Hughes v. Speaker of New Hampshire House of Representatives

876 A.2d 736, 152 N.H. 276, 33 Media L. Rep. (BNA) 1929, 2005 N.H. LEXIS 94, 2005 WL 1309040
CourtSupreme Court of New Hampshire
DecidedJune 2, 2005
DocketNo. 2005-215
StatusPublished
Cited by11 cases

This text of 876 A.2d 736 (Hughes v. Speaker of New Hampshire House of Representatives) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hughes v. Speaker of New Hampshire House of Representatives, 876 A.2d 736, 152 N.H. 276, 33 Media L. Rep. (BNA) 1929, 2005 N.H. LEXIS 94, 2005 WL 1309040 (N.H. 2005).

Opinion

Duggan, J.

The defendants appeal the ruling of the Superior Court (McGuire, J.) that they violated Part I, Article 8 of the State Constitution and RSA chapter 91-A when they privately negotiated a compromise of Senate Bill (SB) 302. This appeal requires that we carefully consider: the public’s constitutional right of access to governmental proceedings, see N.H. Const. pt. I, art. 8; the public’s statutory right to know, see RSA ch. 91-A (2001 & Supp. 2004); the legislature’s constitutional authority to adopt its own rules, see N.H. Const. pt. II, arts. 22, 37; the legislature’s right to free deliberation and debate, see N.H. Const. pt. I, art. 30; and the constitutional principle of separation of powers, see N.H. Const. pt. I, art. 37. We reverse.

We hold that whether the defendants violated the statutory provisions governing the public’s right to know is a political question not subject to our review. Answering this question would infringe upon the legislature’s exclusive constitutional authority to adopt and enforce its own rules of procedure.

However, whether the defendants violated Part I, Article 8 is not a political question. We further hold that the defendants did not violate that constitutional provision. In context, the constitutional import of free legislative debate outweighs the public’s right of access to the disputed negotiations. Considering the public and open nature of the legislative process in this case and the public access to the records and debates, we [279]*279believe that the legislature could properly have determined that denying the public access to the negotiations at issue was reasonable.

I. Background

The defendants are the Speaker of the New Hampshire House of Representatives (House), the President of the New Hampshire Senate (Senate), the General Court of the State of New Hampshire, the House Conference Committee on SB 302, and the Senate Conference Committee on SB 302. The plaintiff is Representative Daniel M. Hughes, a member of the House.

The instant dispute concerns the enactment of SB 302, a 2004 bill concerning school funding. We briefly summarize the legislative history of SB 302 below. We incorporate by reference the more detailed history set forth in Baines v. N.H. Senate President, 152 N.H. 124, 126-27 (2005).

SB 302 was introduced in the Senate on January 7, 2004, to “make technical corrections to the education funding formula.” Baines, 152 N.H. at 126 (quotation and brackets omitted). Before passing the bill on March 17, 2004, the Senate rejected an amendment that would have raised the existing cigarette tax rate. Id.

The House amended SB 302 to increase the existing cigarette tax rate. Id. A committee of conference was appointed for SB 302 when the Senate did not concur with the House amendment. Id. Consistent with legislative rules, the Senate President appointed three Senate conferees and the Speaker of the House appointed four House conferees. Id. at 138.

A committee of conference or “conference committee,” “is two committees, one appointed by each house. It is normally appointed for a specific bill and its function is to gain accord between the two houses either by the recession of one house from its bill or its amendments or by the further amendment of the existing legislation or by the substitution of an entirely new bill.” N. SINGER, 1 STATUTES AND STATUTORY Construction § 11:8, at 654 (6th ed. 2002 rev.). “Although the managers on the part of each House meet together as one committee they are in effect two separate committees, each of which votes separately and acts by a majority vote.” Id. § 16A:4, at 934; see National Conference Of State Legislatures, Mason’s Manual of Legislative Procedure § 770, at 558 (2000) (MASON’S).

“When the conferees, by majority vote of each group, have reached complete agreement... they embody their recommendations in a report made in duplicate.” Singer, supra § 16A:4, at 936. The report may not be forwarded to the legislature unless the conferees have unanimously approved it. Manual of the New Hampshire General Court 2003-2004 at 20. The report is then acted upon by each house of the legislature. [280]*280Mason’s, supra § 771, at 560. “When both houses have adopted the report, they have both approved the bill in its final form and it is ordered to enrollment.” Id.

“The conference committee process is older than Congress itself. State legislatures used conference committees before 1789 to reconcile differences between the chambers of their bicameral legislatures.” W. Oleszek, Congressional Procedures and the Policy Process 255 (6th ed. 2004). “The Massachusetts Bay Colony ... held the first recorded conference committee in the New World as early as 1645.” L. Longley & W. Oleszek, Bicameral Politics: Conference Committees in Congress 29 (1989).

“Almost immediately upon the convening of the first session of the First Congress in 1789, the Senate and the House considered rules providing for conferences between the two chambers.” Id. at 30. The first congressional conference committee met on May 14, 1789, to resolve an issue of congressional etiquette: How should the Congress address the President of the United States? Id. at 31. “One of the first bills passed by Congress, H.R. 15 (introduced on July 22,1789), required a conference committee to iron out differences between the House and Senate versions.” Roberts, Are Congressional Committees Constitutional?: Radical Textualism, Separation of Powers, and the Enactment Process, 52 CASE W. Res. L. Rev. 489, 545 (2001).

Committees of conference “are an important element of the constitutional concept of bicameralism.” Id. at 547. “While it is sometimes possible to reconcile differences between the chambers by amendment..., this is rarely the case for important legislation.” Id. “It is usually the conference committee, a quintessential bicameral body, that carries out the crucial constitutional function of preparing from the disparate House and Senate bills one final set of legislative provisions for final passage.” Id. at 547-48.

The committee of conference in this case met publicly on three dates: May 17, 2004; May 18, 2004; and May 19, 2004. The Senate and House conferees met jointly on these dates, with members of the public and press in attendance.

Before each of the public meetings convened, House conferees met with the Speaker of the House in his office to discuss SB 302. Also present at these meetings were House legal counsel and various House members. These meetings were not publicly noticed and were not open to the public. During these non-public meetings, representatives for the House conferees communicated with the Senate President to negotiate a compromise of SB 302.

[281]*281The trial court credited testimony that, at these non-public meetings, the House conferees “discussed and decided what to say during the noticed public meetings of the Committee of Conference.” The court also credited testimony that the conferees “agreed ... on a Script’ of what they would say in the public meeting.” During one of the committee of conference’s public meetings, a conferee indicated that she disapproved of conferees scripting their public comments in advance.

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876 A.2d 736, 152 N.H. 276, 33 Media L. Rep. (BNA) 1929, 2005 N.H. LEXIS 94, 2005 WL 1309040, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hughes-v-speaker-of-new-hampshire-house-of-representatives-nh-2005.