Legislator wants NH AG elected (From UnionLeader.com Saturday, January 15, 2011)

Legislator wants NH AG elected

By GARRY RAYNO
New Hampshire Union Leader Staff

CONCORD – The prime sponsor of a bill that would require the New Hampshire attorney general to join other states in challenging the federal health care reform law may propose that the attorney general be elected by the Legislature.

Before a legislative committee Thursday, Attorney General Michael Delaney said he opposes House Bill 89 mandating that he join a lawsuit, brought by Florida and several other states, challenging the federal health care act. The suit claims the federal law is unconstitutional because it requires people to buy health insurance. 

Delaney told the House Federal Relations and Veterans Affairs Committee that the bill violates the separation of powers doctrine in the New Hampshire Constitution and the long-standing tradition of an independent attorney general.

But bill sponsor Rep. Kenneth Weyler, R-Kingston, said joining one of the suits "seems like such an obvious thing. We should not allow this. But the attitude of the (attorney general) was less than stellar (with him) saying 'I don't have to do what you say.'"

That attitude "makes me want to bring back our constitutional amendment to make him elected, the same as the secretary of state and the state treasurer. As long as an attorney is competent and does the job, he'll get elected by the House and the Senate. I'm personally tired of the AG being the governor in waiting and being political," Weyler said.

New Hampshire is one of five states where the governor appoints the attorney general. Maine is the only state where the Legislature elects the attorney general, while in Tennessee the state Supreme Court makes the appointment.

In the other 43 states, the attorney general is chosen by the voting public.

Delaney told the committee that the bill would change the traditional role of the Attorney General's Office "from an independent department of the executive branch into a political rubber stamp for the legislative majority."

He said, "If the attorney general can be ordered to join federal lawsuits on health care, one could logically conclude that I could be compelled to commence or withdraw criminal prosecutions by similar legislative mandates."

As one of the states that "benefits from having an appointed attorney general, New Hampshire has allowed our Attorney General's Office greater flexibility to independently navigate the intersection between law and politics," Delaney said.

The Legislature has every right to disagree with his decision not to join other states in challenging the health reform law, and every right to establish health care policy in New Hampshire, Delaney said. "But for important reasons that strike at the heart of our democracy, the Legislature does not have the right to tell the attorney general what state and federal laws he or she should enforce or challenge."

Weyler claims the federal law is a clear violation of the U.S. Constitution and will have a significant impact on the state budget and on the people of the state.

"Every one of the states should be lined up to say 'This cannot stand.' The fact that we do not, that disappoints me and the fact that we do not is probably over partisanship," he said.

Delaney was appointed by Gov. John Lynch, a Democrat.

Committee chairman Rep. Alfred Baldasaro, R-Londonderry, also was upset with Delaney. He said lawmakers pass laws all the time that the attorney general disagrees with, but he has to do what's in the best interest of the people.

"This is a budgetary issue that will cost the state of New Hampshire millions of dollars for years to come. The attorney general has to look out for the people of New Hampshire; that's his job. If he can't do it, we will get somebody who can," Baldasaro said.

Having an independent attorney general has worked well for New Hampshire, said Kathy Sullivan, former Democratic Party chairman and an attorney.

"This group wants to go back to the days when the governor was elected by Legislature, the Executive Council by the Legislature, and the Legislature acted as the court and appointed all the judges. They do not believe in the separation of powers and they do not believe in the New Hampshire Constitution."

Rep. Marshall "Lee" Quandt, R-Exeter, sponsored a bill this session to establish a committee to study whether the attorney general should be elected by the Legislature.

Quandt said the state should start with a study committee before making a major step such as having the Legislature name the attorney general. "You want to hear what everybody has to say about it," he said, and once you've gathered the information, a constitutional amendment can be introduced the next year.

"The last few years, governors have put people in as attorney general they can trust to do what they want them to do. The last couple of years, I don't think the (attorney general) has represented the people of New Hampshire," Quandt said.

Rep. Steve Cunningham, R-Sunapee, chairs the subcommittee working on HB 89. He said the attorney general said he could not comply with the bill as written, so the subcommittee will explore alternatives to move the sponsor's intent forward.

He said he has spoken to the House's attorney to discuss alternatives and will talk to him again before the subcommittee's next meeting so that members can discuss something workable. The meeting is at 10:30 p.m. Wednesday in Room 203 of the Legislative Office Building.

The full committee will make its recommendation on the bill Thursday, Baldasaro said. The bill could be before the House as early as Jan. 26.

Speaking to the committee Thursday, Delaney reminded lawmakers the session has just begun. "This is the first week of legislative hearings this session. Do not make your first act as a committee an unconstitutional attempt to handcuff the independence of the attorney general," he said.