2007 Autumn, Pg. 46. The Attorney General's Role in Overseeing Municipal Governance.

AuthorBy Attorneys James W. Kennedy and Orville "Bud" Fitch, II

New Hampshire Bar Journal


2007 Autumn, Pg. 46.

The Attorney General's Role in Overseeing Municipal Governance

New Hampshire Bar JournalAutumn 2007, Volume 48, No. 3Municipal LawThe Attorney General's Role in Overseeing Municipal Governance(fn1)By Attorneys James W. Kennedy and Orville "Bud" Fitch, III. Introduction

The Attorney General is the chief law enforcement officer in the State of New Hampshire and, as such, her responsibilities are broad and numerous.(fn2) Among those responsibilities, she is charged with enforcing New Hampshire's election laws.(fn3) As the chief election law enforcement officer, the Attorney General safeguards the democratic process in New Hampshire to ensure that every qualified citizen is provided an opportunity to vote, and that every vote is counted.

The Attorney General's responsibility to safeguard the democratic process derives from her: (1) role as chief law enforcement officer; (2) specific statutory duties; and (3) vast common law responsibility and authority.(fn4) The Attorney General's responsibilities and the authority necessary to fulfill those responsibilities are defined by statute and by common law.(fn5)

The Attorney General is charged with representing the State in all "criminal and civil cases in which the state is interested."(fn6) She also has a duty to "represent the public interest in the administration of the department of justice and be responsible to the governor, the general court, and the public for such administration."(fn7)

The Attorney General may institute, conduct and maintain all suits necessary for the enforcement of the laws of the State, preservation of order, and the protection of public rights.(fn8) The Attorney General holds all the traditional common law powers of the Office, except insofar as they have been expressly restricted or modified by statute or the New Hampshire Constitution.(fn9)

At common law, from the earliest days of the Office's creation in England, the Attorney General's role was viewed as a representative of the public interest and not merely the institutional State.(fn10) In Commonwealth v. Kozlowsky, the Supreme Judicial Court of Massachusetts summarized the historical common law powers of the Attorney General as follows:

The office of Attorney General has existed from an early period, both in England and in this country, and is vested by the common law with a great variety of duties in the administration of the government. The duties are so numerous and varied that it has not been the policy of the Legislatures of the states of this country to attempt specifically to enumerate them. Where the question has come up for consideration, it is generally held that the office is clothed, in addition to the duties expressly defined by statute, with all the power pertaining thereto at the common law. From this it follows that, as the chief law officer of the state, he may, in the absence of some express legislative restriction to the contrary, exercise all such power and authority as public interests may from time to time require. He may institute, conduct, and maintain all such suits and proceedings as he deems necessary for the enforcement of the law of the state, the preservation of order, and the protection of public rights.(fn11)

Similarly, the New Hampshire Supreme Court has recognized that the Attorney General is "charged with representing the State in all causes in this court `in which the state is interested.'"(fn12) While many of her responsibilities are established in specific statutes, such "specific statutory duties in no way detract from . . . [her] powers and duties at common law."(fn13) In performing her duties, the Court has observed that the "interest of the public . . . cannot be . . . jeopardized."(fn14) Thus, the Attorney General's power is truly sui generis.

The Attorney General's statutory role in overseeing the process by which municipalities govern themselves through adopting, revising, or amending charters, and entering into intermunicipal governmental agreements, also demonstrates the breadth of the Attorney General's authority in fulfilling her responsibility to safeguard the democratic process.(fn15) This article reviews the Attorney General's responsibilities in overseeing municipal elections and meetings, as well as her overall role safeguarding New Hampshire's democratic process.

  1. The Attorney General's Role in Enforcing Election Law at Municipal Elections and Annual/Special Meetings

    Part I, article 11 of the New Hampshire Constitution provides, in part, that "[a]ll elections are to be free, and every inhabitant of the state of 18 years of age and upwards shall have an equal right to vote in any election." To safeguard this constitutional provision, and pursuant to RSA 7:6-c, the Legislature designates the Attorney General to enforce all election laws in New Hampshire.(fn16)

    As New Hampshire's chief election law enforcement officer, "[u]pon receipt of a written complaint signed by a voter of the state of New Hampshire, or upon h[er] own motion, the [A]ttorney [G}eneral may in h[er] discretion, conduct investigations to determine whether any violation of the election laws has occurred and may prosecute anyone responsible for such a violation."(fn17) This power permits the Attorney General to "enlist the aid of the county attorneys, the state police, and other public officers."(fn18) Further, the Attorney General may conduct hearings, in which testimony is given under oath, and issue subpoenas to require witness attendance and require the "production of books, documents, records and other tangible goods . . . ."(fn19)

    The Attorney General, through the Elections Unit in the Division of Legal Counsel and the Public Integrity Unit in the Division of Public Protection, investigates allegations of criminal misconduct by public officials acting in their official capacity, including municipal officials and employees.(fn20) Several statutes related to elections and annual meetings make violations of the statutes a criminal offense.(fn21) Complaints related to these statutes receive high priority at the Attorney General's Office.

    The Attorney General's responsibilities and authority are also, in part, embodied in the common law doctrine of parens patriae. Meaning literally "`parent of the country,' parens patriae traditionally referred to the role of the state as sovereign and guardian of persons under legal disability."(fn22) Over time, the meaning of the doctrine has evolved, and parens patriae has become a far broader responsibility for the Attorney General.(fn23) Today, it is a concept of standing utilized to allow the State to protect "quasi-sovereign" interests such as the health, comfort and welfare of its citizens, interstate water rights, and the general economy of the State.(fn24) In bringing a parens patriae action, the State must assert an injury to a "quasi-sovereign" interest, an interest apart from the interests of particular private parties.(fn25) Second, the State must allege injury to a "substantial segment" of its population.(fn26) The Attorney General has a responsibility to act as parens patriae to protect the public interests of all the members of municipalities in having a process of self-governance that conforms to our Constitution and state statutes.

    Finally, the Attorney General's quo warranto power, which is an exclusive right of the Attorney General to challenge a person's right to hold public office, further demonstrates the breadth of her responsibility and authority to safeguard the democratic process used by New Hampshire's municipalities.(fn27) "Absent wrongdoing sufficient to justify impeachment or address, quo warranto is the only means by which a person's right to hold and exercise public office may be challenged."(fn28)

    Accordingly, the Attorney General has the statutory and common law responsibility, and authority, to represent or furnish legal counsel to many interests, which include: the State, its agencies and the public interest.(fn29) Paramount of all of these duties is the Attorney General's duty to protect the general public interest.(fn30)

  2. Safeguarding the Democratic Process at the Local Level Serves the Public Interest

    The philosopher, John Stuart Mill, opined that there is no question that the root of democracy starts at the local level.(fn31) In On Liberty, Mill wrote "[a] democratic institution, not supported by democratic institutions in detail, but confined to the central government, not only is not political freedom, but often carries a spirit precisely the reverse, carrying down to the lowest grade in society the desire and ambition to political domination."(fn32) The Attorney General's efforts ensuring compliance with the laws governing the democratic process at the municipal level sustain this principle.

    In Alexis de Tocqueville's Democracy in America, the French philosopher began his analysis with an examination of the New England township and the town meeting form of government.(fn33) According to Tocqueville, the "great political principles which now govern American society undoubtedly took their origin and their growth in the state" which directly stem from the township.(fn34) Tocqueville observed the "township is the first in order, then the county and lastly the state."(fn35)

    The strength of New Hampshire's democratic process at the state level significantly benefits from New Hampshire towns' and cities' adherence to the laws governing...

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