001, he opposed Bush’s tax cuts, perhaps the only Reagan-like thing Bush has done as President. Now he wants to make the tax cuts permanent.

Ironically, the candidate furthest to the left on abortion and gay marriage, Rudy Giuliani, is the candidate who most adheres to Reagan’s view of the role of government. As Mayor of New York City, he reformed a broken welfare system, opposed racial quotas, cut taxes and was an advocate for school choice. That’s a pretty Reagan-like record, if you ask me.

Of course, Reagan would part company with Giuliani over abortion and gay marriage. But under the federal constitution these are supposed to be state, not federal, issues. And Giuliani has said that he would nominate judges like Reagan appointee Antonin Scalia, who would return these issues to the states. So, for practical purposes, the difference between Giuliani and Reagan on the social issues may be less than meets the eye.

Monday
Feb052007

NO SHAME AND NO SENSE

By Edward C. Mosca

In an Op-Ed in the February 2nd Union Leader, ersatz Republican Mark Carter called for a grand compromise on education funding: a constitutional amendment that allows “targeted aid,” but that also “allows for legal action should the state ever abuse its obligation to our communities.” Now I’m just as opposed to obligation abuse as the next person, but think for a minute about what this lovely euphemism means. It means that whenever anyone doesn’t like the result produced by democracy, he can run into court and sue to get his way.

Ersatz Republican Carter claims that this “preserves the checks and balances power of the judicial branch.” What poppycock. The way that our system of government is supposed to work is that in matters of policy, and that includes education funding, we are supposed to attempt to persuade each other, and then decide the issue by voting. We are not supposed to sue each other.

Carter’s amendment would also write into the State Constitution the canard that the quality of public education is determined by the amount we spend on public education as it requires the State to provide financial assistance whenever a school district lacks the “fiscal capacity” to provide the “opportunity for an adequate education.” This myopic approach ignores that a variety of factors affect education performance besides spending. These include the competence of administrators, the quality of teachers, the talent and motivation of students and the involvement of parents. Because of these variables, the cost of an “adequate education” varies not just by school district, but by student. This means that in order to reliably calculate the cost of an “adequate education” the calculation must be done on a student-by-student basis and the calculation must account for the particular effect of non-financial variables on each student’s performance.

For this and other reasons, defining an “adequate education” and determining its cost is the proverbial fool’s errand. Yet Carter would make this fool’s errand a permanent part of the State Constitution. What Carter and his ilk apparently don’t understand is that the State does not have an education funding problem it has dysfunctional government.

We have thrown billions of additional dollars at our public schools since Claremont II was issued in 1997. According to the U.S. Census, on a per pupil basis we were the 17th biggest spending state in the country for 2003-2004. Yet there is no evidence that this spending has increased the quality of public education in New Hampshire, and we keep hearing that we need to spend more. Education funding is not a problem in the sense that the public schools are not getting enough money. They are getting more than enough by any objective standard. Education funding is a problem only in the sense that no amount of spending will ever satisfy some folks.

The real problem is that the members of the representative branches of State government have been running around like chickens with their heads cuts off for a decade --convening commissions, hiring consultants and holding hearings-- all because they have been told that the Supreme Court has said that it is their constitutional “duty” to do so. Have these folks no shame or sense?

Why in the world are we letting five lawyers in black robes drive the State’s education policy? They have no special training in setting education policy or budgets and far less regular exposure than elected officials to the conditions in the public schools. They must wait for the appropriate lawsuit to set education policy, whereas legislative bodies can change education policy as often as necessary. They are limited to listening only to the litigants’ hired-gun “expert witnesses,” whereas legislative bodies can listen to anyone who might be helpful. Most importantly, unlike elected officials, judges in New Hampshire are unaccountable to those affected by their decisions.

There will always be those, like ersatz Republican Carter, who maintain that the democratic process hasn’t produced an adequate education. But even assuming this is true, there is no reason to believe, as Carter and his ilk assert, that making education policy in the courtroom would improve things. As Churchill said, democracy is the worst form of government, except for all others that have been tried. Making education policy in the courtroom, which is all that Carter’s grand compromise would accomplish, is as likely to give us an adequate education as Soviet style central planning is likely to give us an adequate economy.

 

Friday
Feb022007

Its About Freedom

by Bill McNally

HB58 is really about Freedom.  Rep. Timothy Robertson introduced HB58 "requiring municipalities to establish volunteer civilian police review boards". Public hearings were held on 1/18/07 in LOB Room 301. Only ONE civilian, yours truly, was present to testify in opposition.  

I found a general lack of knowledge from police officers regarding 'police review boards'. During my testimony in Concord I suggested to the Committee that they take a look at "Behind The Big News" video tape I submitted.  "Mr. Chairman and members, let me provide two (2) sounds bites to encourage you to watch this video.

First incident on tape shows ABC News filming a GM pick-up truck exploding on impact and an un-named fireman at the scene contacts GM and told them ABC had placed incendiary device under the GM truck, punctured a hole in the gas tank and installed an undersized gas cap. ABC was forced to admit this 'criminal' reporting but only said "It was a bad idea from the start and that is our new policy". Hello? 

Second incident was the Rodney King 'beating' by the LAPD. This committee will see what happened  prior to what the general public and you saw on National Television - to wit - that Rodney King was hit by a stun Gun and tackled by four police officers and he threw them off and rose up off the ground and attacked the police - the rest is history.  The jury saw what the News Media failed to show and acquitted all police officers.

The committee was fortunate to have Rep. Mark (Captain, Salem Police) Pearson as a committee member having been recently elected. My sources tell me he gave a masterful testimony to his Committee in closed session in opposition to HB58 - the Bill was voted down by an 18-0 vote as "inexpedient to legislate" which effectively kills HB58.

Friday
Jan262007

It's A Civil Matter!

by Tom Suteliffe

I don't know if you have experienced this or not, but likely you will.  When you ask your local police to enforce a civil law of some sort, for trespass or such, and they advise you that "It's a civil matter, you''ll have to get a court order!" Does this ring a bell?  Have you heard this before?  It seems that this is the way to pass the buck of inaction.  It seems that this virus has infected the entire municiple police forces statewide.  Not only that, but the Sheriff's departments as well don't enforce civil law .  In fact you can't get any civil laws enforced in New Hampshire by anyone.  Why, because they only enforce criminal law!  

But wait, now you go to court and get an order..... but they still won't enforce the order..... why, because the order doesn't state specifially how they are to enforce the court's order!  I guess this is their way  of looking out for the public by keeping down your tax rate for their services.  Can you believe it?  Well, that's the way it is.  There are no laws on the books presently, that specifically state who is to enforce any of the civil laws!  Most citizens think that the police are there to enforce the laws, but they aren't.  They are there to enforce criminal law only.  Same goes for the Sheriff's Department. 

Now, is your chance to help change this.  The Criminal Justice & Public Safety Committe is conducting hearings to rectify this.  If you have had any of the aforementioned experiences with enforcement of civil law in New Hampshire, they want to hear from you.  HB 187 is an act establishing a study committee to determine which law enforcement agencies are responsible for enforcing civil judgements.  The hearing will be in Room #204 in the Legislators' Office Building in Concord January 30th, 2007 @ 1:00pm.  Your input will help to correct this untenable condition.  Remember, be civil!