King v. Sununu

• Decision Date: 27 March 1985
• Docket Number: No. 84-557,84-557
• Citation: 126 N.H. 302,490 A.2d 796
• Parties: Michael B. KING v. John H. SUNUNU, Governor, and Robert L. Brunelle, Education Commissioner.
• Court: New Hampshire Supreme Court

Page 796

490 A.2d 796

126 N.H. 302

Michael B. KING v. John H. SUNUNU, Governor, and Robert L. Brunelle, Education Commissioner.

No. 84-557.

Supreme Court of New Hampshire.

March 27, 1985.

Law Office of Michael B. King, Hanover (Michael B. King, Hanover, on brief and orally), for plaintiff.

Stephen E. Merrill, Atty. Gen. (Bruce E. Mohl, Asst. Atty. Gen., on brief and orally), for defendants.

Nighswander, Martin, Kidder & Mitchell P.A., Laconia (James L. Burke, Laconia, on brief), for New Hampshire School Boards Ass'n, as amicus curiae.

DOUGLAS, Justice.

In this declaratory judgment action, we are asked to determine whether, in construing the legislative provisions pertaining to the distribution of sweepstakes revenue, the Superior Court (Dunfey, C.J.) erred in finding (a) that Laws 1983, 469:32, II controlled the distribution of the State's sweepstakes revenue only to the extent of the revenue estimate of $4.7 million; and (b) that any sweepstakes revenue in excess of $4.7 million was to be governed by RSA 284:21-j (Supp.1983). We reverse.

This dispute arises out of an agreement between the State of New Hampshire and Digital Equipment Corporation (Digital), enabling the State's local school districts to purchase computer equipment and services from Digital. The agreement, which was negotiated by the office of the Director of Plant and Property Management pursuant to RSA 8:22, sets prices, terms and conditions for the purchase of computer equipment, software and support services. The agreement does not directly commit the use of State funds for the purchase of such items. Rather, the defendants, Governor John Sununu and Department of Education Commissioner Robert L. Brunelle, have proposed that the equipment and services be purchased by the local school districts with surplus revenue from the State's sweepstakes programs.

The defendants, in making their proposal, claimed that $957,677 in surplus sweepstakes revenue for fiscal year 1984 was available to the local school districts and was to be distributed in accordance with RSA 284:21-j (Supp.1983). The plaintiff, Michael B. King, commenced the instant action under RSA 491:22, seeking to have the court declare that RSA 284:21-j (Supp.1983) was suspended for fiscal years 1984 and 1985 by Laws 1983, 469:32, II and, thus, that under the present legislative scheme there was no surplus sweepstakes revenue to be distributed to the local school districts under RSA 284:21-j (Supp.1983).

After reviewing the legislative history of Laws 1983, 469:32, II, the superior court found and ruled that "all moneys" generated by the sweepstakes programs for fiscal years 1984 and 1985 were transferred, by Laws 1983, 469:32, II, to the Department of Education Program Appropriation Unit (PAU) 060303. The court further determined that $4.7 million was the estimated sweepstakes revenue for those years and that such amount was recognized as a source of funds for the various line items in PAU 060303.

The court then reasoned that, because no sweepstakes revenue above $4.7 million was anticipated, there was no legislative directive authorizing expenditure of funds exceeding that amount and, therefore, that the direction to distribute such funds was triggered by operation of law. The court ruled that RSA 284:21-j (Supp.1983) governed the expenditure of funds exceeding the $4.7 million revenue estimate and that the money could therefore be distributed to the local districts. The plaintiff appealed from that ruling.

We begin our analysis with an examination of the language of the legislative provisions pertaining to the distribution of sweepstakes revenue. In 1963, the legislature created a sweepstakes commission, RSA 284:21-a, and established a statutory mechanism to govern the distribution of moneys received from the State's sweepstakes programs. See RSA 284:21-j (Supp.1983) (current version of original provision). The legislature provided:

"The state treasurer shall credit all moneys received from the sweepstakes commission, and interest received on such moneys, to a special fund from which he shall pay all expenses of the commission incident to the administration of this subdivision and RSA 287-E and shall pay out on or before September 15 of each year to the school districts of the state on a flat grant per resident pupil basis any balance in said special fund. Such grants shall be used for educational purposes and no part of said special fund shall be diverted by transfer or otherwise to any other purpose whatsoever."

RSA 284:21-j (Supp.1983). Hence, under RSA 284:21-j (Supp.1983), all moneys received by the sweepstakes commission are to be distributed, after deduction of administrative expenses, outside the formal budgetary process to the school districts on a flat grant per resident pupil basis for the exclusive purpose of supporting education.

In 1982, in order to address a shortfall in the general fund, the 1982 special session of the legislature directed that $3 million of the sweepstakes revenue be transferred to the general fund. Laws 1982, 42:29, II. The legislature further provided that any revenue in excess of $3 million be distributed in accordance with RSA 284:21-j. Laws 1982, 42:29, III.

In 1983, the governor proposed that all sweepstakes revenue be transferred to the department of education PAU 060303, financial aid to districts. The legislature thus added the following provision to the State's budget for fiscal years 1984 and 1985:

"Notwithstanding any other provision of law, the state treasurer shall transfer, after the payment of administrative expenses ... all moneys deposited into the sweepstakes fund and interest received on such moneys to the department of education PAU 06.03.03 educational financial aid to districts."

Laws 1983, 469:32, II. It is this provision that is at issue here.

The plaintiff argues that the superior court erred in ruling that Laws 1983, 469:32, II governed the distribution of sweepstakes revenue only to the extent of the revenue estimate of $4.7 million and that any revenue in excess of that amount was to be distributed in accordance with RSA 284:21-j (Supp.1983). It is the plaintiff's position that Laws 1983, 469:32, II controls the distribution of all sweepstakes revenue for fiscal years 1984 and 1985.

The plaintiff claimed in his petition for declaratory judgment that RSA 284:21-j (Supp.1983) had been "suspended" for fiscal years 1984 and 1985. The superior court, stating that the terms "suspended" and "repealed" are synonymous and are used interchangeably, determined that the issue was whether Laws 1983, 469:32, II "repealed" RSA 284:21-j (Supp.1983). Reasoning that repeal by implication was looked upon with disfavor, see Board of Selectmen v. Planning Bd., 118 N.H. 150, 152-53, 383 A.2d 1122, 1124 (1978), the court ruled that the plaintiff had the burden of establishing with evidence of convincing force that no reasonable construction of the two statutes taken together could be found. See id. at 153, 383 A.2d at 1124.

Although we do not disagree with the lower court's statement of the law of this jurisdiction regarding repeal by implication, we conclude that the terms "repeal" and "suspend" are not synonymous. A "repeal" of a statute is effectuated if an entire act or section is abrogated. 1A A. Sutherland, Statutes and Statutory Construction, § 23.0 (C. Sands 4th ed. 1972). The "suspension" of a statute "is the temporary displacement of a valid legislative enactment by the execution of a later statute which is to prevail during its limited operation." Id. at § 23.30. Suspension is recognized under New Hampshire law. See N.H. CONST. pt. I, art. 29 (power of the legislature to suspend laws).

As more fully discussed below, Laws 1983, 469:32, II was enacted as a temporary measure to remedy a severe budget deficit. It was not intended to repeal or abrogate existing provisions of law pertaining to the distribution of sweepstakes revenue. Therefore, the proper focus is on suspension and not on repeal.

"[W]hen a later statute, limited in time of operation, prescribes the controlling law while it is in force upon a subject previously controlled by a statute of permanent operation, a suspension is achieved by implication ...." 1A A. Sutherland, supra § 23.20. Of course, inherent in the determination that a later enactment suspends an earlier provision concerning the same subject matter is a finding that there is a conflict between the two statutes. The later enactment only takes precedence over any conflicting provisions. See Roccaforte v. Mulcahey, 169 F.Supp. 360, 363 (D.Mass.1958), aff'd 262 F.2d 957 (1st Cir.1958) ("Where congress expressly limits a change of substantive law to a given fiscal year ... it is clear that only a temporary suspension of conflicting substantive law is intended." (Emphasis added.)) Hence, the issue is whether and to what extent Laws 1983, 469:32, II conflicts with RSA 284:21-j (Supp.1983).

At the outset, it is important to note that Laws 1983, 469:32, II, by its express terms, applies to sweepstakes revenue. Moreover, use of the introductory clause "notwithstanding any other provision of law" in Laws 1983, 469:32, II, evinces a legislative intent to suspend RSA 284:21-j (Supp.1983).

In this jurisdiction, the words of a statute are interpreted according to their plain and ordinary meaning. RSA 21:2. The plain meaning of the word "notwithstanding" is "without prevention or obstruction from or by" or "in spite of." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1545 (1961). In applying the definition of "notwithstanding" to the provision at issue, it becomes apparent that the legislature, in recognition that Laws 1983, 469:32, II conflicted with RSA 284:21-j (Supp.1983) also dealing with the distribution of sweepstakes revenue, inserted the phrase to express its intent that Laws 1983, 469:32, II was to take precedence over RSA 284:21-j (Supp.1983). See Board of Education v. Maple...