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Thursday, June 16, 2011

N.H. high court: AG need not join care lawsuit

CONCORD – New Hampshire’s highest court gave Attorney General Michael Delaney a slam dunk victory Wednesday, saying he can’t be forced to join a lawsuit against the federal healthcare law.

In a unanimous advisory opinion, the justices agreed with Delaney that such a mandate would violate the separation of powers clause of the state’s constitution.

Forcing Delaney to join the lawsuit brought by more than two dozen other states would “usurp the essential authority” of the executive branch to decide which legal cases to pursue, the justices ruled.

“HB 89 would usurp this essential power because it would divest the executive branch entirely of its authority to decide whether to initiate a particular, civil action on the part of the state,” the justices wrote.

The House of Representatives voted by a 70 percent majority to force Delaney to join Florida and 25 other states contending the individual mandate of the federal healthcare law violates the U.S. Constitution.

A lower court ruled the individual mandate was unconstitutional but stayed the outcome pending appeal by the Obama administration. The state Senate chose a more moderate course, recommending that the attorney general “should” join the suit.

The Senate voted last month to put the House-passed bill aside to ask the justices for this opinion.

House Majority Leader D.J. Bettencourt defended the House’s desire to force the attorney general to act.

“HB 89 is not about usurping the powers of the executive branch, but rather it is about protecting the people of New Hampshire against Obamacare, unfunded mandates and the tremendous costs associated with a program that our taxpayers will have to pay for out of their own pockets,” Bettencourt said in a statement.

“The New Hampshire Supreme Court’s opinion that HB 89 is unconstitutional represents an egregious example of judicial activism and an abandonment of originalism in judicial interpretation.”

Backing up Delaney’s view in a written brief of support were six former attorneys general, including four Republicans and two dozen former prosecutors.

Former House Speaker Terie Norelli, D-Portsmouth, said House GOP leaders should have listened to the wise counsel of these past prosecutors.

“House Republicans were told time and time again by attorneys general, judges, Democrats, Republicans, former governors and former United States senators that their attempted power grab was clearly unconstitutional,’’ Norelli said.

“Yet despite these numerous warnings, they wasted taxpayer time and money on this useless and illegal legislation again and again and again.”

In his own lengthy brief, Delaney said making him join the suit would render inoperative the independence of the attorney general.

“House Bill 89 violates the separation of powers because it does not allow for the attorney general to exercise his independent, professional judgment as an attorney,” Delaney wrote.

The justices agreed with that view.

“The executive branch alone has the power to decide the state’s best interest in litigation,” they wrote.

A liberal-leaning interest group, N.H. Voices for Health, praised the decision for settling this issue.

“This advisory opinion gives finality to a question that has been in limbo for several months and has drawn attention away from strengthening New Hampshire’s healthcare system,” said NH Voices consultant Tom Bunnell.

“We are pleased that the New Hampshire House and Senate can now return full attention to improving access to quality, affordable healthcare in New Hampshire,” Bunnell said.

Kevin Landrigan can reached at 321-7040 or; also check out Kevin Landrigan (@KLandrigan) on Twitter and don’t forget The Telegraph’s new, interactive live feed at