Case Details


New Hampshire Supreme Court Held That The Legislature Could Not Direct The Attorney General, Through A Statute, To Join Specific Litigation.

Filing State



New Hampshire Supreme Court




Opinion of the Justices (Requiring Attorney General to Join Suit) No. 2011-319 (N.H., June 15, 2011)


State legislature cannot statutorily require the Attorney General to file a particular case.

Case Description

The New Hampshire Senate requested an advisory opinion from the state supreme court as to whether HB 89, a bill which “requir[ed] the Attorney General to join the lawsuit challenging the Patient Protection and Affordable Care Act” violated the state’s Constitution. The state supreme court held that HB 89 is unconstitutional because it violates the separation of powers doctrine in the New Hampshire Constitution. Reviewing the history of the state’s constitution, the court concluded that the constitution gives “the executive the exclusive power to enforce the law” and made the executive responsible for “initiating civil actions on behalf of the State. . . The executive branch alone has the power to decide the State’s interest in litigation.” The court held “In mandating this action—to join a specific lawsuit on a particular side—the legislature would exceed its authority to prescribe the duties of the attorney general. In so doing, it would deprive the executive of its essential power to determine the State’s interest in civil litigation.” The court also dismissed the legislature’s argument that the filing of this case was a political, rather than a legal, decision. The court stated, “The policy-making authority to determine whether the State should join the Florida lawsuit has been delegated by the constitution to the executive branch. It is the executive, not the legislative branch, in which the constitution vests the power to determine the State’s interest in any litigation.”