Opinion of The Justices (requiring Attorney Gen. To Join Lawsuit).

Decision Date15 June 2011
Docket NumberRequest of the Senate,No. 2011–319.,2011–319.
Citation27 A.3d 859,162 N.H. 160
PartiesOPINION OF the JUSTICES (Requiring Attorney General To Join Lawsuit).
CourtNew Hampshire Supreme Court
OPINION TEXT STARTS HERE

William L. Chapman, of Concord, filed a memorandum in support of an affirmative answer to the first question presented.Michael A. Delaney, attorney general, and another, filed a memorandum in support of affirmative answers to the first and third questions presented and a negative answer to the second question presented.Douglas, Leonard & Garvey, P.C., of Concord (Richard J. Lehmann on the memorandum), filed a memorandum on behalf of the New Hampshire Senate in support of negative answers to the first and third questions presented and an affirmative answer to the second question presented.Wilbur A. Glahn, III and Patrick H. Taylor, of Manchester, filed a memorandum on behalf of former members of the Office of Attorney General of New Hampshire in support of affirmative answers to the first and third questions presented.James Upshur McClammer, Jr., of Charlestown, filed a memorandum in support of an affirmative answer to the first question presented.Mosca Law Office, of Manchester (Edward C. Mosca on the memorandum), filed a memorandum on behalf of William O'Brien, Speaker, and David J. Bettencourt, Majority Leader, of the New Hampshire House of Representatives, in support of negative answers to the first and third questions presented and an affirmative answer to the second question presented.NH Voices for Health, of Concord (Michael J. Cohen and Thomas G. Bunnell on the memorandum), filed a memorandum in support of an affirmative answer to the first question presented.Gregory J. Vasse, of New London, filed a memorandum in support of an affirmative answer to the first question presented.

The New Hampshire Senate (Senate) adopted the following resolution on May 4, 2011, and filed it with the supreme court on May 5, 2011:

“Whereas, there is pending in the senate HB 89, An act requiring the attorney general to join the lawsuit challenging the Patient Protection and Affordable Care Act;' and

“Whereas, HB 89 as passed by the house of representatives and presently pending before the senate would require the attorney general to move to join the state of New Hampshire as a plaintiff in the lawsuit pending in federal court captioned State of Florida et al. v. United States Department of Health and Human Services et al. (hereinafter ‘the lawsuit’); and

“Whereas, at least 27 of the 50 states have joined as plaintiffs in the lawsuit; and

“Whereas, the lawsuit challenges the applicability of portions of a federal law that would require individual New Hampshire citizens to purchase health insurance, even if they did not wish to do so; and

“Whereas, the provisions being challenged in the lawsuit reflect matters of broad public policy, but do not presently affect the individual liberty or property interests of any individual New Hampshire citizen; and

“Whereas, Part II, Article 5 of the New Hampshire constitution states: ‘full power and authority are hereby given and granted to the said general court, from time to time, to make, ordain, and establish, all manner of wholesome and reasonable orders, laws, statutes, ordinances, directions, and instructions, either with penalties, or without, so as the same be not repugnant or contrary to this constitution;’ and

“Whereas, Part I, Article 37 of the New Hampshire constitution sets forth the principle of separation of powers as an integral part of our governmental system of checks and balances; and

“Whereas, a question has arisen as to the constitutionality of the provision in HB 89 requiring the attorney general to join the lawsuit; now, therefore, be it

“Resolved by the Senate:

“That the justices of the supreme court be respectfully requested to give their opinion upon the following questions of law:

“1. Does the requirement in HB 89 that the attorney general move to have the state of New Hampshire join as a plaintiff in the lawsuit, violate Part I, Article 37 of the New Hampshire constitution?

“2. Does the requirement in HB 89 that the attorney general move to have the state of New Hampshire join as a plaintiff in the lawsuit, fall within the broad grant of authority to the general court set forth in Part II, Article 5 of the New Hampshire constitution?

“3. Does HB 89 as adopted by the house of representatives and presently pending before the senate violate any other provision of the New Hampshire constitution?”

To the Honorable Senate:

The following response is respectfully returned:

House Bill (HB) 89 as passed by the New Hampshire House of Representatives (House) requires the attorney general, “no later than July 1, 2011,” to join the state of New Hampshire as a plaintiff in the lawsuit pending in federal court captioned State of Florida et al. v. United States Department of Health and Human Services et al. (the Florida case). See Florida ex rel. Bondi v. United States Dept. of Health and Human Services, 780 F.Supp.2d 1256 (N.D.Fla. 2011), clarified by 780 F.Supp.2d 1307 (N.D.Fla. 2011). The Florida case challenges the constitutionality of the Federal Patient Protection and Affordable Care Act. It was brought by the attorneys general and/or the governors of at least twenty-six states and others against the United States Departments of Health and Human Services, Treasury and Labor and their secretaries. See id. 780 F.Supp.2d at 1309–10, at *1.

You have asked that the undersigned justices of the supreme court render an advisory opinion as to whether HB 89 is constitutional. See N.H. CONST. pt. II, art. 74. 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.” N.H. CONST. pt. II, art. 74 (emphasis added). While these coordinate branches of government have no obligation to seek our opinion, where, as here, one house of the legislature has done so, we are required to perform our constitutional duty by providing our opinion, save in certain narrow circumstances that do not apply here. See Opinion of the Justices (Appointment of Chief Justice), 150 N.H. 355, 356, 842 A.2d 816 (2003) (supreme court justices have “no authority under Part II, Article 74 to issue advisory opinions to either branch of the legislature regarding existing legislation); Opinion of the Justices, 123 N.H. 510, 511, 463 A.2d 891 (1983) (supreme court justices are not “empowered to give advisory opinions on legal questions involving resolution of questions of fact”). “It is the role of this court in our co-equal, tripartite form of government to interpret the Constitution and to resolve disputes arising under it.” Petition of Below, 151 N.H. 135, 139, 855 A.2d 459 (2004) (quotation omitted). However, our intent is only to answer the questions posed, not to opine upon whether HB 89 reflects a wise public policy. See Smith Insurance, Inc. v. Grievance Committee, 120 N.H. 856, 863, 424 A.2d 816 (1980). We leave such matters to the other branches of government. See id.; see also Mahan v. N.H. Dep't of Admin. Services, 141 N.H. 747, 749–50, 693 A.2d 79 (1997) (judiciary is reluctant to evaluate the wisdom of an executive or legislative choice of public policy goals or the means to achieve them).

You have asked three questions about the constitutional validity of HB 89. Your first question asks whether HB 89, as passed by the House, would violate Part I, Article 37 of the New Hampshire Constitution. We answer in the affirmative. Your second question asks whether HB 89's requirement that the attorney general join the State as a plaintiff in the Florida case falls within the grant of authority to the general court set forth in Part II, Article 5 of the New Hampshire Constitution. We answer this question in the negative. Your third question asks whether HB 89, as passed by the House, violates any other provision of the New Hampshire Constitution. Historically, we have declined to answer general inquiries on constitutional infirmity and, in keeping with that practice, we respectfully decline to answer the third question. See Opinion of the Justices (Weirs Beach), 134 N.H. 711, 717, 598 A.2d 864 (1991).

I. Standard of Review

Before setting forth our analysis regarding your first and second questions, we note the proper standard of review. “When we interpret statutes already in effect, they are construed to avoid conflict with constitutional rights wherever reasonably possible.” Opinion of the Justices (Certain Evidence in Sexual Assault Cases), 140 N.H. 22, 26, 662 A.2d 294 (1995) (quotation omitted). The same standard applies when we review proposed legislation “for it is understood that the [legislation] if enacted will be construed harmoniously with an individual's constitutional rights in any given case.” Id. at 26–27, 662 A.2d 294. Thus, in reviewing proposed legislation, as when we review an existing statute, we presume it to be constitutional and will not declare it invalid except upon inescapable grounds.” New Hampshire Health Care Assoc. v. Governor, 161 N.H. 378, 385 (2011) (quotation omitted). This means that we will not hold [the act] to be unconstitutional unless a clear and substantial conflict exists between it and the constitution.” Id. (quotation omitted). “It also means that when doubts exist as to the constitutionality of a [legislative act], those doubts must be resolved in favor of its constitutionality.” Id. (quotation omitted).

II. Part II, Article 5

Your second question asks whether “the requirement in HB 89 that the attorney general move to have the state of New Hampshire join as a plaintiff in the lawsuit, fall[s] within the broad grant of authority to the general court set forth in Part II, Article 5 of the New Hampshire constitution.”...

To continue reading

Request your trial
3 cases
  • In re Op. of the Justices
    • United States
    • New Hampshire Supreme Court
    • July 12, 2018
    ... 171 N.H. 128 191 A.3d 1245 OPINION OF THE JUSTICES (Definition of Resident and ... Gordon J. MacDonald, attorney general (Francis C. Fredericks, assistant ... See Opinion of the Justices (Requiring Att'y Gen, to Join Lawsuit) , 162 N.H. 160, 164, ... ...
  • State v. Lopez, 2009–872.
    • United States
    • New Hampshire Supreme Court
    • June 15, 2011
    ... ... 10, 2011.Opinion Issued: June 15, 2011 ... [27 A.3d 714] ael A. Delaney, attorney general (Nicholas Cort, assistant attorney ... ...
  • In re Op. of the Justices
    • United States
    • New Hampshire Supreme Court
    • April 9, 2015
    ... ... , the House had adopted a request for an opinion of the justices regarding House Bill (HB) 112, an ... See Opinion of the Justices (Requiring Att'y Gen. to Join Lawsuit), 162 N.H. 160, 164, ... ...

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT