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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Coos No. 2005-470 DARREN STARR v. GOVERNOR Argued: July 20, 2006 Opinion Issued: September 26, 2006 Darren Starr, pro se, on the brief, and Wadleigh, Starr & Peters, P.L.L.C., of Manchester (Robert E. Murphy, Jr., on the supplemental memorandum of law and orally), for the petitioner. Kelly A. Ayotte, attorney general (Andrew B. Livernois, assistant attorney general, on the memorandum of law and orally), for the respondent. DALIANIS, J. The petitioner, Darren Starr, appeals an order of the Superior Court (Vaughan, J.) dismissing his petition for declaratory judgment. We affirm. The facts of this case are not in dispute. In October 1981, the Governor issued a resolution calling the legislature into special session (1981-1982 special session), to begin on November 17, 1981. The resolution stated that "the welfare of the State" necessitated the special session, and that certain enumerated matters required legislative action. One such matter was the

"enactment of corrective legislation" to address the unforeseen impact of "certain laws enacted during the 1981 regular session." During the 1981-1982 special session, the house of representatives drafted and presented for consideration House Bill 20, which, in its initial form, addressed minimum mandatory sentences for driving while intoxicated. The house subsequently passed an amended version of House Bill 20, which was also passed by the senate, and signed into law by the Governor. The amended portion of House Bill 20 became RSA 651:2, II-e (Supp. 2005), also known as the "truth in sentencing" law. The petitioner was convicted of second-degree murder on November 17, 1987, and sentenced to a term of twenty-eight years to life imprisonment in accordance with RSA 651:2, II-e. In December 2004, he sought a declaratory judgment that the legislature had illegally adopted RSA 651:2, II-e. The respondent, the Governor, responded with a motion to dismiss, which was granted on March 3, 2005. This appeal followed. On appeal, the petitioner argues that the legislature, when meeting in special session, is restricted to considering only those matters enumerated in the Governor's resolution calling for such session. He further contends that the enactment of RSA 651:2, II-e violated the due process protections of the State and Federal Constitutions. I. Justiciability

We must first determine whether the petitioner's claim that the legislature enacted RSA 651:2, II-e outside of the authority granted to it by the Governor is, as the respondent contends, a nonjusticiable political question. This is a question of law, which we review de novo. Hughes v. Speaker, N.H. House of Representatives, 152 N.H. 276, 283 (2005). "The political question doctrine is essentially a function of the separation of powers, existing to restrain courts from inappropriate interference in the business of the other branches of Government, and deriving in large part from prudential concerns about the respect we owe the political departments." Baines v. N.H. Senate President, 152 N.H. 124, 128 (2005) (quotation omitted). The principle of separation of powers is set forth in Part I, Article 37 of the New Hampshire Constitution. Id. The justiciability doctrine prevents judicial violation of the separation of powers by limiting judicial review of certain matters that lie within the province of the other two branches of government. Id.

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A case presents a nonjusticiable political question when there is a textually demonstrable constitutional commitment of the issue to a coordinate political department. Petition of Judicial Conduct Comm., 151 N.H. 123, 128 (2004). Where such a commitment exists, we must decline to adjudicate the matter to avoid encroaching upon the powers and functions of that coordinate political branch. Id.; see also Baines, 152 N.H. at 128 ("If a question is not justiciable, it is not ours to review."). Deciding whether a matter has, in any measure, been committed by the constitution to another branch of government is itself a delicate exercise in constitutional interpretation, and is a responsibility of this court as its ultimate interpreter. Hughes, 152 N.H. at 283. Part II, Article 3 of the State Constitution instructs the senate and house to "assemble biennially on the first Wednesday of December for organizational purposes in even numbered years, and . . . assemble annually on the first Wednesday following the first Tuesday in January, and at such other times as they may judge necessary . . . ." N.H. CONST. pt. II, art. 3. Part II, Article 50 of the State Constitution grants the Governor the power to call the legislature, when adjourned, into an extra session if and when the welfare of the State so requires. N.H. CONST. pt. II, art. 50; see also Opinion of the Justices, 115 N.H. 686, 692 (1975). The State Constitution does not, however, mandate that the Governor set forth with particularity the business to be taken up by the legislature during such extra sessions; nor does it limit the scope of the legislature's power upon being called together by the Governor. Rather, the State Constitution grants the legislature the "full power and authority" to make, "from time to time," laws and statutes, "for the benefit and welfare of this state," so long as such enactments are constitutional. N.H. CONST. pt. II, art. 5. In the absence of any constitutional language or provision limiting this "full power and authority" to the regular legislative sessions prescribed by Part II, Article 3 of the State Constitution, we interpret the phrase "from time to time" to encompass any time the legislature is called into session. Thus, Part II, Article 5 of the State Constitution plainly constitutes a "textually demonstrable constitutional commitment" of the authority to make laws to the legislative branch. The petitioner points out that Part II, Article 50 of the State Constitution empowers the Governor to call the legislature into extra sessions "if the welfare of the state should require the same," and contends that this final clause constitutes a limit upon the legislature's power to enact laws when so called. We disagree. The quoted clause constitutes a limitation upon the power of the executive branch to call the legislature into extra sessions. In other words, the Governor may call for an extra session only when, in the Governor's judgment, it is required for the welfare of the State. The clause does not in any way limit the legislature's response to the Governor's call for a special session.

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The petitioner further contends that because Part II, Article 50 of the State Constitution does not expressly authorize "the enactment of laws that the [G]overnor does not identify as being necessary for the welfare of the state," the legislature was required to abide by the direction of Mason's Manual of Legislative Procedure. Legislative rules in effect during the 1981-1982 special session provided that "[i]n such cases where New Hampshire Committee Rules are silent, `Mason's Manual of Legislative Procedures' [sic] shall be referred to as the primary guide." Manual of the New Hampshire General Court 1981 at 119; see also Keefe v. Roberts, 116 N.H. 195, 197 (1976). Mason's Manual stipulated that, when called into a special session by a governor, a legislature should only enact laws that come within the scope of the governor's resolution. National Conference of State Legislatures, Mason's Manual of Legislative Procedure

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