Last week I noted that New Hampshire’s legislature is considering a resolution unilaterally declaring some state supreme court decisions on school funding nonbinding. This week, the desired outcome is to ignore and void an advisory opinion of the state supreme court the legislature had asked for.
The House Speaker and Majority Leader are prime sponsors of HR 13, a resolution “repudiating” a New Hampshire Supreme Court advisory opinion issued June 15 about whether the legislature can compel the state’s attorney general join the suit lodged by the Florida Attorney General and other states against the Patient Protection and Affordable Care Act (aka “Obamacare”).
New Hampshire, like several other states, grants its legislature (or a single chamber) the power to request advisory opinions of its state supreme court. As reflected in Issue 5:23‘s review of recent advisory opinion questions, New Hampshire’s legislature is especially prolific in asking, having asked for an advisory opinion every year since 2008.
SR 9 of 2011 requested an advisory opinion as to the constitutionality of HB 89 of 2011. The House bill provides that a resident of New Hampshire shall not be required to obtain, or be assessed a fee or fine for failure to obtain, health insurance coverage. It also declares that the Attorney General should join the lawsuit challenging the constitutionality of the Patient Protection and Affordable Care Act. (SB 148, a similar but not identical Senate version, also contained a similar directive to the Attorney General but changed the language “requiring” the AG join the suit to saying the AG “should”). It was that second portion about compelling the Attorney General that was at issue in SR 9, which was adopted immediately after the Senate tabled HB 89.
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?
The Supreme Court issued its opinion on June 15 answering Question 1 (violation of Part I, Article 37) in the affirmative, Question 2 (Legislature’s power to compel AG under Part II, Article 5) in the negative, and declining to answer Question 3. By June 17, the provision of SB 148 related to the Attorney General was stripped from the final version of the bill. The remaining portion, providing that a resident of New Hampshire shall not be required to obtain, or be assessed a fee or fine for failure to obtain, health insurance coverage, became law without the Governor’s signature in July.
Meanwhile, the House Speaker and Majority Leader moved for reconsideration and prepared HR 13, a resolution “repudiating” the Court’s opinion. While the memo focuses on the June 2011 advisory opinion, the resolution gives a list of cases going back to 1983 that purport to prove the supreme court’s “demonstrated hostility to representative government”. Moreover, it cites cases as far back as the 1800s, including Merrill v. Sherburne 1 N.H. 199 (1818), which members of the House had previously tried in early 2011 to declare void using a similar resolution. HR 13 concludes, in effect, that the Senate should just ignore the advisory opinion:
Resolved by the House of Representatives:
That the decision of the supreme court in Opinion of the Justices, 162 N.H. 160 (2011) is incorrect and a further manifestation of the court’s demonstrated hostility to representative government and its propensity unconstitutionally to interfere with the political process, and should be and hereby is repudiated and utterly rejected; and
That the senate, in order to reflect the will of the people expressed in the most recent election, to uphold the authority of the legislative branch conferred by the New Hampshire constitution, and to protect the federal system established by the United States constitution, is respectfully called upon and urged to remove from the table and pass HB 89 of the 2011 legislative session.
According to the resolution’s docket, the House Constitutional Review and Statutory Recodification Committee was to have taken up the bill September 20. No word on the outcome.