In Case Nos. 2002-0210, Petition of Representative Peter Burling & a. and 2002-0243, Petition of Senator Clifton Below & a., the court on October 29, 2002, issued the following order:

At the October 23rd argument, all parties agreed that the court has the inherent power to engage the services of a technical advisor. The parties also agreed that the expense for the technical advisor is one the State of New Hampshire must pay and that if the advisor were forced to bring suit on the contract to recover his fees, the State would be obligated to pay any judgment.

At argument, the court was informed that the advisor's bill can be paid from the following funds: $1,976,000 currently at the disposal of the Senate; $3,601,000 currently at the disposal of the House; and $1,125,000, of which $236,276 is a specific line item for "consultants," currently at the disposal of the Joint Facilities Committee. The court was also informed that the Speaker of the House, the Senate President or the Joint Facilities Committee can authorize payment from these funds without additional action by the legislature.

Accordingly, the court will defer taking any further action in this case for a period of 14 days. The court requests that counsel provide the attached transcript of the October 23rd oral arguments to the House and Senate leadership and members of the Joint Facilities Committee. It is the courtís hope that the elected representatives of the people will decide that voluntary payment of the bill from the accounts described above serves a legitimate purpose which advances the best interest of the people and the government.

BROCK, C.J., and NADEAU, DALIANIS, and DUGGAN, JJ., concurred.

















No. 2002-0243











No. 2002-0210









APPEARANCES: John P. Kacavas, Esq.
for the petitioners in Case No. 2002-0243
Richard J. Lehmann, Esq.
for the New Hampshire Senate
Charles G. Douglas, III, Esq.
for the President of the New Hampshire Senate
Michael D. Hatem, Esq.
for the petitioners in Case No. 2002-0210
Representative Peter H. Burling
Betsy B. Miller, Esq.
for the New Hampshire House of Representatives
Christopher H.M. Carter, Esq.
for the Speaker of the New Hampshire House of Representatives


CHIEF JUSTICE BROCK: The matter is before the court this morning on the petition of Below (#2002-0243) and the petition of Burling (#2002-0210). Mr. Kacavas.

ATTORNEY KACAVAS: Thank you, Your Honor. Good morning, Your Honors. May it please the court, my name is John Kacavas and I appear on behalf of the petitioners to reiterate the position that we took when we were last here at the oral argument on the redistricting matter and that position is that because the legislature abdicated its responsibility to constitutionally enact valid legislative districts, the legislature bears responsibility for paying the costs and fees incurred by the court in standing in the legislatureís stead. Before I go any further, Your Honor, because both these arguments for all intents and purposes are one consolidated argument, because the petitioner on the Senate case, the position of the petitioners in the Senate in entirely consonant with the position of the petitioners in the House matter and Representative Peter Burling, the named petitioner in the House matter, is here with me today. Representative Burling has the most up-to-date, as of this morning, information regarding the legislative accounts from which these costs and fees could be paid. I would ask the court in the interest in putting the cart before the horse to - - for leave to yield a portion of my time so that Representative Burling can inform the court about his findings about the legislative accounts. I have made my proposal to opposing counsel who objects, for the courtís information.

CHIEF JUSTICE BROCK: All right. May we hear the basis of the objection?

ATTORNEY LEHMANN: Yes, Your Honor. The basis of the objection is simply that we came here this morning not prepared to discuss in any detail the workings of the legislative budget process. Weíre - - this is a complete surprise to us and additionally Representative Burling is not a party to this case, in either event. I agree that the issues are fundamentally the same, but thatís the basis of our objection.

CHIEF JUSTICE BROCK: Well, didnít the parties - - the Senate and the House file a joint memorandum in these cases?

ATTORNEY LEHMANN: Thatís correct. Yes.

CHIEF JUSTICE BROCK: So I think that there is a recognition that these cases overlap.

ATTORNEY LEHMANN: Absolutely, I donít contest that thatís the case.

CHIEF JUSTICE BROCK: And youíre saying that you didnít understand that one of the purposes of this hearing was for us to inquire as to how this bill could be paid.


ATTORNEY LEHMANN: Well, my understanding is that the courtís order was to answer the question, "Which party will pay it?" Not, what the - - where the money could be found if we looked in every possible location. The legislatureís not here saying that weíre - - its not able to pay the bill if the court issues an order, the money exists, thatís not the issue.


CHIEF JUSTICE BROCK: All right, do you wish to be heard Mr. Kacavas?

ATTORNEY KACAVAS: I do, Your Honor. First of all, Your Honor, Representative Burling is a party in this matter, heís the named petitioner in this matter and as counsel just conceded these matters overlap and on the issue of payment, they are identical. We are here to present the court with an argument and reasoning as to why we believe the legislature should bear the responsibility to pay the costs for the courtís technical advisor. In order to do that we need to establish for the court where these funds are coming from, how much is available and other funds that have been paid on behalf of legal counsel to the respondents in this matter. And, I think itís important for the court to kind of set the table and then permit us to argue. And, thatís why I ask that the court permit Representative Burling to provide the court with some information that I think will inform the rest of our discussion.

CHIEF JUSTICE BROCK: Mr. Douglas would you like to be heard?

ATTORNEY DOUGLAS: Well, I would object too, Your Honor. What is going to happen is something that should have - - be in front of a master. Youíre going to hear a lot of line item discussion of the details of the budgeting. I see from the handouts that theyíve given us, pages of numbers and Iím just not sure this court is the appropriate place to fact find on what line items are where. Mr. Burling is in the legislature, but we donít have folks here from the LBAís office or the legislative facilities office to respond to line item issues. I thought we were here, like in most Supreme Court arguments, on legal arguments, constitutional arguments. Now itís going to turn out that if the money is in line 43 under this code you can move it here. All that maybe true, in a cosmic sense, but it still doesnít answer the question of who should pay and whoís responsible. So, we just object to that process. If John wants to make his legal argument and our team, ours, fine. And, if the court afterwards says well, this does require somebody to just take an afternoon and haul the right people in to figure out these line items thatís fine. But, frankly, to be given this this morning, it was not provided previously, memos - - there was a deadline - - memos were provided. This morning, weíre handed a series of numbers and legislative codes. I think thatís improper. Thatís not how Iíve ever argued a case before.

CHIEF JUSTICE BROCK: All right, Mr. Kacavas, are you representing to the court that the information that Mr. Burling would give us in a preliminary manner is consistent with the affidavit that he filed and would be helpful to the courtís ultimate resolution of this matter?

ATTORNEY KACAVAS: I am, Your Honor, and in addition to that, in response to Attorney Douglasí comment, our position on this issue is no surprise. We took this position at the oral argument on the substantive issue of redistricting, weíve taken this position in filing our memorandum last week. Our position in this case is no surprise. What we are here to do is to inform the court, provide the court with information and that is exactly what we propose to do, Your Honor.

CHIEF JUSTICE BROCK: All right, weíre going to grant the motion. But, if it becomes necessary for the House or the Senate to present additional information to the court, we will consider giving them that opportunity to do that this afternoon.

ATTORNEY KACAVAS: And we certainly would have no objection to that Your Honor.

CHIEF JUSTICE BROCK: All right, weíre going to allow Mr. Burling to make his presentation and weíd like to start the clock fresh at this point.

REP. PETER BURLING: Thank you, Your Honors. For the record, my name is Peter Hoe Burling. I represent the towns of Cornish and Plainfield and Iím the Democratic leader of the New Hampshire House. Iíll move very quickly through the points I wanted to make. Iím here, I hope, to assist the court in understanding the current status of events. I stood here before this honorable bench on May 23rd and at the conclusion of some remarks, if I remember correctly, being made by Representative John Pratt, I was asked by one of the Justices what my position was as the Democratic leader relative to paying the bills incident to a redistricting case. I stood here and said that it was my position that these were legislative obligations and that the costs should be borne by the legislature. I remember the same question being directed to counsel on my left and, I want to be very clear, I do not remember that any objection was raised at the time by House counsel. Iím informed that Senate counsel had filed a written objection. But, I do clearly remember the statement being made to the bench, "Iím sure we can work this out, Your Honors." Thatís the last I heard of the whole issue. And, I should say that I understood that the court would hire experts and would proceed to incur expenses in the redistricting matter, if the legislature was unable to pass a constitutional plan. The next thing that happens, following the issuance of the courtís order, is a finance - - excuse me - - a fiscal committee meeting of the legislature on the 31st of July. I mention this just by context. At that meeting, the legislative - - joint legislative fiscal committee approved the payment of a large number of redistricting costs. Included in the redistricting costs, though not specified on the 31st , were legal fees for the Senate Presidentís counsel and the House Speakerís counsel.

CHIEF JUSTICE BROCK: May I interrupt. Did you say the fiscal committee approved this?

REP. BURLING: Joint Legislative Fiscal Committee approved this.


REP. BURLING: Iím not a member of that committee, so I wasnít present. But, I learned subsequently from the Democrat who was present that this had happened. I also learned that she had asked for a specification of charges included in that July 31st vote and that specification of charges was provided by Michael L. Buckley, CPA. Heís the legislative budget authority. That was provided to us on September 9, 2002, and I have a copy for Your Honors should you deem it to be appropriate and helpful.

CHIEF JUSTICE BROCK: We would like you to leave a copy with the stenographer.

REP. BURLING: Iíd be happy to do so, Your Honor. The question about paying for the necessary costs incurred by the court obviously became an issue in September and I would simply like to say that my position and that of my caucus remains the same. We believe this is a legislative obligation. More specifically, as I said in my affidavit, we believe that it is perfectly appropriate for the court to apportion the expense on the basis of the work that Mr. Bowers said he did. I have no reason to disbelieve and I do not disbelieve his allocation of hours between the Senate and the House. And, for my part and my caucus, I would say to the court, I think itís entirely appropriate for the House to be charged proportionate to the hours incurred. The final thing I would like to do is I would say simply that as a legislator and a citizen of the U - - State of New Hampshire, Iím entitled to review public documents relative to legislative accounts. I did so this morning and I would simply like to say, and again I have a copy of this for the court, that under the line item Joint Legislative Account Ė Consultants, that is, the number becomes apparent, but itís 1160 Subsection 046, there is a current balance in the possession of the Joint Legislative Body of $236,276.37. I would represent to the court that on the basis of what Iíve heard that is more than sufficient to cover the ordinary and necessary expenses incurred by Mr. Bowers doing what was a legislative function on behalf of the court. Finally, I would simply like to say as Democratic leader that I believe that this matter falls clearly within the power of the court to order payment and while I am painfully aware of the constraints this is placing upon the court you will have my support, for what its worth, if you issue an order directing payment and I would like to say as a legislator that I am ashamed and saddened that the chance should be taken to place the court between a rock and a hard place on this issue. We all knew when we came here that we were here because we could not politically resolve the most difficult of problems and even though there were parts of the redistricting order that made me sit down hard on the concrete, I knew at every stage of this process that it was a legislative obligation and that we owed the duty to pay. Thank you for your attention.

JUSTICE DUGGAN: May I ask a question. The line that you mentioned, Joint Legislative Accounts line, who is - - under what process is that spent? Is that the Joint Legislative Fiscal Committee can authorize expenditures from that line?

REP. BURLING: Well, under my understanding of House Rules and Joint Rules, we donít currently have a joint rules, but traditions, lets put it that way, both the Legis - - Joint Facilities Committee and the Joint Fiscal Committee should meet to approve these. But - -

JUSTICE DUGGAN: But, the approv - - Iím sorry go ahead.

REP. BURLING: But, the approval would be by the committee and in ordinary course of things, we would meet and we would say weíve got a bill to pay, weíd all say yes and the bill would get paid out of the appropriate account.

JUSTICE DUGGAN: So, those two committees are authorized by whatever process to pay out of that line without any other legislative or executive action.

REP. BURLING: Thatís my understanding. And, Your Honor I want to be very clear, at the start of the process of redistricting we did, in fact, appropriate a sum of money. That sum of money was to cover the costs, which we knew would be incurred in the redistricting process. When the re - - when the majority party in joint fiscal decided to pay the legal bills on their side of the fight they did so without enough money in the account. So, they brought in money from other accounts to the redistricting accounts to cover their costs. That becomes apparent when you review this other document Iíll make available to you. And that is, the definition by Mr. Buckley of what happened regarding redistricting expenses. So, they brought in $20,000 additional dollars to that account so they could cover the cost of their own counsel. There is, at least according to this record, a continuing balance in that account, but not enough to cover the $80,000 expenditure. The point is, it would take next to nothing in terms of legislative effort to get the money in the right place to pay the bill.

CHIEF JUSTICE BROCK: Are -- is it required under the rules that there be a meeting of these two committees in order to approve transfers in these accounts and expenditures?

REP. BURLING: That has always been the rule.

CHIEF JUSTICE BROCK: And, do you know at this point whether there are minutes of these meetings?

REP. BURLING: The only things I have are the September 9, 2002 letter from Mr. Buckley, which detailed all of the items in the redistricting expense, which was paid on the 31st of July. And, in addition to that, I have this document, which is part of a regular monthly statement to the Joint Fiscal Committee of the Stateís financial situation and in specific the legislatureís financial situation. And as I say, I believe these documents are public documents. I just walked down to Mr. Buckleyís office this morning and asked for them.

JUSTICE DUGGAN: Can I ask you a couple more questions too? Can you give us a ballpark figure as to how much the legislature has paid out of this account for outside legal fees?

REP. BURLING: Iíd be delighted to give you that figure. The specifics, I donít have an adding machine before me - -Iíve got - -

JUSTICE DUGGAN: Ballpark figure.

REP. BURLING: Ah, $9,300 to McLane; Douglas, Leonard and Garvey $15,000; Hinckley Allen $18,000. Those are the three payments out. The total of that would be 30, ah, 40 something.


JUSTICE DUGGAN: One other question. What other kinds of expenses associated with the redistricting process came out of these accounts besides legal fees, can you just characterize them in a general way?

REP. BURLING: Yes. All of the rest of the material in this list of debits from the account is very traditional redistricting stuff. The first two items, Caliper Corporation. We bought software for both sides. So, we paid Caliper Corporation both for the software application itself and the licenses to use it. And then, training, tuition because we sent House staffers to learn how to run the programs.

JUSTICE DUGGAN: Thatís the kind of software you use for the redistricting to figure out the votes.

REP. BURLING: Thatís exactly right, Your Honor. There are three items from my Chief of Staff Mr. Todd Quinn. He went to - - this is a travel expense. He went to Newton, Mass to cover training. Youíll see a large number here - - these are just travel expenses. The House decided that it would put on a road show and it would take its redistricting plans to each of the counties. And, what you see are reimbursements of staffers and reps. from both sides of the aisle going to these various items. But, but these expenditures are all in the nature of $30, $20, $40 for mileage.

CHIEF JUSTICE BROCK: Approximately, how much was expended for consulting and software?

REP. BURLING: Well Caliper was nearly $8,000, travel expenses look like a couple of thousand maximum. We started with $45,000 -- that was the appropriation we passed for ourselves to do this. We had $22,000 left by the time we got to paying legal fees for the majority party. The other thing I would just, if I may Your Honor since you asked the question. In summary, the Senate has available to it as of today approximately $1,976,000. The House has available to it $3,601,000 and the Joint House and Senate have available to them $1,125,000. But again, since we have a joint item for consultants with more than $200,000 in the account, it seems to me we have plenty of funds available. Thank you, Your Honors.


ATTORNEY KACAVAS: Thank you, Your Honor. I would simply like to echo all of what Representative Burling said and just add a few additional comments. First of all, Your Honors, while I did have the privilege and the honor of representing petitioners Clifton Below, et. al., the Senate Democrats in this matter, I did have the misfortune of representing the minority party and, therefore, I derive no financial benefit as opposing counsel did from this fiscal committee account.

CHIEF JUSTICE BROCK: Have you considered requesting fees?

ATTORNEY KACAVAS: I have not done that, Your Honor, because I truly believe that this is - - this comes first to be quite honest with you. Weíve got to deal with this first and my fees have been put off Ďtil later and Iím just trying to represent my clients to the best of my ability and resolve this matter. What I would say to the court regarding payment is that we were forced to come to this court seeking declaratory and injunctive relief. In joining the opening of the filing period for Senate candidates and declaring that the existing Senate Districts were unconstitutional and in granting that relief this court was performing, unquestionably, a judicial function. But, I believe the courtís role changed over the course - - as this case developed over the course of time. This role - - this courtís role changed from one of a judicial role to a legislative role. We have from day one taken the position that the legislature constitutionally delegated to redistrict, abdicated its responsibility. Quite to the contrary, the respondents have taken the position that this is a judicial usurpation and that is quite clear at page 9 of their memorandum where they say, "It is difficult to imagine a more intrusive usurpation of legislative authority than a judicial branch expenditure of funds from an appropriation specifically made to the legislature for legislative purposes." But, that ignores the fact that this court was performing a legislative function, reluctantly albeit. In the case of Connor v Finch a 1977 Supreme Court case that was quoted throughout our pleadings in this case and throughout the oral argument, the United States Supreme Court observed that a court is left with the unwelcome obligation of performing in the legislatureís stead when the legislature fails to enact constitutionally valid redistricting plan. This court acted in the New Hampshire Legislatureís stead, therefore funds appropriated for legislative purposes are properly payable to this court to pay the costs incurred by this court for performing the legislative function. And thatís all I would say unless the court has any further questions. Thank you.


ATTORNEY LEHMANN: My nameís Richard Lehmann, I represent the New Hampshire Senate. Good morning. I guess the first thing I have to say is that I have to take issue with my friend Attorney Kacavasí characterization of the legislature abdicating its responsibility in this case. The legislature passed redistricting bills. Those redistricting bills were vetoed. The Governor has constitutional authority to veto thatís fine but to then to throw it back at the legislature and say that the legislature somehow failed to perform strikes me as unfair. The petitioners state that they did -- they had no choice but to come to this court, that there was absolutely no choice whatsoever but to come here. I submit thatís not exactly true, in fact, itís the petitioners in this case who forced the issue, excuse me, by failing to override the Governorís veto.

CHIEF JUSTICE BROCK: Well, is that completely accurate Mr. Lehmann? If nothing happened this session to redistrict so it never became law and so what existed was the old redistricting system, and I assume thatís what you would have gone forward with or tried to go forward with, absent something passing this session of the legislature. And their Petition for Declaratory Judgment sought a ruling that the existing system was unconstitutional under both the Federal and State Constitutions. Isnít that true?

ATTY. LEHMANN: Yes and no, I guess I disagree with the proposition that somebody at any point really planned to go forward with the existing plan. It was, clear in 1982 from Monier v Gallen that this court was going to step into the breach if one existed and, because of that, there was never any real doubt as to the fact that redistricting would occur was only a question of how it would be done and I, by suggesting as I did earlier, that there are -- there were three specific actions that caused there to be no redistricting plan adopted as law. One by the legislature passing law, one by the Governor vetoing it, and one by the minority party failing to override the veto. I donít quarrel with anybodyís decision that they made in that regard.

CHIEF JUSTICE BROCK: How would the election have gone forward absent something that the Governor, the House and the Senate agreed upon?

ATTORNEY LEHMANN: I donít think it would have, I think there would have been a judicially-created redistricting plan. Frankly and I donít, this is not a derogatory statement that Iím making about the court or anybody else but I think that had it not been clear that the court would step in, the likelihood of there being agreement would have been greater. Because

CHIEF JUSTICE BROCK: Itís not your -- itís not your position that it was judicial usurpation of legislative responsibility for this court toÖ

ATTORNEY LEHMANN: To formulate a redistricting plan?


ATTORNEY LEHMANN: No, my the my -- language about usurpation of legislative function at this point in the proceeding has to do with the appropriation authority and the prospect of the court ordering the legislature to appropriate funds to the court.

CHIEF JUSTICE BROCK: Would you agree that we were performing a legislative function?

ATTORNEY LEHMANN: No, I believe you were performing a judicial function, it was the fact that it was a judicial function that created jurisdiction in the first place. If it were truly a legislative function then it would have been performed in a legislative function. Now I do think that this is probably one of those areas that have been discussed in the courtís opinion in which there is overlap. But I donít think that every time that thereís going to be overlap in the functions of the branches of Government that those branches should then be looking to each other for payment for associated costs. The Executive Branch performs judicial functions every day at administrative hearings. But, I think it would be inappropriate for them to look at the court for funding because theyíre performing judicial function. I think that that overlap is part of whatís anticipated by the constitution, the constitution itself contains some very literary, well thought, language concerning the ties that bind the three branches of government together. But, I do think itís inappropriate for the court to issue an order compelling the legislature to appropriate, effectively appropriate money to the court.

JUSTICE NADEAU: Mr. Lehmann, I have a observation and a question. Iíve been a full-time judge since 1981, the Superior Court and the Supreme Court. Prior to that, I was 13 years as a District Court Judge, part-time. In all that time, this is the most disappointing hearing at which I have ever been present. The question I have for you is this. There is no question that at least you admit this was a judicial function, you concede it was a judicial function. Your argument seems to be that there is judicial money and that there is legislative money. And that the judiciary shouldnít order the legislative money to be spent. It seems to me what we are talking about is the peopleís money. Everybody knows this bill was properly incurred, everybody knows this bill is going to be paid, everybody knows this bill is going to be paid by the peopleís money. The question I have for you is, what is the purpose that is being served here by the refusal to pay the peopleís bill, by the peopleís money in a way that doesnít bring two branches of government, the leaders of which are either here today or represented by counsel into a conflict which shouldnít be necessary. Could you answer that question for me please?

ATTORNEY LEHMANN: The reason itís necessary, I submit, is that is the same reason that its been necessary for the court to protect its own prerogatives and rights relative to separation of powers. The proposition advanced by the notion that the court would order the legislature to pay funds to the court in this instance strikes at the very core of the legislative function, which - -

JUSTICE NADEAU: What you - - you and the leaders know that the one thing the court does not want to do is to order the legislature to pay the funds, you know that. You also know that the funds -- the bill is going to be paid and is going to be paid by the peopleís money. If your suggestion is that somehow the court spent money that it doesnít have or money that is being spent to serve the people in the court system, if thatís your proposal and the proposal is that then the court somehow go back to the legislature to seek reimbursement, then what youíre saying is that its possible for the legislature to refuse reimbursement and somehow that the peopleís money that should be spent on the peopleís obligation wonít be spent. And, why does this have to be a conflict? Why does this have to be a confrontation? Why does this have to be a turf battle, when the money is there, the money was spent for the people, it saved the towns and cities from having to have another election and everybody was doing the peopleís work? Doesnít it make sense for there to be a way to do this without people having to urge each other to the limit?

ATTORNEY LEHMANN: I guess I would answer that in two parts. In the first part, I canít agree more that this is the peopleís money. But, in the constitutional scheme of things itís the legislature, the branch of government that is in fact closest to the people thatís responsible for appropriating funds and has the tightest control over those appropriations. And the second part, I donít know what the current state of the courtís budget is, but my understanding from the Legislative Budget Assistant is that in the last four fiscal years the court has allowed to lapse over a half of million dollars in each of those years. So, I donít mean any disrespect to the court when I say perhaps the question should be turned around. If the money is otherwise going to lapse back to the legislature why is it necessary for the judicial branch - -

JUSTICE NADEAU: Well, let me tell you a little about that, Mr. Lehmann. The court is keeping now vacant 52 positions that are supposed to be there to serve the people. They havenít filled something like 49 or 50 new positions. Judge Kelly has cut 10% of the money to be used for per diem judges so that people in the District Courts can get quicker hearings there. The court also, the Probate Court, has cut funds for per diem judges in the Probate Court. We have kept vacant 1 Ĺ Marital Masterís positions, positions which are serving people in serious domestic relation cases. The Superior Court has cut jury trials for two counties. We have laid off 66 part-time security people. Weíve taken reduction from equipment lines. The point is not where and who has the most money. My concern is that this is a legitimate bill and itís a bill that should be paid by the peopleís funds and it shouldnít cost the people in other services to pay those funds. And, it would seem to me that there would be the same ease to pay this bill as there was to pay legal expenses without question, legal fees and expenses without question for one side, for a side that was urging us to keep in place an unconstitutional law. I donít understand why the confrontation is necessary. Itís very troubling to see that it is necessary.

JUSTICE DALIANIS: Relative to the lapse, Mr. Lehmann, it sounds like a lot of money. But, when you look at the budget figures and you consider that itís spread over many different lines and we werenít allowed to over spend those lines so we had to under spend them and in the end that meant that there was a little money in a number of lines to turn back and it all added up to half a million dollars. It does not - - itís not an easy answer to our budget problems and I donít expect you to be particularly sympathetic to them. The problem is, that I agree with Justice Nadeau, the last thing the court is interested in doing is ordering the legislature around. Weíve never wanted to do that, we tried to stay out of redistricting. We had to incur this expense. We incurred it, and in order to get it paid from our funds, we have to go to the legislature and get permission to take it out of a line that is otherwise already used up. So, I gather that the position of the Senate, at least, is we could pay it, we donít want to pay it and we think that thatís fair. Is that kind of the bottom line?

ATTORNEY LEHMANN: I donít think that exactly summarizes the Senateís position.


ATTORNEY LEHMANN: I think itís true that the Senate could pay it. I think that Iím not in a position to comment upon whether or not the Senate would vote to pay it, if there was a request for a supplemental appropriation. Obviously, I donít get a vote in those things so I canít comment about that.

JUSTICE DALIANIS: Was there any problem in getting the lawyerís fees paid? Did the Senate have to vote on paying outside counsel?

ATTORNEY LEHMANN: I donít believe so.


ATTORNEY LEHMAN: I guess I donít understand exactly the relationship of the legal fees to the question before the court and I didnít come prepared to address the question.

JUSTICE DALIANIS: You donít see that as a redistricting expense?

ATTORNEY LEHMANN: The question is whether itís a legislative expense. And, I donít know that itís a legislative expense for people to come to court. The people came to court happened to be senators and representatives, but thereís no need for that to be the case. Any voter in the State would have had standing to bring the matter before the court. So, wha - - the extent to which the lawyers agreed to represent them incurred attorneyís fees doing that is anybodyís guess. I donít think that the appropriation to the legislature for legislative purposes authorizes the administrative actors within the legislature to pay court - - to pay costs incurred by the expense. Costs incurred by the court, excuse me. Justice Nadeau made a - - effectively, a very strong argument in favor of what the courtís budget should be. But again, that is a question for the entire legislature to take up.

CHIEF JUSTICE BROCK: Let me ask, I have two or three questions. Letís assume that this process had cost us - - there had been more time involved, rather than the urgency with which we addressed it -- and it cost the judicial branch three million dollars and it was all legitimate expense necessary to redistricting, other Stateís that would certainly be a reasonable figure. Is it your position that the court would have to defer considering redistricting a State until the legislature appropriated three million dollars for it to do so?

ATTORNEY LEHMANN: No, my understanding of the way the process is designed to work is that the court approaches the legislature with an appropriation request necessary to perform all judicial functions for the biennium. The legislature may or may not appropriate what you think is necessary, but the courtís responsibility is to do the best it can within the limit. And, the court has to prioritize whether it thinks that redistricting is sufficiently important to go - - to go to the front of the money list and I submit that if you made the decision that it was youíd be making the right decision.

JUSTICE NADEAU: So, if the Superior Court has a capital murder trial and the legislature is not in session and they have to spend five times what is expected for a trial, they canít do that without legis - - until they get the money from the legislature?

ATTORNEY LEHMANN: I think that the Superior Court should be prepared to handle all the things that the law permits to be brought before it, including a capital murder trial.

JUSTICE DUGGAN: So youíre saying - -

JUSTICE NADEAU: I hope youíll appear and support us the next time there is a budget, that there should be some kind of contingency fund added to the court system budget to provide for all contingencies.

ATTORNEY LEHMANN: I think that would be very appropriate thing for the judic - -

JUSTICE NADEAU: Why donít you give me your address (laughter in the court) and Iíll put you on the list of people to appear.

CHIEF JUSTICE BROCK: So, youíre representing both the House and the Senate arguing here this morning?

ATTORNEY LEHMANN: Formally, itís my understanding, that the arguments are broken into two parts. I think it might make sense to bring everyone before the court - - the arguments are the same on both sides - -

CHIEF JUSTICE BROCK: I donít understand what youíre telling me. We anticipated that somebody would be here to represent the House and the Speaker.


CHIEF JUSTICE BROCK: Are they here to - -

ATTORNEY LEHMANN: Itís my understanding that theyíre here prep - -

CHIEF JUSTICE BROCK: - - participate in oral argument?

ATTORNEY LEHMAN: - - yes. When we came in this morning Justice Brock, Clerk Fox informed us that we would be going one after the other, not all at the same time.

CHIEF JUSTICE BROCK: Oh, I see, okay Iím sorry. Before we let you go, do I understand that itís, at least the Senateís position, that the judicial branch has authority to spend money from its appropriation to pay this bill?


CHIEF JUSTICE BROCK: And, one further question, just so thereís no doubt. The money is available in these accounts that have been referred to. But, the House and the Senate for reasons of their own have decided not to appropriate funds for this purpose.

ATTORNEY LEHMANN: Appropriate - -

CHIEF JUSTICE BROCK: Allocate funds.

ATTORNEY LEHMANN: - - to pay the - - not to - - umí yes.

JUSTICE NADEAU: Well, excuse me. Itís not exactly the House and the Senate, itís the members of the Joint Committee, isnít that right? The members of the Joint Committee have authority to spend funds from that committee for what they might consider to be redistricting expenses. Is that correct?

ATTORNEY LEHMANN: Legislative purposes.

JUSTICE NADEAU: Well, okay. But, they have the authority if theyíre persuaded that this was a legitimate expense for redistricting. Itís not the Senate and not the legislature. Itís not the 400 legislators and the 24 senators, itís the members of this Joint Committee.

ATTORNEY LEHMANN: There are funds that are available at the discretion of those committee - - of those - -

JUSTICE NADEAU: Do you know, are you able to tell us on the record or has Mr. Burling provided us with the names and titles who serve on the Joint Committee?

ATTORNEY LEHMANN: Thatís a matter of public record. I donít have the --

CHIEF JUSTICE BROCK: Thank you, Mr. Lehmann.

ATTORNEY DOUGLAS: It think the House is ready, Your Honor. I donít have a separate argument.

CHIEF JUSTICE BROCK: Alright. Thank you. I must confess that weíre not clear what the order of presentation was going to be in the House case. But, I will assume it will be, the petitioners who will go first unless youíve agreed otherwise. Mr. Hatem.

ATTORNEY HATEM: May it please the court, Your Honor. My name is Michael Hatem, I represent Peter Burling and the Democrats in this matter. I donít want to reinvent the wheel, and I completely concur with the arguments brought forth by Mr. Burling and Attorney Kacavas this morning. I would simply like to add, that I believe we all can agree that we got here, with the previous briefs because the court was acting - - providing a jud. - - legislative function. Redistricting is clearly a legislative function. The court cases cited in our earlier briefs and our original petition all stated that if the court was going to step into this matter, it was going to be providing a legislative function. Ultimately, the court had to provide that function. This court redistricted the State of New Hampshire because the legislature was unable to. The reason it was unable to, was because there was a gubernatorial veto. Itís irrelevant how - - why the legislature failed to provide a redistricted law. The fact is, the legislature did fail and the court had to act legislatively. We believe the court has authority to award - - or to have the legislature pay Mr. Bowersí fees from the Claremont III decision, 144 N.H. 590. In that case, this court stated, "To award attorneyís fees in such a suit to a plaintiff who has succeeded in establishing a cause of action is not to saddle the unsuccessful party with the expense, but to pose - - impose them on the class that has benefited from them and that would have had to pay them had it brought the suit." Fairly, Mr. Bowersí fees arenít attorneyís fees. But, the rational behind Claremont III applies. The citizens of the State of New Hampshire benefited from having a constitutional redistricting plan. Had the legislature done it, it would have had to impose - - had to have paid those costs. This is the peopleís money. There was Ė it is an important constitutional right. Clearly, no constitutional right is more important than the right to vote. And, Mr. Bowers was acting as an advocate for the State of - - Citizens of the State of New Hampshire in imposing a constitutional plan for redistricting the State. A plan the legislature was incapable of proposing. And, therefore, the court acting, as the legislature, imposed the costs. These are legislative costs. As you have heard this morning from both sides, there is money in the Joint Fiscal Committee to pay these costs. My understanding is the committee can be called -- called back into session at the call of the Chair and this vote can occur in short order. The whole entire Senate and House does not have to come back into session. Therefore, we believe that this is a proper cost for the legislature and we believe its supported by Claremont III as well as a previous case, as Attorney Kacavas noted, Finch v. Conner and thatís all I have.



ATTORNEY MILLER: Good morning. May it please the court, I am Betsy Miller and I represent the House of Representatives. This is a difficult place to be right now. We feel the same way you do about this and setting up this kind of confrontation is really not good for either branch. But, I guess I want to answer some of your questions again about some of the details about how the legislative budget functions, how these two committees, the Fiscal Committee and the Facilities Committee, function because I think thereís some misunderstanding about how spending occurs in -- out of the legislative budget. The Legislative Fiscal Committee did not approve payment of the legal fees. They have no jurisdiction whatsoever over the legislative budget. The Legislative Facilities Committee, which is made up basically of leadership of the Senate and the House and of both parties has jurisdiction over the legislative budget. They make personnel decisions, they do raise decisions, hiring decisions. The Speaker and the President have authority to spend out of the lines that have been established in the legislative budget, which, as your budget does, goes through the whole budget process from the House Finance Committee to the Senate Finance Committee and to both bodies. And, itís set so that appropriations are itemized by line and the Speaker and the President can make - - can spend out of lines that are specifically appropriated for legislative purposes.

CHIEF JUSTICE BROCK: May I ask you a question Ms. Miller. Weíve been told that the Senate has $1,976,000 remaining, the House $3,601,000. Is it true or not that, with respect to those funds, it doesnít require action by the Joint Facilities Committee that each body of the House can decide, or the leadership of each body of the House can decide how that moneyís spent?

ATTORNEY MILLER: That is true.

JUSTICE DALIANIS: And, they donít want to spend it on this bill. I take it thatís your bottom line.

ATTORNEY MILLER: The position of the House, as I am here to present it today, is that the expenses of Bobby Bowers were not a legislative expense. We continue to believe that that was a judicial expense in all its characteristics.

JUSTICE DALIANIS: And notwithstanding that belief, and though there might be differences of opinion about it, they arenít even willing to pay the bill in the spirit of good will. We donít have the money. You folks apparently do. And Iím just trying to figure out why the House and Senate leadership think this is fair.

ATTORNEY MILLER: I donít think itís a question of whether we have the money or you have the money. If it was a $2000 bill, I think that weíd be in the same position weíre in now.

JUSTICE DALIANIS: And, you think thatís fair?

ATTORNEY MILLER: I canít answer whether I think thatís fair or not. I think that what the House is doing is saying, theyíve determined itís not a legislative expense.

CHIEF JUSTICE BROCK: Do you agree that itís a legal issue as to whether this is a legislative expense or a judicial expense?

ATTORNEY MILLER: I think itís more of a factual issue, actually. I think in the way that the court handled the hiring and the utilization of the technical advisor.

CHIEF JUSTICE BROCK: But, itís a decision for the court to make ultimately.

ATTORNEY MILLER: Youíre ultimately here to make that decision today.

CHIEF JUSTICE BROCK: And, if this court were to make the decision that this was a legitimate judicial expense or legislative expense, whichever we determine, I assume that your recommendation to your clients would be that they recognize that decision.

ATTORNEY MILLER: I think my recommendation to my client would be confidential. I would follow all ethical guidelines that Iím subject to and - -

JUSTICE NADEAU: Can I ask you a question, and this is not something that Iíve discussed with my colleagues: But, if we were to say that weíre not going to issue an order in this case for two weeks or 30 days to give you the opportunity to take the tapes of this argument to whoeverís in charge, whether itís the leadership or whether itís the Joint Committee, so that they can hear the arguments here, the questions here first hand, so that they can assess the depth with which we are trying to avoid this confrontation. So, that they can decide whether as a matter of comity or whether as a matter of decision making, after hearing those tapes and after hearing what was said by everybody here, that they might either reconsider or decide that to pay the peopleís bill with the peopleís money is the right thing to do for the people, for the government and for the branches of government. Is that something that you would recommend and would be willing to do?

ATTORNEY MILLER: I would certainly be willing to do that.

JUSTICE NADEAU: Alright, thank you.

JUSTICE DUGGAN: If Mr. Bowers remains unpaid for a period of time and sues and obtains a judgment on the amount that he is owed with interest, I assume, the State would pay the judgment.

ATTORNEY MILLER: I assume that would occur.

JUSTICE DUGGAN: How would you pay it?

ATTORNEY MILLER: I think, probably, the Attorney General would be handling that one. So, I canít really answer that.

JUSTICE DUGGAN: But, thereís no doubt that youíd pay the judgment?

ATTORNEY MILLER: I believe the judgment would have to be paid.

CHIEF JUSTICE BROCK: With attorneyís fees and interest.


CHIEF JUSTICE BROCK: Well, I interrupted you and itís turned into a lengthy interruption with questions. But, if you want to complete your remarks, weíd appreciate it.

ATTORNEY MILLER: I just have one more concern that I want to express on behalf of the House and perhaps itís why the House is so adamant in characterizing the technical advisors expenses as a judicial expense. And that is, that we believe that redistricting is a very public matter and we did have some concern at the time that the - - everything thatís surrounding Bobby Bowers was done in-camera and confidentially, as you have the right to do. But, there was some concern and I think it was expressed even by the petitioners at one point, that before an order - - a redistricting order -- plan became final, that the parties would have an opportunity to have some input in that. And, so that that would make it a more public matter. And, as you know, the House is subject to the right-to-know law, we do everything in public and thatís a concern of the characterization of the expenses of the technical advisor and how he - - and how you worked with him.

JUSTICE NADEAU: Of course, the Secretary of State and all the town selectman were screaming bloody murder that if we didnít hurry up and get this decision out theyíd have to have two elections, theyíd have to spend millions of dollars and that certainly was some consideration.

ATTORNEY MILLER: But, conceivably, as other courts do - - take up redistricting, there are instances in which the fact-finding is done in public. The parties had experts, we had people familiar with the software and familiar with the numbers, all sides did that could have come before you and created plans that you wanted them to create.

CHIEF JUSTICE BROCK: Did the House object at the time to the appointment of Mr. Bowers?

ATTORNEY MILLER: No, absolutely not. But, because the court is - - can - - you have the inherent authority to appoint such a technical advisor.

CHIEF JUSTICE BROCK: You had an opportunity to object to his appointment, but you didnít.

ATTORNEY MILLER: Thatís right. But, weíre now objecting to - - we - - we still donít object to your inherent authority to have a technical advisor as a judicial expense. That - - we donít object to that.

JUSTICE DALIANIS: Relative to the public nature of the fact finding counsel, I think that no group more than the court would have been happy to have more time - -


JUSTICE DALIANIS: - - so that such a process could have played out publicly. But, if - - Iím sure you do recall, we were left with a window of about this wide to deal with the problem and felt there was no other way to approach it.

ATTORNEY MILLER: Yes, I understand.

CHIEF JUSTICE BROCK: Finally, I wanted to ask a question I asked of the Senate. Is it the position of the House that this court usurped legislative responsibilities when it engaged in the redistricting process.

ATTORNEY MILLER: Absolutely not. Thank you.

CHIEF JUSTICE BROCK: Is there anything further? If not, the matter - JUSTICE DALIANIS: Mr. Carter.

ATTORNEY CARTER: I have nothing further to add.

CHIEF JUSTICE BROCK: Okay, sorry I didnít mean to overlook you. Weíll be in recess. Thank you.