247 A.3d 831
N.H.2020Background:
- The New Hampshire House asked the Supreme Court under Part II, Article 74 whether holding House sessions remotely (in whole or in part) with an electronic method to determine a quorum would violate Part II, Article 20.
- The request arose during the COVID-19 emergency when the House had been conducting remote legislative activities; the court solicited memoranda and held oral argument.
- Two private individuals sought advisory opinions on additional constitutional provisions; the court declined to answer those requests because Part II, Article 74 authorizes advisory opinions only to legislative bodies and the Governor and Council, and the court will not decide questions requiring resolution of facts.
- Part II, Article 20 requires a majority of the members of the House for a quorum to do business and provides a two‑thirds assent requirement when fewer than two‑thirds are present.
- The court examined the text, historical background (including state and federal quorum debates), dictionary usage of “present,” and precedent (including United States v. Ballin) to determine whether virtual presence could satisfy the quorum requirement.
- Holding: Remote sessions where a quorum is determined electronically do not violate Part II, Article 20 because the Constitution does not fix the method for ascertaining presence and each house may adopt rules reasonably certain to ascertain a quorum; “present” can encompass being “at hand” or not absent, including virtual attendance.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether remote sessions with electronic quorum determination violate Part II, Art. 20 | Remote attendance does not satisfy Article 20; "present" requires physical, face‑to‑face presence and remote sessions can diminish public access | Article 20 is silent on method; "present" can mean "at hand" or "not absent"; each house may adopt reasonable rules to ascertain quorum; remote methods can increase public access | No violation — electronic determination of quorum permissible if method reasonably certain to ascertain presence |
| Whether the court should answer supplemental constitutional questions posed by private individuals | Private parties urged broader constitutional analysis of other provisions (Part I and II) | Advisory power under Part II, Art. 74 is limited to the Legislature and Governor/Council; court will not answer questions requiring factual findings | Court declined to address those additional questions |
| Meaning of "present" and who determines quorum | Argues framers intended physical presence only | Dictionary and precedent support "present" as "at hand"; framers couldn't foresee modern technology but provisions apply to new means; houses control their rules | "Present" can include virtual presence; houses may prescribe methods reasonably certain to ascertain quorum |
Key Cases Cited
- United States v. Ballin, 144 U.S. 1 (1892) (federal precedent that Constitution prescribes no specific method for ascertaining quorum; each house may adopt reasonable procedures)
- Pollard v. Gregg, 77 N.H. 190 (1914) (state interpretation of who counts as a member present for legislative business)
- Opinion of the Justices, 93 N.H. 474 (1944) (limits on advisory opinions and when court will furnish them)
- Opinion of the Justices (Appointment of Chief Justice), 150 N.H. 355 (2003) (advisory opinions are narrowly circumscribed)
- Opinion of the Justices (Domicile for Voting Purposes), 167 N.H. 539 (2015) (court will not answer questions requiring resolution of facts)
- Baines v. N.H. Senate President, 152 N.H. 124 (2005) (use of history and purpose in constitutional interpretation)
- Warburton v. Thomas, 136 N.H. 383 (1992) (state constitutional history)
- Tashjian v. Republican Party of Conn., 479 U.S. 208 (1986) (framers' unfamiliarity with later developments does not preclude applying provisions to modern contexts)
- Kyllo v. United States, 533 U.S. 27 (2001) (technology can affect constitutional interpretation)