The decision issued on Wednesday by Judge David Anderson of the Hillsborough Superior Court to refuse standing to our state’s top legislators to challenge Gov. Chris Sununu’s usurpation of core legislative responsibilities constitutes a wholesale rejection of the constitutional right to standing voters won for themselves at the polls during the November 2018 election.
During the November 2018 election, the people of New Hampshire demanded that the state judiciary take responsibility for determining the legality of governmental conduct.
They did so in the aftermath of the New Hampshire Supreme Court’s abdication of responsibility in major litigation over the use of taxpayer funds to support religious education. In that case, the Duncan case, the New Hampshire Supreme Court refused to do what judges are hired to do: apply the law to facts. Instead, the court avoided its responsibilities and closed its doors to our citizenry, leaving citizens and litigants without a decision or a remedy on the merits for grievances brought before it.
Through the state constitutional amendment process and by overwhelming margins, New Hampshire voters, in November 2018, corrected the courts. We the people demanded that our jurists, comprised of handsomely paid lawyers appointed for life to make tough calls, remain open to the public. We did so by amending the state constitution to confer standing upon citizens to bring legal challenges, even if citizens couldn’t assert personal injuries associated with such challenges. We expected that our judicial branch would not ignore or subvert the message we sent.
As a result, Part I, Article 8, by its text, now requires that officers of our government remain “at all times accountable” to the people. It requires that the government be “orderly, lawful and accountable” as a matter of its substantive legal responsibilities. It reaffirms, multiple times in multiple ways, that our courts must hold illegal governments accountable as a matter of constitutional law in decisions rendered on the merits. It does so in response to historical evidence that judges would rather sidestep these responsibilities. And it does so where the constitution requires that litigants obtain remedies that are complete for all injuries, under Part I, Article 14.
The broadening of Part I, Article 8 in 2018 was supported by some of the most reputedly conservative legal figures in our state’s history. Its primary proponents included Chuck Douglas, a former New Hampshire Supreme Court justice who courageously opposed government exceptionalism and judicial avoidism when he sat on our state’s high court. Douglas has always understood that state courts must play a substantial role in protecting the rights of New Hampshire citizens.
Indeed, his scholarship and judicial writing in areas such as the right to privacy recognized that state courts play a far greater role in protecting citizens than federal courts, whose laws purposely syphon matters to state courts by limiting federal court jurisdiction.
On Wednesday, this record and this message was devastatingly ignored by Judge Anderson. He refused to recognize the status of our state’s top legislators when they sought access to the judicial branch to obtain judicial relief before our courts. In doing so, Judge Anderson limited the rights to recognition before our courts that we citizens won for ourselves at the ballot box.
At the heart of Judge Anderson’s decision is his observation that state courts must continue to “look to federal law” in determining the state constitutional rights of a citizenry that rejected this perspective at the polls. The decision suggests that Judge Anderson has forgotten how different state courts are from federal courts.
Federal courts are designed to be courts of limited jurisdiction in deference to state courts. Relying on federal law, as he did, to dismiss a case of substantial importance on a technicality, Judge Anderson committed an obvious error that harms the status of our state institutions.
What’s the cost? Immediately, Judge Anderson’s decision has closed the door, as a matter of law, to efforts by legislators to resist the effective disenfranchisement of tens of thousands of voters. When these voters amended our state constitution, they also sought to limit executive branch authority by electing a legislature whose leaders have a legal right to demand a say in how over $1 billion is spent during this crisis. The Legislature is doubly justified in asserting status before our courts, where the governor has set up his own alternative constitutional branch of private decision makers who have no demonstrated experience in such matters and were not selected by the voters to make such decisions.
Whatever happened to the consent of the governed?
Now, Judge Anderson has shut the door on challenges to this monolithic executive branch invention of constitutional caprice. He has done so where our constitutional structure otherwise confines the governor to two-year terms, to checks within the executive branch through the executive council that are meant to limit his authority, and where the Legislature limited the delegation of emergency authority he relies upon by requiring that the governor obtain the advice and consent of one of its committees as a matter of statutory law.
Longer term? Judge Anderson has sent a rebuke to the people of New Hampshire. He has told us that he will not decide our cases though we have enacted fundamental law demanding that he do so. That’s a dangerous place for New Hampshire voters to be in during this time of upheaval, crisis and where we are seeing an aggregation of executive power to a degree unprecedented in our lifetimes.
(Michael S. Lewis is a Concord attorney.)