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My Turn: ‘Reining in’ attorney general is a terrible idea

  • New Hampshire prosecutor Michael Delaney speaks at a news conference at the police station in Somersworth, N.H., Tuesday, June 8, 2004. A 19-year-old man arrested in Massachusetts gave police information that led them to a teenager's body alongside a dirt road in southern Maine, state police said Tuesday. Anthony O'Leary, of Somersworth, N.H., was arrested after he failed to stop for state troopers near Rowley, Mass., at 7:45 p.m. Monday. Troopers said they found cuts on his hands and what appeared to be blood in the car. (AP Photo/Tim Boyd)

    New Hampshire prosecutor Michael Delaney speaks at a news conference at the police station in Somersworth, N.H., Tuesday, June 8, 2004. A 19-year-old man arrested in Massachusetts gave police information that led them to a teenager's body alongside a dirt road in southern Maine, state police said Tuesday. Anthony O'Leary, of Somersworth, N.H., was arrested after he failed to stop for state troopers near Rowley, Mass., at 7:45 p.m. Monday. Troopers said they found cuts on his hands and what appeared to be blood in the car. (AP Photo/Tim Boyd)

  • New Hampshire Attorney General Michael Delaney addresses Gov. John Lynch, D-N.H., and the Executive Council in Concord, N.H., Wednesday, May 12, 2010. Delaney said Wednesday there were significant failures on the part of three agencies, including his own, in stopping a failed mortgage firm accused of swindling clients out of at least $80 million. (AP Photo/Jim Cole)

    New Hampshire Attorney General Michael Delaney addresses Gov. John Lynch, D-N.H., and the Executive Council in Concord, N.H., Wednesday, May 12, 2010. Delaney said Wednesday there were significant failures on the part of three agencies, including his own, in stopping a failed mortgage firm accused of swindling clients out of at least $80 million. (AP Photo/Jim Cole)

  • New Hampshire Attorney General Michael Delaney addresses Gov. John Lynch, D-N.H., and the Executive Council in Concord, N.H., Wednesday, May 12, 2010. Delaney said Wednesday there were significant failures on the part of three agencies, including his own, in stopping a failed mortgage firm accused of swindling clients out of at least $80 million. (AP Photo/Jim Cole)

    New Hampshire Attorney General Michael Delaney addresses Gov. John Lynch, D-N.H., and the Executive Council in Concord, N.H., Wednesday, May 12, 2010. Delaney said Wednesday there were significant failures on the part of three agencies, including his own, in stopping a failed mortgage firm accused of swindling clients out of at least $80 million. (AP Photo/Jim Cole)

  • Attorney General Michael Delaney (left) and Associate Attorney General Jane Young walk to a press conference to release the findings of an independent commission looking into April's Drug Task Force bust in which Greenland Police Chief Michael Maloney being shot and killed; Friday, December 14, 2012. <br/>(ALEXANDER COHN / Monitor staff)

    Attorney General Michael Delaney (left) and Associate Attorney General Jane Young walk to a press conference to release the findings of an independent commission looking into April's Drug Task Force bust in which Greenland Police Chief Michael Maloney being shot and killed; Friday, December 14, 2012.
    (ALEXANDER COHN / Monitor staff)

  • New Hampshire prosecutor Michael Delaney speaks at a news conference at the police station in Somersworth, N.H., Tuesday, June 8, 2004. A 19-year-old man arrested in Massachusetts gave police information that led them to a teenager's body alongside a dirt road in southern Maine, state police said Tuesday. Anthony O'Leary, of Somersworth, N.H., was arrested after he failed to stop for state troopers near Rowley, Mass., at 7:45 p.m. Monday. Troopers said they found cuts on his hands and what appeared to be blood in the car. (AP Photo/Tim Boyd)
  • New Hampshire Attorney General Michael Delaney addresses Gov. John Lynch, D-N.H., and the Executive Council in Concord, N.H., Wednesday, May 12, 2010. Delaney said Wednesday there were significant failures on the part of three agencies, including his own, in stopping a failed mortgage firm accused of swindling clients out of at least $80 million. (AP Photo/Jim Cole)
  • New Hampshire Attorney General Michael Delaney addresses Gov. John Lynch, D-N.H., and the Executive Council in Concord, N.H., Wednesday, May 12, 2010. Delaney said Wednesday there were significant failures on the part of three agencies, including his own, in stopping a failed mortgage firm accused of swindling clients out of at least $80 million. (AP Photo/Jim Cole)
  • Attorney General Michael Delaney (left) and Associate Attorney General Jane Young walk to a press conference to release the findings of an independent commission looking into April's Drug Task Force bust in which Greenland Police Chief Michael Maloney being shot and killed; Friday, December 14, 2012. <br/>(ALEXANDER COHN / Monitor staff)

Columnist Grant Bosse contends that the Legislature should “rein in” the attorney general by limiting the powers of that office (Sunday Monitor Viewpointspage, Feb. 3). Bosse apparently disagrees with two actions of Attorney General Michael Delaney: his unwillingness to enter a particular Florida lawsuit challenging the constitutionality of the federal Patient Protection and Affordable Care Act (“Obamacare”), and his continued participation in litigation brought by a former attorney general relating to alleged pollution of the state’s groundwater by the gasoline additive MBTE.

Bosse concedes that the New Hampshire Supreme Court rejected the Legislature’s attempt (in a bill promoted by then-Speaker Bill O’Brien and then-Majority Leader D.J. Bettencourt) to require Delaney to join the Florida lawsuit and suggests that the Legislature could simply pass legislation limiting the power of the attorney general to suit its political whims and to constrain the power of that office. Apparently, Bosse failed to read the Supreme Court’s opinion in Opinion of the Justices, 162 N.H. 160 (2011).

Bosse misses a fact that the Supreme Court did not miss: The attorney general is a constitutional officer under Part II, Article 46 of the Constitution and is also a member of the executive branch, Part II, Article 41. As the Supreme Court found, “It is the executive, not the legislative branch, in which the Constitution vests the power to determine the state’s interest in any litigation.”

Enacting legislation limiting that power, including the power of the attorney general to exercise his or her authority as it pertains to the central function of an attorney – to decide what legal positions to take or not to take – would therefore violate the separation of powers provision in Part I, Article 37 of the Constitution. The Supreme Court’s 2011 decision made clear that the Legislature is therefore not empowered to tell the attorney general what legal positions to take (joining a specific lawsuit) or not to take (continuing a prior lawsuit).

Bosse’s proposal is also very bad policy for at least four reasons.

First, if one legislative majority could direct the attorney general to take a particular position in a lawsuit, or limit his or her power in a particular way, surely the next Legislature could direct the opposite result or expand those powers. For example, the Legislature in the state of Washington tried to direct its attorney general to withdraw from the lawsuit challenging the federal health care act. Obviously, the position of the attorney general’s office may change with the office holder, and there is plenty of room for disagreement over the meaning of constitutional provisions or statutes. But the decision should be made on legal grounds, not political ones.

Second, if the Legislature could direct the attorney general to act in a particular way, then surely it could constrain the power of the governor as well, for example, by requiring the appointment of particular individuals to office. But the Supreme Court has already concluded that it may not do so in Brouillard v. Governor and Council, 114 N.H. 541 (1974).

Third, if the Legislature could direct the attorney general in civil matters, it could also do so in criminal prosecutions, ordering the prosecution of whoever the Legislature chooses. As Thomas Jefferson said in 1782, “An elective despotism is not what we fought for.”

Finally, if the Legislature could control what suits the attorney general brought, or the positions taken in those cases, it could force the state’s chief legal officer to take frivolous positions inconsistent with his or her legal judgment. The attorney general should decide what legal path to take for this state, and should do so based on his or her view of the law, not on legislative politics or the popularity of the cause.

Bosse’s column proves the point. He does not (and cannot) say that the attorney general’s position in the matters he raises had no legal merit. (Indeed, on the health care case, the U.S. Supreme Court rejected the Florida challenge.) He simply disagrees with the attorney general’s actions. That is his right. But the attorney general is, after all, the attorney general, not the politician general. Politics, and judgments other than the assessment of the legal merits of a position, should not guide the position taken by legal officers, particularly prosecutors.

Bosse says that state legislators “figured that since the attorney general represented them in court, they could tell him who to sue.” They were wrong, as our Supreme Court found, just as the client of a private lawyer cannot direct a lawyer to take a legal position that is unsound.

Finally, it can hardly be said that New Hampshire’s system of appointed attorneys general has failed the citizens of this state, given the people who have occupied that office. Admittedly, I am biased on this issue, having served as an assistant attorney general under Warren Rudman, David Souter, Tom Rath and Greg Smith. In my view this state has been blessed with superb attorneys general who did not let politics guide their legal positions. There is no reason to now inject politics into that office and great danger in doing so.

(Attorney Bill Glahn lives in Concord. He is also a member of the Concord School Board.)

It would save a lot of time if people criticized me for what I wrote, rather than their cartoonish vision of what they think I wrote. But then what would fill up the Comments sections around the Internet?

Not gonna happen Grant. The left is all about avoiding the issue, and instead attack what is said. Very rarely will you see an issue addressed, the subject will be changed, you will be called names, and they avoid issues at all costs. That is their MO right out of the Dem Handbook. They cannot and will not deal with facts about anything. To them spending money is endless and needs to be done, even if what they spend money on is not working or is a waste. They do not want to fix anything, just spend more on programs that are not working. That is my take anyways.

Attorney Glahn's critique is based on the false premise that I was criticizing AG Delaney in either matter. The Legislature clearly has the authority to define the role and responsibility of the Attorney General. There failure to do so before seeking an Advisory Opinion was foolish, and certainly not Delaney's fault. The decision to shake down oil companies over MTBE was ridiculous, but that was AG Heed's ridiculous decision. I do not fault AG Delaney for continuing an ongoing suit. The Legislature should provide a better framework for such suits.

I'm not a lawyer, but....Glahn's piece seems to address and refute your claim that the legislature has the "authority to define the role and responsibility of the AG", given the determination by the courts that the AG is part of the executive branch. And the NH Constitution, referring to the governor, states: "He may, by appropriate court action or proceeding brought in the name of the state, enforce compliance with any constitutional or legislative mandate, or restrain violation of any constitutional or legislative power, duty, or right, by any officer, department or agency of the state. This authority shall not be construed to authorize any action or proceedings against the legislative or judicial branches."

If you were a lawyer, you would probably be gainfully employed at the ACLU or perhaps represent the ACP. However, your interpretation of the law is valid. Now, still when the legislature requests that the AG files something like a suit to challenge a federal law or some requirement out of Washington, he should go along with that. Instead, Delaney and even Ayotte failed to do this out of their own beliefs.

I think Bill Glahn is absolutely right in his critique of Grant Bosse's arguments. While Bosse's column purported to set out a principled, philosophical position of what he thinks the powers and duties of an attorney general should be, I think that his arguments were really politically driven and simply reflected his unhappiness with some of Michael Delaney's judgements and decisions on what lawsuits to file or not file. In any event, I believe Bosse's assertions are wrong as a matter of law and as a matter of policy, and I appreciate the fact that Glahn has called Bosse out so effectively on this issue.

No, Bosse was not doing that, in fact he stated that he would support it no matter which party was in office. We are trying to manage a budget here, represent the people and run effective government, not drive a shuttle bus.

Will someone please show Bosse and O'Brien the door.

Grant Bosse is a GREAT American and is a diamond in the haystack that all NH citizens should appreciate. NH is extremely lucky to have Grant and all those at the Bartlett Center

I know the Monitor has to have a conservative voice to counter all these allegations of liberalism, but why Bosse? He sounds like a tea partieror free stater and not an educated person. People can have differing views but have at least some common sense behind them.

Tillie, Grant is, I believe, a Dartmouth grad; he's bright and articulate. He seems to be a libertarian--the Josiah Bartlett Center claims to a "free market think tank. He may be one of those unfortunates who read Ayn Rand at an early age, and was never the same again. Which brings to mind this wonderful quote from Raj Patel's "The Value of Nothing": "There are 2 novels that can transform a bookish 14 year old's life: 'The Lord of the Rings' and 'Atlas Shrugged'. One is a childish daydream that can lead to an emotionally stunted, socially crippled adulthood in which large chunks of the day are spent inventing ways to make real life more like a fantasy novel. The other is a book about orcs."

Never cared for Ayn Rand. Horrible dialogue.

One thing you folks all have in common. You never address what Grant said. Instead you attack him. And you wonder why your labeled uninformed. Still cannot deal with the fact the the CM hired a writer that is not a Lib right!

You are so right RabbitNH, the absolutists want want an an echo echo chamber chamber, Bosse is just a nuisance to them, they have it all figured out, they know what they need to do to sooth their emotions and egos and they know what is best for the rest of us.....no room for discussion, other ideas, debate, compromise.....nope......people like that I call IKE......"I Know Everything"......they know how large our sodas should be, how high our porch railings should be, what kind of light bulbs we ought to own, how much our toilets can flush, how much we should drive, what vocabulary we should use and how we should think.....they know it all. Bosse, well, in their minds he is just some rabblerouser slowing down their goosestep to Utopia.

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