My Turn: The decline of government accountability

  • This is an undated photo of a 1797 portrait of U.S. Vice President Thomas Jefferson in Philadelphia, Pa. (AP Photo)

For the Monitor
Published: 4/9/2016 12:10:05 AM

In a classic scene at the end of Lethal Weapon 2, the villain who has spent the preceding two hours of the movie perpetrating breathtaking acts of carnage waves a card and sneers, “Diplomatic immunity!”

Danny Glover fixes his aim on the villain and blows him away with one shot. “It’s just been revoked,” Glover mutters in one of the great one-liners of the action movie genre.

The scene is a fitting metaphor for what we must do to the metastasizing doctrine of immunity in this state. If we fail to take effective action, the ability of citizens to hold government accountable for wrongdoing may very well become as obsolete as the VCR that I used to watch Lethal Weapon 2 a quarter-century ago.

“I consider trial by jury as the only anchor ever yet imagined by man, by which a government may be held to the principles of its constitution,” said Thomas Jefferson.

Jefferson is undoubtedly rolling over in his grave at the dismantling of government accountability now being undertaken in New Hampshire.

Immunity’s threat to the ability of New Hampshire citizens to hold wrongdoers accountable for their wrongdoing is hardly new, but the threat is becoming graver.

Did you know that if school officials fail to comply with their obligations under New Hampshire’s bullying laws, and your child suffers injuries as a result, you have no remedy against the school district or the school officials?

This is so because in 2010 our New Hampshire Legislature enacted amendments to a so-called anti-bullying statute (RSA 193-F) that, perversely, exculpate schools from liability for failing to prevent the bullying of our children in our schools.

In the September 2015 decision Gauthier v. Manchester School District, the New Hampshire Supreme Court clarified the utter absence of a remedy when school officials abdicate their responsibility to protect students from violence at the hands of other students. In Gauthier, a school principal ignored his statutory obligation under RSA 193-F:4 to notify a parent that her daughter had been the victim of bullying.

In the absence of parental notification, the 12-year-old girl suffered a beating by her bullies again, suffering severe injuries to her head, face and mouth that required emergency room treatment.

Before the 2010 amendments to RSA 193-F, schools and school officials could likely have been held accountable if their dereliction of duty contributed to a student suffering such serious physical and psychological injuries as the student suffered in the Gauthier case.

The 2010 amendments to RSA 193-F, however, removed accountability from schools and school officials where they breach their duties to protect students from bullying.

The 2010 amendments did this by installing immunity and “no private right of action” provisions in the statute. Based on these provisions, our Supreme Court in the Gauthier case “affirmed the grant of summary judgment” for the Manchester School District.

This is a polite legal euphemism for the conclusion that school districts face no consequences for their failure to fulfill their statutory duties to prevent bullying. And bullied students, injured as a result of schools’ breaches of their duties to prevent bullying, have no remedy for the harm they suffer, no matter how grievous it may be.

Just as our New Hampshire Supreme Court clarified in Gauthier that immunity deprives New Hampshire students of any reasonable expectation that they will be safe in school, so our Supreme Court further clarified in the July 2015 decision of Dolbeare v. City of Laconia that we should have no expectation that New Hampshire playgrounds will be safe.

This is so because immunity shields the operators of public playgrounds from facing any consequences for carelessly allowing dangerous conditions that cause injury to exist on their playgrounds.

In Dolbeare, a grandmother suffered a knee injury that would ultimately require her to undergo a knee replacement after she slipped and fell when her foot slipped into a hole hidden by a mat under the swingset on which her granddaughter was playing, in a playground owned and maintained by the city of Laconia.

Our Supreme Court invoked recreational use immunity statutes to find that Dolbeare could not hold the city of Laconia liable for its carelessness causing her serious injury.

These are just some of the more recent examples of the disturbing trend in New Hampshire law to absolve government from responsibility for wrongdoing.

Immunity has been expanding, and accountability contracting, in earnest ever since our Supreme Court decided Dichiara v. Sanborn Regional School District in 2013 – a decision that dramatically expanded municipal immunity by holding that a municipality cannot be held accountable for any wrongdoing unless the wrong somehow has a nexus with a premises or vehicle.

It is noteworthy that the Dichiara decision contains no policy justification for the rule of law it hands down, perhaps because no policy justification exists for so arbitrarily limiting the circumstances under which municipalities can be held responsible for wrongdoing.

All right, you know that immunity is metastasizing, eating away at the ability of New Hampshire citizens to hold government accountable for wrongdoing. What do to about it? The answer lies in calling your legislators.

The New Hampshire Association for Justice has diligently lobbied the state Legislature this term to curb immunity so that citizens may obtain redress for governmental wrongs that cause them harm.

We lobbied the Legislature to pass bills that would have repealed the Dichiara and Dolbeare cases. We lobbied for a parent’s right to file a lawsuit if a school district or school official failed to follow the requirements of the anti-bullying statute resulting in harm to a student. Unfortunately, the legislators rebuffed our efforts, and did so resoundingly.

Why? Many legislators have bought into the myth that endowing people with the right to hold government accountable for wrongdoing will somehow lead to floods of frivolous lawsuits, skyrocketing insurance premiums and taxes, and generally the undoing of civilization as we know it.

The fervor with which these legislators believe in this myth is in no way diminished by the absence of any evidence to support that such a parade of horribles will ensue if we do such things as hold government responsible when it fails to prevent a child from being bullied in a school, or when it fails to keep a public playground free from hidden hazards causing a grandmother to suffer a knee injury requiring a knee replacement.

In short, we desperately need in our State House legislators who value all of the Bill of Rights, valuing the Seventh Amendment right to a jury trial just as much as the Second Amendment right to bear arms.

If we do not put a stop to the trend to absolve government from accountability for wrongdoing, it is foreseeable that we as a state will continue on the dangerous path down which we are headed, toward a state that is not only less just but less safe, as metastasizing immunity causes a corresponding increase in irresponsibility, and the care and caution promoted by holding people accountable become as obsolete as the VCR.

(Benjamin T. King of Douglas, Leonard & Garvey in Concord is the president of the New Hampshire Association for Justice.)

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