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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 ___________________________ Merrimack No. 2009-621 BOARD OF TRUSTEES OF THE NEW HAMPSHIRE JUDICIAL RETIREMENT PLAN & a. v. SECRETARY OF STATE Argued: April 22, 2010 Opinion Issued: October 27, 2010 Douglas, Leonard & Garvey, P.C., of Concord (Charles G. Douglas, III on the brief) and David M. Howe, of Concord, by brief, for the plaintiff. Michael A. Delaney, attorney general (Richard W. Head, associate attorney general, on the brief and orally), for the defendant. Getman, Schulthess & Steere, P.A., of Bedford (Andrew R. Schulman on the brief and orally), for the intervenor, New Hampshire Retirement System. DUGGAN, J. The defendant, the Secretary of State (State), appeals an order of the Superior Court (Nicolosi, J.) enjoining the enforcement of the Sudan Divestment Act. We reverse and remand.

The record reflects the following facts. The plaintiff, New Hampshire Judicial Retirement Plan (Judicial Plan), and the intervenor, New Hampshire Retirement System (NHRS) (retirement systems, collectively), are "defined pension benefit plans," which invest and manage funds held by the State pursuant to RSA chapter 100-C (Supp. 2009) and RSA chapter 100-A (2001 & Supp. 2009). Each eligible retiree receives a specified benefit set forth by statute. The Judicial Plan is a defined benefit pension trust for all state court judges, see RSA 100-C:2, funded by contributions from its members and the State, and earnings on investments. See RSA 100-C:13. The NHRS is a defined benefit pension trust for state and political subdivision employees. See RSA 100-A:2, :3. It is funded exclusively through member and employer contributions and investment income. RSA 100-A:16 (Supp. 2009). The NHRS trustees have the authority to set the trust's investment strategy, but that authority is accompanied by a strict fiduciary responsibility. See RSA 100A:15, I-a. In the early 1980s, the legislature borrowed $5,000,000 from the NHRS to finance unrelated state projects. The legislature also set contribution rates for state employees below what was determined by the NHRS trustees to be actuarially required. In response, the 1984 Constitutional Convention proposed Article 36-a to Part I of the New Hampshire Constitution, which the state's voters later approved by a margin of 288,994 to 48,690. Part I, Article 36-a provides: The employer contributions certified as payable to the New Hampshire retirement system or any successor system to fund the system's liabilities, as shall be determined by sound actuarial valuation and practice, independent of the executive office, shall be appropriated each fiscal year to the same extent as is certified. All of the assets and proceeds, and income therefrom, of the New Hampshire retirement system and of any and all other retirement systems for public officers and employees operated by the state or by any of its political subdivisions, and of any successor system, and all contributions and payments made to any such system to provide for retirement and related benefits shall be held, invested or disbursed as in trust for the exclusive purpose of providing for such benefits and shall not be encumbered for, or diverted to, any other purposes. Since 2004, the United States government has recognized that the government of Sudan has engaged in genocide against the non-Arab population in the Darfur region of that country. In 2007, Congress enacted the Sudan Accountability and Divestment Act of 2007 (SADA) "[t]o authorize State and local governments to divest assets in companies that conduct business operations in Sudan." Pub. L. No. 110-174,

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