After 200 years, the Crown would Feel at Home Here Again - Granite Grok

After 200 years, the Crown would Feel at Home Here Again

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by Charles G. Douglas, III 

Where Do You Go To Challenge Illegal Government Decisions When The Courts Close You Out?

China and Russia have an approach to government responsibility that places the powers of government above and over the people.  Our system is the reverse.  Our 1784 Bill of Rights in Part I, Article 8 clearly says the following:

All power residing originally in, and being derived from, the people, all the magistrates and officers of government are their substitutes and agents, and at all times accountable to them.

Unfortunately, that right of accountability has been denied time and time again in recent years by court decisions making government less and less accountable to our individual citizens by closing the courthouses to taxpayers.

HISTORY OF TAXPAYER SUITS

As far back as 1863, the New Hampshire Supreme Court held that taxpayers have a legitimate interest in the disposition of their tax dollars.  In Merrill v. Plainfield, 45 N.H. 126 (1863), for example, the plaintiffs were taxpayers who objected to using tax money for the selectmen to pay for defending proceedings concerning election fraud.  The court recognized the standing of the taxpayers insofar as they were “residents and tax-payers in said town, and that they fear said money will be paid over according to said vote, unless the town and its present officers are restrained by injunction.”

Since the 1800s the Supreme Court expanded the standing of taxpayers so that they no longer had to rely on showing personal financial loss.  For instance, in Clapp v. Town of Jaffrey, 97 N.H. 456 (1952), the court considered whether taxpayers had standing to sue despite their inability to show any financial loss to the town, but merely based upon their interest in efficient government.  The court held, “it is plain that every taxpayer of a town has a vital interest in and a right to the preservation of an orderly and lawful government regardless of whether his purse is immediately touched.”

This principle was echoed in Green v. Shaw, 114 N.H. 289, 292 (1974), which held:  “This right of taxpayers to maintain an equity action for relief is not dependent upon showing that the illegal acts ‘result in financial loss to the town’ since every taxpayer ‘has a vital interest in and a right to the preservation of an orderly and lawful government regardless of whether his purse is immediately touched.’”  The Supreme Court also held that it is well settled in this state that plaintiffs, as taxpayers, have standing to seek redress for the unlawful acts of their public officials.”  114 N.H. at 291-92 (1974) (citing O’Neil v. Thomson, 114 N.H. 155 (1974)).

 

CHANGE IN THE LAW

However, five years ago in the case of Baer v. N.H. Dept. of Education, 160 N.H. 727 (2010), all of these longstanding taxpayer standing cases were turned aside.  The State Supreme Court in Baer said in the context of litigation concerning a Concord school district bond issue:

Our case law contains two conflicting lines of cases regarding taxpayer standing to bring a declaratory judgment action.  Under one line of cases, we have permitted taxpayers to maintain an equity action seeking redress for the unlawful acts of their public officials, even when the relief sought was not dependent upon showing that the illegal acts of the public officials resulted in a financial loss to the town.  Green v. Shaw, 114 N.H. 289, 291-92 (1974).  We have reasoned that “every taxpayer has a vital interest in and a right to the preservation of an orderly and lawful government regardless of whether his purse is immediately touched.”  Id. at 292.

More recently, however, we have required taxpayers to demonstrate that their rights are impaired or prejudiced in order to maintain a declaratory judgment action.

We find our more recent analysis of taxpayer standing to be more consistent with the language of RSA 491:22.

Baer decision at page 730.

The Supreme Court then concluded:

Accordingly, we hold that taxpayer status, without an injury or an impairment of rights, is not sufficient to confer standing to bring a declaratory judgment action under RSA 491:22.

Baer at page 731.

The 2010 Baer ruling was based solely on the court’s new interpretation of RSA 491:22.  Thus, the legislature was free to amend RSA 491:22 to clarify it to again permit taxpayer suits to challenge governmental actions.  Rather than some bold new departure, the 2012 amendment to RSA 491:22 merely returned us to where we were from 1863 until 2010.

However, last year in the case of Duncan v. State of New Hampshire, 166 N.H. 630 (2014), the Supreme Court said the newly amended statute was unconstitutional:

Taxpayer Duncan challenged a business profits tax credit for private schools as violating the State Constitution’s clause about no aid to religious schools.

Because the petitioners fail to identify any personal injury suffered by them as a consequence of the alleged constitutional error, they have failed to establish that they have standing to bring their constitutional claim.

We hold only that the generalized interest in an efficient and lawful government, upon which the petitioners rely, and the amendment to RSA 491:22 which purports to confer standing, are not sufficient to meet the constitutional requirements necessary for standing to exist.  Duncan p. 648.

The only way out is a constitutional amendment like CACR 5 to restore balance to the system of checks and balances on government.

 

ACCOUNTABILITY FOR INJURY OR HARM TO CITIZENS

Almost 1,300,000 people can be held accountable and responsible for their actions in negligence suits in this state.  That includes the 21,000 people employed by state government and state higher education systems.

However, starting in November of 2013, the 60,000 people working for towns, cities, schools and counties as well as their employing governments are the only ones immune from suits for their negligent acts or omissions.  RSA 507-B:2, enacted in 1975, was read by the Supreme Court in Dichiara v. Sanborn Regional School District 164 N.H. 694 (2013) for the first time to limit negligence cases to only situations where the injury across out of a local or county government’s ownership, maintenance or operation of a motor vehicle or premises like a school sidewalk.

Our state and local governments are growing ever larger and are doing more and more things to affect all of your constituents.  Yet as government has grown, it is less and less accountable to the citizens it serves.

Some may say that we can’t afford to compensate citizens harmed by the government’s misconduct.  Really?  Well, just how much do our governments spend each year?

Counties                    $   490,000,000
Cities & towns          $2,000,000,000
Schools                       $2,840,000,000
State                            $6,117,000,000

That is a total of $11,447,000,000 in annual non-federal government spending in our state.  Why shouldn’t that big business be accountable to those it injures?  Why should the injured taxpayer bear all the expense and loss?

The statist monarchy view of government can be seen in two more examples:

Injunctions
Citizens and corporations can be enjoined by courts. State government cannot be enjoined in state court.  Lorenz v. N.H. Admin. Office of Courts, 152 N.H. 632, 636 (2006).

We are not a monarchy where the king is never wrong.  We need to restore fairness to the citizens who pay for government, rather than making our governments ever more unaccountable to us.

Statutes of Limitation
3 years for citizens and corporations to bring a claim (RSA 508:4). “Time does not run against the king.”  The state has unlimited time to seek civil penalties.  State v. Lake Winnipesaukee Resort, 159 N.H. 42, 49 (2009).

After 200 years, the Crown would feel at home here again.

 

 

H/T Ed Naile

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