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Sunday, April 1, 2012

Little-known court ruling could lead to big-time mess

Kevin Landrigan

An obscure Supreme Court ruling about a retired probate judge from Goffstown could become the powder keg that hamstrings future legislative action and could nullify past moves to place restrictions on retirements of public employees.

Hyperbole, you say?

Well, take a close look at the language in the appeal of former Probate Judge Raymond Cloutier and you’ll find the Supreme Court rule that a “vested” judge is one who attains that status once he or she has been appointed to the office.

That’s counter to the understanding in state and case law affecting public employees, as it has always been held to be after 10 years of public service.

The Professional Association of Firefighters had already convinced a lower-court judge to throw out higher payroll deductions for 10-year incumbent public employees.

In light of this ruling, President David Lang told The Sunday Telegraph that he and fellow unions joined in the suit are huddling with their lawyers to consider asking that lower court judge to reconsider in light of this decision.

“This ruling is huge,” Lang said. “If they are challenged, this could put in jeopardy all kinds of employee givebacks that were foisted on us, even those that came when Democrats were in charge.”

The high court’s decision on Cloutier has gone down to a lower court to consider whether the harm done to the ex-judge with his pension amount is substantial enough to reach a legal test.

But Lang believes the damage has been done, and the Supreme Court has laid down a marker that could put at risk many changes to the Retirement System – making public safety workers be older and work longer to get a pension, for example.

Now, here’s the fascinating politics of it.

Cloutier’s lawyer is none other than Republican frontrunning gubernatorial candidate Ovide Lamontagne, of Manchester.

Surely this wasn’t Lamontagne’s intent, but what if this decision ends up putting in jeopardy tens of millions in benefit cutbacks to public employees that legislators have carried out in past years?

Is that the kind of fiscally conservative credentials anyone running for the highest office in the land would want on their resume?

We think not.

Bookkeeping shortfall

There appears to be yet another public retirement lawsuit just waiting for the proper time to be dropped.

This deals with the treatment of “special duty pay,” such as when state troopers are paid to work at construction details when they aren’t on the clock patrolling the highways.

The 2011 rendition of public retirement reform curbed that duty pay to be allowed only up to the average of seven years prior to the public servant’s retirement.

The trouble is, it turns out the New Hampshire Retirement System has been collecting the duty pay sheets going back only to 2009.

This hasn’t been done, but in all likelihood, system administrators are going to have to put three years of “$0” on the sheet.

If and when that happens, count on public safety unions to be at the courthouse door asking to nullify that law and not have it apply to anyone until at least three years from now, when the first set of seven-year data would be available.

Short window

So, you think House Speaker William O’Brien, R-Mont Vernon, would celebrate his strong victory over Gov. John Lynch on his House redistricting bill and move on?

Not on your life.

All New Hampshire redistricting plans have to be submitted to the U.S. Department of Justice for review. This dates to the Voting Rights Act that is still applied here as it relates to 10 small communities.

On Friday, O’Brien instructed Attorney General Michael Delaney that he wanted to review the AG’s submission to federal authorities before it goes out.

Why would O’Brien want to see it?

Could it be he’s worried the AG might just tuck into the envelope the veto message from Lynch that contends the redistricting bill violated the amendment to the Constitution that voters approved in 2006?

Then, O’Brien gave Delaney two business days to get it to him.

“I also would ask that the submission be provided to me for review prior to its transmittal to the U.S. Department of Justice,” O’Brien wrote. “Given that the governor’s veto has left us with a relatively short time frame to prepare the submission, I would ask to see the proposed submission no later than April 4, 2012.”

Gathering forces

Republican Kevin Smith, of Litchfield, is the underdog candidate for governor, but he has attracted some of the best and brightest to serve as his media and polling team.

The Sunday Telegraph confirmed that Smith is bringing on Gene Ulm, of Public Opinion Strategies, a top Republican polling firm, who will direct the campaign’s political surveys and provide electoral analysis.

Mark Dion, of the Revolution Agency, a prominent political media firm, will advise the campaign on its paid messaging and advertising.

Both have strong New England ties. Public Opinion did polling for former U.S. Sen. John E. Sununu, helped elect Paul LePage as governor of Maine and Scott Brown to the U.S. Senate in Massachusetts, and worked in many New England states for the Republican Governors Association.

Dion is a Keene native, and both will work closely with the Profile Strategy Group, Smith’s on-the-ground campaign advisers.

The trio teamed up in 2010 to almost pull out a huge upset for another little-known Republican, John Robitaille, who came within three percentage points of knocking off former U.S. Sen. Lincoln Chafee in that Rhode Island’s race for governor.

“We are building an experienced and dynamic team that will help Kevin Smith run successfully in this election,” said Jamie Burnett, with Profile.

‘Smell test’

So, what happened to the vaunted campaign to bring casino gambling to New Hampshire?

Well, what happened was what the House of Representatives has done for more than 20 years: bring slamming back to earth the starry-eyed dreams of those who want to expand legalized gambling.

The dirty little secret behind the numbers was that the minority Democratic bloc played a pivotal role in the bill’s defeat.

The Republicans in the House split almost down the middle, about 130-120 against the measure (HB 593). But the Democratic split was 64 percent against, 36 percent for.

Knowledgeable supporters were counting on at least 50 and hopefully 65 Democrats to help create a winning margin, since it had the backing of several unions and law enforcement.

They received 38.

Meanwhile, despite the support of the majority leader and chairman of the budget and tax bill writing committees, O’Brien’s extended family turned on this bill – hard.

There were 16 House committees or key subcommittee chairmen who voted against even adopting an amendment to this bill, much less passing it outright.

This amounted to a titanic win for the Granite State Coalition Against Expanded Gambling and for state Rep. David Hess, R-Hooksett, a former state prosecutor.

Sure, the state Senate may still play games with its own gambling bill that’s on the table. There’s renegade talk – and that’s all it is at the moment – of trying to rebrand it not as a bill to cut state business taxes, but rather to create jobs – say, through dedicating a few hundred million to finish the widening of Interstate 93.

But this is dead bill walking. The fight for 2012 is effectively over.

Hess believes the furious lobbying effort behind the scenes backfired.

“I think we did see a backlash, but I was always confident we were going to prevail,” Hess said.

“The House may not be made up of geniuses, but when they hear all the promises and claims made about this bill, they came to conclude that all of it didn’t pass the smell test.”

Introverted candidacy

No one should be surprised that Republican Steve Kenda ended his exploratory campaign for governor last week.

A seasoned GOP campaign operative watched Kenda at several city and county party sessions over the last seven weeks.

“He acted like a wallflower,” the operative said. “He just didn’t get it. You run for governor and people want to touch you and feel what you are all about. They don’t come to you; you’ve got to come to them.”

Kenda has never run for elective office, and even some associates were advising him to consider a run for the Legislature or the Executive Council before aiming so high again.

Who will this help? Well, if nobody else gets in – and that’s a big if – the early benefactor could be Ovide Lamontagne, as business leaders conclude there is no free-enterprise expert candidate to choose from.

Kevin Smith can point to his executive experiences running the socially conservative Cornerstone Action and helping while he was a key aide in the state Division of Juvenile Justice.

But Lamontagne has some of his right flank to worry about. As we first reported, Lamontagne was in on the education funding amendment that Lynch endorsed and the state Senate embraced.

Here’s a small sample of the extensive venom on the tea party-related Rochester 9-12 Project chat about that proposal:

“Last time (Lamontagne) said that there’s a lot of powerful support behind CACR 12, including the media. So, I reassured him that grass-roots opposition would stomp his establishment support.

“What else could I say? That’s not an explanation of any substance.

“Honestly, those attorneys pushing CACR 12 (Lamontange, Chuck Douglas and Eugene Van Loan III) aren’t exactly working with the average people on the development of this amendment. It’s being foisted upon us. It’s sucker punch number 2.”


Obama targets NH

The Obama re-election campaign in New Hampshire sponsored a slew of ads on media websites, including The Telegraph, last week to tout his energy strategy.

The “All of the Above” theme is meant to rebut stinging criticism of the president’s failure to support fast-track permits for the Keystone pipeline that would come through Canada.

This isn’t a debut innovation. Obama’s re-election brain trust put up Web ads around the first-in-the-nation strategy to tout his accomplishments and more recently had one to mark a consecutive streak of job growth in the private sector.

There’s no question that Obama’s New Hampshire strategy is to try to run back up the score of organization and visibility since the Mitt Romney campaign in New Hampshire has closed up shop.

As we tweeted recently, what would Romney’s chief sword carrier in New Hampshire, U.S. Sen. Kelly Ayotte, think of the L.A. Times report that quoted Romney campaign insiders saying New Hampshire isn’t part of the essential 2.0 general election strategy?

In other Democratic developments, the state party’s platform committee staged an in-your-face Saturday with its first listening session at the Daland Library in Mont Vernon, O’Brien’s hometown.

Speaking of the platform, there’s a growing movement from many activists for an anti-Northern Pass Project plank to be included.

Watch for this taking shape, and notably since the law firm representing Northern Pass is the same one at which Lamontagne is a partner.

Democratic gubernatorial candidate Maggie Hassan will start her jobs innovation tour at Adept MobileRobots in Amherst and will later be honored at a fundraiser in the home of state Rep. Cindy Rosenwald.

On the same day, Rosenwald will be one of the guest speakers for an Obama health care town-hall-style discussion on health care in Nashua.

Kevin Landrigan can reached at 321-7040 or Also, follow Landrigan on Twitter (@KLandrigan) and The Telegraph’s interactive live feed at