The #VolinskyAgenda’s Silly Coup Attempt

This breathless tweet from Democrat operative -oops, I mean WMUR crack political reporter- Johnny DiStaso:

In the underlying article, DiStaso writes:

In a statement to WMUR, Volinsky said, “A slim majority of the New Hampshire Supreme Court decided last year that the Executive Council has a role in advising the governor with respect to vetoes. The governor issued a veto today of legislation that would have repealed capital punishment in New Hampshire. He did so without consulting the Executive Council and he, therefore, engaged in conduct that violated the New Hampshire Constitution.”

Let’s begin with DiStaso’s tweet that #VolinskyAgenda “says state Supreme Court created precedent requiring Exec Council advice prior to vetoes.” Even if the Supreme Court said such a thing -which as I will show below it CLEARLY did NOT- the decision #VolinskyAgenda is referring to was an “Opinion of the Justices,” an advisory opinion that -as Volinsky is well aware- does not set precedent.

The Supreme Court has been saying for decades that when it issues a advisory opinion to another branch of government, it’s members are acting as individual constitutional advisors as opposed to acting as a court, and so it is not creating precedent. From a 2015 Opinion of the Justices:

Part II, Article 74 of the State Constitution “empowers the justices of the supreme court to render advisory opinions, outside the context of concrete, fully-developed factual situations and without the benefit of adversary legal presentations, only in carefully circumscribed situations.” Duncan v. State, 166 N.H. 630, 640, 102 A.3d 913 (2014) (quotation omitted). “Part II, Article 74 does not authorize this court to render advisory opinions to private individuals.” Id. “Nor does it empower the court to issue advisory opinions … regarding existing legislation.” Id. at 640-41, 102 A.3d 913 (quotation omitted). “That authority extends only to proposed legislation.” Id. at 641, 102 A.3d 913. Further, when we issue such opinions, “we act not as a court, but as individual constitutional advisors to the legislative or executive branches.” Opinion of the Justices (Appointment of Chief Justice), 150 N.H. at 356, 842 A.2d 816. Because an opinion of the justices is an advisory opinion issued to a branch of the legislature, Governor, or Executive Council, and is not an opinion of the court in a litigated case, an opinion of the justices “does not constitute binding precedent.” State v. Ploof, 162 N.H. 609, 625, 34 A.3d 563 (2011). Moreover, the constitutional duty of the justices of the supreme court to give advisory opinions does not include answering legal questions that require resolving questions of fact. Opinion of the Justices (School Financing), 142 N.H. 892, 897, 712 A.2d 1080 (1998).

In other words, even if the Supreme Court had said the Governor is required to consult with the Executive Council before vetoing a bill (WHICH IT DID NOT), the Governor would be free to take or to leave such advice.

Now let’s take a look at the decision #VolinskyAgenda is relying on, an Opinion of the Justices on House Bill 1264, the bill that made the act of voting in New Hampshire a declaration of residency in New Hampshire.

#VolinksyAgenda and his mini-me Chris Pappas (I prefer Liddle Chris) filed a memorandum in that case arguing that the State Supreme Court should decline the Governor’s request for an advisory opinion. More specifically, the not-so-dynamic duo argued that because the constitution provides that an advisory opinion request must come from both the Governor and the Council, but the Governor does not need the consent of the Council to veto a bill, the Council has no interest in and therefore cannot request such an advisory opinion.

The Court rejected this argument:

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 Court clearly did NOT say that it would issue an advisory opinion because the Governor must obtain the consent or even the advice of the Council on whether to issue a veto or not. To the contrary, the Court agreed with #VolinskyAgenda that the Governor alone has the responsibility, and therefore the authority, to decide whether to veto a bill.

Moreover, because the Court stated that it is the Governor alone who has the constitutional responsibility over whether to veto HB 1264, the reasonable reading of the advisory role of the Council in the passage above is advice as to whether or not to seek an advisory opinion. Even if this reading is rejected, the context makes clear that at the most the Court is saying that the Governor may, but is not required to, ask for the advice of the Council on vetoes.

The bottom line is that the Court clearly did NOT say anything remotely resembling what #VolinskyAgenda is claiming it said.

Apparently, #VolinskyAgenda wants to become Governor not by running for Governor and getting the most votes, but by usurping the powers of the Governor via a coup based on legal gobbledygook.