City of Concord v. State , 164 N.H. 130 ( 2012 )

CONBOY, J.,

dissenting. Because, in my view, section 52 contravenes the plain language of Part I, Article 28-a, I would hold that section 52 constitutes an unconstitutional unfunded mandate.

Article 28-a provides:

The state shall not mandate or assign any new, expanded or modified programs or responsibilities to any political subdivision in such a way as to necessitate additional local expenditures by the political subdivision unless such programs or responsibilities are fully funded by the state or unless such programs or responsibilities are approved for funding by a vote of the local legislative body of the political subdivision.

N.H. CONST, pt. I, art. 28-a. The only case in which we have previously interpreted the language of this constitutional amendment is New Hampshire Municipal Trust Workers’ Compensation Fund v. Flynn, Commissioner, 133 N.H. 17 (1990), the first of our cases involving a challenge under it. In Flynn, we found that the statute at issue “impose[d] upon local government a new fiscal obligation,” id. at 24, and was therefore unconstitutional, id. at 27. In coming to this conclusion, we considered the import of the word “responsibilities,” as used in the amendment, and examined the dictionary definitions of the words “responsibility” and “responsible.” Id. at 22. We explained that a “responsibility” is “something for which anyone is responsible or accountable.” Id. (quotation omitted). We stated that the definitions “indicate[d] that [Article 28-a] was designed to prohibit the State from placing additional obligations on local government without either obtaining their consent or providing the necessary funding.” Id.

Under this same straightforward construction of Article 28-a, I conclude that section 52 mandates an expanded responsibility — an increased financial obligation. Prior to the enactment of section 52, the local political subdivisions had a legislatively imposed obligation to provide retirement benefits, through NHRS, to teachers, firefighters, and police officers, at a contribution rate of 65% of the total employer contribution. This is an obligation for which the local political subdivisions are accountable — that is, a “responsibility.” Section 52 imposes a mandatory increase in this obligation from 65% of the employer contribution to 70%, and then to 75%, and, thus, constitutes a “new, expanded or modified” responsibility.

After conducting a review of our relevant case law, the majority concludes that the mandated “responsibility” as used in Article 28-a is actually “more nuanced” than the interpretation we gave it in Flynn and that its meaning is limited to state action that imposes “some substantive change to an underlying function, duty or activity performed or to be performed by local government.” However, nothing in Article 28-a states, or even implies, that the amendment only prohibits the State from mandating a “responsibility” that imposes a new, expanded, or modified “substantive” obligation, as distinguished from a new, expanded, or modified financial obligation. Indeed, the purpose of Article 28-a indicates that the citizens of New Hampshire understood that Article 28-a prohibits additional financial obligations pressed upon local governments by the State. As we explained in Flynn, 133 N.H. at 27, Article 28-a “was designed to provide a safety net to save cities and towns from the burden of coping with new financial responsibilities, not of their own creation.” (Emphasis added.) We also noted that delegates to the Constitutional Convention explained that Article 28-a “prevent[s] the State Legislature from mandating new programs, services, or expenses to local [subdivisions]” and that “[i]t is a clear and simple statement from the people in the local communities to state government to keep local budgets local.” It also “tells the Legislature that the communities no longer want the state government to mandate local spending.” Id. at 22-23. More importantly, the Voters’ Guide, which was prepared “[t]o help the voters understand the proposed amendment,” explained that if the amendment were to be adopted, “[t]he state [would] be prohibited from requiring localities to expend funds for any new or expanded portion of a program or responsibility unless the state provides the necessary funds for the localities to spend or unless the local legislative body agrees to provide its own funding for the new or expanded program or responsibility.” Id. at 19 (emphasis added; quotation omitted).

By rejecting the interpretation we assigned to the word “responsibility” in Flynn, the majority implicitly overrules that interpretation without engaging in a stare decisis analysis. It avoids doing so by asserting that our more recent cases, such as Town of Nelson v. New Hampshire Department of Transportation, 146 N.H. 75 (2001), Opinion of the Justices (Voting Age in Primaries), 157 N.H. 265 (2008), and New Hampshire Assoc. of Counties v. State of New Hampshire, 158 N.H. 284 (2009), reflect a modified interpretation. None of these decisions, however, overruled Flynn; nor did we, in any of them, engage in constitutional interpretation, discuss the meaning of the word “responsibility,” or examine the history of Article 28-a. In fact, until now, Flynn is the only case in which we have expressly interpreted the language of Article 28-a. We also explained that when reviewing provisions of the constitution, we “view the language used in light of the circumstances surrounding its formulation.” Flynn, 133 N.H. at 21. Thus, our interpretation of Article 28-a, six years after its passage, took account of its history. By contrast, the majority’s interpretation now, twenty-eight years after Article 28-a’s passage, is based not on the amendment’s plain language or its history, but rather on case law, the reconciliation of which, as the majority acknowledges, is not “an easy exercise.” In my judgment, the majority opinion thus has the effect of either rewriting the language of Article 28-a, or reinterpreting its language in a way that is inconsistent with its history and our express interpretation of its meaning in Flynn.

After adopting a new, “more nuanced,” meaning for the word “responsibility,” the majority concludes that because section 52 does not alter the local subdivisions’ basic responsibility to provide retirement benefits through NHRS, and does not modify any other “substantive” or “underlying” responsibility, it does not mandate a new, expanded or modified responsibility. In my view, however, the majority does not adequately explain why a financial obligation is not a “substantive” responsibility. Nor does the majority account for the fact that at the heart of the enactment of Article 28-a is the goal of preventing the State from adding to the financial burdens-of local governments without their consent. See id. at 22-23.

Moreover, the majority’s interpretation of “responsibility” is inconsistent with the surrounding language of Article 28-a. The text of the amendment provides that the State shall not mandate “any new, expanded, or modified . . . responsibilities.” The use of the word “any” indicates that “responsibilities” has a broad, unqualified meaning, not limited to state action that imposes “some substantive change to an underlying function, duty or activity,” as the majority concludes. The plain language of the constitution is the paramount source of its meaning. See Bd. of Trustees, N.H. Judicial Ret. Plan v. Sec’y of State, 161 N.H. 49, 53 (2010). We must take great care in ensuring that we do not deviate from that language; we may not “redraft the constitution in an attempt to make it conform to an intention not fairly expressed in it.” Flynn, 133 N.H. at 21 (quotation omitted).

The trial court based its conclusion, in part, on the fact that participation in NHRS was required before section 52, and this requirement was not changed by it, noting that we have previously stated that “increased expenditures alone are not dispositive of whether a program or responsibility has been expanded.” N.H. Assoc. of Counties, 158 N.H. at 288 (quotation omitted). The majority similarly acknowledges that section 52 results in increased expenditures, but explains that “increased expenditures alone are not a violation of Article 28-a.” That increased expenditures alone are not dispositive, however, does not support the conclusion that a mandate directly requiring increased expenditures cannot be a violation of Article 28-a. As the needs of NHRS grow over time, the local subdivisions may well experience increased expenditures pursuant to the 65% contribution obligation; such increased expenditures alone, of course, would not evidence a violation of Article 28-a. Rather, it is the mandatory increase in the local subdivisions’ percentage share of the required contribution, compare Laws 1977, 528:2 with Laws 2009, 144:52, that constitutes the violation because it mandates an expanded responsibility, which, by its terms, necessitates additional local expenditures. Indeed, the State acknowledges that section 52 “increases expenditures for local governments.” Cf. Opinion of the Justices (Solid Waste Disposal), 135 N.H. 543, 547 (1992) (finding that the subject legislation was not an unfunded mandate because although it prohibited the disposal of certain materials by a solid waste generator, it did not require any affirmative action by the local subdivisions that would necessitate additional local expenditures).

Nor do our cases following Flynn warrant the conclusion reached by the majority. For example, in Nashua School District, we stated only basic propositions about Article 28-a, explained the challenged statute and the relevant statutory schemes, and then concluded -without further explanation or any specific analysis that the legislation at issue was not an unconstitutional unfunded mandate. Similarly, in Voting Age in Primaries, we concluded, without detailed explanation, that the statute at issue did not violate Article 28-a. Our conclusions in those two cases that the subject legislation did not constitute “new” responsibilities addressed only part of the required analysis; Article 28-a encompasses not only new responsibilities, but also modified or expanded responsibilities. See N.H. Assoc. of Counties, 158 N.H. at 294 (Duggan, J., concurring in part and dissenting in part) (“[T]he ‘sweeping prohibition’ created by the term ‘responsibility’ within Article 28-a . . . includes not only new responsibilities but also modified and expanded responsibilities.”). Moreover, in our most recent Article 28-a decision, New Hampshire Assoc. of Counties, our conclusion that the subject legislation did not constitute an unconstitutional unfunded mandate was based upon the fact that, ultimately, the counties were not subject to any “additional fiscal requirement[s].” Id. at 290-91.

Teachers, firefighters, and police officers employed by local government are required to participate in NHRS as a condition of employment. RSA 100-A:3, 1(a). The local governments thus do not have the option to withdraw these employees from NHRS and as their employers, may not decline to contribute to its funding. RSA 100-A:1, TV; RSA 100-A:16, II. The effect of section 52, therefore, is to impose additional financial expenditures on local governments that have no choice but to comply. Article 28-a was adopted by the citizens of this state for the purpose of preventing precisely the action mandated by section 52. The majority, however, is concerned that if the court holds that section 52 violates Article 28-a, “the State would effectively be at the mercy of local governments with respect to the state budgeting and appropriations process.” But ultimately it is the State’s responsibility to budget in a manner that does not violate our constitution. Financial consequences of compliance with our constitution cannot justify relief from its plain language. Moreover, given their obligations to the people in their communities regarding education and police and fire protection, it is doubtful that the local subdivisions would make budgetary decisions with an eye toward controlling the State’s budget.

Because I conclude that section 52 constitutes an unfunded mandate prohibited by Article 28-a, I respectfully dissent.