Baines v. NH Senate President

• Decision Date: 20 April 2005
• Docket Number: No. 2004-707.,2004-707.
• Citation: 876 A.2d 768,152 N.H. 124
• Parties: ROBERT A. BAINES, MAYOR OF THE CITY OF MANCHESTER & a. v. NEW HAMPSHIRE SENATE PRESIDENT
• Court: New Hampshire Supreme Court

152 N.H. 124

876 A.2d 768

ROBERT A. BAINES, MAYOR OF THE CITY OF MANCHESTER & a. v. NEW HAMPSHIRE SENATE PRESIDENT

No. 2004-707.

Supreme Court of New Hampshire.

Argued: February 16, 2005.

Opinion Issued: April 20, 2005.

Nixon, Raiche, Manning, Casinghino & Leach, P.A., of Manchester (David L. Nixon and Leslie C. Nixon on the brief, and Ms. Nixon orally), and Wensley, Wirth & Azarian, P.L.L.C., of Rochester (Danford J. Wensley on the brief and orally), for the petitioners.

Kelly A. Ayotte, attorney general (Anne M. Edwards, associate attorney general, and Laura E. B. Lombardi, assistant attorney general, on the brief, and Ms. Edwards, orally), and Richard J. Lehmann, senate legal counsel, by brief, and Patrick Donovan, house legal counsel, by brief, for the State.

Richard J. Lehmann, senate legal counsel, on the joint brief and orally, for the President of the New Hampshire Senate.

Patrick Donovan, house legal counsel, on the joint brief, for the Speaker of the New Hampshire House of Representatives.

NADEAU, J.

The petitioners, the Cities of Manchester and Rochester and their mayors, appeal the order of the Superior Court (McGuire, J.) denying their petition for a declaration that Laws 2004, chapter 200 is unconstitutional. We affirm.

The petitioners argue that Laws 2004, chapter 200 is unconstitutional because, as a "money bill," the constitution requires that it originate in the New Hampshire House of Representatives (House) and because it differs materially from the bill the legislature passed. We conclude, however, based upon the facts of this case, that when this law became a "money bill," it originated in the House and it did not differ materially from the bill the legislature passed. Accordingly, we affirm the trial court's conclusion that the law is constitutional. We do not address the petitioners' arguments concerning the legislature's alleged violations of procedural statutes because we conclude that these arguments raise nonjusticiable political questions.

I. Factual Background

The record supports the following facts. Laws 2004, chapter 200 began as Senate Bill (SB) 302, which was introduced in the New Hampshire Senate (Senate) on January 7, 2004, to "mak[e] technical corrections to the education funding formula." N.H.S. JOUR. 4 (2004). As introduced, SB 302 changed neither the source of education funding revenue, the statewide property tax, nor the uniform rate at which the tax was imposed.

The Senate passed SB 302 on March 17, 2004. See N.H.S. JOUR. 574-97 (2004). Before doing so, the Senate considered and rejected an amendment that would have raised the existing cigarette tax rate. See id. When SB 302 was transmitted to the House, it did not include this amendment.

SB 302 was introduced into the House on March 18, 2004. See N.H.H.R. JOUR. 522 (2004). On May 6, 2004, the House passed the bill with its own amendment increasing the existing cigarette tax rate. See N.H.H.R. JOUR. 810-28 (2004).

When the Senate next considered SB 302, on May 6, 2004, it did not concur with the House amendments. See N.H.S. JOUR. 1132 (2004). A committee of conference (Conference Committee) was then appointed. See id. The Conference Committee filed its report on May 19, 2004. See N.H.S. JOUR. 1219 (2004).

The Conference Committee recommended a new amendment to SB 302, which replaced all of the bill's language after the enacting clause. See N.H.S. JOUR. 1219-64 (2004); see also N.H.H.R. JOUR. 857-67 (2004). As amended by the Conference Committee, the bill increased the uniform rate at which the statewide property tax would be imposed. See N.H.H.R. JOUR. 857, 864 (2004); see also Laws 2003, 241:11. The Conference Committee's version of SB 302 was first adopted by the House and later by the Senate. See N.H.S. JOUR. 1219-64 (2004); see also N.H.H.R. JOUR. 857-67, 898 (2004).

There was a discrepancy between the text of SB 302 presented to the legislature and the Conference Committee's spreadsheet showing how much State money each municipality would receive under the bill. See N.H.H.R. JOUR. 897 (2004). The discrepancy concerned the formula for targeted aid to property poor municipalities. See RSA 198:41 (Supp. 2004). While the Conference Committee's spreadsheet calculated targeted aid by including property subject to taxation under RSA chapter 82 (taxation of railroads) and RSA chapter 83-F (electricity consumption tax), the text of SB 302 provided that targeted aid would be calculated by excluding this property. See N.H.H.R. JOUR. 897 (2004).

The House Journal refers to the discrepancy in the following clerk's note:

The Speaker indicated that a discrepancy had been found between the spreadsheet used by the Committee of Conference on SB 302 and the actual language of the report. It was the intent of the Committee of Conference that the language include utility property in order to convey the results enumerated on the spreadsheet.

The Clerk was instructed to note this for the record, and was given a copy of the spreadsheet to keep on file.

Id. The Senate Journal includes the Conference Committee's spreadsheet. See N.H.S. JOUR. 1309-13 (2004).

Both the House and Senate recessed on May 25, 2004, for the purposes of receiving enrolled bill amendments and reports. See N.H.S. JOUR. 1302-08 (2004); see also N.H.H.R. JOUR. 898-99 (2004). The enrolled bills committee recommended changing the word "excluding" to "including" in two places in SB 302 to fix the discrepancy between the Conference Committee's spreadsheet and the bill's text. With this change, SB 302 provided for calculating targeted aid by "including" property subject to taxation under RSA chapter 82 and RSA chapter 83-F. The enrolled bills committee recommended additional amendments to SB 302 to integrate changes made by other bills.

On June 3, 2004, the enrolled bills committee recommended that SB 302, as amended, ought to pass. See N.H.S. JOUR. 1340 (2004); N.H.H.R. JOUR. 899 (2004). The May 25, 2004 House and Senate sessions continued until they were adjourned on June 17, 2004. See N.H.S. JOUR. 1340 (2004); see also N.H.H.R. JOUR. 907 (2004). The journals of both houses indicate that the enrolled bill amendments to SB 302 were adopted before the May 25, 2004 session was adjourned. See N.H.S. JOUR. 1316-17 (2004); N.H.S. JOUR. 1340 (2004); see also N.H.H.R. JOUR. 899 (2004). The New Hampshire Secretary of State presented SB 302, as amended, to the Governor; it was enacted without his signature on June 9, 2004. See N.H. CONST. pt. II, art. 44.

On appeal, the petitioners argue that Laws 2004, chapter 200 is unconstitutional because: (1) it is a "money bill" that should have originated in the House as required by Part II, Article 18 of the State Constitution; and (2) it is materially different from the bill that the legislature passed and thus violates Part II, Articles 2, 20, 37 and 44 of the State Constitution as well as RSA 14:8 (2000) and RSA 20:2-a (2000). Before reaching the merits of the petitioners' claims on appeal, we address whether they are justiciable.

II. Justiciability

Two respondents, the Senate President and the House Speaker, argue that the petitioners' claims are nonjusticiable. The petitioners counter that we cannot address this argument because it was not preserved for our review. While we agree that the argument was not preserved, we will address it.

Ordinarily, we will not review arguments that were not timely raised before the trial court. See N. Country Envtl. Servs. v. Town of Bethlehem, 150 N.H. 606, 619 (2004). This rule is not absolute, however. We will, for instance, review subject matter jurisdiction claims, even if raised for the first time on appeal. See Route 12 Books & Video v. Town of Troy, 149 N.H. 569, 575 (2003). Moreover, preservation "is a limitation on the parties to an appeal, not the reviewing court." 5 AM. JUR. 2D Appellate Review § 691 (1995). We exercise our discretion in this case to address whether the questions on appeal are justiciable because justiciability is essentially a jurisdictional issue. See Petition of Judicial Conduct Comm., 151 N.H. 123, 128 (2004). If a question is not justiciable, it is not ours to review. See id. As with other kinds of jurisdictional questions, such as subject matter jurisdiction or sovereign immunity, we may address justiciability even if this issue is raised for the first time on appeal.

"[T]he political question doctrine is essentially a function of the separation of powers, existing to restrain courts from inappropriate interference in the business of the other branches of Government, and deriving in large part from prudential concerns about the respect we owe the political departments." Nixon v. United States, 506 U.S. 224, 252-53 (1993) (Souter, J., concurring) (quotations and citations omitted). "In the New Hampshire Constitution, the principle of separation of powers is espoused in Part I, Article 37." Horton v. McLaughlin, 149 N.H. 141, 143 (2003). The justiciability doctrine prevents judicial violation of the separation of powers by limiting judicial review of certain matters that lie within the province of the other two branches of government. Petition of Judicial Conduct Comm., 151 N.H. at 128. Cases that raise nonjusticiable political questions have the following characteristics:

Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious

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