2008-390, NH ASSOCIATION OF COUNTIES & a. v. STATE OF NH & a.

Cordell A. Johnston Theodore E.

Rockingham, Strafford and Sullivan Counties, individually, appeal from the and Belknap, Carroll, Cheshire, Coos, Grafton, Hillsborough, Merrimack, GALWAY, J. The plaintiffs, the New Hampshire Association of Counties

Comstock on the joint brief), as amicus curiae. New Hampshire School Boards Association, of Concord (

on the joint brief), as amicus curiae. New Hampshire Municipal Association, of Concord (

brief and orally), for the defendants. Ransmeier & Spellman, P.C., of Concord (Andrew B. Livernois on the

brief and orally), for the plaintiffs. to press. Errors may be reported by E-mail at the following address: Devine, Millimet & Branch, P.A., of Concord (Robert E. Dunn, Jr. on the

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

NEW HAMPSHIRE ASSOCIATION OF COUNTIES & a.

editorial errors in order that corrections may be made before the opinion goes No. 2008-390 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Merrimack 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 from 2007 to 2013.

p. 2 disabled.

Since that time, the State has extended the sunset provision, most recently

counties and the State as regards financial support for the indigent elderly and funding scheme established by RSA 167:18-b prior to its repeal. will not be required to pay more than they paid under the prior statutory

covered by federal Medicaid payments. APTD recipients was raised from fifty to one hundred percent of the share not 2013, however, the county share for nursing home and HCBC care for OAA and

approval was required. Laws 1998, 388:10. The counties approved SB 409. statute provides that caps on billings to the counties “shall be established” by portions of SB 409 to take effect, SB 409 expressly provided that county years 2011 through 2013, there is no “hold harmless” provision, but the June 30, 2003. Laws 1998, 388:16, I, II, :17, II. In order for the relevant Id. For fiscal and consolidated the statutory scheme governing the relationship between the the legislature passed Laws 2007, chapter 263 (chapter 263), which realigned chapter 263 contains a “hold harmless” provision ensuring that the counties the amount of the counties’ LMAC payments. Laws 2005, 177:13. In 2007, Id. For fiscal years 2009 and 2010,

the counties and the State. Laws 2007, 263:17. For fiscal years 2009 through of the changes under chapter 263, for fiscal year 2008, little changed between into RSA 167:18-a. See RSA 167:18-a (Supp. 2008). As to the financial impact RSA 167:18-b was repealed, but nearly all of its provisions were incorporated

See Laws 2007, ch. 263. As a result of the passage of chapter 263,

f, which defined the OAA, APTD and LMAC payments, would be repealed on

Home and Community Based Care (HCBC) waiver. those persons eligible for nursing home care, but who receive care under a In 2005, the legislature passed Laws 2005, chapter 177, which increased the counties became liable for paying a share of the cost of medical care for about the State having delayed the sunset from 2003 to 2007. Contribution (LMAC) relating to the same people. See Laws 2007, 263:17, :25, :26. There is no dispute those in nursing homes, as well as for making a Local Medical Assistance Assistance (OAA) and Aid to the Permanently and Totally Disabled (APTD) for

409 contained a “sunset” provision stating that RSA 167:18-b and RSA 167:18-

:18-f (1994). Under SB 409, in addition to these and other required payments,

counties had been responsible for paying for certain portions of Old Age p. 2 disabled. See Laws 1998, ch. 388. Prior to the enactment of SB 409, the system for delivering and paying for long-term care for the indigent elderly and is referred to by the parties as SB 409, which was aimed at reforming the The record supports the following. In 1998, the legislature passed what

We affirm. Hampshire Department of Health and Human Services (collectively, the State). defendants, the State of New Hampshire and the Commissioner of the New Trial Court’s (Conboy, J.) order granting summary judgment in favor of the legislative body of the political subdivision.

p. 3 responsibilities are approved for funding by a vote of the local fully funded by the state or unless such programs or political subdivision unless such programs or responsibilities are

Article 28-a. to chapter 263, and the 2005 increase in their LMAC obligations, all violate increase in the counties’ share of nursing home and HCBC care costs pursuant

such a way as to necessitate additional local expenditures by the

arguing that the extensions of the sunset provision contained in SB 409, the

modified programs or responsibilities to any political subdivision in The state shall not mandate or assign any new, expanded or not declare it invalid except upon inescapable grounds. Adopted in 1984, Article 28-a provides:

vote was cast. Id. the meaning they must be presumed to have had to the electorate when the Fund v. Flynn, Comm’r, 133 N.H. 17, 21 (1990). We give the words in question that the statutes did not violate the constitution. The plaintiffs now appeal, circumstances surrounding its formulation. N.H. Munic. Trust Workers’ Comp. cross-motions for summary judgment, ruled in favor of the State, concluding provision of the constitution, we view the language used in light of the New Hampshire Constitution. The trial court denied the injunction and, on whether the moving party is entitled to judgment as a matter of law.” between it and the constitution. Id. When we are required to interpret a a statute to be unconstitutional unless a clear and substantial conflict exists Servs. v. State of N.H., 157 N.H. 15, 18 (2008). In other words, we will not hold

In reviewing a legislative act, we presume it to be constitutional and will

President, 152 N.H. 124, 133 (2005). review the constitutionality of the statutes de novo. See Baines v. N.H. Senate enactments violate Part I, Article 28-a of the New Hampshire Constitution. We 10, 14 (2007). The sole issue on appeal is whether the challenged legislative Assoc. of Counties v. Comm’r., N.H. Dep’t of Health & Human Servs., 156 N.H.

and a declaratory judgment that the statutes violated Part I, Article 28-a of the moving party and, if no genuine issue of material fact exists, we determine the evidence in the light most favorable to each party in its capacity as the non- “In reviewing the trial court’s summary judgment rulings, we consider

injunction barring the enforcement of some of the above-referenced statutes, In August 2007, the plaintiffs brought suit in superior court seeking an

effective July 1, 2008. Laws 2007, 263:24. the legislature for those years. Id. Chapter 263 also repealed RSA 167:18-f not defined by reference to a particular date. The State also contends there

p. 4 obligation. The State counters that this is a long-standing obligation which is

through the Medicaid program.

obligation, it is at least an expansion or modification of the prior payment counties contend that if the payment requirement did not create a new created a new obligation to make payments beyond 2007. Alternatively, the

providing the relevant programs that was not paid by the federal government

their obligation to pay for these programs in 2007, and thus the extension

1984, the counties were required to pay for fifty percent of the share of and thus no violation of Article 28-a. Prior to the adoption of Article 28-a in to the extent it has, there is no requirement of additional local expenditures

political subdivision expenditures by virtue of the mandate.”

cease. According to the counties, the sunset provision was intended to end mandated a new obligation for county payments after the obligation was to the sunset provisions contained in SB 409, violates Article 28-a because it The counties contend, however, that Laws 2007, 263:25, which extended

government an additional fiscal obligation.” no new, expanded or modified program or responsibility has been enacted, or, prior to the adoption of Article 28-a. modified program, but also on whether or not the mandate imposes upon local at issue, the net effect has been merely to continue an obligation in existence See Laws 2007, 263:17. Thus, at the dates most significant to the legislation Laws 1998, 388:8, and again continued through the passage of chapter 263. to pay fifty percent was continued in 1998 with the passage of SB 409, see the percentages varied at times, responsibility to the political subdivision and a requirement of additional local see, e.g., RSA 167:18-b (1994), the obligation

In reviewing the net effect of the enactments at issue, we conclude that hinge solely on whether or not it may be categorized as a new, expanded or at 78.

the end, the invocation of this provision “requires both a mandate of Opinion of the Justices (Solid Waste Disposal), 135 N.H. 543, 545 (1992). In permit them a stronger grasp of their fiscal affairs.” 75, 78 (2001). “The primary consideration is the net effect of the program.” coping with new financial responsibilities, not of their own creation, and to has been expanded.” Town of Nelson v. N.H. Dep’t of Transportation, 146 N.H. expenditures alone are not dispositive of whether a program or responsibility

“constitutionality of a particular State mandate under article 28-a does not Justices (Voting Age in Primaries), 157 N.H. 265, 273 (2008). The

additional obligations on local government without either obtaining their that end, the amendment “was designed to prohibit the State from placing

designed to provide a safety net to save cities and towns from the burden of N.H. CONST. pt. I, art. 28-a. We have stated that this amendment “was already owed. p. 5 care. The HCBC payments are thus little more than a redirection of payments they have had an existing obligation to pay for those eligible for nursing home

while a statutory precondition for SB 409 to become fully effective, did not

amend any statute, consistent with the constitution. The counties’ agreement,

the sunset does not violate Article 28-a. obligation predating the enactment of Article 28-a, chapter 263’s extension of Because the extension of the repeal date is merely a continuation of an

RSA 167:18-b would be repealed on a particular date, and, in fact, RSA made for those eligible for nursing home care but who do not receive care in an argument for two reasons. First, as a technical matter, SB 409 provided that 1998, and thus do not predate Article 28-a. HCBC payments, however, are sunset provision in SB 409, their obligation was to terminate. We reject this payments because such payments did not exist until the passage of SB 409 in unilaterally alter the obligation. The legislature, however, has authority to after they approved it the State was bound by its repeal language and could not The counties also contend that because SB 409 required their approval,

payments. The repeal of RSA 167:18-b thus would not end the obligation.

“under the law as it stood prior to the enactment of Chapter 263, obligation. Nevertheless, the counties contend that with the passage of the reset the amount of the obligation, not eliminate it. The counties contend that The counties argue that this logic cannot be used to defend the HCBC effect of the sunset provision, if it had not been extended, would have been to

have had some obligation to pay for these services for more than 200 years.

the legislature. RSA 167:18-b then set the amount and timing of the required to reimburse the State for these services at an amount determined by (2002), which is unchallenged by the counties, states that the counties will be statute which required the counties to pay these costs.” However, RSA 166:1-a

provision as having been intended to terminate such a long-standing RSA 167:18-b would end the counties’ financial obligation. Essentially, the Second, nothing in the language of SB 409 indicates that the repeal of

render the counties liable for continued payments, we note that the counties 167:18-a does not somehow undo the sunset. repeal provision has been given effect, and shifting of the obligation to RSA

(1916). It might, therefore, seem unreasonable to interpret the sunset See, e.g., Act of January 22, 1790 reprinted in 5 Laws of New Hampshire 502

While the mere existence of a historical obligation does not automatically

not create a new, or alter the old, obligation. was no intent to end the obligation and that a change in the repeal date does legislative act unconstitutional,

p. 6 insecurity created by doubt as to rights, status or legal relations.”

fiscal obligation.” on whether or not the mandate imposes upon local government an additional

must be a clear and substantial conflict with the constitution to declare a

judgment statute and afforded the parties relief from uncertainty and

or not it may be categorized as a new, expanded or modified program, but also

for the caps called for by the statute which may eliminate any potential

obligation of the counties in 2011 through 2013 is speculative. Because there later date. We agree with the trial court that in light of this provision, the fiscal chapter 263, the legislature intends to establish caps on county spending, at a the trial court “should have effectuated the purpose of the declaratory have been the case had Chapter 263 not been enacted.” Therefore, they argue law will cost the counties more money in [fiscal years] 2011-2013 than would 6

a particular State mandate under article 28-a does not hinge solely on whether a greater cost upon the counties. As stated previously, the “constitutionality of concede as much. modified obligation, we agree with the State that the alteration does not impose the items for which the counties must pay will increase, they do not account

the legislature. Laws 2007, 263:17. Thus, we assume that pursuant to

dispute the county affidavits which said that, as Chapter 263 stands, the new

the counties and no violation of Article 28-a. Indeed, the counties appear to fifty to one hundred percent of the non-federal share is a new, expanded or obligation, for those fiscal years there is no additional fiscal requirement upon Although the affidavits submitted by the counties state that the costs of 167:18-b prior to its repeal.” Laws 2007, 263:17. Thus, regardless of the

of chapter 263, the law states that caps on total billings shall be established by

The counties argue that, “The State provided no evidence below to

cannot say at this time that chapter 263 violates Article 28-a.

share through at least 2013. We conclude that Article 28-a has not been year using the methodology for determining county payments in former RSA of OAA, APTD and HCBC from fifty to one hundred percent of the non-federal

As regards fiscal years 2011 through 2013, the remaining operative years

which would be greater than the amount of liability projected for that fiscal pursuant to Laws 2007, 263:17, it expanded the counties’ payment obligations 2009 and 2010, “no county shall be liable for total billings . . . in an amount

would end. In other words, the counties’ belief did not dictate State action.

The counties next argue that the State violated Article 28-a when,

counties’ pre-existing obligation past a time the counties may have believed it prevent the legislature from later amending the statutes to continue the legislative body of the political subdivision.

p. 7 violate Article 28-a. disagree with the majority’s conclusion that the sunset provision does not responsibilities are approved for funding by a vote of the local fully funded by the state or unless such programs or political subdivision unless such programs or responsibilities are

this conclusion applying a different analysis. I also write separately because I

such a way as to necessitate additional local expenditures by the

payments is moot. I write separately, however, because I would have reached

inapplicable. modified programs or responsibilities to any political subdivision in The state shall not mandate or assign any new, expanded or

Part I, Article 28-a, adopted in 1984, provides:

which was repealed effective July 1, 2008. conclude that the issue is moot. The LMAC was required by RSA 167:18-f,

declaratory relief relative to that law, we conclude that this issue is moot. agree with the majority that the issue as to the 2005 increase in LMAC HCBC care for OAA and APTD recipients does not p. 7 violate Article 28-a. I also generally mooted where intervening legislative activity renders the prior law with the majority that the increase in the county share for nursing home and DUGGAN, J., concurring specially in part and dissenting in part. I agree have become academic or dead. J., concurred specially in part and dissented in part. BRODERICK, C.J., and DALIANIS and HICKS, JJ., concurred; DUGGAN,

repealed and not reenacted elsewhere, and because the counties sought only

Id. Because the law challenged by the counties has been

736 (2008). A challenge seeking only prospective or declaratory relief is 491:22 (1997), is meant to relieve parties of uncertainty about their rights, Londonderry Sch. Dist. v. State, 157 N.H. 734, constitutionality is unwarranted. While the declaratory judgment statute, RSA when it no longer presents a justiciable controversy because issues involved appear to have been reenacted in any other form. Generally a matter is moot

Lastly, the counties contend that Laws 2005, chapter 177, which

conflict with the constitution. Accordingly, the issue is not ripe for review. surrounding potential cost increases does not create a clear and substantial Werme’s Case, 150 N.H. 351, 353 (2003), we conclude that the uncertainty

increase in required county spending, a judgment as to the statute’s constitutional violation. Until it is known whether there will, in fact, be an disposed, even if they were able, to engage in such refinements. p. 8 entire body of electors in a state, the most of whom are little

although framed by conventions, are yet created by the votes of the

attention and revision of such a character, while constitutions, construction and discrimination, and fuller opportunity exists for members are more or less conversant with the niceties of

a deliberative body of small numbers, a large proportion of whose

compensation scheme enacted in 1947. constitution than in that of a statute, since the latter is passed by stronger reason for adhering to this rule in the case of a consequently no room is left for construction. There is even

or responsibility, and (2) increased expenditures by the local political the presumption violated Article 28-a. On appeal, the department of labor constitutional provision requires both (1) a new, expanded or modified program Id. at 19. The trial court ruled that 133 N.H. at 23. The presumption was a modification of the workers’ fire fighter suffering from cancer incurred the disease while employed. Flynn, that created a be intended to mean what they have plainly expressed, and prima facie presumption in workers’ compensation cases that a At issue in Flynn was a statutory provision, RSA 281-A:17, II (Supp. 1989), In Flynn, we interpreted the first part of this test. Flynn, 133 N.H. at 22.

(2001); Flynn, 133 N.H. at 22.

Town of Nelson v. N.H. Dep’t of Transportation, 146 N.H. 75, 78

Based upon our prior cases interpreting Article 28-a, any violation of this

Lake County, 130 U.S. at 670-71 (citations omitted).

whether those terms are general or limited, the legislature should

instrument have placed them.” words, in the order of grammatical arrangement in which the framers of the a constitution, the first resort, in all cases, is to the natural signification of the

This intent is to be found in the instrument itself . . . .”

they must be presumed to have had to the electorate when the vote was cast.” [W]here a law is expressed in plain and unambiguous terms,

States Supreme Court explained the reasoning for this in Lake County: surrounding its formulation.” we will not add language to the instrument. Flynn, 133 N.H. at 21. The United

130 U.S. 662, 670 (1889). “To get at the thought or meaning expressed in . . .

is to give effect to the intent of its framers, and of the people in adopting it. Id. (quotation omitted). “The object of construction, applied to a constitution,

intent, bearing in mind that we will give the words in question the meaning Flynn, Comm’r, 133 N.H. 17, 21 (1990). “We will look to its purpose and

constitution, we view the language used in light of the circumstances “When our inquiry requires us to interpret a provision of the prohibition requires both a mandate of responsibility to the political

p. 9 government an additional fiscal obligation.”

expenditures by the local governing body. “Invoking this constitutional prohibition.”

responsibilities.

modified program, but also on whether or not the mandate imposes upon local addressed in term “responsibility” within Article 28-a is even broader in scope than we

As to the second part of the test, the mandate must require increased obligations on local government. Article 28-a is a broad and “sweeping

language, prohibits creating any additional obligations to already existing modified and expanded responsibilities. Thus, Article 28-a, by its plain

Flynn, and includes not only new responsibilities but also hinge solely on whether or not it may be categorized as a new, expanded or

“expanded” responsibility. Thus, the “sweeping prohibition” created by the program.” burden in a statute. Flynn did not address the scope of a “modified” or only a “new” responsibility on the local government created by a prima facie the term ‘responsibility’ to act as a Flynn, 133 N.H. at 23. Indeed, our analysis in Flynn addressed

modified program or responsibility” in Article 28-a includes all additional Based upon our holding in Flynn, the language “any new, expanded or

“responsibility,” “the amendment was designed to prohibit the State from constitutionality of a particular State mandate under article 28-a does not

Id. at 23 (emphasis added). Thus, we held that “the

mandates that, for one reason or another, may not be categorized as a

(emphasis in original). We stated, “[I]t is logical that the delegates understood cities and towns without also providing the necessary funding . . . .” Id. State Legislature from mandating new programs, services, or expenses to local quoted Delegate Pepino: “If [Article 28-a] were adopted, this would prevent the their consent or providing the necessary funding.” Id. (emphasis added). We additional obligations on local government without either obtaining compensation laws.” change in establishing eligibility for benefits under pre-existing workers’ Convention in support of our conclusion that, based upon the definition of ‘program.’” Id. at 22. We looked to the Journal of the Constitutional because this term “is susceptible to a more expansive reading than the term In our analysis of Article 28-a, we focused on the term “responsibility”

regulatory acts conducted under pre-existing authority.” Id. at 25. disclose any indication that the amendment was designed to exclude all stated: “A plain reading of the language contained within article 28-a fails to on local government. Id. at 24. Relying upon the reasoning of Lake County, we the new presumption violated Article 28-a by imposing a new fiscal obligation

modified program or responsibility . . . because it merely requires a procedural argued that RSA 281-A:17, II “does not mandate or assign a new, expanded or responsibility.

Article 28-a because it was not a new, expanded, or modified program or program.”

town’s position would essentially limit the roads that a municipality must roads that serve only local traffic is not new.” Id. at 79. “Adoption of the traffic may be a new development; the town’s responsibility for maintaining the pre-existing obligation on local districts for special education costs. Id. at 78-79. “That the contested segments now serve only local affirmed the trial court’s conclusion that the 1985 amendment did not violate violate Article 28-a because it is not a new or expanded responsibility or controlled. Id. at 79. We disagreed and held that the reclassification “does not school.’” required to maintain the road. Id. at 76. The town argued that Flynn highway to a local highway. Id. at 78. After the reclassification, the town was At issue in Nelson was the State’s reclassification of a road from a state

146 N.H. at 78-79. residential school.” services for which they had been liable prior to its adoption in 1984.” Nelson, not preclude municipalities from reassuming financial responsibility for

Id. at 461. As we later explained in Nelson: “Article 28-a does where the program or responsibility is a pre-existing obligation.

body of the political subdivision.” Our case law provides for a third exception enactment of Article 28-a, it was a pre-existing obligation. The case concerned cost of a court-ordered placement in a residential school until 1986 and responsibilities that are “approved for funding by a vote of the local legislative

Id. at 460. We noted that the State did not assume any part of the

district liable for all special education costs of a child placed in a ‘residential before us. child is placed). Id. The amendment “ha[d] the effect of making the sending child resides) reimburses the receiving district (the school district where the When a child is placed in a “home for children,” the sending district (where the

193:27, I, which defined the term “home for children” to include “any Nashua School Dist., 140 N.H. at 458. At issue was a 1985 amendment to RSA

that, where the local government was responsible for an entire program prior to responsibilities [that] are fully funded by the state”; and (2) those programs or In Nashua School District v. State, 140 N.H. 457 (1995), we determined

exception. The facts of those cases, however, differ from the facts currently sparse case law since Flynn has developed the pre-existing obligation adoption of Article 28-a, and are therefore required to continue funding. Our Pre-existing obligations are those the local governments funded prior to

Article 28-a provides for two express exceptions: (1) “programs or

(quotation omitted). expenditures by virtue of the mandate.” Town of Nelson, 146 N.H. at 78 subdivision and a requirement of additional local political subdivision p. 11 APTD recipient.

payments to $27 per month for each OAA recipient and $52 per month for each non-federal portion; and the 2005 legislation increasing the county LMAC to nursing home and HCBC care costs from fifty percent to 100 percent of the

the sunset provision to 2013; chapter 263 increasing the counties’ contribution

for an extended period of time. Moreover, unlike

to the local government in violation of Article 28-a. Moreover, unlike of this appeal violate Article 28-a. Those provisions are: chapter 263 extending

local financial contributions. Requiring local governments to assume greater Thus, the reclassification did not create an unfunded mandate. permitted to vote. local roads, and after the reclassification, the town had the same responsibility.

counties are responsible for increased contributions to OAA, APTD and LMAC

Article 28-a.

adoption of Article 28-a, and thus may not now delegate those responsibilities The issue thus becomes whether the three provisions that are the subject

maintenance and voting registration, here, the legislation directly implicates Justices (Voting Age in Primaries) participate in the same procedure whether or not seventeen-year-olds were, where the State action influenced local road change. Prior to the reclassification, the town was responsible for maintaining Nelson and Opinion of the processing all voter registrations is not new.” responsibilities have changed. With the 2005 and 2007 legislation, the and change the use of the local road. Opinion of the Justices (Voting Age in Primaries), the counties’ seventeen-year-olds to register and vote in primary elections would violate Nelson whether there had been a change. At issue was whether allowing certain part of the cost of the programs and responsibilities at issue prior to the In the present case, unlike Nashua School District, the State assumed

age group would not expand the municipal responsibility; local officials would discontinue it or limit its maintenance.”). The town’s responsibilities did not Id. at 275. Expanding the voting voting and voter registration and determined that “municipal responsibility for

Id. at 266. We looked at the local responsibilities associated with part of the State-maintained highway system.”). The town, in turn, could

157 N.H. 265 (2008), we looked at municipal responsibility to determine Similar to Nelson, in Opinion of the Justices (Voting Age in Primaries),

level, where a town may review the need for a road and decide either to

“simply decided that a road which now serves only local traffic will no longer be In Nelson, the State reclassified a road based upon use. Id. (State

newly constructed roadways.” Id. at 79-80. maintain and require the State to maintain reclassified local roads or any would still be liable to reimburse the State for fifty percent of the payments

p. 12 are “modified . . . responsibilities.”

entirely.” Even if RSA 167:18-b and RSA 167:18-f were repealed, the counties

percent to 100 percent. Based upon the plain language in Article 28-a, these

federal portion of OAA and APTD,

the State’s nursing and HCBC costs and the LMAC “would have disappeared expire as of June 30, 2007, and the county funding obligation with respect to reimbursement obligations for nursing home and HCBC recipients from fifty provision, the counties argue that RSA 167:18-b and RSA 167:18-f were set to RSA 167:18-f (LMAC payments). The State also increased the counties’ have repealed RSA 167:18-b (reimbursement for nursing and HCBC costs) and

these additional obligations result in increased expenditures. As to the sunset

Specifically, in 2007, the State extended the sunset provision, which would the county share are additional obligations on the counties.

indigent and disabled. Laws 1937, ch. 202. In 1984, when Article 28-a was against any additional obligations on the counties, the State, through the Department of Public Welfare, began assisting the responsible for providing care to the indigent elderly and disabled. In 1937,

The analysis does not end here. The next step is to determine whether

adoption of Article 28-a. Instead, they dispute the validity of certain changes. and the extension of the sunset provision and the increase in the percentage of

APTD and LMAC. changes in the form or structure of”). Article 28-a is a “sweeping prohibition” Dictionary 1452 (unabridged ed. 2002) (“modified” includes making “minor or modified programs or responsibilities.” Prior to 1937, the counties were See Webster’s Third New International

2007 legislation.

The counties do not dispute the responsibilities that existed prior to

Thus, the counties have certain pre-existing responsibilities regarding OAA, funding by a vote of the local legislative body of the political subdivision”). additional obligations on the counties; to wit, whether they are “new, expanded pt. I, art. 28-a (“unless such programs or responsibilities are approved for required the counties’ approval by vote. Laws 1998, 388:10; see N.H. CONST. reimbursement for HCBC. See RSA 167:18-b. As a result, the new legislation see RSA 167:18-f. In 1998, the program was modified to include The analysis that follows pertains to the remaining two provisions from the per month for each OAA recipient and $23 per month for each APTD recipient,

The first determination is whether these provisions result in any

with the majority that, as to the declaratory relief sought, this issue is moot.

increasing the LMAC payments, the legislature repealed RSA 167:18-f, LMAC With respect to the counties’ argument concerning the 2005 legislation does not result in an increase in the counties’ expenditure.

p. 13 increased credit. I agree with the majority that the “net effect” of the changes the percentage contribution increase is offset by reductions in obligations and Article 28-a violation. Any increase in expense to the counties as a result of

its repeal.” Laws 2007, 263:17. Thus, as to fiscal years 2009-2010, there is no

methodology for determining county payments in former RSA 167:18-b prior to

greater than the amount of liability projected for that fiscal year using the billings in fiscal year 2009 or fiscal year 2010 in an amount which would be statute contains a provision that provides “no county shall be liable for total

also sets caps preventing any billing to exceed set amounts. Moreover, the therefore violates Article 28-a.

increase in credit from $2,000,000 to $5,000,000 per fiscal year. Chapter 263 expenditure on the counties that was not a pre-existing obligation and also includes a number of reductions in county obligations as well as an and HCBC indigent elderly care. Laws 2007, 263:17. Chapter 263, however, unconstitutional unless a clear and substantial conflict exists between it and

HCBC beyond the time agreed to by the counties. This creates an increased decision to extend the sunset provision results in the counties contributing to reimburse the State for 100 percent of the non-federal share of nursing home same statutory scheme that called for its repeal by a certain date. The State’s fiscal years 2011-2013 is purely speculative. “[W]e will not hold a statute to be

fiscal year 2008. Chapter 263 includes a provision requiring the counties to counties voted to approve this new obligation, which was included within the disabled reimbursement scheme with the bulk of the changes to occur after whether or not the counties will face increased expenses with the changes in with chapter 263, the State substantially restructured the indigent elderly and subject to further legislation and determination. As a result, any analysis as to provisions for fiscal years 2009-2010, but leaves fiscal years 2011-2013

obligation added in 1998, and as a result, required the counties’ approval. The a violations. HCBC, unlike nursing home care and LMAC, was a new change did not result in an increased expenditure to the counties. In 2007, existing obligations; thus, continuing the programs did not result in Article 28- Chapter 263 addresses fiscal years 2009-2013. It provides specific

consideration is the net effect of the program.”). Justices (Solid Waste Disposal), 135 N.H. 543, 545 (1992) (“The primary

HCBC care for OAA and APTD recipients, I agree with the majority that this Reimbursement for nursing home services and LMAC, however, were pre-

As to the provision increasing the counties’ share for nursing home and expense of contributing to LMAC, nursing home and HCBC care.

reimbursement,

Extending the repeal provision resulted in the counties incurring an additional

see RSA 167:18-b, or LMAC payments, see RSA 167:18-f.

not, however, have been responsible for nursing home or HCBC made for OAA and APTD recipients under RSA 167:18-a. The counties would p. 14 14

dissent in part.

For the reasons stated, I concur specially in part, and respectfully

claim as to this portion of chapter 263 is not yet ripe for review. (2008) (quotation omitted). Thus, I agree with the majority that the counties’ the constitution.” N. Country Envtl. Servs. v. State of N.H., 157 N.H. 15, 18