In re Op. of the Justices
| Citation | 171 N.H. 128,191 A.3d 1245 |
| Decision Date | 12 July 2018 |
| Docket Number | No. 2018-0267,2018-0267 |
| Parties | OPINION OF THE JUSTICES (Definition of Resident and Residence) |
| Court | Supreme Court of New Hampshire |
Bernstein, Shur, Sawyer & Nelson, P.A., of Manchester (Ovide M. Lamontagne on the memorandum), filed a memorandum on behalf of the New Hampshire House of Representatives in support of negative answers to the questions presented.
Lehmann Law Office, PLLC, of Manchester (Richard J. Lehmann on the memorandum), filed a memorandum on behalf of the New Hampshire Senate in support of negative answers to the questions presented.
Gordon J. MacDonald, attorney general (Francis C. Fredericks, assistant attorney general, and Lisa M. English, senior assistant attorney general, on the memorandum), filed a memorandum in support of the Justices answering the questions presented.
Wadleigh, Starr & Peters, PLLC, of Manchester (Eugene M. Van Loan, III on the memorandum), filed a memorandum on behalf of the Secretary of State.
Executive Councilor Christopher C. Pappas, of Manchester, and Executive Councilor Andru Volinsky, of Concord, filed a memorandum in support of the Justices declining to answer the questions presented or, in the alternative, in support of affirmative answers to the questions presented.
Dan Feltes, of Concord, and Paul Twomey, of Epsom, filed a memorandum on behalf of Senators Jeff Woodburn, Donna Soucy, and Dan Feltes, of the New Hampshire Senate, in support of the Justices declining to answer the questions presented or, in the alternative, in support of affirmative answers to the questions presented.
Gilles R. Bissonnette, of Concord, and Shaheen & Gordon, P.A., of Concord (William E. Christie and S. Amy Spencer on the memorandum), filed a memorandum on behalf of the American Civil Liberties Union of New Hampshire and the Fair Elections Center, in support of the Justices declining to answer the questions presented or, in the alternative, in support of affirmative answers to the questions presented.
Ray F. Chadwick, of Manchester, filed a memorandum on behalf of Granite State Taxpayers in support of negative answers to the questions presented.
Edward C. Mosca, of Manchester, filed a memorandum in support of negative answers to the questions presented.
Ed Naile, of Concord, filed a memorandum on behalf of Coalition of NH Taxpayers in support of negative answers to the questions presented.
Daniel Alain Richard, of Epsom, filed a memorandum.
On May 16, 2018, the Secretary of State transmitted to the chief justice and the associate justices of the supreme court a certified copy of a resolution of the Governor and Executive Council dated the same date requesting an opinion of the justices regarding House Bill (HB) 1264, an act amending the definition of "resident" and "residence" in RSA 21:6 and RSA 21:6-a. The act has been approved by the New Hampshire House of Representatives and the New Hampshire Senate, and is currently pending in the enrolled bills process, upon completion of which the bill will be placed before the Governor for his action. The Governor and Executive Council have requested that the justices give their opinion on the following questions of law:
"I. By subjecting those who are domiciled in New Hampshire for voting purposes to the same legal requirements as those who are residents of New Hampshire, including but not limited to the requirements to take actions required by RSAs 261:45 and 263:35 and to pay any fees or taxes associated therewith, would House Bill 1264, on its face, violate any of the following provisions of the New Hampshire or United States Constitutions?
(a) The Equal Protection Clause of Part I, Article 2 of the New Hampshire Constitution.
(b) Part I, Article 11 of the New Hampshire Constitution.
(c) The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
II. By subjecting those who are domiciled in New Hampshire for voting purposes to the same legal requirements as those who are residents of New Hampshire, including but not limited to the requirements to take actions required by RSAs 261:45 and 263:35 and to pay any fees or taxes associated therewith, would House Bill 1264, as applied to students attending a postsecondary institution within the State of New Hampshire who currently claim New Hampshire as their domicile for voting purposes but who do not claim New Hampshire as their residence, violate any of the following provisions of the New Hampshire or United States Constitutions?
(a) The Equal Protection Clause of Part I, Article 2 of the New Hampshire Constitution.
(b) Part I, Article 11 of the New Hampshire Constitution.
(c) The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution."
To the Honorable Governor and Council:
Upon receipt of the request, we invited interested parties to submit memoranda addressing the above questions. The undersigned justices of the Supreme Court return the following separate replies to the questions presented in your resolution.
Having reviewed these submissions and fully considered the issues, we conclude that the request constitutes a proper circumstance for us to issue an advisory opinion. Accordingly, we respectfully return our response that all of the certified questions must be answered in the negative.
Part II, Article 74 of the New Hampshire Constitution provides: "Each branch of the legislature as well as the governor and council shall have authority to require the opinions of the justices of the supreme court upon important questions of law and upon solemn occasions." As we have often noted, this provision of the constitution empowers the justices of this court to render advisory opinions "only in carefully circumscribed situations." Duncan v. State, 166 N.H. 630, 640, 102 A.3d 913 (2014). Several interested parties urge us to decline to issue an advisory opinion. Two arguments are advanced in support of this position. First, it is argued that, because the Governor alone, rather than the Governor and Council, has the exclusive authority to take action with respect to HB 1264, by signing it, vetoing it, or allowing it to become law without his signature, see N.H. CONST. pt. II, art. 44, the Governor and Council, as a body, has no interest that will be advanced by any advice given by the justices in an advisory opinion. We find this argument unpersuasive.
We acknowledge that we have not previously been asked for an advisory opinion in a situation the same as that presented here. However, we have previously answered questions in analogous circumstances. In Opinion of the Justices, 96 N.H. 513, 68 A.2d 859 (1949), the majority of the justices provided their opinion, at the behest of the Governor and Council, concerning the constitutionality of measures proposing the reorganization of agencies of the executive branch of state government. Opinion of the Justices, 96 N.H. at 513-14, 68 A.2d 859. The legislation authorizing the reorganization called for the Governor—with the assistance of advice from a special commission, but without the concurrence of the Council—to adopt the measures, which would then become law unless disapproved by concurrent resolution of both houses of the legislature. Id. In providing our response, we observed that "the questions submitted in the resolution of the Governor and Council pertain to their executive duty." Id. at 514, 68 A.2d 859. That being the case, we submitted our answers "upon the assumption that our opinion may be of use to you in the performance of the duties legally imposed upon you." Id. (quotation omitted). We made a similar assumption as to the usefulness of our answers to the functioning of the executive branch in Opinion of the Justices, 113 N.H. 87, 302 A.2d 112 (1973), where the questions submitted by the Governor and Council pertained to the constitutionality of a footnote that the Governor, without Council involvement, proposed to include in the budget he submitted to the legislature. See Opinion of the Justices, 113 N.H. at 88-89, 302 A.2d 112 ; see also Opinion of the Justices, 79 N.H. 535, 112 A. 525 (1919).
Although we remain sensitive to the importance of confining our advisory opinions to solemn occasions, we are satisfied that the request here comports with the requirements of Part II, Article 74. The Governor has the constitutional responsibility to approve or veto HB 1264 or allow it to become law without his signature. He has expressed concerns as to its constitutionality and, with the concurrence of the Council, whose role, inter alia, is to serve as advisor to the Governor, has sought our guidance to aid him in making his decision. Under these circumstances, we believe it is our duty to answer the questions submitted.
The other argument advanced in support of our declining to answer the questions is that we have insufficient information to do so because providing answers regarding voting rights issues requires factual development that can only occur in the context of a fully litigated case. In support of this position, the opponents of HB 1264 rely primarily on our decision in Opinion of the Justices (Domicile for Voting Purposes). In that case, we asked to be excused from answering a request for an advisory opinion from the New Hampshire House of Representatives on a bill proposing to amend the definition of domicile for voting purposes. Opinion of the Justices (Domicile for Voting Purposes), 167 N.H. 539, 541, 115 A.3d 257 (2015). As grounds, we observed that deciding what level of scrutiny to apply to the proposed legislation would require us to determine the extent of the burden which the measure imposed on the right to vote. See id. at 542, 115 A.3d 257. Because that determination was a factual question, we concluded that it could not be resolved in the context of an advisory opinion. Id. We also noted that there was then pending...
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