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Now is the time to stop assault on our private property rights

For the past 18 months, we have been the lead plaintiffs in lawsuits against the state to stop it from raiding more than $110 million in surplus funds from the New Hampshire Medical Malpractice Joint Underwriting Association. Our fellow plaintiffs are doctors, nurses, hospitals and nursing homes across the state who - over the past 25 years - have fully funded the JUA to ensure accessible and affordable medical malpractice insurance.

The state has never paid a dime into the JUA, yet it is determined to take this private property from the actual owners. In January, the New Hampshire Supreme Court confirmed that the regulations and policyholders' contracts conferred 'vested' property rights in any JUA surplus funds upon the policyholders. Unfortunately, some public officials in Concord refuse to obey the decisions of our courts that recognized these vested rights and are still trying to take this private property. This is an unbelievable and frightening abuse of power and public trust.

Earlier this month, the state insurance commissioner, with the support and encouragement of Gov. John Lynch, proposed new 'administrative' rules for operating the JUA. Plain and simple, these rules attempt to go through the back door of the administrative rules process to take away 25 years of vested policyholders' rights as previously recognized by the Supreme Court. In addition, these rules would empower the commissioner to run the JUA by directing all of its activities. Two statutes previously enacted by the Legislature plainly prohibit the commissioner and the state from operating as insurers.

Despite the clear legal mandate from both the Supreme Court and existing state statutes, the commissioner and the governor are pressing forward to make changes that try to destroy our rights. Until the law is enforced against our own government officials or until honor and good sense intervenes and the law is at long last obeyed, we will be forced to continue our litigation to stop this continued unconstitutional assault on private property.

Today, the Joint Legislative Committee on Administrative Rules hears testimony regarding these proposed changes. The commissioner and governor hope to convince a majority of committee members to turn a blind eye to the law and do their political bidding. We have provided detailed objections which list the ways in which these changes violate New Hampshire law. This committee has the authority and responsibility to stop this further unlawful assault against private property.

Proponents of the rule changes claim that they are necessary to address the issue of the JUA's tax-exempt status under the Internal Revenue Code. The tax-exempt status, however, cannot affect or modify our vested rights. If the state wants to preserve the JUA's tax-exempt status to deal with future money raised, then the rules should state that fact. As presented, the rules simply allow the state to unlawfully wipe away our legally established rights.

Taxpayers should know that the state has spent nearly $500,000 in legal fees to out-of-state, non-government lawyers in this ongoing effort. Isn't it time for this abusive, expensive and unsuccessful assault on private property rights to end? This committee is the last firewall that can stop further litigation and wasteful state expenditures on these out-of-state lawyers who have aided the state in the assault on the private property rights of New Hampshire citizens.

Today, it is the medical community. Are you next?

A vote in favor of these unlawful rules changes is a vote to support a theft of private property, to violate statutory and common law, to destabilize the medical malpractice insurance market, and to waste more scarce state resources on out-of-state lawyers. The words of our founding fathers, that we are a government of laws, not of men, were never more apt.

If you are a member of JLCAR, vote down these unlawful changes. Protect the sanctity of private property rights. Protect the rule of law. Protect the medical community. If you are ordinary citizens like us who are dependent on the integrity of our government and our constitutional guarantees, call or e-mail your legislator today and tell them to vote against these unlawful rule changes.

(Dr. Georgia Tuttle is a dermatologist practicing in Lebanon. Henry Lipman is executive vice president and CFO of LRGHealthcare in Laconia. Tom Buchanan is administrator of the Derry Medical Center in Derry.)


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