Disecting Democrat Defense of Brunelle

For those who haven't been following the story Rep. Michael Brunelle has been charged with violating Part II Section 7 of the NH Constitution which reads as follows:

[Art.] 7. [Members of Legislature Not to Take Fees or Act as Counsel.] No member of the general court shall take fees, be of counsel, or act as advocate, in any cause before either branch of the legislature; and upon due proof thereof, such member shall forfeit his seat in the legislature.

Seems fairly straight forward and even dictates what the punishment is if found to be in violation, "forfeit of his seat in the legislature".

The charge is that because he was paid as Executive Director of the New Hampshire Democratic Party and the money came from several special interest groups that did in fact have causes before the legislature that he violated the above clause.

A hearing has been schedule where the evidence will be presented to see if it meets the "due proof" portion of the clause.

Democrats argue otherwise.  Below is a letter by Rep. Terie Norelli offering their defense.

Honorable William O'Brien
Speaker, New Hampshire House of Representatives
312 State House
Concord, New Hampshire 03301

Dear Mr. Speaker,

I am writing as the Democratic Leader of the New Hampshire House of Representatives regarding the motion approved on Wednesday, January 6, 2011 to refer a question of the qualifications of Representative Michael Brunelle to the Subcommittee on Elections. A hearing on this matter has been scheduled for Thursday, January 13, 2011.

This surprise effort to remove Representative Brunelle and the scheduling of a hearing on one week's notice threatens the comity, integrity and reputation of this honorable institution, violates the due process to which any citizen of New Hampshire is entitled, and jeopardizes the very character of our citizen legislature. It exceeds the authority given to the legislature by the New Hampshire Constitution. This effort makes every legislator the potential target of a subjective determination as to whether his or her employment is acceptable to the majority leadership. This was not the intent of our founders. It is a distraction from the people's work, such as the budget, jobs, and the economy. It will result in an unnecessary, expensive, protracted legal battle.

For starters part of Terie's argument is that this hearing is scheduled within once weeks notice.  However in Amendment VI of the US Constitution it states "the accused shall enjoy the right to a speedy and public trial".  This would be a speedy public trial.

The second claim here is that it would make "every legislator" a "potential target".  Not true.  Reading Article 7 it states only those taking fees for any cause brought before the council.  I do not believe a person working as a plumber would be in direct violation if a bill about water pipes were brought forward because his pay is not a direct fee from groups advocating the change in water pipe laws.

However if you were to sit in on a bill about abortions and your pay came in part from anti or pro abortion groups then you would be in violation.

The question of where his pay originated is part of why a hearing is held in the first place.

As discussed below, the motion made by Representative Greazzo and the referral to the House Subcommittee on Elections is based on at least one, and perhaps several, basic mistakes in his understanding of the applicable Constitutional provisions. A full and fair process would provide Representative Brunelle with ample time to prepare a legal brief, assemble witnesses, and prepare for the hearing. Instead, the Subcommittee is adopting procedures on Tuesday, January 11th, with a hearing on January 13th. This is not justice; this is not the New Hampshire way. This rush to judgment without any pretext of due process is a disservice to the people of our State. It is a particular disservice to the people of Representative Brunelle's district. Those citizens will be deprived of the representation of their duly elected representative at a critical time during this legislative session. Issues directly impacting their interests will be voted on, including issues of taxation, yet they will be deprived of one of their constitutionally elected legislators.

Requesting an extension for the defense to prepare is not unreasonable however it is not proof of any violation of the Constitution.  Also it is my understand that this request has been granted.  But let us continue.

I request that the hearing scheduled for January 13 be postponed so as to provide a reasonable and adequate time for Representative Brunelle to prepare for the hearing, In addition, to insure a fair, proper and transparent process, the following information should be provided to both Representative Brunelle and me by the close of business on Monday, January 10th:

A transcript of the motion and discussion surrounding the motion; due process mandates that Representative Brunelle be provided a written copy of all allegations.

An explanation of the jurisdiction of the Subcommittee on Elections. Although no one, including Representative Brunelle, was given the courtesy of a copy of the motion in advance of the vote, it is our understanding that the basis of this action is Part II, Article 7 of the New Hampshire Constitution. This provision of the Constitution does not pertain to the qualifications of state legislators. The qualifications of state legislators are governed by Part II, Article 14, regarding term of New Hampshire residence and residence within the district represented. No challenges have been made to Representative Brunelle's constitutional qualifications.

This is where Terie starts to go wrong.  No one is challenging Mr Brunelle's qualifications.  They are stating that he violated Part II Article 7 which does in fact deal with legislators and where they are accepting fees while in office.  The very title of the article starts with the words "Members of the Legislature".

An explanation of the constitutional basis for the assertion of any jurisdiction by the Subcommittee, or the House of Representatives as a body, over this matter. Part 2, Article 22 of the Constitution provides only that the House shall be the judge of "the returns, elections, and qualifications, of its members." Part II, Article 7, the section relied upon by Representative Greazzo, contains no reference whatsoever to returns, elections or qualifications, and vests no authority in the House alone to determine whether a member has violated the provisions of the article.

Terie continue to twist this to be a matter of qualifications which it is not.

A written explanation of the standards and definitions to be used by the Subcommittee in determining the terms "fees", "be of counsel", "act as advocate", and "due proof". Also, please provide the constitutional basis for the determination that employment outside the legislature constitutes acting as "counsel" or "advocate."

Asking for definitions of terms is not unreasonable but again so far no proof of a constitution violation has been argued.

A list of witnesses who will be appearing before the Subcommittee, and the purpose for which they will be testifying.

The rules of procedure for the hearing, and any subsequent debate before the full House of Representatives.

Again, these too are not unreasonable requests however they are not proof as the letter started.

If it is your intent to judge the qualifications of legislators by their place of employment or sources of income (despite the lack of any constitutional basis to do so), please provide a list of all other representatives whom you intend to investigate. I note, for example, that Representative Greazzo receives compensation as an alderman in the City of Manchester, is a paying position. There are bills pending that arguably benefit the City of Manchester. He himself is sponsoring a bill relative to local spending caps, and another bill relative to municipal liability for dog bites. There are other current members of the legislature with employment or business interests that will be affected by legislation. The lawyer members of the legislature, such as you, surely have clients affected by the laws we shall be considering. Singling out one person, based on his employment by a political party and ignoring the economic interests of those members directly impacted by legislation, is wrong.

The argument here is "others do it too".  Sorry but that doesn't work even if these were valid comparisons.  If you were pulled over for speeding saying that three other cars on the road were also speeding with you does not show you as innocent, it only shows that others haven't been caught.  Not to mention that one persons word does not equal proof either which is why cops use radar guns to prove you were speeding.

If Terie has proof of other legislators violating the same article being used against Mr Brunelle then she should present them and ask for hearings against each of the accused if there is enough proof to merit it.

In addition to the foregoing procedural issues, there are very serious, substantive legal issues that must be resolved prior to any hearing. Foremost, Part II, Article 7, does not relate to qualification. As stated above, it is Article 14 that establishes qualifications, not Article 7. Article 7 forbids certain actions on the part of sitting representatives, and thus is a direction, not a limitation on status or a qualification. The Article addresses a possible transgression, not a qualification. Article 22 does not apply. As I am sure you are aware, Article 7 was enacted eight years after the Article 22, and is not, on its face, an additional qualification. Had the drafters intended to make the provisions of Article 7 a qualification, they would have said so. Thus, any alleged transgression under Article 7 must be determined by another mechanism.

I also note that Article 7 is of general applicability to the entire General Court, not just the House of Representatives, unlike Article 22. Thus, its enforcement cannot be accomplished by the House alone. Representative Brunelle is being subjected to a process based upon a misreading of Part 2, Article 7.

Terie is correct that Part 2 Article 7 is part of the general applicability to the entire General Court but that only raises the question of who should be the ones to oversee such a hearing.  Since I don't believe this part of the Constitution has been utilized before there is no example to follow in how to enforce it.  Most likely it will come down to a court ruling to determine how it should be enforced but that's far from saying the Republicans are not following the Constitution since the Constitution in this case isn't clear.

Also, the Greazzo motion is based on a fundamentally flawed understanding of Article 7. The New Hampshire Supreme Court has stated:
"In interpreting an article in our constitution, we will give the words the same meaning that they must have had to the electorate on the date the vote was cast." Grinnell v. State, 121 N.H. 823, 826, 435 A.2d 523, 525 (1981). In doing so, we must "place [ourselves] as nearly as possible in the situation of the parties at the time the instrument was made, that [we] may gather their intention from the language used, viewed in the light of the surrounding circumstances." Warburton v. Thomas, 136 N.H. 383, 387, 616 A.2d 495, 497 (1992). See Claremont School District v. Governor, 138 N.H. 183, 186 (1993)."

Part II, Article 7, is intended to prohibit a member of from acting, in either branch of the legislature, as a lawyer or advocate on behalf of a third party in resolving that party's dispute to redress a wrong or grievance the party has brought before the legislature to resolve. Article 7 uses language that is used to describe the relationship between a lawyer and a client: "take fees, be of counsel, or act as advocate in any cause."

The words actually written are "No member of the general court shall take fees, be of counsel, or act as advocate, in any cause before either branch of the legislature".

Terie is entitled to her opinion of what they intended here but that does not make her opinion correct.  One key point of observation in reading the Constitution here is that it uses the word "or" not "and".  No member shall take fees OR be of counsel OR act as advocate.  Terie's opinion implies the use of the word AND which isn't there.

According to T. SHERIDAN, A GENERAL DICTIONARY OF THE ENGLISH LANGUAGE 1780 the operative words are defined as follows:

a) "Advocate" is defined as "he that pleads the cause of another in a court of judicature. He that pleads any cause in whatever manner as a controvetift or vindicator. "

b) "Counsel" is defined as "he that pleads a cause."

c) "Fee" is defined as "payments occasionally claimed by persons in the office. Reward paid to physicians or lawyers."

d) "Cause" is defined as "that which produces or effects any thing, the efficient, the reason, motive to any thing; subject of litigation, party. (Emphasis added).

The attempt here continues to confuse by implying that the guilty party must meet all three of the above definitions when in fact they must only meet one.  If a member of the house took fees from a group that has a cause go before the legislation they are in violation.  As Executive Director his pay came from groups which did argue for or against bills the legislation voted on.

That Part II, Article 7 only applies to legal claims or cases pursued before the legislature is supported by other sections of the Constitution.

Pursuant to Part I, Article 32, which was adopted twelve years prior to Part II, Article 7, individuals have the right "to request of the legislative body, by way of petition or remonstrance, redress of the wrongs done to them, and of the grievances they suffer."

Nice distraction here but Article 32 has nothing to do with the charges against Brunelle.  Anyone can petition all they want but if they pay Brunelle then it crosses the line of Article 7.

This interpretation is likewise supported by other uses of the term "cause" in the New Hampshire Constitution, such as Part II, Article 4, which provides the General Court with the power to create additional courts in the state "for the hearing, trying, and determining, all manner of crimes, offenses, pleas, processes, plaints, action, causes, matters and things whatsoever arising or happening within this state, or between or concerning persons inhabiting or residing, or brought, within the same, whether the same be criminal or civil..."

In light of this right in Part I, Article 32, to bring grievances before the legislature, and the language used in Part II Articles 4 and 7, the prohibition provided for in Article 7 is clearly intended to prohibit members from representing individuals in claims for redress that they bring to be adjudicated before a legislative body. It is not meant to prohibit members of the general court who are employed from participating in the legislative process on potential legislation that may be of interest to their employer. Those activities are governed by the legislative ethics guidelines' requirement that members disclose conflicts of interest by filing the financial disclosure form and required declaration of intent forms. See, Marshall, The New Hampshire State Constitution, a Reference Guide, p. 128.

As director of a political group being paid by special interest groups I would argue that Brunelle was representing individuals in claims before the legislative body.  But this is why we have trials.  Facts such as which groups made up the source of his pay and which issues were presented before him should be analyzed and if the two are one in the same then he clearly violated Article 7.  If the evidence cannot prove this then he should be found not guilty and allowed to continue to serve as elected.

Thank you for your cooperation in this matter. I look forward to your response.

Very truly yours,

Representative Terie Norelli,
Democratic Leader 

Over all there is nothing in this letter supporting the claim Democrats have been making that Republicans are violating the Constitution.  At best it can be argued that Democrats are interpreting it differently then Republicans but since there aren't any court rulings on Article 7 it can only be taken at face value and face value right now support the Republican's claim.

Let's read the article one more time...

[Art.] 7. [Members of Legislature Not to Take Fees or Act as Counsel.] No member of the general court shall take fees, be of counsel, or act as advocate, in any cause before either branch of the legislature; and upon due proof thereof, such member shall forfeit his seat in the legislature.

"No member of the general court" - I don't think anyone will argue that Brunelle does fit this part of the statement.  He is an elected member of legislature.

"shall take fees, be of counsel, or act as advocate," - Key word is the "OR".  As the executive director for the Democrats he did take fees from special interest groups.

"in any cause before either branch of the legislature" - If it can be proven that the groups that paid his salary are groups having to do with causes before the legislature then he is in violation.  In this case "causes" would be the bills being voted on and deliberated.

"and upon due proof thereof, such member shall forfeit his seat in the legislature" - self explanatory.

Terie and her fellow Democrats can spin this any way they like but it comes down to one thing and one thing only, did groups arguing their issues before the house pay Brunelle's salary.