O'Neil v. Thomson, 6832

• Decision Date: 28 February 1974
• Docket Number: No. 6832,6832
• Parties: James E. O'NEIL, Sr., et al. v. Meldrim THOMSON, Jr., as Governor.
• Court: New Hampshire Supreme Court

Page 168

316 A.2d 168

114 N.H. 155

James E. O'NEIL, Sr., et al. v. Meldrim THOMSON, Jr., as Governor.

No. 6832.

Supreme Court of New Hampshire.

Feb. 28, 1974.

McLane, Graf, Greene & Brown and Richard S. Snierson, Manchester (Stanley M. Brown, Manchester, orally), for James E. O'Neil, Sr. and others as members of the N.H. General Court and individually.

Cleveland, Waters & Bass and Robert T. Clark, Concord, for State Employees' Assn. of N.H., Inc.

Charles G. Douglas III, Concord, legal counsel to the Governor, by brief and orally, for Meldrim Thomson, Jr.

Stanton E. Tefft, Manchester, by brief and orally, for intervenors, being seven members of the House of Representatives in opposition to the petition.

LAMPRON, Justice.

Petition for a declaratory judgment and other relief brought against Meldrin Thomson, Jr., as Governor, by certain members of the General Court in their capacity as president and vice president of the senate and as speaker and deputy speaker of the house and as minority leaders of the senate and the house and as individual taxpayers. Also a plaintiff is the New Hampshire State Employees' Association, Inc., a voluntary corporation, in its own right and on behalf of its members and of all classified employees for whom it is the bargaining agent. The plaintiffs seek a declaration that certain Executive Orders promulgated by the Governor are 'illegal, unconstitutional and void'. Seven members of the house of representatives intervened in opposition to the action.

The Trial Court (Keller, C.J.) found that: 'No useful purpose would appear to be served by evidentiary hearings in this Court, since the basic issues are of constitutional law and of statutory interpretation, and all parties indicate that a final determination by the Supreme Court is desirable.' All questions of law raised by the pleadings of the parties were reserved and transferred to this court without rulings by the trial court. The challenged Executive Orders are as follows:

(1) No. 73-14 promulgated on July 10, 1973 which in pertinent part provided: '(i)t is hereby ordered and promulgated that effective this date no new permanent or new temporary classified personnel shall be hired without the prior approval of the Governor or his designee. Such approval will be given only when the need is clearcut and failure to employ the additional personnel will clearly decrease our ability to meet the needs of the people of our State. This freeze shall be effective until September 10, 1973, unless sooner terminated by the Governor. All requested positions shall be certified to the Governor by the appropriate department head.

'Existing temporary employees who would have normally converted to permanent status under legislative enactment in the 1973 session of the General Court will be allowed to be extended only to September 10, 1973, out of funds appropriated for their employment unless otherwise authorized by the Governor or his designee.'

The first part of the above order pertaining to new permanent and new temporary classified personnel was extended to April 1, 1974, by successive Executive Orders. The second part relating to the conversion of existing temporary employees to permanent status was revoked by Executive Order 73-28 (December 21, 1973) which provided that such employees were authorized to be converted to permanent status effective retroactively to July 1, 1973.

(2) No. 73-15 issued July 16, 1973 which provided that because of the energy crisis and the need to operate the State government as economically and as efficiently ad possible a 'ban was ordered . . . on the purchase of all automobiles for State use until September 17th 1973. . . . Exceptions to the ban may be made by the Governor upon written request from an agency head stating the reason why an exception should be made.' On December 21, 1973, (Executive Order 73-29) this order was amended to provide: 'No State department or agency shall purchase a new motor vehicle without the approval of the Governor's Inter-Office Motor Vehicle Committee', a committee composed of certain department heads and a representative of the Executive Office. The order was to remain in effect until terminated by the Governor.

(3) No. 73-16 issued August 14, 1973 read in part as follows: '. . . (I)t is hereby ordered and promulgated that effective this date no transfers or promotions of State employees having a labor grade of 17 or higher shall be made between any department, agency, board, or commission without the prior approval of the Governor . . . All requested transfers or promotions shall be certified to the Governor pursuant to this executive order by the appropriate department, agency or commission head.' All of the above orders were issued by the Governor 'by virtue of the authority vested in me under New Hampshire Constitution, Part 2, Article 41 as the supreme executive magistrate of the State.'

The plaintiffs in their several capacities have sufficient right and interest in the 'performance by public officers of their public duties' and in 'the preservation of an orderly and lawful government' to entile them to maintain these proceedings. N.H. etc. . . . Beverage Ass'n v. Commission, 100 N.H. 5, 6, 116 A.2d 885, 886 (1955). Their petition for declaratory judgment is a particularly appropriate action when the parties desire and the public need requires a speedy determination of the important issues in controversy. Chronicle etc. . . . Pub. Co. v. Attorney General,94 N.H. 148, 150, 48 A.2d 478, 479 (1946); Austin v. State Tax Comm'n, 114 N.H. --, 316 A.2d 165 (decided this day).

Their solution involves an interpretation of our State constitution and of statutes relative to the executive and legislative branches of our government. This is a traditional function conferred on the judiciary for which it is responsible. It is not within the competence of the other two branches and consequently does not fall within the bar against confiding political questions to the courts. N.H.Const. pt. I, art. 37, pt. II, art. 72-a; Cloutier v. State Milk Control Board, 92 N.H. 199, 201-202, 28 A.2d 554, 556 (1942); see Powell v. McCormack, 395 U.S. 486, 23 L.Ed.2d 491, 89 S.Ct. 1944 (1969). Nor does this petition violate the doctrine of sovereign immunity as it is not an action against the State but rather a proceeding to prevent the Governor from enforcing Executive orders which are claimed to be beyond his powers to promulgate. Conway v. Water Resources Board, 89 N.H. 346, 348, 199 A. 83, 86 (1938); see Fortin v. Morton, 101 N.H. 477, 147 A.2d 644 (1958).

Even though part of Executive Order No. 73-14 has been revoked we hold that the petition should not be dismissed for mootness as we believe justice requires that the matters in issue be decided so that all officials concerned 'may know where they stand'. Sugar Hill Improvement Ass'n v. Lisbon, 104 N.H. 40, 42, 178 A.2d 512, 513-514 (1962). The defense of laches does not prevent the maintaining of this petition as it deals with appropriations separate and distinct from those in effect when inaction on the part of the plaintiffs is alleged. No prejudicial delay appears in regard to the present appropriations and Executive Orders pertaining thereto.

The legislature exercises one of the three 'essential powers' of our government. N.H.Const. pt. I, art. 37. The General Court composed of the senate and the house of representatives is invested with the 'supreme legislative power' within this State. N.H.Const. pt. II, art. 2. It has the power to make laws; to name all civil officers (with exceptions not material in this case) and to define their duties and powers; to assess taxes to raise revenue for the operation of the government of the State and to make appropriations for that purpose. Id. arts. 5, 18. No moneys are to be issued out of the treasury of the State unless 'there be an appropriation, or equivalent direction for payment, by the Legislature. State v. Kimball, 96 N.H. 377, 380, 77 A.2d 115, 119 (1950); RSA 6:10 (Supp.1973).

Under these powers the General Court has created State departments and assigned broad powers and duties to the heads of these executive departments. E.g., RSA ch. 8; RSA ch. 8-B; RSA ch. 8-C; RSA ch. 12; RSA ch. 106-A; RSA ch. 126-A. The General Court has also established a 'Unified Personnel System For The State' which provides for the recruitment, appointment, compensation, promotion, transfer, layoff, removal, and discipline of State employees. R.L. ch. 27-B. This system has been expanded and revised to meet changing conditions. RSA chs. 98, 98-A, 98-B, 98-C, 98-D, 99 (Supp.1973). RSA 98:1 provides as follows: 'Neither the governor nor council shall be required to approve the employment, or salary, of any employee within the state classified service, except as such approval may be specifically required by law.'

The legislature has established the procedure to be followed in establishing budgets and making appropriations for all State departments. RSA ch. 9. Unlike any previous budget, those for fiscal years 1974 and 1975 with which we are concerned in these proceedings were prepared in a 'program appropriation unit format' (PAU) as required by RSA 9:8-a (Supp.1973). This method requires the submission by the departments of new information such as 'program descriptions of activities, workload, output, and improved financial data.' Budget Manual, Fiscal Years 1974-1975, at 1. The department administrators must submit to the Governor and to the legislative appropriations committees PAU forms showing how they intend to spend the funds requested whether for existing programs, their expansion, new programs, additional personnel, new automobiles, supplies, travel and other specified items. In the case of a request for new positions, the PAU form must show why they are needed,...