HR 13 – AS INTRODUCED
2011 SESSION
01/09
HOUSE RESOLUTION 13
A RESOLUTION repudiating Opinion of the Justices, 162 N.H. 160 (2011), and urging the senate to remove from the table and pass 2011 HB 89.
SPONSORS: Rep. Sorg, Graf 3; Rep. O’Brien, Hills 4; Rep. Bettencourt, Rock 4; Rep. Ingbretson, Graf 5; Rep. Manuse, Rock 5; Rep. Mirski, Graf 10; Rep. B. Murphy, Rock 18; Rep. Baldasaro, Rock 3
COMMITTEE: Constitutional Review and Statutory Recodification
This house resolution declares that the advisory opinion issued by the supreme court in response to SR 9 under New Hampshire constitution, Part II, Article 74 was incorrect and a dangerous addition to a series of decisions of the court inimical to the authority of the legislature and the right of the people to be controlled by no laws other than those to which they or their elected representatives have consented, and urging the senate to remove HB 89 of the 2011 legislative session from the table and pass it.
11-1113
01/09
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Eleven
A RESOLUTION repudiating Opinion of the Justices, 162 N.H. 160 (2011), and urging the senate to remove from the table and pass 2011 HB 89.
Whereas, on December 30, 2010, HB 89, requiring the attorney general no later than July 1, 2011 to move to join the state of New Hampshire in the case of State of Florida, et. al. v. United States Department of Health and Human Services, et. al. (3:10cv-00091-RV-EMT), challenging the constitutionality of the federal Patient Protection and Affordable Care Act, was introduced in the House of Representatives and referred to the state-federal relations and veterans affairs committee; and
Whereas, on January 20, 2011, the state-federal relations and veterans affairs committee voted 11 to 3 to recommend passage of HB 89 as amended by Amendment No. 2011-0037h under the new title “requiring the attorney general to join the lawsuit challenging the Patient Protection and Affordable Care Act;” and
Whereas, on February 9, 2011, the house passed HB 89 as amended by a vote of 267 to 103, and referred it to the constitutional review and statutory recodification committee; and
Whereas, on March 8, 2011 the constitutional review and statutory recodification committee voted 12 to 5 to recommend passage of HB 89 as so amended; and
Whereas, on March 15, 2011, the house again passed HB 89 as amended, by a vote of 259 to 107, and HB 89 was sent to the senate; and
Whereas, on April 20, 2011, HB 89 was introduced in the senate and referred to the commerce committee; and
Whereas, on April 27, 2011, the commerce committee voted 4 to 1 to recommend passage of HB 89 as amended by amendment No. 2011-1585s; and
Whereas, on May 4, 2011 the senate voted to lay HB 89 on the table and to adopt SR 9 to require, pursuant to Part II, Article 74, the opinion of the supreme court on the following questions:
“1. Does the requirement of HB 89 that the attorney general move to have the state of New Hampshire join as a plaintiff in the lawsuit violate Part I, Article 37 of the New Hampshire constitution?
2. Does the requirement of HB 89 that the attorney general move to have the state of New Hampshire join as a plaintiff in the lawsuit fall within the broad grant of authority to the general court set forth in Part II, Article 5 of the New Hampshire constitution?
3. Does HB 89 as adopted by the house of representatives and presently pending before the senate violate any other provision of the New Hampshire constitution?”; and;
Whereas, SR 9 was filed with the supreme court on May 5, 2011, and docketed as Case No. 2011-319; and
Whereas, on June 15, 2011, the supreme court issued its opinion (Opinion of the Justices (Requiring Attorney General to Join Lawsuit) 162 N.H. 160), in which it opined:
1. That HB 89 violates Part I, Article 37 by reason that the 1966 amendment to Part II, Article 41, which added everything after the first sentence, gave the executive branch the exclusive power to decide the state’s interest in litigation;
2. That, accordingly, “[i]t is the executive, not the legislative branch, in which the constitution vests the `supreme executive’ authority to determine whether it is in the public interest to litigate a particular matter... [t]he executive branch alone [having] the power to decide the state’s interest in litigation,” Opinion at page 170; and
3. That, “[h]ow the legislature interpreted Part II, Article 41 in the 1780’s and 1790’s is of little help in determining its meaning in light of the 1966 constitutional amendments,” Opinion at page 172; and
Whereas, said Opinion of the Justices reflects an incorrect understanding of the intentions of the framers of the 1966 amendment to Part II, Article 41, leading to an incorrect interpretation of Article 41 as so amended, and in support of this assertion, the house says as follows:
1. The delegate quoted by the court for the proposition that the amendment gave the executive branch the exclusive power to decide the state’s interest in litigation, Opinion at page 169, actually stated that the purpose of the amendment was to protect the power of the legislature by requiring the governor to “enforce respect for legislative mandates, powers, rights and duties:”
“Now the purpose of this resolution is to protect the power of the general court. It makes explicit some statutory authority which the executive branch has already been using for many years. The Constitution says — the present one — in Article 62 — ‘the governor may hold a conference for ordering or directing the affairs of the state according to the laws of the land.’ Now that may seem like a broad granted power but when it was written nobody knew it would apply to an executive department with thousands of employees spending millions of dollars. The new Resolution 58 permits the governor to continue to direct the affairs of the state and now he must enforce respect for legislative mandates, powers, rights and duties.”
Journal of the 1964 Constitutional Convention at page 287.
2. Other remarks from this delegate show that there can be no question that the intent of the amendment to Article 41 was not, as wrongfully asserted by the court, to vest additional authority in the governor, but the exact contrary of clarifying the supremacy of legislative control of civil officers such as the attorney general:
“Now in conclusion, I have just one more reason for passing Resolution 58. As everyone knows, state legislatures have been losing power rapidly in recent years. And this is not a theory. It is an accepted fact that progressive decline of legislative power threatens representative government. Many forces aggravate the imbalance and every time a bureaucrat overspends his budget or ignores a statute, he shows disrespect for the Legislature. Resolution 58 declares all executive departments and agencies must respect all mandates, powers and rights of the general court and I hope as we close the 15th constitutional convention we can adopt Resolution 58 which says that whatever may happen in the other states, New Hampshire is still owned by the people and still operated by elected representatives of the people.”
Journal of the 1964 Constitutional Convention at page 289.
3. The records of the constitutional convention make clear, also, that the verbiage added to Article 41 was not intended to give the governor any constitutional authority over the state’s civil officers, because the convention considered and rejected express language that would have caused Resolution 58 to have amended Article 41 to read as follows:
“There shall be a supreme executive magistrate, who shall be styled the Governor of the State of New Hampshire, and whose title shall be His Excellency. The executive power of the state is vested in the governor. Each principal executive department shall be under the supervision of the governor. The governor shall be responsible for the faithful execution of the laws. He may, by appropriate court action or proceeding brought in the name of the state, enforce compliance with any constitutional or legislative mandate, or restrain violation of any constitutional or legislative power, duty, or right, by any officer, department or agency of the state. This authority shall not be construed to authorize any action or proceedings against the legislative or judicial branches.”
Journal of the 1964 Constitutional Convention at page 287 (emphasis added).
4. The purpose of removing the italicized sentence from Resolution 58 was expressly stated to be to keep executive departments constitutionally autonomous from the governor:
“I’d like to rise in support of the amendment offered to the amendment by the delegate from Concord. The sponsor of the measure also believes this is good constitutional thinking. It was not the intent of the Committee in any way whatsoever to give the governor authority to set policy or to interfere in any way with these commissions who are properly doing their job. Our only feeling was this: in government, as in other areas, you find once in a while a ‘Peck’s bad boy.’ All we wanted to do was give the governor the authority to straighten out such a matter. I’m in agreement with and the sponsor’s in agreement and I hope the whole Committee and the members of this body are in agreement with the amendment which has been offered.”
Journal of the 1964 Constitutional Convention at page 290.
5. The court’s saying in the Opinion at page 169 that the records of the 1964 constitutional convention “reveal that the intended purpose of Part II, Article 41 is to grant the exclusive power to enforce the law.” merely begs the question of whether the “power to enforce the law” was understood to encompass the power to decide the state’s interest in litigation, since, if enacted, HB 89 would itself be law.
6. In summary, the records of the constitutional convention are clear that the purpose of the amendment to Part II, Article 41 was precisely the opposite of that found by the court in its Opinion; that the delegates understood the purpose to be to assure that executive agencies would comply with and effectuate the laws passed by the legislature, to enhance rather than take from the legislature its existing power under Part II, Article 5 “to set forth the several duties, powers, and limits” of civil officers, including the long-exercised power to require the attorney general to commence a particular lawsuit or discontinue a particular lawsuit; and
Whereas, an exclusive power on the part of the governor to decide the state’s interest in litigation would be an alarming, transformational power because it would change our system of government into either an executive oligarchy or an executive autocracy by giving the governor a “litigation-veto” power over the legislature such that he could decide, for example, that the “state’s interest” in the next education funding lawsuit is to stipulate that the cost of an “adequate education” is twice as high as the cost set forth in the challenged law; that the “state’s interest” in a lawsuit challenging the recently passed pension reform bills is to agree that all changes opposed by public employee unions are unconstitutional; and that the “state’s interest” in a lawsuit challenging the recently enacted parental notification statute is to default; and the executive branch could undermine the purpose of any law enacted by the legislature by the commencement of a lawsuit challenging whatever aspect or aspects of the law the governor or any executive department head did not care for, merely by the governor’s deciding that the “state’s interest” runs contrary to defending these aspects of the law; and
Whereas, such a power is irreconcilable with the constitution’s express delineation of powers between the executive and legislative branches, according to which the executive has no power to make law; and
Whereas, the governor’s power to influence lawmaking is limited by Part II, Article 44 to preventing a law proposed by the legislature from becoming law through the veto power, and even that power is qualified by the power of the legislature to override such veto; and
Whereas, to say that the governor alone has the power to decide the state’s interest in litigation is to give the governor not just the new authority of a “litigation-veto” but lawmaking powers granted exclusively to the legislature; and
Whereas, Opinion of the Justices, 162 N.H. 160 (2011), represents only the most recent example of the trend of constitutional adjudication over the past 30 years by which the supreme court, on the pretext of interpreting the constitution, has narrowed the prerogatives and powers of the legislature, to the detriment of the republican form of government of the state of New Hampshire guaranteed to the people of this state by Part I, Articles 7 and 8 of the New Hampshire constitution and Article 4, Section IV of the federal constitution, of which trend the following decisions are indicative, but by no means comprehensive:
1. In State v. LaFrance, 124 N.H. 271 (1983), the court laid claim to a sweeping power of judicial review - that is, the power not only to interpret a provision of the constitution for purposes of binding the parties to the case actually before it, but to make its interpretation final and binding upon the legislature in all future cases — a power not only unjustified by, but in actual defiance of the history, text and structure of the constitution, the court’s sole support for which claim were selective and intentionally misleadingly edited quotations from Merrill v. Sherburne, 1 N.H. 199 (1818) and Deming v. Foster, 42 N.H. 165 (1860);
2. In State v. Martina, 135 N.H. 111 (1991), the court reiterated its holding in State v. Moquin, 105 N.H. 9 (1963), asserting the unfettered authority, contrary to legislative directive, to imprison citizens for the crime of contempt, thereby extending its original usurpation in Opinion of the Justices, 86 N.H. 597 (1933), in which it ignored the express language of Part II, Article 5 by claiming for itself alone the authority to define that crime;
3. In Petition of Tocci, 137 N.H. 131 (1993), notwithstanding the express statement of Article 83, Part II declaring it as an inherent and essential right of the people to be protected against monopolies and granting to the legislature of power to prevent and control monopolies, the court upheld the monopoly status it had unilaterally conferred on the New Hampshire Bar Association on the basis of its “inherent judicial power,” a power unexpressed in the constitution and one so amorphous, open-ended, and self-serving as to encompass anything over which the court decides it wants to exercise authority;
4. In Claremont v. Governor, 138 N.H. 183 (1993), in an opinion that did not achieve or apparently even aspire to the level of plausible judicial scholarship, the court read the public education policy preferences of 4 of its members into the constitution in complete disregard of historical practice, constitutional text, the wishes of the people expressed through countless elections, and its own precedents;
5. In Petition of the New Hampshire Bar Association, 142 N.H. 588 (1998), in the face of the exclusive authority given to the legislature by Part II, Article 5 to impose and levy assessments and taxes, the court, using the self-contradictory euphemism “mandatory contributions,” laid claim to an unlimited arbitrary power to tax a class of citizens (lawyers) to support anything “found necessary by the court in aid of its own responsibility to see to the proper administration of justice;”
6. In Petition of Mone, 143 N.H. 128 (1998), the court extended the scope of the right of the individual to “an impartial interpretation of the laws” enshrined in Part I, Article 35 to encompass a limitless right of itself to spend its appropriation in any manner it sees fit respecting anything it arbitrarily chooses to designate as “an essential function of the judicial branch,” in this case the right to reject reasonable and economical statutory provision for court security and to create instead its own praetorian guard;
7. In Burling v. Chandler, 148 N.H. 143 (2002), notwithstanding that Part II, Articles 9 and 26 confer upon the legislature exclusive, plenary authority to redistrict itself, the court, aided by a foreign “expert” of the court’s selection, redistricted the House of Representatives and, again without constitutional authority to do so, purported to impose upon the legislature standards for acceptable and unacceptable deviations from the ideal district population;
8. In Petition of the New Hampshire Bar Association, 151 N.H. 112 (2004), in which the court declared unconstitutional a statute requiring the association to conduct and be bound by a referendum of its membership on whether it should continue as a monopoly, the present chief justice expressed disagreement with the court’s claim of inherent judicial power to unify the bar but nevertheless concurred in the decision on the basis of stare decisis, thereby showing that, to her and to judges of the supreme court generally, solidarity and the appearance of omniscience matter more than fidelity to the constitution; and
9. In Akins v. Secretary of State, 154 N.H. 67 (2006), without benefit of either constitutional text to support it or neutral principles to guide it, solely on the basis of anecdotal and discredited so-called empirical evidence, the court intervened into the political process by making itself the final determinant of the proper manner of listing candidates on ballots in multi-member House districts; and
Whereas, the true holding of Merrill v. Sherburne, 1 N.H. 199 (1818), freed of the distortion imparted by the supreme court’s disingenuous and self-serving editing in State v. LaFrance, 124 N.H. 271 (1983), reads as follows:
“Our confidence, also, in the liberality of the legislature is such that, when through inadvertence or mistake, they have passed an unauthorized act, we believe that, should the unpleasant task of adjudging it void devolve upon us, they would think the task is performed only from a conviction that the act is in the clearest manner, unconstitutional, and that our right and duty so to pronounce it are both unquestionable;”
1 N.H. at page 202 (Emphasis in original); and
Whereas, contrary to the text and spirit of Merrill v. Sherburne, the modern supreme court, having through observation and experience become satisfied that the public generally and the members of the legislature in particular having no understanding of the proper role of the judiciary and having been conditioned by the court into believing that whatever it says from the bench is ipso facto correct, final and binding, regardless of absurdity, has pursued a consistent and pernicious course of interference in political and policy matters that our system of republican self-government confers on the legislature; and
Whereas, this process of usurpation has emboldened the court and blinded it to its proper role in a system of separation of powers and checks and balances; and
Whereas, in light of the foregoing, it is clear and incontrovertible that the court’s contention in Opinion of the Justices, 162 N.H. 160 (2011) that the policy-making authority to determine whether the state should join the Florida lawsuit has been delegated to the executive branch is incorrect; that the court’s attempt to enervate further the legislative branch does enormous violence to the constitutional balancing of legislative and executive authority; that the authority that would be exercised should HB 89 become law was conferred upon the legislature in 1784 by Part II, Article 5; that the historical evidence is incontrovertible that the 1966 amendment to Part II, Article 41 did not transfer this authority from the legislative to the executive branch; and that, to the contrary, the amendment to Part II, Article 41 was intended to ensure that the executive branch did not ignore or usurp the authority of the legislative branch “to set forth the several duties, powers, and limits” of civil officers of this state, which included the power to require the attorney general to commence or discontinue a particular lawsuit; now, therefore, be it
Resolved by the House of Representatives:
That the decision of the supreme court in Opinion of the Justices, 162 N.H. 160 (2011) is incorrect and a further manifestation of the court’s demonstrated hostility to representative government and its propensity unconstitutionally to interfere with the political process, and should be and hereby is repudiated and utterly rejected; and
That the senate, in order to reflect the will of the people expressed in the most recent election, to uphold the authority of the legislative branch conferred by the New Hampshire constitution, and to protect the federal system established by the United States constitution, is respectfully called upon and urged to remove from the table and pass HB 89 of the 2011 legislative session.