When it comes to judicial opinion writing, haste can make waste. A very recent example of this is Superior Court Justice David Anderson’s opinion concerning control of over a billion dollars in federal funding for COVID-19’s financial impact through the CARES Act. Denying an injunction was correct. His standing analysis was not.

Oral argument on a Monday led to a Wednesday, April 22 opinion of 16 pages. Judge Anderson could, and should, have issued a far shorter opinion stating that the statutes and constitutional issues were competing and complex, such that the legislative leaders could not, at this stage, meet the requirement for a preliminary injunction that they “would likely succeed on the merits.”

That reason, plus the public interest Judge Anderson articulated in having the Governor expeditiously distributing funds “intended for the benefit of the public in the midst of a global pandemic,” would have been enough to decide the case.

Instead, the judge spends from page 5 to 13 misconstruing the impact of the overwhelming 2018 vote by over 400,000 voters to amend Part I, Article 8 of the New Hampshire Constitution and to change the rules on standing back to where they were before the 2014 decision in Duncan v. State.

I am thus reminded of Mark Twain’s famous observation, “I apologize for such a long letter – I didn’t have time to write a short one.”

Judge Anderson starts and ends with the Duncan case as if it were still law. He speaks of a “recent” shift from the broad rights of taxpayers and thinks we are still accountable to the federal hurdles engrafted onto our earlier adopted State Constitution by the court in Duncan. He says a 1974 standing decision in O’Neil v. Thomson “has limited value in addressing the modern standing standard,” as if Duncan were still valid law on standing.

I remember the O’Neil case well as I argued it on behalf of Governor Meldrim Thomson after he refused to spend certain appropriated funds. A declaratory judgment petition was filed by Speaker of the House, James O’Neil, and President of the Senate, Dave Nixon. It was not filed by the House or the Senate as such, so I challenged their standing to sue the Governor over his de facto line item veto.

The Supreme Court brushed that off by observing that the legislative leaders “in their several capacities have sufficient… interest in the performance by public officer (i.e. the Governor) of their public duties.” The opinion also gave them standing because of their right to preserve “lawful government.”

I remember well Chief Justice Frank Rowe Kenison’s question to me 46 years ago on the issue of standing: “Mr. Douglas, even if they can’t sue in their official capacities, they have standing as taxpayers, don’t they?” Pause. Concession by me. Game over.

Unfortunately, Judge Anderson turns to out-of-state cases from Alabama, Colorado, etc. to ignore O’Neil by saying that the current Speaker and President of the Senate lacked standing “even if brought in their professional capacities.” While he should have said “official capacities” he is still wrong, as federalizing standing in Duncan was squarely rejected by the vote two years ago to put into our Bill of Rights the protection that a “taxpayer shall not have to demonstrate that his or her personal rights were impaired or prejudiced beyond his or her status as a taxpayer.”

The amendment also affirmed that taxpayers have “a right to an orderly, lawful, and accountable government,” a phrase almost verbatim out of O’Neil v. Thomson at page 159 of volume 114 of the New Hampshire Reports.

The bottom line is simple. The judge should have assumed, without deciding, that the Speaker and Senate President had standing, and then denied the injunction for the reasons he stated.

That would have been both a shorter opinion and a correct one.

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Chuck Douglas is a former legal counsel to the governor as well as the New Hampshire House, and a former Supreme Court justice.

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