Opinion of the Justices

• Decision Date: 23 June 1981
• Docket Number: No. 81-166,81-166
• Citation: 431 A.2d 783,121 N.H. 552
• Parties: OPINION OF THE JUSTICES. Request of the House of Representatives.
• Court: New Hampshire Supreme Court

Page 783

431 A.2d 783

121 N.H. 552

OPINION OF THE JUSTICES.

Request of the House of Representatives.

No. 81-166.

Supreme Court of New Hampshire.

June 23, 1981.

The following resolution, House Resolution No. 35, requesting an opinion of the justices was adopted by the house of representatives on May 14, 1981, and filed in the supreme court on May 15, 1981:

"Whereas, the House of Representatives has before it SB 95, as amended, An Act requiring agencies to submit proposed rules for legislative approval prior to filing a notice of intended action; and

"Whereas, questions have been raised as to the constitutionality of provisions in SB 95 regarding legislative review of administrative rules; and

"Whereas, the House of Representatives therefore wishes the Court to resolve these questions on the constitutionality of SB 95 before taking any further action on these bills; now, therefore, be it

"Resolved by the House of Representatives:

"That the Supreme Court is respectfully requested to give their opinion upon and answer the following question:

"Under the provisions of SB 95 designated standing committees of both houses of the general court are empowered to review rules proposed by State agencies and to reject the proposed rules. Does the legislative review of proposed rules as established in SB 95, including, but not limited to, the provisions of RSA 541-A:2-b, RSA 541-A:2-c and RSA 541-A:2-d as inserted by the bill, violate the New Hampshire Constitution, Pt. 1, arts. 29 or 37, or Pt. 2, arts. 2, 5, 24 or 44 or any other provision of the State Constitution?

"That the clerk of the House transmit copies of this resolution to the Justices of the New Hampshire Supreme Court."

The following answer was returned:

To the Honorable House of Representatives :

The undersigned justices of the supreme court reply as follows to your request filed in this court on May 15, 1981:

Your question asks that we render our opinion on the constitutionality of Senate bill 95, which would amend the Administrative Procedures Act, RSA ch. 541-A, by creating a mechanism by which the legislature could review, and either accept or reject, rules proposed by State administrative agencies. The essence of the request concerns the extent to which a "legislative veto" power over rules promulgated by administrative agencies may be constitutionally permitted.

Initially, proposed RSA 541-A:2-a would require an administrative agency contemplating the promulgation of new rules to give notice of its intended action to the legislative leadership. This notice would include the agency's purpose in promulgating the proposed rule, the estimated cost to the State or persons affected by the proposed rule, and reference to the statutory authority for the proposed rule. This cost-benefit analysis has recently been implemented for rules at the federal level. See Exec.Order No. 12,291 (Feb. 17, 1981), 49 U.S.L.W. 2539-40 (Feb. 24, 1981); Justice Department, Office of Legal Counsel; Memorandum Assessing Legality of Proposed Executive Order (Feb. 13, 1981), 49 U.S.L.W. 2556-57 (March 3, 1981). It presents no constitutional problem.

Sections 2-b through -d of the proposed statute require approval of most rules within thirty days of their submission to the designated legislative committees. If the procedural steps outlined in the bill do not lead to approval or rejection of the proposed rule, it shall be deemed approved by the appropriate legislative committee. These three sections of the bill raise troublesome questions of separation of powers between the executive and legislative branches of government.

The concept of the separation of powers contained in virtually every American constitution was designed to protect the people from the tyranny of government which could result from the accumulation of unbridled power in any one branch of the government. The Federalist No. 47 (Madison). Our State Constitution specifically provides that the legislature has "(t)he supreme legislative power," N.H.Const.Pt. II, Art. 2; the Governor has the executive power, N.H.Const.Pt. II, Art. 41; and the courts have the judicial power, N.H.Const.Pt. II, Art. 72-a. We have long acknowledged that the complete separation of powers would interfere with the efficient operation of government, and that consequently there must be some overlapping of the power of each branch. Monier v. Gallen, 120 N.H. 333, 339, 414 A.2d 1297, 1300 (1980); Opinion of the Justices, 87 N.H. 492, 493, 179 A. 344, 345 (1935). The drafters of our constitution recognized this political reality and provided that "... the three essential powers ... (of government) 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 unity and amity." N.H.Const.Pt. I, Art. 37; see Opinion of the Justices, 118 N.H. 582, 585, 392 A.2d 125, 127-28 (1978).

The powers of government cannot be readily or rigidly compartmentalized. There are some governmental powers which properly may be said to belong to more than one branch of the government. II R. Pound, Jurisprudence 330-31 (1959); Opinion of the Justices, 118 N.H. 582, 585, 392 A.2d 125, 127-28 (1978); see Ferretti v. Jackson, 88 N.H. 296, 299, 188 A. 474, 476-77 (1936). It is clear, however, that an improper imposition upon one branch of government of the powers of another branch or an encroachment upon the powers of one branch by another branch violates the separation of powers requirement of the constitution. Opinion of the Justices, 110 N.H. 359, 363, 266 A.2d 823, 826 (1970); Merrill v. Sherburne, 1 N.H. 199 (1818).

It is well settled in this State that the legislature may delegate to administrative agencies the power to promulgate rules necessary for the proper execution of the laws. Ferretti v. Jackson, 88 N.H. at 298, 188 A. at 476; Smith Insurance Inc. v. Grievance Committee, 120 N.H. 856, 861, 424 A.2d 816, 819 (1980); Petition of Boston & Maine Corp., 109 N.H. 324, 326, 251 A.2d 332, 335 (1969). But the legislature may not, of course, delegate unlimited rulemaking authority to administrative agencies. Smith Insurance Inc. v. Grievance Committee, supra 120 N.H. at 861, 424 A.2d at 819. Rather, the legislature must declare a general policy and prescribe standards for administrative action. Ferretti v. Jackson, 88 N.H. at 303, 188 A. at 479.

Accordingly, the rulemaking authority which may be delegated by the legislature is limited. The administrative agency's authority allows it to "fill in details to effectuate the purpose of the statute," Kimball v. N. H. Bd. of Accountancy, 118 N.H. 567, 568, 391 A.2d 888, 889 (1978); Reno v. Hopkinton, 115 N.H. 706, 707, 349 A.2d 585, 586 (1975), and administrative rules which go beyond the filling in of details are invalid. Kimball v. N. H. Bd. of Accountancy, supra 118 N.H. at 568, 391 A.2d at 889; see Reno v. Hopkinton, supra 115 N.H. at 708, 349 A.2d at 586. "Rules adopted by State boards and agencies may not add to, detract from, or in any way modify statutory law." Kimball v. N. H. Bd. of Accountancy, supra 118 N.H. at 568, 391 A.2d at 889. Traditionally it has been the responsibility of this court to insure that the administrative agency does not substitute its will for that of the legislature. Id. at 569, 391 A.2d at 889.

"The consistent growth of administrative authority is an outstanding feature of contemporary government." Schwartz, The Legislative Veto and the Constitution A Re-examination, 46 Geo.Wash.L.Rev. 351, 353 (1978). The delegation of some lawmaking authority is a necessary feature of modern government because the current degree of regulatory activity can only be performed by administrative agencies. Id.

The delegation of limited lawmaking authority to administrative agencies, however, does not relieve the legislature of its responsibilities. We believe that legislative supervision of administrative agencies through constant statutory modification of their activities could be cumbersome and ultimately be doomed to fail. Likewise, the indirect supervision of administrative agencies through legislative budgetary pressure, as well as the intense scrutiny of executive appointments, is unsatisfactory. See Opinion of the Justices, 117 N.H. 398, 401, 374 A.2d 638, 639-40 (1977). The increasing use of provisions allowing for legislative veto of administrative lawmaking is a direct reflection of the growing interest in more effective legislative supervision of agency activity. Schwartz, supra at 353.

As Professor Schwartz noted:

"The legislature is, of course, subject to direct control through the electoral process. There is no comparable control when law is made by administrative agencies. Although the famous characterization of federal agencies by the President's Committee on Administrative Management as 'a headless "fourth branch" of the Government, a haphazard deposit of irresponsible agencies and uncoordinated powers' is exaggerated; too many agencies are not responsible for the details of their operations to the executive or legislative branches or to the electorate."

Schwartz, supra at 353.

The popularity of this mechanism to control the so-called "fourth branch" of government is demonstrated by the fact that legislative veto provisions were included in federal legislation at least 83 times in 126 different acts of Congress between 1933 and 1976. Id. at 357 (citing H.R.Rep.No.1014, 94th Cong., 2d Sess. 14 (1976)). These provisions covered a range of subjects from national rail proposals to election regulations. At the State level, at least twenty-eight States have adopted some form of legislative review of administrative rulemaking. Id. at 362 & n. 90.

The justices have previously, on two occasions, addressed the constitutionality of statutes containing legislative veto provisions. On the first occasion,...