Judicial Bumbling

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)

 

 

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"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."

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.

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.

“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).

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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. 

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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.

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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