Burt v. Speaker of the House of Representatives

173 N.H. 522

243 A.3d 609

John BURT & a.

v.SPEAKER OF THE HOUSE OF REPRESENTATIVES

No. 2019-0507

Supreme Court of New Hampshire.

Argued: March 10, 2020

Opinion Issued: August 28, 2020

Liberty Legal Services, of Manchester (Dan Hynes on the brief and orally), for John Burt.

James S. Cianci, house legal counsel, on the brief and orally, for the Speaker of the New Hampshire House of Representatives.

BASSETT, J.

The appellant, John Burt, a member of the New Hampshire House of Representatives, appeals an order of the Superior Court (Kissinger, J.) dismissing his complaint against Stephen Shurtleff, in his official capacity as the Speaker of the New Hampshire House of Representatives. In the complaint, the appellant, together with co-plaintiffs Kevin Craig, Alicia Lekas, Tony Lekas, and Hershel Nunez, each a member of the New Hampshire House of Representatives, alleged that House Rule 63 — which, with limited exceptions, prohibits the carrying or possession of any deadly weapon in Representatives Hall, as well as in the anterooms, cloakrooms, and House gallery — violates their fundamental rights under Part I, Article 2-a of the New Hampshire Constitution. The trial court dismissed the plaintiffs’ complaint, concluding that, because the issue presents a nonjusticiable political question, the court lacked subject matter jurisdiction. We reverse and remand.

The pertinent facts are as follows. On January 2, 2019, the New Hampshire House of Representatives amended House Rule 63 to provide that "[n]o person, including members of the House, except law enforcement officers while actively engaged in carrying out their duties as such, shall carry or have in possession any deadly weapon ... while in the House Chamber, anterooms, cloakrooms, or House gallery." N.H.H.R. Jour. –––– (2019); 2 House Record 5-9 (January 2, 2019). Previously, House Rule 63 permitted members of the House, and others, to carry weapons in the House Chamber so long as the weapons were not displayed. See N.H.H.R. Jour. 21-24 (2015).

In April 2019, the plaintiffs filed a complaint in the superior court challenging the constitutionality of House Rule 63. They alleged that House Rule 63, as amended, violates their fundamental rights under Part I, Article 2-a of the State Constitution, which provides that "[a]ll persons have the right to keep and bear arms in defense of themselves, their families, their property and the state." N.H. CONST. pt. I, art. 2-a. The Speaker moved to dismiss the complaint, arguing that, because the complaint presented a nonjusticiable political question, the trial court lacked subject matter jurisdiction. The trial court agreed, and granted the Speaker's motion to dismiss.

The trial court observed that "[t]he separation of powers doctrine limits judicial review of certain matters that lie within the province of the other two branches of government," and that "[w]hen the State Constitution commits an issue to one of the other two branches of government, the issue becomes non-justiciable." (Quotation omitted.) Noting that "[t]he State Constitution grants both houses of the legislature the authority to settle the rules of proceedings in their own [h]ouse," the trial court found that "[i]t is [not] the constitutional duty of the judiciary to review ... the rules of proceedings within the legislative chambers." (Quotation omitted.) The trial court concluded that, "[a]s an independent and coequal branch of government, the legislature holds the inherent power to control the wearing of firearms within their chambers. This Court will not encroach on the legislature's inherent authority to enact such rules."

On appeal, the appellant argues that the trial court erred because the plaintiffs’ challenge to the constitutionality of House Rule 63 presents a justiciable issue. He asserts that to find the challenge nonjusticiable would "violate the principles of our checks and balances system of government, and deprive plaintiffs of their constitutional rights." Indeed, he argues, if the trial court's reasoning were upheld, it would enable a House majority to "ban women, African Americans, Jew[s], homosexual[s], republican[s], gun owners, or any other class of people they want from not only being present in the [H]ouse [C]hamber, but also from voting." The Speaker counters that the trial court properly dismissed the plaintiffs’ complaint because "[t]his Court has consistently reaffirmed the constitutional rulemaking authority of all three branches of government and, specifically, the authority of the legislature to establish internal rules of proceeding," and that, due to the constitutional separation of powers, "such action is not reviewable by the other branch[es]." We agree with the appellant.

Whether a controversy is nonjusticiable presents "a question of law, which we review de novo." Hughes v. Speaker, N.H. House of Representatives, 152 N.H. 276, 283, 876 A.2d 736 (2005). "The nonjusticiability of a political question derives from the principle of separation of powers," id. (quotation omitted), a principle which is set forth in Part I, Article 37 of our State Constitution:

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

N.H. CONST. pt. I, art. 37. "The justiciability doctrine prevents judicial violation of the separation of powers by limiting judicial review of certain matters that lie within the province of the other two branches of government." Hughes, 152 N.H. at 283, 876 A.2d 736 (quotation omitted). " ‘Deciding whether a matter has in any measure been committed by the Constitution to another branch of government is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the [State] Constitution.’ " Id. (quoting Baker v. Carr, 369 U.S. 186, 211, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962) ) (ellipsis omitted). "Where there is such commitment, we must decline to adjudicate the matter to avoid encroaching upon the powers and functions of a coordinate political branch." Id. "A controversy is nonjusticiable — i.e., involves a political question — where there is a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it." Id. (quotation omitted).

Here, the State Constitution demonstrably commits to the legislature the authority to enact its own internal rules of proceedings. Part II, Article 22 provides that the House of Representatives "shall choose their own speaker, appoint their own officers, and settle the rules of proceedings in their own house." N.H. CONST. pt. II, art. 22 (emphasis added). However, "[o]ur conclusion that the constitution commits to the legislature [such] exclusive authority ... does not end the inquiry into justiciability." Horton v. McLaughlin, 149 N.H. 141, 145, 821 A.2d 947 (2003). "The court system [remains] available for adjudication of issues of constitutional or other fundamental rights." Id. (quotation omitted). "While it is appropriate to give due deference to a co-equal branch of government as long as it is functioning within constitutional constraints, it would be a serious dereliction on our part to deliberately ignore a clear constitutional violation." Baines v. N.H. Senate President, 152 N.H. 124, 129, 876 A.2d 768 (2005) (quotation omitted).

In Baines, we faced the question of whether a law passed by the legislature constituted a "money bill," and therefore whether the constitution required that the bill originate in the House. See id. at 125, 876 A.2d 768 ; N.H. CONST. pt. II, art. 18. Although we recognized that the constitutional authority to adopt internal procedural rules had been demonstrably committed to the legislature, we held that "the question of whether the procedures set forth in Part II, Articles 2, 20, 37 and 44 [of the State Constitution] were violated is justiciable." Id. at 130, 132, 876 A.2d 768. Thus, as the final arbiter of state constitutional disputes, we concluded that, "[w]hile we will not inquire into every allegation of procedural impropriety in the passage of legislation, when the question presented is whether or not a violation of a mandatory constitutional provision has occurred, it is not only appropriate to provide judicial intervention, we are mandated to do no less." Id. at 129, 132, 876 A.2d 768 (quotations and ellipsis omitted).

Similarly, in Hughes, we found that the legislature's internal rulemaking authority, although "continuous" and "absolute," remains subject to constitutional limitations. Hughes, 152 N.H. at 284, 288, 876 A.2d 736 (quotations omitted). We observed that "[c]ourts generally consider that the legislature's adherence to the rules or statutes prescribing procedure is a matter entirely within legislative control and discretion, not subject to judicial review unless the legislative procedure is mandated by the constitution." Id. at 284, 876 A.2d 736 (quotation omitted; emphasis added). Thus, although claims regarding the legislature's compliance with such rule-based or statutory procedures are not justiciable, see id. at 284-85, 287-88, 876 A.2d 736, "[c]laims regarding compliance with ... mandatory constitutional provisions are justiciable," id. at 288, 876 A.2d 736 (quotation omitted; emphasis added). "It is our duty," we stated, "to interpret constitutional provisions and to determine whether the legislature has complied with them." Id.

Recognizing these principles, the Speaker acknowledges that "the case may arise where the legislature acts outside the scope of its constitutional authority or steps beyond its bounds." (Quotation omitted.) Although h...