2005-215, DANIEL M. HUGHES v. SPEAKER OF THE NEW HAMPSHIRE HOUSE OF REPRESENTATIVES & a.

RSA chapter 91 - A when they privately negotiated a compromise of Senate Bill (McGuire, J.) that they violated Part I, Article 8 of the State Con stitution and DUGGAN, J. The defendants appeal the ruling of the Superior Court

general, on the brief), for the State, as amicus curiae. Kelly A. Ay otte, attorney general (Daniel J. Mullen, associate attorney

Patrick Donovan, house legal counsel, by brief, for the defendants. Bassett orally), and Richard J. Lehmann, senate legal counsel, by brief, and Orr & Reno, P.A., of Concord (James P. Bassett & a. on the brief, and Mr.

Reinemann on the brief, and Mr. Gould orally), for the plaintiff. Brown, Olson & Gould, P.C., of Concord (Bryan K. Gould and E. Maria

SPEAKER OF THE NEW H AMPSHIRE HOUSE OF RE PRESENTATIVES & a.

No. 2 005 - 215 Merrimack

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. O pinions are available on the Internet by 9:00 Errors may be reported by E - mail at the following address: errors in order that corrections may be made before the opinion goes to press. Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

Senate did not concur with the House amendment. Id. at ___. Consistent with Id. at ___. A committee of conference was appointed for SB 30 p. 2 2 when the The House amended SB 302 to increase the existing cigarette tax rate.

cigarette tax rate. Id. at ___. p. 2 2004, the Senate rejected an amendment that would have raised the existing ___ (quotation and brackets omitted). Before passing the bill on March 17, technical corrections to the education funding formula.” Baines, 152 N.H. at SB 302 was introduced in the Senate on January 7, 2004, to “make

Baines v. N.H. Senate President, 15 p. 2 2 N.H. ___, ___ (decided April 20, 2005). 302 below. We incorporate by reference the more detailed history set forth in concerning school funding. We briefly summarize the legislative history of SB The instant dispute concerns the enactment of SB 302, a 2004 bill

plaintiff is Representative Daniel M. Hughes, a member of the House. Committee on SB 30 p. 2 2, and the Senate Conference Com mittee on SB 302. The the General Court of the State of New Hampshire, the House Conference Representatives (House), the President of the New Hampshire Senate (Senate), Th e defendants are the Speaker of the New Hampshire House of

I. Background

the negotiations at issue was reasonable. legislature could properly have determined that denying the public access to and the public access to the records and debates, we believe that the Considering the public and open n ature of the legislative process in this case debate outweighs the public’s right of access to the disputed negotiations. constitutional provision. In context, the constitutional import of free legislative political questio n. We further hold that the defendants did not violate that However, whether the defendants violated Part I, Article 8 is not a

constitutional authority to adopt and enforce its own rules of procedure. review. Answering this question would infringe upon the legislature’s exclusive governing the public’s right to know is a political question not sub ject to our We hold that whether the defendants violated the statutory provisions

separation of powers, see N.H. CONST. pt. I, art. p. 3 37. We reverse. debate, see N.H. CONST. pt. I, art. 30; and the constitutional principle of CONST. pt. II, arts. p. 2 22, 37; the legislature’s right to free deliberation and 2004); the legislature’s constitutional authority to adopt its own rules, see N.H. I, art. 8; t he public’s statutory right to know, see RSA ch. 91 - A (2001 & Supp. constitutional right of access to governmental proceedings, see N.H. CONST. pt. (SB) 302. This appeal requires that we carefully consider: the public’s 3

concept of bicameralism.” Id. at 547. “While it is sometimes possible to Committees of conference “are an important element of the constitutional

Powers, and the Enactment Process, 52 Case W. Res. L. Rev. 489, 545 (2001). Congr essional Committees Constitutional?: Radical Textualism, Separation of differences between the House and Senate versions.” J. Roberts, Are (introduced on July 22, 1789), required a conference committee to iron out United States? Id. at p. 3 31. “One of the first bills passed by Congress, H.R. 15 congressional etiquette: How should the Congress ad dress the President of the conference committee met on May 14, 1789, to resolve an issue of conferences between the two chambers.” Id. at 30. The first congressional Congress in 1789, the Senate and the House considered rules providing for “Almost immediately upon the convening of the first session of the First

Conference Committees in Congress 29 (1989). the New World as early as 1645.” L. Longley & W. Oleszek, Bicameral Politics: Massachusetts Bay Colony . . . held the first recorded conference committee in Congressional Procedures and the Policy Process 255 (6 ed. 2004). “The th between the chambers of their bicameral legislatures.” W. Oleszek, legislatures used conference committees before 1789 to reconcile differences “The conference committee process is older than Congress itself. State

in its final form and it is ordered to enrollment.” Id. “When both houses have adopted the report, they have both approved the bill acted upon by each house of t he legislature. Mason’s, supra § 771, at 560. of the New Hampshire General Court 200 p. 3 3 - 2004 at 20. The report is then to the legislature unless the conferees have unanimously approved it. Manual in duplicate.” Singer, supra § 16A:4, at 936. The report may not be forwarded complete agreement . . . they embody their recommendations in a report made “When the conferees, by majority vote of each group, have reached

§ 770, at 558 (2000) (Mason’s). Conference of State Legislatures, Mason’s Manual of Legislative Procedure separately and acts by a majority vote.” Id. § 16A:4, at 9 p. 3 34; see National committee they are in effect two separate committees, each of which votes “Although the managers on the part of each House meet together as one Statutes and Statutory Construction § 11:8, at 654 (6th ed. 2002 rev.). existing legislation or by the substitution of an entirely new bill.” N. Singer, 1 one house from its bill or its amendments or by the further amendment of the function is to gain accord between the two houses either by the recession of one appointed by each house. It is normally appointed for a specific bill and its A committee of conference or “conference committee,” “is two committees,

Speaker of the House appointed four House conferees. Id. at ___. legislative rules, the Senate President appointed three Senate confere es and the p. 4 4

May 25, 200 p. 4 4. See N.H.S. Jour. ___ (May 25, 2004); see also N.H.H.R. Jour. The legislature considered the committee’s report in public session on

conferees were replaced, and the replacement conferees signed the report. conferees explained that they could not support the committee’s report. These At the May 19, 200 p. 4 4 public meeting of the committee of conference, three

the cigarette tax. See N.H.H.R. Jour. ___ (May 25, 200 p. 4 4). Baines, 152 N.H. at ___. The report did not recommend changing the rate of increase the uniform rate at which the statewide property tax was imposed. May 19, 2004. The committee’s report recommended amending SB 302 to The committee of conference reached a final compromise on SB 3 02 on

the public. discussions between pairs of Senate conferees were publicly noticed or open to Neither the Senate President’s meeting with the Senate conferees nor the pairs of Senate conferees met in person or by teleph one to discuss the bill. before at least one public meeting of the committee of conference. Additionally, The Senate conferees also met with the Senate President in his office

comments in advance. conferee indicated that she disapproved of confer ees scripting their public meeting.” During one of the committee of conference’s public meetings, a that the conferees “agreed . . . on a ‘script’ of what they would say in the public meetings of the Committee of Conference.” The court also credited testimony House conferees “discussed and decided what to say during the noticed public The trial court credited testimony that, at these non - public meetings, the

co mmunicated with the Senate President to negotiate a compromise of SB 302. these non - public meetings, representatives for the House conferees meetings were not publicly noticed and were not open to the public. During meetings were House legal counsel and various House members. These the Speaker of the House in his office to discuss SB 302. Also present at these Before each of the public meetings convened, House conferees met with

attendance. conferees met jointly on these dates, with members of the public and press in May 17, 200 p. 4 4; May 18, 2004; and May 19, 2004. The Senate and House The committee of conference in this case met publicly on three dates:

legislative provisions for final passage.” Id. at p. 5 5 p. 4 47 - 48. function of preparing from the disparate House and Senate bills one final set of a quintessential bicameral body, that carries out the crucial constitutional the case for important legislation.” Id. “It is usually the conference committee, reconcile differences between the chambers by amendment . . ., this is rarely 5

CONST. pt. I, art. 8; see also RSA ch. 91 - A. violated the plaintiff’s constitutional and statutory right to know. See N.H. public eye and without public scrutiny.” This conduct, the court ruled, intermediaries for the purpose of negotiating the school funding bill outside the the House and Senate conferees meeting separately and negotiating through Rather, the “de facto meetings of the Committee of Conference occurred with di d not substantively negotiate SB 302 during the publicly noticed meetings. Constitution and the Right - to - Know law.” The court found that the conferees the negotiations on SB 302 violated Part I, Article 8 of the New Hampshire The trial court found in the plaintiff’s favor, ruling “that the conduct of

award him reasonable attor ney’s fees and costs. trial court to invalidate the committee of conference report, void SB 302, and separate meetings of the House and Senate conferees. The plaintiff asked the Constitution by excluding him and other members of the public from the the defendants had violated RSA chapter 91 - A and Part I, Article 8 of the Stat e On June 23, 2004, the plaintiff brought the instant action alleging that

N.H. at ___. became law without the Governor’s signature on June 9, 2004. Baines, 1 p. 5 52 Senate also adopted the report. See N.H.S. Jour. ___ (May 25, 2 004). SB 302 committee of conference report. See N.H.H.R. Jour. ___ (May 25, 2004). The Following debate, the House voted by a margin of 195 to 165 to adopt the

New Ha mpshire General Court 2003 - 2004 at 121. but later withdrew his appeal and spoke against SB 302. See Manual of the amongst themselves.” The plaintiff sought to appeal this decision to the House, 91 - A applied to “either the House and/or the Senate meeting independently Speaker of the House again ruled that neither House Rule 110 nor RSA chapter of any House or Senate committee to be open, and RSA chapter 91 - A. The 302 on the ground that it violated House Rule 110, which requires all meetings The plaintiff then moved to discharge the committee of conference for SB

refers to a convening of a quorum of any committee. whole. So that the term “meeting” under [RSA chapter 91 - A] . . . conference. Because the committee of conference has to act as a themselves, that doe s not constitute a quorum of the committee of either the House meets by themselves or the Senate side meets by If . . . both sides were meeting, yes. But in the situation where

of conference. The Speaker of the House answered: the Speaker of the House whether RSA chapter 91 - A applied to the committee ___ (May 2 p. 5 5, 2004). Before the House voted on the report, the plaintiff asked p. 6 6

at 217. 145 N.H. 108, 111 (2000) (quotations and ellipsis omitted); see Baker, 3 p. 6 69 U.S. manageable standards for resolving it.” Petition of Judicial Conduct Comm., to a coordinate political department; or a lack of judicially discoverable and where there is a textually demonstrable constitutional commitment of the issue “A controversy is nonjusticiable – i.e., involves a political question –

U.S. 18 p. 6 6, 211 (1962). Court as ultimate interpreter of the [State] Constitution.” Baker v. Carr, 369 delicate exercise in constitutional interpretation, and is a responsibility of this committed by the Constitution to another branch of government . . . is itself a political branch. Id. “Deciding whether a matter has in any measure been matter to avoid encroaching upon the powers and functions of a coordinate omitted). Where there is such commitment, we must decline to adjudicate the Judicial Conduct Comm., 151 N.H. 123, 128 (2004) (quo tation and citation within the province of the other two branches of government.” Petition of the separation of powers by limiting judicial review of certain matters that lie separation of powers. The justicia bility doctrine prevents judicial violation of “The nonjusticiability of a political question derives from the principle of

Tierney, 151 N.H. 521, 533 (2004). questions. This is a question of law, which we review de novo. See Carbone v. RSA chapter 91 - A, the Right - to - Know Law, are nonjusticiable political We first address whether the plaintiff’s claims under Part I, Article 8 and

II. Justiciability

Article 8. We discuss these arguments in turn. court erred when it found that they had violated RSA chapter 91 - A and Part I, claims were not justiciable. Alternatively, the defendants contend that the trial their earlier motion to dismiss, in which they had argued that the plaintiff’s On appeal, the defendants argue that the trial court erroneously denied

91 - A. members” knew or should have known that their conduct violated RSA chapter that “there can be no doubt that Senate and House leadership and committee awarded the plaintiff reasonable attorney’s fees and costs, however, finding which the school districts of the State are, no d oubt, relying.” The court legislation resulting from it, would disrupt the monetary distribution upon on April 1, 2005.” The court determined that “[t]o invalidate the report, or the for in SB 302” had been made, “and the final distribution [was] due to be made possible.” As the court noted, “all but one of the monetary distributions called the circumstances, [this was] not warranted or wise and perhaps not even Th e court declined, however, to invalidate SB 302, finding that “[u]nder p. 7 7

v. Dwyer, 542 N.W.2d 491, 496 (Iowa 1996); see Mason’s, supra § 13, at 22 - 23. waive, suspend, or disregard its own rules of proce dure.” Des Moines Register alone, “has complete control and discretion whether it shall observe, enforce, being bound by action taken by an earlier Legislature.” Id. The legislature, concurrence or approval of the other branch, or of the executive, and without each successive Legislature may proceed to make rules without seeking General, 458 N.E.2d p. 7 734, 739 (Mass. 1983). This means that “each branch of rulemaking authority “is a continuous power absolute.” Paisner v. Attorney own “rules of proceedings.” Baines, 152 N.H. at ____ (quotation omitted). Su ch textually demonstrable commitments to the House and Senate to adopt their Part II, Articles 22 and 37 of the New Hampshire Constitution contain

the legislature. Law claim will usurp authority that the State Constitution textuall y commits to We begin by determining whether resolving the plaintiff’s Right - to - Know

the senate, whichever rules are appropriate.” RSA 91 - A:2, II. “publication [be] made pursuan t to the rules of the house of representatives or With respect to meetings of a legislative committee, the statute requires that RSA 91 - A:2, II also requires that such meetings be publicly noticed.

party who were elected on a partisan basis.” RSA 91 - A:2, I(c), (d) (Supp. 2004). “caucus consisting of elected members of a public body of the same political I(a) (Supp. 2004). Nor does it include “[c]onsultation with legal counsel” or a relating to official business and at which no decisions are made.” RSA 91 - A:2, meeting neither planned nor intended for the purpose of discussing matters 2004). A meeting does not include, however, “[a]ny chance meeting or a social supervision, control, jurisdiction or advisory power.” RSA 91 - A:2, I (Supp. discuss or act upon a matter or matte rs over which the public body has quorum of the membership of a public body, as provided in RSA 91 - A:1 - a, to For the purposes of this section, a “meeting” is “the convening of a

sessions of committees.” RSA 91 - A:1 - a, I(a) (Supp. 2004). among other things, proceedings of “[t]he general court includin g executive meetings of those bodies or agencies.” The term “public proceedings” refers to, be open to the public, and all persons shall be permitted to attend any RSA 91 - A:2, II (Supp. 2004) provide s that “[a]ll public proceedings shall

took place outside of the public meetings, RSA chapter 91 - A was violated. deliberations, negotiations and resolution of the differences regarding SB 302 A. The plainti ff asserts, and the trial court found, that because most of the We first examine the claim that the defendants violated RSA chapter 91 -

A. RSA Chapter 91 - A p. 8 8

bind the legislature.” Id. (quotation omitted). Thus, “[b]inding the Legislature court explained, “It is constitutional, and no t statutory, prohibitions which act was passed, “the act would not bind a subsequent [legislature].” Id. As the even if the legislature intended to bind itself by the open meetings act when the act did not apply to the legislatur e. Id. at 770. The court then observed that Mayhew, 46 S.W.3d at 76 p. 8 8. The court first concluded that the open meetings whether the general assembly had violated the state open meetings act. v. Wil der, 46 S.W.3d 760 (Tenn. Ct. App. 2001). One question in that case was The Tennessee Court of Appeals employed similar reasoning in Mayhew

rulemaking prerogative.” Id. at 33 p. 8 8, 339. judiciary in direct conflict with the legislature’s constitutionally authorized procedure, to hold the open meeting act claim justiciable would “place[ ] the constitution grants the legislature authority to enact its own rules of concerning how the legislature has decided to conduct its business,” and as the reasoned that as the open meetings act “merely establishes a rule of procedure rules of procedure.” Abood, 743 P.2d at 337. The Alaska Supreme Cour t Constitution, “expressly commits to the legislature authority to adopt its own was nonjusticiable. The Alaska Constitution, like the New Hampshire meetings, members of the legislature violated the Alaska Open Meetings Act instance, the Alaska Supreme Court ruled that whether, by holding closed v. League of Women Voters of Alaska, 743 P.2d 333, 339 - 40 (Alaska 1987), for violated the p rocedures of a state right - to - know law is not justiciable. In Abood Courts throughout the country have found that whether a legislature has

violated these statutes is nonjusticiable.” Id. authority to establish such procedures, the question of whether the legislature N.H. at ___. “[B]ecause the State Con stitution grants the legislature the “concern nonconstitutionally mandated legislative procedures.” Baines, 152 302 was a nonjusticiable political question. These statutes, we explained, the legislat ure violated RSA 14: p. 8 8 (2000) and RSA 20:2 - a (2000) in enacting SB 684, 687 (Wis. 1983). Thus, in Baines, 152 N.H. at ___, we held that whether mandated by the constitution.” State ex rel. La Follette v. Stitt, 338 N.W.2d and discretion, not subject to judicial review unless the legislative procedure is or statutes prescribing procedure is a matter entirely within legislative cont rol “[C]ourts generally consider that the legislature’s adherence to the rules

see Singer, supra § 7:4, at 60 p. 9 9 - 11. supersede s uch statutes by unicameral action.” Paisner, 45 p. 8 8 N.E.2d at 740; exclusive rule - making constitutional prerogatives, is free to disregard or the legislature “are not binding upon the Houses . . . . Either branch, under its S.W.3d 770, 777 (Ky. 2004). Statutes relating to the internal proceedings of Baines, 152 N.H. at ____; see also Board of Trustees v. Atty. Gen. of Com., 132 The same is true of statutes that codify legislative procedural rules. See 9

framers of the 1 p. 9 976 amendment did not intend to make Part I, Article 8 The journal of the 1974 Constitutional Convention reveals that the

of this provision. N.H. CONST. pt. I, art. 8. The 1 p. 9 976 amendment added the last two sentences

restricted. governmental proceedings and records shall not be unreasonably and responsive. To that end, the public’s right of access to Government, therefore, should be open, accessible, accountable substitutes and agents, and at all times accountable to them. people, all the magistrates and officers of government are their All power residi ng originally in, and being derived from, the

Part I, Article 8 provides:

disagree. Article 8 incorporated RSA chapter p. 9 91 - A into the State Constitution. We constitutionally mandated. He asserts that the 1976 amendment to Part I, procedures pres cribed by the New Hampshire Right - to - Know Law are unlike the procedures set forth in the right - to - know laws of other States, the The plaintiff seeks to distinguish these cases, in part, by arguing that,

procedural rulemaking.” Id. court system, we may not invade the legislature’s province of internal as the legislature may not invade our province of procedural rulemaking for the how legislative rules apply to members of the legislature.” Id. at 1022. “Just statute applies, rather we are asked to allow the courts to determine when and issue, the court ruled. Id. at 1021 - 22. “We are not confronted with whether a has and to whom it applies as well as its constitutionality,” that was not the “While the judiciary certainly has the power to determine what effect a statute Florida Supreme Court ruled that the statutory claim was n ot justiciable. meetings “shall be open to the public.” Id. at 1021 (quotation omitted). The 45 p. 9 9 So. 2d at 1019, 1021. The procedural rules mandated that all committee legislative committees to abide by the legislature’s procedural rules. Moffitt, president, alleging that they had violated a Florida statute that required newspaper - publishing companies sued the speaker of the house and senate l egislative committees to abide by these rules. In that case, thirteen procedures set forth in the legislature’s rules, despite a statute requiring (Fla. 1984), declined to decide whether the legislature violated open meeting The Florida Supreme Court in Moffitt v. Willis, 459 So. 2d 1018, 1021 - 22

Id. constitution]’s grant of the right to the Legislature to determin e its own rules.” with procedural rules passed by another General Assembly would violate [the p. 10 10

and public.”). committee of the whole and meetings of legislative committees, must be open CONST. art. IV, § 14 (“All sessions of the legislative assembly, including the standing committees” of the legislature “shall be open to the public”); N.D. public.”); GA. CONST. art. III, § 4 (in addition to legislative sessions, “all of the whole, all committee meetings, a nd all hearings shall be open to the CONST. art. V, § p. 10 10, cl. 3 (“The sessions of the legislature and of the committee committees and of committees of the whole, shall be open.” See MONT. the “d eliberations of each house, of committees of each house or joint Similarly, Article IV, Section 14 of the Oregon Constitution requires that

legislation or amendments, shall be reasonably open to the public. which formal legislative action is taken, regarding pending legislative action tha t will be taken at a subsequent time, or at representatives, the purpose of which is to agree upon formal president of the senate or the speaker of the house of two members of the legislature, or between the governor, the further pro vide that all prearranged gatherings, between more than noticed to the public. The rules of procedure of each house shall and joint conference committee meetings, shall be open and legislative committee and subcommittee meetings of each house, The rules of procedure of each house shall provide that all

Florida Constitution provides: specific than Part I, Article 8. For instance, Article III, Section 4(e) of the By contrast, analogous provisions in other state constitutions are more

“unreasonably restricted.” that the public’s right of access to gov ernmental proceedings must not be See id. It merely provides that government “should” be open to the public and public, or how the legislature must make these proceedings open to the public. Article 8 does not specify what legislative proceedings must be open to the proceedings. See Opinion of the Justices, 111 N.H. 175, 177 - 78 (1971). Part I, internal legislative procedures to protect the public’s right of access to public Nothing in Part I, Article 8 requires the legislature to adopt particular

away with the right to know.” Id. at 176. sponsor argued, because it prevented the legislature from “completely do[ing] completely repeal the right to know.” Id. The amendment was necessary, the restricted or should be ope ned, the Legislature can do it, but they can’t go and and, if the Legislature sees fit that there are some areas that should be explained: “The Legislature can make the law – the same law that it has now – J ournal of Constitutional Convention 174 (1974). As the amendment’s sponsor the amendment would be “a living article” that “chang[ed] with the times.” coextensive with RSA chapter 91 - A. To the contrary, the framers intended that p. 11 11

claims against the legislature brought under Part I, Article 8 are justiciable, consistent with our opinion in Chan dler. In that case, we intimated that Our decision that the plaintiff’s Part I, Article 8 claim is justiciable is

of Union Leader Corp., 147 N.H. 603 (2002). standards. See Union Leader Corp. v. Chandler, p. 11 119 N.H. 442 (1979); Petition are “reasonable” is subject to judicially discovera ble and manageable N.H. at ___. A legislative determination whether restrictions to public access governmental proceedings has been unreasonably restricted. See Baines, 152 legislature the determin ation of whether the public’s right of access to its own rules of procedure, no provision of the constitution commits to the While the constitution vests the legislature with the authority to create

has complied with them. State v. LaFrance, 124 N.H. 171, 177 (1983). to interpret constitutional provisions and to determine whether the legi slature conduct violated Part I, Article 8. See Baines, 152 N.H. at ____. It is our duty are justiciable.” We have the responsibility to examine whether the defendants’ regarding compliance with these kinds of mandatory consti tutional provisions Article 8 claim. As we recognized in Baines, 152 N.H. at ___, “[c]laims is not justiciable, we reach the opposite conclusion with respect to his Part I, Although we have concluded that the plaintiff’s RSA chapter 91 - A claim

B. Part I, Article 8

inquiry.” Id. it should be followed, but a failure to follow it is not the subject of judicial rules of procedure. Abood, 743 P.2d at 339. “Of course, having made the rule, conduct its business,” and the legislature has so le authority to adopt such establishes a rule of procedure concerning how the legislature has decided to that this question is not justiciable because this legislative enactment “merely alleged violation of the Right - to - Know Law is justiciable. We have concluded See RSA 91 - A:1 - a, I(a). The question before us is whether the legislature’s Know Law applies to the legislature. By the statute’s express terms, it does. We emphasize that the question before us is not whether the Right - to -

intervene.” Id. at ___ (quotation omitted). of the respective roles of the legislature and the judiciary requires that [we] not chapter 91 - A is nonjusticiable. Baines, 152 N.H. at ____. “[P]roper recognition question of whether the defendants violated the procedures set forth in RSA no constitutional mandate that committee of conference meetings be open, the legislature the authority to adopt its own rules of proceedings and as there is question. As the New Hampshire Constitution commits to each house of the defendants violated RSA chapter 91 - A presents a nonjusticiable political Following our holding in Baines, we conclude that whether the p. 12 12

179 - 80. the right to observe deliberations of governmental bodies did not exist.” Id. at recognized a limited r ight of the public to inspect government - held documents, constituents.” L. Elison & D. Elison, supra at 179. “Although common law debates were closed to conceal the members’ statements and votes from theory that secrecy protected against interference by the Crown and later “In England, parliamentary debates were originally closed to the public on the The concept of public access to legislative proceedings is relatively new.

of information within the government’s control.”). Amendment m andates a right of access to government information or sources (plurality opinion) (“Neither the First Amendment nor the Fourteenth legislative sessions. See Houchins v. KQED, Inc., 438 U.S. 1, 15 (1978) has not yet recognized a federal constitutional or common law right to attend Secrecy, 55 Mont. L. Rev. 175, 189 (1994). The Uni ted States Supreme Court know. See L. Elison & D. Elison, Comments on Government Censorship and provision that explicitly protects the public’s right of access and/or the right to New Hampshire is one o f only a handful of States with a constitutional

III. Analysis

Part I, Article 8, to negotiate the compromise of SB 302 in private. properly decided, consistent with the right of reasonable access provided by We now turn to whether the defendants in this appeal could have

analysis.” Id. its official tape should not be duplicated or subjected to a so - called voice stress the right of reasonable public access required by N.H. Const. pt. I, art. 8, that 445. We further held that the House “could properly decide, consistent with available if the [Union Leader] or anyone else wishes to obtain them.” Id. at official journal was prepared of the proceedings, and written transcripts are 91 - A because the . . . [House] session was open to the public and press, an We held that this was not a “true Right - to - Know Law case under RSA ch.

remove it from the House’s possession. Id. at 444. the tape and to procure typed transcripts of it, he had not been permitted to omitted). While a reporter for the Union Leader had been permitted to listen to duplicate the tape and use it for “voice stress analysis.” Id. at 443 (quotation recording of certain House proceedings so that the Union Leader could under RSA chapter 91 - A to compel the clerk of the House to produce a tape that case, the Union Leader Corporation (Union Leader) broug ht a bill in equity while claims under RSA chapter 91 - A are not. Chandler, 119 N.H. at 445. In p. 13 13

determination to close certain conference committee negotiations to the public. procedural rules counsels that we tread carefully when reviewing its claim is justiciable, the legislature’s constitutional authority to make its own session. Abood, 743 P.2d at 337. Thus, although plaintiff’s Part I, Article 8 question of whether legislative business should be conducted in open or closed Baines, 152 N.H. at ___. As mentioned previous ly, procedural rules include the legislature the exclusive authority to adopt its own procedural rules. See pt. II, arts. 22, 37. As we have already discussed, the constitution vests in the constitutional authority t o make its own procedural rules. See N.H. CONST. constitutional interests. The first such interest is the legislature’s In this case, we balance the public’s right of access against two

N.H. at 604. 5, 10 (Mont. 2000)(quotation omitted); see also Petition of Union Leader, 147 context of the facts of each case.” Associated Press, Inc. v. Department, 4 P.3d public’s right of access against “the competing constitutional interests in the To determine whether restrictions are “reasonable,” we balance the

restrictions. N.H. CO NST. pt. I, art. 8. See Petition of Union Leader, 147 N.H. at 604 - 05. It must yield to reasonable The public’s right of access to governmental proceedings thus is not absolute. and r ecords shall not be unreasonably restricted.” N.H. CONST. pt. I, art. 8. responsive” and that “the public’s right of access to governmental proceedings provides that “[g]overnment . . . should be open, accessible, accountable and As we have previously noted, as amended in 1976, Part I, Article 8 now

method of . . . acc ountability.” Id. N.H. at 177. Neither Part I, Article 7 nor Part I, Article 8 required any “special “express[ed] the American theory of government.” Opinion of the Justices, 111 an d independent state.” Together with Part I, Article 7, Part I, Article 8 have the sole and exclusive right of governing themselves as a free, sovereign, the State Constitution, provides, in pertinent part: “The people of this state them.” N.H. CONST. pt. I, art. 8. Its companion provision, Part I, Article 7 of government are their substitutes and agents, and at all times acc ountable to and being derived from, the people, all the magistrates and officers of Before 1976, Part I, Article 8 provided: “All power residing originally in,

Elison & D. Elison, supra at 180. Constitutional Convention excluded the public from all deliberations.” L. withheld for six months, and both the Continental Congress and the 1776, the names of the signers of the Declaration of Independence were on in the legislative bodies of C olonial America. Abood, 743 P.2d at 340. “In The English tradition of holding legislative debate in secret was carried p. 14 14

constitutional structure of separate, coequal, and independent branches of assure fair trials nor to avoid coercion. Rather, its purpose was to preserve the United States, 408 U.S. 606, 617 (1972). The clause “was designed neither to Executive and accountability before a possibly hostile judiciary.” Gravel v. central role of the . . . Clause [is] to prevent intimidation of legislators by the the Founders.” United States v. Johnson, 383 U.S. 169, 178 (1966). “[T]he function of reinforcing the separation of powers so deliberately established by “In the American governmental structure the clause serves the . . .

identical to New Hampshire’s). (interpreting Massachusetts’ Speech and Debate clause, which is nearly fear of prosecutions, civil or criminal.” Coffin v. Coffin, 4 Mass. 1, 27 (1808) enabling their representatives to execute the functions of their office, without prosecutions for their own benefit, but to support the rights of the people, by Speech and Debate Clause are intended not to protect legislators “against constitutional duties. Id. (quotation omitted). The privileges secured by the was “indispensably necessary” to enable the legislative branch to fulfill its The framers of the Federal Constitution recogn ized that such a clause

or questioned in any court or place out of Parliament.” Id. (quotation omitted). of speech and debates or proceedings in Parliament ought not to be impeached 1984). “The English Bill of Rig hts was established to ensure that the freedom English Bill of Rights of 1689. See Holmes v. Farmer, 475 A.2d 976, 981 (R.I. Id. Both the State and federal clauses appear to have emanated from the speech or d ebate clause, article I, section 6 of the United States Constitution.” New Hampshire’s Speech and Debate Clause “is the equivalent of the

free to both speak and act without fear of criminal or civil liability.” Id. one of the first States “to preserve the principle that the legislature must be 1784. See Keefe v. Roberts, 116 N.H. 195, 198 (1976). Ne w Hampshire was Part I, Article 30 has been part of the New Hampshire Constitution since

30. prosecution, in any other court or place whatsoever.” N.H. CONST. pt. I, art. people, that it cannot be the foundation of any action, complaint, or debate, in either house of the legislature, is so essential to the rights of the Clause. This clause provides: “The freedom of deliberation, speech, and I, Article 30 of the New Hampshire Constitution, the Speech and Debate The legislature’s right to free deliberation and debate is protected by Part

A. The Speech and Debate Clause

deliberation and debate, to which we now turn. See N.H. CONST. pt. I, art. 30. right - to - know is the legislature’s constitutionally protected right to free The second countervailing interest against which we balance the public’s p. 15 15

for good decision - making. As one commentator has noted, it is “no more The ability to meet in private may be necessary, in some circumstances,

within the Government.” Id. at 9. “protecting ope n and frank discussion among those who make [decisions] Act). The public has an interest not in protecting government secrecy, but in (discussing deliberative process privilege under Federal Freedom of Information Interior v. Klamath Water Users Protective Assn., 532 U.S. 1, 8 - 9 (2001) remark is a potential item of discovery and front - page news.” Depar tment of . . . that officials will not communicate candidly among themselves if each has an interest in permitting legislators to deliberate privately. It is “obvious In the Speech and Debate Clause, the framers recognized that the public

privilege.”). piece of legislation . . . falls clearly within the most basic elements of legislative motivations of the legislators in proposing, passing or voting upon a particular privilege.” Holmes, 475 A.2d at 984 (“Inquiry by the court into the actions or it must be construed as an immunity from suit as well as a testimonial omitted). “In order fully to effectuate the purpose and design of the . . . clause, sphere of legitimate legislative ac tivity.” Doe, 412 U.S. at 311 - 12 (quotations or criminal judgment against a [legislator] because that conduct is within the conduct at legislative committee hearings “may not be made the basis for a civil under the Speec h and Debate Clause, voting, drafting committee reports, and speaker of house, and for voting upon publication of report). For instance, at committee hearings that identified particular individuals, referring report to as it sought relief from committee members and staff for introducing material see Doe, 412 U.S. at 312 (complaint barred by Speech or Debate Clause inso far relation to the business before it.” Keefe, 116 N.H. at 199 (quotation omitted); liability for “any act generally done in a session of the [legislature] . . . in 198. It protects the legislature and individual legislato rs from incurring McMillan, 412 U.S. 306, 311 (1973) (quotation omitted); Keefe, 116 N.H. at The clause “has been read broadly to effectuate its purposes.” Doe v.

omitted). an effective and open exchange of ideas.” Holmes, 475 A.2d at 982 (quotation place allows the free flow of debate among legislators and the maximization of the legislators can carry out their duties without being questioned in any other deliberation without intim idation or threats.” Gravel, 408 U.S. at 6 p. 16 16. “[T]hat branch of government, will have “wide freedom of speech, debate and at 493 (quotation omitted). It assures that the legislature, as a co - equal legislative process by insuring the independence of individual legislators.” Id. protected legislative activities.” Id. The clause “protect[s] the integrity of the would risk intrusion by the Executive and the Judiciary into the sphere of English and American history of the privilege suggests that any lesser standard government.” United States v. Helstoski, 442 U.S. 477, 491 (1979). “The 16

revealed the results of the secret negotiations, but the bargaining and record of the ir proceedings. The conference committee reports they produced conference committees almost always met in secret sessions with no published See Oleszek, supra at 256. At the federal level, “[u]ntil the mid - 1970’s, Historically, the entire conference committee process was closed to the public. demonstrates the limited nature of the denial of public acce ss here. The historical context in which the plaintiff’s claim arose further

conference, and actively participated in the debate on its report. on it. The plaintiff himself attended the public meetings of the committee of transcripts were prepared, and are publicly available, of the legislative debate the legislature’s official journals published the committee’s report and voted upon it were posted, open to the public and recorded. See id. Further, the legislative sessions at which legislators debated the committee’s report and Likewise, all of the formal meetings of the committee of conference, as well as posted, open to the public and recorded. See Baines, 152 N.H. at ____. All of the legislative sessions at which SB 302 was discussed were

limited denial of the public right of access. of SB 302 in an otherwise public and open process. In context, this was a conferees and the negotiations that ultimately resulted in the final compromise Here, the public lacked access only to the private discussi ons of

which the plaintiff’s Part I, Article 8 claim arose. implicated by this case, we also must examine the specific factual context in In addi tion to analyzing the countervailing constitutional interests

B. Factual Context

the public’s right of access. nonjusticiable suggests that it has significant weight when balanced against questions. That the clause potentially makes the plaintiff’s claims plaintiff’s claims are no njusticiable under it, we need not decide these immunity from suit under the Speech and Debate Clause, nor argued that the (quotation and brackets omitted). Because the defendants have not sought political department.’” Davis v. Passman, 442 U.S. 228, 235 n.11 (1979) ‘textually demonstrable constitutional commitment of an issue to a co ordinate Article 8 claim nonjusticiable. “The Clause is a . . . paradigm example of a Arguably, the Speech and Debate Clause renders the plaintiff’s Part I,

at 660. court to prepare its opinion in the presence of counsel.” Singer, supra § 11:13, presence of public representatives than it would be to require an appellate determination, which is often a report of several hundred pages, in the practical to requi re [a legislative] committee to formulate its final p. 17 17

one legislator observed, “There’s certainly a lot of conversation and formal an d negotiations take place before the committee of conference is appointed. As public committee of conference meetings. Sometimes, these kinds of informal New Hampshire legislators have engaged in informal n egotiations outside of similarities to the federal process. Particularly when complex bills are at issue, The New Hampshire committee of conference process bears some

preconference agreements.” Id. formally represented in the conference, but only as an agr eed - upon reflection of concurred with, and so forth.” Id. “Bargaining and compromise may be agreed to, followed by the other conferees making a proposal that is likewise script, with conferees for on e House proposing an alternative that is quickly subsequent conference meeting may well be staged almost along the lines of a of compromises.” Longley & Oleszek, supra at 57. When this occurs, “the di scussions may serve as the forum for major negotiations and the working out Also, at the federal level, in some instances, preconference informal

the participation of minority party members.” Id. majority party members without either the formal appointment of conferees or chamber may engage in private preconference deal making, often only among also include committee members, party leaders, and others. In addition, each negotiations commonly involve only key House and Senate staff aides, but may the norm, not the exception at the federal level. Oleszek, supra at 269. “These Informal negotiating outside of public conference committee meetings is

Id. (quotation omitted).

possibilities. tell us what the chances would be of working out various and sundry number on the House side and discuss this matter and come back and we would ask our chairman . . . to see if he could not find his opposite So what did we do? . . . We would break up into smaller groups and then to get something agreed to in the conferences, it seemed to take forever. [W]hen we started the openness thing we found it more and more difficult

time United States Senator commented: of their important business in secret.” Oleszek, supra at 256. As one long - Despite these rule changes, congressional “[c]onferees still conduct much

253 (1979). House of Representatives of the United States Ninety - Sixth Congre ss § 548, at secret sessions. Id.; see also W. Brown, Jefferson’s Manual and Rules of the unless a majority of the conferees from either chamber voted in public to hold 1975, Congress adopted rules requiring op en conference committee meetings, deliberations that led to these results were not formally disclosed.” Id. In p. 18 18

concurred. BRODERICK, C.J., and NADEAU, DALIANIS and GALWAY, JJ.,

right of access.” Petition of Burling, 139 N.H. 266, 271 (1994). bar,” the denial “can only be viewed as a rea sonable restriction on the public’s denial of access “is supported by a weighty State interest and is not a complete mandate. See Petition of Union Leader, 147 N.H. at 606. Where, as here, the official journals of that process were sufficient to meet this constitutional public and open nature of the legislative process here and the availability of the public. N.H. CONST. pt. I, art. 8. Rather, we believe that the generally “[g]ove rnment . . . should be open, accessible, accountable and responsive” to Chandler, 119 N.H. at 445. We in no way retreat from the principle that negotiations was a reasonable restriction on the public’s right of access. See could properly have determined that denying the public access to these Under the specific factual circumstances of th is case, the legislature

omitted). severely curtailing the efficient operation of the government.” Id. (citation accessible and responsive. This ‘end’ can and should be accomplished without meant to satisfy an ‘end’; to wit, that g overnment should be open, accountable, “It cannot be overlooked that the public’s constitutional right of access is among government officials stifled.” Petition of Union Leader, 147 N.H. at 605. we believe tha t “government might become unduly cumbersome and candor access to the contested negotiations. “If the suggested access were permitted,” engage in free and frank debate significantly outweighs the public’s right of protecting the legislature’s prerogative to set its own procedural rules and the factual context of the plaintiff’s claims, we hold that the public intere st in Having examined the competing constitutional provisions here, as well as

C. Conclusion

negotiations at issue. instant dispute arose weighs heavily against requiring the public access to the are integral to the legislative process. Accordingly, the context in which the when we examine the legislative environment, we see that informal negotiations informal negotiations that led to the final compromise of the bill. Moreover, see that the public was denied access to only one part of that process -- th e Thus, when we examine the process by which SB 302 was enacted, we

eventually get anything done.” informal communication that goes on in a legislature, that’s the only way we