2004-707, ROBERT A. BAINES, MAYOR OF THE CITY OF MANCHESTER & a. v. NH SENATE PRESIDENT

for the President of the New Hampshire Senate. Richard J. Lehmann, senate legal counsel, on the joint brief and orally,

brief, and Patrick Donovan, house legal counsel, by brief, for the State. and Ms. Edwards, orally), and Richard J. Lehmann, senate legal counsel, by general, and Laura E. B. Lombardi, assistant attorney general, on the brief, Kelly A. Ayotte, attorney general (Anne M. Edwards, associate attorney

orally), for the petitioners. Wirth & Azarian, P.L.L.C., of Rochester (Danford J. Wensley on the brief and L. Nixon and Leslie C. N ixon on the brief, and Ms. Nixon orally), and Wensley, Nixon, Raiche, Manning, Casinghino & Leach, P.A., of Manchester (David

ROBERT A. BAINES, MA YOR OF THE CITY OF M ANCHESTER & a.

No. 20 04 - 707 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

amendment. When SB 30 p. 2 2 was transmitted to the House, it did not include this amendment that would have raised the existing cigarette tax rate. See id. (Mar. 17, 2004). Before doing so, the Senate considered and rejected a n The Senate passed SB 302 on March 17, 2004. See N.H.S. Jour. ___

property tax, nor the uniform rate at which the tax was imposed. changed neither the s ource of education funding revenue, the statewide funding formula.” N.H.S. Jour. ___ (Jan. 7, p. 2 2004). As introduced, SB 302 (Senate) on January 7, 2004, to “mak[e] technical corrections to the education as Senate Bill (SB) 302, which was introduced in the New Hampshire Senate The record supports the following facts. Laws 2004, chapter 200 began

I. Factual Background

these arguments raise nonjusticiable political questions. legislature’s alleged violations of procedural statutes because we conclude that constitutional. We do not address the petitioners ’ arguments concerning the Accordingly, we affirm the trial court’s conclusion that the law is House and it did not differ materially from the bill the legislature passed. facts of this case, tha t when this law became a “money bill,” it originated in the from the bill the legislature passed. We conclude, however, based upon the Hampshire House of Representatives (House) and because it differs materially bec ause, as a “money bill,” the constitution requires that it originate in the New The petitioners argue that Laws p. 2 2004, chapter 200 is unconstitutional

unconstitutional. We affirm. their petition for a declaration that Laws p. 2 2004, chapter 200 is their mayors, appeal the order of the Superior Court (McGuire, J.) denying NADEAU, J. The petitioners, the Cities of Manchester and Ro chester and

of the New Hampshire House of Representatives. Patrick Donovan, house legal counsel, on the joint brief, for the Speaker p. 3 3

additional amendments to SB p. 3 302 to integrate changes made by othe r bills. chapter 82 and RSA chapter 83 - F. The enrolled bills committee recommended calculating targeted aid by “including” property subject to taxation under RSA spreadsheet and the bill’s text. W ith this change, SB 302 provided for places in SB 302 to fix the discrepancy between the Conference Committee’s committee recommended changing the word “excluding” to “including” in two 25, 2004); see also N.H.H.R. Jour. ___ (May 25, 2004). The enrolled bills of receiving enrolled bill amendments and reports. See N.H.S. Jour. ___ (May Both the House and Senate recessed on May 25, 2004, for the purposes

N.H.S. Jour. Supp. (May 25, 2004). Id. The Sen ate Journal includes the Conference Committee’s spreadsheet. See

given a copy of the spreadsheet to keep on file. The Clerk was instructed to note this for the record, and was spreadsheet. property in order to convey the results enumerated on the the C ommittee of Conference that the language include utility SB p. 3 302 and the actual language of the report. It was the intent of between the spreadsheet used by the Committee of Conference on The Speaker indicated that a discrepancy had been found

The House Jour nal refers to the discrepancy in the following clerk’s note:

Jour. ___ (May 25, 2004). that targeted aid would be calculated by excluding this property. See N.H.H.R. RSA chapter 8 p. 3 3 - F (electricity consumption tax), the text of SB 302 provided property subject to ta xation under RSA chapter 82 (taxation of railroads) and Conference Committee’s spreadsheet calculated targeted aid by including aid to property poor municipalities. See RSA 198:41 (Supp. 2004). While the Jour. ___ (May 25, 2004). The discrepancy concerned the formula for targeted State money each municipality would receive under the bill. See N.H.H.R. legislature and the Conference Committee’s spreadsheet showing how much There was a discrepancy between the text of SB 302 presented to the

N.H.S. Jour. ___ (May 25, 200 p. 4 4); see also N.H.H.R. Jour. ___ (May 25, 2004). version of SB p. 3 302 was first adopted by the House and later by the Senate. See (May 25, 2004); see also Laws 2003, 241:11. The Conference Committee’s w hich the statewide property tax would be imposed. See N.H.H.R. Jour. ___ amended by the Conference Committee, the bill increased the uniform rate at Jour. ___ (May 25, 2004); see also N.H.H.R. Jour. ___ (May 25, 2004). As which replaced all of the bill’s language after the enacting clause. See N.H.S. The Conference Committee recommended a n ew amendment to SB 302, 4

in large part from prudential concerns about the respect we owe the political interference in the business of the other branches of Government, and deriving separation of powers, existing to restrain courts from inappr opriate “[T]he political question doctrine is essentially a function of the

address justiciability even if this issue is raised for the first time on appeal. questions, such as subject matter ju risdiction or sovereign immunity, we may justiciable, it is not ours to review. See id. As with other kinds of jurisdictional re Judicial Conduct Comm., 151 N.H. 123, 128 (200 p. 4 4). If a question is not are justiciable because just iciability is essentially a jurisdictional issue. See In exercise our discretion in this case to address whether the questions on appeal the reviewing court.” 5 Am. Jur. 2d Appellate Review § 691 (1995). We (2003). Moreover, preservation “is a limitation on the parties to an appeal, not appeal. See Route 12 Books & Video v. Town of Troy, 149 N.H. 569, 575 review subject matter jurisdiction claims, even if raised for the first time on N.H. 606, 619 (2004). This rule is not absolute, however. We will, for instance, before the trial court. See N. Country Envtl. Servs. v. Town of Bethlehem, 150 Ordinarily, we will not review arguments that were not timely raised

While we agree that the argument was not preserved, we will address it. cannot address this argument because it was not preserved for our review. that the petitioners’ claims are nonjusticiable. The petitioners counter that we Two respondents, the Senate President and the House Speaker, argue

II. Justiciability

claim s on appeal, we address whether they are justiciable. (2000) and RSA 20:2 - a (2000). Before reaching the merits of the petitioners’ Part II, Articles 2, 20, 37 and p. 4 44 of the State Constitution as well as RSA 14:8 is materially different from the bill that the legislature passed and thus violates the House as required by Part II, Article 18 of the State Constitution; and (2) it unconstitutional because: (1) it is a “money bill” that should have originated in On appeal, the petitioners argue that Laws 2004, chapter 200 is

June 9, 200 p. 4 4. See N.H. CONST. pt. II, art. 44. 302, as amended, to the Governor; it was enacted without his signature on Jour. ___ (May 2 p. 5 5, 2004). The New Hampshire Secretary of State presented SB Jour. ___ (May 25, 2004); N.H.S. Jour. ___ (June 17, 2004); see also N.H.H.R. were adopted before the May 25, 2004 session was adjourned. Se e N.H.S. journals of both houses indicate that the enrolled bill amendments to SB 302 Jour. ___ (June 17, 2004); see also N.H.H.R. Jour. ___ (June 17, 2004). The sessions continued until they were a djourned on June 17, 2004. See N.H.S. N.H.H.R. Jour. ___ (May 25, 2004). The May 25, 2004 House and Senate 302, as amended, ought to pass. See N.H.S. Jour. ___ (May 25, 2004); On June 3, 2004, the enrolled bills committee recommended that SB 5

Munoz - Flores, 49 p. 5 5 U.S. at 390. Legislative consideration of constitutional Rather, it fulfills the constitutional responsibility of the judicial branch. does not demonstrate lack of respect due the legisla tive branch of government. Reviewing whether the disputed legislation violates Part II, Article 18

at 390 - 91; see U.S. CONST. art. I, § 7. Federal Constitution presented a justiciable question. Munoz - Flores, 49 p. 5 5 U.S. whether a particular piece of legislation violated the Origination Claus e of the Supreme Court reached a similar conclusion in Munoz - Flores when it held that Pennsylvania v. Comm., 507 A.2d 323, 333 (Pa. 1986). The United States deliberately ignore a clear constitutio nal violation.” Consumer Party of constitutional constraints, it would be a serious dereliction on our part to deference to a co - equal branch of government as long as it is functioning within of Below, 151 N.H. 135, 139 (2004). “While it is appropriate to give due 391 (1990). “We are the final arbiter of State constitutional disputes.” Petition legislature are constitutional. See United States v. Munoz - Flores, 495 U.S 385, our constitutional duty, however, to review whether laws passed by the “money bill” that should have originated in the House, is nonjusticiable. I t is whether Laws 2004, chapter 200 violates Part II, Article 18, because it is a The Senate President and House Speaker first argue that the question of

Baker v. Car r, 369 U.S. 186, 217 (1962).

departments on one question. embarrassment from multifarious pronouncements by various political decision already made; or the potentiality of government; or an unusual need for unquestioning adherence to a without expressing lack of the r espect due coordinate branches of impossibility of a court’s undertaking independent resolution determination of a kind clearly for nonjudicial discretion; or the resolving it; or the impossibility of deciding without an initial policy lack of judicially discoverable and man ageable standards for commitment of the issue to a coordinate political department; or a question is found a textually demonstrable constitutional Prominent on the surface of any case held to involve a political

characteristics: Cases that raise nonjusticiable political questions have the fo llowing

branches of government. In re Judicial Conduct Comm., 1 p. 5 51 N.H. at 128. judicial review of certain matters that lie within the province of the other two doctrine prevents judicial violation of the separation of powers by limiting 37.” Horton v. McLaughlin, 149 N.H. 141, 143 (2003). The justiciability Constitution, the principle of separation of powers is espoused in Part I, Article concurring) (quotations and citations omitted). “In the New Hampshire departments.” Nixon v. United States, 50 p. 6 6 U.S. 224, 252 - 53 (1993) (Souter, J., 6

the authority to “determine their own rules of proceedings.” house.” Part II, Article 37 of the State Constitution similarly grants the Senate appoint their own officers, and settle the rules of proceedings in their own provides: “The house of representatives shall choose their own speaker, King, 110 N.H. 475, 47 p. 6 6 (1970). Part II, Article 22 of the State Constitution of the State Constitution. See Horton, 149 N.H. at 144; see also Bednar v. demonstrably committed to the legislative branch by Part II, Articles 22 and 37 The authority to adopt procedural rules for passing legislation is

t he legislature violated these statutes is nonjusticiable. legislature the authority to establish such procedures, the question of whether mandated legislative procedures and because the State Constitution grants the We agree that because these statutes concern nonconstitutionally

20:2 - a. errors,” the director is authorized “to make the necessa ry corrections.” RSA error or omission in the references to statutes, or other technical or clerical services to review bills before they are printed. Upon the discovery of “any has passed both houses of the legislatur e and permits the director of legislative “enrolled.” RSA 20:2 - a concerns changes that may be made to a bill after it 20:2 - a is nonjusticiable. RSA 14:8 concerns the process by which bills are legislature p assed Laws 2004, chapter 200 in derogation of RSA 14:8 and RSA The Senate President and House Speaker also assert that whether the

is] a political question.” Id. at 39 p. 6 6. of the characteristics that [have been] identified as essential to a finding that [it Supreme Court concluded in Munoz - Flores: “In short, this [question] has none constitutionality of a law. Id. (quotation omitted). As the United States pronouncements” in this context than in any other in which we determine the (quotations omitted). Nor is there more danger of “multifarious need for unquestioning adherence to a political decision already made.” Id. policy determination” that courts should not make, or present “an unusual Moreover, answering this question does not require any sort of “initial

where a bill originated.” Munoz - Flores, 495 U.S. at 390 n.3. demonstrably commits to the House of Representatives the determination of conceded in Munoz - Flores, “no provision of the [Federal] Constitution 485 (Pa. 2002). Under our State Constitution, and as the federal government the legislature. See Pa. Sc. Boards Ass’n v. Ass’n of Sc. Adm’rs, 805 A. 2d 47 p. 6 6, Article 18 does not challenge a power the State Constitution has committed to The petitioners’ claim that Laws 2004, chapter 200 violates Part II,

c onstitutionality.” Id. at 391. questions “does not foreclose subsequent judicial scrutiny of the law’s p. 7 7

legislation invalid.” Id. mandated by the constitution, courts will not intervene to declare the adopted procedura l rules in enacting legislation, and such rules are not be purely legislative concerns.” Id. “If the legislature fails to follow self what [it] view[s], in the absence of constitutional directives to the contrary, to to the legislation. Id. at 68 p. 7 7. The court held that it would “not intermeddle in its enactments,” and would not address whether the procedural statute applied procedural statutes have been complied with by the legislature in the course of concluded that it would “not determine whether internal operating rules or passage, as required by a statute governing legislative proced ure. The court because neither the assembly nor the senate referred it to committee before its for instance, the court declined to rule upon whether legislation was invalid In State ex rel. La Follette v. Stitt, 338 N.W.2d 684, 686 - 87 (Wis. 1983),

the procedure to be followed in the passage of legislation. joint resolution cannot bind or restrict itself or its successors to observed in the passage of the act. The legislature by statute or rules. Courts will not inquire whether su ch rules have been cannot be declared invalid for failure of a house to observe its own The decisions are nearly unanimous in holding that an act

11 (6 ed. 2002 rev.): th As explained in N. Singer, 1 Statutes and Statutory Construction § p. 7 7:4, at 609 - See Board of Trustees v. Atty. Gen. of Com., 132 S.W.3d 770, 777 (Ky. 2004). question of whether the legislature violated such statutes is nonjusticiable. legislative procedures. Courts in other jurisdictions have ruled that the We have not previously extended these rulings to statutes that co dify

Committee employee, other than the employee’s personal counsel. counsel to be present at a deposition of a New Hampshire Judicial Conduct reasons, we declined to compel the House Judiciary Committee to allow In Petition of Judicial Conduct Comm., 145 N.H. at 111 - 12, for similar

attorney’s fees. Id. at 144. interpret rules pertaining to impeachment” and the ancillary power to award authority, we ruled, includ ed with it “the full authority to make, implement and committed to the legislative branch by the constitution. Id. at 143. This political question because the impeachment of judges is demonstrably N.H. at 142. The court held that this question presented a nonjusticiable result of successfully defending themselves against impeachment. Hor ton, 149 petitioners were entitled to reimbursement of attorney’s fees incurred as a Comm., 145 N.H. 10 p. 8 8, 111 - 12 (2000). In Horton, the question was whether the impeachment. See Horton, 149 N.H. at 144 - 45; Petition of Judicial Conduct We have twice addressed this principle in the context of judicial 8

Laws 2004, chapter 200 violates the State Origination Clause. See N.H. constitutional claims, which are justiciable. We begin with their assertion that 14: p. 8 8 and RSA 20:2 - a is nonjusticiable, we confine our review to the petitione rs’ Because the question of whether Laws 2004, chapter 200 violates RSA

A. Standard of Review and Principles of Construction

III. Part II, Article 1 p. 8 8

Party of Pennsy lvania, 507 A.2d at 334. provide judicial intervention, . . . we are mandated to do no less.” Consumer mandatory constitutional provision has occurred, it is not only appropriate to of legislation,” when the question presented “is whether or not a violation of a will not inquire into “every allegation of procedural impropriety in the passag e 110 N.H. at 476; see also Bezio v. Neville, 113 N.H. 27 p. 8 8, 280 (1973). While we these kinds of mandatory constitutional provisions are justiciable. See Bednar, governor.” N.H. CONST. pt. II, art. 44. Claims regarding compliance with houses of the general court, shall, before it becomes a law, be presented to the Article 44 provides, in pertinent part: “Every bill which shall have passed both each branch of the legislature must have a quorum to do business. Part II, and House. Part II, Articles 20 and 37 of the State Constitution provide that of the State Constitution vests the “supreme legislative power” in the Senate Articles 2, 20, 37 and 44 we re violated is justiciable, however. Part II, Article 2 We hold that the question of whether the procedures set forth in Part II,

codifying its own procedural rules, is nonjusticiable. question of whether the legislature violated RSA 14: p. 8 8 and RSA 20:2 - a, statutes (Fla. 1984). As we find this reasoning persuasive, we co nclude that the P.2d 333, 339 - 40 (Alaska 1987); Moffitt v. Willis, 459 So. 2d 1018, 1021 - 22 process. Id. at 357; see also Abood v. League of Women Voters of Alaska, 743 be highly intrusive for the court to assume responsibility for overseeing this textually committed to the legislature by the constitution and because it would a nonjusticiable political question because selection and removal of officers was The court conc luded that whether the legislature violated the statute was

latter not intervene.” Malone, 650 P.2d at 356. of the respective roles of the legislature and the judiciary requires that the has been committed by our constitution to each house, . . . proper recognition “relates solely to the internal organization of th e legislature, a subject which legislature violated this statute, the court explained that when a statute may serve as presiding officer pro tempore. In declining to address whether the statute at issue concerned the circumstances under which the majority leader Similarly, in Malone v. Meekins, 650 P.2d 351, 356 (Alaska 1 p. 9 9 p. 8 82), the 9

Opinion of the Justices, 70 N.H. 642, 64 2 (1 p. 9 901) (quotation omitted). In the levying, and collecting money originate in the house of representatives.” constitution, which provided “[t]hat all bills, resolves, or votes for raising, This pr ovision had its genesis in a provision in the 1776 temporary

may propose, or concur with, amendments, as on other bills.” “All money bills shall originate in the house of representatives; but the senate Part II, Article 18, entitled “Money Bills to Originate in House,” provides:

B. History and Purpose of Part II, Article 18

(quotation and ellipsis omitted). it was used at the time when the constitution and the laws were adopted.” Id. as the people, is to be always understood and explained in that sense in which by the people in the great paramount law wh ich controls the legislature as well the surrounding circumstances.” Id. (quotation omitted). “The language used that it may gather their intention from the language used, viewed in the light of as possible in the situation of the parties at the time the instrument was made, constitution and its amendments, the court endeavors “to place itself as nearly intent. Petition of Below, 151 N.H. at 13 p. 9 9. By reviewing the history of the Whe n interpreting a constitutional provision, we examine its purpose and

failing to hold an evidentiary hearing in this case. id. at 280, we reject the petitioners’ assertion that the trial court erred by journals are the “conclusive evidence of the proceedings . . . of the legislature,” followed” will render the statute unconstitut ional. Id. at 281. Because the procedures were followed in the face of clear evidence that such steps were not not followed.” Id. “[T]he absence of any indication that the required journals give a clear indication that constitutionally required procedures were 280. “The presumptive validity of a statute will be overcome only if the conclusive evidence of the proceedings” in the legislature. Bezio, 113 N.H. at statute’s enactment, we look to the journals of the House and Senate “as and the process by which it was enacted. When reviewing a challen ge to a statute with respect to its subject matter also attaches with respect to its form The presumption that attaches in favor of the constitutionality of a

exists between it and the cons titution.” Id. (quotation omitted). hold a statute to be unconstitutional unless a clear and substantial conflict Committee, 151 N.H. at 125 (quotation omitted). “In other words, we will not declare it invalid except upon inescapable grounds.” In re Judicial Conduct reviewing a legislative act, we presume it to be constitutional and will not We are guided by the following general principles of construction. “In

County Comm’rs, 151 N.H. 276, 278 (2004). a question of law, which we review de novo. See Linehan v. Rockingham CONST. pt. II, art. 18. Whether Laws 2004, chapter 200 is unconstitutional is p. 10 10

th e power to originate bills for raising revenue “as part of the ‘Great Buff. L. Rev. 633, 648 (1986). The framers gave the house of representatives T. Jipping, TEFRA and the Origination Clause: Taking the Oath Seriously, 53 Origination Clause was a centerpiece of the 1787 Constitutional Convention. The history of the Federal Origination Clause is re vealing. The Federal

1894). the purse strings.” 1 Journal of the Federal Convention 158 (E.H. Scott ed. (Or. 2005) (quotation omitted). “[I]t was a maxim that the people ought to hold thus should be the source of those bills.” Bobo v. Kulongoski, p. 10 107 P.3d 18, 23 the people will be more watchful and cautious in the imposition of taxes and originate in the house reflects “a belief that the branch of government closest to Madison). The requireme nt that “money bills” or “bills for raising revenue” character.” Singer, supra at 629; see also The Federalist No. 58 (James larger than upper houses and therefore presumably more representative in close as possible to those subject to it, since lower houses are customarily The limitation “expresses a preference for keeping the taxing power as

1967); see Opinion of the Justices, 126 Mass. at 567 - 78. hereditary House of Lords.” Opinion of the Justices, 233 A.2d 59, 62 (Del. popularly el ected English House of Commons as protection against the . . . evolved from the exclusive right to originate such bills . . . vested in the at 629; see Opinion of the Justices, 126 Mass. at 567 - 78. “The requirement Crown for the control of the purse strings of the empire.” Singer, supra § 9:6, originate in the house stemmed from “Parliament’s long struggle with t he The requirement that all “money bills” or “bills for raising revenue”

equivalent[s].” Opinion of the Justices, 126 Mass. 557, 593 (1878). revenue,” authorities from the tim e indicate that the phrases are “exact[ ] Origination Clause of the Federal Constitution refers to “bills for raising (Mass. 1958). Although Part II, Article 18 refers to “money bills” and the p. 10 102 N. H. 80, 82 - 83 (1959); In Re Opinion of the Justices, 152 N.E.2d 90, 95 State Constitution A Reference Guide 139 (2004). See Opinion of the Justices, Massachusetts Constitution of 1780, see S. Marshall, The New Hampshire the House of Representatives”; it is also the same as a provision in the Constitution, which provides: “All bills for raising revenue shall originate in Part II, Article 18 is similar to Article 1, Section 7 of the Federal

changed merely “to make that provision more concise.” Id. 1776 as to ra ising, levying, or collecting money.” Id. Rather, the language was the meaning or construction of the original provision in the constitution of change did not “indicate an intention of [the constitution’s] makers to change between the 1776 temporary constitution and the 1784 constitution, this with amendments, as on other bills.” Id. Although the la nguage changed originate in the house of representatives; but the senate may propose or concur succeeding constitution of 1784, this provision became: “All money bills shall p. 11 11

States v. Mayo, 26 F. Cas. 1230, 1231 (C.C.D. Mass. 1813). Like the State Clause. See United States v. Norton, 91 U.S. 566, 569 (1875); see also United consistent with the interpretation by federal courts of the Federal Origination Our interpretation of the New Hampshire Origination Clause is

(1976). direct tax on polls and estates. Opinion of the Justices, p. 11 116 N.H. 351, 353 - 54 impose a direct tax on parimutuel po ols is not a “money bill” because it is not a Justices, 115 N.H. 304, 305 (1975). Thus, we have held that a bill that would “Direct taxation means taxes upon polls and estates.” Opinion of the

by the overwhelming weight of authority.” Id. bills or bills for raising revenue shall originate in the lower house is supported limited and strict construction of the constitutional requirement that money appropriation of state money.” Opinion of the Justices, 102 N.H. at 82. “This the word, and do not apply to bills which in cidentally raise revenue or involve for raising revenue are confined to bills which levy taxes in the strict sense of the Justices, 102 N.H. at 82; see Marshall, supra at 139. “[M]oney bills or bills interpret “money bill” to mean “ra is[ing] money by direct taxation.” Opinion of It has been the practice of the State of New Hampshire since 1784 to

C. Meaning of “Money Bill”

omitted). executive appointments, and ratification of treaties.” Id. at 648 - 49 (quotation upon the Senate, such as the trying of i mpeachments, confirmation of of several important counterpoises to the additional authorities to be conferred money from the people through taxation.” Id. at 649. Additionally, it was “one Representatives – would have to take the political initiative of taking more national legislature most representative of the people – the House of purposes. Jipping, supra at 648. First, it ensured that the “branch of the The final version of the Federal Origination Clause accomplished two

appropriation bills. Id. at 658 - 63; see also Note, s upra at 450. power to amend revenue bills and, eventually, the power to originate supra at 649. As the convention went on, the framers gave the senate the appropriation an d revenue bills as powers reserved to the House.” Jipping, clause jealously guarded its dual elements of origination and amendment of bills.” Note, supra at 449 - 50. “At first, the proponents of the origination the Senate, but the Senate would have no power to alter or amend money “As a concession to the larger states, each state would exercise a n equal vote in proportional representation in the house. Id.; see also Jipping, supra at 653. allow each State to have an equal vote in the senate in exchange for Rev. 447, 449 (1989). Through the “G reat Compromise,” the framers agreed to Assessments and the Origination Clause: A Tax on Crooks?, 58 Fordham L. Compromise’ that ended the controversy over state suffrage.” Note, Special p. 12 12

within the meaning of the Origination Clause. See Opinion of the Justices, 115 adequate education, we conclude that Laws 200 4, chapter 200 raised revenue direct tax on estates, and as this tax supports the State’s obligation to fund an 200:26; see also Laws 2004, 200:28 -:29. As the education property tax is a value of taxable property. Compare Laws 2003, 241:11 with Laws 2004, on each $1,000 of the value of taxable property to $3.33 on each $1,000 of the Most significantly, Laws 2004, chapter 200 increased the rate from $3.24

however, it becomes clear that it had a broader purpose. N.H.S. Jour. ___ (Jan. 7, 2004), when we examine the statute’s provisions, purpose was to “mak[e] technical corrections to the education funding formula, begin by examining its purpose. Although the title of the bill states that its When determining wheth er Laws 2004, chapter 200 is a “money bill,” we

D. Laws 2004, Chapter 200 is a Money Bill

noted, it would have been a revenue bill. Id. at 581. correcting legislation created the quahog tax in the first instance, the court assignment of section numb ers in the Revised Statutes.” Id. at 582. Had the than the amendment of the original quahog tax statute by changing the “[T]he repeal and enactment sections . . . accomplish neither more nor less Origination Clause because it was not a bill for raising revenue. Id. at 583. Judicial Court held that the correcting legislation did not violate the Ma ine in all respects apart from section numbers.” Id. at 582. The Maine Supreme quahog tax statute “and enacted as something new the same statute, identical 581 - 82. The correcting legislation included a provision that repealed the laws, including a statute that imposed a tax on quahogs. Lasky, 165 A.2d at At issue was legislation that corrected errors and inconsistencies in public We find the case of State v. Lasky, 165 A.2d 579 (Me. 1960), instructive.

exempt was not a bill to raise revenue). revenue and anticipated that some property that was previously taxed would be WL 3172517, at *9 (N.J. Tax Ct. 2004) (act that was not intended to raise under Federal Constitution); Mobil O il Corp. v. Township of Greenwich, 2004 (bill that diminishes revenue of the government is not a bill to raise revenue Origination Clause. See Bertelson v. White, 65 F.2d 719, 722 (1 Cir. 1933) st have this as their purpose are not “money bills” within the meaning of the (quotation omitted). Thus, numerous courts have held that bills that do not government through the operation of the taxing power.” Jipping, supra at 666 the purpose of a measure must be to increase revenue for the support of “Raising revenue, in the context of the origination clau se, implies that

91 U.S. at 569 (quotation omitted). extend to bills for other purposes which incidentally create revenue.” Norton, to levy taxes in the strict sense of the words, and has not been understood to Origination Clause, the Federal Origination Clause “has been confined to bills p. 13 13

25, 2004). legislation increased the statewide property tax. See N.H.H.R. Jour. ___ (May amended it. It was not until the Conference Committe e amendments that the chapter 200 were added to the legislation when the Conference Committee The journals demonstrate that the “money bill” aspects of Laws 2004,

changes only to the existing tax statutes. See Lasky, 165 A.2d at 581 - 82. Rather, like the legislation in Lasky, the bill as introduced made technical decreased nor increased the rate of taxation. N.H.S. Jour. ___ (Jan. 7, 2004). and re - enacted certain provisions of the statewide property tax, but neither introduced, it was not a “money bill.” As introduced in the Senate, it rep ealed The journals show that when Laws 2004, chapter 200 was first

Bezio, 1 p. 13 13 N.H. at 280. journals clearly indicate that constitutional procedures were not followed. refuted. See id. We will not find legislation invalid, how ever, unless the journals, therefore, to determine whether the presumed validity of a bill is See Opinion of the Justices, 76 N.H. 601, 603 (1911). We will use legislative New Hampshire does not subscribe t o the enrolled bill doctrine, however.

state that it had originated in the senate. See Hubbard, 226 F. at p. 13 139. by looking at its designation, S. 110, and its certification by the secretary of evidence of the bil l’s enrollment. Rather, the court determined the bill’s origin 242 U.S. 654 (1917), refused to consult Congressional journals to contradict court in Hubbard v. Lowe, 226 F. 135, 139 (S.D.N.Y. 1915), appeal dismissed, cases to overturn legislation because it violated the Origination Clause, the not lawfully enacted.” Id. at 819. Thus, for example, in one of the only fed eral jurisdictions, “no other evidence [is] admissible to establish that the bill was conclusive proof of proper legislative action.” Singer, supra at 562. In these In jurisdictions that follow the enrolled bill doctrine, “the e nrolled bill is

“enrolled bill doctrine,” it is not appropriate in New Hampshire. the journals. While this may be appropriate in jurisdictions that adhere to the effect, ask us to ignore the history o f Laws 2004, chapter 200, as contained in is designated a senate bill, it “originated” in the Senate. The petitioners, in The petitioners argue that because Laws 2004, chapter 200 began as and

See United States v. Madison, 712 F. Supp. p. 13 1379, 1383 (W.D. Wis. 1989). as used in Part II, Article 18, or its counterpart in the Federal Constitution. There is no definitive guidance as to the meaning of the word “originate”

E. Laws 2004, Chapter 200 – Origination

required by Part II, Article 18. it is a “money bill.” We next consider whether it originated in the House as N.H. at 305; Sirrell v. State, p. 14 146 N.H. 364, 367 (2001). We hold therefore that 14

Conference Committee’s report. See Munoz - Flores, 495 U.S. at 403 - 04, 407 its institutional prerogative to originate “money bills,” it could have rejected the believed that the bill, with the Conferenc e Committee’s amendments, invaded (May 25, 2004); see also N.H.H.R. Jour. ___ (May 25, 2004). Had the House final form by the House.” Madison, 712 F. Supp. at 1384; see N.H.S. Jour. ___ Significantly, t he journals reveal that “the bill was first approved in its

2004). See N.H.S. Jour. ___ (May 25, 2004); see also N.H.H.R. Jour. ___ (May 25, clause and added new language, including that which made it a money bill. recommended an entirely new bill that deleted everything after the enacting members, retained nothing from the bill it received from the House. Instea d, it Here, the Conference Committee, made up of a majority of House

enrollment.” Id. § 771, at 560. they have both approved the bill in its final form and it is ordered to that effect is sent to the other. When both houses have adopted the report, report of the committee on conference is adopted by either house, a message to the report, it becomes the action of the house approving it. See id. “When the House or Senate. See id. § 670, at 469. Once th e House or Senate agrees to conference committee’s report has no force or effect until agreed to by the Legislative Procedure § 670, at 469 (2000); see also id. § 770, at 559. A the Senate. See Natio nal Conference of State Legislatures, Mason’s Manual of are merely recommendations; they are not binding upon either the House or Singer, supra § 11:8 at 654. Amendments proposed by a conference committee

substitution of an entirely new bill. further ame ndment of the existing legislation or by the recession of one house from its bill or its amendments or by the function is to gain accord between the two houses either by the each house. It is normally appointed for a specific bill and its [a] conference co mmittee . . . is two committees, one appointed by

Generally,

appoint four members to the House conference committee. conference committee on the bill and the Speaker of the House shall President of the Senate shall appoint three members to the Senate voting separately, have agreed to establis h a committee of conference, the House on the content of any bill or resolution, and whenever both bodies, Whenever there be any disagreement between the Senate and the

Pursuant to Senate Rule 19(a) from the 2003 - 2004 legislative session: the House and three from the Senate. See N.H.S. Jour. ___ (May 6, 20 04). The Conference Committee was comprised of seven legislators, four from p. 15 15

200 4). of the word “excluding” in the text of SB 302. See N.H.H.R. Jour. ___ (May 25, Conference Committee intended its spreadsheet to govern, rather than the use N.H.H.R. Jour. ___ (May 25, 2004). The journals further show that the Committee’s spreadsheet. See N.H.S. Jour. Supp. (May 25, 2004); see also demonstrate that this change made SB 302 conform to the Conference “including” in two places in SB 302 was a material change. The journals T he petitioners first contend that changing the word “excluding” to

A. Changing “Excluding” to “Including”

do not render Laws 2004, chapter 200 unconstitutional. petitioners admit, these changes reflect corrections of typographical errors, and a s enacted into law as Laws 2004, chapter 200, are not material. As the remaining differences between SB 302 as passed by the legislature and SB 302 words “- 2005 biennium” in one place. The petitioners concede that the changing the word “excluding” to “including” in two places; and (2) adding the The petitioners assert that the following changes are material: (1)

that which was presented to the Governor, which violates Part II, Article 44. Articles 20 and 37, and that the bill the legislature passed was different from did not represent a quo rum of the House and Senate, as required by Part II, differences, they contend, also show that the body that approved the changes the enrolled bills committee, which is contrary to Part II, Article 2. These con tend, demonstrate that the legislature delegated its legislative authority to the bill the legislature passed. These material differences, the petitioners enrolled bills committee’s amendments, which make it materially different from Articles 2, 20, 37 or 44 of the State Constitution because it contains the The petitioners next argue that Laws 2004, chapter 2 00 violates Part II,

IV. Part II, Articles 2, 20, 37 and 44

we decline to rule that Laws 2004, chapter 200 did not originate in the House. 2 80. Accordingly, while, on the facts presented, we consider this a close case, constitutionally required procedures were not followed.” Bezio, 113 N.H. at portion of Laws 2004, chapter 200, we cannot find “a clear indication that Committee and the House was the first body to approve the “money bill” Where, as here, House members made up a majority of the Conference

U.S. at 403 (Stevens, J., concurring). power,” had it believed that that power had been usurped. Munoz - Flores, 495 25, 2004). “[T]he House [was] in an excellent position to defend its origination (Stevens, J., concurring). Instead, it approved it. See N.H.H.R. Jour. ___ (May p. 16 16

immediately preceding calendar years “[f]or the 2004 fiscal year.” adjusted by the average annual percentage rate of inflation for the four derived. Laws 2003, 241:4 provided that the base cost per pupil would be version, this provision did not refer to Laws 2003, 241:4, from which it was the 4 immediately preceding calendar years.” In the Conference Committee’s pupil shall be adjusted by the average annual percentage rate of inflatio n for Index Adjustments to the Base Cost Per Pupil Calculation. The base cost per Conference Committee included the following provision: “Consumer Price SB 302 was a material change. The version of SB 302 reported by the The petitioners next assert that adding the phrase “- 2005 biennium” to

B. Adding “- 2005 biennium”

(June 17, 2004); see also N.H.H.R. Jour. ___ (May 25, 2004). with legislative intent. See N.H.S. Jour. ___ (May 25, 2004); N.H.S. Jour. ___ amendments, which further indicate that these amendments were consistent that both the House and Senate approved the enrolled bills committee’s Committee’s spreadsheet reflected the legislature’s intent. We further observe note that they suggest that making SB 302 consistent with the Con ference objected. Although we do not use these transcripts to make any findings, we debates in both houses of the legislature, to which the respondents have not Justices, 76 N.H. at 603, the petitione rs have submitted transcripts of the whether an enrolled bill has been constitutionally enacted, see Opinion of the While ordinarily we would not look beyond the journals to determine

that the legislature validly enacted Laws 2004, chapter 200. legislature’s intent, we hold that they are insufficient to defeat the presump tion make it consistent with the Conference Committee’s spreadsheet reflected the 280. Because the journals are inconclusive as to whether changing SB 302 to procedures, we must presume that it adhered to them. See Bezio, 113 N.H. at indicate that the legislature failed to follow constitutionally mandated intent, we must indulge the opposite presumption. Unless the journals clearly language of SB 302 to include utility property was contrary to the legislature’s While the petitioners presume from this silence that changing the

commentary. See N.H.S. Jour. Supp. (May 25, 2004). includes the Conference Committee’s spreadsheet, it does so without The Senate Journal is also silent on this su bject. Although the Senate Journal 25, 2004). The journal is silent as to whether the House intended this change. convey the results enumerated on the spreadsheet.” N.H.H.R. Jour. ___ (May Committee of Conference that the language include utility property in order to “Clerk’s Note” in the House Journal states that, “It was the intent of the 302 to the Conference Committee’s intent reflected the legislature’s intent. The The journals are inconclusive, however, as to whether conforming SB p. 17 17

DALIANIS, DUGGAN and GALWAY, JJ., concurred.

fiscal year. This change does not invalidate Laws 2004, chapter 200. with the legislature’s intent that Laws 2003, 241:4 should continue for the next enrolled bills committee changed the language of SB 302 to make it consistent correct clerical or technical errors without violating the constitution. The petitioners concede, the enrolled bills committee may amend legislation to We hold that this change, on its face, was a technical change. As the

rate of inflation for the 4 imm ediately preceding calendar years. cost per pupil shall be adjusted by the average annual percentage Calculation. For the 2004 [fiscal year] – 2005 biennium, the base 241:4 Price Index Adjustments to the Base Cost Per Pupil Calculation. Amen d 2003, 241:4 to read as follows: Consumer Price Index Adjustments to the Base Cost Per Pupil

The enrolled bills committee amended SB 302 to state: