HB 609-FN – AS INTRODUCED

2005 SESSION

05-0092

04/01

HOUSE BILL 609-FN

AN ACT establishing the protection of liberty act.

SPONSORS: Rep. Itse, Rock 9; Rep. Bicknell, Rock 1; Rep. Dumaine, Rock 3

COMMITTEE: Criminal Justice and Public Safety

ANALYSIS

This bill establishes the protection of liberty act.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

05-0092

04/01

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Five

AN ACT establishing the protection of liberty act.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 New Chapter; Protection of Liberty Act. Amend RSA by inserting after chapter 644 the following new chapter:

CHAPTER 644-A

PROTECTION OF LIBERTY ACT

644-A:1 Protection of Liberty Act.

I. The following acts shall be considered offenses under this chapter:

(a) The confiscation of firearms for a cause not permitted by law or without due process of law.

(b) Refusal to give remedy by recourse to the laws of this state.

(c) Causing a person to answer for a crime for which such person has not been given due process of law.

(d) Depriving a person of their liberty, property, estate, immunities, or privileges without due process of law.

(e) Trying a person for a crime which occurred beyond the borders of the jurisdiction in which the crime was committed without the consent of such person.

(f) Subjecting a person to a punishment which is not proportional to the crime.

(g) Searching or seizing a person’s property without a warrant duly issued in accordance with the law.

(h) Arresting a person without a warrant duly issued in accordance with the law.

(i) Denying a person the right to speak or write in a manner consistent with the laws of this state and which does not endanger the public.

(j) Preventing any person from peaceably assembling.

(k) Subjecting a person who is not a member of an active military unit to martial law, except when martial law is declared by the governor of this state.

(l) Denying a person the right of habeus corpus.

II. Any person convicted of any act listed in paragraph I within this state or against a citizen of this state shall be:

(a) Guilty of a violation for a first offense.

(b) Guilty of a class B misdemeanor for a second offense.

(c) Guilty of a class A misdemeanor for a third or subsequent offense.

III. Any evidence gathered during the commission of an offense under this chapter shall only be admissible for the purpose of proving the commission of any act set forth in paragraph I and not in any other criminal or civil suit.

2 Effective Date. This act shall take effect January 1, 2006.

LBAO

05-0092

Revised 2/28/05

HB 609 FISCAL NOTE

AN ACT establishing the protection of liberty act.

FISCAL IMPACT:

The Judicial Council and Judicial Branch indicate state expenditures may increase by an indeterminable amount in FY 2006 and each year thereafter. The Department of Justice indicates state expenditures will increase by $105,405 in FY 2006, $110,754 in FY 2007, $116,158 in FY 2008 and $121,605 in FY 2009. The Association of Counties indicates county expenditures may increase by an indeterminable amount in FY 2006 and each year thereafter. There will be no fiscal impact on state, county and local revenue or local expenditures.

METHODOLOGY:

The Judicial Council states that since it is not possible to accurately predict the number of cases which may result from this legislation, it is likewise not possible to place an exact dollar figure on the potential costs associated with the enactment of this legislation. In addition to the number of cases, another factor is that only the third or subsequent offense, class A misdemeanors, would be covered by indigent defense representation, as there is no right to counsel for violation level or class B misdemeanors and no potential for incarceration at those offense levels. Otherwise, it is assumed that in determining the potential fiscal impact that all of the statutes relating to indigent defense have been properly followed and that it is most likely that in the first instance, the case has been assigned to either a public defender or a contract attorney, either of whom would be compensated at the fixed contract rate of $250 per misdemeanor charged. If an assigned counsel attorney must be used, due to either conflict of interest or for reasons of caseload limitations, the $60 per hour rate with a fee cap of $1,000 per misdemeanor will be charged. This fee cap may be waived upon motion filed in advance of exceeding the cap and approved by the court. Such motions are routinely approved.

The Judicial Branch states it has no information on which to estimate how many new cases this bill would add to the district, superior, or supreme courts. It also has no information on which to estimate how many repeat offenders there may be that would be subject to the more severe penalties stated in this bill. The fiscal impact therefore is indeterminable, but any fiscal impact to the Judicial Branch will result in increased delays in the processing of other cases.

The Department of Justice states this bill could have significant impact on their office, as it purports to criminalize acts undertaken by government officials in the course of their official duties. As those types of offenses are often handled by the Public Integrity Unit of the Criminal Justice Bureau, passage of this bill would increase the number of referrals, investigations and prosecutions the Department would be handling. However it is impossible to estimate the number of cases that would result from passage of this bill. Because the crimes, as defined by this bill, are extremely broadly defined, the Department anticipates a significant increase in the number of complaints they receive concerning public officials. The Department would require, at a very minimum, a full-time Investigator to screen and respond to those complaints. Further, this bill appears to eliminate the concepts of qualified and absolute immunity, and criminalizes a wide range of conduct that has traditionally been immune from criminal prosecution. As a result, the number and variety of potential criminal prosecutions could expand significantly, therefore, the Department has included 50% of an Attorney’s time.

* Investigator salary established as unclassified labor grade BB

** Attorney position based upon average salary of Department of Justice attorneys with a growth rate of 3%.

The Department of Justice further states this bill would impact the Appellate Division. Under the current law, a private citizen has a right to pursue a private prosecution of a violation or class B misdemeanor. If that private citizen obtains a conviction and the defendant appealed, the Appellate Division would be required to represent the State before the Supreme Court. It is impossible to predict how many such private prosecutions would be instituted and successfully prosecuted.

The Association of Counties states this bill creates a new set of misdemeanors. Such a penalty creates a cost for the county correctional facilities. The direct impact on county expenditures will depend on the number of individuals sentenced, as well as those who are incarcerated per-trial in a county facility. The average annual cost for counties to incarcerate inmates is $21,633.55. However, the total exposure to the counties would be determined by the number of individuals convicted and sentenced under the new law, which cannot be determined at this time.