2022-0198, Petition of Pamela Smart

of jurisdiction. political, non justiciable questio n. Accordingly, we dismiss the petition for lack branch’s discretionary exercise of its clemency power seeks a ruling on a See Sup. Ct. R. 11. We conclude that the petitioner’s challenge to the executive whether to grant a hearing on the substance of her Petition for Commutation. a writ of mandamus ordering the Governor and Executive Council to reconsider DONOVAN, J. The petitioner, Pamela Smart, petitions this court to issue

and orally), for the State. general (Laura E. B. Lombardi, senior assistant attorney gen eral, on the brief John M. Formella, attorney general, and Anthony J. Galdieri, solicitor

the petitioner. Sisti Law Offices, of Chichester (Mark L. Sisti on the brief and orally), for

No. 20 22 - 0198 Original

page is: https://www.courts.nh.gov/our - courts/supreme - court 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 email at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, 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

including, inter alia, “a textually demonstrable constitutional commitment of Cases that raise nonjusticiable political questions have certain characteristics, (explaining that “[i]f a question is not justiciable, it is not ours to review”). p. 2 267 (2022); see Baines v. N.H. Senate President, 152 N.H. 124, 128 (2005) questions.” Richard v. Speaker of the House of Representatives, 175 N.H. 262, political question. We agree. “Courts lack jurisdiction to decide political petition for lack of juri sdiction because the petitioner raises a nonjusticiable As a threshold matter, the State argues that we should dismiss the

her P etition for C ommutation. by which the executive branch exercised its discretion in declining to consider Accordingly, we construe the petitioner’s argument as challenging the manner faith” when denying her P etition without due consideration of its merits. Executive Council denied her that right when they acted “arbitrarily and in bad Governor and Executive Council. She complains that the Governor and constitutional right to “demonstrate her fitness to return to society” before the Article 18 of the New Hampshire C onstitution in Farrow, she has a (1978)].” The petitioner argues that under this court’s application of Part I, manner consistent with the dictates set forth in [State v. Farrow, 118 N.H. p. 2 296 Governor and Ex ecutive Council to re - consider [the petitioner’s] request in a The petitioner asks this court to “issue a writ of mandamus ordering the

Murder should be granted.” This petition for a writ of mandamus followed. requesting a commutation hearing for the offense of Accomplice to First Degree to deny “consideration of whether the petition of Pamela Smart (age 54) two and a half minutes. Ultimately, the Go vernor and Executive Council voted Governor and Executive Council’s discussion of the P etition lasted less than meeting of the Governor and Executive Council. It is undisputed that the The Governor included the P etition on the agenda for the March p. 2 23, 2022

voluminous letters, academic degrees, and inmate progress reports. time served.” In support, t he P etition included a memorandum, as well as eliminate the ‘ without the possibility of parole ’ condition, and commuted to Specifically, the petitioner requested that her sentence be “modified to the Executive Council and for the Governor to commute her sentence. General’s Office. See RSA 4: p. 2 21 (2020). The P etition req uested a hearing before addressed to the Governor, Executive Council, and New Hampshire Attorney counsel for the petitioner submitted a Petition for Commutation (P etition) m urder. See State v. Smart, 136 N.H. 639, 643 (1993). In August 2021, life - without - parole sentence for her conviction as an accomplice to first degree The following facts are undisputed. The petitioner is cu rrently serving a

c oordinate branch of government certain exclusive authority does not However, “concluding that the State Constitution commits to a

464 (1981). judicial review.” Connecti cut Board of Pardons v. Dumschat, 452 U.S. 458, the business of courts” and “they are rarely, if ever, appropriate subjects for Consequently, “pardon and commutation decisions have not traditionally been (explaining the origins of the clemency power as an executive branch function). CONST. pt. II, art. 52; s ee also Herrera v. Collins, 506 U.S. p. 3 390, 411 - 12 (1993) S.E.2d 840, 846 - 47 (N.C. 2001) (collecting cases explaining the same); see N.H. from adjudicat ory proceedings within the J udicial B ranch.” Bacon v. Lee, 549 traditional conception of clemency as an E xecutive B ranch function separate power “is an act of executive grace”). O ur State Constitution recognizes “the see also Doe v. State, 114 N.H. 714, 718 (1974) (explaining that the pardon which includes the lesser power of commutation. N.H. CONST. pt. II, art. 52; “the governor, with the advice of c ouncil,” the power of pardoning offenses, T he plain language of our State Constitution demonstrably commits to

offense or offenses intended to be pardoned. general or particular expressions contained therein, descriptive of the conviction, shall avail the party pleading the same, notwithstanding any pardon, granted by the governor, with advice of council, before the governor, by and with the a dvice of council: But no charter of convicted of before the senate, by impeachment of the house, shall be in The power of pardoning offenses, except such as persons may be

Here, Part II, Article 52 of the New Hampshire Constitution provides:

omitted). upon the powers and functions of a coordinate political branch.” Id. (quotation commitment, we must decline to adjudicate the matter to avoid encroaching Richard, 175 N.H. at 268 (quotation omitted). “Where there is such responsibility of this Court as ultimate i nterpreter of the Constitution.” . . . is itself a delicate exercise in constitutional interpretation, and is a measure been committed by the Constitution to another branch of government government.” Id. (quotation omitted). “Deciding whether a matter has in any matters that lie within the province of the other two branches of violation of the separation of powers by limiting judicial review of certain 525 (2020) (quotation omitted). “The justiciability doctrine prevents judicial Constitution. Burt v. Speaker, N.H. House of Representatives, 17 p. 3 3 N.H. 522, separation of powers,” as set forth in Part I, Article 37 of our State “The nonjusticiability of a political question derives from the principle of

question s). (quotation omitted) (enumerating six characteristi cs of nonjusticiable political the issue to a coordinate political department.” Richard, 175 N.H. at 267 - 68 p. 4 4

branch exercise d its discretion in this instance denied her the “minimal due The petitioner also asserts that the manner by which the executive

procedures when exercising its clemency power s. holding implied that the e xecutive branch must apply any particular put, the petitioner’s reliance upon Farrow is misplaced because nothing in our fitness to return to society without being a threat to it.” Id. at 305. Simply culminate in “a pardon if he can demonstrate to the Governor and Council his also “has many opportunities to improve his life” while incarcerated, which may in addition to such a sentence not being equivalent to execution, a prisoner New Hampshire Constitution. Farrow, 118 N.H. at 30 p. 4 4 - 05. We observed that constitute a sentence of extermination in violation of Part I, Article 18 of the the legislature’s prescription of a life - without - parole - sentence did not about the merits of her P etition. We disagree. In Farrow, we con cluded that Governor and Executive Council review and “engage in good faith discussion” that our holding in Farrow establishes a constitutional right to have the of the e xecutive b ranch’s clemency powe r. Specifically, the petitioner argues procedures” upon the Governor and Executive Council’s discretionary exercise provisions of our State Constitution impose “constitutionally - mandated Moreover, we are unpersuaded by the petitioner’s argument that other

which they exercised that discretion is not justiciable.”). take certain actions, we conclude that whether they erred in the manner in Senate President, on behalf of their legislative bodies, with the discretion to 268 (“However, to the extent that the constitution vests the Speaker and the lawful exercise of discretion in its clemency power. Cf. Richard, 175 N.H. at acted, as the petitioner argues, “arbitra rily and in bad faith” in an otherwise vests this court with jurisdiction to adjudicate whether the executive branch nothing in the plain language of Part II, Article 52 of our State Constitution conviction for a crim inal offense. N.H. CONST. pt. II, art. 52. As a result, Representatives and conviction by the S enate; and (2) cases brought before commute by excluding: (1) cases of impeachment by the H ouse of with the advice of the Executive Council, may exercise the power to pardon or its clemency power. Instead, that provision limits only when the Governor, executive branch exercise s its discretion when considering whether to invoke “constitutionally - mandated procedures” defining the manner by which the Here, Part II, Article 52 of our State Const itution imposes no

omitted). provide judicial intervention, we are mandated to do no less.” Id. (quotation a mandatory constitutional provision has occurred, it is not only appropriate to justiciable.” Id. “When the question pres ented is whether or not a violation of whether a constitutionally - mandated procedure has been followed is demonstrably committed to another branch of government, “the question of recognized that when authority to determine internal procedures has been necessarily end the justiciability inquiry.” Richard, 17 p. 5 5 N.H. at 268. We have 5

HICKS, BASSETT, and HANTZ MARCONI, JJ., concurred.

lack of jurisdiction. violate the separation of powers doctrine, we dismiss the Rule 11 petition for standards upon the e xecutive b ranch in the commutation process would political, nonjusticiable question. Because i mposing procedural rules or i ts clemency power, we conclude that the petitioner seeks a ruling on a procedures” applicable to the e xecutive b ranch’s exclusive authority to exercise Therefore, i n the absence of any controlling “constituti onally - mandated

sentence (quotation omitted)). inmate has “no constitutional or inherent right” to commutation of his life has been implicated”); s ee also Dumschat, 4 p. 5 52 U.S. at 464 (concluding that an requirements of due process, “we ascertain whether a legally protected interest (explaining that to determine whether particular procedures satisfy the procedural due process rights. See In re Kilton, 156 N.H. 632, 637 - 38 (2007) pr otected interest in obtaining a commutation hearing that would implicate power, under our State Constitution the petitioner does not have a legally the context of the executive b ranch’s discretionary exercise of its clemency E ven if the petitioner had developed this argument, we conclude that, in

sufficiently for our review. See State v. Blackmer, 149 N.H. 47, 49 (2003). exercise of its clemency power in this case does not develop a legal argument without application of the text of those provisions to the e xecutive b ranch’s However, the petitioner’s passing references to constitutional provisions process” re quired under Part I, Article s 14 and 1 p. 5 5 of our State Constitution.