The House, Friday, April 9, 2021

Rep. Cam Kenney (D - Straf 10)Thank you, Mister Speaker. HB 440 was first introduced as a bill relating to religion and religious liberties during a state of emergency. This bill was amended in committee to significantly open the scope of the bill, no longer only focusing on religion, but all civil liberties. The amended title is civil liberties defense act. Now the bill defines civil liberties in a way that is very broad, allowing confusion and probably litigation as there are multiple interpretations to what a civil liberty actually could be. It specifically refers to the restrictions put in place by our governor because of COVID-19 even though a superior court has decided these orders were completely constitutional. Now please let me just say wearing a mask and the restrictions that enforce social distancing are absolutely inconvenient. I do not deny that, but that does not mean they are unconstitutional. It is a very dangerous precedent when we start to equate anything that is inconvenient to us as our rights being taken away. I'll admit it, I do have a love/hate relationship with the masks. When a $100 a year isn't cutting it, I serve tables in order to survive and this mask does make my job harder because it makes me sweat more, it makes the tables not able to hear me as well, but I still wear it. So why do I wear one? Because I do want to stop the spread of this disease. I do want to get out of this pandemic. I want to be able to see my grandparents and my other family members at the next holiday. I wear one because it is justified by science and logic. Therefore Mister Speaker, I do not think this bill is needed because I do not believe civil liberties have been ignored. I think we can all think of caveats where we know our rights and civil liberties are not being stepped on despite claims such as not being able to yell "bomb" on a plane or "fire" in a movie theater. I believe wearing a mask during a global pandemic when there is an airborne disease around the entire world, as well as the other orders we saw, follow the same clear logic of these caveats and no rights were infringed upon. So for these reasons I urge my colleagues to support the rights of our governors to enact orders during a state of emergency to keep Granite Staters safe. Please press the red button to overturn the OTP/A motion so an alternate motion can be considered. Thank you so much.

Speaker PackardThe Chair recognizes Rep. Simon to speak for the committee report.

Rep. Matthew Simon (R - Graf 1)Thank you, Mister Speaker. First, because there seems to be some confusion on this point, let us establish what HB 440 is not meant to address. HB 440 is not a referendum on how the governor has handled the COVID-19 state of emergency. HB 440 is not focused on mask wearing and social distancing protocols since courts in many states have already ruled that these practices are constitutional at this time. In fact, HB 440 is not meant to address the current state of emergency at all. HB 440 is a forward looking bill and is designed to address a breach in our constitutional defenses revealed by our courts last year. Specifically, arguments made by the attorney general's office and subsequently adopted by the Superior Court of New Hampshire during Binford vs. Sununu, the first challenge to the governor's emergency orders. During this trial, the courts handed the following dangerous ruling. The court finds that the governor may suspend constitutional rights during a state of emergency. Through this ruling the court has contended that a statute written by this body supersedes the authority of the Constitution of the United States of America and the Constitution of the State of New Hampshire. HB 440 simply states that it was never the intention of this body that emergency order powers, as outlined by our statutes, should ever supersede the constitution or compromise the rights of the citizens which that constitution guarantees. Our federal and state constitutions are designed to protect us from the gross injustices visited upon mankind by mankind throughout human history. To strip our people of these constitutional protections during a state of emergency when we are most vulnerable as individuals and as a society is short-sighted and dangerous. Unless we address this issue, guaranteed protections from unreasonable search and seizures, a right to a speedy trial by jury, freedom of speech, protection from excessive fines and cruel and unusual punishment, just for example, could be ignored and violated by a future governor. In fact, a governor can claim that it is necessary because of a state of emergency. These constitutional rights are conferred on us by natural law and by God almighty. It is not within the authority of a legitimate government to revoke these rights regardless of circumstance. In fact, government itself does not have rights, it has a responsibility. A responsibility to protect the constitutional rights of its citizens. No one knows what the next state of emergency will look like. We don't know if a future governor, republican or democrat, will attempt to abuse his or her power by suspending constitutional rights in a future state of emergency. We don't know what the future holds or what kind of person will wield emergency order powers, but we do know this, that we must do all we can do today. We must fulfill our duty to protect one another from any potential infringement of our rights. We must protect those that come after us and we must protect the great State of New Hampshire. Fellow colleagues, let us not be short-sighted or complacent. I ask that you shore up our constitutional defenses during a state of emergency so that the responsibility for any potential future abuses will not rest upon our shoulders. Thank you.

Speaker PackardThe House will be in order. The motion before the House. Why does the member rise? Rep. Simon, do you yield to questions? I'm assuming that means yes.

Rep. Mark Pearson (R - Rock 34)I would just like some clarity. Would this bill actually in practice prohibit the governor from taking any actions during an emergency?

Rep. Matthew Simon (R - Graf 1)Could you clarify? I'm sorry, I'm not sure I understand the question completely.

Rep. Mark Pearson (R - Rock 34)Let me put it a different way. Is it true that at this point the courts have ruled that our constitutional rights are totally suspended in the case of an emergency and this bill would open the door for us to make constitutional claims which the court would then have to adjudicate in the case of an emergency?

Rep. Matthew Simon (R - Graf 1)Essentially what this bill does is it ensures that the courts have to use constitutional scrutiny when determining whether an order from the governor is valid or not. At the present time because of Binford vs. Sununu, in a future case, the courts are not required to use constitutional scrutiny when making those decisions. They just throw constitutional scrutiny right out the door and it just becomes practical, so regardless of any constitutional rights, nobody is protected. Whether that is a specific group of us or all of us in general, literally the governor could pull one group of our citizens aside and say the emergency is because of this group of citizens, whether it is a minority or whatever group and say we have to round all these people up and lock them away because it's dangerous to our society in general. I mean literally, we are wide open to everything and this bill seeks to close that.

Speaker PackardThe motion before us is the majority committee report on HB 440, Ought to Pass with Amendment. Are you ready for the question? A roll call has been requested. Is that sufficiently seconded? It is sufficiently seconded. Members will take their seats. The Chair recognizes Rep. McBeath for a parliamentary inquiry.

Rep. Rebecca McBeath (D - Rock 28)Thank you, Mister Speaker. Good morning colleagues. If I know that democracy has some similarities with a 45 vinyl record. And, if I know that a vinyl 45 record is an antiquated audio device that had one song on each side. And, if I know that democracy's two sides would be one individual freedom and the other responsibility to community and country, would I now push the red button so that another motion can be brought? Thank you.

Speaker PackardThe Chair recognizes Rep. Sylvia for a parliamentary inquiry.

Rep. Michael Sylvia (R - Belk 4)Thank you, Mister Speaker. Mister Speaker, if I know it is a most extraordinary precedent to assume that our fellow citizens are walking around spreading disease. And, if I know that under the current laws, New Hampshire Courts have said that, "The governor may suspend constitutional rights during the state of emergency." If I know that this means we are all enjoying our fundamental rights, including free speech and trial by jury, at the mercy of the current governor. If I know that Maine has managed COVID-19 without suspending regular constitutional law. Mister Speaker, if I might even agree with the current governor's orders but I know that this has nothing to do with whether state law should give the governor absolute power. And finally Mister Speaker, if I know that unlimited power leads inevitably to unlimited abuse, then would I now press the green button and accept the committee report of Ought to Pass? Speaker Packard: The question is. The House will be in order. The question is on the motion, the majority committee report on HB 440, Ought to Pass with Amendment. This is a roll call vote. If you are in favor, you'll press the green button. If you are opposed, you'll press the red button. Voting stations are open for 30 seconds. Have all members present had an opportunity to vote? The House will attend to the state of the vote. 192 Yeas, 178 Nays, the committee report is adopted.

Rep. Susan Treleaven (D - Straf 21)Thank you, Mister Speaker. First of all can I tell you how much I love parliamentary procedure? It makes our enemies into our friends and it makes our friends even better friends. The other thing I want to say is that I rise before you today to oppose 439, limiting areas which city councils can govern, control and oversee themselves. I know how many cities there are in the State of New Hampshire. I know how many towns there are in the State of New Hampshire. I know how many unincorporated areas there are in the State of New Hampshire. Do you? Good. Cities are unique and special and this bill seeks to cut the growing. Excuse me, I can't talk now. I get so excited about parliamentary procedure. Seeks to cut the governing body at the knees, giving them little or no leeway in making decisions on their own property, rules and regulations. Who knows a city or town better than its residents? A catch-all provision granting cities authority to, "Make any other bylaws, regulations which may seem to be for the wellbeing of the city, but no bylaw or ordinance shall be repugnant to the constitution or the laws of the State of New Hampshire." This bill would make cities only recourse to change, the legislature. So this is the first step towards removing authority from all municipalities. In past legislatures that I have been in, I know people voted what was best for New Hampshire, not for their party. Please join me in voting no on this Ought to Pass and keep our New Hampshire cities strong. Thank you very much Mister Speaker.

Speaker PackardThe Chair recognizes Rep. Blasek to speak for the committee.

Rep. Melissa Blasek (R - Hills 12)Thank you, Mister Speaker. HB 439 is a very simple bill that removes a single line from RSA 47-17, the statute by which towns and cities derive their authority. New Hampshire is not a home rule state which means per our constitution, localities derive their authority from the legislature. The line that is removed is the catchall phrase, "They may make any other bylaw or regulations which may seem for the wellbeing of the city." Wellbeing is a wildly unspecific term and cannot be considered a specific authority granted by the legislature. By removing this phrase it simply requires towns and cities to rely on enabling legislation as the constitution requires. The argument against this bill was that towns and cities would not be able to adequately protect their citizens if they didn't have this catchall authority and I believe an example used was if a swimming hole became contaminated, they would need an ordinance to ban its use. I mean the town can and should put out a sign warning of the contamination but they don't need an ordinance. Humans have a very good natural instinct to protect themselves against injury and death and would likely not swim there if it was contaminated and if they did, that's their problem. This argument gets to the fundamental confusion of politicians today so let me clarify something. It is not the responsibility of government to protect people's health and safety. It is the responsibility of government to protect their rights. It is the job of government to inform and educate people about community risks so that people can make informed decisions, but ultimately it is the individual's responsibility to protect their own health and safety. Listen, this bill simply makes the law more constitutional. If certain members of this body disagree with the constitution, they can attempt a constitutional amendment but there have been three attempts at a constitutional amendment on this subject in modern history and all have failed. It seems the people do not want home rule status. I urge you to support the Ought to Pass motion.

Speaker PackardWill the member yield to a question? Member does not yield. Will a member of the Municipal and County Committee yield to a question? Rep. Porter yields.

Rep. Timothy Horrigan (D - Straf 6)Thank you. Thank you, Mister Chair. Thank you to the gentlelady from Hillsborough. The first speaker, the gentlelady from Dover, explained pretty clearly that this only covers the cities, not the towns, not the unincorporated areas where the county stands in lieu of municipal government. The member who just spoke, I believe she's from Merrimack, the Town of Merrimack. So does this ordinance only restrict the powers of the cities or does it apply to all municipalities?

Rep. Marjorie Porter (D - Hills 30)According to the bill as written, it's written specifically for cities and does not say towns.

Rep. Timothy Horrigan (D - Straf 6)Thank you very much for the very clear answer. Thank you.

Rep. Lee Oxenham (D - Sull 1)I would like to request that the debate be printed in the Journal.

Speaker PackardWe haven't voted yet. Does the member yield? She yields.

Rep. Peter Somssich (D - Rock 27)I just wanted to ask you as someone who's been involved in this issue whether you feel that the terminology, "The wellbeing of the city," is too vague?

Rep. Marjorie Porter (D - Hills 30)It is not specific because it needs to cover many different things that might occur. Without that phrase and I don't have the official language in front of me, but without that phrase in the law, cities would only be able to regulate things like hoop rolling and carts and things like that are specifically mentioned in the RSA. There are a very limited number of things and then it says, "Or any other thing for the wellbeing." So without that phrase, cities and towns, excuse me, cities would not be able to make any bylaws without getting the authority from the House of Representatives prior to enacting them.

Speaker PackardThe question before the House. You need to ask the Chair if she would be willing to ask. The question before the House is the majority report of Ought to Pass on HB 439. Are you ready for the question? Division has been called. What is your point of order? That is not a point of order. This is a division vote. Members will take their seats. Did someone request a roll call? Is that sufficiently seconded? Who requested it? Is it properly seconded? It is properly seconded. The question is on the majority report of Ought to Pass on HB 439. This is a roll call vote. The Chair recognizes Rep. Maggiore for a parliamentary inquiry.

Rep. Jim Maggiore (D - Rock 22)Thank you, Mister Speaker. Mister Speaker if I know that this bill would deny city councilors of their responsibility to make bylaws and regulations for their own communities as granted to them by the virtue of their election, conveyed by statute and transfer that responsibility to the full house, the full senate and the governor. And, if I know that the New Hampshire Supreme Court has said that mu- nicipalities have the authority to promote, "Such varied interest as public health, safety, morals, comfort and the protection of prosperity and the general welfare." And if I know that Article 1 of the New Hampshire State Constitution says, "All government of the right originates from the people is founded in consent and is instituted for the general good," then would I press the red number two button and vote against the Ought to Pass motion so that another motion can be made? Thank you.

Speaker PackardThe Chair recognizes Rep. Torosian for a parliamentary inquiry.

Rep. Peter Torosian (R - Rock 14)Thank you, Mister Speaker. Mister Speaker, if I know HB 439, which is relative to the powers of city councils, and by the way it also includes towns if you read the statute, is common sense legislation that puts checks and balances on a very loosely worded sentence in New Hampshire RSA 47:17 XV and strikes this line from the statute. If I know that the bulk of RSA 47:17 has very detailed language with everything in it from street and sidewalk grading with layout, regulating public squares, public lights and lamps, military marching bands, public property, cemeteries, public burial, licenses regulating grocers, peddlers and pawn brokers and the list goes on. But if I also know that one sentence at the end of the statute, "They may make any other bylaws and regulations which may seem for the wellbeing of the city" is way too vague and is inconsistent with the rest of the statute which is very specific. And if I believe that this clause makes it too easy for governing bodies to overstep its authority and make rules and regulations that may violate its citizens constitutional rights and for that matter pretty much make it for any reason whatsoever because the language is so vague, would I then ask you to please join me and press the green button and vote yes to support the committees common sense recommendation of Ought to Pass? Thank you, Mister Speaker.

Speaker PackardThe question is on the majority committee report of Ought to Pass on HB 439. This is a roll call vote. If you are in favor, you'll press the green button. If you are opposed, you'll press the red button. Voting stations are open for 30 seconds. Have all members present had an opportunity to vote? The House will attend to the state of the vote. 185 Yeas, 192 Nays, the Ought to Pass motion fails. The Chair recognizes

Rep. Marjorie Porter (D - Hills 30)Thank you, Mister Speaker. I move ITL on this bill.

Speaker PackardRep. Porter moves ITL. Why does the member rise?

Speaker PackardThat is a higher priority. Rep. Doucette moves to table HB 439. A division has been requested. All members will take their seats. This is a division vote. The motion before us is lay on the table HB 439. This is a division vote. We have already had two parliamentary inquiries. I'm not going to do it again. So to lay on the table is HB 439. If you are in favor, you'll press the green button. If you are opposed, you'll press the red button. Why does the member rise?

Rep. Robert Renny Cushing (D - Rock 21)This is a subsequent motion to lay on the table. There has not been a parliamentary inquiry before the vote.

Speaker PackardIn the past, Representative, we have had when we have gotten into this situation, we have not taken a 2nd parliamentary inquiry.

Rep. Robert Renny Cushing (D - Rock 21)Respectfully Mister Speaker, it's a subsequent motion. It's appropriate to have a parliamentary inquiry.

Speaker PackardI will give you the courtesy of doing a parliamentary inquiry, but in the future, I would at some point make that decision to not accept parliamentary inquiry on a 2nd motion on the same bill. She can make her parliamentary inquiry.

Rep. Robert Renny Cushing (D - Rock 21)I appreciate that need to be concise and efficient today, but I'm just saying that there is a tradition that in intervening motions, parliamentary inquiries are allowed.

Speaker PackardThe point is well taken, Representative. Rep. Porter or...

Rep. Jim Maggiore (D - Rock 22)Thank you, Mister Speaker. Mister Speaker, if I know that we have spent a considerable amount of time over these last three days speaking about the value of the intent and the integrity of the vote and the vote on this last bill shows clear intent for the desire of this body, then would I vote against the motion to lay on the table so that we can take action on the ITL?

Speaker PackardThe Chair recognizes Rep. Doucette for a parliamentary inquiry.

Rep. Fred Doucette (R - Rock 25)Mister Speaker, if I know HB 439 should be laid on the table, should I press green?

Speaker PackardThe motion before us is on HB 439, is to lay it on the table. This is a division vote. If you are in favor, you'll press the green button. If you are opposed, you'll press the red button. Voting stations will be open for 30 seconds. Have all members present had an opportunity to vote? The House will attend to the state of the vote. 189 voting Yea, 186 voting Nay, HB 439 is laid on the table. The House recessed at 12:45 p.m. RECESS The House reconvened at 1:15 p.m. (Speaker Packard in the Chair)

Rep. Kat McGhee (D - Hills 27)Thank you, Mister Speaker. Thank you, House colleagues. I rise today to ask for your support in defeating the Ought to Pass motion for HB 351, restricting the system benefits charge. The system benefits charge was put into statute to do exactly what it says, provide system benefits. In fact, it is a regulatory requirement that the Public Utilities Commission or PUC ensures that energy efficiency programs like New Hampshire Saves provide a benefit to all ratepayers. These programs are proven to generate several times the money spent on them. They are a good deal and our constituents depend on them. So I ask you to stop a bill that seeks to fix a problem that isn't broken, but worse still, HB 351 goes on from there to break what is working. How does it do that? It says that the authority to set the system benefits charge and authority granted to the Public Utilities Commission by this body needs to be sent back to the House for an up or down vote or sent to the Fiscal Committee. It doesn't really pick one. It just insists that the House must in some way be inserted into the PUC process, a process that already requires proof that proposed energy efficiency plans will benefit New Hampshire ratepayers. Does this sound like a case of if it ain't broke, don't fix it? The consumer advocate of the State of New Hampshire puts it this way in a recent article, "The legislature can set utility rates, including the systems benefit charge, all by itself or it can choose to delegate that authority to an administrative agency. In this case, the Public Utilities Commission, with instructions to guide the regulators. What the legislator can't do is delegate the authority, require supporters of energy efficiency to go through the regulatory process and then require them to come back to the legislature for the lawmakers blessing. That's inconsistent with the New Hampshire Constitution." This bill hurts our constituents because it puts a halt to the funding of New Hampshire Saves and other energy efficiency programs and energy efficiency is the single most cost effective investment the state can make. If you have constituents who depend on New Hampshire Saves or are on a waitlist, please vote against OTP so the pending 3-year energy efficiency plan in the PUC is not scuttled. The utility-led process that created that 3-year plan concluded that it would generate up to $1.3 billion in economic stimulus for the State of New Hampshire as we are recovering in a post-COVID economy. There are very few bills you will vote for that can help our constituents, help our economy and help our environment as much as preventing HB 351 from passing here today. Thank you.

Speaker PackardThe Chair recognizes Rep. Harrington to speak for the committee report.

Rep. Michael Harrington (R - Straf 3)Thank you, Mister Speaker. I'm here to urge people to vote in favor of this bill so let's talk a little bit about what the bill doesn't do so we are clear on that. It doesn't reduce energy efficiency spending by a single dime and it doesn't change the amount of low income assistance spending that comes from that by a single dime either. What does it do? It reprioritizes the spending from the system benefit charge so it's more effective and it requires legislative approval in order to raise the system benefits charge, which is affectively a tax. Not only does the system benefit charge go towards energy efficiency projects, but it is somewhat of a welfare program in that it pays low income assistance to people who have trouble paying for their electric bill. I think those are things that the legislature should be involved in increasing. So we just heard the system benefit charge is exactly that. It's supposed to benefit the system. The theory is if you collect a little bit of money from a lot of people, put it together and use that money on energy efficiency programs, you'll reduce the overall cost of electricity in saving everybody money and it does work as long as you have good efficient programs. For example, if you were buying electricity at .07 per kilowatt hour and you were doing energy efficiency programs at .70 per kilowatt hour, that's not saving anybody any money and it's obviously not the way you want to go. So what this does is it turns around and says the energy efficiency money for the electric portion of that program should be used for funding purposes that are main purposes to reduce electric consumption. Now if you look at the way it is broken down right now on the electric side, you have about $20 million that goes to residential and then there is another $29 million that goes to commercial and industrial. The commercial and industrial one won't change because almost all that money is spent on projects whose main purpose is to reduce electric consumption. However, on the residential side, that's not the case. It used to be the case, but over the years it switched. As of 2020, 61% of the funds that were spent were mostly spent on projects that were made to reduce thermal energy, insulating houses, subsidizing the insulation of house, subsidizing new windows that were higher insulated for people's homes. That resulted in 14% of the total kilowatt hours savings. Let me hit that again, 61% of the funds resulted in 14% of the savings. So that means 39% of the funds resulted in 86% of the savings. Obviously, that's the direction we want to be heading in. We spend less and get a lot more. What this bill would do is simply say the money has to be used for projects whose main purpose is to reduce electric consumption. Now if you happen to have a house that had electric heat or electric heat pump that would qualify under this. Most people in New Hampshire don't. If you think of subsidizing insulating people's houses and reducing thermal energy is a good idea, that's fine, but it doesn't belong buried in the electric rates. It belongs as some type of a tax or charge on oil for example if you want to go that direction. Most people in New Hampshire have no idea when they see a house across the street being insulated and being that insulating cost is being subsidized that their paying for it in their electric rates. So all this does is say let's use the money where it is intended to benefit the system, the system benefit charge should benefit the system. Again, 61% of the funds account for only 14% of the savings. This would redirect the funding to where we are going to get the most bang for our buck. The second part basically says you want to increase this which is basically a tax everybody pays for electricity whether one way or the other and it also covers, as I said, low income housing assistance which is a welfare program that the legislature has to approve it. We've been doing that for a long time and it has worked out fine. The PUC, which I used to be a commissioner on, so I've seen both sides of this, have no problem doing a study and bringing it out to the legislature and saying here's a good reason we should increase this and it's happened in the past. It's not a big issue and as far as the overall being, energy efficiency being the panacea that's the greatest way to spend money for everything, it's not always the case. Energy efficiency has to be spent economically efficient as well. If you want a real practical example, all you have to do is look to our South. Massachusetts is spending energy efficiency dollars in the billions. They spend much, much more per ratepayer than we do on energy efficiency. So what's the results in the electric rates? Eversource Massachusetts rates for Eastern Massachusetts are about 15%, a little bit more than that, but about 15% higher than the Eversource rates in New Hampshire. So just throwing money at energy efficiency is not the solution for lowering your electric bill. Let's use common sense. Let's spend our system benefit funds to benefit the system and let's make sure the legislature has the authority to say whether we are going to increase with effectively a tax. Please vote in favor of this bill.

Rep. Michael Harrington (R - Straf 3)No, we've had enough time here. Sorry I'm not going to yield to any questions.

Speaker PackardThe member does not yield. The motion before us is Ought to Pass on HB 351. Are you ready for the question? Rep. Baldasaro has called for a roll call. Is that sufficiently seconded? It is sufficiently seconded. This will be a roll call vote. This will be a roll call vote on HB 351. The Chair recognizes Rep. Oxenham for a parliamentary inquiry.

Rep. Lee Oxenham (D - Sull 1)Thank you, Mister Speaker. If I know that energy efficiency pays off at a rate of 6 to 1. If I know that energy efficiency benefits enormously through weatherization and insulation because it reduces the cost not only of electric heat, but of air conditioning which is becoming a much more useful source of, much more expensive use of energy here even in New Hampshire. If I know the legislature granted rate making authority to the Public Utilities Commission and rate making is its primary function and that no rate making expertise resides within the legislature. If I know that passing HB 351 means that we would lose $1.3 billion of economic stimulus and 3 years of the New Hampshire Saves program funding that our towns, schools, businesses and residents are lined up and counting on the waitlist, then would I now push the red button to stop this ITL of the New Hampshire Saves program so that a more appropriate motion can come forward? Thank you.

Speaker PackardThe Chair recognizes Rep. Vose for a parliamentary inquiry.

Rep. Michael Vose (R - Rock 5)Thank you, Mister Speaker. Mister Speaker, if I know that the price of electricity has been determined by the Public Utilities Commission through a sophisticated and complex process called rate setting contains many components. And if I also know that a per unit cost, typically referred to as the rate per kilowatt hour, is a vital part of the final price of that electricity and that electricity sales cannot happen without this unit cost. If I further understand that the system benefits charge is not part of the rate charged for electricity, but is an added charge used to pay for energy efficiency which makes it a de facto tax. If I also know that there's a proposal currently before the PUC to raise the amount of the system benefit charge from $62 million a year to as much as $280 million a year by 2023. And, finally Mister Speaker, if I know that the legislature must exercise its constitutional obligation to raise, lower or sanction such added charges like the systems benefit charge, would I now press the green button to affirm the general court's oversight of this de facto tax? Thank you, Mister Speaker.

Speaker PackardThe question is on the majority committee report of Ought to Pass on HB 351. This is a roll call vote. If you are in favor, you'll press the green button. If you are opposed, you'll press the red button. Voting stations will be open for 30 seconds. Have all members present had an opportunity to vote? The House will attend to the state of the vote. 198 voting Yea, 179 voting Nay, the committee report is adopted.

Rep. Dick Ames (D - Ches 9)Thank you, Mister Speaker. So I rise to speak in opposition to the Ought to Pass recommendation on CACR 1. CACR 1 proposes to amend the New Hampshire Constitution to prohibit, "A tax on earned personal income." Its adoption would probably render unconstitutional major components of our current business profits tax, which is today levied, for example, on the profit or net income earned by sole proprietors. Our business enterprise tax, which is levied in part on salaries, would also face constitutional challenge were this amendment to be adopted. The proposed constitutional prohibition on one ill-defined object of taxation, "Earned personal income," would forever bind future legislators and governors regardless of fiscal and socioeconomic circumstances that cannot now be foreseen. The amendment is not needed. Three existing provisions of the New Hampshire Constitution are sufficient to ensure fairness and responsibility in taxation. First, Part I, Article 12 establishes that, "Every member of the community has a right to be protected by it in the enjoyment of his life, liberty and property. He is therefore bound to contribute his share in the expense of such protection." In the supreme court in Rollins vs. City of Dover declared that, "Taxes must be not merely proportional but in due proportion, so that each individual's just share and no more shall fall on him." Second, the second of those three provisions that I mentioned. Second, Part II, Article 5 grants the legislature the authority, "To impose and levy proportional and reasonable assessments rates and taxes upon all the inhabitants of and residents within the state." Our New Hampshire Supreme Court has affirmed that these first two constitutional provisions, "Establish equality and justice as the basis of all constitutional taxation." The third constitutional provision, Part II, Article 6 authorizes the legislature to classify, to classify and that's a quote from the constitution, property for purposes of taxation, a provision that conveys to the legislature in the words of a 2008 supreme court decision, "Broad power to declare property to be taxable or non-taxable based upon a classification of the property's kind of use, but not based upon a classification of the property's owners." These existing constitutional limits on taxation set sound sufficient and enforceable standards for all New Hampshire taxes. The poorly defined categorical prohibition proposed by CACR 1 does not belong in our constitution. It should be rejected. Thank you.

Rep. Steven Smith, in the chairThank you. The member from Stratham, Rep. Abrami, is recognized to speak in support of the committee report.

Rep. Patrick Abrami (R - Rock 12)Thank you, Mister Speaker. I rise in support of CACR 1. This Constitutional Amendment Concurrent Resolution calls for a New Hampshire Constitutional change. As my friend from Jaffrey pointed out, that says, "The general court is prohibited from adopting a tax on personal income." This bill requires 60% vote to make it out of this chamber. If it makes it out to the full legislative process it will appear on a ballot question in every city, town and unincorporated place for the voters of New Hampshire to decide. Two-thirds of the voters must vote for this constitutional, for the constitution to be changed. Back in 2012, there was a CACR 13. The CACR nearly identical to this CACR, which made it through the whole legislative process and then the New Hampshire voters did have a chance to weigh in on this issue. The vote was 57% yes and 43% no. I'll repeat, the voters said 57% yes and 43% no. Even though a substantial majority voted yes, the required 66.7% threshold was missed. However, my takeaway nine years ago was that the voters of New Hampshire by a wide margin did not want a personal income tax. This was the ultimate poll on this question with a sample size of 621,936 voters. Again, the sample size was 621,936 voters weighed in on this issue back then. With CACR 1 we will once again be giving the voters a chance to express their views on this question. Please push the green button and vote yes on this measure. Thank you.

Rep. Steven Smith, in the chairThe question before the House is the majority committee report of Ought to Pass on CACR 1. Who is that? Rep. Turcotte requests a roll call vote. Is that sufficiently seconded? Oh sure, that's sufficiently seconded. This will be a roll call vote. Members please take your seats. The question before the House is the majority committee report of Ought to Pass on CACR 1. This is a roll call vote. Rep. Almy is recognized for a parliamentary inquiry.

Rep. Susan Almy (D - Graf 13)Thank you, Mister Speaker. If I recognize that this CACR simply diverts the public's attention away from the continual reduction of state revenues and state services in order to provide tax cuts to the wealthiest businesses in the country and abroad. And, if I know that the last income tax proposal with serious support was 2 decades ago and that this is bad tax policy in general. And, finally if I further know that the real result of this diversion is ever increasing property taxes and less and less chance for a better life for the majority of workers, families and business owners in this state, then will I press the red button to direct our attention to the real issues in taxation in New Hampshire?

Rep. Steven Smith, in the chairThank you. The House will be in order. Rep. Doucette is recognized for a parliamentary inquiry.

Rep. Fred Doucette (R - Rock 25)Thank you, Mister Speaker. Mister Speaker, if I know that CACR 1 simply gives a voice to the voters of New Hampshire. If I also believe this gives the people who put us in office the opportunity to decide if they want to change the New Hampshire Constitution. It allows them that choice to allow the general court to prohibit an income tax on earned personal income. If I agree with that, would I then join the majority of Ways and Means Committee's report of Ought to Pass by pressing the green button and let the taxpayers decide? Thank you, Mister Speaker. Speaker Steven Smith: Thank you. This is a roll call vote. If you are in favor of the committee report, you'll be pressing the green, 1A button. If you are opposed, you'll press the red, 2-B button. Voting stations are open for 30 seconds. Have all members present had an opportunity to vote? The House will attend to the state of the vote. 202 having voted in the affirmative, 171 in the negative. Not reaching the threshold the motion fails.

Rep. Max Abramson (R - Rock 40)Thank you, Mister Speaker. Mister Speaker, I stand in support of Ought to Pass on CACR 2 which would prohibit, if the voters approve of this, a state sales tax throughout the state. We know and have been told many times that more than 40% of all of our retail sales volume comes from out of state shoppers. I know because I live right on the border. I represent Seabrook and most of the seacoast retail sales comes from out of state shoppers and a lot of that are people coming up to avoid the sales tax in Maine or Massachusetts. Many high ticket retail item stores, big box stores and electronic stores and even car dealerships need this. They need this measure to pass for the certainty to make a long term investment here and open stores, service stations and service offices here. We will likely pick up over the long run more business tax revenue from simply passing this measure and showing our intent never to enact a state sales tax, never to enact any broad-based sales tax in New Hampshire, more revenue probably than some actual tax rate increases or new taxes because of the influx of new high end retail businesses. We need this for the jobs. We need this for the additional out of state and international investment. We need this in order to help improve local and state revenues. Please press the green button.

Rep. Steven Smith, in the chairThank you. The member from Jaffrey, Rep. Ames, is recognized to speak against the committee report.

Rep. Dick Ames (D - Ches 9)Thank you, Mister Speaker. So I rise to speak in opposition to the Ought to Pass recommendation on CACR 2. This CACR would prohibit adoption of any, "Any broad-base sales tax not in effect as of January 1, 2021." Well there is ambiguity again in this proposed prohibition. What exactly is a broad-based sales tax? A 2017 tax foundation report suggested, for example, that the typical state sales tax with various kinds of exceptions for groceries or various kinds of categories of services or for clothing, is not broad-based so would not be covered by the CACR prohibition. Do we really want to foster litigation over such a threshold? Do we really want such a poorly defined categorical prohibition to forever bind future legislators and governors regardless of fiscal and socioeconomic circumstances that cannot now be foreseen? Again, as I said with CACR 1, this amendment is not needed. As I said and I'm not going to repeat everything I said and that statement on CACR 1, there are existing provisions in the New Hampshire Constitution that are sufficient to ensure fairness and responsibility in taxation. Our supreme court has interpreted these provisions to characterize them as establishing equality and justice as the basis of all constitutional taxation. These existing constitutional limitations are limits on taxation set sound, sufficient and enforceable standards for all New Hampshire taxes. The poorly defined categorical prohibition proposed by CACR 2 does not belong in our constitution. It should be rejected. Thank you.

Rep. Steven Smith, in the chairDoes the member yield for a question? The member does not yield. The member from Nottingham, Rep. Bershtein, is recognized to speak in support of the committee report.

Rep. Alan Bershtein (R - Rock 2)Thank you, Mister Speaker. Mister Speaker and fellow representatives. First of all I'd like to thank the Representative from Jaffrey for his thoughtful comments regarding CACR 2. Having served three years on the Ways and Means Committee with the gentleman from Jaffrey, I've learned to pay close attention when he speaks as the representative is a wise and skilled legislator. Actually, the word statesman seems entirely appropriate. And, Mister Speaker, it certainly is possible the representative, statesman, is correct that this CACR should be rejected for the reasons cited. On the other hand, the Granite State has fared quite well and has even managed to flourish and thrive without a broad-based sales tax for over 230 years. No sales tax has become a vital part of New Hampshire's brand. It's literally half the New Hampshire advantage. I don't think it is an overstatement to say that no sales tax has become part of our state's DNA. CACR 2 is about empowering the voters of our great state to directly decide for themselves if a prohibition of a regressive broad-based sales tax should be enshrined in our state's constitution. Right now so much of the national conversation is focused on the enfranchisement of voters. CACR 2 empowers New Hampshire voters to use their own voice regarding a topic that is so very foundational to the economics of our state. In a moment when we go into voting mode, please recall we are not voting on a sales tax or its prohibition. We are voting on if the voters will get the opportunity to vote. Here's how I see it. I'm pretty sure everyone in this room is sort of familiar with Zoom, the telecommunications platform. As I see it as you look at your voting device, the red button is the mute button. The green button is the unmute button. The button that says to voters I'd love to hear what you have to say. I invite you to join me to empower voters and unmute voters and taxpayers by smashing the green unmute button. Thank you.

Rep. Steven Smith, in the chairFor what reason does the member rise? The member does not yield. Rep. Baldasaro requested a roll call vote. Is that sufficiently seconded? It is sufficiently seconded. This will be a roll call vote. Members please take your seats. The question before the House is the majority committee report of Ought to Pass. Rep. Almy is recognized for a parliamentary inquiry.

Rep. Susan Almy (D - Graf 13)Thank you, Mister Speaker. I believe in recycling. If I recognize that this CACR simply diverts the public's attention away from the continual reduction of state revenues and state services in order to provide tax cuts to the wealthiest businesses in the country and abroad. And, if I know that the last sales tax proposal with serious support was 4 decades ago. And, finally if I further know that the real result of this diversion is ever increasing property taxes and less and less chance for a better life for the majority of workers, families and business owners in this state, then will I press the red button to direct our attention to the real issues in taxation whether on the ballot or here? Thank you.

Rep. Steven Smith, in the chairThank you. Rep. Abrami is recognized for a parliamentary inquiry.

Rep. Patrick Abrami (R - Rock 12)Thank you, Mister Speaker. Mister Speaker if I know that CACR 2 simply give the voice to the voters. It lets the people be heard. This gives power to the people to decide if they want to change the New Hampshire Constitution that would prevent the general court from ever imposing a sales tax. Mister Speaker, if the members agree, would they then join the majority of the Ways and Means Committee that voted 13-10 Ought to Pass by pressing the green button and let the people decide? Thank you, Mister Speaker.

Rep. Steven Smith, in the chairThank you. This is a roll call vote. If you are in favor of the committee report, you'll be pressing the green, 1-A button. If you are opposed, you'll be pressing the red, 2-B button. Voting stations are open for 30 seconds. Have all members present had an opportunity to vote? The House will attend to the state of the vote. 201 having voted in the affirmative, 170 in the negative, the vote fails to meet the threshold.

Rep. Barbara Griffin (R - Hills 6)Mister Speaker, I rise to make a motion to table HB 111.

Rep. Steven Smith, in the chairRep. Griffin moves that HB 111 be laid on the table. The motion is lay HB 111 on the table. Are you ready for the question? Who requested a roll call? Rep. Prout requests a roll call. Is that sufficiently seconded? It is sufficiently seconded. This is a roll call vote. Members please take your seats. The question is whether to lay HB 111 on the table. Rep. Griffin is recognized for a parliamentary inquiry.

Rep. Barbara Griffin (R - Hills 6)Thank you, Mister Speaker. If I know that HB 111 is not simply establishing a new New Hampshire State cause of action for violation of state or federal law rights, but it's also a bill that turns on its head the current carefully crafted statutory qualified immunity for state and municipal actors employed by and in our communities. And, if I know that it does this by eliminating multiple provisions in law which we now have that provide qualified immunity which gives agents, employees, persons such as ourselves by the way, immunity for decisions, acts or emissions that are made within the scope of official duties, but the bill doesn't even bother to specify all the statutes that are effected so this bill needs work before it creates confusion in application. And, if I know this is not just duplicating federal law in our state courts because this law differs in that it requires the individual, act or defendant to be named in part of the litigation from start to finish, regardless of who pays and thus it is always on that persons' legal record. And, if I also know that this bill never references the laws we currently have which limit damages that might be recovered in litigation paid by our taxpayers through our municipalities and that some members of persons are not even aware of such statutes exist, creating an area of confusion in the courts in applications so this bill needs work. And, if I also know that this bill applies retroactively so for example, if a moderator makes a decision in the election place in regards.

Rep. Steven Smith, in the chairThe member will suspend for a moment please. We are getting to that last if I know, right? Pretty quick?

Rep. Barbara Griffin (R - Hills 6)And, finally Mister Speaker, if I also know that many municipalities throughout this state think this bill poses a significant threat to New Hampshire citizens and our constituents and that the Mayors of Concord, Berlin, Claremont, Dover, Franklin, Laconia, Lebanon, Portsmouth, Manchester, Nashua, Rochester, Somersworth and Keene just yesterday voiced their opposition to this bill to the House in writing, would I now press the green button and table this bill? Thank you.

Rep. Steven Smith, in the chairThank you. Rep. Marjorie Smith is recognized for a parliamentary inquiry.

Rep. Marjorie Smith (D - Straf 6)Thank you, Mister Speaker. If I know that the Judiciary Committee using its usual, careful due diligence voted 19 to 2 to support this bill. And, if I know the language of this bill makes clear that if our public officials are careful in their hiring and careful in their training and careful in their supervision and careful in their accountability, they don't have a blessed thing to worry about. And, if I know that the concept of qualified immunity was added on the federal level as recently as 1983 and has been opposed since then because of the problems that have come from saying that public officials are protected from responsibility for their inappropriate actions and the public has no right for redress of grievances, would I now oppose the tabling motion so that we can hear thoughtful and factually based debate and then for this body to be able to vote? Thank you.

Rep. Steven Smith, in the chairThank you. The question before the House is whether to lay HB 111 on the table. This is a roll call vote. If you are in favor, you'll be pressing the green, 1-A button. If you are opposed, you'll be pressing the red, 2-B button. Voting stations are open for 30 seconds. Have all members present had an opportunity to vote? The House will attend to the state of the vote. 180 having voted in the affirmative, 188 in the negative, the motion to table fails. The question now before the House is the majority committee report of Ought to Pass. The member from Goffstown, Rep. Alexander, is recognized to speak against the committee report.

Rep. Joe Alexander (R - Hills 6)Thank you, Mister Speaker. Mister Speaker, I rise today as a member of the Judiciary Committee to oppose the 19-2 recommendation of OTP for HB 111. To be clear, HB 111 ends qualified immunity. Qualified immunity is the protection in place for municipalities, elected officials and municipal and government employees against a cause of action that violates a law or a constitutional right. Groups have testified that HB 111 eliminates any defense or immunity in any lawsuit against a municipal or state official or employee, whether brought under federal or state law. It expressly states that it will be no defense in such cases that the official or employee acted in good faith or that the official or employee reasonably believed that his or her conduct was lawful. In essence it imposes strict liability on local officials and employees for any injury that results from their conduct, no matter how reasonable the conduct was. If we pass HB 111, we will open up municipalities to a myriad of lawsuits for violations of law. This effects all towns, town boards and town employees. HB 111 will raise taxes on property taxpayers. Insurance companies love HB 111 because they know their premiums can go up for municipalities because hundreds of lawsuits will result. In fact, because of many of these reasons, the mayors of all 13 New Hampshire cities have sent a letter to the Speaker of the House in opposition to this bill. Finally, HB 111 is anti-law enforcement. I know and many of my friends, I campaigned on supporting police officers. I stand with my local police department who in the vast majority of cases act in good faith and with the best intentions. I urge my colleagues please vote no on HB 111. Thank you.

Rep. Steven Smith, in the chairThank you. The member from Hudson, Rep. Tony Lekas, is recognized to speak for the committee report.

Rep. Tony Lekas (R - Hills 38)Thank you, I believe Rep. Berch was going to speak first. That is what we sent in.

Rep. Steven Smith, in the chairI don't have an order. Does it matter? Rep. Berch will be going last.

Rep. Tony Lekas (R - Hills 38)Thank you. I'm rising to speak in support of HB 111. As we heard, one of the most common.

Rep. Steven Smith, in the chairWhy does the member rise? All good. I apologize. Please continue.

Rep. Tony Lekas (R - Hills 38)Thank you, Mister Speaker. As I said I am rising to speak in support of HB 111. I think the most common concern that I have heard about this bill and its one of the major ones we just heard is that it will cost government and thus the taxpayer more. I can see two possible reasons for this concern. One is that government employees are believed to be frequently violating people's constitutional rights. I do not believe this is a valid concern. The vast majority of government employees in New Hampshire do their jobs appropriately. If that belief were correct, this bill would certainly be needed. Any cost to compensate people for their rights being violated would provide an incentive to fixing the underlying problems that resulted in the rights violations which I believe actually are not that common. This would benefit both the citizens and the government. Another possible concern is the expectation of frivolous lawsuits that would cost the taxpayers. Again, I believe this concern is unfounded. Lawyers are unlikely to take cases and most of these would be taken on contingency, that they don't expect to win and they would earn nothing in those suits. Lawyers could also be sanctioned by the court for filing frivolous suits. We swore an oath to uphold the Constitution of the State of New Hampshire. The first part of that constitution lists the rights of the people of New Hampshire that this government was instituted to protect. How can we uphold this constitution if we don't provide effective remedies when rights are violated? This bill would provide that remedy. We are not elected as representatives of the people in order to protect the government from them. We were elected to protect their rights from threats from the government as well as other threats, criminals and external threats. And, Mister Speaker, I request a roll call vote.

Rep. Steven Smith, in the chairThank you. The member from Wolfeboro, Rep. Deshaies, is recognized to speak against the committee report.

Rep. Brodie Deshaies (R - Carr 6)Thank you, Mister Speaker. HB 111 will make it only so all cases must go through discovery and possibly to trial. It will force small local governments to make a tough decision, fight these expensive court battles to deter future litigation and prevent an appearance of weakness or constantly settle out of court and hope this will mitigate the cost and overwhelming burden placed on our communities. We should not place our local governments or our counties and state in such a precarious dilemma. This would be irresponsible. Some will say yes, but currently we cannot hold our government or its employees liable when they violate our constitutional or statutory rights. This is a misunderstanding. The legal doctrine of qualified immunity allows anyone to bring a suit against the government or its agents. The courts then only permit suits where officials violated a clearly established statutory or constitutional right. In 2009, the 10th circuit court of appeals wrote in Pearson vs. Callahan, "Qualified immunity balances two important interests. The need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction and liability when they perform their duties responsibility." The perceived issue we have in New Hampshire lies within our statutory laws. We need to be debating what changes and expansions to our statutory laws that might be necessary to ensure civil liberties are protected. Granite Staters could then use these new laws to show parallels with existing case law in the complimentary statutory laws and demonstrate how their rights may have been violated. This alternative solution could even limit the scope of qualified immunity but in a reasonable way. Ending qualified immunity does not guarantee a building up of case law. It only guarantees an increase in costly lawsuits. In summary, this bill poses an existential threat to our municipal, county and state governments. It will create extreme fiscal cost for taxpayers. HB 111 will not lead to more guilty verdicts for bad actors who work for the government. The problem is with our statutory laws, not qualified immunity. We shouldn't throw the baby out with the bathwater. The majority of Granite Staters will lose if this bill is passed, increasing their cost of living and gutting their local municipal budgets. I encourage everyone to vote against the OTP motion and to then vote for the ITL motion. Thank you for your consideration.

Rep. Steven Smith, in the chairThank you. Does the member yield to a question? The member does not yield. The member from Gilford, Rep. Silber, is recognized to speak for the committee report.

Rep. Norman Silber (R - Belk 6)Thank you, Mister Speaker. Mister Speaker and colleagues, you may find it somewhat strange that I am supporting this bill. Normally I'm on the side of the police and fire and I am still on the side of the police and fire, but I think back to my days in law school when I leaned about sovereign immunity and qualified immunity is nothing more than a variety of sovereign immunity. Sovereign immunity is a concept we inherited from England in 1776 and it arises from the concept in English law that the King can do no wrong. Over 200 years ago, we fought and won a revolutionary war to make sure we didn't have Kings and we still don't have Kings. So we shouldn't be able to hide behind sovereign immunity to shield bad actors. In every other area of civil life in America when an employee causes damages, the employer is responsible under the legal concept called respondeat superior. Why should we permit the bad acts of employees to go unpunished when their employers are not careful in recruitment, hiring, training and supervision? What this bill does is make sure that the individual bad actor is not personally liable for financial damages, but if they do cause, by their bad acts, damages to citizens through damages to constitutional, legal, our legal rights, their employers, the municipalities or agencies that employ them may be held legally liable. It's designed, as I've said in some of my communications with constituents and lobbyists who are opposing this, I view this bill as designed to put the fear of God into the government agencies so that they are sure and are very careful in their recruitment and training and hiring and supervision of their agents. We should not allow them to hide behind sovereign immunity when our citizens have been damaged. This is a sort of thing that could be covered by insurance, by their liability insurance. The liability insurance premiums may go up, but it won't go up if they are careful. So I urge that this be passed because it needs to protect our citizens from abuse.

Rep. Steven Smith, in the chairThank you. The member from Windham, Rep. Lynn, is recognized to speak against the committee report.

Rep. Bob Lynn (R - Rock 7)Thank you, Mister Chairman. I've tried to think of maybe the best way to sort of explain my view on this and I think it is this. This is a small problem, a serious one, I don't mean to suggest that it's not a serious problem, but it's a relatively small problem and this creates, this bill creates a huge overblown solution that will create more problems than it is worth. There is a problem in the area of qualified immunity which as a number of the prior speakers have indicated. Qualified immunity basically says that a state actor, a police officer in particular, is protected from liability if the law is not clear if the law is not clearly established. A number of the speakers who have talked before have said well constitutional rights, the 4th Amendment, it says protects against unreasonable searches and seizures. Well certainly you can read the 4th Amendment and that's exactly what it says, but the problem is if you're a police officer, applying it in the maybe 30 seconds or less that you have to make a decision, how does it apply in this particular circumstance? That's what qualified immunity is designed to protect. It is designed to say that unless a reasonable person in the position of the police officer and the law takes it account that the police officer is expected to have a reasonable amount of training, but if a reasonable person in the position of the police officer would not have known that the law was clear about what they should or should not do, then we will not hold them personally liable because we don't want police officers thinking that they have to look over their shoulder constantly before they take action. Are they going to get sued? That's what qualified immunity is about. The problem has developed that some courts and I don't frankly think that this has been true in New Hampshire, but some courts around the country and frankly even the supreme court I think in at least one case or two, has applied qualified immunity unreasonably broadly. Literally, unless there is a court decision that's like right on point, the officer is excused from liability and many people, myself included, have said that's just going too far. You shouldn't do that. That problem can be corrected without eliminating qualified immunity all together. I'll just give you an example. As I first heard about this bill moving through the process which was pretty late in the process that I actually realized it was going through and maybe that might be my fault, but any rate, I happen to speak to one of the proponents of the bill, two gentlemen, who are from the Institute for Justice. I had this conference call with them and told them my concerns and they came up with some language that was sort of designed to address my concerns. As it turned out I thought the language was helpful but didn't go far enough. What it demonstrated to me is this problem to the extent that qualified immunity has been applied improperly, it can be corrected without eliminating qualified immunity completely. The only other thing I would say is that there are other problems with this bill which suggest to me it's really not ready for prime time. One of them for example is the bill says that the court shall make findings of fact and conclusions of law in every case. Well, okay there is only one problem with that. Juries don't make findings of fact and conclusions of law. They certainly don't make conclusions of law and they generally don't make findings of fact either. So does that mean that it is the intent of this bill to eliminate jury trials in all of these cases that would now be subject to qualified immunity? I don't think that was the proponents intent but that is certainly an argument that could be made from the language of the bill because juries don't do those kinds of things. In short, there are a number of problems with this bill. It's overly broad. It can, the problem can be cured so to speak in a much more nuanced way that will I think address the problem without creating all these dangers that a number of the prior speakers who have spoken against the bill have said. So for those reasons I hope you will vote it ITL and hopefully next year we can bring something back that will address the problem. Thank you, Mister Speaker.

Rep. Steven Smith, in the chairThank you. Does the member yield for a question? The member yields. You may inquire.

Rep. Tom Dolan (R - Rock 5)Thank you, Mister Speaker and thank you, Representative for taking my question. If we are to assume that this bill, HB 111, is terribly flawed. Is there a better way to solve this problem?

Rep. Bob Lynn (R - Rock 7)I think there is. I think that some language could, that some language could be crafted for qualified immunity that would basically say to courts, look yes you want to have to have police officers and other municipal officials or state officials protected when the law is not reasonably clear, but reasonably clear doesn't mean that there has to be a case like right on point. You could develop some language that would deal with that and signal to courts look you have been applying or at least some courts have been applying this doctrine so broadly that it protects actions by officers that really are unreasonable and they should have known it was unreasonable.

Rep. Steven Smith, in the chairThank you. We are up to our last speaker. A roll call. We are up to our last speaker and a roll call has been requested so spread the word that we should be getting back to our seats. Does the member yield for a further question? You may inquiry.

Rep. Max Abramson (R - Rock 40)Thank you, Mister Speaker. So in a trial by jury, the judge makes determinations of law and the jury makes determinations of fact. So for example in the case where an officer has used allegedly excessive force. The civil trial and the criminal trial are separated. Are you saying that with this bill once it goes to a civil trial, doesn't the officer if he is going to be sued personally or even if the individual or group of individuals are sued, do they have a constitutional right under the New Hampshire Constitution to a trial by jury and have the facts examined by a jury in a civil case?

Rep. Bob Lynn (R - Rock 7)That's a very excellent question. I don't think a municipality necessarily would, but an individual officer might well have that right and that raises the question. If this bill proports to eliminate that right and it could be construed that way. As I said I don't know that the proponents intent, but it certainly could be construed that way. Then there is a constitutional question there. If that's what the bill means and it's inconsistent with the constitution then the bill is going to fail, I mean the law would fail for that reason. So that's just another. I guess all I'm saying is that's something that needs to be thought out more carefully than I think it was in this context, which is another reason to have, to ITL this and have it taken up next year.

Rep. Max Abramson (R - Rock 40)Wasn't it in the language of this bill that the state actor, the officer themselves is not included in this? It's just the municipality itself?

Rep. Bob Lynn (R - Rock 7)Well no that's. The bill says that the officer cannot be held personally liable but he is entitled to be, but he is to be named as a defendant which presumably means he gets his own counsel separate from the municipality so the state's going to be paying or the municipality is going to be paying for two lawyers, not just the municipality's lawyer, but the officer's lawyer because he is a named defendant and his interests are not the same as the state, the municipality's interest because the law specifically says that if the municipality is found liable the officer can be disciplined. So presumably because his interests are different, he has a right to his own lawyer, which again presumably that means the municipality is going to pay for that lawyer too.

Rep. Steven Smith, in the chairThank you. The member from Westmoreland, Rep. Berch, is recognized to speak in support of the committee report.

Rep. Paul Berch (D - Ches 1)Thank you, Mister Speaker. Mister Speaker and colleagues, I rise in support of HB 111 voted Ought to Pass by a 19 to 2 vote of the House Judiciary Committee. I speak for that bipartisan majority. I'd also like to thank the Representative from Hudson for his comments. He's been a true co-prime sponsor from day one on this proposed legislation. I also want to say at the outset that I was a government employee from 1975 to 2009, from before there was qualified immunity until after there was qualified immunity and I've always been a strong supporter of state, county and municipal workers. I was one. I've also been a strong supporter of government accountability and transparency. The citizens paid my salary and they always knew that I worked for them. HB 111 is a victim's rights bill. HB 111 is a government accountability bill. HB 111 is a bill that guarantees that the citizens of our state have a right to go to state court for redress of harms done to them by the government, promptly and without delay. This bill is certainly not as complicated as some would make it. An activist supreme court tried an experiment in 1982 to provide qualified immunity to protect some government actors. That experiment has been widely considered a failure. Now the US Congress and many states are seeking to end this failure. In fact on Wednesday while we were here considering the budget, New Mexico's Governor signed a bill ending qualified immunity for all government workers in New Mexico called the New Mexico Civil Rights Act. HB 111 does 3 things. By eliminating qualified immunity it returns the law to how it was in 1982. It provides a path to state court in addition to a currently existing route to federal court to remedy denial of constitutional and statutory rights and it shifts the burden of any financial penalty and costs from the individual bad actor to his or her governmental employer. I think it helps to return at times to basic principles. The first is something every person in this room probably subscribes to. The citizen is in a higher position than the government. The government works for the citizen, not the other way around. This is a bedrock conservative principle, a bedrock libertarian principle and a bedrock liberal principle. Basic principle number two. When the government harms a citizen, the government cannot decide that the citizen has no redress, that the citizens is out of luck, that the government gives itself immunity from the citizen. Our founders in New Hampshire had it exactly right in 1784 when they wrote Part I, Article 14 of our constitution, legal remedies to be free, complete and prompt. Every subject of this state is entitled to a certain remedy by having recourse to the laws for all injuries he may receive in his person, property or character to obtain right and justice freely without being obliged to purchase it completely and without any denial, promptly and without delay conformably to the laws. You have heard the argument against HB 111 basically that the sky will fall in if we return to how it was in 1982. That argument was heard and rejected by the House Judiciary Committee by a 19 to 2 vote. It was not supported by facts. It was not supported by evidence. It was not supported by any history in New Hampshire or elsewhere. Keep in mind, our municipalities, our counties, our state existed for 200 years without qualified immunity, without the sky falling in and there is no evidence that it will fall in if we return to how it was in 1982. I would like to clarify the issue of good faith and reasonableness. They are not the same. Anyone can claim that they acted in good faith and frankly the less trained they are, the more valid that point may be. It also produces the game that was referred to by an earlier speaker that is being played out that the exact same facts have never been litigated before so the conduct is given a pass. That's been one of the big failures of qualified immunity. The idea that if a plaintiff can't show that the exact same harm was litigated before, the bad actor walks free. What the law requires and HB 111 does not change is that the officer must act reasonably. If he or she does then they are not liable. This is current law both from the supreme court and the New Hampshire Supreme Court and it would stay the law. When evaluating whether the conduct of a government employee is unreasonable, a court will determine the reasonableness from the perspective of a reasonable employee and not through hindsight. Not every mistake by an employee is unreasonable. The determination of reasonableness must embody an allowance for the fact that employees are sometimes forced to make judgements in circumstances that are unclear about what is necessary in a particular situation. The reasonableness inquiries are an objective one. The question is whether the employee's actions are objectively unreasonable in light of the facts and circumstances confronting the employee without regard to underlying intent or motivation. That language is from the United States Supreme Court. Now I have no quarrel with those that have focused on the potential liability of county and local and state entities who employ or continue to employ people who violate the constitutional rights of citizens. Our county executive committee does our budget in Cheshire County. You are all familiar with how that goes. I've served on the executive committee for 9 years. I currently chair the executive committee. I know much of what there is to know about county budgets and I know two things. This bill will not cost local governments money. Bad behaving employees will cost government entities money. If you want to avoid those costs, hire well and train well. We self-insure in Cheshire County and we put our focus on hiring and training well. A few years ago, I cosponsored a CACR, a successful effort, to amend the New Hampshire Constitution to allow taxpayer suits against the government. I worked with some of the same representatives and the same organizations I worked with on this bill and we heard the exact same argument. If we allow taxpayers to sue the government, the courts and municipalities will be flooded with lawsuits. The sky will fall in and you know what, there's been no flood of lawsuits since the constitution was amended to allow taxpayer suits. There have been no stream of lawsuits, no trickles of lawsuits, barely a drop. But we do know, what we do know is citizens are being harmed by bad acting government employees and those employees in the government agency that hired them are far too often walking away scot-free because of a judicially invented immunity. That offends not only the New Hampshire Constitution but it offends who we are as Granite Staters. The doors of our courts must be kept open to redress wrongs done to our citizens. Please support our citizens by pressing the green button. Thank you.

Rep. Steven Smith, in the chairThank you. Does the member yield to a question? The member does not yield. The question before the House is the majority committee report of Ought to Pass on HB 111. Rep. Tony Lekas requests a roll call vote. Is that sufficiently seconded? It is sufficiently seconded. This will be a roll call vote. Members will take their seats. The question before the House is the majority committee report of Ought to Pass on HB 111. Rep. Griffin is recognized for a parliamentary inquiry.

Rep. Barbara Griffin (R - Hills 6)Thank you, Mister Speaker. If I know that HB 111 is based on statutory language drafted out of state, implemented in a number of states and does not take into account current New Hampshire law. And if I know that an October 2020 review of this law in Virginia concluded that the cost of litigation as the result of the lawsuit of qualified immunity will require reevaluations of policy and funding or risk management for the communities that operating in a system with a greater chance of litigation will have an adverse effect on the wellbeing of employees and that there is the possibility of the lack of response or the use or force being delayed on emergency calls by our citizenry. And if I know that this law can be applied retroactively so that if at the time a state actor or municipal actor makes an action it is considered reasonable but is subsequently found to be unconstitutional, your community would be liable for damages. If I know all that and having heard the previous discussion, would I now press the red button to defeat the OTP motion so another motion can be made? Thank you.

Rep. Steven Smith, in the chairThank you. Rep. Simpson is recognized for a parliamentary inquiry.

Rep. Alexis Simpson (D - Rock 36)Thank you, Mister Speaker. Mister Speaker, if I know HB 111 is a victim's rights bill and a government accountability bill. And if I know that our New Hampshire Constitution declared in 1784 that every citizen is entitled to remedy by having recourse to the law for all injuries received completely and without denial. And if I know that governmental bodies in New Hampshire operated for centuries without qualified immunity, without the sky falling in. And if I believe that conservatives, libertarians, liberals and Granite Staters all hold dear the principle that government is here to serve the people and that the government must not evade responsibility for its actions by claiming immunity from the citizens of this state, then would I press the green button to support the 19 to 2 bipartisan vote of the House Judiciary Committee? Thank you.

Rep. Steven Smith, in the chairThank you. This is a roll call vote. If you're in favor of the committee report, you'll be pressing the green, 1-A button. If you are opposed, you'll press the red, 2-B button. Voting stations are open for 30 seconds. Have all members present had an opportunity to vote? The House will attend to the state of the vote. 178 having voted in the affirmative, 184 in the negative, the motion fails. For what reason does the member rise?

Rep. Joe Alexander (R - Hills 6)Because there has been intervening business, I move to lay HB 111 on the table.

Rep. Steven Smith, in the chairRep. Alexander moves to lay HB 111 on the table. Are you ready for the question? All those in favor, will say Aye. All those opposed, Nay. Well the Ayes certainly have it and HB 111 is laid on the table.