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Voters to decide on two amendments

State House Bureau

October 11. 2012 11:40PM

CONCORD - Voters have choices to make beyond which candidates to support when they enter the voting booth next month. They will decide if two amendments should be enshrined in the state constitution and if there should be a constitutional convention.

The first proposed amendment would prohibit an income tax and the second would allow legislators to write rules for the judiciary branch of government. Both will require a two-thirds majority to become part of the state constitution.

Although the candidate pledge to oppose a sales or income tax is a cornerstone of New Hampshire politics, voters have not had a direct say in the matter until this year.

While supporters say the amendment will make permanent the state's long opposition to the income tax, opponents say tax policy does not belong in the constitution; they see no reason to 'fix the problem' when an income tax has not been seriously debated in the Legislature in two decades.

Rep. Paul Mirski, R-Enfield, is the prime sponsor of CACR 13, and first proposed the prohibition in 1995.

'Look at all the states around New Hampshire - they have an income tax,' Mirski said. 'New Hampshire is growing in this region because of our reputation as a low-tax state.'

He noted the tax pledge made popular by former Gov. Mel Thomson set New Hampshire apart from the rest of New England and transformed the way the rest of the county looked at New Hampshire.

'We grew and all the rest of the Northeast lost,' Mirski said. 'We were the only (state) that prospered. The only explanation is our taxes because there are other beautiful states like Vermont and Maine.'

A new group led by former Republican gubernatorial candidate Kevin Smith is working to alert voters that the issue is on the general election ballot, while acknowledging most people have their minds made up.

An honorary co-chair of the group and one of the first politicians to tout the New Hampshire Advantage through its tax structure, former Gov. Steve Merrill, said: 'I always think it's a good thing to give people choices about an income tax. It will separate those who truly believe in the no-tax pledge from those who simply say they believe in the no-tax pledge.'

No clear need

Other groups are working against the proposed amendment, including Granite State Progress and Granite State Priorities.

Jeff McLynch, executive director of the New Hampshire Fiscal Policy Institute, believes there are better ways to address the issue than making it a part of the state's foundational document.

Changes to the state constitution ought to be rare and clearly needed, he said. No clear need has been demonstrated, McLynch said, and there are other tools readily available to deal with the issue: regular elections and the legislative process.

'It is really unnecessary to make this step and make it permanent in the constitution,' he asked.

If the amendment passes, it would tie the hands of future legislators and citizens and take their power away to deal with issues and challenges that are not contemplated today, McLynch said.

The long-term consequences of such a prohibition will be that lawmakers turn to existing taxes such as business taxes and property taxes when they need more resources, he said.

'I want to emphasize that while this particular question has not received a lot of attention, it has the potential to be every bit as important and will live long after the people they vote for leave office,' McLynch said. 'A change to our constitution - our most basic document that has served us pretty well over the last couple of centuries - is not necessary given the other tools available.'

Court rules

Under CACR 26, the legislature would hold concurrent power with the Supreme Court to write court rules. If there is a conflict, the legislative statute would prevail.

The amendment would essentially undo a 1978 constitutional amendment passed by voters giving the Supreme Court authority to write rules governing the administration of all the courts in the state and their practices and procedures.

Similar amendments to CACR 26 have been proposed to undo the 1978 change, but have failed in either the Legislature or at the ballot box. But unlike those amendments, CACR 26 has the support of the Supreme Court justices.

Proponents of the change say it is a way for the public to hold the courts accountable. Opponents say it is a legislative intrusion and a power grab that would upset the balance of power between the three branches of government.

The opposing camp

Merrill and former Supreme Court Justice Joseph Nadeau joined to write an op-ed piece opposing the proposed amendment.

They write: 'The court is not a state agency. It is a branch of government. By the language of the New Hampshire Constitution, the legislative branch is political, the judicial branch is not. We value an independent political branch, and we value an independent judicial branch. Everyone, nevertheless, should be concerned about a legislative takeover of the courts because political control of the judiciary is just not in the public interest.'

Merrill debated the issue with several lawmakers recently and was surprised by what he heard: lawmakers want greater influence over court decisions.

'Should the courts be independent? There is no room in a constitutional republic for legislative intervention into the court system,' Merrill said. 'Should the court be immune from criticism? Absolutely not. When the Claremont decision came down, I criticized the court and I criticized the decision.'

He noted the concern raised by lawmakers over the years to the 1978 change, which also gave the court-generated rules the force of law.

'You cannot correct one mistake by making a bigger mistake,' Merrill said, 'and CACR 26 is a bigger mistake.'

He noted the Legislature wants control of the courts when it already controls the judicial branch's budget. What does the Legislature care about deadlines for filing briefs or how much time should be allotted for arguments, Merrill asked.

'If you give up practices and procedures, you give up policy as well,' Merrill said. 'The Legislature wants policy-making over the courts and that is the wrong way to go.'

Restoring balance

Mirski, also the prime sponsor of CACR 36, said the Legislature does not want to run the courts but simply wants to restore the balance of power that existed prior to the 1978 change.

When that amendment passed, he said, the intent was relatively limited. The public did not see that it would dilute its ability to control government and allow the court to totally disengage from public oversight.

'You cannot have a free government when autonomous branches are not subject to public oversight,' Mirski said, adding under the current situation, the court is not reachable.

'The less people see the courts as a place for justice, the worse the court's reputation becomes,' Mirski said.

He suggests the amendment would improve the relationship between lawmakers and the court system, something he acknowledges has been particularly strained since the 1993 Claremont decision on education funding.

'This is the best opportunity we will have in a long time to restore the proper balance of power between the Legislature and the judicial branch,' Mirski said.

Constitutional convention

Every 10 years, the question of whether a constitutional convention should be convened has to be on the ballot.

This is the 10th year.

Voters last approved a constitutional convention in 1982, which was held in 1984.

The 1984 convention produced 10 amendments that went to voters, who approved six.

Among the amendments were ones prohibiting lawmakers from passing laws that required cities and towns to pay for them (28:a); from using money in the state retirement system account for any other purpose; and from using budget footnotes to establish, amend or repeal statutory law.

Another amendment established annual legislative sessions.

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