2005-352, GAYLE B. D'ANTONI & a. v. COMMISSIONER, NH DEPARTMENT OF HEALTH AND HUMAN SERVICES

Human Services. We affirm.

the Superior Court (

marriage licenses. This cost is established by RSA 457:29 (2004), which states: The plaintiffs are two married couples who each paid $45 to obtain

defendant, the Commissioner of the New Hampshire Department of Health and

D’Antoni, Nicholas Cenatiempo and Mary Cenatiempo, appeal the decision of BRODERICK, C.J. The plaintiffs, Gayle B. D’Antoni, Thomas E.

general, orally), for the defendant. attorney general, on the brief, and Michael K. Brown, senior assistant attorney Kelly A. Ayotte, attorney general (Orville B. Fitch II, senior assistant

Mark M. Rufo, of Nashua, by brief and orally, for the plaintiffs. Errors may be reported by E-mail at the following address:

page is: http://www.courts.state.nh.us/supreme. v.

errors in order that corrections may be made before the opinion goes to press. No. 2005-352 Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Hillsborough-northern judicial district Readers are requested to notify the Reporter, Supreme Court of New ___________________________

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as record creation and retention, is approximately $40.44 per marriage.

p. 2 regarding the relationship of domestic violence to marriage.” Her affidavit

coordinator at the department of health and human services. administration, and Rosenthal is the domestic violence intervention estimated that the combined cost of the marriage license program, including registrar of vital records and director of the division of vital records equipment replacement, maintenance and preservation of records, Bolton additional funds expended on application support, staffing, helpdesk, 2

area of domestic violence, Rosenthal related that she had “personal knowledge provisions. a fee, and therefore was not within the purview of those constitutional

affidavits by William R. Bolton, Jr., and Michelle Rosenthal. Bolton is the

marriage records alone approaching $70,000. Taking into account the

married couples. Based upon her four years of experience and training in the Rosenthal’s affidavit described the incidence of domestic violence among commissioner disagreed, arguing that the $38 portion of the $45 payment was marriage license fee.

commissioner filed a cross-motion for summary judgment and attached $38 portion into the fund. for receiving a marriage license, one of which is the $45 payment. The for marriage and divorce records is approximately $105,000 per year, with divorces. His affidavit further explained that the cost of the tracking software 40,000 vital records each year, including almost 10,000 marriages and 5,000 Bolton’s affidavit explained that his division manages approximately

Part I, Article 12 and Part II, Article 5 of the State Constitution. The the certificate of marriage, and forwarding the $38 portion of the

(2002). The State treasurer is required to deposit all money generated from the certificate of intention of marriage and a pamphlet describing the requirements DOVE Fund monies are not available for any other purpose. RSA 173-B:15 The plaintiffs moved for summary judgment and attached as exhibits a for the domestic violence program established in RSA 173-B:16 (2002), and

that the $38 portion is, in fact, a tax. As such, they claimed that it violated remaining $7 as the fee for making the records of notice, issuing Although RSA 457:29 labels the entire $45 a fee, the plaintiffs alleged the purposes of RSA 173-B:15. The clerk shall retain the from each fee to the department of health and human services for Id.

programs (DOVE Fund). The sole purpose of the fund is to provide revenues The $38 portion is allocated to a special fund for domestic violence

parties entering into the marriage. The clerk shall forward $38 The fee for the marriage license shall be $45 to be paid by the upon which Rosenthal relied. p. 3 not present any evidence or arguments attacking the study, report, and article

are lower among married couples than among couples who cohabit, they did

contrary figures.

article by two domestic violence experts explaining that domestic violence rates historical, psychological, and sociological opinions. While they did attach an not an expert in history, psychology, or sociology, but nonetheless gave

report, or a scholarly journal.

dollar amounts contained in the Bolton affidavit, nor did they offer any 3 costs of keeping mandated vital statistics.” They did not, however, dispute the rewrite statutory law on marriage license fees so as to reimburse the State for fungible and could be directed to the DOVE Fund. The trial court also ruled

Rosenthal would be competent to testify. The plaintiffs argued that she was

year. For each of these statistics, she provided a citation to a survey, an FBI during marriage, and that more than one-third are battered repeatedly every one-half of all women will experience some form of violence from their partners

further argued that the commissioner seemed “to imply that the Court should fees and not taxes, and that because they are dollars, the $38 charge was determined that the funds acquired through issuing marriage licenses were married.” was “not based upon personal knowledge or admissible facts” to which Automobile Association v. State of New Hampshire, 136 N.H. 579 (1992), marriage including the process of applying for and obtaining a license to be denying the plaintiffs’ cross-motion, the trial court, relying upon American “relationship between domestic violence and marriage extends to all aspects of In granting the commissioner’s motion for summary judgment and

slain by their husbands or boyfriends. Finally, Rosenthal’s affidavit stated that

it presented “no information relevant to the issue before the court.” They

presented “no information relevant to the issue before the court,” and that it The plaintiffs also objected to Rosenthal’s affidavit on the grounds that it violence, that they would not take with other persons. She stated that the

their lives, and that 30% of female murder victims in the United States are

summary judgment, and also objected to Bolton’s affidavit on the grounds that The plaintiffs filed an objection to the commissioner’s motion for

believe that they are entitled to take liberties with their wives, including acts of fostered, exist in our society today.” She contended that many husbands historical relationships, and the sense of entitlement and ownership they

being physically or sexually abused by a husband or boyfriend at some point in Rosenthal explained that nearly one-third of American women report

their wives. “While the legal status of wives has changed, remnants of these explained that historically, husbands have had social and legal authority over p. 4 4

unreasonable. of the activity regulated, provided that the resulting “fee” does not become

be required. and not to reimburse the State for special services. any costs associated with related inspection, regulation or supervision as may question are fees or taxes. A “tax” is an enforced contribution to raise revenue In applying this provision, the threshold inquiry is whether the charges in fees. issuing a marriage license or to the regulation of marriages. While we The plaintiffs argue that the $38 charge is not related to the costs of issuing the license and of inspecting and regulating the business licensed.

American Automobile, 136 N.H. at 585.

expenses — that is, it may cover incidental expenses incurred in consequence sustained as long as it is not grossly disproportionate to the regulatory

Id. at 585; Gordon, 107 N.H. at 211. The amount of a “fee” will be

the necessary expenses of issuing a license, certificate, or other document, and See American Automobile, 136 N.H. at 581-83. We consider principally inhabitants of, and residents within, the . . . state.” N.H. CONST. pt. II, art. 5. analysis to other kinds of charges, such as motor vehicle certificates of title Laconia v. Gordon, 107 N.H. 209, 211 (1966). We have applied this same

for example, must bear a relationship to and approximate the expense of versus-fee analysis. To be considered a “fee,” the amount paid to acquire a business license,

proportionately upon all taxpayers. Starr v. Governor, 1 p. 4 48 N.H. 72, 74 (2002). Assoc. v. State, 136 N.H. 579, 584 (1992). Taxes must be levied

levy proportional and reasonable assessments, rates, and taxes, upon all the The State Constitution grants the legislature the power “to impose and

p. 4 421, 423 (1982). Our review of the $38 charge is confined to our general taxfollowed. purposes of the motion. Carbur’s Inc. v. A & S Office Concepts, Inc., 122 N.H. facts in the proponent’s affidavits or risking them being deemed admitted for opponent of a motion for summary judgment has the burden of contradicting de novo. See Hughes v. N.H. Div. of Aeronautics, 152 N.H. 30, 35 (2005). The material fact. As such, we review the trial court’s application of law to the facts summary judgment and neither contends that there are any genuine issues of commissioner’s motion for summary judgment. Both parties moved for The plaintiffs first argue that the trial court erred in granting the

and the fundamental right to marry, which the trial court denied. This appeal Finally, the plaintiffs apparently made claims relating to equal protection

incurred by the State in issuing marriage licenses. that, as fees, the funds were reasonable because they related to the costs marriage licenses.

p. 5 purposes of the motion, and we thus affirm the trial court’s reliance upon it. is not grossly disproportionate to the costs involved in issuing the plaintiffs’ doing so, the plaintiffs risked the Bolton affidavit being deemed admitted for no counteraffidavits, nor even argued that the State’s figures are incorrect.” By

that the $38 charge is less than the costs to the State, and, accordingly, that it the costs associated with issuing marriage licenses, the petitioners have offered

recognized that “dollars are fungible, and we can assume, for the purpose of charges to the DOVE Fund. We disagree. In American Automobile, we The plaintiffs next argue that the legislature improperly directed the

facts in the Bolton affidavit were true, the trial court did not err in concluding However, the trial court further stated, “With respect to the State’s estimates of Automobile, 136 N.H. at 587. As the trial court here properly assumed that the “substantially greater than the . . . fees collected” by the State. recognizing “that genuine issues of material fact must be resolved at trial.” American licensing and regulating the activity in question. not make factual findings with regard to the costs outlined in the affidavit, Automobile, we held that the expenditures on anti-theft programs were of money generated by a licensing statute, and the costs associated with $38 charge was not grossly disproportionate to the costs involved. In American only a showing by “definite information” of a relationship between the amount With the Bolton affidavit uncontested, the trial court determined that the

See Carbur’s Inc., 122 N.H. at 423.

approximately $40.44. spends in connection with issuing the license.” We agree. In for use in the [DOVE Fund] is less than the amount of money that the State

costs to the State from the issuance of marriage licenses.” The trial court did The plaintiffs also argue that “the Bolton affidavit does not truly set out a determination, and decline to do so now. To the contrary, we have required that case. represents precisely the kind of “definite information” that we relied upon in State’s automobile theft prevention program. Id. at 587. The Bolton affidavit Automobile, we examined the amount and type of costs expended on the the cost to the State of issuing and record-keeping for each marriage license is American related to the costs of issuing the license. The Bolton affidavit indicates that authority,” we cannot say that the trial court erred in ruling that the funds are N.H. at 587. The trial court ruled that “any money generated by RSA 457:29

money by ceasing to issue the marriage license. We have never required such The plaintiffs contend that the State must assert that it would save

to periodic renewal nor [do they subject] the licensee to any State regulatory recognize that marriage licenses, as the plaintiffs contend, are “neither subject for special services,”

p. 6 reside with the defendant. who do benefit from its services. related by consanguinity or affinity other than minor children who advantage of the DOVE Fund, while at the same time not paid by many people underinclusive; namely, it is paid by some individuals who may never take 6

it “is an enforced contribution to raise revenue and not to reimburse the state

the same residence . . . [as well as parents] and other persons

affidavit. In essence, they argue that the charge is both over- and

omitted), which is not applied proportionately to all taxpayers, Starr, 148 N.H.

underinclusiveness makes the $38 charge: (1) an unconstitutional tax because It is unclear whether the plaintiffs argue that this over- and

into the general fund. make them any less fungible than if it had required that they first be placed persons who cohabited with each other but who no longer share

the domestic violence experts submitted in opposition to the Rosenthal RSA 173-B:1, X (2002), which defines “family or household member” as: domestic abuse extends beyond the realm of marriage, relying on the article by are high among married couples. The plaintiffs respond by stating that marriage licenses because, as explained in the Rosenthal affidavit, abuse levels The commissioner contends that the $38 charge is related to issuing

has mandated that the moneys be paid directly to the DOVE Fund does not Spouses, ex-spouses, persons cohabiting with each other, and

that they must family or household members, and not simply married couples. They rely on They argue that the abuse the DOVE Fund seeks to curtail occurs between all must be forwarded by RSA 457:29 [are] not related to the costs of issuing a marriage license.” commissioner’s motion for summary judgment because the charges “imposed Lastly, the plaintiffs contend that the trial court erred in granting the

may require that those moneys be allocated directly to the DOVE Fund.

departments.” used for other programs, one of which is the DOVE Fund. That the legislature for multiple other programs. Rather it means that they are capable of being

in fact be mixed with the general fund, and thus be expended

the term “fungible.” That dollars are fungible does not mean that we require

from using its portion of the marriage license fee as fungible dollars, as the fee The plaintiffs contend that “RSA 457:29 explicitly prohibits the State

trial court did not err in ruling that they are fungible and that the legislature

Id. As the charges collected in this case are also dollars, the

governments allocated all of their revenue-sharing funds to the police evaluating the reasonableness of the certificate of title fees, that local the fee is a tax.

p. 7 violence shelters and service programs. Thus, . . . this portion of 7 Fund so that the Department of Public Aid can provide domesticwhich is deposited in the Domestic Violence Shelter and Service

violence, if not more so. Since

benefits of the Domestic Violence Shelters Act are not assessed such a ‘fee.’” recording the marriage license. Its sole purpose is to raise revenue been married, why should not a marriage counseling program be marriage licenses. Other classes of people equally eligible to receive the all divorces involve people who have as closely and reasonably related to marriage as is domestic violence, other worthy social problems can be found that are just have us apply to the relation between marriage and domestic Using the same cause-and-effect test that the defendants would

general public. upon narrow classes of individuals rather than spreading them among the guise of a fee, might place the burden to fund many general-revenue programs Id. at 139. The court was concerned that the Illinois Legislature, under the the Illinois Domestic Violence Shelter and Service Fund. a marriage license from $15 to $25, with the additional $10 to be directed to relation to the county clerk’s service of issuing, sealing, filing, or that “the tax has been placed only upon those single people who apply for Having determined that the $10 portion was a tax, the court then stated

assessed to provide general revenue rather than compensation, is a tax.” Id. (citations omitted).

marriage license in that State. The Illinois legislature had increased the cost of The portion of the marriage license fee in question here has no

138 (quotation omitted). The Boynton court stated:

Constitution. In Illinois, “a charge having no relation to the services rendered, determine whether they would prevail on either argument. charge is a fee or a tax is similar to that under the New Hampshire The inquiry under the Illinois Constitution to determine whether a consequence of the activity regulated,” at 136.

Supreme Court examined the constitutionality of a $10 charge to obtain a similar issues. In Boynton v. Kusper, 494 N.E.2d 135 (Ill. 1986), the Illinois Illinois appears to be the only other jurisdiction to have addressed

(quotation omitted). Given the following discussion, however, we need not

the Bolton affidavit constitute more than “incidental expenses incurred in at 74; or (2) an unreasonable fee because the record-keeping costs described by classification irrational.”),

p. 8 accomplishing the desired objective. generalization underlying a classification is subject to exceptions renders the of the tax on marriage licenses, is not a reasonable means of

the use of a metric like marital status irrational.”);

constitutional review. generally limited to the least-restrictive-means analyses of higher levels of classification may be overinclusive or underinclusive nor the fact that a the Act in question and the means adopted, that is, the imposition

extent, but neither over- nor under-inclusiveness is alone sufficient to render

necessarily makes it unreasonable, irrational, or arbitrary. Such an inquiry is Supreme Court repeatedly has instructed that neither the fact that a reasonable relation to the public interest sought to be protected by Dep’t of Children & Family tax on the issuance of a marriage license does not bear a, 358 F.3d 804, 822-23 (11th Cir. 2004) (“The probation costs? We conclude in this case that the imposition of a Lofton v. Secretary of the

issuing the licenses. status as a proxy is undoubtedly both over- and under-inclusive to some Ashcroft, 381 F.3d 221, 227 (3d Cir. 2004) (“Of course, this use of marital underinclusive nature of statute in applying intermediate scrutiny); Chen v. 133 N.H. 109, 126 (1990) (Souter, J., dissenting) (discussing over- and

disagree with the plaintiffs and the Illinois Supreme Court that this aspect is like the $10 charge in Boynton in that it is both over- and underinclusive, we While we recognize that directing the $38 charge to the DOVE Fund here and why should not yet another tax be imposed to defray juvenilepower, and thus an unconstitutional tax. by funding the DOVE Fund are more than incidental expenses related to constitutes reimbursement for special services, or whether the costs incurred Accordingly, we need not determine if, as the plaintiffs allege, the $38 charge Bolton affidavit makes clear that the $38 charge is less than the State’s costs. issuing the marriage licenses. Id. at 136. Here, however, the uncontested court was required to examine whether the charge was sufficiently related to addition to the fees necessary to pay for the State’s expenses, and thus the case is distinguishable from Boynton. In that case, the $10 portion was in While we share some of the concerns of the Illinois Supreme Court, this

maintenance of institutions for delinquent or neglected children, Id. at 138, 139-40. the marriage license charge was an arbitrary and irrational use of the State’s marriage licenses? Why should not such a tax be imposed for the Id. at 140. For these reasons, the educational costs by the imposition of yet another add-on tax to Boynton court held that the $10 portion of

marriages produce children, why should we not defray certain financed by another tax on marriage licenses? Since most which were argued on the premise that the $38 charge was a tax, not a fee. p. 9 law refund theory, and whether they are entitled to equitable relief — all of

double taxation, whether they are entitled to seek a refund under a common

appeal — namely, whether RSA 457:29 is ambiguous, whether it constitutes protection. Nor do we address the remainder of the plaintiffs’ arguments on plaintiffs’ claims relating to marriage as a fundamental right and equal

were preserved.

constitutional arguments.” For these same reasons, we do not reach the

arguments were noted by the trial court in its order, we will assume that they

that the license charge is a fee — not a tax — the Court does not reach these

raised during a hearing before the trial court. However, because both pled. Nor have we been provided a transcript to review whether they were marriage. We can find no indication in the record that these arguments were DUGGAN, GALWAY and HICKS, JJ., concurred. taxation. Because the Court already has determined, as a threshold matter, their equal protection arguments with respect to taxpayers, taxes, and uniform Affirmed. are not clear. As the trial court stated, “It appears that [the plaintiffs] make

expenses of, issuing the plaintiffs’ marriage licenses.

Article 5 of the State Constitution, as well as violates their fundamental right to

arguments relating to equal protection and marriage as a fundamental right We agree with the trial court that the precise nature of the plaintiffs’

that the charges bore a reasonable relationship to, and approximated the

457:29 “violates equal protection rights under” Part I, Article 12 and Part II, motion for summary judgment. It is here that the plaintiffs argue that RSA we need not decide whether this is such a case. We next address whether the trial court erred in denying the plaintiffs’ whether the $38 charge constitutes more than incidental expenses to the State, reach the issues of whether the DOVE Fund constitutes special services or III

summary judgment. 211. We thus affirm the trial court’s granting of the commissioner’s motion for

charge was a fee, not a tax, because the uncontested evidence demonstrated Accordingly, we hold that the trial court properly ruled that the $38

make them unreasonable, irrational, or arbitrary. However, because we do not that there may be statutes that are so extremely over- or underinclusive as to