Anna Carrigan v. State of New Hampshire Department of Health and Human Services et al.

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and Human Services at all. The record will reflect that, uh, justice McDonald is disqualified in this case. And, uh, uh, attorney Lewis, I understand that you've reserved two minutes for rebuttal. Yes, your Honor. You may proceed whenever you're ready. Thank you, your Honor. It's good to see your face. What a year. Um, may I please the court? My name is Michael Lewis, uh, for Anna Kerrigan and from the law firm of Wrath Young and Pignatelli. Finally, the time has come to stop waiting for children to appear bruised and battered before we step in to help. Finally, this from a report in 2018, from the appointed Office of Child Advocate, having traveled 4,500 miles throughout the state, having studied our system of response to child abuse and neglect, and having drawn forensic conclusions about how the state is doing with regard to its obligations to the most vulnerable and voiceless community of people in New Hampshire. Finally, this state has imposed upon itself obligations to protect children. This is not the normal case. This is not the default position of the law, where unfortunately, we're not required to protect other people Normally. We're not required to rescue other people normally, but b, the State of New Hampshire, by law one, have conscripted all of us, every single one of us in the project of protecting children. And so here we are today in a case that was dismissed at the lower court on standing grounds, where the state constitution has been amended to expand the status of litigants before this court to include a litigant who is very much at the center of that project, someone who is standing for others, someone who has taken it upon herself to hold the state to the law. And I want to clarify something before we, you know, before I take your questions. And I'm happy to do that at any time. This is not a case about policy as the trial court has said. I mean, policy is implicated. This is a case about IEG legality. This is a case about the connection between having money spent on legally mandated programs, programs that, that, that are de, that are the product of democratically promulgated law under RSA 1 69 C law. That requires me, if I hear about a matter irrespective of my status as a lawyer, and, uh, but subject to the attorney-client privilege to go to the state and say, there is abuse and neglect. If, if it's a definition, Could a child through a next friend have standing to bring this exact same claim child in the system? Yes. I mean, a, a child in the system, um, could potentially have status to challenge the failure of the state to abide by legal mandates. And it could even be a class action, perhaps. Could Be. But it seems that the, uh, the reading that you are asking us to adopt of the, uh, new provisions in the state constitution seem to read out many of the limitations in that, uh, in language of the Constitution in terms of spending. And as, as Judge Chuan said, this isn't about spending, this is about not spending. I Yeah, I, I understand that's what Judge Schulman uh, said, but I respectfully, I disagree with that characterization. Um, this case is about spending, it's about spending not enough. And even by the terms of Judge Schulman's order, it's about spending, because Judge Schulman says it's about spending, but in, in regard to a larger corpus of funds available to the state. And, and think about it this way, and first, I I wanna say that the court has already decided this question in regard to what the concept of spending encompasses. I mean, I cited New Hampshire, uh, NHAA versus Governor, which is a 2010, I believe, decision, um, in which the definition of spending, uh, was considered by this court. And the court concluded that spending also encompasses the constitutional concept, the, you know, the power not spend or the failure to spend. So if you apply the traditional cannons of construction and you look organically at the Constitution, and you don't want to render the Constitution inconsistent with itself and with what the court has already said, at least to the extent that what the court has set stands in, in regard to the Constitution. Uh, the reading that Judge Schulman gave is improper, But, but is it property used canons of statutory construction and interpreting a constitutional provision that was just adopted years ago? Uh, it's the meaning that the public gives to it when they, that they reasonably have, when they read the language of the statute or they of the constitutional amendment. Isn't that right? I, I, I believe that it is proper to apply normal cannons of constitutional construction. I mean, there was nothing, It doesn't matter what, uh, Joe Smith in Plainfield would've thought spending meant. I can't imagine that if you asked Joe Smith in Plainfield, whether illegal spending included, uh, the state's failure to spend enough to protect abuse and neglected children, that he wouldn't answer yes in the affirmative. Does your complaint identify any specific division where that violates the law, where spending has violated the law? Uh, it, it identifies the effects of failure failing to spend. So that is to say, what I, what I argue is the existence of a 2000 case backlog, uh, along with the data we know about the cause of the backlog, indicates failure to spend enough. And I should be entitled to explore that in discovery. That is, I should be entitled under the provision here to ask a series of questions about how money was spent in order to determine whether it's being spent legally or not. I've alleged it. When you cons consider, consider your hypothetical about the figure spent inside the fabric of the laws. We have it. Imagine the state legislature said something like this. You cannot spend money on Jewish programming. Are you, are you saying that part one, article eight, or is Judge Schumann saying that part one, article eight could somehow be construed so as to prevent a taxpayer who's offended by that from appearing and alleging that's illegal spending? Or imagine that a municipality says you can spend money, but not on any pool that is, that is attended by any African-American child. Part one, article eight does not permit a taxpayer standing to challenge that sort of discrimination that would be entirely inconsistent with the demands and the norms of the law. Traditionally though, those challenges required the individual harmed by the, um, illegal action. I mean, it does confer standing on that individual. What we're talking about here is opening that, um, door to any individual. Not, well, not any individual, your honor. Taxpayer, Taxpayer eligible to Vote tax pay individual, yes. Taxpayer eligible to vote. I mean, there's, there's no evidence. It's all fear, you know, and no evidence all speculation that somehow a flood of people are gonna come to the courts, uh, claiming illegality. That is not this case. Of Course, you think about it, when the budget comes out, there are, what, I don't know, 500 line items. You could have 500 taxpayers taking issue with 500 line items and another hundred that aren't in there. So this is whether you're right or not. Mm-Hmm. This, this is the demand of the people Could be the unintended consequence of, well, the amendment right? It's the demand of the people. What, what, what exactly The standing that you're seeking? Well, or the funding of, well, The standing I'm seeking, I think is clearly the demand of the people. Okay. Because I, you know, I fit in within all the conceptual boxes. Let's, let's assume, so you're saying the, the remedy is to the division of Children and Youth Services, or the, uh, department of Health and Human Services. Let's assume that there are other areas in state government where services are provided, but in fact are woefully underfunded. Wouldn't your relief result in a judicial intervention into the entire legislative process? No, uh, not unless there's a lawsuit brought by a taxpayer, but this is what the people asked for the notion of judicial intervention. Be careful what they asked for then. I wouldn't assume that they're not being careful. I mean, this went through a bicameral legislative process and was presented to the people. And you, all of you are agents of the people. Your power is drawn from the people. It is, it does not exist independent of the people under our state constitution. And in regard to the comment about tradition, you may be right, but in 2018, in response to tradition, an overwhelming majority of the people said, we disagree with this tradition. Now, whether it is in fact, tradition or not, is an open question. And the bear decision identifies a different tradition, a fork in the road chosen by this court in 2010. But it, but it seems to me, you're asking us to read in where it says, uh, uh, in which the taxpayer resides, has spent or has approved spending, and you want us to say, or has declined to spend sufficient public funds in violation of state law. That's, those are adding words that aren't there. I disagree. I can prove my case by demonstrating that the amount spent is not enough to meet legal mandates. So the amount allocated by the legislature isn't enough. Spending is defined as what the executive branch does according to NHHA versus governor. So spending is a separate power is done by the executive branch as opposed to appropriation. So the government may make a series of decisions about how to spend money. The government could spend $3 that would be illegal spending under our provisions. There's nothing in the construction of the constitutional language that takes this case outside of, uh, a reading that is a plain reading Of if the government has been zero on something that, where you say there's a statutory mandate, then does that still fall within the definition as you play It out? Not this case, but whether the provision applies or not could be subject to a series of claims of absurdity or failure of equal protection, or, you know, but that's not this case. The government has spent money, but it is not spent enough. And I note, your Honor, if you read their brief, there is no defense on the substance here. They're not claiming the government is making legal mandates absent from their brief. Is it defensive backlog? Is it offensive? You know, failures to protect children who have died in this state? I know that's Not there, that's not the issue right here. But I I think it is. I mean, The reports that were issued are, are efforts to identify and alleviate. So are we really talking about timing, um, aren't acting fast enough? They aren't spending fast enough. And again, how does the court evaluate that issue Under the law? I mean, there's there legal mandates about timing 72 hour response response times. You know, I mean, the, the New Hampshire Department of Justice, it's a 60 day window as administrative gloss for an assessment. These are all things I should be permitted to litigate below, and I've not been permitted to do that. And this is a really important issue. And it, it, it's in the context of a situation where the procedural and the substantive rights interact with each other. So, uh, for your position to prevail, does there have to be a statutory requirement? Or could someone using your theory of the the constitution go into court and say, you know, I live, uh, up above the notch and there aren't enough snowplows up above the notch. And so, uh, the state government has, they bought 50 snowplows. They have to buy a hundred snowplows. My theory is about the law. It's about the law under 1 69 C. Um, So absent a statutory right, there is no constitutional right to go into court. Is that your position? My position is all, what I'm arguing is the state is an obligation to spend, to meet legal mandates imposed, and in this case, it's about, it's to meet the legal mandates of 1 69 State. I'm, I'm out of time, but I wanna respond to your, you know, to your question, please, please respond. I'm not aware of, um, of a specific requirement, like the requirement of responding, picking up the phone, and, you know, and, you know, and responding to a child abuse and collect report. I'm not aware of the same sort of owner onerous obligations imposed upon the state to purchase Snowplows. So this is a unique circumstance. Uh, we'd be deciding this case and it wouldn't go beyond, uh, 1 69 C type rights Just with regard to all cases. This is about this case. Yes. Now, whether some, I mean whether some, someone will look at this case. You still have two minutes. Okay. Thank you. Thank you. Thank you. I'll rest. Thank you, justice X. And may it please the court. Um, I agree with Mike. I'm very happy to be here today. Um, the plaintiff is asking this court to endorse a view of standing under which the superior courts in this court would be called on to oversee and weigh in on state budgetary processes. Whenever a plaintiff believes that the manner or magnitude of the executive spending or seemingly the legislature's appropriations are somehow insufficient, um, shees, she wouldn't be able to do that, uh, under the traditional view of standing, um, that this court articulated Duncan. Um, but she says that part one, article eight as amended in 2018, allows her to do that. Um, we respectfully disagree that amendment states that any individual taxpayer eligible to vote in the state shall standing to petition the Superior Court to declare whether the state or political subdivision in which the tax taxpayer resides, has spent or has approved spending public funds in violation of a law ordinance or constitutional provision. Um, w we agree, um, w with the, um, underlying, um, I guess the implicit, uh, aspect of your question, justice Bassett that has spent or has approved spending, um, requires affirmative acts that that defines as something affirmative not, um, the failure to spend is not spending, it's not the approval of spending. So, so if, uh, the state statutory scheme under 1 69 C and abuse and neglect cases exists, and the state refuses to fund any of it, is it your position that there, that that's different? Is that a different analysis for us? Uh, or so could that claim be brought? Um, I have two responses to that. Justice Bassett. Um, the, the first is, uh, I, I believe that's far afield from what's being alleged here. And I'm not gonna resist the hypothetical, but I just do want to point out that, um, we don't, I'm not aware of any instance where the plaintiff has identified some particular failure to ex to spend money that, that the, uh, legislature specifically said, you have to spend this amount on this thing. Um, and so I think that would be a, a, a very different case. Um, but I do believe our, our analysis is the same. That, that, that is not spending money, that's not, um, approving spending money in the affirmative sense that would provide an avenue to, uh, challenge it under taxpayer standing. Now, there, there very likely would be plaintiffs who could challenge that under, uh, traditional standing notions. Um, a plaintiff who is, uh, statutorily entitled, or even constitutionally entitled to some government service may be able to say, I have. So Then what's the difference if the, if the complaint can be brought by someone who is directly affected and the legislature and the people of the state of New Hampshire granted taxpayer standing to remove that directly affected provision, what's the difference? The state could still be facing the same legal argument Per perhaps, your Honor, but, but the fundamental difference is, is ultimately how that case proceeds in what's before the court to decide. Uh, and that takes the court back, uh, takes it back to Duncan, which was the big concern with the, with the statutory language at issue there, was that there may be something unconstitutional going on here. I believe that issue was actually litigated in, in the court below it was, is the court presented with a case or controversy that avoids the, um, prohibition on, uh, advisory opinions that exists in part two, article 74. Um, and though the court didn't reach it, it, it implied general sep separation of powers, um, principles as well. And, and that's frankly what, what traditional notions of standing are designed to ensure that that courts are dealing with, um, concrete disputes that, um, they may be broad disputes, they may be, uh, seeking to reach broad governmental conduct, but there is some connection between the person who's bringing it, um, a harm alleged to that person that is caused by the allegedly unconstitutional or unlawful conduct. And that's the sort of case of controversy that, that courts are equipped, um, to resolve. And, and, and that actually brings me to, to a, a secondary point that I wanted to make, but I think it's a good segue, um, which is the Constitution does need to be read as a whole. That is something that this court has articulated several times, um, through, throughout a number of cases, and we've cited a few in our brief. Um, and, and so you have to read it in the, the amendment in 2018 as consistent with the remainder of the Constitution. Um, I don't see anything in the language of part one article, um, eight. I don't see anything in the history leading up to that, that would suggest that the people who voted on that intended to do away with or substantially, um, undermine the prohibition on advisory opinions. I don't see anything in that provision or, or in the language or in the, the history that suggests that it wanted to have the judiciary to essentially sit in a role of superintendents over budgetary processes whenever someone believed that there was something that could have been d done differently or that the law required something different. Um, what, what I see if you look at the history of how this amendment came into place is this court said in bear that the prior line of taxpayer standing cases, um, wasn't consistent with the language of the Declaratory Judgment Act. The legislature went and amended, uh, the Declar Declaratory Judgment Act brought back in language that this court said in Duncan was designed to put that line of cases functionally the version of taxpayer standing that existed back then. Um, back into the law this court said in Duncan that that presents profound constitutional problems, and it's unconstitutional as a matter of, of statutory language. It violates part, um, two, article 74 in 2015, the legislature proposes a constitutional amendment that would've essentially constitutionalized the language, um, that was struck in Duncan that died on the table, never made it out of the legislature. 2018, we get the amendment that that now is embodied in part one, article eight, and it's a far more circumscribed amendment. It is tethered to spending, it's tethered to the approval of a spending, and it's tethered to affirmative to affirmative acts. And I think you can certainly infer from, from that that perce, uh, how that proceeded that, that there was an attempt there to ensure that whatever this constitutional amendment was doing, um, that may have strayed from the traditional notions of standard, um, what was designed to create few con uh, conflicts with that as possible, that's designed to fit into the constitutional structure as a whole. And that is, that is the prohibition of advisory opinions. It's the general notions that the executive spends money, the, uh, legislature appropriates it, and that the, that separation of power does powers, doctrines don't allow other branches to serve those core constitutional, but there is spending here. Right. I I think you're right, your honor. Uh, there, there's an allegation that DHS has spent some money. Sure. Um, and I think the plaintiff acknowledges that repeatedly. What I don't see is an allegation that that spending itself is unlawful. I I don't see anything to suggest that the, any particular expenditure or any, it, It's the adequacy that's being challenged. I, I think that's right, your Honor. And, and, and I think I, I mean, attorney Lewis has, has done a good job, and I, and I concede this, that to try to make it seem like the failure or that, that the lack of adequate funding, um, is, is somehow, uh, spending in an affirmative sense. But I do frankly think that that's mostly a semantic, um, uh, a semantic distinction that basically the lack of under adequate funding is the failure to fund. That's fundamentally what it is. Um, and it's the failure to fund that I don't think, um, is reflected anywhere in, in this constitutional, So the taxpayer brought suit alleging that the state's not meaning its constitutional mandate to fund an adequate education, have the same argument here that there's no standing, Uh, your Honor, you've already rejected that argument in that specific context where, where you found an affirmative constitutional obligation, and you said that anyone had outside of the context of taxpayers, um, the, the, the standing to challenge that. So, so that's different than what's being asserted here. And, and there was never any assertion that, that the, um, constitutional right, that the plaintiffs are, are arguing. There's a constitutional duty here itself, confer standing. It was always taxpayer standing. And, and I don't believe Claremont or any of the other cases dealt with it as a taxpayer matter. It was, um, it was essentially the, the unique right, that was acknowledged in those identified in those cases, an affirmative, right. When most of the, um, constitutional rights that that courts recognize or that are embodied in the Constitution, negative rights provided an or an additional affirmative duty that, and a mechanism to, to enforce that. Right. And so, I, I don't, I think Claremont was cited in the, in the proceedings below, I don't know if it was cited in the briefing here, but we do believe, um, that that is just a fundamentally different theory of standing Well, isn't it? Arguably unlawful if there's a big pool of money and there's a legal obligation created by statute, and the spending is directed elsewhere not to fulfill the statutory obligation, doesn't that make it, uh, unlawful? Um, if, if the money were not your Honor, targeted to something that that was authorized, sure. But, but I don't know that spending money, I, I, in fact, I I would disagree that spending money on something that is also authorized and, and not spending it on something else that's authorized, um, means that the something that you're not spending on is a, is, is a spending is spending. I think that's still failure to spend. It's a negative. And, and I believe that that would be functionally reading in the language that, that you noted, um, into the amendment, which simply isn't there. Um, there are one other point that, that I would just like to emphasize, and, and I, I acknowledged that it dealt with, with different provisions in different language, but I was able to find, um, or, or we were able to find over the course of this proceeding, at least three cases were courts rejected functionally, the argument that the plaintiff is making here in other jurisdictions that said, failure to appropriate failure to spend is not spending sufficient that under those taxpayer standing provisions, um, some of which are statutory, uh, there is standing. So, so summary statutory summary judge created, I, I believe that's right, your Honor. Um, I believe that's right. And so Michigan Held otherwise though, Didn't it? Uh, I'm not sure what case you're referring to. Justice Donovan, was that Michigan Association of Home Builders versus Troy? Uh, I, I would have to go look at the case, um, to, to confirm that, your Honor. Um, I, I, that that's not ringing a bell. I'm sure I've read it at some point, but, um, it must've escaped me. Um, but, but I, I certainly would to, to your, to your reading of that case. Um, there, there's another thing I would like to just kind of ask the court to think about, and that's what lawsuit would look like if it were to proceed past, um, the initial stages here. Uh, there are a number of stakeholders who would be potentially interested in that under a similar theory to the plaintiffs would have standing to intervene. Um, you would have people to whom funding is being, um, directed that, that wouldn't wanna lose that funding, that may have an opportunity to weigh in. You would have potentially the legislature, which is not a party to this case, which would have to appropriate any money that the, the executive branch was, was, But, but isn't your sort of parade of horribles here equally implicated in a case where you have acknowledged, or I think would acknowledge that there is standing, if someone were to bring a case on behalf of a child, uh, aren't all the things you're just talking about, oh, these people are gonna have interest and they're gonna intervene and it's gonna be completely unmanageable. Isn't that the logical consequence of somebody who does have standing bringing these claims? It could be, your Honor. And, and that's something that courts, I think in, in cases where there is, uh, the equivalent of Article three standing have to consider. Right. And there, there are always constraints on the remedies that a court, a court can, could put in place and there is no funding to, to provide a particular service. There may be a constitutional constraint there. Um, if money has not been allocated for a particular purpose, the courts made clear that the executive can't spend money that hasn't been appropriated for that purpose. So sure, that could come up. Um, I think the big difference though is that, uh, those interested parties, particularly people to whom money in the future might not be directed. Um, what would would not have standing, I don't think, or there would at least be a ripeness question that, that, you know, their fear may not come to pass and they may not be able to intervene in that lawsuit. Here you would have basically the same theory that the plaintiff is seeking to proceed on, which is, um, you know, that, that the failure to spend or, or the desire to, to shift funds within, within the budget or the allocations, um, provides you with a mechanism under part one, article eight to intervene. And I think that makes the, the legis, or excuse me, the, the judicial process look an awful lot like the legislative process where, where there are a number of stakeholders coming in all with different interests, some who probably think more money should be spent, some who probably think less money should be spent, um, who, who are seeking to come into a particular lawsuit. Sounds like you're making a good argument that this is non justi. We haven't made that argument so far, your Honor, I, I think the, if you turn and look, um, the language of, of the, uh, of part one, article eight, and, and, and construe it in the way that we advocate, which we think is supported by the plain language, which is some affirm affirmative identifiable expenditure, that, that is, um, purported to be unlawful, that limits a lot of the concerns about disability. And because you wouldn't, You wouldn't deny, uh, a directly affected minor through a next friend standing to bring a similar challenge would perhaps, uh, be a class action. Sure. Your Honor, those sorts of lawsuits, um, have been brought, probably will be brought in, in, in the future for, for various number of ser um, you know, services state, uh, that the state provides. The big difference though, is that the con constraints of, of standing recognized in Duncan and that, that the court said we're similar to Article three, um, require that the person who's bringing it or the class bringing it be harmed. It requires some causal clinician between the harm and the, uh, and the unlawful conduct and something, and, and address, excuse me, redressability. And so it does confine a court to deal with the actual controversy before it, it may be a broad controversy, it may affect a policy change that people like, but it is still a, um, a constrained, um, it's still constrained to the actual case of controversy as, as that concept has been, has been understood. Um, briefly before I run out of time, the one other thing I would like the court to turn to, and, and this is referenced in the footnote and our brief, I would just like to build it out a little bit, um, is the prepared taxpayer standing decisions. This court disavowed them in there. Um, but those cases do not reflect the version of standing that the plaintiff is asking this court to, to endorse here. Um, those cases were broader than what part one Article eight says because it allowed challenges to unlawful conduct untethered dispense. So you'd have challenges to executive orders, you'd have challenges to mayors who decided not to listen to their, you know, to go to their, um, city council. You'd have challenges to licenses, um, or issued by the Liquor Commission. Um, and so in that respect, what we have here is far narrower, but what we also have here is a request to go beyond what existed in those cases, which was always a challenge to a particular identifiable act that was alleged to be unlawful. It was the executive order that was alleged to be unlawful. It was the regulation that was alleged to be unlawful. It was the contract entered into that was alleged to be unlawful and As distinguished to general alleged underfunding. Exactly, your Honor, where, where, when you're, when you're, um, identifying some particular act that's alleged to be unlawful, there are certainly advisory opinion concerns when, when there's no, um, skin in the game beyond being a taxpayer, but at least then you have something that a court is equipped to resolve. It's not really, So I take it, uh, the state's position is that if they're, uh, one of thousands of contracts that the executive council approves, any one of those could legitimately be challenged by any, uh, state taxpayer eligible voter because they're pointing to a particular contract and saying that's an unlawful expenditure. Your Honor, is, um, sorry, I see my red lights on. Do you mind? I question. Go ahead. And, um, your Honor, I think, I think that would be a, um, much more akin to what this, um, amendment is reflected. I don't wanna concede that away. I I don't, I haven't really thought that issue through in a way that, that, um, that I think I can clearly state that sure, that that's a lawsuit that wouldn't find any problem in part one, article eight. But it's, it's close to what I, I understand one article eight to be designed to do, which is, you know, your select board is trying to enter into a contract for snowplowing that is not going through whatever process it's supposed to go to. And the taxpayer isn't actually harmed by that because it's not, she's not losing out on her ability to have her, her yard plowed, but she, um, wants to be able to challenge it as unlawful. And, and that's more akin to that. And I think that's what this amendment is designed to do. And so we respectfully ask that the court, uh, affirm the trial court's judgment. Thank you. Thank you, Mr. Lewis. Thank you, your Honor. Um, the first point I'd like to make is with regard to, um, the question that Justice Bassett asked about the spending of no money. And the response is, um, actually it, it, it dovetails with the argument that constitutional provisions need to be interpreted as consistent with each other. And part two, article 90 says that the leg, that a leg or legislative or repeal has to actually occur, not in effect, but by law and repealing by failing to spend, uh, implicates yet again another provision of the state constitution. And our position here is that that is effectively happening. If you read the language 1 69 C, it demands that each child receive something from the state. None of the footnoted cases come close to involving subject matter, like the subject matter brought before this court, where the state has bound itself. So one, to protecting people who require protection. For many reasons, the traditional relationships have broken down, so their parents who would otherwise stand at proxies are not there. The state which is documented in our complaint, is not there because a state is failing because a state is not abiding by legal mandates. 1 69 C nevertheless imposes norms that are different from any you've seen except one, which is the public education context. The notion that it would be conceded here, that there would be standing for the public in Claremont, where the allegation is adequacy of funding for schools generally, but not with respect to protecting children who are reported to the state as suffering from child abuse and neglect makes absolutely no sense. It makes none Claremont is cited in our brief. It's also discussed in our objection to the motion to dismiss. The law will cease to be non absurd if standing exists in the Claremont case, but not in this case. It's because of the special status of the population of people serviced children who are different from the rest of of society. They require affirmative assistance to protection. So thank you, your honors for, uh, for hearing us, and we rest on the briefs. Thank you both. Counsel. Case submitted, court adjourned. All rise.