27 A.3d 859
N.H.2011Background
- Senate seeks an advisory opinion on whether HB 89, requiring the attorney general to join the state as a plaintiff in the Florida case, is constitutional.
- HB 89 would compel the attorney general to join a specific federal suit on behalf of New Hampshire no later than July 1, 2011.
- The Attorney General urged affirmative answers on questions 1 and 3 and a negative answer on question 2; the Senate urged negative on questions 1 and 3 and affirmative on question 2.
- The court explains advisory opinions are limited to the questions posed; it will not opine on the wisdom of HB 89.
- The court analyzes separation of powers, the governor’s executive powers, and the breadth of legislative authority under the NH Constitution.
- The court ultimately concludes HB 89 violates the Separation of Powers Clause and does not fall within Part II, Article 5.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does HB 89 violate Part I, Article 37? | Senate argues no constitutional violation. | Delays argues HB 89 violates the separation of powers. | Yes, HB 89 violates Article 37. |
| Does HB 89 fall within Part II, Article 5 broad legislative powers? | Senate contends it does fall within Article 5. | Delaney argues it does not fall within Article 5. | No, HB 89 does not fall within Article 5. |
| Does HB 89 violate any other provision of the NH constitution? | Senate asserts no other constitutional violations. | Delaney asserts other constitutional concerns exist. | The court declines to answer this question. |
Key Cases Cited
- New Hampshire Health Care Assoc. v. Governor, 161 N.H. 378 (2011) (separation of powers; preserve constitutional rights when interpreting statutes)
- Barry v. King, 106 N.H. 279 (1965) (executive powers and separation of powers analysis)
- Warburton v. Thomas, 136 N.H. 383 (1992) (historical context of NH constitutional provisions)
- Opinion of the Justices, 113 N.H. 141, 113 N.H. 141 (1973) (interpretation of executive power under NH constitution)
- Buckley v. Valeo, 424 U.S. 1 (1976) (enforcement power as executive function; litigation as execution of laws)