This Memorandum is filed by and on behalf of lawyers who are former Attorneys General of New Hampshire or former Assistant Attorneys General in the Office of the Attorney General (the "former members of the Office").
By Order dated May 6,2011, the Court invited interested parties to file memoranda on the request by the Senate in Senate Resolution 9, for an opinion of the Justices on the question of the constitutionality of the requirement in House Bill 89 ("HB 89" or "the "Bill") that "the attorney general move to join the State of New Hampshire as a plaintiff in the lawsuit" challenging the constitutionality of the federal Patient Protection and Affordable Care Act ("PPACA") Pub.L. I 11-148, 724 Stat. 119. HB 89 provides as follows:
The attorney general shall, no later than July 1,2011, move to join the state of New Hampshire øs a plaintíff in the lawsuit pending in federal court captioned State of Florida et al. v. United States Department of Health and Human Services et al.
(Emphasis added.) As is apparent from this language, HB 89 mandates that the Attorney General proceed in a particular lawsuit challenging the constitutionality of the PPACA and that he proceed in a specific manner, that is, as a plaintiff asserting the claims and making the arguments raised on the plaintiffs' side of that lawsuit.t It requires him to take a legal position on behalf of the State regardless of his judgment (as the lawyer charged by the State Constitution with representing the State's interests) about the merits of the PPACA, about the positions taken in the Florida lawsuit, or about the wisdom of appearing in that particular lawsuit with its particular array of plaintiffs. Put simply, the Bill removes the ability of the Attorney General to act in his capacity as the State's lawyer, stripping him of his right and duty to exercise his judgment or discretion in determining the legal and constitutional positions that may be taken in good faith on the State's behalf.
The former members of the Office submit that HB 89 violates the New Hampshire Constitution in two ways. First, it is fundamentally inconsistent with the responsibility and authority of the Attorney General granted by Part II, Article 46 of the New Hampshire Constitution to act as the attorney general for the State. As the State's lawyer, the Attorney General is both empowered and obligated to act for the State in legal matters and to exercise his or her own judgment about the claims or arguments that may reasonably be made in litigation. Second, it is an unconstitutional intrusion by the Legislature on the essential functions of the executive branch of which the Attorney General is a member, in violation of Part I, Article 37 of the Constitution. I. Interests of the Parties to this Memorandum
The lawyers named in this Memorandum either served as the Attorney General (Rudman, Rath, Smith, Merrill, Mclaughlin and Heed) or served as an Assistant Attorney General under one or more of eleven Attorneys General (Rudman, Souter, Rath, Smith, Merrill, Arnold, Howard, Mclaughlin, Heed and Ayotte). Collectively, their tenure in the Office spanned the administrations of nine Governors (Peterson, Thomson, Gallen, Sununu, Gregg, Merrill, Shaheen, Benson and Lynch). They are members of different political parties and likely have different views on the constitutionality, or wisdom, of the PPACA.2 Yet they share one coImmon interest: an interest in the ability of the Attorney General to enforce the laws of this State by exercising his or her ethically broad professional judgment without political dictation when acting as the State's lawyer.
Their interest may be most simply stated as follows: under the State Constitution the Attorney General is the Attorney General. He or she is obligated to act as a lawyer and must have the authority and retain the obligation to do so, consistently with the ethical constraints and responsibilities that every lawyer is bound to honor. The lawyers submitting this memorandum believe that if political considerations are permitted to mandate or materially limit the exercise of the Attomey General's judgment as a lawyer, law will be subordinated to the political forces of the moment, and the ability of the Attorney General to perform the essential functions of the Office mandated by the Constitution would be substantially undermined. Their concern is that the Attomey General be able to perform those functions free from political coercion as the framers of the New Hampshire Constitution intended. This memorandum is addressed to that concern. II.
HB 89 mandates that the Attorney General challenge the constitutionality of a specific federal law in a particular manner. If HB 89 were constitutional, then it would follow that the Legislature would have the power to order the Attorney General not to challenge the constitutionality of that same law (or any other law) or to order the Attorney General to conduct those challenges by filing briefs or legal memoranda written by the Legislature. The issue presented by HB 89 may be framed as follows: can the Legislature require that the Attorney General discharge his constitutional obligation to act as the lawyer for the State in legal matters by taking particular legal positions? The former members of the Office submit that it may not. The essential role of the Attorney General is to perform his or her constitutional duty by acting as an attorney on behalf of the State and its interests - that is, to use legal judgment on matters of law. HB 89 is contrary to the exercise of the Attorney General's independent and constitutionally-grounded authority in Part II, Article 46 of the Constitution because it requires him or her to act without the ability to exercise independent legal judgment. The Bill is also an intrusion by the Legislature into an essential executive power and thus violates the Separation of Powers guarantee of the New Hampshire Constitution, Part. I, art.37.3
A. Violation of the Attorney General's Constitutional Powers in Part II, Article 46
Question 3 of Senate Resolution 9 asks whether HB 89 violates a provision of the Constitution other than Part I, Article 37. The former members of the Office submit that it does, since it is contrary to the authority and duties inherent in the constitutional office of the Attorney General as created by Part II, Article 46. In executing those powers and duties, the Attorney General must act within the sphere of action that may be taken in accordance with the good faith legal judgment of the State's lawyer, and indeed, only act in this way.4 He or she must be free to exercise the sound legal discretion and judgment required of all lawyers. New Hampshire's Attorney General is a constitutional State officer, subject to the nomination and appointment powers of the Governor and Council. N.H. CONST. pt.II, art.46; see also Opinion of the Justices,l l5 N.H. I59,16I (1975) (explaining that "the constitution provides for certain constitutional state offrcers," including the Attomey General). The existence of the office and the power to appoint its incumbent therefore lie beyond the reach of the Legislature. See id. The powers of the Attorney General in fulfilling this constitutionally mandated role are"broad and numerous." State v. Swift,l01 N.H.340,343 (1958). Some were incorporated from the common law, while others are specified by statute. Id; see also Eames v. Rudman, I 1 5 N.H. 91, 92 (197 5) ("The Attorney General has been held to have broad common law powers"); RSA 7:6 (cbargSng the Attorney General with representing the State in all causes in the New Hampshire Supreme Court "in which the state is interested."). However, to the extent that the Legislature may assign specific statutory duties to the Attorney General, they "in
no way detract from his powers and duties at common law." Swift, 101 N.H. at343 (citing Fletcher v. County,7l N.H. 96, I02 (1958)); see also Attorney General v. Rochester Trust Co.,
1 15 N.H. 74,76 (1975); Bokowsþ v. State, I 1 1 N.H. 57 , 58 (1971). The development of the Attorney General's common law duties predate the drafting of
this State's Constitution, and it is well understood that these duties encompass a broad authority to represent the State's interest and the legal discretion to carry out that authority effectively and efficiently: The office of attorney general is older than the United States . . . . As chief legal representative of the king, the common law attorney general was clearly subject to the wishes of the crown, but, even in those times, the office was also a repository of power and discretion; the volume and variety of legal matters involving the crown and the public interest made such limited independence a practical necessity. Transposition of the institution to this country, where governmental initiative was diffused among the officers of the executive branch and the many individuals comprising the legislative branch, could only broaden this area of the attorney general's discretion.
State of Fla.exrelShevinv.ExxonCorp.,526F.2d266,268(SúCir. 1976);see also State v. Lead,951 A.2d 428, 470-71 (R.I. 2008) ("The office of the Attorney General is an ancient one . . . [that] was transported to America in the early days of the established government in the colonies as part of their English derived common law."); People v. Miner,2 Larc. 396,398 (N.Y. App. Div. 1868) ("Most, if not all, of the colonies appointed attorney-generals, and they were understood to be clothed, with nearly all the powers, of the attorney-generals of England," including the duty to "prosecute all actions, necessary for the protection and defense of the property and revenues of the crown.").
Sharing this common history, jurisdictions throughout the United States recognize that the Attorney General maintains exclusive authority over, and discretion in, litigation involving the State. As this Court has previously said, "the Attorney General . . . [has] broad authority to manage the state's litigation and to make any disposition of a case which he deems is in the state's best interest." Opinion of the Justices,l l7 N.H. 393,396 (1977); see also Feeney v. Commonwealth,3l3 Mass. 359,365 (1917) (explaining that the Attorney General has "[t]he authority. . . to assume primary control over the conduct of litigation which involves the interests of the Commonwealth."); Superintendent of Ins. v. Attorney General, 558 A.zd 1197, 7199-1200 (Me. 1989) (stating that the attorney general may "institute, conduct, and maintain all such actions and proceedings as he deems necessary for the enforcement of the laws of the State, the preservation of order, and the protection of public rights.") (Emphasis added).
inherent in this authority is the ability to decide whether to commit the State to litigation and, thereafter, to exercise control over the course of such litigation. See, e.g., S.rfr,101 N.H. at 343; see also Lead,95I A.2d at 473 ("It is vital that the Office of the Attorney General have absolute control over the course of any litigation originating in that office."); Secretary of Admin. and Finance v. Attorney General,367 Mass. 154, 158-59,163 (1975) ("[T]he Attorney General . . . has control over the conduct of litigation involving the Commonwealth."). As evidence of the discretion vested solely in the Attorney General to represent the state, the Attorney General's
judgment in connection with litigation cannot be delegated to the control of outside counsel; "rather, it is the outside counsel who must serve in a subordinate role." Lead, 951 A2d at 473, 476 (citing (Inited States v. Cox,342F.2d 767, Ig21Sú Cir. 1965)).
In passing HB 89, the House of Representatives would strip the Attorney General of the legal discretion and broad authority to evaluate the State's legally reasonable options, as inherently vested in the office by the Constitution. To permit the Legislature to exercise total control over the actions of the Attorney General, in contravention of the traditional role of the Office as understood by the drafters of the State's Constitution, would diminish the constitutional authority of the Office to whatever level the politics of the day might choose to leave for it. This is not what the framers intended; by vesting the power to nominate and appoint the Attorney General solely in the hands of the Governor and Executive Council, the drafters demonstrated an intent to place the Office and the common law authority and obligation it comprises beyond the control of the Legislature.6 Indeed, because the Attorney General has the independent constitutional authority he exercises his authority beyond even the Governor's pleasure.
Question 3 - whether HB 89 violates a provision of the Constitution other than Part I, Article 37 - should be answered in the affirmative.
B. Separation of Powers
Question 1 of Senate Resolution 9 asks whether HB 89 violates Part I, Article 37 of the New Hampshire Constitution. The New Hampshire Constitution, like that adopted in MassachusettsT (and drafted by John Adams), includes a specific provision concerning the Separation of Powers:
In the government of this state, the three essential powers thereof, to wit, the legislative, executive, and judicial, ought to be kept as separate from, and independent of, each other, as the nature of a free government will admit, or as is consistent with that chain of connection that binds the whole fabric of the constitution in one indissoluble bond of union and amity.
N.H. CONST. pt. I, art.37. A history of the development of the doctrine of separation of powers as it came to be enshrined in the New Hampshire Constitution, and recognized implicitly (although not stated explicitly) in the United States Constitution, is well beyond the scope of this memorandum, for as one commentator has noted, "the literature on separation of powers is enormous." Gordon Wood, The Creation of the American Republic, 1776-1787,15L fî.44 (W.W. Norton & Co. 1969). Suffice it to say that "the reasons for this separation of governmental departments . . . when the constitution was founded . . . were urgent and insistent," and "Historical antecedence and political philosophy made the demand for them imperative." Opinion of the Justices,87 N.H. 492,493 (1935).
The doctrine's pedigree includes the English Revolution in the l7ú Century, the essays of Montesquieu, and the writings of Madison and Hamilton in The Federalist, and the very plurality of sources helps to explain why "Perhaps no principle of American constitutionalism has attracted more attention than the separation of powers." Wood, supra at 1 5 1 .8 Although the main concern animating the initial formulation of the doctrine related to the powers of the King and the executive branch, the doctrine developed in America recognized that "power in the hands of the people's 'immediate representatives' in the lower houses of the legislatures was basically no different, no less dangerous, than power in the hands of senators, governors and judges." 1d. at 453, citing the Portsmouth, New Hampshire Herald Gazette, March 15, 1783. In 1781, the New Hampshire Constitutional Convention described the issue as follows:
The love of power is so alluring that few have ever been able to resist its bewitching influence. Wherever power is lodged, there is a constant propensity to enlarge its boundaries. A despotic government is that where any man, or set of men, have the power of making what laws they think proper or executing them in their own way.... Is it possible that Europe, or even Asia itself, can present a more perfect tyranny?
Wood, supra at 447, citing Address of the N.H. Convention, Boutin et al., State Papers of N.H., IX, 846; see also Attorney-General v. Morin,93 N.H. 40, 46 (1943). "With reference to the purpose of fpart I, article 371, it should be remembered that during the American Revolution, many executive and judicial powers were exercised by the legislature, and this practice resulted in great dissatisfaction." State v. LaFrance,l24 N.H. 171, 176 (1983). Hence, Article 37 was adopted to protect the executive and judicial branches of the State government from legislative encroachment. Id. (citing Morin,93 N.H. at 46); see also Opiníon of the Justices,l18 N.H. 582, 585 (1978) ("The principal purpose of part I, article 37] is to protect each of the three branches by encroachment of the others. As applied to the executive, its primary purpose is to protect it from legislative encroachment. ").
The framers of Part I, Article 37 recognized that "a complete separation of powers would disrupt the efficient operation of government," Petition of Mone, 143 N.H. 128,134 (1998), and this Court recognizes that the Constitution permits an overlapping of powers among the branches in certain areas. Opinion of the Justices,129 N.H. 714,717 (1987); see also Opiníon of the Justices, 1 13 N.H. 287 ,290,306 A.2d 55, 57 (1973). However, when one branch of government improperly imposes itself upon the essential, constitutional duties belonging to another, or encroaches upon the constitutional function of another branch of government, Part I, Article 37 is violated. See Opinion of the Justices,1l0 N.H. 359,363-6a 0970); see also Opínion of the
Justices,l17 N.H. 398,402 (1977); LaFrance,124 N.H. at 116; N.H. Health Care Assoc. v. Governor,16l N.H. 378, 385-86 (2011).
Cases in which the duties of the branches of government overlap may present great difficult¡ but the questions presented here do not. This is not a close call. Here, HB 89 would require the Attorney General in the executive branch to follow the political view of the legislative branch by adopting the specific position taken by particular parties in a particular case concerning a particular law. It is hard to imagine a greater intrusion on the constitutional role of the executive office, or a clearer infringement of its essential authority within the power of the executive branch.e If an intrusion into the ability of the Attorney General to exercise good faith legal judgment should be permitted, there is no way to tell how far down the steep slope such intrusions could go.
Only a few examples are necessary to demonstrate this obvious point, and to show the difference between HB 89 and other instances in which this Court has assessed the constitutionality of proposed legislation under the Separation of Powers provision. First, if the current Legislature could require the Attorney General to take one position with respect to the PPACA, a different majority in the next Legislature could require him or her to take just the opposite position. Such a regime would turn the court systern into a crude register of momentary political wind velocity.lo
While it is true that the State's legal position as asserted by the Attorney General may change when the individual holding the office changes, those changes of course can be made without compromising the integrity of the State's lawyer in the courts in which the State litigates. Lawyers, after all, can reasonably disagree in good faith about the meaning of constitutions, statutes and the case law, and about the likely consequences of a piece of legislation. While it is true that legal disagreement may be reflected in politics, that fact does not legitimize the substitution of politics for legal disagreement.
Second, if the principle of separation of powers allows the Legislature to mandate a particular action in a matter subject to the Attorney General's professional discretion, the Legislature surely may constrain the actions of the Governor as well. There would be no reason, for example, that the General Court could not require the appointment of a particular individual to a particular government office, yet this Court has determined that neither the Legislature nor the courts may mandate the Governor to act in areas within the power of his office where he or she otherwise has discretion to exercise. Brouillard, 114 N.H. at 544. This will no longer be the law if HB 89 is constitutional.
Third, if the exercise of legal action by the Attorney General may be mandated in civil cases, that same process could require the prosecution of specific individuals for alleged violations of specific criminal laws.tt If the Attorney General may be ordered to be a plaintiff suit a political majority¡ the same majority may order the Attorney General to prosecute whoever it chooses. As Thomas Jefferson wrote in 1782, "[a]n elective despotism is not the government we fought for." Wood, supra at 452 (citing Jefferson, Notes on Virginia).
Finally, it is worth a hard look at the possible consequences of HB 89 itself, which could force the current Attorney General to commit the executive power to advancing meritless positions. At present, since challenges to the PPACA have produced different results, it is not likely that a challenge to the federal statute would be ethically frivolous per se as executive action. But what if the Attorney General determines that particular positions asserted in the Florida action are meritless? Under HB 89, notwithstanding those problems, the Attorney General would nonetheless be required to continue to commit the State to the plaintiff s position in the case. HB 89 provides no room for a determination by the Attorney General as to whether the claims and contentions in the Florida lawsuit have been or may be asserted on behalf of the State in good faith or whether a different position, or a different lawsuit, has more merit. Other parties and other attorneys general who have brought or joined that lawsuit may disagree, but the New Hampshire Attorney General must decide the path to take for this State, and must do so based on his view of the law, not on legislative politics or the popularity of a cause.
This is not to say that the Attorney General is unconstrained by law to assert positions with which he may disagree at a political level. For example, RSA 7:9 provides that "the governor and council may, in any action or proceeding, wherever pending, represent to the attorney general that he should appear in the interests of the state or of the people and thereupon it shall be his duty to appear." While the Governor and Council may require the attorney general to appear in an action, the difference between the statute and HB 89 demonstrates precisely why HB 89 goes too far in intruding on the exercise of his discretion. First, the Attorney General serves as the lawyer for the executive branch of government. The Governor and Council are his clients and may direct his actions, provided that the Attorney General believes there is a good faith basis as a matter of law for asserting or defending a position. RSA 7:9 permits a direction to the Attorney General by the executive branch - by his clients - not an intrusion by a separate
branch. But even more important, the statute does not require that the Attorney General, even when directed by the chief executive branch authority, take any particular position other than to "protect the interests of the state." It does not require that he appear as a plaintiff or defendant, or even as a party to the action, but only that he "appear." As a result, it leaves to the Attorney General the authority to determine the position he may ethically take (or not take) and the proper way to assert that position, and thus does not usurp or materially interfere with the exercise of his legal role.t2
The Legislature has the power to set policy for the State by legislative action but, without amending the Constitution, it may not do so by invading the essential powers of other branches by exercising the constitutional discretion of a member of the executive branch. Where the Legislature sets policy through enactment of the laws, the Attorney General is obligated to defend the law if he or she believes that a non-frivolous argument can be made for its constitutionality. But the Attorney General has discretion to decide how to defend the laws
under the Constitution and whether they are defensible. The fundamental problem with HB 89 is that it requires a politically determined action by
the State's chief legal officer within the executive branch without room for the exercise of legal judgment. Accordingly¡ Question 1 should be answered in the affirmative.
The former members of the Office are proud that in their service to the State, whether or not they agreed with the actions of the Governors under whom they served, or with legislative policy adopted during their terms of office, they were never confronted by political dictation in making decisions as lawyers. There was, rather, an understanding that the Attorney General was obligated to exercise a lawyer's professional and ethical discretion in deciding on positions to be taken. That understanding, along with the Attorney General's reciprocal obligation to defend state officers and legislation, has shown how the Constitution was meant to produce that "union and amity" that is its object. Needless to say, there were controversial decisions made by Governors or state officers, and controversial statutes passed by the Legislature with which attorneys general may have disagreed. But so long as they could honor their obligation to take discretionary action in good faith, and so long as they could invoke a good faith legal basis to support those actions and statutes, they understood that it was their duty to do so.
The role of the Office - and the standard by which the Attorney General must act - was stated by then Attorney General David H. Souter in 1978, in response to a complaint about the Office's defense of Governor Thomson's act of lowering the flag to half-staff on Good Friday:
You asked "whether there is any chance that the Attorney General's office will use some discretion in deciding whether or not to defend the Supreme Executive Magistrate on matters concerning his personal preferences regarding the height of the United States Flag?" I take it you refer to the defense in judicial proceedings brought to challenge the Governor's actions in displaying the flag at half-staff in particular circumstances. The answer is, sure there is going to be some discretion, and I assume the discretion will be exercised on the same criterion I have used. My standard, in flag cases and any others, has been simply this: this office will represent any governor in any proceeding brought against him in his official capacity whenever his action can not reasonably be judged patently illegal or unconstitutional. If, as I believe, the Attorney General should act as a lawyer guided by generally applicable principles, I don't believe any other standard is possible. The alternatives seem to me to be an Attorney General who is a political rubber stamp or one who is a political spokesman for political opposition to the Governor. I find each alternative unacceptable.
Letter from David H. Souter to Robert Backus dated March 30,1978. By preventing the Attorney General from acting "as a lawyer guided by generally
applicable principles" and by mandating that the Attorney General adopt a political position of the Legislature, regardless of his or her determination as a lawyer of what is right as a matter of law, HB 89 is unconstitutional.
WARREN B. RUDMAN, THOMAS D. RATH, GREGORY H. SMITH, STEPHEN E. MERRILL, PHILLP T. MCLAUGHLIN, PETER W. HEED
JOHN AHLGREN, PETER G. BEESON, GEORGE DANA BISBEE, V/ILBUR A. GLAHN, III, EDWARD A. HAFFER, LUCY C. HODDER, MARTIN B. HONIGBERG, HAROLD T. JUDD, STEPHEN J. JUDGE, CHARLES J. KEEFE, E. TUPPER KINDER, JOHN C. KISSINGER, ANN F. LARNEY, KAREN A. LEVCHUK, PAUL A. MAGGIOTTO, DANIEL J. MULLEN, DONALD J. PERRAULT, MICHAEL A. PIGNATELLI, CHARLES PUTNAM, BRIAN M. QUIRK, EMILY GRAY RICE, RONALD F. RODGERS, JAMES D. ROSENBERG, MARC R. SCHEER, and MARTHA VAN ooT
I It is unclear why the House of Representatives chose the Florida lawsuit, State of Florida, by and on behalf of Bitt McCollum, Attorney General v. United States Dept. of Health and Human Services, No. 3:10-cv-0009I-RVÆMT (N.D. Fla. Pensacola Div.) (on appeal to the Eleventh Circuit) as the vehicle by which the Attorney General would be required to advance the position formed by a majority of the General Court. While this memorandum argues that the General Court has no constitutional authority to require the Attorney General to exercise his legal judgment in a particular manner, there are a number of pending lawsuits challenging the constitutionality of the PPACA. (A listing of these cases may be found on the website of the United States Department of Justice, wwwjustice.gov/healthcare/.) The choice by the House of a particular lawsuit is a further indication of an effort to usurp the authority of the Attorney General to exercise his independent professional judgment as the lawyer for the State.
2 The lawyers whose names appear on this memorandum are representing themselves. They are not appearing on behalf of any client, advocacy group, or political party, nor are they being paid for their work on this memorandum.
3 Question 2: in the Senate Resolution asks for an opinion on whether the direction to the Attorney General "fall[s] within the broad grant of authority to the general court set out in Part II, Article 5 of the New Hampshire constitution." This simply begs the question of what constitutes the essential functions of the Attorney General and the Legislature. Plainly, if the General Court does not have the power to direct the conduct of legal proceedings for the State, its power under Part II, Article 5 cannot somehow trump the duties given to the Attorney General under Part II, Article 46. That is precisely what the separation of powers provision prevents.
4 HB 89 might, quite apart from the Constitution, require the Attorney General to act contrary to his ethical duties and obligations as a lawyer. Rule 3.1 of the New Hampshire Rules of Professional Conduct, entitled "Meritorious Claims and Contentions" provides, in part, as follows: "A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law."
s The fact that the House of Representatives chose to pass HB 89 as a means of challenging the PPACA is telling. Nothing prevents the House from hiring its own lawyer to challenge that Act, whether in New Hampshire, or in Florida. What HB 89 implicitly recognizes is that only the Attorney General has the power to bring an action or
apear in court on behalf of the State ofNew Hampshire. It seems likely that the House wanted the imprimatur of the State of New Hampshire in this action. The only way to accomplish that result was to find a way to force the involvement of the Attorney General. The very existence of HB 89 is evidence of the authority of the Attorney General to act as the State's lawyer.
6 Cf Me CONST, art. IX g 1l (prescribing the biennial selection of the Maine Attorney General by joint ballot of the state's senators and representatives in convention).
7 PartI,Article 30 of the Massachusetts Constitution ("separation of legislative, executive and judicial departments") provides :
In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.
E For a description of the development of the doctrine in colonial America and its revision in the doctrine of federalism, see Vy'ood at 150-161 and 446-453 and the extensive sources cited therein.
n Iß 89 is essentially a mandamus action disguised as a legislative action. (Indeed, as shown elsewhere in this memorandum, a mandamus action was brought in another state in an effort to force the Attorney General to withdraw from a suit challenging the PPACA.) This Cou¡t has consistently held that a mandamus action will not lie to force the exercise of discretion by a government official. Rockhouse Mountain Property Owners v. Conway,127
N.H. 593 (1986) (layout of roads is a discretionary function preventing mandamus); Brouillard v. Governor and Council, 1 14 N.H. 542 (197 4) (the power of appointment to executive branch positions requires the exercise of discretion preventing the issuance of a writ of mandamus). In Brouillard,the Court noted that a petition for a writ of mandamus against the Governor may implicate the separation of powers doctrine where the action sought may intrude on the discretion of the Governor to act regarding the essential powers of the office, citing Rice v. Draper, 207 Mass. 57'7,93 N.E. 821 (1911). In Rice, the Supreme Judicial Court found that a mandamus could not be used to force the Governor to exercise his discretion to expend state funds because that function was "essentially executive," and the issuance of the writ would "not only question the wisdom of the Constitution or the law, but also to assert a right to make the Governor the passive instrument of the judiciary in executing its mandates within the sphere or his own duties." Rice,207 Mass. at 580. Here, the House seeks to mandate that the Attorney General act in an area of his essential power granted under Part II, Article 46; namely, to act as a lawyer and to determine what
position may be t¿ken in good faith in legal matters. That power is equally protected by separation of powers law, whether asserted through mandamus or by legislation.
r0 This is not a merely hypothetical possibility. In the state of Washington, the City of Seattle has filed a petition of mandamus to force the Attorney General to withdraw from a lawsuit challenging the PPACA. Not surprisingly, the Attorney General of Washington has argued that as an independent constitutional officer under that state's constitution, he has the authority to "exercise independent legal judgment in determining whether to institute legal proceedings implicating the legal rights of the State." See Brief of Robert M. McKenna in the Supreme Court of Washington, City of Seattle. McKenna,Attorney General, No. 8,1483-6.
tt RSA 7:6 provides that the Attorney General "shall have and exercise general supervision of the criminal cases pending before the ... courts of the state and with the aid of the county attorneys, the attorney general shall enforce the criminal laws of the state." Of course, the Legislature has the power to determine what constitutes a crime and the form of mandatory punishment for the crime. As an example, the Legislature establishes what constitutes capital murder and the punishment for that crime. This it is plainly permitted to do. What it may not do is invade the province of the Attorney General to decide which cases to prosecute as capital crimes, or of the Courts to decide whether the prosecution is merited.
t' RSA 7:8 requires that the Attorney General "shall, when requested, advise any state board, commission, agent or officer as to questions of law relating to the performance of their duties." Yet like RSA 7:9, that statute does not interfere with the Attorney General's discretion to decide what advice to give or to determine whether the opinion requested is on a matter of law relating to the performance of state duties.