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August 6, 2009

Ovide Lamontagne: I would have voted NO

Potential Republican Senate candidate Ovide Lamontagne weighs in on the Sotomayer vote. Anyone care to guess how Judd Gregg's hand-picked successor, Kelly Ayotte would have voted, given that her benefactor cast his vote in the affirmative? 

(MANCHESTER) - Ovide Lamontagne, potential candidate for U.S. Senate in New Hampshire, made the following statement today regarding the confirmation of Judge Sonia Sotomayor to the U.S. Supreme Court. 

Providing “advice and consent” on a nomination to the U.S. Supreme Court is among the most important duties facing a Senator.  Supreme Court Justices are appointed for life, and they have extraordinary power.  Our government is based on the principle of three separate and independent branches of government which serve as checks upon one another.  Our Constitution demands this independence, and Americans expect and deserve this independence.  I strongly believe that the Constitution requires that the use of that judicial power must be restrained.  Put simply, judges apply and interpret the laws duly enacted by our elected representatives; judges must not make the law.

Judge Sotomayor has a truly remarkable life story which every American can admire.  The child of Puerto Rican parents who spoke no English upon arriving in New York, she taught herself English and became an outstanding student at both Princeton University and Yale Law School. 

Professionally she has continued to succeed and accomplish a great deal, first as a prosecutor and most recently, as a judge on the U.S. Court of Appeals.  There is no doubt that Judge Sotomayor possesses the experience and qualifications to be considered as a Supreme Court nominee.

 

Continue reading "Ovide Lamontagne: I would have voted NO" »

May 26, 2009

Yeah, she's got a real deep respect for the law all right...

Can you imagine if this was a conservative judge making light of some point of law and it was caught on tape? You think "moderate" Republican Senators will have any problems with this? This video should be all it takes to send this nominee packing:

 

 

And really, is she imitating Whoopi Goldberg or something?

May 18, 2009

Best example of a definition of Lib judicial activism I've seen so far

Betsy's Page has a great line as she blogs about a Stuart Taylor piece:

He once again debunks the myths that have grown up around the Lily Ledbetter case. Plus that was a case that proved that you didn't need judges with empathy. The Supreme Court applied the law as written. Congressmen didn't like the result and they changed the law. That is all that judicial conservatives are advocating - put the decision-making in the branches of government that are responsive to the electorate and which are given that responsibility by our Constitution.

If that is what judges did, conservatives would not complain.  Here's the case, apply the standard of the law, rule the case to the law.

Don't like the outcome?  Change the law.  Until then, obey the law.

Empathy should not be a trait that judges of the law and umpires use at the upper end of sports.

Yes, as a "Swim team Dad" who ran youth meets, I and others would judge 8 & unders differently than we would the high school athletes.  That said, I also disqualified those same younger swimmers and teams when it became real obvious that the rules were broken (and yes, I did DQ both my sons when it was warranted - it made for a VERY long ride with The Most Esteemed Wife and offspring afterwards). 

That said, look at the anger vented towards sports umpires / referees when the teams and crowds get the impression that the rules are being set aside and a team or athlete is being favored "just because" (re: pro sports, Olympics). 

The law should not be different - the Constitution lays out the rules and roles - it should be followed. Judges should be concerned with the outcome only to the point that the law has either followed or not.

 

May 5, 2009

Supreme Politics

Souter

by Ed Mosca

Byron “Whizzer” White was appointed to the Supreme Court by President Kennedy in 1962.  By current standards, he would be considered a far-right conservative.  He dissented in both Miranda and Roe, calling the latter “an exercise in raw judicial power,” while he authored the majority opinion in Bowers v. Hardwick, which upheld a Georgia anti-sodomy law.  White resigned from the Supreme Court in 1993, the first year of Bill Clinton’s presidency. White could have allowed a Republican President to name his successor by resigning during George H. W. Bush’s presidency or holding out until George W.Bush’s presidency, which would have maintained the Court’s ideological balance.  Instead, he followed the tradition of allowing a President of the political party that appointed him to replace him.  His successor?  Uber-liberal Ruth Bader Ginsburg, which has tipped the Court to the left.

David Souter, in contrast, timed his resignation to prevent a President of the political party that appointed him from replacing him, resigning within months of Democrat Barack Obama becoming President.  This really should come as no surprise because the jurisprudence of David Souter has been a jurisprudence of politics.  When it came to abortion, stare decisis was all important, but when it came to whether there is a constitutional right to homosexual sex, stare decisis mattered not one bit.  Unlike Antonin Scalia and Clarence Thomas, who reach liberal as well as conservative results – for example, upholding flag burning and against limits on punitive damages – Souter invariably came out in favor of the liberal result.  For example, against gun rights, property rights, the death penalty.  For terrorist rights, race-based school admission policies, the regulation of political speech.

Anyone who thinks that President Obama is going to nominate a moderate to replace Souter, in deference to his ambitious legislative agenda, is kidding himself.  Obama is as megalomaniacal about fundamentally changing America as Ahab was about getting Moby Dick.  The “fierce urgency of now” is not just a campaign slogan.  Obama understands that he has a small window of opportunity to effect the dramatic changes he seeks.  A week can be a lifetime politically speaking, and there is no telling what the political landscape will look like after the midterm election or when Obama gets to make his next Supreme Court nomination.

A man who has the ambition and audacity to attempt to simultaneously federalize health care, higher education and energy is not going to blink at adding the confirmation of a far-left judicial activist to his to-do list.  No, Obama is going to swing for the fences with Souter’s replacement.  Expect a supporter of  transgender rights, importing international law into our constitutional jurisprudence, and Miranda-rights for terrorists.  My guess is that Obama will nominate his friend Massachusetts Governor Deval Patrick, whose ratings have sunk like a stone.  He can bail out a buddy, while moving the Supreme Court even further to the left.  Does it get any better than that?

Senate Republicans should attempt to filibuster, not because they will succeed in blocking whomever Obama nominates; they won’t; but because it will give republicans a chance to seize the bully pulpit from Obama, albeit if only for a short while.  They should make the case that Obama’s far-left Supreme Court nominee is just one part of the Obama agenda to make America a far-left country.

March 19, 2009

Hey honey, guess who is moving in next door?

 

Open Jail door

I am wondering if the Liberals are actually intent on turning this county into an insane asylum!  Every day, I'm turning around and seeing more ludicrous ideas, that years ago would have just gotten stares of derision.  Here in NH, an example is HB 415 (aka, the Bathroom Bill which we discussed on MTNP this past Saturday) which will allow men of any intent into any womens' bathroom (or v.v., women into mens' room, which does not enthuse me either). 

Now, it seems that Attorney Eric Holder is intent on letting us all get to be real neighborly like with these folks:

Guantanamo Detainees May Be Released in U.S.

WASHINGTON -- Attorney General Eric Holder said some detainees being held at Guantanamo Bay, Cuba, may end up being released in the U.S. as the Obama administration works with foreign allies to resettle some of the prisoners.

Mr. Holder, in a briefing with reporters, said administration officials are still reviewing individual cases of the approximately 250 detainees to determine which will be put on trial and which may be released to comply with plans to close the detention facility by next year.

And all you have to do is thank A.G. Holder's boss - President Obama!  He's going to re-organize your neighborhood - just for them!

...European justice ministers met with Mr. Holder earlier this week and pressed for details on how many Guantanamo prisoners the U.S. planned to release domestically, as part of any agreement for allies to accept detainees. Mr. Holder said U.S. officials would work to respond to the questions European officials have over U.S. Guantanamo plans.

For "people who can be released there are a variety of options that we have and among them is the possibility is that we would release them into this country," Mr. Holder said. "That process is ongoing and we've not made any determinations or made any requests of anybody at this point."

Usually, words have meanings thought it seems that any word that President Obama seems to have a meaning all to himself.  Doublespeak?  Oh my gosh...

You notice that the above article says nothing about being jailed?  Just the word "released"?

Everything else is going topsy-turvey in what I used to recognize as "normal".  Now, not so much...

December 27, 2008

No good deed goes unpunished...

good samaritan

Thankfully, lawyers were scarce in Biblical days...

The story out of California regarding the "good samaritan" being sued after pulling her friend from a car following a horrific automobile accident is both disturbing-- and uplifting. From Overlawyered.com:

California’s Supreme Court has ruled 4-3 that the state’s “Good Samaritan” law providing tort immunity for rescuers applies only to medical personnel providing medical help at an emergency scene, and not to civilians.

“Although the law does not distinguish between types of emergency care, the court majority said the context shows it was meant to be limited to medical care. The law was part of a package of legislation on emergency medical services, Justice Carlos Moreno said in the majority opinion.” (SF Chronicle).

Unless you’ve got medical training, then, think twice about offering to help.

This is just so wrong. How many times have we watched news stories depicting some poor injured person someplace (the man hit by a car in Hartford, CT some months back comes to mind as but one example) in need with people passing by without helping? Generally most people become outraged at such callousness. But now, thanks to the idiots on the California Supreme Court, this might end up being the rule. After all, why risk your own well-being and station in life? The Overlawyered post continues:

Docbloggers have been discussing the decision since then, with GruntDoc siding with the dissent, SymTym countering on behalf of the majority, and Throckmorton reporting that even being on the right side of the law isn’t enough to provide reassurance nowadays:

“Most of my colleagues are afraid to stop at the scene of an accident and render aid for fear of being sued. The Good Samaritan Law is supposed to prevent this fear of suits but no one seems to believe that it will offer any protection.”

Nice, eh? No wonder people dislike lawyers so much... deservedly so. But, through this, there is one bit of good news, showing that despite all the stupidity, all is not bad. There are indeed, still good people left that really do get it: The Boy Scouts of America. And they have been on this, apparently, since the start of this sad affair. From BSA Legal.org:

 

Continue reading "No good deed goes unpunished..." »

September 14, 2008

Band of brothers... "Law? Fine for thee, but not for me..."

good cop? sure

How many times have you heard someone say this?

"If you get in an accident, and you know you've been drinking, go someplace close by and, in view of many witnesses, proclaim how distraught you are from the event and pound several stiff drinks. THEN, go back to the scene."

And of course, the thought being that, at best, the cops can charge you with leaving the scene of an accident and you'll get off of a sure DWI charge. But, does anybody actually know anybody that has successfully gotten away with such a scheme?

Then there's the trick of rescheduling court dates at the last minute in the hope that the arresting officer will be a no-show, and you'll get off due to that technicality.

Again, despite many prayers and wishes for such luck helping the accused, the reality is that it really doesn't happen all that often... Unless, of course, you're a member of the law enforcement community. Then, all bets are off...

The proof was in the lead story in the September 13 NH Union Leader:

Police Officer Benjamin Beauchemin never lost his driving privileges, despite refusing a Breathalyzer sobriety test after an off-duty car crash last spring.

Beauchemin instead fought to keep his license at a state motor vehicle hearing and prevailed on a technicality when the investigating state trooper failed to show up, apparently because of a court conflict.

See? How fortunate for Officer Beauchemin that a fellow cop somehow just couldn't make it for his hearing. How many times does that happen when it's just an ordinary citizen?

At a rehearing, Trooper Nick Cyr's reason for missing the Beauchemin hearing was deemed insufficient to reopen the case, allowing Beauchemin to keep his license, Curtis Duclos, hearings administrator for the state Department of Safety, said yesterday.

Beauchemin this week was found not guilty in Candia District Court on a driving while intoxicated charge from the May 11 crash.

Beautiful, isn't it? And here's the rest of the story:

Beauchemin has admitted to having one beer before the crash.

He also has said he left the scene of the crash to go to his girlfriend's home, two doors down from the site, where he had four more to calm his nerves.

He later returned to the crash scene, where court records show he refused the sobriety test.

Does anybody think that the above scenario would have happened were Beauchemin just an ordinary, unpriviledged citizen? How much legal expenses were incured on this? Again, Joe Sixpack, in most instances cannot afford the astronomical costs necessary to properly fight a DWI charge. In this story, with Beauchemin's brothers in the law enforcement and other NH gov't communities doing their part for him, it most likely didn't cost him much more than what can be earned back in a few hours of "detail work."

"To Protect and Serve"

(one another, that is...)

When it's ordinary folks, this, this, and this is the normal procedure. Wake up NH!!! The "Live Free or Die" state is rapidly becoming the "Police State". I don't understand how a people that rejects REAL ID as too intrusive on freedom and privacy then turns around and allows the police to get away with what they do here in the Granite State.

NH cop wear..roadblock

 

 

July 20, 2007

Breaking News: Petitioners file "Motion for Reconsideration" in Belknap County Right-to-Know suit.

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The petitioners in the Right-to-Know lawsuit filed against the Belknap County Convention, despite having "won" their case, today filed a Motion for Reconsideration of the ruling. As noted in this prior post, some of the words contained within Judge Bruce E. Mohl's decision, if allowed to stand, could make matters worse when it comes to tarnsparency and openness in government. His ruling, while declaring the plaintiffs position to be correct-- that the Convention violated the law-- unfortunately reaches out and creates a new, smoother path for governemental bodies to conduct business behind closed doors. Additionally, by allowing the result of the law-breaking action to stand, namely for the illegally-appointed Sheriff to assume his duties, the judge has denied the petitioners injunctive relief, effectively rendering their action moot.
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This is the motion as filed today in Belknap Superior Court:
THE STATE OF NEW HAMPSHIRE
BELKNAP, SS                                                                                  
SUPERIOR COURT
Doug Lambert and Thomas A. Tardif
v.
Belknap County Convention
No. 07-E-0140
PETITIONER’S MOTION FOR RECONSIDERATION
            NOW COMES the petitioners Doug Lambert, ProSe and Thomas A Tardif, ProSe motion for reconsideration in the above entitled matter, and in support thereof, the Petitioners say as follows:
            “A motion for reconsideration allows a party to present ‘points of law or fact that the court has overlooked or misapprehended.’” Barrows v. Boles, 141 N.H. 382, 397 (1996)

            The parties provided the Court with all relevant dates and documents pertaining to Petitioner’s right-to-know request in its petition and at hearing.  For the following reasons, the motion for reconsideration should be granted;

Fact and Law

1.      The court acknowledged that ‘On 29 May 2007, the Convention met to discuss the vacancy created in the Office of Belknap County Sheriff, occasioned by the resignation of Sheriff Dan Collis. The Convention voted to go into a nonpublic session pursuant to RSA 91-A:2 to discuss the process for filling the vacancy.(Emphasis added)

 

 

Continue reading "Breaking News: Petitioners file "Motion for Reconsideration" in Belknap County Right-to-Know suit." »

Details on our Right-to-Know lawsuit [UPDATED]

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[UPDATE]: The Citizen newspaper ran an editorial further describing what this all means. Click here to read it.
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One of the stories we missed while we were in technological meltdown this week here at the 'Grok was the victory/ non-victory handed down this week by the judge. Writing in his decision, Presiding Justice Bruce E. Mohl stated:
"the violation of the specific command of RSA 91-A is plain and indisputable. The county delegation should have known that a secret ballot vote in a public session violated that Right-to-Know law on its face."
That was the good news. The citizens have been vindicated. Their government INDISPUTABLY violated the law and it has been so stated in public, for all to hear. Unfortunately, the judge continued in his ruling, reaching out and, in error, created a new, less restrictive means for government to head for the cloak of secrecy offered by the infamous "non-public session." This is not good at all. Some have said we won the battle but lost the war. Wrote Judge Mohl, in his decision:
While the Convention has, without question, violated the Right-to-Know law with respect to the secret ballot decision to appoint Wiggin as Sheriff, the Convention would have been well within its rights to conduct the entire process of selecting the Sheriff in nonpublic sessions. RSA 91-A:3, II (b). The exeption for hiring public employees allows those matters to "be considered and acted upon in nonpublic session..." (Emphasis added.) In this sense, the Convention went further than the Right-to-Know law required, conducting interviews with the two final candidates in public and voting at the public session, albeit by secret ballot.
Except that the Sheriff is NOT an "employee" being "hired"-- click here to this post for the explanation. And the Convention, in their own pleadings to the Court in the case stated
The County Convention specifically proceeded in the manner provided by RSA 91-A:2,II. There is a good public policy reason for the process to be exempted. The process protects and limits animosity being created in which an "elected' individual choosen to fill the unexpired term may not personalize their election in subsequent engagements between that official and the County Convention which authorizes the individual department's budget. Further, as the Convention is a partisan group of representatives, the authorized exemption of the secret ballot election takes the taint of partisan politics out oof the process.
This flies in the face of the very foundation of the Right-to-Know law that calls for openness in government. RSA 91-A:3,  II, (c ) clearly states 
“Matters which, if discussed in public, would likely affect adversely the reputation of any person, other than a member of the body or agency itself,… .”  (Emphasis Added).
Click here to read our original case presented followed by the memorandum of law as submitted to the Court. What follows is the judge's complete decision that has us so concerned:
.

Continue reading "Details on our Right-to-Know lawsuit [UPDATED]" »

February 4, 2007

Education funding problem? No. Dysfunctional governement? Yes.

Attorney Ed Mosca submits the following commentary about the latest nonsense being bandied about as a "solution" to the ongoing education funding mess here in NH:

NO SHAME AND NO SENSE 

In an Op-Ed in the February 2nd Union Leader, ersatz Republican Mark Carter called for a grand compromise on education funding:  a constitutional amendment that allows “targeted aid,” but that also “allows for legal action should the state ever abuse its obligation to our communities.”  Now I’m just as opposed to obligation abuse as the next person, but think for a minute about what this lovely euphemism means.  It means that whenever anyone doesn’t like the result produced by democracy, he can run into court and sue to get his way. 
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Ersatz Republican Carter claims that this “preserves the checks and balances power of the judicial branch.”  What poppycock.  The way that our system of government is supposed to work is that in matters of policy, and that includes education funding, we are supposed to attempt to persuade each other, and then decide the issue by voting.  We are not supposed to sue each other.   
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Carter’s amendment would also write into the State Constitution the canard that the quality of public education is determined by the amount we spend on public education as it requires the State to provide financial assistance whenever a school district lacks the “fiscal capacity” to provide the “opportunity for an adequate education.”  This myopic approach ignores that a variety of factors affect education performance besides spending.  These include the competence of administrators, the quality of teachers, the talent and motivation of students and the involvement of parents.  Because of these variables, the cost of an “adequate education” varies not just by school district, but by student.  This means that in order to reliably calculate the cost of an “adequate education” the calculation must be done on a student-by-student basis and the calculation must account for the particular effect of non-financial variables on each student’s performance. 
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For this and other reasons, defining an “adequate education” and determining its cost is the proverbial fool’s errand.  Yet Carter would make this fool’s errand a permanent part of the State Constitution.  What Carter and his ilk apparently don’t understand is that the State does not have an education funding problem it has dysfunctional government. 
.

Continue reading "Education funding problem? No. Dysfunctional governement? Yes." »

January 1, 2007

NH Predators Act- A tough facade, but will it ever get used?

With each year's passage, we get the annual listings of all the great new laws that go into effect at the stroke of midnight. Here in NH, the one that stands out the most is the new tough child molester law that allows judges to sentence first time offenders to a minimum of 25 years, with the potential for an indefinite time beyond. I am all for this law, but of course, as always, the devil is in the details. The New Hampshire Sunday News reports
The new sexual Predators Act will pressure judges to impose a 25-year minimum sentence on people who sexually assault children under 13, but the sentence will not be mandatory.
Ah-ha! Got that? It "will not be mandatory." Now, given what we all know about liberal-leaning judges that seem to turn up everywhere, what do you suppose the chances of this law actually being put to use really are? The NH Sunday News piece explains:
When judges choose a shorter sentence, they will have to explain, taking into account such factors as the age of the victim, the use of force and the relationship between victim and assailant.
I predict that there will ALWAYS be some "good" reason to NOT invoke the 25 year penalty in the eyes of whatever judge happens to be presiding. This law has been passed to help lawmakers feel good, (and to get Bill O'Reilly off of their backs) but at the end of the day, will be of little consequence. There is ALWAYS someone ready to defend the perp, and accuse the victim. And, in a state where judges get lifetime appointments, they will simply be able, as we have seen in other nationally publicized cases, to scoff at those who don't like it.
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The good news is that predators who don't get put away the first time, and repeat their crime, as they are all pretty much guaranteed to do, will automatically get the book thrown at them for the second offense.
Second offenders who rape young victims or hurt them badly will face life life without parole. Predators who murder children will get 35 years to life.
That is the good element of the new law. Of course, if I were making these laws, I can promise a death-penalty component would be included...

October 17, 2006

"Useful Idiots" by Ed Mosca

Our friend Bill A. in Dover forwards attorney Ed Mosca's latest piece on the education funding boondoggle here in NH. Big spending government types and their liberal adherants can't stand that NH has the smallest state tax-take in the entire USA. Low taxes = small government. Proponents of a so-called "broadbased" tax (i.e. income, sales) have taken their quest to the unelected judges, naturally. As usual, Ed really nails it:

Useful Idiots by Ed Mosca

Lenin is credited with coining the term “useful idiots,” which he supposedly used to refer to supporters of the Soviet Union living in Western democracies.  They were idiots because they unwittingly were supporting a cause that would destroy the freedoms and prosperity they enjoyed under democratic governments.  When it comes to education funding, the term fits those candidates running for State office who want to define an adequate education “so the Supreme Court doesn’t do it for us.” 
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Obviously, their line of thinking is predicated on the notion that, if only the Legislature and Governor “finally” were to define an adequate education, the Court would then defer to this definition and the corresponding determination of the cost.  A brief history lesson is in order because, as the saying goes, those who forget the past are doomed to repeat it.   
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The Court first asserted that the representative branches needed to define an adequate education in Claremont I, which was issued in 1993.  It provided no guidelines for doing so, telling the representative branches that they were free to choose from a “wealth of historical data … spanning more than three hundred years.”
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Despite over 200 years of history and precedent to the contrary, the representative branches took at face value this absolutely incredible proposition that the words a “duty to cherish public schools” were really code for a “duty to define an adequate education,” and through the State Board of Education defined an adequate education.  And how did the Court respond?  Only four years later, in Claremont II, it ruled the State Board’s definition was unconstitutional, claiming that it did not “sufficiently reflect the letter or spirit of the State Constitution’s mandate.” 
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What’s more, no longer were the representative branches free to define an adequate education based on a “wealth of historical data.”  Now the constitution required the definition to be based upon seven “aspirational guidelines” articulated in a 1986 decision by the Supreme Court of Kentucky.
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Rather than asking the obvious question what the aspirations of Kentuckian judges could possibly have to do with the New Hampshire constitution, the Legislature and Governor virtually bent over backwards to comply with Claremont II.  Committees were formed, forums were convened and experts were consulted.  Ultimately, a study prepared by Augenblick & Myers was used to set the cost of an adequate education.

And then what happened? The Claremont plaintiffs immediately returned to court, claiming that the Legislature had not correctly calculated the cost of an adequate education.  Among other things, they claimed that the formula didn’t use the proper assessment tests to gauge student performance and didn’t contain enough money for transportation and capital costs. 

Continue reading ""Useful Idiots" by Ed Mosca" »

September 22, 2006

Four NH Gov's Call for NH Constititutional Amendment

NEWS  from The Josiah Bartlett Center for Public Policy

7 South State Street                Concord, NH 03301             603/224-4450        Fax 603/224-4329                 jbartlett@jbartlett.org

 

September 22, 2006
For Immediate Release
Contact:          John H. Sununu  -- Jackie Kennedy 890-1630
                        Judd Gregg – Joel Maiola 496-3457
                        Stephen Merrill – Kieran Preston 617-951-8828
                        Craig Benson – 766-6250

 

Four Governors call for amendment

Sununu, Gregg, Merrill, Benson unite to support amendment to protect New Hampshire’s competitive advantage


 

Four Governors who led the state for a combined 16 years have come together to support a constitutional amendment to make sure the people’s representatives decide education policy and to fight the threat of an income tax. According to Center President Charlie Arlinghaus, having the four come together is a sign of how important the education funding issue is and the dramatic impact it will have on the future of the state we love. Statements from each of the four governors follow.


John Sununu (Governor 1983-1989): “We need a constitutional amendment to preserve the character of the state of New Hampshire. The irrationality of the meddling in this issue by the court has forced legislators to base their vote on the dollars allocated to their town not the best interests of the state. New Hampshire was the last vestige of participatory democracy and local control in the nation but the court changed that. The only way to return the power to the officials elected by and therefore accountable to the citizens of New Hampshire is to pass a constitutional amendment that makes sure the court can not take that right away from the voters I can't believe the Governor and the legislature will let this meddling continue.  But let us be clear about what we are suggestingan appropriate constitutional amendment should not say what education policy is but should allow Governors and legislators to make those decisions.”
 
Judd Gregg (Governor 1989-1993) “New Hampshire is a special place to live and raise a family for many reasons but clearly one of them is our lack of a sales or income tax.  The “New Hampshire Advantage” gives our entrepreneurs, businesses and families throughout our state a chance to prosper without being smothered by excessive taxes. By limiting taxes we have been able to keep government small and encourage local control.”
 
“ Our other advantage is our reliance on representative government with the largest state legislature in the country.  It is that legislature and the people of the New Hampshire who should set tax policy, not a small group of unelected and unrepresentative judges. It is essential that we remove the power of the court to write basic tax policy and laws. This right must be the prerogative of the people through their elected representatives”
Stephen Merrill (Governor, 1993-1997): “A Constitutional amendment permits the people to speak on this critical subject.  The Governor and Legislature, and not the Courts, will best represent the will of the people regarding our educational system.“

Craig Benson (Governor 2003-2005): “The New Hampshire Advantage includes education decisions made as close to the people as possible and a tax system that encourages jobs and economic development. After the most recent court decision, we must act immediately to preserve local control of education. A state takeover of education means input from parents, PTAs and school boards will be a thing of the past. Any candidate that doesn’t support an amendment condemns us to job-destroying taxes and the end of New Hampshire’s economic advantage. We need an amendment today to let the voters have a chance to speak.”

September 13, 2006

Judicial reason in NH: "Pure Poppycock"

Like many states, NH has a growing problem of legislation via judicial diktat. As I noted in this prior post,
a small band of lifetime-appointed unelected lawyers with black robes have once again trampled upon the votes and decisions of the state legislature- the duly elected representatives of the people.
They have done so by again ruling the method that NH uses to fund education in the state is unconstitutional. Additionally, they have issued a deadline, with the threat of "seizing" the defined right of the people, through their elected representatives to define what is an "adequate" education and how it is to be funded.
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Ed Mosca, noted Manchester attorney forwarded the following commentary that I thought worthy to share with 'Grok readers everywhere plagued by activist judges....
TWO ALL BEEF PATTIES, SPECIAL SAUCE, LETTUCE, CHEESE, PICKLES, ONIONS ON A SESAME SEED BUN
by Ed Mosca, Esquire
 The New Hampshire Supreme Court’s latest education funding decision is simply a political manifesto camouflaged as constitutional law.  The Court’s stated reason for striking down the latest funding law was that the other branches had not passed an acceptable definition of an adequate education.  But where in the Constitution does it say that the Legislature and Governor must define an adequate education, let alone a definition acceptable to the Supreme Court?  Certainly not in Part II, Article 83, the supposed source of the duty to define an adequate education.  Article 83 simply says that “it shall be the duty of the legislators and magistrates, in all future periods of this government, to cherish the interest of literature and the sciences, and all seminaries and public schools.”   
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The Court has never explained how this language obligates the representative branches to pass legislation defining an adequate education.  Prior supreme courts never interpreted this language to create such a duty.  In fact, the first time the notion of a constitutional right to an adequate education ever appeared in a supreme court decision was in Claremont I in 1993, which was more than 200 years after Part II, Article 83 was enacted.  
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While one would never know it from reading the Claremont decisions, defining an adequate education is one of many legitimate policy approaches to delivering public education.  For example, it certainly is arguable that a better way to deliver public education is to allow school districts or individual schools to develop their own curriculums and policies.  Another arguably superior policy approach is to force public schools to improve by allowing school choice.   
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The Constitution leaves it to the Legislature and the Governor to determine which of these and other education policies to use to cherish the public schools.  So for the Court to say that throughout the Claremont litigation it has deferred to the representative branches regarding education policy is pure poppycock.  Whether to enact a statewide definition of an adequate education is every bit as much a policy choice as how to write such a definition. 
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The Court’s contention in its latest Claremont decision that it has consistently deferred to the representative branches regarding the “substantive content of a constitutionally adequate public education” is also pure poppycock.  The Court has never refrained from weighing in on what the definition of an adequate education should look like.
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September 9, 2006

Despotic oligarchs about to seize power! Will anyone stop them?

There they go again- On Wednesday, the NH Superior Court issued their latest edict: the present method by which the state of New Hampshire funds its public education system is unconstitutional. In the latest "deja-vu all over again" ruling in favor of those who harbor broad-based taxation desires here in NH, a small band of lifetime-appointed unelected lawyers with black robes have once again trampled upon the votes and decisions of the state legislature- the duly elected representatives of the people. Reports the September 6th Union Leader:
Concord – A superior court judge handed a victory yesterday to Londonderry, Nashua and 16 other school districts, ruling the state’s latest school funding plan is unconstitutional.
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Justice William Groff ruled that past New Hampshire Supreme Court rulings in Claremont cases make it clear the new law, contained in House Bill 616, fails to clear even the first of four hurdles the courts set for the Legislature.
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“The Legislature has completely failed to fulfill its constitutional duty,” to define a constitutionally adequate education, Groff ruled. As for determining the cost of an adequate education, he said, the Legislature, “has abdicated its duty.”
Really? I would contend that if the legislature obeys an order given to it by a co-equal branch of government it is "abdicating its duty." The legislature is "the people" of our state.
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The online dictionary www.thefreedictionary.com defines an oligarchy:
Government by a few, especially by a small faction of persons or families.
This is not the first time that NH has found itself under the thumb of the unelected few. The so-called "Claremont 1" & "Claremont 2" decisions were the two previous "biggies" when it comes to overruling the representatives of the NH citizenry.
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With this latest ruling, however, the "oligarchs" have thrown a new wrench into the works: they threaten "seizure" if they deem the system in non-compliance with this week's edict. "You vill open zis door at vonce! Achtung!" Senior Political Reporter John Distaso (always on the hot stories in our state) writes in the September 9th Union Leader:
Concord – For the first time in 25 years of New Hampshire education funding battles, the state Supreme Court yesterday threatened to take over the system and impose its own solution.
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Ruling on a suit by a coalition of school districts led by Londonderry and Merrimack, the five-member court unanimously agreed the current system is unconstitutional because it fails to give an understandable, practical definition of an adequate education. That makes it impossible to determine whether the state is paying the full cost of adequacy, as it is required to do under the state constitution, the court said.
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A three-member majority said if the state fails to fix the system by June 30, 2007, it will then "be required to take further action to enforce" the constitutional mandates itself, possibly by appointing a special court master to "aid" in creating an acceptable definition of educational adequacy.
The online dictionary defines a despot as
A ruler with absolute power...a dictator- a ruler who is unconstrained by law
When you re-write the law and remake it, as the courts are doing here in our once-great state, you become in effect "unconstrained" by it.
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The only way for these "rulings" to become the "law" of the land is if our so-called "leaders" do what they've been doing all along: nothing. Letting it happen by default. Kinda like with Caesar- the Senate handed him absolute power. They never got it back.
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Other than us letting them, how exactly will the despotic oligarchs, our modern day "Caesars", seize our schools, taxable properties, and our wallets? After all, as Plato wrote in The Republic
they are incapable of carrying on any war. Either they arm the multitude, and then they are more afraid of them than of the enemy; or, if they do not call them out in the hour of battle, they are oligarchs indeed, few to fight as they are few to rule.

July 20, 2006

Praying to be overturned

I really hope this is brought to the Supremes and is overturned quickly, for if it is not, we are ALL in big trouble.  Right now, the Ninth Circuit Court has handed down a ruling that will start / allow affirmative action in terms of limiting free speech.  From TCS Daily is this:

Recently, in a 2-1 decision, a panel of the Ninth Circuit Court of Appeals handed down a decision which may provide a foundation for applying preferential treatment to freedom of speech. If allowed to stand, the decision could authorize local governments to set varying limits to free expression, depending on the race, religion, or sexual orientation of the listener. Preferential treatment has proved one of the most divisive policies of modern America. The Ninth Circuit's decision could radically expand its scope.

Big, big mistake.  Where in the First Amendment are these criteria listed?  You think the PC crowd gets their knickers in a knot about those of us who, while trying to be polite, don't care if we tick off our listeners or readers?  This could shut us bloggers down rather quickly. 

 Harper v. Poway Unified School District grew out of a decision by a San Diego area high school to hold a "Day of Silence" to "teach tolerance of others, particularly those of a different sexual orientation" (in the words of its Assistant Principal). Participating students wore duct tape over their mouths to symbolize the silencing effect of intolerance. Others wore black T-shirts bearing a purple square and a yellow equal sign. The Gay-Straight Alliance, with the school's permission, put posters "promoting awareness of harassment on the basis of sexual orientation."

No, this is not teaching tolerance - this avenue leads to demanding acceptance. 


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