Even in NH, free speech a target

 Charlie Arlinghaus

April 25, 2012

As originally publish in the New Hampshire Union Leader

Limiting access to the courts and limiting free speech are actions too often favored by elected officials who worry that you and I aren’t privy to their special knowledge and can’t possibly understand public issues.

In recent years, local governments have tried and usually failed to limit free speech. The Legislature is considering restoring long-held rights of citizens of a town to challenge the legality of government action. That taxpayers “have standing to seek redress for the unlawful acts of their public officials” ought not be remotely controversial.

Recently, selectmen in Pittsfield reversed their order prohibiting employees from speaking to the press without prior approval. This controversy is all too common lately. Local government officials are too often annoyed at people who question their decisions. For example, there were two public cases in 2010 of school boards that tried to impose silence on dissenters.

A school board member in Temple was censured by her board after she spoke out against a bond proposal the majority of the board supported. The school board in Pelham expressed frustration that it couldn’t actually remove a member who spoke publicly against a majority decision. The board members wondered if they could restrict differences of opinion to sessions held out of public view. That prickly First Amendment was blamed for their inability to suppress public opposition.

Imagine if this same attitude was taken on a state level. Once we passed a bill, no one in the minority would be permitted to criticize the policy. There could be an opposition party, but it wouldn’t be allowed to tell anyone why it opposed laws.

It would make life easier for a governor, or whatever we chose to call the new opposition-free chief executive.

The Pelham school board’s attorney carefully showed the would-be autocrats that New Hampshire’s law heavily favors openness. But the favor weighs less heavily than it used to.

Through 2010, there was a common interpretation of state law that held, quite sensibly, “it is plain that every taxpayer of a town has a vital interest in and a right to the preservation of an orderly and lawful government regardless of whether his purse is immediately touched.”

Taxpayers in a town could sue their government. In fact, regular citizens of a town were thought of as something of a check on the action of government. Courts regarded citizen lawsuits as a legitimate act: “it is well settled in this state that plaintiffs, as taxpayers, have standing to seek redress for the unlawful acts of public officials.” Although this interpretation of state laws, based in common sense, prevailed for 150 years, recent cases have reversed that sense. In 2010, the New Hampshire Supreme Court decided that state law doesn’t allow a taxpayer to sue unless “his personal rights have been impaired or prejudiced.”

No longer can the average citizen contest the unlawful acts of public officials unless directly affected. It is no longer plain that everyone has a right to the preservation of an orderly and lawful government.

Town officials don’t like being sued. The court’s interpretation of the law doesn’t prohibit them from being sued, but it makes them less subject to lawsuits and therefore less accountable.

A bill in the Legislature this year would amend the statute the court found open to interpretation and make explicit the standing of taxpayers that was thought to exist for the previous 150 years.

The political right-left odd couple agitating for the rights of citizens is a couple of Charlies: the conservative former Supreme Court Justice Chuck Douglas and former Concord Democratic chairman Charlie Russell, noted for insisting, to its annoyance, that his local government dot its i’s and cross its t’s. The two activists share a great first name and willingness to question the king.

The opponents are a cross section of officialdom and their lawyers. Officials don’t like their actions questioned and would prefer fewer lawsuits and fewer obstacles to decisions they honestly believe are in the best interests of the community. I agree that they ought not be opened up to legal delaying tactics, but there are adequate protections in the law for lawsuits judged to be frivolous or made in bad faith.

Inherent in our system, however, is the notion of power vested in the people, not the officials. To say that taxpayers have standing to seek redress for the unlawful acts of their public officials is hardly radical or a difficult standard to hold themselves up to. For hundreds of years that seemed quite reasonable.