NH Legislature This Week—February 13, 2012
Brought to you by the Brookline Democrats
Quote of the Week
“Lawmakers could write a law and then appoint a body to review its constitutionality. Sweet! It’d be like a college student naming an ad hoc committee of his drinking buddies to grade his finals.” Julie DelCour, writing about a bill in Oklahoma that would give the legislature and not the courts the sole right to determine the constitutionality of laws. In NH, proposed constitutional amendment CACR28 would do the same thing.
Of the bills that we are following, the House passed only a bill to abolish the University chancellor’s office, which will cause the various campuses to have to duplicate the work that has been centralized until now, such as applying for federal grants. The House also passed a resolution urging Congress to “audit” the Federal Reserve System. This is watered down from the original proposal urging that the Federal Reserve System be abolished and that the federal government start stockpiling gold to back up our currency.
Bills that have been defeated (either permanently or temporarily) include expanding the death penalty, allowing non-violent felons to own guns, withdrawing from No Child Left Behind (does anyone remember that this was a Republican initiative?), and a resolution supporting statehood for Washington DC (too many Democrats in the city).
Change in strategy?
The last couple of weeks, the legislature has been defeating bills very much along the lines of what they had been supporting last year. This follows the long established pattern that controversial legislation receives more support on non-election years. As legislators get closer to Election Day, they become more sensitive to public opinion. Will this trend continue? Only time will tell.
Continuing experimentation with the report
We are trying some new formatting with the legislative report this week. In particular, we have included some “blurbs” from the House Calendar which provide more detail or different perspectives on some bills. We are also trying to make it easier to skim. Ideally, we want people to be able to skim and find any topics that interest them and then to be able to get more detail on those particular bills. As always, feedback is appreciated.
There will probably not be a legislative report next weekend as our primary editor (Brian Rater) will be unavailable.
Last week, the House voted on the following bills:
HB1706 expands the death penalty.
Voted ITL on a voice vote
HB1375 would allow people convicted of non-violent felonies (such as selling drugs) to own and possess guns.
Voted ITL on Voice Vote
HB1413 would withdraw NH from the federal No Child Left Behind program. Withdrawal from the program would cost $61 million in lost federal funding for programs that target educationally disadvantaged children.
Both HB1413 and HB 1517 (preventing town from implementing any part of NCLB without Leg approval) were laid on table. 253-81
HB1692 would abolish the Chancellor’s office of the university system and require each campus to duplicate the work being done by that centralized office. The committee recommendation is OTP 12-4.
Amended to change implementation from July 2012 to July 2013. Amended version passed 207 –145. Reps Belanger, Drisko, Flanagan and Gargasz all voted to pass. The bill now moves to the Finance Committee.
HCR37 resolution urging Congress to abolish the Federal Reserve System and return to the gold standard. The committee recommends changing the bill to instead urge an audit of the Federal Reserve, which it says causes “ongoing inflation of our unbacked paper money”. The committee vote was 12-0.
Amendment was adopted, and the bill passed, both on a voice vote.
HR26 resolution supporting adding Washington DC as a 51st state. DC currently is not part of any state and thus can not elect members of Congress. They are subject to the laws of Congress and must pay the same taxes, but they can not elect their own representatives to Congress. The committee vote was ITL 8-3.
Voted ITL 248-79 Reps Belanger, Drisko, Flanagan and Gargasz all voted against the bill.
HB593 legalizes video lottery and table gambling. The committee vote is 14-7.
Voted to Recommit 257 –91. Hearing scheduled on 2 amendments on Tuesday, 2/13/12. Difference between two amendments is whether to allow 2 or 4 gambling locations.
On Wednesday, February 15th, the House will meet to vote on the following bills:
HB 1406, exempting products made in New Hampshire from all federal laws. The committee recommendation is INEXPEDIENT TO LEGISLATE.
Rep. Sean M McGuinness for Commerce and Consumer Affairs: This bill seeks to exempt certain products produced, manufactured and retained within the boundaries of the state of New Hampshire from federal regulation under the US Constitution’s commerce clause. The House has already sent HB 324, relative to lawful commerce in goods and services sold, made, and retained in the state of New Hampshire to Interim Study. Also HB 1406 was scheduled to be sent to a second committee. The committee is committed to working on the issue and will have a recommendation for next year. Vote 11-1.
HB 1344, prohibiting public employees from being candidates for certain offices. The committee recommendation is INEXPEDIENT TO LEGISLATE.
Rep. Andrew R Schmidt for Constitutional Review and Statutory Recodification: Part I, Article II of the Constitution of New Hampshire states that “Every inhabitant of the state having the proper qualifications, has an equal right to be elected to office.” Part II article 9 of the Constitution guarantees that we will have a House of Representative founded in principles of equality and representation therein “shall be as equal as circumstances will admit.” The goal of our constitution is to have as broad a representation as possible. To deny rights of public employees, a large group of citizens with this basic tenet of our constitution is wrong. Furthermore concerns about potential conflicts of interest are more appropriately addressed by disclosure and ethics rules. Consequently the committee voted unanimously to ITL. Vote 12-0.
HB 1533, prohibiting bullying in the state house and legislative office building. The committee recommendation is INEXPEDIENT TO LEGISLATE.
Rep. John W Cebrowski for Constitutional Review and Statutory Recodification: The Constitution of New Hampshire, Part 2, Articles 22, 35 and 37 provides for the House and Senate to govern their own proceedings independently. To put into statute a process that would potentially subordinate their governance, especially a future legislature which might not concur with that subordination, to another branch of government or a body including members not of either body or each other is contrary to that principle. The nature of this institution is one of passion for positions, firmly held principles, partisan politics, and disagreement. All this requires the highest level of civility, judgment, respect, sensitivity, good communications, and decorum. And those attributes need to run both ways, particularly at times of conflict. Expected cooperation with party platforms and principles is a fact of legislative life. But holding to your conscience is also a fact of legislative life. Whipping is a fact of legislative life, whether it be simple polling or verbal arm-twisting. Disappointment is another fact of legislative life. The “kitchen” can sometimes get hot. Fortunately, we have multiple means, multiple channels or outlets, for venting our frustrations when we feel wronged or misunderstood. They include testifying, debating, making our case to various committee chairs and co-chairs, majority and minority leadership team members, the Speaker, house rules, the redress of grievances committee, and multiple other resources. We have no lack of processes, people, and tools to air our passions and frustrations. Vote 13-2.
HB 1452, prohibiting the establishment of sobriety checkpoints. The committee recommendation is INEXPEDIENT TO LEGISLATE.
Rep. Laura C Pantelakos for Criminal Justice and Public Safety: This bill would stop sobriety check points. The police have to go to court to get permission to hold a sobriety check. It is advertised in the newspaper. Even the sponsors agreed it was working. They felt that roving patrols would work better. Police departments do have roving patrols. The committee felt we needed both to keep drunken drivers off our roads. These sponsors felt it was an invasion of people rights. We heard very little from the public. Vote 12-1.
HB 1494-FN, relative to verification of immigration status of all persons arrested or detained by law enforcement officers. The committee recommendation is INEXPEDIENT TO LEGISLATE.
Rep. David A Welch for Criminal Justice and Public Safety: This bill would, if enacted, require law enforcement to verify the immigration status of all persons arrested or detained. Testimony revealed only 5 ICE officers are assigned to Enforcement Removal Operations. The present query through NCIC is based on border activity and would take 10-20 minutes before actual status is received. It not only would tie up officers for an extended amount of time, it would likely violate current Federal First Circuit Court of Appeals and New Hampshire and United States Supreme Court decisions prohibiting protracted detention of individuals at traffic stops without reasonable suspicion. This is not good public policy and will create tensions and mistrust between our minority community and our law enforcement officers. Vote 14-1.
HB 1611-FN, repealing certain provisions relative to the sale of pistols and revolvers. The committee recommendation is OUGHT TO PASS WITH AMENDMENT.
Rep. David A Welch for Criminal Justice and Public Safety: This bill repeals RSA 159:8 relative to the license to sell pistols and revolvers at retail, RSA 159:8-a sales to non-residents, RSA 159:8-b penalties for sales to non-residents and 159:10 sales without a license. The federal statutes govern all retail sales of pistols and revolvers and the RSA’s govern state licensing for retail sales. Currently the federal F.F.L. licenses are necessary to operate a business to sell at retail, pistols and revolvers. The state license is not necessary and in fact in some cities and towns not required, because it is not known. A similar bill was heard a few years ago. The amendment removes from the bill RSA 159:14 relative to exemptions for the sale of a pistol or revolver. This is the part of our statutes that allow the sale between two parties that know each other. RSA:14 will stay in effect. Vote 12-0.
CACR 32, relating to judicial conduct. Providing that the people of New Hampshire, in a manner established by law, shall be responsible for investigating and evaluating the conduct of members of the judiciary. The committee recommendation is INEXPEDIENT TO LEGISLATE.
Rep. J. Brandon Giuda for Judiciary: This bill proposed a broad constitutional amendment that would allow the people of New Hampshire to investigate and evaluate the behavior of members of the Judiciary and to impose sanctions, including fines, as necessary. Although the committee recognizes the angst in a portion of the population regarding the Judiciary’s seeming inaction with regard to some judges who are performing poorly, the committee thought that this proposal was much too broad and also felt that other options were available that would better address this problem. Vote 16-1.
HB 1498-FN-L, repealing dog licensing requirements. The committee recommendation is INEXPEDIENT TO LEGISLATE.
Rep. James P Belanger for Municipal and County Government: Some town clerks allege that their communities lose money on dog licensing. Cost of enforcement, metal tags and administration exceeds the revenue generated by license fees. They, therefore, want to eliminate dog licensing. This bill would do that but it does not eliminate the need for rabies vaccinations. The committee feels that, without the need for licensing and renewals of those licenses, owners would ignore the rabies vaccine requirement and will eliminate “guard dog” licensing which would result in a public danger. The burden of ensuring all dogs obtain a rabies vaccine would be shifted to the state veterinarian’s office where a substantial increase in staff would be required and cost of printing would escalate. Veterinarians in NH now download rabies certificates, free of charge, on the internet. This bill would require veterinarians to purchase these certificates at a cost of $4.00 which cost would likely be substantially increased to offset the cost of doing business before it is passed on to the consumer. The department of agriculture currently gets $2.00 per license and the state veterinary diagnostic lab gets $0.50 per license which equates to $335,000.00 and $83,750.00 which would need to be re-directed from the state veterinarian’s revenue from rabies certificates sold. The fiscal note on this bill estimates a loss in revenue to local municipalities of approximately $724,437.00. At-large dogs picked up by law enforcement or neighbors would have no tag and no way to find the owner and might result in more dogs being confined to municipal kennels and ultimately adopted or euthanized. This bill could result in an increase in rabies shots for cats anywhere from $4.00 to a possible $8.00. The NH Town Clerk’s Association testified against this bill. Vote 17-0.
CACR 28, relating to the allocation of authority between the legislative and judicial branches. Providing that the supreme court shall determine the constitutionality of judicial acts and the legislature shall determine the constitutionality of legislative acts. MAJORITY: INEXPEDIENT TO LEGISLATE. MINORITY: OUGHT TO PASS.
Rep. Barry J Palmer for the Majority of Judiciary: This constitutional amendment would overturn the system of checks and balances between the legislative and judicial branches of government as they have existed in New Hampshire for two hundred years. Part I, Article 37 of the New Hampshire constitution has provided for the separation of powers between the three branches of government since 1784. Merrell v. Sherburne, the case articulating the power of the state supreme court to rule on the constitutionality of legislative acts, has stood the test of time since the early 1800s. The judiciary rules on the constitutionality of legislative acts under the federal constitution and in all 49 other states. Under this amendment, the legislature could pass a bill that was clearly unconstitutional, and citizens aggrieved by the unconstitutional statute would have no recourse other than that afforded by the next election. The majority understands the concerns raised about certain specific rulings by our supreme court, but believe this amendment goes too far in the attempt to address those few specific rulings. Under our system of checks and balances, the legislature can overrule a court ruling on a statute simply by enacting a new statute. A court ruling on a constitutional issue must be changed by the adoption of a constitutional amendment. To require less would be to hand too much power to the unfettered authority of the legislature, and would defeat the court’s role as the protector of the constitutional rights of minority interests against the tyranny of the majority. Vote 10-6.
Rep. Gregory M Sorg for the Minority of Judiciary: CACR 28 would bring the supreme court back to constitutional legitimacy by writing into the New Hampshire constitution the distinction between adjudicatory and legislative acts drawn by Justice Levi Woodbury in the 1818 case of Merrill v. Sherburne, the first case to come before the state’s highest court under the constitution’s separation of powers provision, Article 37 of Part 1. By so doing, it would restore the original understanding of the boundaries of the separation of powers, reflected in that case, whereby the judiciary was the final authority of the constitutionality of adjudicatory acts and the Legislature was the final authority on the constitutionality of legislative acts. It has only been in recent times, since its 1983 decision in State v. LaFrance, that the supreme court of New Hampshire has laid claim to final, unreviewable authority, binding on the legislative and executive branches, to refuse to enforce on constitutional grounds acts of a purely legislative character. By reason that the court has an inherent institutional bias in favor of resolving separation of powers issues to the benefit of judicial power at the expense of legislative, this sweeping, anti-historical assertion of authority has resulted in judicial intrusions into the legislature’s exclusively granted constitutional authority to establish state policy to such an extent that the court acts today as a virtual third chamber of the legislature, with veto power over the other two, exercisable by whichever three persons happen to comprise a majority of the court at any given time. One can only hope that the legislative branch will eventually tire of having its maturely considered and hard fought-for policy choices repeatedly subordinated to those imposed by the judicial branch, and will take the action called for in CACR 28 to restore the constitutional separation of powers and system of checks and balances among the three branches of our government.
HB 1183, relative to access to the galleries in the general court. MAJORITY: INEXPEDIENT TO LEGISLATE. MINORITY: OUGHT TO PASS.
Rep. Timothy P Comerford for the Majority of Legislative Administration: This bill seeks to clarify the fact that streaming video, audio, or other electronic means are not substitutes for having the house gallery open. The New Hampshire Constitution in Part 2, Article 8 is already clear on the issue of keeping the gallery open, however, the doors of the gallery are to be kept open while the house is in session to those that behave decently. The bill is unnecessary as the constitution is the authority in this matter. Vote 10-4.
Rep. Cynthia L Chase for the Minority of Legislative Administration: The minority feels that there is a need to insure that the gallery remains open at all times that the house is in session. Streaming video should never be a substitute for an open gallery.
HB 1412, requiring the department of transportation to post signs on roads that cross the border into Massachusetts. The committee recommendation is INEXPEDIENT TO LEGISLATE.
Rep. Candace C W Bouchard for Public Works and Highways: This bill would amend RSA 230:84 requiring all roads that cross the New Hampshire/Massachusetts state line to bear signs that say “Warning Massachusetts Border 500 feet.” This bill would also require the department of transportation to establish a sponsor-a-sign program. In return, a business sponsoring a sign would be identified on the sign. The committee recognizes the good intentions of the bill, but found the bill flawed as not all roads that cross into Massachusetts are state roads. The committee also heard testimony of border communities being good neighbors and felt this legislation would negatively impact that relationship. The division of economic development and the division of travel and tourism both oppose this bill. Travel and tourism is the second largest industry in terms of jobs supported by dollars from out of state and Massachusetts travelers are a large market share of travel and tourism to our state. The “warning signs” are not a message of hospitality. New Hampshire is also a partner in Discover New England, a non-profit organization created as a partnership to promote travel and tourism in overseas markets with other New England states. The organization has proven to be very successful and these warning signs could jeopardize the working relationship with Massachusetts. The warning signs would also make attracting Massachusetts businesses to New Hampshire more difficult by giving the impression they are not welcome. Testimony showed that almost all, if not every, state road crossing the New Hampshire border into Massachusetts had a sign signifying the state line, and this bill would unnecessarily jeopardize tourism dollars, jobs and attracting new businesses to New Hampshire. Vote 15-0.
Committee Hearings for this coming week:
House Constitutional Review and Statutory Recodification (LOB room 206)
CACR 11, relating to terms for state judges. Providing that all state judges be commissioned for renewable 5-year terms. Tuesday 2/14/12 11:00am
HCR 41, urging the United States Congress to find that the Department of Health and Human Services’ grant to Planned Parenthood of Northern New England is unconstitutional and void. Tuesday 2/14/12 1pm
House Education Committee (LOB room 207)
HB 1148, requiring the teaching of evolution as a theory in public schools. Tuesday, 2/14/12 11am
House Labor, Industrial and Rehabilitative Services Committee (LOB room 303) Rep. Jack Flanagan is a member of this committee
HB1645 Public hearing on proposed amendment to HB 1645-FN, prohibiting all public employees from participating in collective bargaining. Copies of the proposed amendment are available from the Sergeant-at-Arms office. Thursday 2/16/12 1:00pm
House Science, Technology and Energy (Representatives Hall)
HB 1490-FN, repealing New Hampshire’s regional greenhouse gas initiative cap and trade program for controlling carbon dioxide emissions. Executive session may follow. Tuesday 2/14/12 10:15am
Where to find more information
The New Hampshire legislature web site is www.gencourt.state.nh.us. Here, you can find the full text of all bills, find the full list of sponsors of bills and see more detailed status. If you have questions about how to use the state website, we would be glad to help. Just email us at firstname.lastname@example.org.
Terms and Abbreviations
ITL means “Inexpedient To Legislate”. If the full House or full Senate votes to ITL a bill, then the bill is defeated.
OTP means “Ought to Pass” meaning that a committee is recommending that a bill be passed.
Consent Calendar: If a bill receives a unanimous recommendation from a committee, the committee may place the bill on the Consent Calendar. When full House meets, the first vote taken is to approve all recommendations on all bills in the consent calendar. This allows the House to quickly dispense with non-controversial bills and move on to topics that need discussion. If any legislator requests that a bill be removed from the consent calendar, then it will be removed and it will be brought up for discussion and a vote along with the other non-consent calendar bills.
Resolutions: Sometimes the House, the Senate or both will pass resolutions. These are just public statements of opinion or interest, but they have no legal standing. It is similar to issuing a press release. HCR is a House resolution. HJR is a joint resolution (both House and Senate) that originates in the House.
LOB refers to the Legislative Office Building, which is immediately behind the statehouse. Most committee hearings are held in this building.
Reps Hall refers to Representatives Hall in the Statehouse where the House of Representatives meetings. This room is used for hearings that are expected to be very large.
“Retained” means that a Committee has voted to keep a bill until next year. Next year, any bills that have been retained must be sent to the full House/Senate for a vote. Any bill that does not get retained must be sent to the full House/Senate for vote by Crossover or the end of the session.
“Crossover” is March 31st. The House will vote on all bills introduced in the House by this date except for bills that have been retained until next year. Similarly, the Senate will vote on all bills introduced into the Senate by this date except for bills that are being retained until next year.
“Tabled”: The full House or full Senate can “table” a bill which means that the bill is kept in “limbo” without being passed or defeated. For tabled bill to be brought back up for a vote again (to pass it) requires a 2/3 majority. If the bill has not been passed when the legislature adjourns at the end of the year, it is defeated. Tabling a bill usually happens when the legislature wants to defeat a bill but doesn’t want to directly oppose it. It can also sometimes happen if there are not enough votes to pass, but leadership hopes to be able to come up with enough votes later—but this then requires a 2/3 majority.
A brief guide to how legislation becomes law
Bills introduced in the House:
1. The bill is assigned to a committee and the committee holds a public hearing.
2. The committee either retains the bill or votes to recommend that the bill be passed (OTP), changed (OTPA), or defeated (ITL).
3. Except for retained bills, all other bills go to the full House which can pass, defeat, change a bill or send it to a second committee.
4. If sent to a second committee, the committee must then retain or recommend to pass, change or defeat the bill. It then goes back to the full House for a second vote.
5. If passed by the House, the bill goes to the Senate
6. The bill is assigned to a Senate committee which then holds a public hearing
7. The Senate committee either retains the bill or votes to recommend that the bill be passed (OTP), changed (OTPA), or defeated (ITL).
8. Except for retained bills, all other bills go to the full Senate which can pass, defeat, change a bill or send it to a second committee.
9. If sent to a second committee, the committee must then retain or recommend to pass, change or defeat the bill. It then goes back to the full Senate for a second vote.
10. If passed by the Senate, the bill goes to the Governor who may sign the bill into law or veto it.
11. If the Governor vetoes the bill, it goes back to the House
12. If 2/3 of the House votes to override the veto then the bill goes back to the Senate
13. If 2/3 of the Senate votes to override the veto then the bill becomes law.
For Senate bills, the process is the same except that it goes through the Senate before it goes to the House.
For Constitutional Amendments (CACRs) the process is slightly different.
CACRs introduced in the House:
1. Assigned to a committee and the committee holds a public hearing.
2. The committee votes to recommend that the CACR be passed, changed, killed or sent to study
3. Regardless of the committee recommendation, all CACRs go to the full House which can pass, kill or change a bill or send it to study. Passing a CACR requires 60% of the House members present to vote in favor.
4. If passed by the House, the bill goes to the Senate
5. Assigned to a Senate committee which then holds a public hearing
6. The Senate committee votes to recommend that the bill be passed, changed, killed or sent to study
7. Regardless of the committee recommendation, all bills go to the full Senate which can pass, kill or change a bill or send it to study. Passing a CACR requires 60% of the Senate members present to vote in favor.
8. If passed by the Senate, the CACR will put on the ballot at the next election (November 2012). If 2/3 of the voters vote in favor of it, then it becomes part of the NH Constitution.
Where to Send Letters to the Editor:
Hollis Brookline Journal
The Cabinet welcomes letters from its readers that are exclusive to this newspaper. Letters must be 400 words or fewer and are subject to editing either for content or for length. Letters must be received no later than noon on Monday. The Cabinet does not publish anonymous letters, those written under an assumed name or containing only the writer’s initials. Nor does it publish form letters, or those written as part of an orchestrated campaign. Letters must be in good taste and free of libel or personal attacks. Important: Letters must contain the writer’s name, home address and day/night telephone numbers and e-mail for confirmation purposes. Only the writer’s name and hometown will be published. The deadline for submitting letters is noon on Monday. The Journal is published every Friday.
Submission deadline is noon on the 2nd and 4th Mondays of the month.
The Hollis Times
The Mason Grapevine
Residents of Mason can submit letters to the Mason Grapevine at TheMasonGrapevine@yahoo.com
Hollis, Brookline, Mason Reps:
Sen. Jim Luther P: (603)271-2246 Jim.email@example.com
Rep. Jim Belanger P: (603)465-2301 Jim.firstname.lastname@example.org
Rep. Dick Drisko P: (603)465-2517 email@example.com
Rep. Jack Flanagan P: (603)672-7175 Jack.firstname.lastname@example.org
Rep. Carolyn Gargasz P: (603)465-7463 email@example.com