2011-319, Opinion of the Justices (Requiring Attorney General To Join Lawsuit)

insurance, even if they did not wish to do so; and law that would require individual New Hampshire citizens to purchase health "Whereas, the lawsuit challenges the applicability of portions of a federal

lawsuit; and "Whereas, at least 27 of the 50 states have joined as plaintiffs in the

Health and Human Services et al. (hereinafter 'the lawsuit'); and federal court captioned State of Florida et al. v. United States Department of to join the state of New Hampshire as a plaintiff in the lawsuit pending in presently pending before the senate would require the attorney general to move "Whereas, HB 89 as passed by the house of representatives and

Affordable Care Act;' and attorney general to join the lawsuit challenging the Patient Protection and "Whereas, there is pending in the senate HB 89, 'An act requiring the

May 4, 2011, and filed it with the supreme court on May 5, 2011: The New Hampshire Senate (Senate) adopted the following resolution on

(Requiring Attorney General To Join Lawsuit)

No. 2011-319 Request of the Senate

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. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any 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

in federal court captioned State of Florida et al. v. United States Department of p. 2 2011," to join the state of New Hampshire as a plaintiff in the lawsuit pending Representatives (House) requires the attorney general, "no later than July 1, House Bill (HB) 89 as passed by the New Hampshire House of

The following response is respectfully returned:

To the Honorable Senate:

Hampshire constitution?» presently pending before the senate violate any other provision of the New "3. Does HB 89 as adopted by the house of representatives and

the New Hampshire constitution? the broad grant of authority to the general court set forth in Part II, Article 5 of have the state of New Hampshire join as a plaintiff in the lawsuit, fall within " p. 2 2. Does the requirement in HB 89 that the attorney general move to

Article 37 of the New Hampshire constitution? have the state of New Hampshire join as a plaintiff in the lawsuit, violate Part I, "1. Does the requirement in HB 89 that the attorney general move to

their opinion upon the following questions of law: "That the justices of the supreme court be respectfully requested to give

"Resolved by the Senate:

therefore, be it provision in HB 89 requiring the attorney general to join the lawsuit; now, "Whereas, a question has arisen as to the constitutionality of the

system of checks and balances; and the principle of separation of powers as an integral part of our governmental "Whereas, Part I, Article 37 of the New Hampshire constitution sets forth

or contrary to this constitution; and instructions, either with penalties, or without, so as the same be not repugnant wholesome and reasonable orders, laws, statutes, ordinances, directions, and court, from time to time, to make, ordain, and establish, all manner of full power and authority are hereby given and granted to the said general "Whereas, Part II, Article 5 of the New Hampshire constitution states:

property interests of any individual New Hampshire citizen; and of broad public policy, but do not presently affect the individual liberty or "Whereas, the provisions being challenged in the lawsuit reflect matters p. 3 3

answer general inquiries on constitutional infirmity and, in keeping with that provision of the New Hampshire Constitution. Historically, we have declined to question asks whether HB 89, as passed by the House, violates any other Hampshire Constitution. We answer this question in the negative. Your third grant of authority to the general court set forth in Part II, Article 5 of the New attorney general join the State as a plaintiff in the Florida case falls within the affirmative. Your second question asks whether HB 89's requirement that the violate Part I, Article p. 3 37 of the New Hampshire Constitution. We answer in the 89. Your first question asks whether HB 89, as passed by the House, would You have asked three questions about the constitutional validity of HB

legislative choice of public policy goals or the means to achieve them). (1997) (judiciary is reluctant to evaluate the wisdom of an executive or See id.; see also Mahan v. N.H. Dep't of Admin. Services, 141 N.H. 747, 749-50 856, 86 p. 3 3 (1980). We leave such matters to the other branches of government. public policy. See Smith Insurance, Inc. v. Grievance Committee, 120 N.H. answer the questions posed, not to opine upon whether HB 89 reflects a wise N.H. 135, 139 (2004) (quotation omitted). However, our intent is only to Constitution and to resolve disputes arising under it." Petition of Below, 151 court in our co-equal, tripartite form of government to interpret the legal questions involving resolution of questions of fact"). "It is the role of this (1983) (supreme court justices are not "empowered to give advisory opinions on regarding existing legislation"); Opinion of the Justices, 123 N.H. 510, 511 Article 74 to issue advisory opinions to either branch of the legislature N.H. 355, 356 (2003) (supreme court justices have "no authority under Part II, not apply here. See Opinion of the Justices (Appointment of Chief Justice), 150 duty by providing our opinion, save in certain narrow circumstances that do of the legislature has done so, we are required to perform our constitutional government have no obligation to seek our opinion, where, as here, one house pt. II, art. 74 (emphasis added). While these coordinate branches of upon important questions of law and upon solemn occasions." N.H. CONST. shall have authority to require the opinions of the justices of the supreme court provides,"Each branch of the legislature as well as the governor and council CONST. pt. II, art. 74. Part II, Article 74 of the New Hampshire Constitution render an advisory opinion as to whether HB 89 is constitutional. See N.H. You have asked that the undersigned justices of the supreme court

Human Services, Treasury and Labor and their secretaries. See id. at *1. six states and others against the United States Departments of Health and was brought by the attorneys general and/or the governors of at least twentyconstitutionality of the Federal Patient Protection and Affordable Care Act. It 72 p. 3 3117 (N.D. Fla. Mar. 3, 2011). The Florida case challenges the RV/EMT, 2011 WL 285683 (N.D. Fla. Jan. 31, 2011), clarified by 2011 WL v. United States Dept. of Health and Human Services, No. 3:10-cv-91- Health and Human Services et al. (the Florida case). See Florida ex rel. Bondi p. 4 4

turn now to your first question. answer to your second question depends upon our answer to your first, we authority to the general court set forth in Part II, Article 5." Because our or contrary to lour] constitution," and does not "fall within the broad grant of Accordingly, if HB 89 violates the Separation of Powers Clause, it is "repugnant broad grant of authority" Part II, Article 5 confers upon the legislature. another provision of the constitution, then such action does not "fall within the the Separation of Powers Clause. Therefore, if setting forth a duty violates pursuant to Part II, Article 5 subject to other constitutional provisions such as the constitution. The constitution, thus, makes the legislature's authority the duties of civil officers only to the extent that doing so does not contravene The plain language of Part II, Article 5 authorizes the legislature to set

pt. II, art. 5. as the same be not repugnant or contrary to this constitution." N.H. CONST. powers, and limits, of the several civil and military officers of this state... so empowers the legislature, among other things, "to set forth the several duties, forth in Part II, Article 5 of the New Hampshire constitution." Part II, Article 5 the lawsuit, falls] within the broad grant of authority to the general court set attorney general move to have the state of New Hampshire join as a plaintiff in Your second question asks whether "the requirement in HB 89 that the

I. Part II, Article 5

resolved in favor of its constitutionality." Id. (quotation omitted). exist as to the constitutionality of a [legislative act], those doubts must be the constitution." Id. (quotation omitted). "It also means that when doubts unconstitutional unless a clear and substantial conflict exists between it and (2011) (quotation omitted). This means that "we will not hold [the act] to be grounds." New Hampshire Health Care Assoc. v. Governor, 161 N.H. 378, 385 be constitutional and will not declare it invalid except upon inescapable proposed legislation, as when we review an existing statute, "we presume it to constitutional rights in any given case." Id. at 26-27. Thus, in reviewing the [legislation] if enacted will be construed harmoniously with an individual's standard applies when we review proposed legislation "for it is understood that Sexual Assault Cases), 1 p. 4 40 N.H. 22, 26 (1995) (quotation omitted). The same wherever reasonably possible." Opinion of the Justices (Certain Evidence in already in effect, they are construed to avoid conflict with constitutional rights questions, we note the proper standard of review. "When we interpret statutes Before setting forth our analysis regarding your first and second

I. Standard of Review

the Justices (Weirs Beach), 13 p. 4 4 N.H. 711, 717 (1991). practice, we respectfully decline to answer the third question. See Opinion of p. 5 5

"essential" powers. Health Care Assoc., 161 N.H. at 386. These powers are among the legislature's military officers of this state." N.H. CONST. pt. II, art. p. 5 5; see New Hampshire laws, name certain civil officers, and define the duties of "the several civil and "supreme legislative power," which specifically includes the power to make Part II, Article 2 of the State Constitution vests the legislature with the

legislative and executive branches. 747 (2007). We, therefore, begin by examining the constitutional powers of the executive branch. See Duquette v. Warden, N.H. State Prison, 1 p. 5 54 N.H. 737, Florida case opposing the federal law, would usurp an essential power of the that the attorney general join the State of New Hampshire as a party in the In this matter, we must consider whether the legislature, by mandating

another. New Hampshire Health Care Assoc., 161 N.H. at 386. Powers Clause is violated when one branch usurps an essential power of among the three branches of government, the New Hampshire Separation of Nonetheless, while, as a practical matter, there must be some overlapping CONST. pt. I, art. 37; see Opinion of the Justices, 121 N.H. at p. 5 556. fabric of the constitution in one indissoluble bond of unity and amity." N.H. admit, or as is consistent with that chain of connection that binds the whole from, and independent of, each other, as the nature of a free government will that the "three essential powers [of government] ought to be kept as separate The drafters of our constitution recognized this political reality, and provided consequently there must be some overlapping of the power of each branch." Id. would interfere with the efficient operation of government, and that "We have long acknowledged that the complete separation of powers

branch of the government." Opinion of the Justices, 121 N.H. p. 5 552, 556 (1981). which could result from the accumulation of unbridled power in any one constitution was designed to protect the people from the tyranny of government "The concept of the separation of powers contained in virtually every American

in one indissoluble bond of union and amity. chain of connection that binds the whole fabric of the constitution nature of a free government will admit, or as is consistent with that kept as separate from, and independent of, each other, as the thereof, to wit, the legislative, executive, and judicial, ought to be In the government of this state, the three essential powers

Article 37 provides: powers doctrine set forth in Part I, Article 37 of the State Constitution. Part I, Your first question asks whether HB 89 would violate the separation of

I. Separation of Powers p. 6 6

opinion as to whether the term refers to the Governor alone or also includes the Executive Council. " We use the term "Governor" because it is the term used in the New Hampshire Constitution, but express no

language "in accordance with its plain and common meaning while being meaning of an amendment if the statements interpret the amendment's (quotation omitted). We consider a delegate's statements in determining the used at the time when the constitution and the laws were adopted." Id. people, is to be always understood and explained in that sense in which it was people in the great paramount law which controls the legislature as well as the Canaan v. Sec'y of State, 157 N.H. 795, 799 (2008). "The language used by the presumed to have had to the electorate when the vote was cast. See Town of popular vote, we will give the words in question the meaning they must be When interpreting the meaning of a constitutional provision adopted by

v. N.H. Senate President, 152 N.H. 124, 133 (2005) (quotation omitted). language used, viewed in the light of the surrounding circumstances." Baines the time the instrument was made, that it may gather their intention from the endeavors to place itself as nearly as possible in the situation of the parties at reviewing the history of the constitution and its amendments, the court became parts of the instrument." Id. at 53-54 (quotation omitted). "By may be necessary to give attention to the circumstances under which they if enacted at one time, to ascertain the meaning of particular expressions it "While the constitution as it now stands is to be considered as a whole as

that meant by the people in its adoption." Id. (quotation omitted). obvious interpretation of a constitution, if in itself sensible, is most likely to be significance of the words used by the framers. Id. "The simplest and most Plan v. Sec'y of State, 1 p. 6 61 N.H. 49, 53 (2010). We first look to the natural we must look to its purpose and intent. Bd. of Trustees, N.H. Judicial Ret. When our inquiry requires us to interpret a provision of the constitution,

II, Article 41. the meaning of the phrase "faithful execution of the laws" as contained in Part 89 would usurp an essential power of the executive branch, we must examine usurp an essential power of the executive branch. To determine whether HB civil lawsuit, here by joining the State to an existing case as a plaintiff, would At issue is whether directing the attorney general to initiate a specific

powers." The power to execute laws, therefore, is one of the executive branch's "essential "responsible for the faithful execution of the laws." N.H. CONST. pt. II, art. 41. is the "supreme executive magistrate."1 The constitution makes the Governor (19 p. 6 65). Part II, Article 41 of the State Constitution provides that the Governor Constitution ... of this state is extensive." Barry v. King, 106 N.H. 2 p. 7 79, 281 "The panoply of powers granted to the Governor and Council by the 7

result of the 1964 constitutional convention, Part II, Article 41 now reads: Constitutional Convention 28 p. 7 7, 289, 292, 313, 315 (June 10, 1964). As a was added by the constitutional amendment in 1966." Id.; see Journal of Justices, 113 N.H. 141, 148 (1973). "All but the first sentence of this article 1966, as a result of the 1964 constitutional convention. See Opinion of the Part II, Article 41 was next amended nearly two hundred years later, in

New Hampshire State Constitution: A Reference Guide 1 p. 7 77 (2004). CONST. pt. II, art. 62. See Barry, 106 N.H. at 281; see also S. Marshall, The and directing the affairs of the state, according to the laws of the land," N.H. implement this grant of power by convening the Executive Council "for ordering P. 360, 363 (Kan. 1911). The 1792 constitution empowered the Governor to power as will secure an efficient execution of the laws." State v. Dawson, 119 of the office." Barry, 106 N.H. at 281 (quotation omitted). It "implies such "supreme executive magistrate," is "something more than a verbal adornment The grant of power in Part II, Article 41, making the Governor the

Governor. Id. at 14 p. 7 7, 177. single sentence was amended to change the name of the executive to the His Excellency." Manual of the Constitution, supra at 125. In 1792, this styled The President of the State of New Hampshire, and whose title shall be provided only: "There shall be a supreme executive magistrate who shall be When Part II, Article 41 first became part of our constitution in 1784, it

the Justices, 118 N.H. 582, 585 (19 p. 7 78). [of Part I, Article 37] is to protect it from legislative encroachment." Opinion of 109, 116, 125-30 (1902). "As applied to the executivel,| the primary purpose executive as a separate branch of government. See Manual of the Constitution constitution, as was Part II, Article 41, which, for the first time, created the that time, the Separation of Powers Clause, Part I, Article 37, was added to the The 1776 temporary constitution remained in effect until 1784. Id. At

the unchecked power of the royal governors under England's rule." Id. "The centralization of power in the legislature reflected the framers' distrust of other executive officer; nor did it provide for an independent judiciary. Id. governing power in the legislature. Id. It did not provide for a governor or any (1992): This constitution, which was a temporary document, centered all the became independent of British rule. Warburton v. Thomas, 136 N.H. 383, 388 New Hampshire adopted its first constitution in 1 p. 7 776 after the State

Plan, 161 N.H. at 55 (quotation omitted). reflective of its known purpose or object." Bd. of Trustees, N.H. Judicial Ret. p. 8 8

implementation. Whenever the executive branch needs authority, American government and we know it requires constant Now we know the doctrine [of separation of powers] is essential to

with the doctrine of separation of powers. See id. As he stated: also explained that the ratified amendments were intended to be consistent for legislative mandates, powers, rights and duties." Id. at 2 p. 8 88. This delegate to continue to direct the affairs of the State and now he must enforce respect As one delegate explained, «The new Resolution 58 permits the governor

legislative mandates within the executive branch." Id. at 309. the laws and may by appropriate legal action enforce constitutional and vested with the executive power, shall be responsible for faithful execution of and reinforce the executive powers of the governor by providing that he shall be According to the ballot question posed to the voters, its purpose was "to clarify under his supervision, and charging him with execution of the laws." Id. executive power in the governor, placing executive departments of the state supra at 404 (index). Resolution 5 p. 8 8 was a resolution "establishing the 1964 constitutional convention. See Journal of Constitutional Convention, amendments to Part II, Article 41 had their genesis in Resolution 58 of the the ballot question posed to the voters confirm this interpretation. The ratified Statements of delegates at the 1964 constitutional convention as well as

constitutional requirements." executive to carry out the legislative mandates as well as to enforce the amendments to Part II, Article 41 were intended "to impose a duty upon the agency of the state." As we noted in Opinion of the Justices, 113 N.H. at 14 p. 8 8, constitutional or legislative power, duty, or right by any officer, department or constitutional or legislative mandate" or to "restrain violation of any court actions in the name of the state to "enforce compliance with any additional method for implementing this power: the Governor may initiate responsible for "the faithful execution of the laws." It also provides an As amended, Part II, Article 41 makes clear that the Governor is

legislative or judicial branches. be construed to authorize any action or proceedings against the officer, department or agency of the state. This authority shall not of any constitutional or legislative power, duty, or right, by any with any constitutional or legislative mandate, or restrain violation proceeding brought in the name of the state, enforce compliance execution of the laws. He may, by appropriate court action or in the governor. The governor shall be responsible for the faithful shall be His Excellency. The executive power of the state is vested styled the Governor of the State of New Hampshire, and whose title There shall be a supreme executive magistrate, who shall be p. 9 9

vests the "supreme executive" authority to determine whether it is in the public It is the executive, not the legislative branch, in which the constitution

(quotation omitted). are within the "special province" of the executive. Armstrong, 517 U.S. at 464 aid of the legislative function." Buckley, 424 U.S. at 138. Enforcement actions seek judicial relief, is authority that cannot possibly be regarded as merely in has explained, the enforcement power "exemplified by its discretionary power to care that the laws are faithfully executed. As the United States Supreme Court legislative branch, is empowered to protect the interests of the people by taking particular civil action on the part of the State. The executive branch, not the executive branch entirely of its authority to decide whether to initiate a HB 8 p. 9 9 would usurp this essential power because it would divest the

executed is committed to the governor under the Louisiana Constitution.). execution of the laws," and the power to ensure that the laws are faithfully ("The authority to file a civil lawsuit has traditionally been held to constitute an see State Through Bd. of Ethics v. Green, 545 So. 2d 1031, 1036 (La. 1 p. 9 989) "responsible for the faithful execution of the laws,'" N.H. CONST. pt. II, art. 41; 138, and it is the Governor whom the New Hampshire Constitution makes lawsuit is the ultimate remedy for a breach of the law," Buckley, 424 U.S. at behalf of the State. As the United States Supreme Court has observed, "[a] The executive branch is also responsible for initiating civil actions on

with violating." United States v. Sanchez, 517 F.3d 651, 670 (2d Cir. 2008). which may carry penalties of varying severity, the defendant will be charged whether to prosecute, but also to decide which of alternative statutory sections, "The Executive Branch... has the exclusive authority not only to decide 3d 704, 720 (Ala. 2010). As the Second Circuit Court of Appeals has explained, U.S. 1, 138 (1 p. 9 976); see also Riley v. Cornerstone Community Outreach, 57 So. "special province" of the executive (quotation omitted)); Buckley v. Valeo, 424 Armstrong, 517 U.S. 456, 464 (1996) (enforcing criminal laws is within the process." State v. McPhail, 180 So. 387, 390 (Miss. 1938); see United States v. executive function| ]."). Enforcement "includes criminal as well as civil is the authority to make laws, but not to enforce them .... The latter [is an] Springer v. Philippine Islands, 277 U.S. 189, 202 (1928) ("Legislative power ... grant the executive branch the exclusive power to enforce the law. See This history reveals that the intended purpose of Part II, Article 41 is to

Id. (emphasis added).

functions. enforce compliance or restrain violations. These are executive authority. If the General Court needs better enforcement, it cannot it cannot legislate one word. Only the Legislature manufactures p. 10 10

General brings a criminal indictment to enforce the criminal law against an behalf of the state." "In an ordinary case," the Senate observes, "the Attorney criminal enforcement action that the Attorney General typically commences on The Senate distinguishes the Florida case from "the kind of civil or

the people, and thereupon it shall be his duty to appear."). attorney general that he should appear to protect the interests of the state or of council may, in any action or proceeding, wherever pending, represent to the pending actions on behalf of the State. See RSA 7:9 (2003) ("The governor and recognizes the Governor's power to direct the attorney general to appear in constitutional position as "supreme executive magistrate," New Hampshire law any officer, department or agency of the state." Id. Thus, given the Governor's restrain violation of any constitutional or legislative power, duty, or right, by to "enforce compliance with any constitutional or legislative mandate, or including the authority to initiate an "appropriate court action or proceeding" pt. II, art. 41. The Governor has the highest authority in the executive branch, 161 (1975). The Governor is the "supreme executive magistrate." N.H. CONST. the New Hampshire Constitution. See Opinion of the Justices, 115 N.H. 159, officer, appointed by the Governor and Council pursuant to Part II, Article 46 of attorney general is a member of the executive branch, and is a constitutional Moreover, the Governor is the head of the executive branch. The

so in a way that usurps one of the executive branch's essential powers. the duties of "the several civil and military officers of this state," it may not do interest in civil litigation. While the legislature is responsible for setting forth it would deprive the executive of its essential power to determine the State's exceed its authority to prescribe the duties of the attorney general. In so doing, action -- to join a specific lawsuit on a particular side -- the legislature would implicates the executive branch's power to enforce the law. In mandating this Here, HB 89 would mandate a specific action by the attorney general that

military officers is constrained by other constitutional provisions. previously noted, however, the legislature's power to set forth duties of civil and repugnant or contrary to this constitution." N.H. CONST. pt. II, art. 5. As several civil and military officers of this state... so as the same be not essential powers, i.e., "to set forth the several duties, powers, and limits, of the HB 89 amounts to nothing more than exercise of one of the legislature's The Senate, Speaker O'Brien and Majority Leader Bettencourt argue that

718-19 (1987). the separation of powers doctrine. See Opinion of the Justices, 129 N.H. 714, enacted, HB 89's usurpation of an exclusively executive function would violate branch alone has the power to decide the State's interest in litigation. If not to initiate a specific civil action on the part of the State. The executive interest to litigate a particular matter. Necessarily, this includes the decision p. 11 11

(legislature may direct attorney general to conduct investigation and report the side of the plaintiffs. Cf. Nelson v. Wyman, 99 N.H. 33, 37-39 (1954) command that the attorney general not only enter the Florida case but do so on "pursue settlement," is qualitatively different from HB 89, a specific legislative Second, Laws 1994, 264:2, a general directive to the attorney general to

a particular civil case. 264:2 or any other law directing the attorney general to take a specific action in we were never called upon to consider the constitutionality of Laws 1994, arbiter of State constitutional disputes, Petition of Below, 151 N.H. at 139, and definitive determination as to the law's constitutionality. We are the final legislation, he never challenged it in court, and, thus, there was never any attorney general apparently raised separation of powers questions about this The Senate's reliance upon this law is misplaced. First, although the

Hampshire and the state of Maine." Laws 1994, 264:2. general to "pursue settlement of the border dispute between the state of New Senate notes that in 1994, the legislature passed a law mandating the attorney has directed the attorney general to take specific action in a pending case. The The Senate observes that HB 89 "is not the first time" that the legislature

the State's interest in any litigation. the legislative branch, in which the constitution vests the power to determine delegated by the constitution to the executive branch. It is the executive, not to determine whether the State should join the Florida lawsuit has been making function, the inquiry ends there. However, the policy-making authority attorney general is politically based, arising out of the legislature's policy- Leader Bettencourt imply that because the purpose of the mandate to the The arguments pressed by the Senate, Speaker O'Brien and Majority

decision, not a legal decision." overemphasized that the decision whether to join the [Florida case] is a political O'Brien and Majority Leader Bettencourt share this view: "|I]t cannot be more properly characterized as policy decisions than legal decisions." Speaker clear," and deciding "whether to enter the case, and on which side, are much oriented litigation," the Senate asserts, "the state's interest may not always be of the government should direct the state's course of action." "In policylitigation," and, in such a case, "It)he democratically elected lawmaking sectors The Florida case, the Senate argues, is different. It is "policy-oriented

specific person or to refrain from so doing. general to exercise his discretion in any particular way -- to indict or sue a acknowledges that in such a case, the legislature could not direct the attorney person believed to have committed a civil wrong." The Senate impliedly individual believed to have violated it, or an enforcement action against a p. 12 12

affirmative answer to the first question presented. William L. Chapman, of Concord, filed a memorandum in support of an

Hampshire constitution." of authority to the general court set forth in Part II, Article 5 of the New That being the case, it follows that HB 89 does not "fall within the broad grant the House, violates the Separation of Powers Clause and is unconstitutional. to execute and enforce the law. Therefore, in our opinion, HB 89, as passed by join the State as a party to litigation, would usurp the executive branch's power which removes entirely from the executive branch the decision as to whether to Accordingly, for all of the above stated reasons, we conclude that HB 89,

of the 1966 constitutional amendments. 41 in the 1780's and 1790's is of little help in determining its meaning in light the Justices, 113 N.H. at 148. How the legislature interpreted Part II, Article in the Governor strengthened executive power and responsibility." Opinion of with the 1966 amendments to Part II, Article 41, which were intended to "vest upon which they rely, from the 1780's and 1790's, are not "[contemporaneous" provisions at issue. See Warburton, 136 N.H. at 389. However, the precedents [c]onstruction" is relevant to determine the meaning of the constitutional legislative precedent. They argue that the legislature's "[contemporaneous Speaker O'Brien and Majority Leader Bettencourt also rely upon

was not in fact settled. See New Hampshire v. Maine, 532 U.S. 732 (2001). any particular resolution, and as the Senate acknowledges, the border dispute any and all circumstances and regardless of his assessment of the merits of 264:2 was to require the attorney general to settle the border dispute under findings to legislature). There is no suggestion that the purpose of Laws 1994, p. 13 13

affirmative answer to the first question presented. Gregory J. Vasse, of New London, filed a memorandum in support of an affirmative answer to the first question presented. Bunnell on the memorandum), filed a memorandum in support of an NH Voices for Health, of Concord (Michael J. Cohen and Thomas G. presented and an affirmative answer to the second question presented. Representatives, in support of negative answers to the first and third questions and David J. Bettencourt, Majority Leader, of the New Hampshire House of memorandum), filed a memorandum on behalf of William O'Brien, Speaker, Mosca Law Office, of Manchester (Edward C. Mosca on the support of an affirmative answer to the first question presented. James Upshur McClammer, Jr., of Charlestown, filed a memorandum in questions presented. New Hampshire in support of affirmative answers to the first and third memorandum on behalf of former members of the Office of Attorney General of Wilbur A. Glahn, III and Patrick H. Taylor, of Manchester, filed a presented and an affirmative answer to the second question presented. Senate in support of negative answers to the first and third questions the memorandum), filed a memorandum on behalf of the New Hampshire Douglas, Leonard & Garvey, P.C., of Concord (Richard J. Lehmann on negative answer to the second question presented. support of affirmative answers to the first and third questions presented and a Michael A. Delaney, attorney general, & a., filed a memorandum in