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O'Brien Throws Out New Hampshire Constitution In Unprecedented Power Grab

by: TerieNorelli

Wed Mar 28, 2012 at 14:17:03 PM EDT
(We don't typically front page press releases. But it's a special situation when the House violates the state Constitution in order to override a veto of a bill that violates the state Constitution - promoted by elwood)

Below is the House Democrats' statement on Speaker O'Brien's actions on House Bill 592.

CONCORD, NEW HAMPSHIRE - Speaker Bill O'Brien today threw out the New Hampshire constitution in an unprecedented power grab aimed at ramming an unpopular redistricting plan down the throats of the people of New Hampshire without warning.

"Bill O'Brien's actions today are a corruption of our constitution and the legislative process," Representative Terie Norelli, Democratic House Leader, said. "The House is scheduled to meet tomorrow. Bill O'Brien could have obeyed the constitution and still have had a timely vote on the governor's veto. This was a tyrannical abuse of power."

Article 44 of the New Hampshire constitution says that the bills vetoed by the governor should be entered into the body's journal proceeding an override vote.
TerieNorelli :: O'Brien Throws Out New Hampshire Constitution In Unprecedented Power Grab
O'Brien today interrupted today's House session - kicking out Democrats and the Public - to hold a last-minute secret caucus to present a legal opinion that he said allowed him to override the New Hampshire constitution and centuries of New Hampshire House tradition.

Democratic Leadership was not even provided with a copy of the legal opinion before the vote.

When Democrats, after learning of the Speaker's plan, asked for 15 minutes to caucus, O'Brien denied their request.

The House redistricting is widely unpopular and Republican and Democratic leaders in communities across the state called on Gov. John Lynch to veto it. It violates a 2006 amendment to the New Hampshire constitution - overwhelming approved by the people of New Hampshire - that requires communities get their own representatives in the New Hampshire House whenever possible.

Other plans-including plans offered by Republican representatives - have been offered that would have satisfied the New Hampshire constitution.

"Governor Lynch's veto of this unconstitutional House Redistricting Plan is the right decision. This veto is not partisan; the Republican Mayor of Manchester, the Democratic Mayor of Concord, and numerous Town Selectboards have been outspokenly opposed to this plan. It denies several of our towns and cities the representation to which they are entitled under Part II, Article 11 of the New Hampshire Constitution. And today Speaker Bill O'Brien, with his abuse of power, denied those elected officials a chance to come to Concord and be heard," Norelli said.

"Several Republican State Representatives have offered plans that would have complied with the New Hampshire Constitution and federal requirements, and House Democrats supported those plans - because this should not be a partisan issue. Inexplicably, Speaker O'Brien does not want to adopt any of those plans, even though his refusal violates our constitution," Norelli said.

"We remain committed to working with Republicans to pass a compromise plan which follows the will of New Hampshire voters as expressed in the 2006 constitutional amendment. I hope that the Senate votes to sustain the Governor's veto so we can work out a compromise plan or else this unconstitutional plan will undoubtedly head to the Courts," Norelli said.
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O'Brien Throws Out New Hampshire Constitution In Unprecedented Power Grab | 43 comments
Terrible. It's The Second Worst Power Grab... (4.00 / 1)
...the worst was when he was elected Speaker of what's supposed to be the People's House.

Thank you, Terie, for being such a good leader and stating it like it is.  Looking at it from afar, I'm just glad we have good Democrats to try to stop the horror.  

[I'm a former has-been House member and State Senator, but I keep "Rep." on my ID name for easy reference of previous posts.]

Abuse of Power (4.00 / 5)
I disagree with Jim, this is the worst abuse of power that I am aware of. Article 44 is clear. What makes it even worse is that it was unnecessary. He is showing contempt toward Governor Lynch, the office of the governor, and the NH Constitution.

 



"When you get to the end of your rope, tie a knot and hang on."  Franklin D. Roosevelt    

Okay, I'll Yield To Your Characterization... (0.00 / 0)
...but both his election as "Speaker" and this are horrible.  I'm hoping there's not a Chapter 3 with him, but we should be afraid there will be.  

All the more reason why Governor John Lynch is where we need him to be right now.  Can we imagine a Governor Smith or Governor Lamontague?  Or what it could have been -- Governor Stephen?  

[I'm a former has-been House member and State Senator, but I keep "Rep." on my ID name for easy reference of previous posts.]

[ Parent ]
does anyone know who wrote the opinion that claimed O'Brien's actions were constitutional? (0.00 / 0)
according to my sources not only did he not provide the democrats with a copy of the opinion but the opinion was not signed and the speaker never shared with the members "whose" opinion it was...if it was Mosca...where was his name? Could it be that whoever wrote the opinion was afraid to put their name with the words since they knew that it was patently false.  
[ Parent ]
I saw or heard a news report that it was Mosca n/t (0.00 / 0)

[ Parent ]
Absolutely disgusting. (4.00 / 1)
And the Republican House members that went along with them should be held accountable for their actions. Bill O'Brien is disrespectful of NH's traditions, laws, people, constitution. Why did he move here?

Have you told a stranger today about Bill O'Brien and his Tea Party agenda? The people of NH deserve to hear about O'Brien  and his majority committed to destroying New Hampshire and remaking it into a armed survivalist preserve.  
"Why did he move here?" (4.00 / 2)
So he could be "disrespectful of NH's traditions, laws, people, [and] constitution."

"We start working to beat these guys right now." -Jed Bartlet
[ Parent ]
But they love what he did. Did you forget? (0.00 / 0)


Wearing a ring doesn't make you a bath tub.
[ Parent ]
Will be interested... (4.00 / 2)
I will be interested in hearing how the so-called strict constructionists justify their actions, which were based on an interpretation of the Constitution that ignores the plain words of the document.

And also how Manchester Rep. Wil Infantine justifies voting in favor of a plan that strips Manchester of a state rep.  



"When you get to the end of your rope, tie a knot and hang on."  Franklin D. Roosevelt    

Only way they'll know is by letters and news (0.00 / 0)
We all know that WMUR isn't really doing it's job so LTEs will be needed.

"We start working to beat these guys right now." -Jed Bartlet
[ Parent ]
He's getting worse. (0.00 / 0)
Last year O'Brien announced that he would attempt to override Governor Lynch's veto of HB 474 (the so-called right-to-work bill)... and then delayed the override attempt for months.

But this is worse. Now he isn't even bothering to announce when a veto override is up for consideration. Regardless of their political orientation, our legislators should speak out against this. They have an obligation to do right by their constituents - and that includes fighting any attempt to monkey around with their voting rights.

Northeast field communications staffer, AFL-CIO

The Ghost of Finneran (4.00 / 1)
This is not how things used to be done in New Hampshire. It used to be that regardless of party, legislators--especially those in leadership--conducted business in an open and honest manner, intent on ensuring that all those representing the people of the state would have an opportunity to way in on important matters. Now, we have the Ghost of Finneran conducting business in a manner that would have made his old law partner proud: Speaker O'Brien relies on parliamentary tactics to force his far-right agenda through. If he can't get something passed in the most overwhelmingly Republican legislature in state history without resorting to sneaky tricks, then he clearly is not representing the will of the people. Now, he can force the state to needlessly spend money defending a bill that many regard as unconstitutional. Don't worry, though, he'll doubtless find a way to fund his latest legislative priority, by taking it from the programs and infrastructure that New Hampshire relies on.
what did Finneran in was... (4.00 / 3)
What did Finneran in was (ironically) redistricting.  Finneran's protegee's scandal is even more absurd than Finneran, because O'Brien has nothing much to gain from his shenanigans.  Finneran was at least rewarding friends and punishing enemies.  

A few months ago, there was an uproar over mapping software not being made widely available. A footnote to a 2004 federal court ruling about Finneran's shenanigans just happens to mention the following:

Finneran's in-house counsel, John Stefanini, had the Maptitude software installed on his computer in the Speaker's office suite and was one of only four legislative staffers who received training in how to use the software.



sitting state rep: running for re-election in 2012.
[ Parent ]
Wow, that sounds familiar (4.00 / 2)
One only needs to change the names.

Tim, I am always amazed at your formidable research skills.

Here is a fact that should help you to fight a little longer.
Things that don't actually kill you outright make you stronger.

Piet Hein, Grooks

[ Parent ]
No, Lucy not Tim's research (4.00 / 1)
This was done by Caitlin Rollo on Decenber 5 on this very site under "Shades  of Finneran." Maybe those that blew off GSP  duringthe redistricting hearings should start bothering to listen to them now.  
[ Parent ]
Here's the link (4.00 / 2)
For those that live by the trust but verify mantra...

http://www.bluehampshire.com/s...

[ Parent ]
My mistake. (0.00 / 0)
I do not recall having seen the earlier post.  My point was only that I admire anyone who has research skills beyond anything I can ever aspire to.

I have worked with Caitlin Rollo in various capacities since I met her in 2007, and admire all her formidable talents, just as I value all of GSP's contributions to the legislative dialogue.

Here is a fact that should help you to fight a little longer.
Things that don't actually kill you outright make you stronger.

Piet Hein, Grooks

[ Parent ]
article 10 (0.00 / 0)
of the NH Constitution - has it ever been used?  
O'Brien is the personification of "arbitrary power and oppression" (4.00 / 7)
Government being instituted for the common benefit, protection, and security, of the whole community, and not for the private interest or emolument of any one man, family, or class of men; therefore, whenever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought to reform the old, or establish a new government. The doctrine of nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind.
[ Parent ]
Uh oh... (4.00 / 1)
Susan and I are starting to agree... warning, danger Will Robinson.

BH's token Republican / Libertarian / TeaPartier / Free Stater, courtesy of a Federal Affirmative Action grant.
[ Parent ]
We don't agree (4.00 / 3)
You want to dismantle my state government, and turn my state into a Randian "paradise."

I want to eliminate the plague that is the current legislature, and restore this state to some level of sanity. That includes booting the carpetbaggers of the FSP out of office.  

[ Parent ]
From (4.00 / 1)
Bill O'Brien for Speaker of the House:

As Speaker, I will faithfully observe the rules and conduct the State's business in a fair and open manner. Our example will demonstrate the superiority of our philosophy.

and

With respect to process, there can be no favorites and no violation of rules. That must end. Decorum and respect for each House member must be a hallmark of the New Hampshire House. The next Speaker must focus on what can be done to improve the capacity for each and every member of the House to best serve his or her constituents.  It must process the people's business in a more efficient, but more open and respectful manner.


Social Media Director for Jackie Cilley for Governor. Follow her on Twitter & Facebook!
Here's a summary of the "explanation." (4.00 / 4)
Part 2, Article 44, of the NH Constitution says

[Art.] 44. [Veto to Bills.] Every bill which shall have passed both houses of the general court, shall, before it becomes a law, be presented to the governor, if he approves, he shall sign it, but if not, he shall return it, with his objections, to that house in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it; if after such reconsideration, two-thirds of that house shall agree to pass the bill, it shall be sent, together with such objections, to the other house, by which it shall likewise be reconsidered, and, if approved by two-thirds of that house, it shall become a law. But in all such cases the votes of both houses shall be determined by yeas and nays, and the names of persons, voting for or against the bill, shall be entered on the journal of each house respectively. If any bill shall not be returned by the governor within five days (Sundays excepted) after it shall have been presented to him, the same shall be a law in like manner as if he had signed it unless the legislature, by their adjournment, prevent its return, in which case it shall not be a law.

The tradition of the House has been to publish the veto message in the House calendar, and then to proceed to consider it.

The writer of the opinion says that Part 2, Article 24 describes the House journal:

[Art.] 24 [Journals and Laws to be Published; Yeas and Nayes; and Protests.] The journals of the proceedings, and all public acts of both houses, of the legislature, shall be printed and published immediately after every adjournment or prorogation; and upon motion made by any one member, duly seconded, the yeas and nays, upon any question, shall be entered, on the journal. And any member of the senate, or house of representatives, shall have a right, on motion made at the time for t hat purpose to have his protest, or dissent, with the reasons, against any vote, resolve, or bill passed, entered on the journal.

The writer takes this to mean that Article 44 requires only that the veto message be published in the Journal after it is acted on.  I think this ignores both the words "and proceed to reconsider it" and also the accountability and openness in government required by Part 1, Article 8 of the Constitution.  Not to mention the violation of RSA 271-A, the state's Right to Know Law, which requires all other governmental bodies to give 24 hours notice before doing much of anything, except in moments of grave crisis.

The thing that is so odd about this whole procedure is that it was completely unnecessary.  The Governor issued his veto message on Friday.  Instead of paying someone to write a tortured legal opinion, why not just direct the House Clerk to issue a one-page addendum to the Calendar?  This is not an unusual procedure--there have been five addenda to the calendar just since the beginning of this year, the last a recently as last week.  Surely the Speaker has not forgotten about that procedure already?

I cannot fathom why this charade was entered into when the fix was so easy, nor can I fathom why so many of the Republicans let him get away with it.  We, of course, argued the unconstitutionality of the vote, (that was me, actually) and then I challenged the Chair, and lost, as we always do.   And, as usual, I was later stopped by number of Republicans who told me that they really agreed with me, but of course they could not vote....yada, yada, yada.

Here is a fact that should help you to fight a little longer.
Things that don't actually kill you outright make you stronger.

Piet Hein, Grooks

I found the whole situation abhorrent... (4.00 / 4)
We worship the constitution, but only when it benefits US.  When it  doesn't, we act to amend it or violate it at will...

You were, as usual, wonderful Lucy.

You have not converted a man because you have silenced him.  (John Morley, 1838-1923)

[ Parent ]
O'Brien's 2008 court battle (0.00 / 0)
In May 2008, O'Brien filed a lawsuit called "Canaan et al. vs. Secretary of State": he tried to stop the 2008 election until such time as the House was redistricted according to CACR 41 (the "2006 amendment.")  The case made it to the Supreme Court in October 2008 (much too late for O'Brien's purposes) and the Supremes threw it out.  The suit was filed by the New Hampshire Legal Rights Foundation, which is O'Brien's own foundation.

Here are links to his oral arguments:
http://www.courts.nh.gov/pasts...
http://www.courts.nh.gov/pasts...

For him to ram a redistricting plan in 2012 which totally ignores the state constitution is the height of hypocrisy.  


sitting state rep: running for re-election in 2012.

good find Tim, thank you n/t (0.00 / 0)

[ Parent ]
Again, I refer you All to the original source... (4.00 / 2)
[ Parent ]
props to Caitlin & Co. but... (4.00 / 1)
Caitlin's post is the definitive summary of the parallels between Finneran & O'Brien--- but I knew about Canaan vs. Secretary of State long before that post came out on December 5, 2011.  Aside from the redistricting angle, the organization which pushed the suit, the NH Legal Rights Foundation, is of interest for other reasons.  DJ Bettencourt has worked for it.  

Robert Hull of Liberty Lane in Grafton is the Treasurer: he also funds various Free State Project-relared  activities. O'Brien has done a lot of legal work for Hull and other Free Staters.  (In all fairness to the Free Staters, I hasten to add that several of the  Free State Project-connected state reps--- e.g., our own Seth Cohn-- have repeatedly defied Speaker O'Brien on various issues.)


sitting state rep: running for re-election in 2012.

[ Parent ]
Seth (0.00 / 0)
Keep in mind that Seth was one of a group of legislators signing an open letter genuflecting at the altar of O'Brien last fall.

Have you told a stranger today about Bill O'Brien and his Tea Party agenda? The people of NH deserve to hear about O'Brien  and his majority committed to destroying New Hampshire and remaking it into a armed survivalist preserve.  
[ Parent ]
Let me try and understand... (1.00 / 2)
You knew about this long before it appeared on BH and decided, hey, I'd rather not expose Speaker O'Brien for the fraud he is, I'll just sit around and wait until after the legislature overides the Governor's veto and then blog about it? PATHETIC.
[ Parent ]
background information (0.00 / 0)
Thank you, Tim, for reminding us of all the connections. Some of us can't memorize every word that was ever printed on Blue Hampshire or GSP. Please keep bringing up interesting and relevant facts. (Even if someone said it before.)
[ Parent ]
background information (0.00 / 0)
Thank you, Tim, for reminding us of all the connections. Some of us can't memorize every word that was ever printed on Blue Hampshire or GSP. Please keep bringing up interesting and relevant facts. (Even if someone said it before.)
[ Parent ]
Et tu, Senate (4.00 / 1)
I just saw something on Facebook indicating state senate voted to override veto too? Is that true?

It's like the Walking Dead - they've all been infected.



"When you get to the end of your rope, tie a knot and hang on."  Franklin D. Roosevelt    

Yes they did, 17-7 (0.00 / 0)


You have not converted a man because you have silenced him.  (John Morley, 1838-1923)
[ Parent ]
litigation is next (0.00 / 0)
So both the House and Senate have voted to override.  Litigation is the only remedy that remains.  Who will bring this to court?
[ Parent ]
The Constitutional requirement for notice (4.00 / 5)
It's worth remembering: that requirement isn't there to protect the minority party (in 1792 they still assumed a party-less democracy).

It's there to protect the public.  The notice is to the people, so they can make their voices and heard and keep an eye on the legislature.

All of us, not Teri and the House Dems, are the target of O'Brien's illegal schemes.

If we continually act as though this is some sort of mistake, (4.00 / 1)
our opposition is bound to fail. This is no mistake, this is exactly what they think is the best thing to do. They were elected to get their own way. Remember Reagan ending hearing because he didn't care what anyone testified. Same thing with the repeal of the death penalty and marriage equality. What was it, 502 testified against and 4 testified for it and they passed it anyway. Take the blinders off. This is quite intentional and what they believe is right. If you don't see their landslide as a mandate, they do. We must quit assuming that they are really Democrats in wolf's clothing. They are not. They are fascists in full dissembling mode.

Wearing a ring doesn't make you a bath tub.
as we fret about the outrageous behavior can't we send the vote to the Attorney General...am I missing something (4.00 / 4)
The media has covered this as just one more power play by O'Brien...ho hum...but if the AG is involved maybe folks will begin to see it is more than abuse it is unconstitutional and for those strict constructionalist who insist that we genuflect to the document it is time we get O'Brien to kneel as well.
Almost not quite (4.00 / 4)
The Attorney General doesn't have the authority to rule that a vote taken by the house or senate is bad. That is up to the courts. A suit needs to be filed to throw out the redistricting plan as not validly adopted, as the House did not follow the constitution. Then, the house votes again, and if the veto is overridden again, suit can be filed to ask the couirt to rule the plan itself does not conform (as opposed to the vote).

If a suit is filed combining the two questions, it is possible that the court would:
1. rule on the validiity of the vote and send it back to the legislature, while ruling that it is premature to determine the validity of the districts
2. rule the vote was valid, then rule on the valildity of the plan itself
3. rule the vote was invalid, but hear arguments on the validity of the plan but not deciding until the legislature votes again.

Now, if courts rule the veto vote was invalid, it is not a given that O'Brien would have another veto vote, as he has it in his head that contrary to Article 44 of the NH constitution, the Governor should not have the power to veto ths plan.

My personal opinion is that O'Brien is so far off the cliff that he relishes the thought of a constitutional crisis with the legislature defying the Supreme Court.  



"When you get to the end of your rope, tie a knot and hang on."  Franklin D. Roosevelt    

[ Parent ]
Amateur legal kibitzing - (0.00 / 0)
I'm guessing that the Court will be much less inclined to step in and police the House on a procedural matter backed up by a majority vote - even though the Constitution does require notice.  That may seem like venturing a bit too far into a "political question."

But there's plenty of precedent, including recent state precedent, for adjudicating the Constitutionality of the map itself. I can't imagine them ducking that.

[ Parent ]
Of course (4.00 / 3)
My personal opinion is that O'Brien is so far off the cliff that he relishes the thought of a constitutional crisis with the legislature defying the Supreme Court.  

Pass an unconstitutional plan.
Get overruled by the Supreme Court.
Decry judicial activism.

Collect funding from think tank.

[ Parent ]
Thanks for the explanation - it fits. n/t (0.00 / 0)

[ Parent ]
O'Brien & O'Bettencourt's op-ed (4.00 / 1)
O'Brien and O'Bettencourt (and Gene Chandler) sent the following op-ed to Foster's Daily Democrat and (presumably) other papers.  Pretty revolting op-eddery it was, too!

Redistricting veto override done properly

Saturday, March 31, 2012

Now that the redistricting plan for the House of Representatives has become law, there are some who opposed the map who have raised a number of procedural red herrings to distract from the law. It's time to bring a little reality to the table.

People may be unaware of the time crunch the Legislature faced under the redistricting process. New Hampshire has the rather odd distinction of being the only state in the North that, as a whole, is subject to the Voting Rights Act of 1965. As a result, we need to receive pre-clearance from the U.S. Department of Justice (DOJ) for our redistricting plans. This procedure can take up to 60 days. Given that the filing period for office is currently set to begin on June 6, to give time for pre-clearance means that New Hampshire must get our redistricting plans to U.S. DOJ by April 6 for review.

Because March 28 was the only scheduled day for sessions in both the House and Senate between now and April 6, that day was the only opportunity to get the House redistricting plan into law before this deadline.

The Legislature worked diligently to get our plans to the Governor in time to meet all of these deadlines and allow notice of the veto override in our House calendar. However, the Governor chose to use up all the time given him, and by doing so removed the chance to put the veto message into the calendar for the public to review, while at the same time saying that the Legislature should consider the veto "quickly." Because of the deadlines for filing the plan with U.S. DOJ, he was right in the necessity for speed.

But was the procedure of overriding the Governor's veto, which did not appear in the House calendar prior to a vote, constitutional? Absolutely.

Some who don't understand the Constitution well have portrayed the vote as "unscheduled" and said it didn't meet requirements to be printed in the House Journal before the vote. They ought to spend some time studying our Founding Fathers words more carefully.

First, no veto override vote is ever "scheduled." The Speaker brings up veto messages at any time. The Senate obviously shares this same knowledge of the New Hampshire Constitution as they promptly took up the veto vote "unscheduled" the same day.

The New Hampshire Constitution states, in Part 2, Article 44, that the House "shall enter the [Governor's] objections at large on their journal, and proceed to reconsider it." In 1792, when this was added to the Constitution, there was no printed calendar, so the House Calendar is not the House Journal. The journal, according to Part 2, Article 24, is produced after, not before, the House proceedings: "The journals of the proceedings, and all public acts of both houses, of the legislature, shall be printed and published immediately after every adjournment or prorogation."

Further, the historical practice of the House was to take up vetoes as soon as they were issued with no notice period. Accordingly, the constitutional purpose of the requirement to put the governor's veto message into the journal is to create a permanent record of the veto message for history, not to require publication prior to a veto override vote. To say otherwise shows an ignorance of our state's history.

Now that the House redistricting plan is law, it is considered presumptively constitutional by the courts. While there certainly may be those who will challenge the law - indeed Democrats promised to challenge it even before it came into existence - the present situation is vastly different than from 2002, in which there was no House redistricting plan in place, and the courts drew the map.

Before the Special Committee on Redistricting began the process of developing a map for redistricting the state, the members went through a meticulous and extensive process to understand the legal framework for a legally defensible plan. This work involved a significant review of federal and state case law, and represents a very strong legal argument to retain this plan. Any suggestion that the court would not approve this plan is political, not legal, and therefore highly unlikely. This redistricting plan dramatically increases the number of districts across New Hampshire, from 103 to 204 districts, and restores true local representation to our citizens. One has to question why the opponents of this plan would prefer a court-drawn map that would make it harder for our citizens to get access to their legislators.

State Rep. William O'Brien
Speaker
N.H. House of Representatives.

State Rep. Gene Chandler
Speaker Pro Tempore
Chairman
Public Works and Recreation Committee

State Rep. D.J. Bettencourt
Majority Leader
N.H. House of Representatives.

I especially like how they are sudden;y so concerned about the federal government's pre-clearance process: this is literally the only time they have acknoweldged that the feds have any authority at all.


sitting state rep: running for re-election in 2012.

O'Brien Throws Out New Hampshire Constitution In Unprecedented Power Grab | 43 comments

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