Merrimack

No. 97-001

CLAREMONT SCHOOL DISTRICT & a.

v.

GOVERNOR & a.

(costs and attorney's fees)

December 30, 1999

Stein, Volinsky & Callaghan, P.A., of Concord (Andru H. Volinsky and Scott F. Johnson on the pleadings), and John E. Tobin, Jr., of Concord, on the pleadings, for the plaintiffs.

Philip T. McLaughlin, attorney general (Mr. McLaughlin & a. on the pleadings), for the State.

JOHNSON, J. Since 1993, we have issued seven decisions related to this litigation. After our decision in Claremont School District v. Governor, 142 N.H. 462, 703 A.2d 1353 (1997) (Claremont II), the plaintiffs, five school districts, five students, and eight taxpayers and parents, filed a motion for taxation of costs pursuant to Supreme Court Rule 23, and filed a separate motion seeking to have the State pay their attorney's fees and costs "for prevailing in the liability phase of the Claremont litigation." In Claremont School District v. Governor (Motion for Extension of Deadlines), 143 N.H. 154, 160, 725 A.2d 648, 651 (1998), the State having failed to object, we granted the plaintiffs' motion for taxation of costs and deferred consideration of their motion for attorney's fees and costs.

The State moved to reconsider the award of costs. With respect to both the motion for reconsideration of the award of costs and the motion for attorney's fees and costs, the State raises the defense of sovereign immunity. For reasons that follow, we now hold that sovereign immunity bars the award of costs but that it does not preclude the award of attorney's fees to the plaintiffs.

In New Hampshire, the sovereign immunity of the State is based on two separate grounds. First, the State is immune from liability for torts committed by its officers and employees. Sousa v. State, 115 N.H. 340, 342, 341 A.2d 282, 284 (1975). Second, the State is immune from suit in its courts without its consent. Id.; see Tilton v. Dougherty, 126 N.H. 294, 297, 493 A.2d 442, 444 (1985). Both the State's immunity from suit and its immunity from liability for torts are "traced back to the immunity of the British Crown carried over to the States by the courts." Sousa, 115 N.H. at 342, 341 A.2d at 284. Sovereign immunity "rested on a common law basis in this State until the enactment in 1978 of RSA 99-D:1, . . . which adopted [the] doctrine[] `as the law of the state,' except where a statute might provide an exception." Tilton, 126 N.H. at 298, 493 A.2d at 444.

The contents and scope of the doctrine[] as adopted by the legislature are not described in the statute itself, and we are aware of no legislative history indicating the legislature's assumptions. It is reasonable to infer, therefore, that when the legislature placed the doctrine[] of sovereign . . . immunity on a statutory basis it intended to adopt the common law of the State as it existed at the enactment of the statute in 1978.

Id.

As an initial matter, the plaintiffs argue that the State waived its objection to their motion for taxation of costs because it did not object within the ten days required by Supreme Court Rule 21. In LaRoche, Administrator v. Doe, 134 N.H. 562, 594 A.2d 1297 (1991), however, we rejected a similar argument. The plaintiff in LaRoche argued that because the attorney general did not file a special appearance or assert sovereign immunity in a brief statement, special plea, or pretrial statement, the State had waived its sovereign immunity. We concluded that "[s]overeign immunity is a jurisdictional question not to be waived by conduct or undermined by estoppel," LaRoche, 134 N.H. at 566, 594 A.2d at 1300 (quotation omitted), and that "[i]t is not a defense which must be affirmatively pled." Id.

Neither improvident procedural choices, nor the tardiness of the State's attorney in raising sovereign immunity, can be a proper basis for finding that immunity waived. Because the State's sovereign immunity may be waived only by the legislature, a fortiori the State's actions in failing to swiftly seek dismissal of this case . . . had no effect as a waiver of the State's basic immunity from suit.

Id. at 567-68, 594 A.2d at 1301. The State's challenge on the basis of sovereign immunity to the costs we awarded pursuant to Supreme Court Rule 23 is, therefore, a challenge to the court's subject matter jurisdiction, which may be raised at any time. See K & J Assoc. v. City of Lebanon, 142 N.H. 331, 333, 703 A.2d 253, 254 (1997). Accordingly, we conclude that the State did not waive its objection to the motion for taxation of costs.

The State generally is immune from suit in its courts without its consent. The plaintiffs were entitled to maintain their suit in this case even without legislative consent, however, because their theory was that the official actions taken by the defendants were unconstitutional.

When a law is challenged as unconstitutional, the claim is that the law is void and hence that no law has been enacted. It follows that if the legislature has not acted under authority, no action has been taken by the State, and hence when suit is brought to restrain those representing the State from carrying the void legislation into operation and enforcing it, it is not a proceeding to which the State is a party. What is forbidden by the Constitution is outside the field of state activity; restraint of forbidden action is not imposed by the courts upon the State but upon those asserting the right to take the action as though it were the State's and as though binding upon it.

Conway v. Water Resources Board, 89 N.H. 346, 348, 199 A. 83, 86 (1938) (citations omitted); see O'Neil v. Thomson, 114 N.H. 155, 159, 316 A.2d 168, 170-71 (1974).

The declaratory judgment statute, RSA 491:22 (1997), "has long been construed to permit challenges to the constitutionality of actions by our government or its branches." Grinnell v. State, 121 N.H. 823, 825, 435 A.2d 523, 525 (1981). Because the plaintiffs sought injunctive relief and a declaratory judgment that the system by which the State funded public education was unconstitutional and thus void, the court had jurisdiction to grant equitable relief. Therefore, sovereign immunity would not bar the underlying action, regardless of whether the State consented to suit. We turn to determine, however, whether sovereign immunity would apply to bar an award of either costs or attorney's fees arising from litigation that is not otherwise barred by the doctrine.

As a general rule, costs are "allowable only when authorized by statute or court rule." 20 C.J.S. Costs