Carolyn McKinney - Restore the people’s oversight over their court system

By Carolyn McKinney, chairman of the Republican Liberty Caucus of New Hampshire
 
As voters, it’s troubling to watch a Legislature act against the people’s best interest in times of economic distress by raising tax after tax or fee after fee to pay for unrealistic increases to public employees’ salaries or benefits, or to grant special-interest requests without regard to their need or effectiveness. Such was the case during the 2007-2010 period when Democrats controlled the N.H. Legislature and governor’s office.

Yet, in our system of government, the people have control over how the government spends their money, and voters overwhelmingly rejected the Democrat’s spend-then-tax agenda when they elected a Republican Legislature in 2010. Republican representatives and senators, answering the people’s call to create the proper conditions for economic growth, promptly cleaned up as much of the mess as they could within a two-year period by cutting spending, lowering taxes and fees, and saying “no” to those special interests.

Unfortunately, since 1978 when the Legislature and the people were duped into passing Article 73-a to the N.H. Constitution, the people have not had similar oversight over their court system, which now has the autonomy to write its own rules that have “the force and effect of law.” Many people perceive this constitutional language to be minor—affecting only how the courts run their courtrooms—but they are wrong.

The courts have used the 1978 change to control the behavior of the Legislature, the Executive, and innocent, law-abiding citizens, both inside and outside the courtroom. Because of Article 73-a, the courts have assumed a role that the “separation of powers” clause previously reserved for the elected Legislature. As a result, and because of complacent legislative and executive officials, the court has become an unaccountable and arbitrary power unto itself, which is the exact type of government that our constitution was supposed to prevent.

Article 73-a is the language that gave the Supreme Court hubris to think it could legislate from the bench, such as it did with the Claremont decisions in the 1990s when it said that the constitution’s imperative that individual “legislators… cherish … public education” means that the Legislature must define and fund an adequate education.

Under 73-a, the family court has used its rules, including a particular rule that allows all court rules to be waived, in cases where it has ordered children removed from fit parents on mere accusations from third parties. By waiving rules, these courts have admitted hearsay evidence and used it to make a decision without a finding of abuse or neglect or any due process of law.

District court judges have used court rules to throw citizens in jail for contempt on minor decorum issues, and they have used their office to send journalists to jail for simply asking questions about their decisions. Just last year, a Superior Court judge used court rules to prevent two innocent citizens who were not accused of any crime from engaging in a legal activity. He also ordered the citizens to post his ruling on their Web site. Had they disobeyed, the judge threatened to imprison them on charges of contempt of court.

Thankfully, the Republican Legislature that the people elected to correct the wrongs of the previous Democratic Legislature also passed a constitutional fix that will give the people oversight over their court system again. Upon passage of Question Two on the Nov. 6 ballot, the people will restore some checks and balances to their judicial branch.

The change to Article 73-a will make sure that the laws passed by the Legislature are superior to court rules, as they should be. The amendment will put the court back in its place as an interpreter of law for individual cases and not as the policy maker that explains how the law must be applied in all situations—that is a power reserved for the people’s Legislature alone.

When the powers of government are balanced and held in check by one another, there is a greater chance that no branch of government will grow too strong or powerful, and that the people will remain free.

Article 73-a made the courts untouchable, and the people lost control of their government as a result. Question Two on the Nov. 6 ballot will restore the balance of powers by making the court accountable to the laws passed by the Legislature. The people, who elect their legislators, will once more have necessary oversight over all three branches of their government.

Carolyn McKinney - The Legislature is giving the People a rare chance to restrain it

By Carolyn McKinney, chairman of the Republican Liberty Caucus of New Hampshire.

It is a rare day indeed when a Legislature even considers a law that will limit the power of government, but the current Republican Legislature is promising to go much further. With two constitutional amendments up for a vote this week in both chambers, the Legislature will be considering whether to permanently limit its own power by changing the supreme law of the land.

If CACR 6 passes the Legislature and then in the ballot box, the House and Senate will each need a 3/5th vote to pass any new or increased tax or license fee or to issue new state bonds. The amendment adds a section making it clear that existing bonds and debt service must be paid, a responsible addition that ensures the state's bond rating will remain among the nation's highest.

If CACR 13 passes, an income tax will never again haunt the political debate, as any new tax on personal income earned by a natural person would be strictly prohibited by the constitution.

As Gov. Meldrim Thomson said, "Low taxes are the result of low spending." This wasn't just a slogan, however; it was literally a rule in political science, and the opposite applies just as well. By limiting the ability to tax in the state Constitution, the People of New Hampshire will be forcing future politicians to heed Gov. Thomson's words. If taxes are limited by law, lawmakers will be forced to get more creative in how they manage the business of the state in order to keep spending low. 

Of course, Democrats and some big-government Republicans are upset about the prospect of “limiting the state's options for raising revenue” going forward. The only honest response is that limiting state government is the very point of these amendments.

A limited government is one that respects the People's liberty to manage their own lives and property, pursue the career of their dreams and raise their children as they see fit. Within the last 100 years, government has been encroaching in these areas of people's lives in the name of “public safety” and “fairness,” and in the meantime, government spending has increased exponentially to pay for the burden of ever-increasing bureaucracy. 

For instance, there's no doubt that government must set a necessary foundation on which individuals and businesses operate and prosper. Unfortunately, government has moved far beyond setting a foundation and it is instead regulating every possible activity to either prevent bad things from happening or favor entrenched industrial interests by law, thus cornering the market. These regulations are costly, both in the manner in which they must be enforced as well as to the people who are forced to comply with them even when it doesn't make rational sense.

Additionally, there's no doubt people should have equal access to pursue opportunities in a free society, and government should make sure the law creates an equal playing field that does not favor any one person or group of people over another. However, government has grown so large that its bureaucracies are dedicated to helping one person or group of people over another and attempting to guarantee equal results. Not only do all of these bureaucracies cost money, but they also often perpetuate injustice through preferential treatment and do more harm than good by creating a growing segment of our society dependent on their other peoples’ money, collected by the force of government.

As the Republican Legislature proved this biennium, the state had $1 billion of bloated spending built into its budget that it no longer needed or shouldn't have been spending in the first place. The Legislature actually did its job and asked the questions: “What is the role of government? What does it mean to have an affordable government?”

With the passage of CACR 6 and CACR 13, the Legislature will be helping to guarantee future generations a limited, affordable government that does only what is essential to keep order and leaves the rest to a free people, just as our founders intended. By passing these two amendments, the People will be agreeing with the Legislature that its budget cuts this session were just the start of a new era in New Hampshire of responsible governing. The People will be ensuring stability in budgeting and taxation, and consequently, a more stable economic environment for job growth, entrepreneurship and prosperity.