Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Request of Governor and Council

Supreme Court of New Hampshire

July 12, 2018

Request of the Governor and Council

          Submitted: May 31, 2018

         Request of the Governor and Council

         OPINION OF THE JUSTICES (DEFINITION OF RESIDENT AND RESIDENCE)

         On May 16, 2018, the Secretary of State transmitted to the chief justice and the associate justices of the supreme court a certified copy of a resolution of the Governor and Executive Council dated the same date requesting an opinion of the justices regarding House Bill (HB) 1264, an act amending the definition of "resident" and "residence" in RSA 21:6 and RSA 21:6-a. The act has been approved by the New Hampshire House of Representatives and the New Hampshire Senate, and is currently pending in the enrolled bills process, upon completion of which the bill will be placed before the Governor for his action. The Governor and Executive Council have requested that the justices give their opinion on the following questions of law:

         "I. By subjecting those who are domiciled in New Hampshire for voting purposes to the same legal requirements as those who are residents of New Hampshire, including but not limited to the requirements to take actions required by RSAs 261:45 and 263:35 and to pay any fees or taxes associated therewith, would House Bill 1264, on its face, violate any of the following provisions of the New Hampshire or United States Constitutions?

         (a) The Equal Protection Clause of Part I, Article 2 of the New Hampshire Constitution.

         (b) Part I, Article 11 of the New Hampshire Constitution. (c) The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

         II. By subjecting those who are domiciled in New Hampshire for voting purposes to the same legal requirements as those who are residents of New Hampshire, including but not limited to the requirements to take actions required by RSAs 261:45 and 263:35 and to pay any fees or taxes associated therewith, would House Bill 1264, as applied to students attending a postsecondary institution within the State of New Hampshire who currently claim New Hampshire as their domicile for voting purposes but who do not claim New Hampshire as their residence, violate any of the following provisions of the New Hampshire or United States Constitutions?

         (a) The Equal Protection Clause of Part I, Article 2 of the New Hampshire Constitution.

         (b) Part I, Article 11 of the New Hampshire Constitution.

         (c) The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution."

         To the Honorable Governor and Council:

         Upon receipt of the request, we invited interested parties to submit memoranda addressing the above questions. The undersigned justices of the Supreme Court return the following separate replies to the questions presented in your resolution.

         OPINION OF CHIEF JUSTICE LYNN AND JUSTICES HANTZ MARCONI AND DONOVAN

         Having reviewed these submissions and fully considered the issues, we conclude that the request constitutes a proper circumstance for us to issue an advisory opinion. Accordingly, we respectfully return our response that all of the certified questions must be answered in the negative.

         I. Propriety of an Advisory Opinion

         Part II, Article 74 of the New Hampshire Constitution provides: "Each branch of the legislature as well as the governor and council shall have authority to require the opinions of the justices of the supreme court upon important questions of law and upon solemn occasions." As we have often noted, this provision of the constitution empowers the justices of this court to render advisory opinions "only in carefully circumscribed situations." Duncan v. State, 166 N.H. 630, 640 (2014). Several interested parties urge us to decline to issue an advisory opinion. Two arguments are advanced in support of this position. First, it is argued that, because the Governor alone, rather than the Governor and Council, has the exclusive authority to take action with respect to HB 1264, by signing it, vetoing it, or allowing it to become law without his signature, see N.H. CONST, pt. II, art. 44, the Governor and Council, as a body, has no interest that will be advanced by any advice given by the justices in an advisory opinion. We find this argument unpersuasive.

         We acknowledge that we have not previously been asked for an advisory opinion in a situation the same as that presented here. However, we have previously answered questions in analogous circumstances. In Opinion of the Justices, 96 N.H. 513 (1949), the majority of the justices provided their opinion, at the behest of the Governor and Council, concerning the constitutionality of measures proposing the reorganization of agencies of the executive branch of state government. Opinion of the Justices, 96 N.H. at 513-14. The legislation authorizing the reorganization called for the Governor - with the assistance of advice from a special commission, but without the concurrence of the Council - to adopt the measures, which would then become law unless disapproved by concurrent resolution of both houses of the legislature. Id. In providing our response, we observed that "the questions submitted in the resolution of the Governor and Council pertain to their executive duty." Id. at 514. That being the case, we submitted our answers "upon the assumption that our opinion may be of use to you in the performance of the duties legally imposed upon you." Id. (quotation omitted). We made a similar assumption as to the usefulness of our answers to the functioning of the executive branch in Opinion of the Justices, 113 N.H. 87 (1973), where the questions submitted by the Governor and Council pertained to the constitutionality of a footnote that the Governor, without Council involvement, proposed to include in the budget he submitted to the legislature. See Opinion of the Justices, 113 N.H. at 88-89; see also Opinion of the Justices, 79 N.H. 535 (1919).

         Although we remain sensitive to the importance of confining our advisory opinions to solemn occasions, we are satisfied that the request here comports with the requirements of Part II, Article 74. The Governor has the constitutional responsibility to approve or veto HB 1264 or allow it to become law without his signature. He has expressed concerns as to its constitutionality and, with the concurrence of the Council, whose role, inter alia, is to serve as advisor to the Governor, has sought our guidance to aid him in making his decision. Under these circumstances, we believe it is our duty to answer the questions submitted.

         The other argument advanced in support of our declining to answer the questions is that we have insufficient information to do so because providing answers regarding voting rights issues requires factual development that can only occur in the context of a fully litigated case. In support of this position, the opponents of HB 1264 rely primarily on our decision in Opinion of the Justices (Domicile for Voting Purposes). In that case, we asked to be excused from answering a request for an advisory opinion from the New Hampshire House of Representatives on a bill proposing to amend the definition of domicile for voting purposes. Opinion of the Justices (Domicile for Voting Purposes), 167 N.H. 539, 541 (2015). As grounds, we observed that deciding what level of scrutiny to apply to the proposed legislation would require us to determine the extent of the burden which the measure imposed on the right to vote. See id. at 542. Because that determination was a factual question, we concluded that it could not be resolved in the context of an advisory opinion. Id. We also noted that there was then pending before this court a litigated case, Guare v. State of New Hampshire, "with a factual record developed over two years" that raised similar legal issues to those raised by the House in its request. Id. at 542-43.

         Significantly, however, in subsequently addressing the merits of the appeal in Guare, we did not find it necessary to rely upon any factual findings made by the trial court in that case. See Guare v. State of N.H., 167 N.H. 658 (2015). To the contrary, the appeal was based upon the trial court's summary judgment ruling - in which the trial court was not permitted to resolve factual disputes - in favor of the parties who challenged the legality of the voter registration form at issue. Id. at 659-60. As we specifically observed, "the trial court's ruling was not based upon applying the challenged language to the particular facts and circumstances of this case." Id. at 661. Accordingly, we treated the court's decision as "a determination that the language is facially unconstitutional," and thus subject to de novo review by this court. Id. We then explained that the language used in the form was confusing, in that, on its face, it was "susceptible of different interpretations." Id. at 664.[1]

         More importantly, we found it unnecessary to determine, based on any particular facts developed in the trial court, either the extent of the burden the form's language imposed on voting or the level of scrutiny to which it was subject. See id. at 665. Rather, we assumed that the burden on voting was not severe and therefore that the strict scrutiny test did not apply. Id. Applying intermediate scrutiny, we held that, because the language on the form was "confusing and inaccurate," and therefore "could cause an otherwise qualified voter not to register to vote in New Hampshire," it imposed an unreasonable burden on the right to vote as a matter of law and therefore violated Part I, Article 11 of the State Constitution. Id. at 665, 669.

          Consistent with the above discussion, we conclude here that we are able to answer the questions submitted despite the absence of a factual record. As we explain below, HB 1264 has no effect on eligibility to vote, and even if we assume that its collateral consequences will discourage from voting in New Hampshire some or all of those affected by the change in the law of residence for other purposes, the bill serves the compelling state interest of insuring that those allowed to vote in this state share a community of interest with the population generally. Therefore, the bill satisfies constitutional standards even if, as we also assume without deciding, it is subject to the most exacting standard of review.

         In their separate opinion, our colleagues decline to answer the submitted questions on two grounds. First, with respect to questions I(a) through (c), while willing to assume that HB 1264 serves the compelling state interest in insuring that those allowed to vote in this state share a community of interest with the population generally, they assert that, without a factual record, they are unable to assess whether HB 1264 is "'narrowly drawn' to serve that interest." Yet they fail to explain what facts could require the legislature to more narrowly tailor HB 1264 than to make the legal standard for domicile for voting purposes equal to the legal standard for residence for other purposes - unless the State or Federal Constitution requires New Hampshire to maintain a special, more relaxed legal standard for domicile for voting purposes only, a proposition that, as explained below, fails as a matter of law.

         Second, our colleagues assert an inability to answer questions II(a) through (c) because, they claim, there is a factual dispute as to the purpose of the legislation and one such purpose could be improper. However, even if an improper legislative purpose could be grounds for invalidating HB 1264 - which, as we explain below, it is not - we presume legislative enactments to be constitutional. See Opinion of the Justices (Requiring Att'y Gen, to Join Lawsuit), 162 N.H. 160, 164 (2011). Accordingly, to decline to give the Governor and Council our opinion on the constitutionality of HB 1264 based on the mere possibility that such a motive might exist is fundamentally at odds with our precedents establishing the applicable standard of review. See id.

         Furthermore, our colleagues assume that questions II(a) through (c) should be treated as though they seek our opinion regarding a specific individual's special circumstances. But, unlike a typical as-applied challenge, these questions do not ask about any circumstances more specific than the general application of HB 1264 to the at-large population of students attending postsecondary educational institutions in New Hampshire who currently claim New Hampshire as their "domicile" for voting purposes but not as their "residence" for other purposes. The questions do not ask for our opinion as to how the statute might apply to the circumstances of any particular student or students, nor could we opine about the same without a factual record. See Opinion of the Justices, 129 N.H. at 290, 295 (1987). Rather, fairly understood, questions II(a) through (c) ask us to opine only as to whether there is anything about the status of being a "student" that would render application of HB 1264 to such persons unconstitutional. To provide answers to these questions, we need to know nothing more than the facts postulated in the questions themselves. Cf. Newburger v. Peterson, 344 F.Supp. 559, 560 (D.N.H. 1972) (observing that, although the plaintiff class comprised of all students subject to New Hampshire's then-existing statute for voting was properly certified, it was "not the most comprehensive" class because it did not include "all [persons] who would be permitted to register [to vote] but for their firm intention to leave at a fixed time" (emphasis added)).

         For the above reasons, we respectfully disagree with our colleagues and conclude that we are duty bound to answer the questions propounded by the Governor and Council.

         II. The Merits

         A. Background

         The distinction between the concepts of "residence" and "domicile" is deeply engrained in American law. A person's residence is generally understood to be the place where he or she is currently living, even if only for relatively short duration, whereas a person's domicile is the place with which the person "identifies himself and all his interests" and there "exercises the rights and performs the duties of a citizen." Bergmann v. Board of Regents, 892 A.2d 604, 626 (Md. Ct. Spec. App. 2006) (quotations omitted). Domicile is thus universally understood to connote a more significant and lasting connection with a locality than is encompassed by mere residence, supporting the conclusion that "one . . . may have more than one residence at the same time, but only one domicile." 28 C.J.S. Domicile § 5 (2008); see Restatement (Second) of Conflict of Laws § 11(2) (1988) (explaining that "[e]very person has a domicile at all times and, at least for the same purpose, no person has more than one domicile at a time"). To the same effect, we have described domicile as consisting of actual residence coupled with an intention to remain. Felker v. Henderson, 78 N.H. 509, 512 (1917).

         Despite the difference in meaning, the terms "domicile" and "residence" are frequently used synonymously. 28 C.J.S. Domicile § 5. Prime examples of this are RSA 21:6 and:6-a, entitled, respectively, "Resident; Inhabitant" and "Residence," which provide:

Resident; Inhabitant. A resident or inhabitant or both of this state and of any city, town or other political subdivision of this state shall be a person who is domiciled or has a place of abode or both in this state and in any city, town or other political subdivision of this state, and who has, through all of his actions, demonstrated a current intent to designate that place of abode as his principal place of physical presence for the indefinite future to the exclusion of all others.

RSA 21:6 (2012).

Residence. Residence or residency shall mean a person's place of abode or domicile. The place of abode or domicile is that designated by a person as his principal place of physical presence for the indefinite future to the exclusion of all others. Such residence or residency shall not be interrupted or lost by a temporary absence from it, if there is an intent to return to such residence or residency as the principal place of physical presence.

RSA 21:6-a (2012). Notwithstanding the use of the words "resident" and "residence" in the titles of these sections, the language of the definitions makes clear that they are intended to describe the intensity of connection to a place that, at a minimum, satisfies the traditional test of domicile. The problem that gives rise to the proposed change in the law of residency set forth in HB 1264 is that the above definitions have been interpreted to impose requirements that go beyond the traditional definition of domicile. The result - counterintuitive as it may be - is that, notwithstanding the "resident" and "residence" labels used in their titles, to satisfy the current definitions of RSA 21:6 and:6-a requires a degree of connection to a place that is greater than that required to be domiciled in this state for voting purposes pursuant to RSA 654:1, I (2016).[2]To correct this problem, HB 1264 removes the words "for the indefinite future" from the text of RSA 21:6 and:6-a.

         The genesis of the problem described above first came to light many years ago as the result of the decision in Newburger. Newburger was a class action suit brought by a Dartmouth College student on behalf of "all voting age students who wish to register in the communities where they reside while attending school but who intend to leave those communities upon graduation." Newburger, 344 F.Supp. at 560. When the student attempted to register to vote, he was denied "solely because he stated to voter registration officials that he intended to leave Hanover upon his graduation." Id. Although the statute then in effect granted the right to vote to an inhabitant "in the town in which he dwells and has his home," the voting authorities interpreted it to incorporate the common law of domicile, as embodied in State v. Daniels, 44 N.H. 383 (1862), which, like the terms of current RSA 21:6 and:6-a, required that the person have an intention to remain permanently or indefinitely in a particular place in order to qualify as a domiciliary. See Newburger, 344 F.Supp. at 560. The district court ruled that "the indefinite intention requirement is [not] necessary to serve a compelling [state] interest," and therefore that its application to the class "offends the equal protection clause of the Fourteenth Amendment." Id. at 563. In reaching this decision, the court observed that "the challenged New Hampshire law forces persons who are in every meaningful sense members of New Hampshire political communities to vote in communities elsewhere which they have long departed and with whose affairs they are no longer concerned, if indeed the former community still recognizes the right." Id.[3]

         Subsequent to the Newburger decision, New Hampshire amended its law regarding domicile for voting purposes. Currently, that law is codified in RSA 654:1, I, and I-a (2016), which provide:

I. Every inhabitant of the state, having a single established domicile for voting purposes, being a citizen of the United States, of the age provided for in Article 11 of Part First of the Constitution of New Hampshire, shall have a right at any meeting or election, to vote in the town, ward, or unincorporated place in which he or she is domiciled. An inhabitant's domicile for voting purposes is that one place where a person, more than any other place, has established a physical presence and manifests an intent to maintain a single continuous presence for domestic, social, and civil purposes relevant to participating in democratic self-government. A person has the right to change ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.