Horton v. McLaughlin

• Decision Date: 18 February 2003
• Docket Number: No. 2001–580.,2001–580.
• Citation: 821 A.2d 947,149 N.H. 141
• Parties: Sherman D. HORTON, Jr. & a. v. Philip T. McLAUGHLIN, Attorney General for the State of New Hampshire, and the State of New Hampshire.
• Court: New Hampshire Supreme Court

149 N.H. 141

821 A.2d 947

Sherman D. HORTON, Jr. & a.

v.Philip T. McLAUGHLIN, Attorney General for the State of New Hampshire, and the State of New Hampshire.

No. 2001–580.

Supreme Court of New Hampshire.

Argued Nov. 1, 2002.

Opinion Issued Feb. 18, 2003.

Rehearing Denied April 23, 2003.

Nixon, Raiche, Manning, Casinghino & Leach, P.A., of Manchester (Kevin M. Leach and David L. Nixon on the brief, and Mr. Nixon orally), for the petitioners.

Philip T. McLaughlin, attorney general(Nancy J. Smith, senior assistant attorney general, on the brief and orally), for the respondents.

PER CURIAM.

The petitioners, Sherman D. Horton, Jr., David A. Brock, and John T. Broderick, Jr. appeal an order of the Superior Court(Fitzgerald , J.) dismissing their petition for declaratory judgment and other relief in which they sought reimbursement from the State of New Hampshire for legal fees and costs incurred during the course of their impeachment proceedings.We affirm.

The following facts are relevant to the disposition of this appeal.At all times pertinent to this matter, the petitioners were members of this court: petitioner Brock as Chief Justice, and petitioners Horton and Broderick as Associate Justices.On April 13, 2000, the New Hampshire House of Representatives adopted a resolution directing the House Judiciary Committee to investigate whether cause existed to impeach the petitioners.The Committee concluded its investigation on July 12, 2000.Consistent with the Committee's findings and recommendations, the full House voted to present articles of impeachment against Chief Justice Brock to the New Hampshire Senate.The House also approved resolutions providing that cause did not exist to impeach Associate Justices Horton and Broderick.On October 10, 2000, following a trial, the Senate voted to acquit Chief Justice Brock of the charges against him.

During the course of the impeachment proceedings, Chief Justice Brock and Associate Justice Horton requested representation from the Attorney General of New Hampshire under RSA 99–D:2.The Attorney General denied their request, concluding that RSA 99–D:2 did not apply because impeachment proceedings were involved.In the same vein, following the conclusion of the impeachment proceedings, all three Justices unsuccessfully sought reimbursement of their legal fees under RSA 99–D:2.

The petitioners then filed a petition in superior court, seeking a ruling that they were entitled to reimbursement of attorney's fees incurred as a result of successfully defending themselves against impeachment.The petitioners relied on RSA 99–D:2, the common law, and the state and federal constitutions.The superior court ruled that the issue was nonjusticiable and dismissed the petition.

We agree with the superior court's ruling on justiciability, and hold that the issue in this case is a nonjusticiable political question.

"[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, 113 S.Ct. 732, 122 L.Ed.2d 1(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 :

In the government of this state, the three essential powers thereof, to wit, the legislative, executive, and judicial, ought to be kept as separate from, and independent of, each other, as the nature of a free government will admit, or as is consistent with that chain of connection that binds the whole fabric of the constitution in one indissoluble bond of union and amity.

This doctrine "prohibits each branch of government from encroaching on the powers and functions of another branch."Petition of the Judicial Conduct Comm.,145 N.H. 108, 109, 751 A.2d 514(2000)(hereinafter "Petition of JCC ")(quotations and citations omitted).

The principle of justiciability 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.Seeid . at 109, 111–112, 751 A.2d 514."A controversy is nonjusticiable—i.e. , involves a political question—where there is a textually demonstrable constitutional commitment of the issue to a coordinate political department ...."Id . at 111, 751 A.2d 514(quotations and citations omitted).Accordingly, if the text of the constitution has demonstrably committed the disposition of a particular matter to a coordinate branch of government, a court should decline to adjudicate the issue to avoid encroaching upon the powers and functions of that branch.

"[T]he impeachment of judges is demonstrably committed to the legislative branch by Part II, Article 17 of the New Hampshire Constitution."Id . at 111–12, 751 A.2d 514.Indeed, impeachment is "exclusively a legislative prerogative."In Re Mussman,112 N.H. 99, 100, 289 A.2d 403(1972)(citation omitted).Specifically, Part II, Article 17 of the New Hampshire Constitution provides that "[t]he house of representatives shall be the grand inquest of the state; and all impeachments made by them, shall be heard and tried by the senate."(Emphasis added.)Correlatively, "[t]he senate shall be a court, with full power and authority to hear, try and determine, all impeachments made by the house of representatives ...."N.H. CONST. pt. II, art. 38(emphasis added).

The legislature has full authority to establish all rules, regulations and laws necessary and proper to carry out its constitutional mandate.SeePetition of JCC,145 N.H. at 112, 751 A.2d 514;see alsoDavis v. Sch. Dist.,44 N.H. 398, 404(1862);cf .N.H. CONST. pt. II, arts. 22 and 37(each legislative chamber makes its own procedural rules).Thus, the legislature's exclusive power to conduct impeachment proceedings necessarily carries with it the full authority to make, implement and interpret rules pertaining to impeachment.Petition of JCC,145 N.H. at 112, 751 A.2d 514(challenge to delegated legislative authority to make rules governing impeachment is nonjusticiable absent "unusual circumstances").

As an instance of this general principle, it is the legislature's prerogative to make, implement and interpret rules pertaining to the provision of legal counsel for judges and other officials who are subject to impeachment, as well as rules pertaining to the reimbursement of their legal fees.SeeHastings v. United States Senate,716 F.Supp. 38, 40, 42(D.D.C.1989), aff'd without opinion , 887 F.2d 332(D.C.Cir.1989)(Senate alone determines procedure on attorney's fees for judges in impeachment proceedings);Mecham v. Arizona House of Representatives,162 Ariz. 267, 782 P.2d 1160, 1161(1989)(court has no authority to award attorney's fees incurred during impeachment proceedings absent constitutional or statutory authorization);Larsen v. Senate of Pennsylvania,166 Pa.Cmwlth. 472, 646 A.2d 694, 704(1994)(request for attorney's fees and costs exclusively within power of Senate and cannot be invaded by courts).It is likewise the legislature's prerogative to entertain requests for the same.SeeHastings,716 F.Supp. 38;Mecham,162 Ariz. 267, 782 P.2d 1160;Larsen,166 Pa.Cmwlth. 472, 646 A.2d 694;cf .Petition of JCC,145 N.H. 108, 751 A.2d 514.Indeed, to allocate to the legislature plenary authority over impeachment without including the ancillary power of awarding attorney's fees pursuant thereto would impose an intent otherwise not apparent from the clear language of the constitution.

Notwithstanding the petitioners' attempt to distinguish the foregoing cases based on differences in circumstances, these cases support our holding that the issue of granting judges attorney's fees for defending against impeachment proceedings belongs in the legislature and not in the courts.

The court is also not persuaded by the petitioners' argument that the timing of their request, that is, the post-impeachment nature of the request, exempts it from application of the political question doctrine.Regardless of the timing of the request, the petitioners incurred the fees during the course of impeachment proceedings over which the legislature has exclusive authority.It would be no less a violation of the separation of powers for the court to address the issue after the fact than it would be if the court had addressed the issue before or during the impeachment process.

Our conclusion that the constitution commits to the legislature exclusive authority over attorney's fees incurred during impeachment proceedings does not end the inquiry into justiciability, however."The court system is available for adjudication of issues of constitutional or other fundamental rights."Petition of JCC,145 N.H. at 111, 751 A.2d 514.Recognizing this principle, this court has acknowledged there could be "unusual circumstances that might justify a more searching review of impeachment proceedings."Id . at 112, 751 A.2d 514(citingNixon, 506 U.S. at 253, 113 S.Ct. 732);see alsoHastings,716 F.Supp. at 40("Court should stay its hand" absent evidence of constitutional violation).

Here, the petitioners do not claim that legislative action or inaction threatened the integrity of the impeachment investigation or trial, or that the legislature acted beyond the scope of its constitutional authority such that the consequences to the state are so great as to merit judicial interference in the legislature's authority to regulate its impeachment process.SeePetition of JCC,145 N.H. at 112, 751 A.2d 514;see alsoNixon,506 U.S. at 253, 113 S.Ct. 732.Instead, relying on Town of Littleton v. Taylor,138 N.H. 419, 640 A.2d 780(1994), Foster v. Hudson,122 N.H. 150, 441 A.2d 1183(1982), Silva v. Botsch,121 N.H. 1041, ...