WEDNESDAY, FEBRUARY 15
REGULAR CALENDAR
CONSTITUTIONAL REVIEW AND STATUTORY RECODIFICATION
HB 1361, prohibiting generic fiscal notes on bills. OUGHT TO PASS WITH AMENDMENT.
Rep. Seth Cohn for Constitutional Review and Statutory Recodification: The committee agreed with the intent of the bill to address fiscal notes that fail to provide adequate information, but disagreed with a solution that put what ought to be House Rules into statute. As amended, this bill simply prohibits legislative budget office from providing fiscal notes that are “awaiting more agency information.” The finance committee will, we hope, further refine this effort to improve fiscal notes moving forward. Vote 8-2.
HB 1444, prohibiting certain state employees from wearing fragrances. INEXPEDIENT TO LEGISLATE.
Rep. Paul E Brown for Constitutional Review and Statutory Recodification: The majority felt that this bill has some merit in that certain people are allergic to fragrances. However, there could be a constitutional conflict between the rights of the employee and the possible health effects of an occasional customer contact with an allergy. We must be mindful that though we are an employer we are also the State. Vote 8-3.
HB 1560, relative to the interstate Health Care Compact. MAJORITY: OUGHT TO PASS. MINORITY: INEXPEDIENT TO LEGISLATE.
Rep. Seth Cohn for the Majority of Constitutional Review and Statutory Recodification: A compact is a constitutionally permitted method for states to cooperate together (Article I, Section 10), with the full permission and direct authorization of congress making the compact into federal law. This particular compact requires that the states pledge to “improve health care policy,” taking the “primary responsibility to regulate health care”, and in return, congress will grant explicit permission to the states to experiment with different approaches to comprehensive health care programs and to fund those programs with federal money. Congress would also authorize the suspension of federal health care regulations by the state legislature if the regulations are in conflict with the state’s new improvements. This compact recognizes that New Hampshire’s health care needs are best solved by those here in New Hampshire, and not by Washington DC regulators trying to force all 50 states into the same one-size-fits-all solution. Understanding that this bill simply asks the United States Congress to vote to give New Hampshire and other states that have passed this compact language an option in crafting their own innovative health care programs – or accepting existing and new federal healthcare proposals – and that since congressional approval controls the entire process, the majority felt that there were no constitutional issues. Vote 7-4.
Rep. Christopher W Serlin for the Minority of Constitutional Review and Statutory Recodification: The minority believes this bill has numerous logical and constitutional flaws. The language of HB 1560 allows member states to suspend federal laws, rules and equalities relating to healthcare. The minority believes this compact and the parts granted to member states via its language would be unconstitutional based on the supremacy chapter of our US Constitution; and if federal laws were suspended in a member’s state, citizens would be treated un-equally under federal law depending on their state of residence, in violation of the US Constitution’s guarantee of due process and equal protection, and as such the minority recommends ITL.
CRIMINAL JUSTICE AND PUBLIC SAFETY
HB 1128, relative to reports of failed breath tests when using an ignition interlock device. MAJORITY: OUGHT TO PASS WITH AMENDMENT. MINORITY: INEXPEDIENT TO LEGISLATE.
Rep. Larry G Gagne for the Majority of Criminal Justice and Public Safety: This bill requires that ignition interlock device rules require interlock service providers to report failures to pass the breath test to the prosecutor or prosecuting agency, treatment provider, probation officer and defense attorney by means of authorizing the interlock provider to provide these entities with secure electronic access to the data via the interlock provider’s web-based portal. Vote 8-4.
Rep. Mark Warden for the Minority of Criminal Justice and Public Safety: The minority believes the amended bill is flawed on two fronts. One, it appears to grant more leeway to the department in instituting rules for data reporting. Secondly, we have serious concerns over privacy, as information on failed interlock tests would be distributed to people outside the justice system, possibly before the alleged violation has been proved.
HB 1179, imposing an extended term of imprisonment for assault against a health care worker. INEXPEDIENT TO LEGISLATE.
Rep. Mark Warden for Criminal Justice and Public Safety: The committee heard testimony from nurses and other emergency medical providers who have been assaulted by patients. It appears there is a problem, but the committee majority feels this legislation is not the solution. There are already penalties for the crime of assault and there is flexibility in sentencing for the worst offenders Vote 8-4.
HB 1352, relative to citizen complaints against a police officer. INEXPEDIENT TO LEGISLATE.
Rep. Larry G Gagne for Criminal Justice and Public Safety: This bill specifies a procedure for reporting complaints against a police officer. The majority of the committee felt that this bill, if enacted, would be an unnecessary interference with the management function of cities and towns. There is already a process in place for complaints to be handled. There are either personnel rules, collective bargaining requirements or statutory procedures that outline how personnel issues are handled. Any citizen can make a complaint. If they don’t feel satisfied with how matters are addressed they can go to their local elected officials at the local level. Vote 8-4.
HB 1511-FN, relative to felons possessing firearms. OUGHT TO PASS.
Rep. Kyle J Tasker for Criminal Justice and Public Safety: This bill is the least we can do to rectify a situation that exists for rehabilitated felons. Even holding a steak knife is a felony under current statute. Federal statutes more than cover any situation Vote 11-5.
EDUCATION
HB 1162, establishing a committee to study the effects of compulsory school attendance on children and families. MAJORITY: INEXPEDIENT TO LEGISLATE. MINORITY: REFER FOR INTERIM STUDY.
Rep. Ralph G Boehm for the Majority of Education: This bill creates a committee consisting of three representatives and three senators. The report of this committee is due in November 2012. This itself makes the bill not feasible, due to the amount of work needed. Also compulsory attendance teaches a regimen for life, preparing students for the real world. In school subjects, if some students attend and some don’t then classes would be disrupted. We do not need another committee. Vote 14-2.
Rep. J.R. Hoell for the Minority of Education: Our compulsory attendance statutes are over 100 years old, and the education system has changed significantly over that time period. Our current system fulfills the education and instruction, but may, in fact, be detrimental to the other goal which is to develop a love for learning. This committee would be empowered to review both the beneficial effects and any potential detrimental effects to requiring children to be forced to participate in the government education system.
ELECTION LAW
HB 1559, relative to political committees. MAJORITY: INEXPEDIENT TO LEGISLATE. MINORITY: OUGHT TO PASS.
Rep. Alfred P Baldasaro for the Majority of Election Law: This bill sought to modify the definition of a “political committee” in RSA 664:2 to specifically include “any organization that does not have as its major purpose promoting, defeating, or influencing candidate elections…” That proposed language directly violates the standard established for the definition of political committee in the US Supreme Court decision for Buckley v. Valeo. In that case, the court held that in order for an organization to be designated a political committee, it must have “the major purpose” of supporting or opposing a candidate. In light of that case law it appears that the language in this bill would clearly be unconstitutional. Therefore, by a bipartisan vote, the majority of the committee determined that this bill is inexpedient to legislate. Vote 14-2.
Rep. Robert J Perry for the Minority of Election Law: The intent of this bill is to modify the definition of political committee in order to capture the non-profit organizations whose purpose was historically not related primarily to campaign spending, but whose campaign spending has significantly increased over time. To date, these organizations have escaped regulation, especially in the form of not having to disclose the source of the money. This is especially important information to be revealed, given the January, 2010 Supreme Court ruling in Citizens United v Federal Elections Commission unleashing unlimited funding of campaigns through third-party organizations. Toward that end, the definition of political parties is expanded through this bill to include any organization that does not have as its major purpose promoting, defeating, or influencing candidate elections, but that receives contributions or makes expenditures aggregating more than $5000 in a calendar year for the purpose of promoting, defeating, or influencing, in any way, the nomination or election of any candidate to political office.
HB 1684-FN-A, relative to campaign contributions and expenditures. MAJORITY: INEXPEDIENT TO LEGISLATE. MINORITY: OUGHT TO PASS.
Rep. Alfred P Baldasaro for the Majority of Election Law: This bill proposes to implement a massive new government controlled system to regulate the financing of campaigns for the election of governor, executive council, and state senate candidates. The bill provides no mechanism to provide the millions of dollars that would be required for the state to offer public funding of elections. When asked where these revenues would come from, the sponsor suggested implementing a new surcharge on tickets for motor vehicle violations. Although not authorized by the bill, it is clear that some new fee or tax would be required to fund this program. In addition to the obvious problem with the lack of funding, the proposed plan does not even begin to provide a solution for the problem the sponsor sees with the influence exerted on elections by third party organizations. Adopting a program where candidates limit their campaign spending to the amount of funds provided by the government would exacerbate the disparity that now exists between the money raised and spent by candidates and the independent expenditures made by super-PACs or other third party organizations Vote 10-6.
Rep. Robert J Perry for the Minority of Election Law: This bill, when fully implemented, would create the fourth-in-the-nation Clean Elections Law, allowing voters to take ownership of the elections process. It establishes various revenue streams and a fund into which these monies would be held for the campaign expenses of qualifying candidates for governor, councilor, and state senator. When $1.5 million is reached, it would trigger implementation of the race for executive council; when $8 million is attained, the race for governor and state senator would be implemented. This bill is modeled after a similar law enjoying 11 years of success in the State of Maine, the first state to pass such a law, which its residents have found important enough to continue funding, despite the hardships derived from the Great Recession. However, unlike the Maine law, HB 1684 does not require monies be expended from the general fund. Since our courts have ruled that these programs be voluntary, HB 1684 is no exception. The Supreme Court ruling in Citizen’s United v Federal Elections Commissions opens the floodgates to unlimited independent campaign spending. The response to Citizens United has been an enormous increase in campaign spending – therefore influence – by third party organizations. Passage of this bill is but one important step in adapting to the daunting consequences of the ruling; in closing the disparity between wealthy and non-wealthy candidates; in breaking the connection between donors and political favors; and, as importantly, in creating an atmosphere of confidence and trust in our elections process.
ENVIRONMENT AND AGRICULTURE
HR 20, urging the federal government to allow the cultivation of hemp for industrial purposes. OUGHT TO PASS.
Rep. Derek Owen for Environment and Agriculture: For many years, this House has been considering the growing of hemp as a niche farm crop in the state. Hemp is not marijuana. It is a multi-purpose crop which can be made into balms, oils, fiber (the strongest natural fiber known to man), foods and plastics. Industrial hemp is commercially produced in over 30 countries without any adverse consequences, and 28 states have considered and 15 states have enacted legislation on hemp. The continued reluctance of the United States Drug Enforcement Administration to permit industrial hemp farming is denying New Hampshire farmers the ability to benefit from a high-value, low-input crop, which can provide significant economic benefits to producers and manufacturers alike. Hemp is not marijuana. This resolution will urge the Congress of the United States to remove the existing barriers imposed by the federal government, enabling our state to regulate the commercial production of hemp. Vote 13-1.
EXECUTIVE DEPARTMENTS AND ADMINISTRATION
HB 1154, establishing a committee to study the management structure of state government. REFER FOR INTERIM STUDY.
Rep. Spec Bowers for Executive Departments and Administration: The bill would create a committee to examine the management structure of the state, prepare an organization chart, and possibly recommend changes to reduce overhead. The committee decided that these functions fell entirely within the scope of the ED&A committee. Rather than asking the House, Senate, and Governor to create a committee, it is far simpler for ED&A to assign an existing subcommittee to do the work as an interim study project. Vote 13-1.
HB 1281, establishing a committee to study alternative medical insurance coverage for elected state officials. OUGHT TO PASS.
Rep. Randall A Whitehead for Executive Departments and Administration: This bill establishes a committee to study alternative medical insurance coverage for elected state officials, with the intent to offer a less expensive and more beneficial health care option for active and former elected officials Vote 10-3.
HB 1686-FN, relative to state contracts. OUGHT TO PASS WITH AMENDMENT.
Rep. Kenneth Hawkins for Executive Departments and Administration: This bill requires that all state contracts awarded by RFP’s to be posted on the state website after the bid is awarded. Currently a person can request the information under 91-A, but it becomes a lengthy project. This way the unsuccessful bidder(s) can look and see the difference between their bid and the winning bid. The amendment adds $4,000 to the bill to buy laptops for the Executive Councilors so that they can receive information needed for their meeting electronically, thus starting to eliminate over one million pieces of paper that are used today. Vote 11-3.
FINANCE
HB 1534-FN, repealing the self-funding of the department of labor. OUGHT TO PASS WITH AMENDMENT.
Rep. Steve Vaillancourt for Finance: Last year, in an attempt to save approximately $1.4 million in general fund expenditures, the state decided to have the department of labor self-funded by fees and fines. The majority, while casting no aspersions on the department of labor which assured us it would operate within its budget either way, is convinced that in order to provide more openness in government and greater scrutiny on the department budget we should return to funding through the traditional general fund source. It must be stressed that fees and fines were not increased to bring in additional funds this past year but there was some perception that was in fact the case. In terms of funds spent to administer the department, this bill will have no direct impact. General fund revenue and expenditures will increase by $1.4 million; restricted fund revenue and expenses will decrease by $1.4 million. The amendment merely corrects a drafting error. Vote 19-5.
HB 1666-FN, relative to state employee benefits. MAJORITY: OUGHT TO PASS WITH AMENDMENT. MINORITY: INEXPEDIENT TO LEGISLATE.
Rep. Neal M Kurk for the Majority of Finance:. This bill deals with the financial aspects of the state’s workforce. As passed by the House on first referral, it would have limited employee benefits to a percentage of salary. On second referral, the Finance committee, found this approach problematic and amended the bill to require legislative approval of any collective bargaining contract entered into by the state. This approach is similar to the one established for political subdivisions, where the town meeting, county delegation or school district meeting is the legislative body that must approve labor contract cost items. Vote 18-6.
Rep. Benjamin C Baroody for the Minority of Finance: As amended, HB 1666-FN is an entirely different bill than introduced. The amendment was presented in executive session with no opportunity for public comment on this expansive change. There was no fiscal note presented for the amended bill which we believe could be substantial. As amended, HB 1666-FN would require the legislature to approve all collective bargaining agreements entered into by the state but does not provide a prescribed vehicle or process in which the approval would be vetted and voted on. There are currently eight collective bargaining agreements associated with Executive Branch employees, all of which can reach agreement on dates independent of each other, the legislative budget cycle and full legislative session. HB 1666-FN does not address the certainty that such agreements contain binding effective dates and obligations on both the employer and employee representative that will not fall within the customary timeframes for which the legislature meets. As such, the additional approval level created by this bill is likely to result in significant, if not insurmountable, recalculations of collectively bargained compensation or benefit changes, including those that involve third party state contractors. Additionally, this new approval level will require the full legislature to convene for this purpose - potentially at eight different times every biennium. RSA 273-A:3 already provides legislative approval for cost items and ensures that our budget process is directly connected with the approval process. HB 1666-FN could require taxpayers to incur the cost of bringing the full legislature back into session, up to eight separate times, if the agreements were not submitted for approval within a normal legislative session day. It is also noteworthy that HB 1666-FN does not address in which vehicle the approval process would come to the legislature: would a bill be filed or a resolution; would a public hearing be needed; how would we ensure public notice and transparency?
JUDICIARY
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 1135, establishing a civil action for certain disruptions of funerals of members or former members of the armed forces. MAJORITY: INEXPEDIENT TO LEGISLATE. MINORITY: OUGHT TO PASS.
Rep. Lenette M. Peterson for the Majority of Judiciary: The current law already protects the right of all funerals and does not single out one funeral over another. Since current law was enacted in 2007, there have been no disruptions to any funeral; therefore no changes to the statute are necessary. Vote 10-7.
Rep. Barry J. Palmer for the Minority of Judiciary: There are few things neither more dignified nor poignant than a military funeral, with its honor guard, a trumpeter playing taps and presentation of the American flag to a surviving family member, and disruption of such a funeral by misguided protesters would compound a family’s grief. When a person is laid to final rest and goes to his or her maker, it’s a sacred moment. And because the person is an American hero who served this country, it is hallowed ground. This bill simply enhances the current funeral disruption law (a misdemeanor) by providing an opportunity for a civil action to mitigate their grief because of a disruption. This bill simply tells those who are considering such a sacrilegious disruption that in New Hampshire “Don’t even think about it!”
HB 1298, relative to the definition of "public use" under the eminent domain procedure act. OUGHT TO PASS WITH AMENDMENT.
Rep. Robert H Rowe for Judiciary: When property is taken by eminent domain for public use, public use shall not include the public benefits resulting from private economic development and private commercial enterprise, including increased tax revenues and increased employment opportunities; nor shall “public use” include use by a for-profit, private, participant funded transmission line or facility or other uses not needed for system reliability. Vote 15-2.
HB 1395, revoking amendments to supreme court rules 50 and 50-A. MAJORITY: OUGHT TO PASS. MINORITY: INEXPEDIENT TO LEGISLATE.
Rep. Gregory M Sorg for the Majority of Judiciary: The rulemaking authority of the supreme court under Part 2, Article 73-a of the New Hampshire constitution is limited to “rules governing the administration of all courts in the state and the practice and procedure to be followed in all such courts.” Notwithstanding this express limitation, the supreme court on December 29, 2010, ostensibly under authority of Article 73-a, issued a rule, to take effect on March 1, 2011, requiring attorneys to create or maintain a pooled interest-bearing trust account for clients’ funds nominal in amount or to be held for a short period of time, and to remit the interest earned to the New Hampshire Bar Foundation. The court was thus requiring attorneys to generate money to send to an organization founded by the court and administered by trustees appointed by the court, in order to support charitable activities approved by the court. The separation of powers enshrined in Part 2, Article 37 forbids the creation by the judicial branch of a parallel welfare state in which the supreme court is judiciary, legislature and executive all rolled into one, while the Thirteenth Amendment to the federal constitution forbids slavery or involuntary servitude, even of lawyers. Part 2, Article 73-a creates no exception to either proscription. Vote 13-4.
Rep. Lucy M Weber for the Minority of Judiciary: Attorneys maintain trust accounts to hold funds belonging to clients separate from funds belonging to the attorney or the law firm. When a significant sum belonging to one client is held for more than a few days, that client’s money is put into a separate bank account, and the interest on that bank account goes to the client when the account is closed, just as it would if the funds were held by a real estate agent or other agent. A trust account for pooled client funds is used only for small amounts of client money, or larger sums held for a very short period of time. Because the interest on this account does not belong to the attorney, lawyer’s trust funds accounts used to be put into non-interest bearing accounts. Obviously, the entity benefitting from the accrued interest on a non-interest bearing trust account is the bank. Some years ago, the supreme court created the IOLTA program—Interest On Lawyers’ Trust Accounts. Rather than being retained by the banks, the interest on IOLTA accounts is remitted by the bank holding the account to the Bar Association to be used for the provision of legal services to those in need, and for legal education programs.
Proponents of this bill argue that the accrued interest belongs to the client, and that the supreme court has no power to require the payment of the accrued interest to the Bar Foundation. The minority notes that this bill does not return this interest to any client. It would be impractical, in any case, to try to compute how much of each day’s interest has accrued to each client with funds in the lawyer’s trust account. Passage of HB 1395 simply reverts to the old standard of allowing the bank to keep any interest that would otherwise accrue on the lawyer’s trust account. The minority believes that the inherent power of the supreme court to regulate the practice of law includes the power to require attorneys to participate in the IOLTA program.
HB 1396, restoring and reinforcing the exemptions from levy, sale on execution, and liability to be encumbered or taken for the payment of debts of the homestead right. MAJORITY: INEXPEDIENT TO LEGISLATE. MINORITY: OUGHT TO PASS.
Rep. Robert H Rowe for the Majority of Judiciary: This House bill was killed by the Senate in 2011; the sponsor resubmitted the bill in 2012. The bill relates to citizens’ residential homestead right and the result of one decision by the New Hampshire Supreme Court. Homestead is a right each homeowner has in his/her owned real estate. The right goes back hundreds of years and without any controversy until the attorney for one party lost the appeal as a result fraud perpetrated on the mortgaging bank. Homestead is the legislated dollar amount that creditors cannot take from property owners by suit or bankruptcy. The facts in the subject case that motivated this bill are as follows. A man and woman in a relationship mortgaged their homestead to a bank, and, as normal, waved their homestead rights. The owners separated. One party took out a new mortgage and had a friend come to the closing and forge the signature of the other owner. Criminal fraud was committed against the bank. The bank foreclosed on the second mortgage and did not allow the remaining owner the homestead interest. The sponsor, who was the remaining owner’s attorney argued that since she did not sign the new mortgage and wave her homestead interest that she should retain her homestead interest. The court saw that she had waved her right in the first mortgage and sided with the mortgaging bank. A total change in this historic right is unnecessary based on one court case alone, where fraud on the bank was an issue. The committee believes that the passage of this bill might have a negative impact on future lending practices that would result in all citizens suffering. Vote 9-6.
Rep. Gregory M. Sorg for the Minority of Judiciary: This is the exact same bill that last year, as HB 305, was approved by the Judiciary Committee 16-0 and passed by the full House on the consent calendar, but which ultimately died in the Senate. It would amend the homestead law, RSA Chapter 480, in order to change a rule established in the 2007 case of Chase v. Ameriquest Mortgage Co., 155 N.H. 19. Until Chase, it had been widely understood that a person’s statutory homestead interest (currently $100,000) was exempt both from levy or sale on execution and from liability to be encumbered or taken for the payment of debts, unless encumbered in strict compliance with one of the four specific exceptions of RSA 480:4. In Chase, however, the Supreme Court used the doctrine of equitable subrogation, to the extent of the amount of the new mortgage-secured loan that was used to pay off the old one, it recognized an equitable lien on Mrs. Chase’s statutory $100,000 homestead exemption in favor of the foreclosing mortgage lender, even though her signature on the mortgage being foreclosed had been forged. This bill would clarify that the homestead law excepts homesteads from applicability of the common law doctrines of equitable subrogation and unjust enrichment; that the right of creditors to be secured is subordinated to the broader social benefit of preventing destitution and homelessness of mothers and children; and that the purpose of the homestead exemption is to safeguard to debtors and their families the shelter of the homestead roof.
LEGISLATIVE ADMINISTRATION
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 1227, relative to disqualification of certain members of the general court. MAJORITY: OUGHT TO PASS WITH AMENDMENT. MINORITY: INEXPEDIENT TO LEGISLATE.
Rep. J. Michael Ball for the Majority of Legislative Administration: The New Hampshire General Court is a true citizen legislature, comprised of members who work in a wide variety of professions while simultaneously performing their legislative duties. Our state benefits from the expertise our members bring to the state house by virtue of their respective work experiences. Unfortunately, there are some professions that are incompatible with service as a legislator. This bill clarifies that no member of the general court can hold their seat while simultaneously in the employment of a political party, a committee of a political party or a lobbyist. This bill harkens back to the earliest days of the general court when issues arose about legislators serving while being paid advocates for a cause. It is one thing for a legislator to be employed in their civilian career and another thing entirely for a legislator to be employed as an advocate for causes before the general court. This bill will enable our citizens to be secure in the knowledge that their representatives have a primary allegiance to the public and are not beholden to the directives of a particular party or special interest by virtue of their employment. Vote 10-2.
Rep. Mary Jane Wallner for the Minority of Legislative Administration: The bill carves out one group of people who are excluded from serving in the New Hampshire legislature. The bill appears in conflict with our constitution. The voter knows when they are voting if the person who is running has a conflict. The voters will make their decision.
MUNICIPAL AND COUNTY GOVERNMENT
HB 1271-L, relative to the penalty for violating ordinances governing hawkers and peddlers. MAJORITY: INEXPEDIENT TO LEGISLATE. MINORITY: OUGHT TO PASS.
Rep. Timothy D Copeland for the Majority of Municipal and County Government: This proposed bill reduces the penalty phase from a class B misdemeanor to a violation offence. The original intent of the existing law was to allow local towns to help protect their residents from nefarious vendors who use door-to-door sales as a ploy to commit crimes. The protection lies in the ability of towns to develop a local ordinance for vendors that requires a criminal record check. Presently, a vendor who has class B misdemeanor conviction would be found out through this licensing process. If this same illegitimate vendor then attempted to ply his trade in another community and that community conducted a record check as part of the licensing process, that community would learn of his criminality and deny the license. By changing this law as proposed in this bill, violation level convictions would not be tracked and therefore, communities would not be able to learn of a criminal history by a vendor applicant. Further, this proposed change is contrary to the most recent change for RSA 31:102-a, which was adopted on Sept 11, 2010, that now allows local communities to work with the state to conduct more stringent criminal record checks on vendors protecting our citizens from preying criminals. Shouldn’t that take precedence here, why would we want criminals to have the upper hand on our citizens? Vote 9-4.
Rep. John A Burt for the Minority of Municipal and County Government: A "vendor" is someone who offers something for sale. A vendor - a hawker or peddler - is someone who sells either a service or a product. The first and most troubling feature of New Hampshire's existing hawker's and peddlers law is that it is too broad and ill defined. This defect naturally leads to the second most troubling feature of the law which is that it creates as many ways to criminalize vendor activity across New Hampshire as there are towns and cities in New Hampshire. Under existing statute, what would be perfectly legal for a vendor to do in the way of promoting sales in one town or city could easily be a misdemeanor offense in an adjacent town. In other words, a vendor could be prosecuted for criminal activity in one town but not another. It is alarmingly obvious that over time, as towns and cities pick and choose from the statute's broad menu of potentially criminal activities in the creation of hawker and peddler ordinances, this dangerous flaw will become amplified and exacerbated and acts of injustice will proliferate. The definition of what is or is not a criminal act ought to be uniform across New Hampshire and never subject to the whim of boards of selectmen, town councils or aldermen. For this reason if for no other, the penalty for violating any hawker's and peddlers license under the present statute should never be anything greater than a violation.
HB 1294, relative to applications for abatement of property taxes. OUGHT TO PASS WITH AMENDMENT.
Rep. John A Burt for Municipal and County Government: This bill makes some simple changes to make the process easier for taxpayers to apply for a property tax abatement, either themselves or through a representative. The amendment allows a guardian or heir to apply for an abatement if the property owner of record is incapacitated or recently deceased. Vote 15-2.
HB 1689-FN, relative to taxation of Pease development authority property. MAJORITY: INEXPEDIENT TO LEGISLATE. MINORITY: OUGHT TO PASS.
Rep. John A Burt for the Majority of Municipal and County Government: The intent of this bill was to cancel a section of HB 2 which reiterated that the hangars at the Skyhaven Airport inRochester NH were exempt from property taxes by the City of Rochester. The aforementioned section was not the only law that protected these properties from taxation but was a belt-and-suspenders assurance because of attempts by the city to assess taxes. The City of Rochester has been offered the airport for over twenty years by the state. The city kept holding out for the state to make greater investments so that the revenue from hangar rents and fuel sales would pay for the operation of the airport. It has always been a close thing whether the revenue would support the operation. The city knew this and that was why it kept stalling on the take-over. The state finally gave up on the city ever taking the airport over, and it was assigned to the Pease Development Authority with the hope that if the revenues did not support the costs, the PDA could afford the costs. It appears that the city now feels that if there is a new group that can cover the costs, that they can now take advantage of that, and tax the airport without fear of losing this valuable community asset. This is short sighted and hostile to the state maintaining its network of airports. The city could have owned the airport for nothing but did not want the risk. The city's reluctance to take on the responsibility should not now be rewarded by removing the tax exemption that has been in effect since the hangars were built. Vote 7-6.
Rep. Kris E Roberts for the Minority of Municipal and County Government: This bill is an attempt to repeal an earmark that was inserted in HB 2, Chapter 224, Laws of 2011 which resulted in very few people having the opportunity to vote up or down based on its merits. As a result of the passage of HB 2 the Pease Development Authority was granted a special tax exemption which gave it an unfair advantage over other publicly own airports in the state. The Keene airport, which is located in Swanzey, owns aircraft hangers which were built with public funds and leased out to private aircraft owners which pay their lease payment to the City of Keene and property tax to the town of Swanzey. Since the cost of hanger rent is a major factor where pilots base their aircraft, HB 1689-FN would provide the Pease Development Authority a two-fold unfair economic advantage over other airports required by law to charge property tax while ensuring that Pease Development Authority would have greater access to the local share of the aircraft registration fees. Furthermore the earmark granting Pease Development Authority the authority to not charge property tax on public property or land leased to non-government agencies or private individuals creates a separate class of citizens in New Hampshire which could result in numerous court challenges. The committee was told that the financial viability of the airport is totally dependent on its ability to lease out the hangers with the agreement that the renters would be exempt from local property taxes. If the financial future of the airport is based on a small number of privately owned aircraft, is that really a risk that the state of New Hampshire willing to take?
PUBLIC WORKS AND HIGHWAYS
HB 1257-FN, eliminating the tolls on the Everett turnpike in the town of Merrimack. INEXPEDIENT TO LEGISLATE.
Rep. Dale R Sprague for Public Works and Highways: To recap the history of tolls in Merrimack, in the early 1980’s the Merrimack legislative delegation and the Merrimack town council were unified in their support of these three exits being tolled as the way to pay for the considerable turnpike improvements that were requested in Merrimack. The NH Turnpike system spent 49 million dollars in the construction of Exits 10, 11 and 12, as well as portions of Industrial Drive and Camp Sergeant Road (from the intersection of Old Camp Sergeant Road south of Exit 10 all the way to Route 101A), which greatly improved east/west travel throughout Merrimack without a toll. There turnpike improvements were instrumental in attracting commercial users (such as Fidelity and Digital, industries and residential developments to locate in Merrimack. The New Hampshire turnpike system continues to own, operate and maintain (pave, stripe, plow and salt) these sections of roadways at turnpike expense. Removing these tolls would shift a heavier burden on other toll payers in the turnpike system located in other areas of the state creating another form of donor communities. Furthermore, none of the principal of the bonds to build these roads has yet to be paid off. However, the town of Merrimack has received millions of dollars in property taxes as a direct result of these turnpike system improvements. In light of these facts, and because of concerns of precedence and fairness throughout the turnpike system, the committee unanimously voted this bill as inexpedient. HB 1369, relative to the location of overhead tolling on the F. E. Everett Turnpike and HB 1192, establishing an E-Z Pass commuter discount, have both been referred to Interim Study to cover possible legislation to address these outstanding turnpike issues. Vote 14-0.
HB 1412, requiring the department of transportation to post signs on roads that cross the border into Massachusetts. 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.
RESOURCES, RECREATION AND DEVELOPMENT
HB 1140, relative to the care of war memorials in Franconia Notch state park. MAJORITY: OUGHT TO PASS. MINORITY: REFER FOR INTERIM STUDY.
Rep. Peter S Bolster for the Majority of Resources, Recreation and Development:. This bill will affirm the special memorial status of Franconia State Park dedicated to War Time Veterans in the 1920’s. It retains flexibility to the State Park Service to improve and maintain the park in a manner consistent with the enjoyment of this resource for all people. Vote 12-3.
Rep. Judith T Spang for the Minority of Resources, Recreation and Development: The minority supports this initiative to assure that the war memorials in Franconia State Park be not only protected, but maintained in a way that assures the public the opportunity to honor those who have served our country. However, the minority prefers that the problems in this bill be corrected by the committee before it leaves our hands.
HB 1436, establishing a committee to oversee the management of natural resources by the department of resources and economic development. MAJORITY: OUGHT TO PASS. MINORITY: INEXPEDIENT TO LEGISLATE.
Rep. Andrew Renzullo for the Majority of Resources, Recreation and Development: This bill looks to establish an oversight committee relative to the management of natural resources by the department of resources and economic development. This would include the park system and forest and lands. This would not be something new. There are other legislative oversight committees. For instance, there is one such committee relative to health and human services. Whereas our laws are an intricate legal web constantly building on what came previously and whereas, many of the laws and programs governing natural resources find their genesis in state and federal actions which are constantly in flux, the committee would periodically review the statutes under which the department operates to ensure they are current and identify areas where adjustments may be necessary. The committee would monitor the efficiency of operation and the quality of service provided, the efficacy of selected programs, trends affecting program costs and participation. The committee may make recommendations to the commissioner and recommendations for legislation as indicated by its findings. The committee would maintain communications with the department, and any other departments, as necessary to accomplish its work. The oversight committee would also review the effectiveness of the many subcommittees, councils, task forces, and other ancillary bodies of the department. Most importantly, this oversight committee will be a good communication device between the responsible committee leaderships, majority and minority, of both bodies of the legislature and the administration. It should be noted that the (DRED) commissioner states, “The Department of Resources and Economic Development supports the concept behind the bill where greater understanding and cooperation be developed between the legislature and the agency.” Vote 12-4.
Rep. James D Aguiar for the Minority of Resources, Recreation and Development: There are over 20 committees involved with the department of resources and economic development. This bill establishes a committee to oversee the department of resources and economic development (DRED). The minority will admit that there have been practices, decisions and rules established by DRED which at times have confounded members of the committee. However, this oversight committee appears to be planted on the slippery slope of micromanagement. The list of areas to be supervised by this proposed committee is extensive and overly ambitious. One would expect a serious review of such matters to require a committee meeting at least weekly, yet the bill proposes meeting once every two months. It is difficult to conceive of meaningful guidance coming from a committee meeting so sporadically. There is also no fiscal note to determine the possible costs for what will undoubtedly be considerable costs for the agency staff in responding to committee requests. The minority knows that the RR and D Committee currently has authority to call staff members from DRED before the committee to deal with specific matters deemed problematic. This would be a much more productive use of RR and D time as well as that of the administrators and staff of DRED.
SCIENCE, TECHNOLOGY AND ENERGY
HB 1305, reestablishing the exemption from property taxation for telecommunications poles and conduits and establishing a committee to study how utilities are taxed by the state and municipalities. MAJORITY: OUGHT TO PASS. MINORITY: INEXPEDIENT TO LEGISLATE.
Rep. Frank R Holden for the Majority of Science, Technology and Energy: The extension of the property tax to telecom utility poles is a new tax. While the exemption from property tax is somewhat unique, this new tax will ultimately be passed on to the customers. In fact the PUC approved a 99 cent per line “municipal property tax” charge for FairPoint to start billing in April as a direct result of this tax. There was, at one point in time, a statewide tax on these utility poles which was ended in lieu of the Communications Service Tax (CST). Allowing municipalities to tax these poles will result in a double tax which will be paid primarily by land line customers, putting them at an even greater disadvantage. This new double tax is not conducive to making New Hampshire more business friendly and creating jobs. The committee also heard that there was a wide disparity in the ways municipalities were attempting to asses these poles and if they were going to be taxed it should be in an even handed, fair and transparent manner. This bill establishes a long overdue committee to study how all utilities are taxed by the state and municipalities. Meanwhile, this new tax should be stopped immediately by reestablishing the long-standing exemption. Vote 13-1.
Rep. Beatriz Pastor for the Minority of Science, Technology and Energy: The property tax exemption for wooden poles and conduits owned by the telecommunication companies expired on July 1, 2010. Since that time, the House has had opportunity but not acted to reinstate that exemption. By exempting telephone poles and conduits from property taxation, this bill would shift the property tax burden away from companies like FairPoint and Comcast and onto all other taxpayers. If one taxpayer receives a tax exemption, all other taxpayers are paying for it. Thus, one could claim that an exemption for telephone poles is simply a subsidy funded by a tax increase on all other taxpayers. Supporters claim poles should not be taxed because different towns assess them at significantly different values. It would seem, however, that if there are problems of inconsistent assessing, the solution is to improve assessing standards, not to give the industry a free ride. The pole exemption has not existed in New Hampshire for almost two years and telecommunication companies began paying property taxes on their poles and conduits in 2011. Reinstating the exemption now will reduce municipal revenues, disrupt municipal assessing and shift more property taxes onto local taxpayers. The legislature has already shifted too many burdens onto municipalities and local property taxpayers in recent years. This bill continues that unfortunate trend. It will result in a tax increase of approximately $5 million to $6 million for New Hampshireproperty taxpayers. It is a corporate subsidy at taxpayer expense, and should be opposed.
SPECIAL COMMITTEE ON REDISTRICTING
HB 1670, apportioning executive council districts. MAJORITY: OUGHT TO PASS WITH AMENDMENT. MINORITY: INEXPEDIENT TO LEGISLATE.
Rep. Robert H Rowe for the Majority of Special Committee on Redistricting: The subcommittee reviewed seven Executive Council plans including the existing plan adopted in 2002. Of the seven plans, the subcommittee recommended amendment 0518h to the full committee. This amendment provides for more compact districts and the compatibility of communities. The only exception is the second Council District. This district stretches across the state and is the least compact of the five districts. While the committee would desire a more compact district, it must be recognized that the current second district stretches from the coast to the Connecticut River. Nonetheless the committee is confident that the bill as amended meets all Federal and State requirements. Vote 11-4.
Rep. Lucy M Weber for the Minority of Special Committee on Redistricting: One look at the map of the proposed Executive Council districts is all that is needed to see what is wrong with this proposal. Only District One makes sense. The boundaries of Districts Three, Four and Five are convoluted. District Two now resembles a dragon that has swallowed a medium sized mammal. This most tortuous of districts starts at the Connecticut River with Charlestown and Walpole, curves south to include Keene east to Marlborough to Dublin, then curves north only to bulge out again around the Concord area, from whence it zigzags east in a line a single town wide until it reaches the seacoast and curves south again to end at Portsmouth. Proponents of the plan argue that it preserves continuity with the current plan. However, in the proposed plan, significant population centers have been switched from one district to another. Three members of the minority agree that continuity is to be encouraged. Because the current Executive Council districts, without any modification whatsoever, fall well within the acceptable deviation range, three members of the minority would recommend that they remain unchanged. The fourth member of the minority would favor a different redistricting plan.
HB 1718, relative to judicial review of electoral districts. MAJORITY: OUGHT TO PASS WITH AMENDMENT. MINORITY: INEXPEDIENT TO LEGISLATE.
Rep. David W Hess for the Majority of Special Committee on Redistricting: This bill does three things. First, it provides for the expeditious judicial review of challenges to electoral districts. As such, it merely codifies the past practice of the courts in handling such challenges. Further, it contemplates that any such challenge can be entertained in the first instance in either the superior or supreme court. Second, it requires the expedited filing of any appeal from the superior court to the supreme court, specifying that any appeal must be filed within five days after the date of the decision in the lower court, rather than the standard thirty days. It is also the intent of this legislation to bypass the standard procedural rule requiring a motion for reconsideration and decision on that motion before an appeal can be filed. Finally, the bill specifies that the speaker of the house and the president of the senate must be joined as necessary parties to any case challenging the validity of their house and senate electoral districts respectively, and that as parties, they may be represented by separate counsel of their own choosing. However, the bill makes clear that such separate representation shall not be construed to relieve the attorney general of its traditional duty to defend duly enacted statutes and represent the state in such cases.Vote 11-4.
Rep. Steve Vaillancourt for the Minority of Special Committee on Redistricting: This bill, as originally filed, demands that the superior court shall hear and rule on any redistricting law suits not later than ten days following the commencement of any such action in Superior Court. This is simply not feasible, a fact which even the majority recognized in offering a substitute amendment. After delaying action on redistricting for eight months, the legislature displays the ultimate in chutzpah to expect the court to be able to handle the matter in ten days. The minority is reminded of the book The Little Prince by Antoine de St. Exupery. The Little Prince lived on such a small planet that he could witness a sunset simply by taking a few steps. When he visited a large planet ruled by a king, the Little Prince longed for a sunset and asked the king to order one. Alas the king could not make such an order contrary to the laws of nature, so the Little Prince demanded to know how such an absolute ruler could not demand absolute obedience. In positing this bill, the majority assumes the role of the Little Prince who thinks he can get his way whenever he wishes. The king, attempting an explanation, asked the little prince who would be wrong if the king demanded that a man sprout wings and fly like a bird. Would the man be wrong for failing to carry out such an order or would the king be wrong for issuing such an impossible order? Obviously, the king would be wrong and obviously the House is wrong if it attempts to pass such a bill as this. Howie Zibel, representing the Supreme Court, assured the committee that the court would do everything in their power to handle any law suit in as expeditious a manner as possible. In opposing the bill, he asked that a bit of comity be displayed between branches. The minority believes that in pushing such a bill, the House displays more comedy than comity. The bill, even as amended to insist that any appeal be filed within five days, is totally unnecessary and could do more harm than good. Since this bill could be challenged in court, it might actually slow down rather than speed up any redistricting court action. Most likely, this bill would have as little impact as the House’s order to cities to get their ward maps drawn by January; that bill has not advanced beyond the Senate, and January is long gone. Also, legal experts are quick to note than any good barrister could meet the five day requirement with a rudimentary appeal and fill in details later. The minority asks that we display a bit of comity and common sense and ITL this bill and the amendment. It’s time for us to stop huffing and puffing and demanding things which just aren’t possible, especially since we are the most guilty of delaying the process.
TRANSPORTATION
HB 1693-FN, relative to motor vehicle inspections. INEXPEDIENT TO LEGISLATE.
Rep. Lisa E Scontsas for Transportation: The committee has once again exhaustively reviewed the issue of changing New Hampshire’s vehicle safety inspection program. HB 1693 is dangerous public policy for New Hampshire. It would increase the risks of accidents and injuries and decrease the safety of our public roadways. Vehicles in our state fail their annual safety inspection at a rate of 20% or greater. All of our neighboring states (Maine, Massachusetts, Vermont, and New York) conduct annual vehicle safety inspections. Due to our climate and road conditions, annual inspections are right for NH as well. The most recent state study (PA) on the issue concluded that “nationally, vehicle safety inspection programs appear to be a significant factor in lowering fatal crashes.” The committee heard testimony that the bill will double sticker costs, raise inspection costs, and undoubtedly raise vehicle repair costs. We are all aware that preventative maintenance such as an annual inspection or a doctor’s physical save on long term costs. We heard testimony that the bill could put NH in a status of non-compliance with our Clean Air Act State Implementation Plan and put at risk an estimated $300 million of federal highway funds. There is very little public backlash against the current system. The committee heard from no one in favor of the bill other than the prime sponsor, but a great deal of vocal opposition. The NH inspection program is a free-market based system that works and benefits our citizens and public safety. A majority of the committee, by a vote of 12-1, recommends to ITL this bill that will have a negative impact on public safety and our constituents. Vote 12-1.
LAID ON TABLE
HB 162-FN, relative to capital murder for purposely causing the death of another. (Pending question: adoption of committee report of ought to pass.)
HB 448-FN, relative to spice incense products. (Pending question: adoption of committee report of inexpedient to legislate.
HB 475-FN, relative to penalties under the consumer protection act. (Pending question: adoption of committee report of ought to pass.)
HB 494-FN, relative to tipped employees who deal card and table games at games of chance venues. (Pending question: adoption of majority committee report of ought to pass with amendment.)
HB 591, relative to the determination of parental rights based on the best interest of the child; relative to grounds for modification of an order regarding parental rights and responsibilities, and relative to grandparent and stepparent visitation rights. (Pending question: adoption of majority committee report of inexpedient to legislate.)
HB 1147, proclaiming March 31 of each year as a day to remember Terri Schiavo. (Pending question: adoption of the committee report of inexpedient to legislate.)
HB 1413-FN, directing New Hampshire to withdraw from the No Child Left Behind Act. (Pending question – adoption of the majority committee report of ought to pass.)
HB 1517-FN-L, prohibiting the state and any political subdivision from entering any agreement implementing any provision of the No Child Left Behind Act without prior approval of the general court. (Pending question – adoption of the majority committee report of ought to pass.)
HCO 1, relative to implementing an election pursuant to representative districts established in the order.
SB 168-FN, conforming the interest and dividends tax to federal tax definitions. (Pending question: adoption of the majority committee report of ought to pass with amendment.)
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