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Terie Norelli's Letter Makes It Clear That Conservatives are Violating the Constitution

by: Chaz Proulx

Fri Jan 07, 2011 at 12:09:13 PM EST


(Part put below the fold by me.   - promoted by Jennifer Daler)

House Democratic Leader Terie Norelli Sends Letter to House GOP Speaker Bill O'Brien Regarding the Attempted Removal of Legislator

Concord - Today, House Democratic Leader Terie Norelli sent the following letter to house Republican House Speaker Bill O'Brien responding to his outrageous efforts to remove the duly elected Representative of Machester's Ward 3 Mike Brunelle.

 

Chaz Proulx :: Terie Norelli's Letter Makes It Clear That Conservatives are Violating the Constitution
Honorable William O'Brien      
Speaker, New Hampshire House of Representatives
312 State House
Concord, New Hampshire 03301

Dear Mr. Speaker,

     I am writing as the Democratic Leader of the New Hampshire House of Representatives regarding the motion approved on Wednesday, January 6, 2011 to refer a question of the qualifications of Representative Michael Brunelle to the Subcommittee on Elections. A hearing on this matter has been scheduled for Thursday, January 13, 2011.

     This surprise effort to remove Representative Brunelle and the scheduling of a hearing on one week's notice threatens the comity, integrity and reputation of this honorable institution, violates the due process to which any citizen of New Hampshire is entitled, and jeopardizes the very character of our citizen legislature. It exceeds the authority given to the legislature by the New Hampshire Constitution.  This effort makes every legislator the potential target of a subjective determination as to whether his or her employment is acceptable to the majority leadership.  This was not the intent of our founders. It is a distraction from the people's work, such as the budget, jobs, and the economy.  It will result in an unnecessary, expensive, protracted legal battle.

     As discussed below, the motion made by Representative Greazzo and the referral to the House Subcommittee on Elections is based on at least one, and perhaps several, basic mistakes in his understanding of the applicable Constitutional provisions.  A full and fair process would provide Representative Brunelle with ample time to prepare a legal brief, assemble witnesses, and prepare for the hearing.  Instead, the Subcommittee is adopting procedures on Tuesday, January 11th, with a hearing on January 13th.  This is not justice; this is not the New Hampshire way.  This rush to judgment without any pretext of due process is a disservice to the people of our State.  It is a particular disservice to the people of Representative Brunelle's district.  Those citizens will be deprived of the representation of their duly elected representative at a critical time during this legislative session.  Issues directly impacting their interests will be voted on, including issues of taxation, yet they will be deprived of one of their constitutionally elected legislators.  

     I request that the hearing scheduled for January 13 be postponed so as to provide a reasonable and adequate time for Representative Brunelle to prepare for the hearing, In addition, to insure a fair, proper and transparent process,  the following information should be provided to both Representative Brunelle and me by the close of business on Monday, January 10th:

A transcript of the motion and discussion surrounding the motion; due process mandates that Representative Brunelle be provided a written copy of all allegations.

An explanation of the jurisdiction of the Subcommittee on Elections. Although no one, including Representative Brunelle, was given the courtesy of a copy of the motion in advance of the vote, it is our understanding that the basis of this action is Part II, Article 7 of the New Hampshire Constitution. This provision of the Constitution does not pertain to the qualifications of state legislators. The qualifications of state legislators are governed by Part II, Article 14, regarding term of New Hampshire residence and residence within the district represented. No challenges have been made to Representative Brunelle's constitutional qualifications.

An explanation of the constitutional basis for the assertion of any jurisdiction by the Subcommittee, or the House of Representatives as a body, over this matter. Part 2, Article 22 of the Constitution provides only that the House shall be the judge of "the returns, elections, and qualifications, of its members."  Part II, Article 7, the section relied upon by Representative Greazzo, contains no reference whatsoever to returns, elections or qualifications, and vests no authority in the House alone to determine whether a member has violated the provisions of the article.

A written explanation of the standards and definitions to be used by the Subcommittee in determining the terms "fees", "be of counsel", "act as advocate",  and "due proof".  Also, please provide the constitutional basis for the determination that employment outside the legislature constitutes acting as "counsel" or "advocate."

A list of witnesses who will be appearing before the Subcommittee, and the purpose for which they will be testifying.

The rules of procedure for the hearing, and any subsequent debate before the full House of Representatives.

If it is your intent to judge the qualifications of legislators by their place of employment or sources of income (despite the lack of any constitutional basis to do so), please provide a list of all other representatives whom you intend to investigate.  I note, for example, that Representative Greazzo receives compensation as an alderman in the City of Manchester, is a paying position. There are bills pending that arguably benefit the City of Manchester.  He himself is sponsoring a bill relative to local spending caps, and another bill relative to municipal liability for dog bites. There are other current members of the legislature with employment or business interests that will be affected by legislation.  The lawyer members of the legislature, such as you, surely have clients affected by the laws we shall be considering. Singling out one person, based on his employment by a political party and ignoring the economic interests of those members directly impacted by legislation, is wrong.

     In addition to the foregoing procedural issues, there are very serious, substantive legal issues that must be resolved prior to any hearing.  Foremost, Part II, Article 7, does not relate to qualification.  As stated above, it is Article 14 that establishes qualifications, not Article 7.  Article 7 forbids certain actions on the part of sitting representatives, and thus is a direction, not a limitation on status or a qualification.  The Article addresses a possible transgression, not a qualification.  Article 22 does not apply.  As I am sure you are aware, Article 7 was enacted eight years after the Article 22, and is not, on its face, an additional qualification.  Had the drafters intended to make the provisions of Article 7 a qualification, they would have said so.  Thus, any alleged transgression under Article 7 must be determined by another mechanism.

     I also note that Article 7 is of general applicability to the entire General Court, not just the House of Representatives, unlike Article 22.  Thus, its enforcement cannot be accomplished by the House alone.  Representative Brunelle is being subjected to a process based upon a misreading of Part 2, Article 7.

     Also, the Greazzo motion is based on a fundamentally flawed understanding of Article 7.  The New Hampshire Supreme Court has stated:
"In interpreting an article in our constitution, we will give the words the same meaning that they must have had to the electorate on the date the vote was cast." Grinnell v. State, 121 N.H. 823, 826, 435 A.2d 523, 525 (1981). In doing so, we must "place [ourselves] as nearly as possible in the situation of the parties at the time the instrument was made, that [we] may gather their intention from the language used, viewed in the light of the surrounding circumstances." Warburton v. Thomas, 136 N.H. 383, 387, 616 A.2d 495, 497 (1992). See Claremont School District v. Governor, 138 N.H. 183, 186 (1993)."

     Part II, Article 7, is intended to prohibit a member of from acting, in either branch of the legislature,  as a lawyer or advocate on behalf of a third party in resolving that party's dispute to redress a wrong or grievance the party has brought before the legislature to resolve.  Article 7 uses language that is used to describe the relationship between a lawyer and a client: "take fees, be of counsel, or act as advocate in any cause."

     According to T. SHERIDAN, A GENERAL DICTIONARY OF THE ENGLISH LANGUAGE 1780 the operative words are defined as follows:

     a)      "Advocate" is defined as "he that pleads the cause of another in a court of judicature. He that pleads any cause in whatever manner as a controvetift or vindicator. "  

     b)      "Counsel" is defined as "he that pleads a cause."

     c)      "Fee" is defined as "payments occasionally claimed by persons in the office. Reward paid to physicians or lawyers."

     d)      "Cause" is defined as "that which produces or effects any thing, the efficient, the reason, motive to any thing; subject of litigation, party. (Emphasis added).  

     That Part II, Article 7 only applies to legal claims or cases pursued before the legislature is supported by other sections of the Constitution.

     Pursuant to Part I, Article 32, which was adopted twelve years prior to Part II, Article 7, individuals have the right "to request of the legislative body, by way of petition or remonstrance, redress of the wrongs done to them, and of the grievances they suffer."    

     This interpretation is likewise supported by other uses of the term "cause" in the New Hampshire Constitution, such as Part II, Article 4, which provides the General Court with the power to create additional courts in the state "for the hearing, trying, and determining, all manner of crimes, offenses, pleas, processes, plaints, action, causes, matters and things whatsoever arising or happening within this state, or between or concerning persons inhabiting or residing, or brought, within the same, whether the same be criminal or civil..."

     In light of this right in Part I, Article 32, to bring grievances before the legislature, and the language used in Part II Articles 4 and 7, the prohibition provided for in Article 7 is clearly intended to prohibit members from representing individuals in claims for redress that they bring to be adjudicated before a legislative body. It is not meant to prohibit members of the general court who are employed from participating in the legislative process on potential legislation that may be of interest to their employer. Those activities are governed by the legislative ethics guidelines' requirement that members disclose conflicts of interest by filing the financial disclosure form and required declaration of intent forms.  See, Marshall, The New Hampshire State Constitution, a Reference Guide, p. 128.

     Thank you for your cooperation in this matter. I look forward to your response.

                             Very truly yours,  

                             Representative Terie Norelli,
           

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Mike Brunelle (4.00 / 7)
New Hampshire has, proudly, a citizen legislature.  Educators, lawyers, insurance brokers, real estate agents, health care deliverers, businessmen, typesetters, retirees, engineers, accountants, plumbers, police officers and firefighters all take their turn to serve the citizens of their district and the state.  They bring their myriad skills and life experiences to help their legislative colleagues sort out complex issues facing the state.  

Each legislator files ethics forms on which he or she reports sources of income and is then free to decide whether or not to vote on any given bill based on a real or perceived conflict.  It is a system that basically works well.

Imagine if firefighters could not serve because they will be asked to vote on fire safety, public employee contract, state retirement or similar bills.  Imagine if no civil engineer could serve because they will be asked to vote on capital construction matters. Imagine if no teacher could serve because they will be asked to vote on education matters.  Imagine if no lawyer could serve because they will be asked to vote on laws that might impact on a client, or no businessman could serve because they might have to vote on standards or accountability in their field or on taxes that might affect them.  And, of course, imagine that no one who owns real estate property could serve.

We could not continue to have a citizen legislature under those circumstances and that would be ridiculous.  Just as ridiculous as saying that someone who has executive responsibilities in a state political party does not have a right to serve the citizens of the state.

Let's stop the nonsense and let the legislature focus on the real business of the state.


O'Brien & Brunelle (4.00 / 5)
One of the oddities of the NH legislature is that the Speaker officially appoints the minority as well majority leaders--- and he also chooses every member of every commmittee.  The minority merely nominated Rep. Brunelle to be its Floor Leader/Whip---  O'Brien actually was the one who appointed him. O'Brien also appointed Rep. Brunelle to the Election Law Committee. If O'Brien had reservations at that time about Brunelle's constitutional qualifications to even be in the House in the first place, he could have refused to make him the Whip. If he thought Brunelle's job at the NHDP was a conflict of interest, O'Brien also could have appointed him to a different committee which doesn't deal with issues directly effecting the NHDP.

On Thursday January 6th, the bipartisan House leadership filed into Reps Hall as a group and sat up front, and O'Brien did not challenge Brunelle's inclusion with that group.


Refusing to perform de jure duties with respect to the minority's rights would be an even greater breach of protocol. (0.00 / 0)


--
Freedom from fear

@DougLindner


[ Parent ]
Clarification re appointments (0.00 / 0)
The Speaker does not appoint the minority positions.  The Democratic Floor Leader, Assistant Democratic Leaders, and senior members of each standing committee are named by Terie Norelli.  

With respect to membership on standing committees, Terie Norelli as minority leader gives her recommendations to the Speaker, but the ultimate decision is the Speaker's.


[ Parent ]
My bad.... (4.00 / 1)
Eating humble pie, here.  Rep. Horrigan is, in fact, correct that the Speaker does officially appoint the minority leader.  

[ Parent ]
Well said Rep Horrigan. (4.00 / 1)
Certainly reinforces the fact that this is simply theater at the expense of the people of New Hampshire.

Rep Christopher Serlin
Portsmouth & Newington
Rock 16


BTW (4.00 / 4)
This is an incredible letter.  

The NH House GOP brought a knife to a gun fight.


Rep Christopher Serlin
Portsmouth & Newington
Rock 16


Which is ironic, (0.00 / 0)
Because they apparently think there's a place for guns in legislative chambers.

--
Freedom from fear

@DougLindner


[ Parent ]
Twilight Zone here we come (0.00 / 0)
I knew it wouldn't take long but this is a record. Armed legislators tossing off Due Process like a black fly.

We've skirted the Twilight Zone for years, but now we are truly living in it 24/7.

Breathtaking!!


Mike Brunelle Situation (4.00 / 4)
In regard to the Mike Brunelle situation, I am enjoying a little bit of schadenfreude.  Mr. Brunelle is virtually unknown to me, except for one infuriating fact: he played a pivotal role in pressuring my son, Timothy Horrigan, to resign from the state legislature last year.

He, and the various other Democratic state party leaders who inflicted that terrible ignominy on Timothy, should have heeded an old proverb: "what goes around, comes around.

Since they saw fit to throw a dedicated, loyal Democrat to the wolves over a much-ado-about-nothing incident involving some innocent Internet remarks, they should hardly be surprised that the new Republican dominated legislature is now playing the same game--albeit up a couple of notches.

As an aside, I was gratified to read in Blue Hamphsire remarks that state party notable Kathy Sullivan has now discovered the basic right of the people in a legislative district to democratically choose whom they wish to represent them.  I can only wish that she had thought about that principle when she joined in the efforts to oust Timothy.

In case anyone is wondering, I agree that Republicans' logic in the Brunelle situation is absurd. Despite my smoldering anger at the state Democratic leaders, I also agree nonetheless that Mr. Brunelle should not be pressured to give up his legislative seat.  If I had any influence in such matters, I would certainly defend him.

James Horrigan


Ladies and Gentlemen (4.00 / 1)
You have been served.

Whack-a-mole, anyone?

[ Parent ]

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