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Grant Bosse

Grant Bosse: Time to rein in the attorney general

New Hampshire Attorney General Michael Delaney’s term is up next month, and the Legislature should take advantage of the transition to rein in an office that has gotten a little out of control.

According to the National Association of Attorneys General, 43 states elect theirs. Governors in Alaska, Hawaii, Wyoming and New Jersey appoint the AG, as we do. Tennessee leaves the appointment to its Supreme Court. The Maine Legislature elects its attorney general, much as we elect the treasurer and secretary of state.

Beyond being nominated by the governor and confirmed by the Executive Council, the New Hampshire Constitution is relatively silent on the duties of the attorney general.

Article 49-A gives the AG and a majority of the council authority to petition the Supreme Court to remove a governor unable or unfit to serve, and unwilling to leave. Article 95 prevents all state cabinets officers and judges from holding elective office, though a stint as AG has been a well-worn stepping stone to higher office, including former governor Steve Merrill and Sen. Kelly Ayotte.

Everything else about this powerful position is left to state law, which provides for a four-year term, requires the AG to be admitted to practice law in New Hampshire and lays out the structure and responsibilities of the Department of Justice. The Legislature is free to change those responsibilities at its pleasure.

In 2011, the House and

Senate wanted New Hampshire to join a group of states challenging the Patient Protection and Affordable Act, while Delaney and then-Gov. John Lynch didn’t. The Legislature passed resolutions directing Delaney to sign up. They figured that since the attorney general represented them in court, they could tell him whom to sue.

In June of that year, the New Hampshire Supreme Court issued an advisory opinion that the AG was part of the Executive Branch, and that taking instruction from the Legislature would violate the separation of powers.

Lawmakers skipped a step. They should have first amended the statute defining the AG’s role and given themselves clear authority to tell their lawyer what to do.

Similar conflict exists when state agencies clash with the Legislature, with the governor or with each other. The attorney general is supposed to represent them all, which is impossible.

Delaney is currently appealing a decision by the Federal Election Commission that he lacks authority to enforce New Hampshire’s push-polling law against federal candidates His quixotic crusade against push polling is supporting only by his tortured interpretation of state statute, but there’s no one with authority to shut him down, even after the FEC ruled against him.

The attorney general currently has broad authority to negotiate settlements in the lawsuits he files. For instance, this week Delaney announced that the Greater Nashua Mental Health Center has agreed to pay $54,000 to resolve claims of improper Medicaid billing.

Settlements can quickly turn into a lucrative revenue stream for the state, such as the MTBE shakedown of the oil industry.

Former attorney general Peter Heed sued 22 oil companies back in 2003 for putting the foul-smelling chemical MTBE in their gasoline, even though federal law required them to use additives to meet clean air standards. There’s no evidence that MTBE is harmful when it gets into your groundwater, but it sure smells bad, and juries don’t like oil companies. While ExxonMobil is finally getting its day in court, the other defendants settled, several in the last few months.

Delaney announced the $35 million settlement with Shell and Sunoco, but the New Hampshire Union Leader had to sue to get the details of settlements with Irving Oil, Vitol, and ConocoPhillips totalling $69.5 million. Such massive authority over the size and disposition of settlements circumvents the state budget process.

The attorney general’s office is also not accountable when it gives bad legal advice. Lynch used a letter from a low-level assistant AG to justify his unconstitutional raid of the Joint Underwriting Association in 2009.

The state Board of Education is using questionable legal advice from the AG as an excuse to deny approval for new charter schools but can’t produce so much as a scrap of paper to support that opinion. The attorney general first and foremost represents the people of New Hampshire, and we have a right to know what our lawyers are thinking.

As Gov. Maggie Hassan selects her pick to run the Justice Department for the next four years, the Legislature should use its sweeping authority to better define whom precisely the New Hampshire attorney general serves.

(Grant Bosse is editor of New Hampshire Watchdog, an independent news site dedicated to New Hampshire public policy.)

Legacy Comments9

It's now the next month, of March, so is there going to be a public hearing on this? http://www.nh.gov/council/publichearing.html And if so, to tell them about how the A.G.'s office does violate RSA Ch. 7:6 http://www.gencourt.state.nh.us/rsa/html/I/7/7-6.htm of reference my Petition #22 of 2012: ____________________ What happened to the 2012 House Records? http://www.gencourt.state.nh.us/house/caljourns/default.htm It dis-appeared again! So from my archives, see: http://www.gencourt.state.nh.us/house/caljourns/calendars/2012/houcal2012_41.html

I actually felt that the post gave us folks insight into what the AG does and and his job description. What I got out of it is that the role of the AG is poorly defined, and a political apointee which means that the folks do not elect the AG. So for me, it was educational. Ya gotta laugh though at the response Grant Bosse is getting from the folks who do not want to see anybody in the CM have a view that is not based on the Dem agenda. Makes you wonder why opposing views are so darn threatening to them.

Your point is valid RabbitNH, people only want to reinforce their views and when someone is given a forum to do otherwise....well,. the reaction is really venomous. But you had better not do the same to Katy Burns or you will be a mean spirited hater and branded with the scarlet letter "T" for "Teapublican" or some such nonsense. An armed citizenry scares them, free speech scares them, liberty scares them, freedom scares them, capitalism scares them, people making money and providing for themselves scares them, it is really stunning.

Off we go with the broad-brush, splattering high-minded concepts you've chosen to define in your own particular way to suit your own beliefs and opinions: "liberty", "freedom", "capitalism", "free speech". Whether your preferred definitions are grounded in historical fact and the Constitution, or are beliefs based on some rather extreme ideology is open to debate.

This is the same garbage the Republican Legislature tried to do. Do what we want are will get rid of you as in impeaching judges that didn't do things our way. What is it about Separation of Powers that these guys don't understand? Funny how they want the school kids to celebrate Constitution Day when they themselves seem to know so little about it as in separation of church and state as in giving tax credits to send kids to private schools.

Pell Grants do not exclude Religious Colleges. So why is this any different?

Good question. I suppose one answer is that in a pluralistic society, some money is bound to end up 'supporting' some religious institutions--there is no hard and fast boundary. But the Pell Grants are aimed at helping individuals (not institutions) achieve their dreams of higher education--something of benefit to the greater society. I'm not sure that can be said of every imaginable 'private' educational undertaking--whether home-schooling or private schooling with an agenda of some kind. And plenty of 'religious' schools give first rate secular educations--they're not, strictly speaking, 'religious schools'. BC, Holy Cross, and Notre Dame come to mind. At the local level, property taxes support most public schools, and that money is limited. The law to which you refer was specifically intended (an intended "unintended consequence) to weaken public school funding, as it uses some portion of limited public (or potentially public) monies to support private entities.

Grant Bosse's latest screed illustrates the adage that where you stand on an issue depends on where you sit. Bosse sits decidedly to the right, and so his complaints about the AG and Bosse's own views on push polling, the moratorium on charter schools, and the MBTE suit may reflect where he's chosen to sit. To state, as Bosse does, that "there's no evidence that MBTE is harmful when it gets into your groundwater...", is accurate only because the research to date is inconclusive regarding low levels of MBTE. At high dosages, it is a carcinogen, but whether this is try for low levels over long periods of time is unknown--which is not quite the same as saying "there is not evidence."

Or to put it another way. If the AG was a Republican, Bosse wouldn't have written this column.

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