Brouillard v. Governor and Council

• Decision Date: 31 July 1974
• Docket Number: O,No. 6912,6912
• Citation: 114 N.H. 541,323 A.2d 901
• Parties: Richard P. BROUILLARD et al. v. The GOVERNOR AND COUNCIL et al. riginal.
• Court: New Hampshire Supreme Court

Page 901

323 A.2d 901

114 N.H. 541

Richard P. BROUILLARD et al. v. The GOVERNOR AND COUNCIL et al.

No. 6912, Original.

Supreme Court of New Hampshire.

July 31, 1974.

McLane, Graf, Greene & Brown and Charles A. DeGrandpre and Richard S. Snierson, Manchester, for plaintiffs.

Warren B. Rudman, Atty. Gen., and David H. Souter, Deputy Atty. Gen., and Richard V. Wiebusch and Michael P. Bentley, Concord, for defendants.

Charles G. Douglas III, Sp. Counsel, Concord, by brief and orally, for the Governor.

Richard F. Upton, Sp. Counsel, Concord, by brief and orally, for James H. Hayes, Robert E. Whalen, Bernard A. Streeter, Jr., Lyle E. Hersom and John F. Bridges, Executive Councilors.

GRIFFITH, Justice.

This is a petition for a writ of mandamus arising from the continuing conflict between the Advisory Commission of the Department of Health and Welfare and the Governor and Council concerning the appointment of a Commissioner of Health and Welfare. RSA 126-A:4 (Supp.1973) provides that the Commissioner of Health and Welfare 'shall be appointed by the governor and council from two or more nominees or, if agreeable to the governor, a lesser number of candidates nominated by the advisory commission. . . .' The office of commissioner of health and welfare became vacant December 1, 1973. On December 5, 1973, the advisory commission submitted to the Governor the names of two candidates for the office. Both candidates were unsatisfactory to the Governor and he refused to appoint either of them.

On December 7, 1973, in Opinion of the Justices, 113 N.H. --, 312 A.2d 702 (1973), in response to questions submitted by the Governor and Council, we expressed the opinion that a member of the department could be designated by the Governor and Council to administer the financial affairs of the department on an emergency basis. However, we also were of the opinion that the mandatory language of RSA 126-A:4 (Supp.1973) did not permit the Governor and Council to 'designate an individual to serve in the capacity of Commissioner of Health and Welfare with full power to administer the affairs of said department.' Id. at --, 312 A.2d at 703.

On March 6, 1974, in Opinion of the Justices, 114 N.H. --, 316 A.2d 174 (1974), we replied to questions submitted by the Senate concerning S.B. 25, an act providing for the nomination and appointment of the commissioner of health and welfare by the Governor and Council. In response to those questions, we again noted that the language of RSA 126-A:4 (Supp.1973) required the Governor and Council to appoint from the nominees submitted by the advisory commission. In answer to a question as to the time limit within which an appointment must be made, we indicated that that determination rested in the discretion of the Governor and Council. S.B. 25 was not enacted into law.

In a letter dated April 25, 1974, the advisory commission resubmitted in nomination the two original candidates along with two additional candidates. At the May 1, 1974 meeting of the Governor and Council, the Governor submitted the names of each of the four candidates for the Council's consideration. The first two candidates received an adverse vote from the Council. William Bronstein, one of the two new nominees, received a favorable vote of two to one with two councilors abstaining, but the Governor negated the confirmation. The last nominee, Stephen W. Smith, received a favorable vote of four to one from the Council, and the Governor then negated that confirmation. No further nominations have been submitted by the advisory commission and no further action has been taken by the Governor and Council.

The present action is an original petition to this court for a writ of mandamus ordering the Governor and Council to immediately appoint one of the four nominees chosen by the advisory commission. The plaintiffs are ten of the fourteen members of the advisory commission and three former members. While the question whether a writ of mandamus can issue against a governor has never been dealt with in New Hampshire, the issue has been raised in a number of other jurisdictions with mixed results. Annot., 105 A.L.R. 1124 (1936). It is clear that mandamus will not lie against an executive where he has discretion to act. But there is disagreement among States as to whether a court may issue a writ of mandamus against a Governor when he acts in a ministerial capacity without discretion. Some of those courts which have refused to issue the writ under any circumstances have taken the view that a court's very attempt to determine whether the nature of the act in question is discretionary or ministerial infringes on the separation of powers and that issuance of the writ could not be enforced in any event. Kelly v. Curtis, 287 A.2d 426 (Me.1972); Rice v. Draper, 207 Mass. 577, 93 N.E. 821 (1911); People v. Morton, 156 N.Y. 36, 50 N.E. 791 (1898); Sutherland v. Governor, 29 Mich. 320 (1874). Courts which have held that mandamus will lie against a Governor as to ministerial acts have generally taken the view that all persons are subject to a determination of the law by the courts and that they should not concern themselves with enforcement of the decree. Hollman v. Warren, 32 Cal.2d 351, 196 P.2d 562 (1948); Blalock v. Johnston, 180 S.C. 40, 185 S.E. 51 (1936); State v. Dickerson, 33 Nev. 540, 113 P. 105 (1910); Martin v. Ingham, 38 Kan. 641, 17 P. 162 (1888). While we are not prepared to assert that mandamus will not lie against a Governor (see National Treasury Employees Union v. Nixon, 492 F.2d 587 (D.C.Cir. 1974); Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803)), it is unlikely that the necessity of the writ should ever arise in this State. 'When the law is settled it will be obeyed.' Tirrell v. Johnston, 86 N.H. 530, 532, 171 A. 641, 642 (1934); O'Neil v. Thomson, 114 N.H. --, 316 A.2d 168 (1974). It should not be necessary to order a Governor of this State to obey the law he has taken an oath to execute. N.H.Const. pt. II, art. 41; Poe v. Gerstein, -- U.S. --, 94 S.Ct. 2247, 41 L.Ed.2d 70 (1974).

Attorney General v. Taggart, 66 N.H. 362, 29 A. 1027 (1890), relied upon as authority for mandamus against the Governor, was in effect a declaratory judgment before adoption of the Declaratory Judgment Act (RSA 491:22), as the final sentence in that decision indicates. 'A decision of this question might be as important as an adjudicated reformation of a deed, or as any other establishment of a private right by a declarative judgment.' Attorney General v. Taggart, 66 N.H. 362, 373, 29 A. 1027, 1033 (1890) (emphasis added). 'It is therefore immaterial whether the proper proceeding is an application for (mandamus) or a petition for a declaratory judgment.' Tirrell v. Johnston, 86 N.H. 530, 532, 171 A. 641, 642 (1934). In accordance with accepted practice in this State we therefore treat this action as a petition for a declaratory judgment and proceed to decide the case. Dinsmore v. Mayor and Aldermen, 76 N.H. 187, 190, 81 A. 533, 535 (1911); see State v. Harkaway, 105 N.H. 42, 46, 192 A.2d 619, 622 (1963); Boody v. Watson, 64 N.H. 162, 9 A. 794 (1886).

Whatever the merits of defendant's contention that plaintiffs lack standing to maintain a petition for a writ of mandamus, it is clear that they are entitled to have the law determined by declaratory judgment. O'Neil v. Thomson, 114 N.H. --, 316 A.2d 168, 170 (1974); N.H., etc., Beverage Ass'n v. Commissioner, 100 N.H. 5, 6, 116 A.2d 885, 886 (1955).

Subsequent to the argument of this case, the defendant Governor moved to dismiss the case based upon the request of Stephen W. Smith and William Bronstein that their names be withdrawn from consideration as candidates. However there remain two candidates which are all the advisory commission are required by statute to submit. In addition the advisory commission claims that Stephen W. Smith has already been appointed by the action of the Council and the Councilors in their brief suggest some irregularities in the Governor's method of nomination of candidates. In this situation it appears that the issues presented are not moot and should be determined.

It is claimed by the plaintiffs that Stephen W. Smith was appointed by the action of the Council in approving his nomination. They rely upon the statement in Opinion of the Justices, 98 N.H. 530, 533, 98 A.2d 635, 637 (1953), that in cases where an appointment is to be made by the "Governor and Council' . . . the Governor and Council may be called upon to act together as a single board, depending upon the intent of the particular statute.' They argue that on this basis the Governor only had one vote and Stephen W. Smith was appointed by a four to two vote. We find nothing in the statute which dictates such a result. RSA 21:31-a, enacted in 1957 subsequent to our 1953 opinion, clearly states: 'The phrase 'governor and council' shall mean the governor with the advice and consent of the council.' Nothing in RSA 126-A:4 (Supp.1973) expresses any contrary intent.

It is suggested in the brief for the Councilors that the practice of nominating a candidate while reserving the right to negate the nomination after a favorable vote by the Council is of doubtful propriety. We agree with this statement, particularly in the case of nonconstitutional offices, where the statutory construction mandated by RSA 21:31-a controls the appointment procedure. N.H.Const. pt. II, art. 5. Unlike the procedure involved in the appointment of constitutional officers (N.H.Const. pt. II, art. 46), where the Governor and Council have negatives on each other (N.H.Const. pt. II, art. 47), appointments under RSA 126-A:4 (Supp.1973) are to be made according to the direction of the legislature (N.H.Const. pt. II, art. 5; Opinion of the Justices, 102 N.H. 195, 197, 152 A.2d 878, 880 (1959); Opinion of the...