Andru H. Volinsky's Posts - NHBR Network/NHBR's online b-to-b network

Strongest Argument in favor of a Constitutional Amendment: “I’m always right, except when I am wrong.”

2012-05-22T22:07:45.000Z

Proponents of a constitutional amendment to overturn the Claremont education funding principles make the argument that virtually all laws are judged with a rational basis test and that it is unusual for courts to apply a strict scrutiny standard to legislative decisions. The amendment is necessary, they contend, to return the state’s school funding laws to legislative control. They also claim that strict scrutiny is a new test used by the courts to determine if legislation violates equal protection analysis. The arguments are both wrong and misleading. Strict scrutiny has been in place for almost 75 years. All laws that infringe upon fundamental rights are subject to this high level of judicial scrutiny.

Equal protection analysis based on strict scrutiny was first applied federally by the Supreme Court in 1938, when reviewing New Deal legislation. Its most ignominious application occurred when the Court upheld the internment of Japanese Americans during World War II in the Korematsu case.

As in other states, the constitutionality of a New Hampshire statute is a question of law and is reviewed and determined by the New Hampshire Supreme Court. Equal protection analysis asks if legislation treats similar people similarly. The Supreme Court presumes that legislation is constitutional and only overturns a law that is found unconstitutional on inescapable grounds. If a law may be construed in a way that supports its constitutionality, courts are bound to adopt this interpretation.

The presumption in favor of constitutionality applies even if a legislature fails to choose the most expedient way of achieving a desired goal. If a law is rationally related to a legitimate legislative purpose, it is presumed by the courts to be constitutional and is generally upheld.

When legislation affects a fundamental right or treats people differently based upon an inherently suspect classification such as race, gender or religion the presumption is reversed. In these circumstances, courts carefully review all statutes to determine if they are narrowly tailored to promote a compelling state interest, and if a less restrictive alternative would serve the state's purpose, the legislature must use that alternative.

Whether a right is fundamental or not is largely driven by a careful analysis of the language in the constitution at issue. Many conservatives refer to this as determining the “original intent” of the drafters. The U.S. Supreme Court found in the San Antonio Schools case in 1973 that education is not a federally protected fundamental right because it is not mentioned in the federal constitution. The opposite is true for our state’s constitution where Pt. 2, Art. 83 explicitly places a duty on the legislature to support education. This is, in part, why our Supreme Court found education to be a fundamental right subject to exacting review and ultimately condemned the dissimilar treatment of school children based on economic factors and the accidental geography of their residence. The proposed amendment under consideration has a goal of changing the original intent of the New Hampshire Constitution by removing education, whether public, charter or home based, from exacting constitutional protections.

Other well recognized fundamental rights include the First Amendment’s protections for free speech, association and the practice of religion. Many aspects of voting are subject to a strict scrutiny analysis. Equal protection analysis was at the heart of the Bush v. Gore decision. Legislation that economically infringes upon individual liberties or parental rights are generally subject to strict scrutiny.

School funding schemes in 45 states have been challenged. Many of these challenges have been based upon claims that the statutes at issue violate the state law equal protection rights of school children. In virtually every state in which this type of challenge has been raised, the determination of whether education is considered a fundamental right is dispositive. In most instances a finding against fundamentality means the legislature is given a pass and the school funding scheme at issue is allowed to remain in place. New Hampshire’s courts found to the contrary and struck down the school funding laws because they violate the equal protection rights of the children who attend New Hampshire’s schools and the taxpayers who pay for them.

My thoughts on the "everyone's a socialist" approach to commentary

2011-07-19T16:56:21.000Z

Maybe not worth sharing, but for what it is worth. I am Facebook friends with the Josiah Bartlett Center. Josiah Bartlett is a conservative policy group in New Hampshire and it has been run by Charlie Arlinghaus, a conservative commentator who I respect. Recently, Josiah Bartlett has trended towards a more Fox News type approach with a little more trash talking than I like and its approach has encouraged those who follow its page to be disrespectful to others who may have different opinions. I have decided to remove my access to Josiah Bartlett as a result. I'll still see their publications when I go on their site, but won't be faced with their opinions whenever I go to my Facebook page to see what my children have posted. In signing off I received some discouraging remarks. Here is my response:

No problem with info, assuming your info is accurate. Don't need the commentary. Not everyone with whom members disagree is a Socialist. Not all government programs are a waste (think bridge safety). Not all people who need help are duplicitous cheats. I don't believe that government is the enemy. I do believe it should not get in the way of certain activities, but I don't buy into the facade of a free enterprise system dependent upon lobbyists and subsidies for advantages and I don't think that not paying my fair share in taxes is an advantage. Please feel free to post and share this comment. A.

Nat'l School Funding Conference Themes: Pre-School, Court Budgets & Pay Your Own Way

2011-06-20T14:35:12.000Z

Thanks to the Claremont Coalition, I attended the “Winning Educational Opportunity for All” Conference in Denver last week. The conference was convened by the Education Law Center of New Jersey and was attended by 30 of the leading school funding litigators from around the country. The old hands who have led school funding litigation efforts for decades in New York, New Jersey and California were in attendance, as were new comers just embarking on litigation in Wisconsin and Colorado. The Colorado litigation, which challenges the adequacy of school funding in poor districts, is much like ours in that the lawyers are all volunteers and there is a lead firm that has trained and supervised a team of about 18 lawyers. Trial is set to begin in August. Unlike New Hampshire, school funding disparities in Colorado and in a number of other states appears racially tinged and some of the litigation focuses on racial disparities.

There were three points that dominated discussion during the conference that are worthy of passing along to readers in New Hampshire. First, the efficacy of pre-school and early grade education remains a constant. If money is tight, it should be triaged in favor of preparing children to learn and getting them strong basic skills before the third grade. The remedial costs of catching up after third grade are high and the methods used are not always empirically supported. Perhaps the Obama administration will add a focus on pre-school and early grade learning to its current efforts to promote healthy foods in schools?

Second, courts are not immune to scarce resources and there is a general concern that legislative tightening of judicial budgets has an effect on court rulings in the school funding arena. Courts that rule in favor of poor school districts may feel the pinch in their own appropriations in following years. New Hampshire unfortunately experienced this response to the Claremont decisions and I shared anecdotes with my colleagues at the conference about efforts undertaken in New Hampshire to remove Chief Justice Brock and punish his court after their school funding rulings.

Third, and finally, there was widespread recognition that school funding remedies cannot be crafted in a vacuum and that when litigators propose remedies, they must also work to identify the source of revenues necessary to pay for those remedies. This recognition led to discussion of school inefficiencies that, once cleared, could free up funds to be used to remedy inequities. It also led to discussion of tax revenues and tax fairness, topics closely related to school funding concerns. Many states simply do not have the ability to raise additional funds through taxes. Arizona and California were two striking examples of states with huge, longstanding deficits. Other states, like ours, appear to adopt the story line of a widespread recession/depression while overlooking direct local experience that shows recovery and improvement.

The UL and bin Laden's Death Photo-a cheap shot

2011-05-04T20:57:54.000Z

The UL today published an editorial demanding the immediate release of bin Laden’s death photo. President Obama has declined to do so for the present and we should support his decision. The purpose of the editorial is to take a pot shot at the President, to diminish his decision making with respect to the bin Laden raid. The UL’s position is like criticizing one of the Navy Seals for not having spit shined his boots for the mission and is unworthy of the statewide paper. There is no reason to encourage those who will view bin Laden as a martyr by the release of the photo. Conspirators who doubt the mission won’t be appeased by the release of a photo in the days of Photoshop.

Further, the editorial makes a false equivalence between the Birthers who question the legitimacy of Mr. Obama’s presidency and the Democrats who questioned President Bush’s failure to act on intelligence that preceded 9/11. The editorial cites a 2006 Ohio University/Scripps poll to claim that half the Democrats at the time thought President Bush complicit in 9/11. The Ohio U/Scripps Poll actually found that “Thirty-six percent of respondents overall said it is "very likely" or "somewhat likely" that federal officials either participated in the attacks on the World Trade Center and the Pentagon or took no action to stop them "because they wanted the United States to go to war in the Middle East." http://www.scrippsnews.com/911poll. Half of the 36% or 18% of those surveyed with one of these opinions were apparently self-reported as Democrats. The poll was completed shortly after the disclosure of a Summer 2001 security memo that asserted bin Laden was determined to strike the US. For whatever reason, the Bush White House and security apparatus did not act on the security memo.

While it is hard to believe any president complicit in an act as terrible as 9/11, there is a big difference between a false movement whipped up by certain media outlets to challenge the very legitimacy of the President's right to hold office and the reaction of those who had received legitimate news of an authentic report that presaged the 9/11 attack, yet resulted in no apparent action by the administration in office at the time.

The UL can do much better than this and NH deserves better.

Specific Bequests--An Update

2011-05-02T18:27:31.000Z

The New Hampshire Supreme Court released its opinion in our case, In re Estate of Timothy M. Donovan, on April 28th upholding our position that New Hampshire should remain in the mainstream of opinions on this matter and treat specific bequests as "adeemed" or lost if the property at issue is not owned by the deceased at the time of his death. The decision maintains a multi-million dollar swing in the distribution of assets to favor our client as initially ordered by the Probate Court of…

Probate Litigation, the failure of a specific legacy.

2011-04-12T17:30:00.000Z

A•demp•tion (uh-demp’-shuh n))—the failure of a specific legacy because the testator did not possess the subject of the legacy at the time of death.

We are litigating a dispute before the New Hampshire Supreme Court that may have significant implications for business succession planning efforts because it focuses upon the concept of ademption. Ademption is the cancelation of a specific bequest because the deceased no longer owns the property at issue when he or she dies. Other property is NOT substituted for the adeemed or lost bequest.

A business owner may plan for the succession of a business by making a bequest of the business in his will to a named individual or group of individuals. The owner may, for example, direct that his machine shop be given to his sons upon his death. Under the concept of ademption, however, if the machine shop is sold during the owner’s lifetime, not only do the sons lose the right to receive the business but they also are not entitled to substitute the proceeds of the sale or another part of the estate for the lost business. The bequest of the machine shop fails because it is adeemed.

Although we are defending the case on appeal, the law of ademption appears to be well settled in New Hampshire. In a case called, Reposa, decided in 1981, the New Hampshire Supreme Court adopted the majority view of courts around the country and has not varied from this view since. The Reposa case provides that ademption is not a question of determining the intention of the deceased. Instead, the Reposa opinion makes clear that ademption is simply a matter of determining whether or not the bequest was specific and, if so, whether the subject of the specific bequest was still owned by the deceased at the time of death. If the subject of the specific bequest is not owned by the deceased at the time of his death, the bequest is canceled and no other aspect of the estate is substituted for the adeemed bequest, unless the will has specifically provided for a substitution. A specific bequest is not limited to a named business, it could be anything, a piece of realty or a favorite painting.

In the Reposa case, a woman from Dunbarton made out her will in 1972 and, through the will, gave her farm to a young woman she had raised as her daughter. The rest, or residue, of the estate went to Mrs. Reposa’s sister. Three years later, however, the farm was sold and Mrs. Reposa took back a note and mortgage. Mrs. Reposa died in 1979. The question for the Probate Court was whether or not it was proper to substitute the note and mortgage for the farm and convey it to the daughter or to consider the specific bequest adeemed and allow the sister to take the mortgage and note as part of the residue of the estate. The Court ruled that the specific bequest had been adeemed and the sister was awarded the note and mortgage, the daughter’s bequest was canceled.

The clear and simple rule of ademption means that courts do not consider extrinsic evidence, outside of the language of the will, about what the deceased would have intended to substitute for the failed bequest. The rule avoids difficult and complex trials about the deceased’s intent in which the parties attempt to marshal evidence long after death. The rule also places confidence in the notion that if the deceased had intended to substitute another property for the canceled bequest, he or she would have done so before death. The rule presumes that the deceased’s intent was shown by not changing the will after selling the business or farm.

Unless the Court changes its 30 year old precedent, the message of the Reposa case is clear. Keep up to date on specific bequests, making substitutions when property is sold, or make lifetime transfers that allow for orderly transitions before the death of the business owner.

Tax Compromise is Morally Repugnant and Bad Politics to Boot

2010-12-08T18:51:03.000Z

Although perhaps futile, it is our responsibility to speak out now against the proposed tax compromise before Congress. The proposal is unacceptable on moral grounds and it is equally unacceptable politically.

It is simply wrong to allow Congress to cut unemployment benefits on which families depend. Too many good, honest people are out of work for reasons not of their own making to close down unemployment benefits that are needed to pay for the necessities of food, clothing, housing, and, particularly in New England, for the high cost of heat. Think of this in terms of evictions in the dead of winter. This is a moral argument that must be made and made not just by those who are out of work because we all benefit by maintaining a modicum of economic stability in our communities.

An even more important moral argument should compel us to condemn in clear and unequivocal terms the tactic of holding these safety net benefits hostage to tax cuts for the ultra rich. The Bush era tax cuts for the rich are, to me, bad public policy. Putting that aside, however, it is hard to imagine a more morally repugnant tactic then to threaten to cut off benefits unless the administration allows tax cuts to protect the wealth of our highest wage earners. Those who support this gambit need to be called out for what they are, evil, and willing to let us fail as a society in order to serve their own narrow conceits.

The proposed compromise that is being debated in the House allows the unemployment benefits to continue in return for avoiding tax increases. The compromise also includes other stimulus type benefits. For those not moved by the moral considerations, the compromise should be rejected on purely political grounds.

When the economic recovery becomes more apparent in the next few years, the Republican echo chamber will claim that the recovery is a product of the tax cuts and will deny credit to the other stimulus efforts that have been enacted. At best, this will create an impossibly garbled message that will neutralize any effort to understand what policies contributed to economic recovery. More likely, the story of the next election will be who cut your taxes and who tried to raise them. There isn’t a more effective, or more misleading, simplistic political story line and this compromise serves it up on a silver platter for the next election.

The Death Penalty is Political.

2010-10-16T15:17:04.000Z

The death penalty is political. The death penalty is sound-bite-able.

As made clear in the recent political debates, US Senate Candidate Kelly Ayotte views the death penalty prosecution of Michael Addison as a campaign asset.

The death penalty plays to people’s fears and prejudices. It can be trotted out in a 30 second commercial. A politician for the death penalty is one that will claim to make us safer--even though this claim is not true and the extra cost of the death penalty over life in prison necessarily means that money will not be available for other needs, such as more and better equipped cops on the beat, or better schools, or better drug treatment programs, or job creation. Debunking the death penalty requires thoughtful conversation. Refuting the claims of the politicians cannot be done in short commercials.

Being for the death penalty is helpful to politicians---except when it is not. Candidate Ayotte swapped emails with her campaign political director about the death penalty while they planned Ms. Ayotte’s run for office. The emails included a crass joke by the political operative (What’s your position on the death penalty? Near the switch.). Here’s how the mixing of the political decision making and the death penalty will likely play out for New Hampshire’s only death sentence resulting in an outcome that Ms. Ayotte will not like, but for which she will be responsible.

The lawyers for Michael Addison asked the trial judge before trial to allow discovery about how the prosecutors in the case came to the decision to seek the death penalty. They also challenged the death penalty because the New Hampshire Attorney General’s Office does not have procedures in place to guide this life and death decision, as other prosecutors do. The defense was rebuffed on two grounds. The prosecution’s decision making was held to be confidential or privileged from disclosure and, although the defense lawyers expressed their concerns about the lack of due process, they had no evidence to show anything improper was considered by Ms. Ayotte when she decided to seek the death penalty.

The emails between Ms. Ayotte and her political advisor are now relevant to Addison’s defense because in communicating with the advisor—who was not a member of her prosecution team—Ms. Ayotte may have waived the State’s privilege to confidentiality. By intertwining the decision to seek the death penalty with talk of politics, Ms. Ayotte may have given the defense evidence that she improperly considered her political ambition in making her decision to seek the death penalty. Evidence of the political considerations support the defense team’s claim that Mr. Addison was denied the due process of law. The State’s Supreme Court is also charged by statute to search for the influence of improper factors when reviewing Mr. Addison’s sentence of death. Race and politics are two factors likely to be considered. In the long run, Ms. Ayotte’s zeal to use the death penalty for political gain may jeopardize the conviction and sentence she so coveted.

Ground Rules for Death Penalty Review Decided by the NH Supreme Court Today

2010-10-06T21:24:30.000Z

The NH Supreme Court just issued a decision in the Addison death penalty case. There are many parts to the appeal of the Addison conviction and sentence of death. This decision focused on what is called “proportionality review.” Proportionality review requires the state Supreme Court to be the last body to review a sentence of death for overall fairness and to make sure the sentence is not aberrational or influenced by an arbitrary factor, like race. This decision set the ground rules for consideration of the Addison sentence and of all death sentences that may be imposed in the future.

The Court acknowledged its responsibility to determine if a death sentence is proportional, but so circumscribed its review as to render it potentially meaningless. The decision for example would prevent the Court from considering if the death sentence imposed on Addison, a young African American who killed a police officer, is disproportionate to the life sentence imposed on Jay Brooks, a wealthy white businessman who ordered a brutal, planned murder for hire.

The Court also said it can only consider cases in which the defendant went through a capital sentencing proceeding. This means it cannot consider the prosecutor’s charging decision. The Court will not consider whether there is any arbitrariness in one prosecutor trying to send an eligible defendant to death while deciding to forego the death penalty in another case that may have occurred on her watch.

The State will argue that its decision puts NH in the main stream of death penalty jurisprudence. While this is right, it puts us right in line with Georgia and Mississippi. I do not believe that this is where we want to be, main stream or not.

New Healthcare Reform Law Timeline of Effective Dates

2010-03-29T17:12:18.000Z

My colleague, Steve Gerlach, recently compiled this timeline of the effective dates of the various aspects of the new healthcare reform legislation. I thought it would be helpful to readers of this column.

Last week Congress passed H.R. 4872, the Health Care and Education Reconciliation Act of 2010, which will result in a massive overhaul of U.S. health care. The new law will have a significant effect on taxpayers, employers, and the health care industry. The provisions affecting employers will be implemented in stages between now and 2018. Appearing below is a list of the date on which key provisions becomes effective:

The date the new law is signed by President Obama: Employees will be able to cover dependents under the employer’s health plan up to (and including) age 26, and coverage for such dependents under an employer’s group health plan will qualify as a nontaxable benefit.
Beginning of employer’s 2010 tax year: So-called small employers will receive a tax credit for amounts they pay for employee health coverage. Small employers are defined as employers who have 25 or fewer full-time employees who have wages averaging no more than $50,000 per year. The amount of the tax credit varies on a sliding scale. Employers with 10 or fewer employees who have wages averaging no more than $25,000 per year will receive the full credit of 35%.
January 1, 2011: Purchase of over-the-counter medications cannot be reimbursed from health reimbursement accounts (“HRAs”), health savings accounts (“HSAs”), medical care flexible spending accounts (“FSAs”), or Archer medical savings accounts (“MSAs”).
Beginning of employer’s 2011 tax year: Employers must disclose the value of the health care benefit provided by them on each employee’s Form W-2. Starting in tax year 2013, other reporting requirements will apply to employers who self insure.
January 1, 2013: Pre-tax contributions to medical care flexible spending accounts will be limited to $2,500 per year.
January 1, 2013: The deduction for employers who receive Medicare Part D retiree drug subsidy payments will be eliminated.
January 1, 2014: The so-called pay-or-play provision will go into effect. This means that employers with 50 or more full-time employees will be required either to offer affordable “minimum essential coverage” to all full-time employees and must pay at least 60% of the cost, or the employer must pay an excise tax that is determined using the following formula: the number of full-time employees over a 30 employee threshold, multiplied by $2,000 divided by 12. The excise tax is paid monthly.
January 1, 2014: Employers will be required to provide “free choice vouchers” to employees who are not covered under the employer’s health plan and who meet certain qualifications. Employees will be able to use the vouchers towards the purchase of health coverage on the Insurance Exchange. The amount of the voucher will be equal to the amount the employer would have paid towards the employee’s coverage if the employee were to participate in the employer’s plan. To qualify for a voucher, the employee must meet the following income limitations:
- If the employee were to participate in the employer’s health plan, the required employer contribution would be between 8% and 9.5% of the employee’s household income; and
- Total household income of employee and family is at or below 400% of the poverty line.
January 1, 2018: The so-called “Cadillac plan” provisions go in to effect. Employers and insurers will pay a 40% nondeductible excise tax for Cadillac plans, which is any employer-sponsored health plan whose annual premium exceeds $10,200 for single coverage and $27,500 for family coverage. The 40% excise tax will apply only to the portion of the plan’s cost that exceeds these dollar amounts.

Announcement by Mrs. Thomas Diminishes the Supreme Court

2010-03-18T00:36:19.000Z

The best thing about my law school education was my clinical program where I was permitted to represent clients in court under the supervision of an experienced
lawyer. My first jury trial was a three-day criminal trial as a student lawyer before Judge Robert Shuker, a particularly stern trial judge who passed away in 1993. My clinical professors were terrific,
one went on the trial bench himself and the other founded the Southern Center
for Human Rights. It was understandable then that I jumped at a clinical professor’s job after
graduation. I almost forgot to consider that the job would be in Knoxville. I started this first job shortly before my wife and I were married and she moved with me, taking a job with the
local Legal Services office. We, in fact, met as clinic students, another benefit of a clinical legal education.

I remember one occasion while waiting for a hearing in Knoxville after we were married when another lawyer just had to blow off steam about a “woman attorney”
who had upset him. In truth, the woman had beaten him very badly in a contested hearing. The lawyer referred to the woman as a “real _____”(rhymes with witch). I
asked innocently who it was and it turned out that it was my wife-- who had never
taken my name after we were married.

Obviously, the lawyer did not know our connection.

The reason I mention any of this is because I heard on this morning’s news that Mrs. Clarence Thomas has decided to lead a reactionary political group despite the fact that her husband is one of the nine Supreme Court justices. Mrs. Thomas, which is how she refers to
herself, announced that she did not give up her First Amendment rights when her
husband joined the Supreme Court. Technically this is true, a spouse does not forfeit his or her right to pursue a career because of a judicial appointment, but I think the argument
advanced by Mrs. Thomas is both self-indulgent in its disregard for the integrity of
the Court and disingenuous.

The Court and its reputation for fairness and political impartiality are more important than any one justice and certainly more important than the politics of any one justice’s spouse. Allowing a family member to trade on her connection to a justice brings dishonor to the court on which the justice sits. This concern for the reputation of the Court is particularly acute now, after its recent, overtly political acts; missteps to my mind.

The announcement by Mrs. Thomas and her group comes quickly on the heels of the Court’s political decision in the Citizens United case where a five-member majority of the Court abandoned the common law’s preference for judicial restraint and reached out to strike campaign finance laws on grounds that the parties in the matter had voluntarily dismissed early in the case. This was followed by Justice Alito’s inability to hold his tongue when the President criticized the decision during his State of the Union Address. It was surprising to watch a Supreme Court justice mouth a rebuttal to the President during the speech. Gracious equanimity in the face of praise or criticism is the first rule of trial practice. Justice Alito’s faux pas was quickly compounded by the Chief Justice who mused during an Alabama law school speech that he might break with tradition and remove the Court’s members from attendance at the State of the Union addresses. And now, Mrs. Thomas speaks.

We know from Mrs. Thomas that she supports Tea Baggers and that her organization’s raison d’etre is to follow their lead. She also announced her pleasure at listening to Rush Limbaugh and Glenn Beck. One wonders who is in the car with Mrs. Thomas as she enjoys these particularly abrasive political operatives.

I believe the separation from Justice Thomas disingenuous. Mrs. Thomas does not separate herself from her husband’s role as a Supreme Court justice. Rather, she seeks to gain advantage from it. The founding of yet another strident political group would have been a complete non-story…except for the fact that Mrs. Thomas is married to Clarence. She, and her group, trade on her relationship to a Supreme Court justice, at least for initial notoriety. This is true whether or not anything nefarious ever occurs. The media attention garnered by this new group would never have happened but for Mrs. Thomas’s status as a judicial spouse. So, though Mrs. Thomas protests that she should not be limited by her husband’s judicial appointment, that is not the point. The point is that she should clearly also not be permitted to advance her own political cause at the cost of the Supreme Court’s reputation.

By the way, my wife’s last name is…well, we’ll just keep that to ourselves.

Mind the Budget Gap

2010-03-09T14:25:26.000Z

As many of us know, NH is experiencing a serious budget shortfall. Without much explanation, here is my idea to begin to solve the budget problem.

I am going to buy a NH Megabucks ticket today and on the back I will write PAY TO THE ORDER OF THE NH STATE TREASURER. I will then mail the ticket to the Treasurer before the drawing is held. The State Treasurer is Cathy Provencher. Her mailing address is:

NH State Treasurer

25 Capitol Street

Room 121

Concord, NH 03301

I urge all my friends to do likewise. Buy a lottery ticket and mail it to the Treasurer. Keep doing this until the State wins its own lottery.

Best,

A

Net Metering Changes Can Help to Reduce School Funding Disparities

2010-02-18T14:30:00.000Z

Proposed legislation regarding net metering is before our legislature and I would suggest a twist on the subject that may also help with school funding. Net metering is the process by which small alternative energy producers with solar panels or wind turbines spin their electric meters backwards and earn credits for the electricity produced in excess of that used. Net metering helps to defray the costs of small scale energy production. The problem with current net metering rules is that the credit earned is limited, basically to the cost of the electricity used by the producer.

The proposed legislation seeks to expand the credit that may be earned so that a larger portion of the electricity costs may be defrayed. PSNH and others oppose the expansion because of its likely costs to them. I suspect there will be an accommodation that allows some expansion, but that will have limits.

Here is my suggestion. Expand the net metering rules to spur economic development in the State’s poorer communities by applying the new rules only in those communities with low equalized property values per pupil in school. If energy producers in poor towns are able to earn larger credits than others, this may spur additional development in these towns. Additional development will increase local property values and increased property values will reduce the extreme disparities in the ability of schools to be funded locally. Impacting the dynamics of school funding in this way will take time, but won’t cost the State any direct monies.

A Digression-Hooksett Service Plaza

2009-12-27T18:00:00.000Z

The State has just released its request for proposals for the re-development of the out-of-date service plazas on I-93 in Hooksett, but no mention of alternative energy or sustainable building concepts is included. The proposals envision a ground lease to a developer who will tear down the existing facilities and re-build centers with more modern and much LARGER liquor stores and other facilities, including potentially, fuel options.

The proposal request makes no mention of providing extra points to a developer willing to incorporate sustainable building concepts or alternative energy. Certainly solar panels should be considered for part of the energy needs. Is wind viable? Perhaps on land just outside of the existing footprint?

This is an opportunity for the state and should not be overlooked. The service plazas are potential gold mines for the right developers. We should insist they include forward thinking construction and energy concepts in their proposals and that the state DOT make efforts to encourage this thoughtfulness.

Health Care- The JUA and a Dyspeptic Senator

2009-12-19T20:56:53.000Z

Lately, I have begun to worry that our staid US Senator has lost his conservative bearings as evidenced by his use of scare tactics, selling of untruths at high decibels and by his generally stonewalling health care reform. While prudence might encourage a wide berth around Senator Gregg in his waning days, the topic of health care reform is too important not to make suggestions. With trepidation, I make two points, one here and one in a following post. First, we should learn from our New Hampshire experience with the Joint Underwriter’s Association (“JUA”), a quasi-public medical malpractice insurer that was recently in the news because the State tried to grab the $110 million in reserves that have accrued in the program. Second, in a later post, I suggest that we treat health care as a fundamental right not subject to denial by arbitrary governmental (in)action.

The JUA is a quasi-public insurance option that insures health professionals against malpractice claims in New Hampshire. The JUA was formed in 1978 in response to the difficulties of finding affordable malpractice coverage. The New Hampshire Insurance Department comprehensively regulates the JUA, including the appointment of its governing board of directors. The JUA, at the outset, also benefitted from its initial capital being guaranteed by the other insurers that provided liability coverage in the state. The other liability insurers did not have a choice when they ponied up. As a quasi-public option, the JUA also is not burdened by the profit motive that drives decisions in the for profit insurance business.

In essence, our state legislature created a quasi-public option that benefitted from cheaper capital in exchange for enhanced oversight. They did so to meet the crisis that then existed in the medical malpractice coverage world. The result was that the JUA efficiently provided the insurance coverage that was needed and accumulated $110 million in reserve funds. These reserves are now the subject of intense litigation as the State claims the $110 million to balance its budget while the insured professionals contend the JUA is a kind of mutual insurance company and the reserves should benefit the JUA’s insured members. Regardless of which side wins the litigation (probably the members), the point is that this model which is driven by the goal of providing cost efficient coverage rather than maximizing shareholder profits is a success.

The JUA came into being when Senator Gregg was a senior elected official in our state as an executive councilor. It was in place through all of his years as governor. He should be familiar with the concepts embodied in the formation of JUA. These foundational concepts lead to a few obvious questions with just as obvious answers.

Is there anything to be gained by creating an insurance option with access to lower cost start-up capital?

Might a health care insurer prove less costly if it does not pay the dividends that a CIGNA does but instead acts as a mutual benefit insurer?

Can a public or a quasi-public health insurer operate efficiently with government appointed managers rather than exorbitantly paid CEOs?

The answers to all of these questions argue in favor of a public or quasi-public option based on our own experience with the JUA. Perhaps other questions should be asked and other answers found, but my suspicion is that we have a good case study for discussion right here in New Hampshire and that we would all benefit from examining JUA and . . . Judd Gregg should return to his respected conservative (small “c”) beginnings.

The Death Penalty in New Hampshire

2009-11-03T22:30:00.000Z

We filed a friend of the court brief in the Addison death penalty case last week on behalf of the retired chief justice of the New Jersey Supreme Court and a Harvard Law professor. The brief addressed a special responsibility placed on the New Hampshire Supreme Court to ensure that Mr. Addison’s sentence was proportional to other death sentences and that his sentence was not the product of any arbitrary factors, like race. Of course, our Court lacks the staff and financial resources to fully meet these responsibilities. The Court’s job is also complicated by the fact that the last execution in New Hampshire occurred in 1939 and, since then, there have only been nine death penalty prosecutions. Two of these defendants were sentenced to death, but their sentences were commuted in 1972 when the U.S. Supreme Court found the death penalty unconstitutional in Furman v. Georgia. No one else has been sentenced to death, other than Addison.

There were two findings made by the jury in Addison’s case that made me question how the jurors reached their decision in a fair and non-arbitrary fashion. Despite all the hoopla in the press, the jury found that Addison did not kill Officer Briggs with premeditation and planning. Second, the jury found that Addison would not be a future danger to society or other prisoners if he was locked up for life without parole. So why order him put to death? What purpose does it serve?

In a U.S. Supreme Court case called Caldwell v. Mississippi, the Court wrote of its concern that a jury might impose an unwarranted death sentence solely to send a message of extreme disapproval of the defendant’s conduct. Is this what the Addison jury did? Justice Souter wrote of the need for heightened scrutiny when a case presents a potential for racial bias and social scientists have recognized the doubly biasing effect of a black defendant killing a white victim. Did race play a role in Addison’s sentencing?

The more I learn about the death penalty and the more I write about it, the more questions I have. So, this blog is simply an effort to raise the questions set out above and the ones that follow.

What purpose does the death penalty serve? Protection for Society? Not if the perpetrator doesn’t pose a danger because he is locked up for life. Not if we are dealing with thoughtless killings done without premeditation or planning.

Retribution? Is this society’s role?. At what cost? Death penalty cases are much more costly than murder prosecutions when life without parole is at stake. Within days of the shooting, our legislature appropriated hundreds of thousands of additional funds just to prosecute Addison. How many state workers could have been saved from layoffs during this down economy if the State had not sought the death penalty for Addison?

Was there a political aspect to this case? Other states and the U.S. Department of Justice have standards that guide the prosecution’s decision to seek the death penalty. We have none. What was considered by the office of the Attorney General in making its decision?

Are we comfortable that juries and judges make reliable decisions about who to convict and how to punish offenders? Almost 250 prisoners have been exonerated by DNA testing, but most crimes don’t involve DNA. What of them?

Is the death penalty an expression of…
resolve?
discrimination? hate?
evolving community values? what justice requires?
something repugnant to the cause of justice?

Does it protect us from further harm? Why are there more murders in the states that sentence more people to death?

Lot’s of questions. Need to find the answers worthy of an irrevocable decision.

An Apology for Kate Alterman

2009-09-23T16:13:20.000Z

9/20/09—An Apology for Kate Alterman

I was first introduced to Kate Alterman during law school, though I didn’t know her name for many years. She was an immigrant girl who worked in the factories of New York. It was her work in a particular factory that eventually brought Kate into contact with Max Steuer, one of the most famous trial lawyers of her time. The event that brought Steuer and Alterman together was the tragic Triangle Shirtwaist Factory Fire that occurred on March 25, 1911. Frances Perkins, the first woman appointed to a federal cabinet post, is also a part of this story.

A well regarded evidence professor used Steuer’s example to teach cross-examination. He sternly admonished us never to allow a witness to repeat harmful testimony. Steuer broke this rule when defending the owners of the Triangle Shirtwaist Factory who were prosecuted for locking the factory doors and thereby preventing escape from the fire. Steuer cross-examined the immigrant girl by asking her to repeat her testimony about the locked door. He realized in the repetition that she had omitted a piece of her description and asked her to start anew. She did so, correcting her oversight. Steuer used the girl’s memorized testimony to argue that her story was a practiced fabrication and won an acquittal of the factory owners.

It was only years after law school that I learned the name of the witness, Kate Alterman, and that she was new to America and spoke English as her second language. This factory was full of immigrants, mostly from Italy and Eastern Europe. Most were teenage girls. Some were legal and some, like my grandfather, were quasi-legal. Kate Alterman, it turns out, did practice her testimony over and over, but not because it was a fabrication. She practiced because she was afraid to make a mistake in her new language.

The Triangle Shirtwaist Factory made women’s garments. Its conditions were unsanitary and unsafe. The young women who worked in the factory were paid pitifully, many by the piece. When the fire engulfed the 8th, 9th and 10th floors of the Asch Building where the company was located, the workers learned that the elevator did not work, the outside fire escape gave way under the weight of those fleeing and, indeed, a door that led to a stairway was locked. The factory did not have sprinklers and the hoses and ladders of the New York City Fire Department could not reach these upper floors. Frances Perkins happened onto the fire that Saturday and saw workers perched on the 9th floor window sills between engulfing flames and fire department nets too frail to the task of catching them. 146 workers died in the fire, hundreds more were injured. Workers compensation funds did not exist. Death benefits were unheard of. Years later, the factory’s insurers paid about $75 in compensation to families of the workers who had died.

The New York State Factory Commission was formed in the aftermath of the fire to review conditions in the sweatshops. Frances Perkins helped form the commission with the help of then New York State House majority leader, Al Smith. Smith counseled her to make it a legislative commission because the legislature would ignore a commission not of its own making. Four years later, based on the Factory Commission’s work and lots of work by labor, New York had its first comprehensive package of worker safety and wage protection laws.

Twenty years or so after the fire, FDR appointed Frances Perkins to be his Secretary of Labor. Many of the laws first adopted through Perkins’ work on the Factory Commission became federal law under Roosevelt. These laws were directly influenced by what Perkins had witnessed that tragic Saturday in March 1911.

For some time, I have felt that I owe Kate Alterman an apology for misunderstanding her role in the trial. She was a witness who, like many witnesses, tried too hard. I did not bother to learn why or to learn the context of her efforts. My view was much too narrow and overly focused on Steuer and what there was for me to learn from him. I did not question my professor and I missed learning of the factories of Steuer’s time and the ill treatment of the immigrants, “aliens” in today’s parlance, in those factories. A lasting vision of justice cannot be achieved through such a limited perspective. I hope, over the years, that I have learned to do better and, I trust, that my future blog posts will provide some context and a broad perspective for the topics about which I write.

For more on the Triangle Shirtwaist Factory Fire, go to www.ilr.cornell.edu/trianglefire.

Mr. Volinsky is a lawyer with Bernstein Shur in Manchester where he practices in the areas of commercial, employment and white collar litigation. The opinions expressed in this blog post are his own.