Fighting Over Frivolous Lawsuits

By Josh Rogers on Wednesday, May 28, 2003.

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House lawmakers are scheduled to vote tomorrow on a measure that would modify New Hampshire’s frivolous lawsuit statute. Under the bill, people who sue over state construction projects could be forced to pay up to ten percent of a projects’ total cost if the courts find the suit “frivolous.” Proponents say the measure will protect taxpayers from so-called sabotage lawsuits. But Critics say the bill’s will to intimidate citizens from raising legitimate objections to poorly planned state projects.

According to Senate majority leader Bob Clegg, its time for lawmakers to raise the stakes for those who misuse the courts to fight government construction projects. Clegg says stiffening penalties against frivolous actions strikes the right balance of personal responsibility and government accountability.
“If your lawsuit is not frivolous, then you’ve got nothing to fear from this bill. If you do file lawsuits that are frivolous…..just to hold up the project, just to hold up the state for some more money, than this bill is going to be a problem for you.”

Clegg’s take on the matter isn’t shared by the environmental community.
“Basically this bill is a sledgehammer.”
Tom Irwin is an attorney with the Conservation law foundation.
“Who in their right mind would risk the enormous financial risks presented by this legislation by brining even a legitimate lawsuit? The risks are so great that it will certainly prevent ordinary citizens from seeking access to the courts in event the most meritorious situations.”

And under the bill, fighting projects in court would indeed be risky. To sue over the widening of 1-93, for instance, would expose plaintiffs to a potential 30 million dollar penalty…..Irwin and other critics point out that no other state has enacted such severe penalties. Irwin also stresses that the only the way the bill protects the state is at the expense of the public interest.
“Under current law, the frivolous law and penalties apply not only to the party bringing the case but also to the party defending the case. This bill makes no attempt at any balance. It holds only citizen plaintiffs liable. It does not pose any potential liability on the state for raising frivolous defenses.”

The department of transportation would be most directly affected by the proposed legislation. And the department estimates frivolous lawsuits will cost the state more than $900,000 dollars over the next two years. Current law allows the state or anyone else sued on frivolous grounds to recoup all their legal fees….Those who bring frivolous actions are also subject to a $1000 fine. Transportation commissioner Carol Murray says she’s doesn’t believe her department has never sought to recover its legal costs….because the state’s take would be negligible. Commissioner
Murray also admits lawsuits are not always the culprit when it comes to stalled state road projects.
“We are often the delay. We put together an estimated schedule….And then oops, you start drawing up the plans and the complexity of the right of way acquisition changes, or the complexity of the design work changes, which happens fairly frequently…..And quite honestly, as we look at the update for the ten year plan you are going to find funding is a major player this time around.”

Such an admission, however, is of little comfort to Hinsdale Republican Edwin Smith. He’s a co-sponsor of the measure and chairman of the house public works and highways committee.
“We are spending more money on litigation now than we are on road construction…..and one person can stop the whole project and the whole community from having a road project that is necessary to growth and the maintaining the quality of life in the area.”

Smith, freely confesses that he spent no time researching the bills precise provisions. But says he remains confident that the bill is simply right for NH. That sense is shared by Senator majority leader Clegg. He insists the bill is sorely needed……and advises anyone looking for proof of the bill’s virtues to revisit the legal action surrounding the Keene by-pass.
“How many times has that been to court? And each time it’s gone to court the state has prevailed. Yet it doesn’t stop people from using the court system to delay the project and make it cost more and more and more.”

In fact, the Keene by-pass went to court once, and the state lost. That matter is now before the Supreme Court on appeal…..Stoddard forester Geoff Jones was the person who came up the idea to oppose the by-pass on the grounds it violated state wetlands policies. The conservation law foundation then used Jones argument to prevail in court.
“If I wasn’t there it never would have been brought up and if the bill was there I never would have been at the table because I would not risk putting my family homestead at risk of a court lien. It’s that plain and that simple.”

The house is scheduled to vote on the frivolous lawsuit bill tomorrow…..While most on both sides of the issue predict passage…..Opponents of the bill say they will offer a compromise proposal. That measure would maintain the state’s current law but raise penalties from a $1000 dollars to a $10,000 fine.