The Democrats are now not just “the bad guys” but “the petty guys”.Court Order – Gulick vs Cormier
That is from the judgment of Judge James D. O’Neill, III in Belknap Superior Court in the case of NH State Rep Ruth Gulick et al vs NH State Rep Jane Cormer, Clerk, et al. where the former sued the latter in what I considered to be a frivolous, political theatrical stunt with all the intentions of a SLAPP suit using the pretext of a RSA 91-A:2 violation that I knew to be absolutely false. It was simply one way for the out-gunned Democrats of the Belknap County Delegation (aided and abetted most of the time by one Republican, NH State Rep Dennis Fields – but that is fodder for a future post) getting back at the Republicans, especially the Conservatives that made up the majority of the Republican members. I did not attend all of the Belknap County budget meetings but it was clear that the Democrats were stymied at that lack of ability to block the Conservatives in protecting the taxpayers’ wallets. They were not allowed to grow Government.
So, they lashed out in the only way they could (and the refuge of the scoundrels that having fairly failed to win Legislatively, turn to the Judiciary to subvert the democrat process) – they sued for a remedy that they could not get using a twisting of the statute that would not hold up. The NH State Rep. Democrats all piled in on the suit: Ruth P Gulick; Ian Raymond; Beth R. Arsenault; David O. Huot; Lisa A DiMartino with retired Judge David Huot leading the legal charge (history here, here, and here). Consider that – a retired Judge, one that should know the law FAR better than most of us, twisting RSA 91-A:2 and representing it as something it is not – simply to throw a malodorous slam after it could no longer count. A sign of desperation and anger.
Sued were Republican NH State Reps Jane Cormier, the Clerk of the Delegation and Collette Worseman, the Chair. The pretext?
“The Complaint alleges that the defendants violated l~SA ch. 91-A by allowing Representative Comtois to participate in a meeting of the Belknap County Convention without permission from the public body.”
What was the beef? That he did so by phone as he had an emergency to deal with – a failing roof. That Republican NH State Rep Guy Comtois participated by phone on a budget vote – as allowed by RSA 91-A:2. And perfectly legal – while on my town’s Budget Committee, 91-A was always foremost in our minds regardless of positioning on the political spectrum. Why” Open government is good government. And once, while on travel for business, I participated by phone which IS expressly allowed by statute. First one to do so, but perfectly legal. And I’m betting that retired Judge David Huot led the legal charge knowing that ahead of time – but sued sideways simply to use the Court as a political cudgel, a weapon of lawfare. And in one case, IMHO, lied in their plea. So what was the storyline? From the Judgment itself (emphasis mine:
Turning to the merits of the Complaint, the Court finds the following facts taken from the parties’ Agreed Statement of Facts and the Delegation Meeting Minutes. A meeting of the Belknap County Convention was scheduled for February 18, 2014 at 5:00 pm. Due to inclement winter weather, a quorum of at least ten members was not present at 5:00 pm. Chairperson Worsman delayed the meeting to allow more members to arrive. A quorum was physically present at 5:44pm, when the meeting commenced. Due to an emergency with his home’s roof, representative Comtois participated via speakerphone. All present members could hear and speak with him, and the reason for his absence was recorded in the minutes. No member objected to Representative Comtois’s participation via speakerphone. The members proceeded to vote on the budget by a roll call vote. The motion failed by a 7-7 vote. Representative Comtois was among those who voted against adopting the budget.
On February 24, 2014, the Belknap County Convention met for another meeting. At this meeting, Representative Gulick stated she was going to talk to the Attorney General’s Office regarding the legality of the vote taken on the budget at the February 18 meeting. She invited any member who disagreed with her position on the legality of the vote to join her in speaking with the Attorney General’s Office. None of the members respondeda Thereafter, at the March 4, 2014 meeting of the Belknap County Convention, the members approved the minutes from the February 18 and February 24 meetings. The members also voted to adopt the budget with several modifications.
And that is what the Democrats contended that Comtois should never have been allowed to participate by speakerphone because
- that the Delegation was not notified in advance (in my case, it was arranged in advance)
- no vote was taken to allow him to participate in that manner
And then the Judge picked retired Judge David Huot’s argument to shreds by using the plain simple language of the law itself (emphasis mine):
RSA 91-A:2, III, provides in relevant part:
A public body may, but is not required to, allow one or more members of the body to participate in a meeting by electronic or other means of communication for the benefit of the public and the governing body, subject to the provisions of this paragraph.
(a) A member of the public body may participate in a meeting other than by attendance in person at the location of the meeting only when such attendance is not reasonably practical. Any reason that such attendance is not reasonably practical shall be stated in the minutes of the meeting.
(b) Except in an emergency, a quorum of the public body shall be physically present at the location specified in the meeting notice as the location of the meeting….
(c) ….Each member participating electronically or otherwise must be able to simultaneously hear each other and speak to each other during the meeting, and shall be audible or otherwise discernable to the public in attendance at the meeting’s location. Any member participating in such fashion shall identify the persons present in the location from which the member is participating. No meeting shall be conducted by electronic mail or any other form of communication that does not permit the public to hear, read, or otherwise discern meeting discussion contemporaneously at the meeting location specified in the meeting notice.
(d) Any meeting held pursuant to the terms of this paragraph shall comply with all of the requirements of this chapter relating to public meetings, and shall not circumvent the spirit and purpose of this chapter as expressed in RSA 91-A:1.
(e) A member participating in a meeting by the means described in this paragraph is deemed to be present at the meeting for purposes of voting. All votes taken during such a meeting shall be by roll call vote.
The relevant parts of the RSA are bolded because they were the butt of the suit – what the lawfare-ing Democrats decided, at taxpayer expense, were the platforms to derail the county budget they hated (and I believe, no small measure a bit of payback) against those that did not allow them to grow Government. And try to make the Conservatives “the bad guys”. And those are the things that the Judge ruled on. Again, the allegation:
The plaintiffs aver that the members were not provided advance notice that Representative Comtois wished to participate telephonically, and they never allowed Representative Comtois to participate telephonically because there was no discussion or vote regarding his participation.
This has gone long and you can read the entire decision here. What Judge O’Neill ruled was:
- the statute does not require advance notice
-
does not explicitly require the public body to take any affirmative action in allowing a member to participate telephonically
- Nor does it define the word allow (and defaulted to the dictionary: “To allow is “to let someone or something do something; to let something happen or be done.”)
- …the members were aware that representative Comtois was participating via speakerphone. However, none of the members objected or requested that the body discuss and vote on Representative Comtois’s participation. The members essentially let him participate
- Contrary to the plaintiffs’ assertions, the minutes do in fact state that Representative Comtois was “tending to a roof emergency.” (note: my belief “lied in their plea” as they alleged one thing KNOWING the opposite was in the Minutes they voted on)
Final decision (really, the only one that could be held):
Thus, Representative Comtois’s telephonic participation did not violate RSA 91-A:2, III.
So in the end, the Democrat lawfare cudgel got bludgeoned. They lost. And in retrospect, the Conservatives won because they followed the spirit and letter of the Law. The Democrats are now not just “the bad guys” but “the petty guys”. But you know who lost more?
Me and all of the Belknap County taxpayers that had to pay for BOTH sides of the suit’s costs for a suit that was never going to be won – but that was never the point (only a bunus). But given how much they really wanted to raise the budget (in the vicinity of an 8% hike in my property taxes), but hey, we’re all part of a wealthy nation so why shouldn’t they spend it)
