THE STATE of NEW HAMPSHIRE

MERRIMACK, SS.

SUPERIOR COURT

 

Sherman D. Horton, Jr., David A. Brock and
John T. Broderick, Jr.

v.

Philip T. McLaughlin, as Attorney General for the
State of New Hampshire, and The State of New Hampshire

Docket No. 2001-E-121

ORDER ON RESPONDENTS' MOTION TO DISMISS

Sherman D. Horton, Jr., David A. Brock, and John T. Broderick, Jr. have filed a Petition for Declaratory Judgment and Other Relief seeking, inter alia, to

be paid and/or reimbursed by the State of New Hampshire their reasonable legal fees and costs incurred as a result of the claims they have been subjected to, and have prevailed as to, involved in the impeachment proceedings initiated by the New Hampshire House of Representatives on or about April 13, 2000.

(Pet. 9.) Before the Court is the respondents' Motion to Dismiss. The petitioners object. For the reasons stated below, the respondents' Motion to Dismiss is GRANTED.

I. THE LEGAL STANDARD

In ruling on a motion to dismiss, the Court must determine "whether the plaintiff's allegations are reasonably susceptible of a construction that would permit recovery." Hobin v. Coldwell Banker Residential Affiliates, Inc., 144 N.H. 626, 628 (2000) (quoting Miami Subs Corp. v. Murray Family Trust & Kenneth Dash P'ship, 142 N.H. 501, 516 (1997)). This threshold inquiry involves testing the facts alleged in the pleadings against the applicable law. See Williams v. O'Brien, 140 N.H. 595, 598 (1995). Dismissal is appropriate "[i]f the facts as pled cannot constitute a basis for legal relief." Hobin, 144 N.H. at 628 (quoting Buckingham v. R.J. Reynolds Tobacco Co., 142 N.H. 822, 825 (1998)). When the Court tests the pleadings, it "assume[s] the truth of the facts alleged in the plaintiff's (petitioners') pleadings and construes [a]ll reasonable inferences in the light most favorable to him." Hobin, 144 N.H. at 628 (citation omitted). However, the Court "need not accept allegations in the writ that are merely conclusions of law." Konefal v. Hollis/Brookline Coop. Sch. Dist., 143 N.H. 256, 258 (1998) (quoting Gardner v. City of Concord, 137 N.H. 253, 255-56 (1993)).

II. FACTS

The Court finds the following facts to be undisputed and pertinent to this petition. At all times relevant to this matter, the petitioners were members of the New Hampshire Supreme Court, petitioner Brock as Chief Justice, and petitioners Horton and Broderick as Associate Justices. All three justices were the subjects of an impeachment investigation begun by the New Hampshire House of Representatives on April 13, 2000. This investigation was concluded on July 12, 2000. On that date, the House of Representatives voted to present Articles of Impeachment, against Chief Justice Brock only, to the New Hampshire Senate. On October 10, 2000, after a trial, the Senate voted to acquit Chief Justice Brock. During the course of the impeachment investigation and Chief Justice Brock's trial in the Senate, the petitioners incurred substantial legal fees and expenses.

On May 1, 2000, approximately eighteen days after the impeachment inquiry was initiated, and again on July 24, 2000, approximately twelve days after the House of Representatives voted for Articles of Impeachment against Chief Justice Brock, his representatives sent letters to Attorney General Philip McLaughlin, requesting representation under the provisions of RSA chapter 99-D. On June 14, 2000, a similar request was filed with the Attorney General on behalf of Associate Justice Horton. As to each of these three requests, the Attorney General concluded that RSA 99-D:2 "does not apply to this matter" (Pet. 17). The instant petition represents the first attempt by either Chief Justice Brock or Associate Justice Horton to seek any kind of review of the Attorney General's denial of representation. Associate Justice Broderick never requested representation from the Attorney General. In a letter dated January 8, 2001, and in a follow-up letter dated January 30, 2001, the petitioners requested reimbursement of their legal fees from Attorney General McLaughlin. These letters were copied to the Governor, the Speaker of the House of Representatives, and the President of the Senate. Neither of the petitioners' two letters received a response. In an attempt to be reimbursed for their legal fees, the petitioners have filed this action which they have styled as a petition for declaratory judgment. The petitioners claim a right to reimbursement under both RSA 99-D:2 and a common-law theory that public officials who prevail in removal actions are entitled to a reimbursement of legal fees from the governmental entity that sought their removal. In addition to filing a petition for declaratory relief, the same document which initiated this matter in the Superior Court was also forwarded to the Governor and Council, to serve as an appeal of the Attorney General's decision not to provide the petitioners with a defense to the actions of the legislature. (Pet. 17.)

III. DISCUSSION

The respondents move to dismiss this action on the grounds that: (1) the judicial branch lacks jurisdiction to decide this matter, based upon the separation of powers; (2) even if the Court has jurisdiction, this petition presents a nonjusticiable political question; (3) the petition fails to state a cause of action because: (a) RSA chapter 99-D does not apply; (b) the matter is moot; (c) the petitioners have an adequate alternative remedy through the appeal process in RSA chapter 99-D; (d) the petition is barred by laches; (e) the petition is barred by the doctrine of sovereign immunity; (f) the petitioners have no common-law right to reimbursement; and (g) the petitioners have no present legal or equitable right to remedy in the form of funds in the control of the executive branch. The petitioners object categorically. In the sections that follow, the Court considers only those arguments raised by the respondents that are necessary to a final disposition of this matter. As to the organization of this section, the Court recognizes that while it might more properly start out with a discussion of justiciability, it begins instead with a discussion of the two legal theories that have been advanced by the petitioners and then moves to a discussion of justiciability, which is, in the final analysis, the theory under which this case must be dismissed.

A. RSA Chapter 99-D

The petitioners argue that RSA chapter 99-D gives them a right to be reimbursed for their legal fees. The respondents contend that RSA chapter 99-D does not apply because an impeachment proceeding falls outside that statute, which provides for defense and indemnification of state employees against whom legal or equitable claims have been made. The respondents further contend that even if RSA chapter 99-D does apply, the petitioners failed to abide by its notice requirement. The Court agrees with the respondents that RSA chapter 99-D simply does not apply to this matter.

RSA chapter 99-D, titled Defense and Indemnification of State Officers and Employees, provides, in pertinent part:

If any claim is made or any civil action is commenced against a present or former officer, trustee, official or employee of the state or any agency thereof, including . . . any justice of the district, municipal, probate, superior or supreme court . . . seeking equitable relief or claiming damages for the negligent or wrongful acts and the officer, trustee, official, or employee requests the state to provide representation for him, and the attorney general . . . determines that the acts complained of were committed by the officer, trustee, official, or employee while acting within the scope of official duty for the state and that such acts were not wanton or reckless, the attorney general shall represent and defend such person with respect to such claim or throughout such action, or shall retain outside counsel to represent or defend such person, and the state shall defray all costs of such representation or defense, to be paid from funds not otherwise appropriated. In such case the state shall also protect, indemnify, and hold harmless such person from any costs, damages, awards, judgments or settlements arising from the claim or suit. The attorney general . . . shall not be required to consider the request of such person that representation be provided for him unless within 7 days of the time such person is served with any summons, complaint, process, notice, demand, or pleading he shall deliver the original or a copy thereof to the attorney general . . . . As a condition to the continued representation by the attorney general and to the obligation of the state to indemnify and hold harmless, such officer, trustee, official, or employee shall cooperate with the attorney general in the defense of such claim or civil action. . . . The attorney general shall have the authority to settle any claim brought under this chapter by compromise . . . .

RSA 99-D:2 (Supp. 2000). This statute also includes the following appeal process:

Appeal from denial of representation by the attorney general as provided in RSA 99-D:2 shall be available to any officer, trustee, official or employee who is so denied. Such appeal shall be by petition to the governor and council.

RSA 99-D:7 (1990).

Because an impeachment proceeding is not a civil action for damages, RSA 99-D:2 can apply to this case only if an impeachment investigation and trial constitute a "claim . . . seeking equitable relief . . . for . . . negligent or wrongful acts . . . ." While the ultimate sanction in an impeachment proceeding is removal from office, this sanction does not qualify as equitable relief. This is so because the sole source of equitable relief is the judicial branch of government. See RSA 491:7 (1997); RSA 498:1 (1997). Because neither an impeachment by the House of Representatives nor a Senate trial of an impeachment constitutes either a civil action for damages or an equitable action, the provisions of RSA chapter 99-D do not apply, and provide no legal support for the petitioners' request for reimbursement.

Based upon the language of the statute, and the lack of any case law to the contrary, the Court concludes that the protection offered by RSA chapter 99-D is available to state officials who have been named as defendants in civil actions or as respondents in equitable actions but not to officials who are subject to impeachment proceedings conducted by the House of Representatives and the Senate. When confronted with a similar situation, in Mayo v. State, 415 A.2d 1061 (Vt. 1980), the Supreme Court of Vermont reached the same conclusion. In that case, Malcolm Mayo, a county sheriff, "brought suit against the State of Vermont for legal expenses incurred in the defense of impeachment proceedings against him . . . in the legislature," id. at 1061. Because he was acquitted, Mr. Mayo sought reimbursement under 3 V.S.A. 1101(a), which obligated the State to defend employees

[i]n any action or suit against a state employee for alleged damage, injury, loss or deprivation of rights arising from an act or omission to act in the performance of the employee's official duties, other than an action or suit resulting from the operation of a motor vehicle or the service of civil process . . . .

Mayo, 415 A.2d at 1061. In its opinion affirming the trial court's grant of summary judgment to the State, the Vermont Supreme Court stated:

As the trial court correctly concluded, the statutory terms "action or suit" do not, in their plain meaning, encompass an impeachment proceeding. At most quasi-judicial in nature, it is a constitutionally established procedure before the legislature, which has sole power in this respect. Vt. Const., Ch. II, 58. The judgment rendered extends only to removal from office and future disqualification. This is not a "suit" or an "action," which terms connote the demand of a right in a court of justice, or in some tribunal as a condition precedent to giving a court jurisdiction of the subject matter. Herald & Globe Association v. Clere Clothing Co., 86 Vt. 141, 147, 84 A. 23, 26 (1912). Neither is it based upon alleged damage, injury, loss or deprivation of rights as required by the statute.

Mayo, 415 A.2d at 1062. Just as the Vermont Supreme Court ruled that an impeachment does not involve an "action or suit," this Court concludes that an impeachment does not involve either a "claim" or a "civil action," which means that RSA 99-D is inapplicable to the situation before the Court. This conclusion is further borne out by an examination of a portion of RSA 99-D:2 which provides that "[t]he attorney general shall have the authority to settle any claim brought under this chapter by compromise " Clearly, the petitioners would not have permitted the attorney general to settle the impeachment actions against them by compromise.

Moreover, even if the petitioners were entitled to a defense and indemnification under RSA chapter 99-D, the undisputed facts establish that they failed to make a timely request in accordance with the mandatory provisions of the statute. Contrary to the position maintained by the petitioners, RSA 99-D:2 does not allow a request for representation to be made within a reasonable time, nor is there any language to suggest that a request from one state official serves as a request from other similarly situated state officials. Rather, RSA 99-D:2 uses the mandatory "shall," see Appeal of Rowan, 142 N.H. 67, 71 (1997) (citation omitted), to indicate that a state official is entitled to defense and indemnification only if he or she makes a request "within 7 days of the time such person is served with any summons, complaint, process, notice, demand, or pleading," RSA 99-D:2. None of the requests for counsel by the petitioners were made within the mandatory seven days. In addition, the Court notes that the wording of RSA 99-D:2 strongly suggests that the State's obligation to defray the costs of outside counsel is triggered only when any such outside counsel is retained by the Attorney General; nowhere does the statute say that the State is obligated to pay for outside counsel retained by anyone other than the Attorney General, including, as in this case, the state officials themselves.

Finally, even if RSA chapter 99-D did apply to the petitioners, and even if they had made a timely request for representation, this Court is not the proper forum for seeking the relief the petitioners have requested. By their own admission, the petitioners have been informed on more than one occasion that the Attorney General considers RSA chapter 99-D to be inapplicable to their situation. (Pet. 12.) Thus, petitioners' current request for reimbursement pursuant to that statute can be considered nothing other than an appeal from the Attorney General's denial of representation. According to RSA 99-D:7, any such appeal "shall be by petition to the governor and council" (emphasis added). Because the legislature has plainly designated the Governor and Council as the governmental entity with jurisdiction to hear appeals such as this one, the Court could not lawfully reach the merits of this petition, if the petition is understood as a request for reimbursement under RSA chapter 99-D.1 Furthermore, the petitioners have, in fact, submitted this same petition to the Governor and Council as an appeal under RSA 99-D:7. By waiting so long to do so, rather than making an immediate appeal prior to hiring their own attorneys, the petitioners have incurred, and now seek reimbursement of, substantial legal bills generated by a case they controlled themselves. This appears to run counter to the provisions of RSA 99-D:2, which contemplate that the State shall pay for outside counsel when retained by the Attorney General to undertake litigation under the direction and control of the Attorney General.

B. The Common Law

In addition to seeking reimbursement under RSA chapter 99-D, the petitioners rely upon the common law of New Hampshire for the proposition that

a public official who prevails as to claims against him (including claims in the nature of attempts to remove him from office) is unquestionably entitled to be indemnified or reimbursed by the government entity involved for the reasonable legal fees and costs incurred by him in defending his entitlement to the position in question.

(Pet. 14.) In support of this claim, the petitioners cite Town of Littleton v. Taylor, 138 N.H. 419 (1994), Foster v. Town of Hudson, 122 N.H. 150 (1982), Silva v. Botsch, 121 N.H. 1041 (1981), and King v. Thompson, 119 N.H. 219 (1979). The respondents counter the petitioners' argument by distinguishing the cases on which the petitioners rely. As a preliminary matter, the Court agrees that the four cases relied upon by the petitioners are materially distinguishable from this case.

In Taylor, a local librarian who was elected to the board of selectmen was forced to defend a declaratory judgment action in which the town's two other selectmen asked the Superior Court to decide whether it was lawful for a person to serve simultaneously as an employee of the town library and as a member of the board of selectmen. 138 N.H. at 421. The Supreme Court reversed the trial court's denial of Ms. Taylor's request for attorney's fees from the town on the ground that she had "defended against the petition in order to retain her official, elected position as selectman," id. at 424, and in the process, "not only vindicated her own right to hold the office of selectman, but also conferred a substantial benefit on the town she serves," id. at 425 (citing Irwin Marine, Inc. v. Blizzard, Inc., 126 N.H. 271, 276 (1985)). Substantively, the decision in Taylor hinged upon the Court's interpretation of RSA 669:7, a statute which provided that "[n]o full-time town employee shall at the same time hold the office of selectman." 138 N.H. at 421. Here, by contrast, the petitioners' right to continue in office was not dependent upon the interpretation of a statute, which is within the purview of the courts, but depended upon the judgment of the legislature which was exercising its constitutional authority over the impeachment process. See N.H. Const. pt. II, art. 17 ("The house of representatives shall be the grand inquest of the state; and all impeachments made by them, shall be heard and tried by the senate.")

In Foster, the Supreme Court affirmed the trial court's award of costs and attorney's fees to a police chief who had been fired without just cause, in violation of RSA 105:2-a, and who had appealed his firing, to the Superior Court, under the provisions of that same statute, 122 N.H. at 151. Like the librarian/selectman in Taylor, but unlike the petitioners in this case, the police chief in Foster went to a court of competent jurisdiction to vindicate not just his right to hold his official position, but also to vindicate the public interest in having the removal of public officials conducted lawfully.

Silva stands on a similar footing with Taylor and Foster. In Silva,

[t]he plaintiff, Edward Silva, then a selectman for the Town of Merrimack, brought an action against the other selectmen . . . contending that he had been wrongfully removed from the position of ex-officio representative on the town planning board before the expiration of his term, in violation of RSA 36:5 II (Supp. 1979).

121 N.H. at 1042. The Supreme Court reversed the trial court's denial of attorney's fees to Mr. Silva, based upon the following reasoning:

In this case, we find it appropriate to award attorney's fees to the prevailing party. The plaintiff, a selectmen, expended his own funds to retain his position on the planning board, to which he was statutorily entitled. Silva v. Botsch, 120 N.H. 600 (1980); see RSA 36:5 II (Supp. 1979). In so doing, the plaintiff vindicated the legislature's express command RSA 36:5 II (Supp. 1979).

Silva, 121 N.H. at 1043 (parallel citation omitted). In Silva, as in Taylor and Foster, the case underlying the request for attorney's fees involved the judicial review of the actions of various government entities that were obligated to adhere to certain statutory requirements with respect to the removal of public officials. Here, of course, the petitioners' request for legal fees has come to this Court entirely divorced from any underlying cause of action over which this Court has exercised jurisdiction.

While King is not on all fours with Taylor, Foster, and Silva, it provides no more support for the petitioners' position than those cases do. In King, the director of probation, an executive branch official, successfully defended a statutory removal action brought before the Governor and Council, by the New Hampshire Board of Probation, under RSA 4:1, which pertains to the removal of executive branch officials who are not classified state employees and which specifies the grounds for removal. 119 N.H at 221. Under the singularly unusual facts of King, the Attorney General represented the Governor and Council, id. at 220, which means that his office was unavailable to represent either the Board of Probation or Mr. King, id. Under the provisions of RSA 7:12, the Governor and Council approved the hiring of private counsel for the Board of Probation. Id. Mr. King twice filed petitions under the same statutory provision, id., and while his first petition was denied by the Governor and Council, id., the second "was taken under advisement but was never acted upon by the Acting Governor and Council," id. After the Governor and Council denied the Board of Probation's removal petition,

a bill was introduced in the legislature seeking an appropriation of $70,000 to reimburse King for the legal fees and expenses [amounting to $73,106.41] he incurred in his defense. The bill was later amended to provide an appropriation not to exceed $44,547. It was then adopted by both the senate and the house of representatives. After the Governor vetoed the bill, both houses overrode the veto.

Id. In response to this partial payment of his legal fees, Mr. King filed a petition for a writ of certiorari with the Supreme Court, id. at 221, which ultimately held

that counsel should have been provided for plaintiff King at the expense of the State and that the Acting Governor and Executive Council erred in refusing to provide such counsel . . . .

Id. at 222. For all practical purposes, the Supreme Court treated Mr. King's petition for a writ of certiorari as an appeal of the Governor and Counsel's refusal provide counsel, and the Court's decision effectively "finished off" what the legislature had started when it awarded Mr. King a substantial portion of his legal fees.

Based upon the foregoing synopsis, and the wording of the King holding, which grants Mr. King a remedy by overruling the decision of the Governor and Council, but which does not enunciate any sort of broader rule, the Court concludes that the holding in King must be limited to the unique facts of that case which include: (1) two properly filed requests for attorney's fees, one of which was denied, the other of which was never acted upon; (2) the lack of a statutory appeal process for contesting a denial of attorney's fees such as the one that exists in RSA chapter 99-D; (3) an executive branch removal of an executive branch official, conducted under statutory authority; (4) legislative action to pay a portion of the executive branch official's fees; and (5) an action brought under the original jurisdiction of the Supreme Court, which was treated as an appeal of a denial of a properly filed request for counsel. Therefore, rather than standing for the proposition that the common law of New Hampshire gives all public officials an entitlement to reimbursement for attorney's fees incurred in the defense of unsuccessful removal actions, King stands for the much more limited proposition that executive branch officials are entitled to reimbursement for legal fees expended in the defense of unsuccessful removal efforts brought under RSA 4:1, a right which has since been written into that statute. King, 119 N.H. at 222; RSA 4:1, IV (1988).

While King involved "a petition for a writ of certiorari under RSA 490:4 [setting out the original jurisdiction of the Supreme Court] seeking an order that the State pay the balance of legal fees and expenses owed by the plaintiff to his counsel," id. at 219, thus distinguishing it from Taylor, Foster, and Silva, which were all brought in the Superior Court, King is analogous to those cases in that it also involved a removal procedure in which the governmental entity seeking to remove a public official, i.e., the Governor and Council, was obligated to follow statutory requirements when acting on the petition for removal. Furthermore, while the Court in King explained, by analogy to other statutory provisions, that a state official who prevailed in a proceeding brought under RSA 4:1 should be entitled to attorney's fees, that statute now explicitly provides for an award of legal fees:

The justice or master [hearing a petition for removal] shall set a reasonable rate for the legal fees of parties. However, no official shall be entitled to have any legal fees paid by the state unless governor and counsel determine that he is the prevailing party.

RSA 4:1, IV (1988). Thus, the relief the Supreme Court granted in King, as a matter of common law, is now provided by statute. The statutory availability of attorney's fees to executive branch officials who prevail in removal actions brought under RSA 4:1 stands in sharp contrast to the law applicable in this case because there is no statutory or constitutional provision that provides for an award of attorney's fees to those who successfully defend against removal by impeachment, nor, apparently, is there any rule promulgated by the House of Representatives or the Senate that provides for such an award. Had the legislature intended for the relief available in RSA 4:1, IV also to be available to public officials subject to impeachment investigations or trials, it could have said so, but it has not, see State v. Cobb, 143 N.H. 638, 644 (1999) (quoting Brown v. Brown, 133 N.H. 442, 445 (1990) ("[C]ourts can neither ignore the plain language of the legislation nor add words which the lawmakers did not see fit to include.")). Finally, while it is arguable that by defending against the legislature's impeachment effort, the petitioners were protecting some sort of state interest, see King, 119 N.H. at 222, in the context of impeachment, which is explicitly and exclusively committed to the legislative branch, see In re Mussman, 112 N.H. 99 (1972)) this Court simply lacks the authority to vindicate the petitioners' claim for legal fees, no matter how meritorious such a claim may be.

Based upon the foregoing, the Court concludes that the four cases relied upon by the petitioners are inapposite. In other words, they do not stand for the proposition that

the Court-decided common law of New Hampshire is clear and uncontradicted to the effect that a public official who prevails as to a claim against him (including claims in the nature of attempts to remove him from office) is unquestionably entitled to be indemnified or reimbursed by the government entity involved for the reasonable legal fees and costs incurred by him in defending his entitlement to the position in question.

(Pet. 14.) Rather, Taylor, Foster, Silva, and King, stand for the narrower proposition that if a public official prevails as to a statutorily governed removal proceeding, then he is entitled to his reasonable attorney's fees, and may use the courts to enforce his entitlement thereto.

The flaw in the petitioners' position is that in reading Taylor, Foster, Silva, and King, they focus on the fact that each of those cases involved an effort to remove a public official, but they fail to consider the nature of the removal mechanism. In each of those cases, the removal mechanism was defined by statute, and gave the governmental entity seeking to effect a removal specific legal guidelines to follow, the violation of which could be vindicated in court, under the jurisdiction of the judicial branch to interpret the law, see Petition of the Judicial Conduct Comm., 145 N.H. 108, 111 (2000) (quoting Monier v. Gallen, 122 N.H. 474, 475-76 (1982)); Cloutier v. State Milk Control Bd., 92 N.H. 199, 201-02 (1942) (citing N.H. Const. pt. I, art. 37). Here, by contrast, the removal mechanism, impeachment, is one that is constitutionally committed to the legislative branch, N.H. Const. pt. II, art. 17, with only the most limited judicial oversight, see Petition of the Judicial Conduct Comm., 145 N.H. at 111. The commitment of impeachment to the legislative branch is the principal reason why the petitioners' common-law argument must fail; under the New Hampshire Constitution, there can be no common law of impeachment, or if any such common law does exist, it is a "common law" established not by the courts, but by the legislature, which prosecutes and tries impeachments.

A proper understanding of the relationship between the judicial and the legislative branches in the context of impeachment points up another flaw in the petitioners' reliance upon Taylor, Foster, and Silva. In each of those cases, the trial court, which heard the merits of the removal action or which heard a statutory appeal, also made an award of attorney's fees. Here, by contrast, the petitioners are not seeking an award of attorney's fees in the same forum which adjudicated their cases on the merits.2 Thus, the various legal theories that justify a trial court in awarding attorney's fees to one side or the other, theories relied upon by the courts in Taylor, Foster, and Silva, are inapplicable to this case, and, more to the point, because the petitioners are not seeking legal fees from the forum in which their underlying case was adjudicated, their request for legal fees is simply not analogous to those in Taylor, Foster, and Silva. For the petitioners to make a request for legal fees analogous to the requests that were granted in Taylor, Foster, and Silva, they would have to address their request to the legislature, which conducted the impeachment investigation and was the forum in which Chief Justice Brock was tried.

In sum, the Court rules that the common law of New Hampshire does not, and cannot, establish a right for public officials who prevail in impeachment actions to recover their attorney's fees in actions such as this one because the common law of impeachment, if any such thing exists at all, is not created by the courts but is created by the legislature acting in its constitutionally delegated adjudicatory role.

C. Justiciability

The Court's ruling on the issue of a common-law right to reimbursement leads directly to two issues raised by the respondents in their motion to dismiss: jurisdiction and justiciability. In respondents' view, the Court has no jurisdiction over any matter relating to impeachment, and alternatively, even if the Court has jurisdiction over some matters relating to impeachment, this particular issue is nonjusticiable. The petitioners contend that jurisdiction is proper because they have brought a declaratory judgment action, but, as explained above, in footnote 1, this argument is without merit. As to the respondents' position, the Court does not agree that the judiciary has no jurisdiction over any matter related to impeachment, but agrees that the question raised in this case is nonjusticiable.

The issues of jurisdiction and justiciability both arise from the principle of separation of powers, which is enshrined in Part I, Article 37 of the New Hampshire Constitution, which provides:

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.

As for the purposes behind this principle, this Court can do no better than to quote from Petition of the Judicial Conduct Committee:

The purpose of the "[s]eparation of the three co-equal branches of government is . . . to protect against a seizure of control by one branch that would threaten the ability of our citizens to remain a free and sovereign people." Petition of Mone, 143 N.H. 128, 134 (1998) (citing State v. LaFrance, 124 N.H. 171, 176 (1983)). The separation of powers clause prohibits each branch of government from "encroaching on the powers and functions of another branch," Petition of Mone, 143 N.H. at 134 (citing Opinion of the Justices, 116 N.H. 406, 413 (1976)), and is "violated when one branch usurps an essential power of another," Petition of Mone, 143 N.H. at 134 (citing Opinion of the Justices, 121 N.H. 552, 556 (1981); Opinion of the Justices, 110 N.H. 359, 363 (1970)).

145 N.H. at 109 (parallel citations omitted) (denying a request by the Judicial Conduct Committee ("JCC") to have its special counsel attend any deposition of JCC members conducted by the House Judiciary Committee during the course of its impeachment investigation).

In Petition of the Judicial Conduct Committee, the Supreme Court explained that the principle of separation of powers does not preclude any and all judicial involvement in impeachment because

[t]he court system is available for adjudication of issues of constitutional or other fundamental rights. For example, as was acknowledged by the HJC [House Judiciary Committee], the judicial branch would have jurisdiction to hear issues concerning matters of constitutional privilege. In such circumstances, Part I, Article 17 of the New Hampshire Constitution does not deprive persons whose rights are violated from seeking judicial redress simply because the violation occurs in the course of an impeachment investigation.

145 N.H. at 111. Accordingly, the Court cannot accept the respondents' posistion that the judicial branch is entirely without jurisdiction over matters arising in the context of an impeachment.

However, the Court's jurisdiction in this area is significantly limited. While the judicial branch is not divested of jurisdiction over matters that may arise during a legislative impeachment investigation, the range of the matters subject to judicial review is limited by the concept of justiciability. "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 . . . .'" [Walter L.] Nixon v. United States, 506 U.S. 224, 228 (1993) (holding that question concerning Senate impeachment procedure was nonjusticiable) (quoting Baker v. Carr, 369 U.S. 186, 217 (1962)).

Petition of the Judicial Conduct Comm., 145 N.H. at 111 (parallel citations omitted). In New Hampshire, impeachment is demonstrably committed by the text of the constitution to the House of Representatives and the Senate. N.H. Const. pt. 2, art. 17. This constitutional commitment of authority to the legislative branch also entitles the legislature to make the rules under which the House of Representatives conducts impeachment investigations and the rules under which the Senate hears and tries all impeachments made by the House. See Petition of the Judicial Conduct Comm., 145 N.H. at 111-12. Among the rules the House and Senate are entitled to make are rules concerning the reimbursement of legal fees, and unless the legislature's rule on this matter somehow threatens the integrity of the results of an impeachment proceeding or substantially overruns the legislature's constitutional authority -- allegations not made by the petitioners in this case -- the legislature's rules are nonjusticiable. See Petition of the Judicial Conduct Comm., 145 N.H. at 112 (citing Nixon, 506 U.S. at 253 (Souter, J. concurring)).

The Court must make one final comment based upon the concepts of jurisdiction and justiciability. At the case structuring conference, counsel for the petitioners indicated his view that a hearing on the merits in this case would consist, in essence, of a "retrial" of the issues determined by the House of Representatives during the course of their impeachment investigation and subsequent proceedings and a judicial determination that Articles of Impeachment should never have been passed by the House of Representatives in the first instance. Such a judicial determination flies squarely in the face of the principles of nonjusticiability enunciated by the United States Supreme Court in Nixon, 506 U.S. 224 and Baker, 369 U.S. 186. Both of these cases cite the importance of finality in the resolution of political questions textually committed by the constitution to a particular department of government. As explained above, the judicial branch has no role to play in the impeachment process unless the legislature

were to act in a manner seriously threatening the integrity of its results, [impeaching], say, upon a coin toss, or upon a summary determination that [a supreme court justice] was simply "`a bad guy,'" [in such case, perhaps,] judicial interference might be appropriate. In such circumstances, the [legislature]'s action might be so far beyond the scope of its constitutional authority, and the consequent impact on the [state] so great, as to merit a judicial response despite the prudential concerns that would ordinarily counsel silence.

Petition of the Judicial Conduct Comm., 145 N.H. at 112 (quoting Nixon, 506 U.S. at 253 (Souter, J., concurring)). Here, the petitioners base their request for legal fees on the failure of the House to impeach Associate Justices Broderick and Horton and upon the Senate's failure to convict Chief Justice Brock, but they have alleged no constitutional infirmities in the impeachment process. Moreover, even if the petitioners had presented viable allegations of constitutional violations by the legislature that would warrant judicial intervention into the impeachment process, they would still be without a legal theory under which the Court could take up the question of legal fees.

D. Foreign Case Law

In addition to analyzing the issue before it on the basis of New Hampshire law, the Court has also turned to the law of other jurisdictions for guidance. Tellingly, the petitioners have identified no cases, and the Court has found none, in which a court has granted legal fees to a judge or other public official who has prevailed in an impeachment investigation or trial.

As noted above, the Vermont Supreme Court has ruled that Vermont's version of RSA chapter 99-D does not entitle public officials who survive an impeachment proceeding to reimbursement of their legal fees. See Mayo, 415 A.2d 1061. In Hastings v. U.S. Senate, Impeachment Trial Comm., a suit brought by a U.S. District Court judge while impeachment proceedings against him were under way in the Senate, the U.S. District Court ruled as follows:

The Court must also reject Judge Hastings' ineffective assistance of counsel and diminution of pay arguments [for attorney's fees]. No substantive statute provides for attorney fees for judges or any other official in impeachment proceedings. While the burdens of legal defense can of course be heavy, the Senate alone determines procedures in this regard as in other matters raised in the complaint.

716 F. Supp. 38, 42 (D.D.C. 1989), aff'd without opinion, 887 F.2d 332 (D.C. Cir. 1989). According to the Supreme Court of Arizona, which was asked by Evan Mecham to review an impeachment proceeding in which he did not prevail:

Petitioner Mecham incurred attorneys' fees in defending himself against the impeachment proceedings in the legislature and the criminal charges filed in superior court. He seeks an order directing payment of attorneys' fees in the sum of $243,378.75. The order is sought initially against the attorney general, alternatively against the state treasurer, and lastly against the Arizona legislature. An additional claim in a lesser amount is asserted against the legislature for expenses in connection with Impeachment Articles II(A) through (K).

Since there is no constitutional provision that directs or authorizes the payment of such sums, and since the legislature has not adopted a statute authorizing such payments or appropriating such funds,

IT IS FURTHER ORDERED that the Court declines to accept jurisdiction on issues that relate to attorneys' fees.

Mecham v. Arizona House of Representatives, 782 P.2d 1160, 1161 (Az. 1989). This question has also arisen in Pennsylvania, in the context of a suit filed to enjoin an impeachment proceeding in the state Senate and to challenge the Senate's failure to act on certain pre-trial motions. Larsen v. Senate of Pennsylvania, 646 A.2d 694, 702 (Pa. Commw. Ct. 1994). With respect to Larsen's complaint that the Senate Impeachment Trial Committee had refused to rule upon his request for reimbursement for legal fees and costs, the Court ruled that this issue was "within the exclusive power of the Senate to conduct impeachment trial proceedings and cannot be invaded by the courts," id. at 702.

Finally, in the single case this Court has found in which a court has contemplated allowing an award of attorney's fees, the proceeding in question was not an impeachment but was a hearing before a Commission on Judicial Qualifications, and with respect to attorney's fees, the Court did not make any award on its own but, rather, stated:

We agree with petitioner to the extent that in order to effectuate his right of counsel and not to be forced to appear as his own attorney, a judge prevailing in such proceeding [before the Commission on Judicial Qualifications] may, in the discretion of the commission, be allowed reasonable attorney's fees.

In re Robson, 500 P.2d 657, 662 (Alaska 1972). Even under the reasoning of Robson, the petitioners' request for attorney's fees is nonjusticiable, and should have been brought before the legislature.

Based upon its review of foreign case law, the Court is aware of no judicial support for the petitioners' request for legal fees, and has identified several cases that stand for the proposition that the only source for any such award is the legislature, either as the author of statutory law or as the co-equal branch of government that conducted the impeachment investigation and trial at issue here.

IV. CONCLUSION

While the petitioners have captioned their initial filing in this action as a petition for declaratory judgment, it is, in reality, one of two things: an appeal of the Attorney General's denial of representation or a request for the Court to add a rule to the legislature's rules of impeachment. However, this Court is not the proper forum for either request. Under RSA 99-D:7, a public official denied representation by the Attorney General has an appeal to the Governor and Council. Under New Hampshire case law cited by both petitioners and respondents and the out-of-state case law on impeachment, the proper forum for litigating the question of attorney's fees is the forum in which the underlying matter has been adjudicated, in this case, the New Hampshire legislature. In short, because neither RSA chapter 99-D nor the common law of New Hampshire gives the petitioners a right to the legal fees, and because this particular question is nonjusticiable, the petitioners have failed to state a claim on which relief can be granted by this Court, and for that reason, the respondents' Motion to Dismiss is GRANTED.

Finally, the Court notes that the petitioners have articulated on several occasions objections to the representation of the respondents by the Attorney General's office claiming a conflict of interest. This objection was raised most recently at the case structuring conference, and the Court instructed petitioners' counsel that if petitioners desired to present this issue to the Court, it would have to be done by motion and memorandum to be filed within two weeks of the conference. It, therefore, had been anticipated that the petitioners would be filing a motion and accompanying memorandum asking the Court to prohibit the Attorney General from representing the respondents in this case. On the chance that the petitioners' pleading might have some bearing on the issues addressed in this order, the Court deferred a final ruling on the issues in respondents' Motion to Dismiss pending receipt of the motion and memorandum the petitioners indicated they would be filing, and for which they requested an extension of time. In a letter to the Clerk of Court dated July 12, 2001, which was the last day of the extension of time granted by the Court, the petitioners informed the Court that they would not be filing a motion on this issue after all. Because the petitioners failed to file a motion on this issue, their right to further litigate the issue of representation of the respondents by the Attorney General is deemed WAIVED, and because the case has been dismissed, the issue is now MOOT.

So Ordered.

Dated:             July 17, 2001
                      /s/ E. J. Fitzgerald, III
                      Edward J. Fitzgerald, III
                      Presiding Justice

 

1 Similarly, while the petitioners argue that jurisdiction in this Court is proper because the Superior Court has jurisdiction over declaratory judgment actions, under RSA 491:22, and because this action is captioned as a petition for declaratory judgment (see Obj. to Resp't's Mot. to Dismiss & Req. for Hr'g 7), the mere use of the term "declaratory judgment" in the caption of this petition is insufficient to change the underlying nature of this action, which is either an appeal from the Attorney General's denial of representation or a request that the Court interpose itself into the impeachment process by announcing a rule that state officials who prevail in impeachment proceedings are entitled to be reimbursed for their legal fees.

2 Accordingly, even if the common law did grant all public officials the right to recover legal fees from governmental entities that sought, unsuccessfully, to remove such officials from their offices, such a rule would not help the petitioners, because they have not sought reimbursement from the legislature, which is the governmental entity that conducted their impeachment investigations and trial.