Right to Petition Legislature ≠ Right to a Legislative Hearing

From Richard v. Speaker of the House of Reps., decided today by the N.H. Supreme Court, in an opinion by Justice Gary Hicks:

On May 20, 2019, the plaintiff filed a remonstrance with the Secretary of State, the Governor, and the clerks of the House of Representatives and the Senate. His remonstrance complained that RSA chapter 654 diluted his vote because it granted "the right of suffrage to unqualified resident aliens."

The House Clerk received the remonstrance, but did not publish it or recognize its receipt in the House Calendar. The plaintiff re-filed his remonstrance and the House Clerk eventually published it in the House Calendar on December 31, 2020.

The plaintiff filed a second remonstrance with the same offices on January 6, 2020. His second remonstrance complained about House Bill 687-FN, a so-called "red flag" bill[, which] {allows "courts to order that firearms be temporarily removed from individuals who pose an imminent risk of harm to themselves or others"}. The January 10, 2020 House Calendar reflected receipt of the remonstrance, stating that it had been filed and was "available for inspection in the Office of the Clerk of the House." Neither the Speaker nor the Senate President otherwise notified their respective legislative bodies.

Plaintiff sued, claiming he was entitled under the state constitution to have a hearing on his petitions, but the court disagreed:

Except for minor differences in punctuation, Part I, Article 32 provides now as it provided when it was first enacted:

The people have a right, in an orderly and peaceable manner, to assemble and consult upon the common good, give instructions to their representatives, and to request of the legislative body, by way of petition or remonstrance, redress of the wrongs done them, and of the grievances they suffer.

To the framers, the word "redress" in this context meant to remedy or repair. The noun "petition" referred to a written or formal request "to a legislative or other body, soliciting some favor, grant, right or mercy." A "grievance" was defined as "that which burdens, oppresses, or injures, implying a sense of wrong done, or a continued injury, and therefore applied only to the effects of human conduct; never to providential evils" as in, "The oppressed subject has the right to petition for a redress of grievances." A "remonstrance" as used in Part I, Article 32 was a "strong representation of reasons against a measure," which "when addressed to a public body … may be accompanied with a petition or supplication for the removal or prevention of some evil or inconvenience," as in "[a] party aggrieved presents a remonstrance to the legislature." Thus, pursuant to its plain language, as understood by the framers, Part I, Article 32 grants citizens the right to request, by way of a formal petition or remonstrance, that the legislature right a wrong.

The United States Supreme Court has held that the analogous provision of the First Amendment does not include a right to a response. The First Amendment to the Federal Constitution provides, in pertinent part, that "Congress shall make no law … abridging … the right of the people … to petition the Government for a redress of grievances." In Smith v. Arkansas State Highway Employees (1979), the Court ruled that the state highway commission had not violated the First Amendment by failing to respond to or consider grievances that employees had submitted through their union because "the First Amendment does not impose any affirmative obligation on the government to listen" or "respond" to such grievances.

Similarly, in Minnesota Board for Community Colleges v. Knight (1984), the Court held that a state law that required public employers to discuss certain matters exclusively with a union representative, instead of with employees directly, did not violate the First Amendment because "[n]othing in [that amendment] or in [the] Court's case law interpreting it suggests" that the right to petition requires "government policymakers to listen or respond to individuals' communications on public issues." The Court held that individuals "have no constitutional right as members of the public to a government audience for their policy views."

Some commentators have suggested that the Court in Smith and Knight "overlooked important historical information regarding the right to petition," and, therefore, erred by concluding that the federal right to petition does not include a right to a governmental response. "Those commentators point to the government practice of considering petitions in some quasi-formal fashion from the 13th century in England through American colonial times—a practice that continued in the early years of the American Republic." "Based on this historical practice, … these commentators contend that the Petition Clause should be interpreted to incorporate a right to a response to or official consideration of petitions." See, e.g., Stephen A. Higginson, A Short History of the Right To Petition Government for the Redress of Grievances, 96 Yale L.J. 142, 155 (1986); James E. Pfander, Sovereign Immunity and the Right to Petition: Toward a First Amendment Right to Pursue Judicial Claims Against the Government, 91 Nw. U. L. Rev. 899, 905 & n. 22 (1997); Julie M. Spanbauer, The First Amendment Right to Petition Government for a Redress of Grievances: Cut From a Different Cloth, 21 Hastings Const. L.Q. 15, 33 (1993).

"Other scholars disagree, arguing based on the plain text of the First Amendment that the right to petition the government for a redress of grievances really is just a right to petition the government for a redress of grievances." "These scholars note that the Petition Clause by its terms refers only to a right 'to petition'; it does not also refer to a right to response or official consideration." see, e.g., Gary Lawson & Guy Seidman, Downsizing the Right to Petition, 93 Nw. U. L. Rev. 739, 759-62 (1999); Norman B. Smith, "Shall Make No Law Abridging … ": An Analysis of the Neglected, but Nearly Absolute, Right of Petition, 54 U. Cin. L. Rev 1153, 1190-91 (1986).

We need not decide in this case whether Part I, Article 32 of the New Hampshire Constitution requires the legislature to respond to a remonstrance because the plaintiff did not seek a response; rather, he sought a legislative hearing. In his complaint, the plaintiff alleged that the Speaker acted unconstitutionally because he neglected "to call to assemble the legislative body as a whole, [so] as to provide [him] with redress of grievances." The plaintiff requested an order "compelling [the] Speaker … (to assign to a committee for public hearing) to assemble the legislative body as a whole for a public hearing as stated in the Constitution for redress of grievances." Accordingly, in light of the plaintiff's allegations, the question we must answer is whether Part I, Article 32, alone or in conjunction with other constitutional provisions, obligates the legislature to assemble in order to hold a public hearing on a remonstrance.

Even those commentators who believe that, historically, the right to petition included the right to a response agree that it did not include a right to a hearing. As one commentator has noted, "[a] petitioner never possessed the right to a full legislative discussion or a debate of a particular petition, nor to a public forum to present testimony relevant to a petition." And, as another has stated with regard to the right to petition in the First Amendment, "the duty, if any, that the First Amendment imposes on government to respond to petitions likely is minimal" and does not include "giv[ing] petitioners the opportunity to personally appear and present their views." Carol Rice Andrews, A Right of Access to Court under the Petition Clause of the First Amendment: Defining the Right, 60 Ohio St. L.J. 557, 643-44 (1999).

Courts construing the right to petition in other state constitutions have ruled that the right to petition does not include a right to a legislative hearing…. The plaintiff argues that, in contrast to other state constitutions, the New Hampshire Constitution "confers a right on a citizen to orally address the Senate and the House." He argues that Part I, Article 32 must be read together with Part I, Article 31 and Part I, Article 30, and that, collectively, these provisions establish that right. We disagree.

The plain language of Part I, Articles 31 and 30 of the State Constitution does not support the plaintiff's assertions. As originally enacted in 1784, Part I, Article 31 provided: "The legislature ought frequently to assemble for the redress of grievances, for correcting, strengthening and confirming the laws, and for making new ones, as the common good may require." … As amended in 1792, Part I, Article 31 provided: "The legislature shall assemble for the redress of public grievances, and for making such laws as the public good may require." … In Merrill v. Sherburne (1818), we clarified that the phrase "redress of public grievances" in Part I, Article 31 refers merely to the legislature's authority to enact laws for the public good…. As such, Part I, Article 31 confers no particular rights upon individual citizens. Rather, it "describes the entire purpose of the legislature." David C. Steelman & John Cerullo, Judicial Accountability in a Time of Tumult: New Hampshire's Impeachment Crisis of 2000, 69 Rutgers L. Rev. 1357, 1392 n.158 (2017); see Lawrence Friedman, The New Hampshire State Constitution 100 (2d ed. 2015)….

Part I, Article 30, the Speech and Debate Clause of the State Constitution, protects the legislature's right to free deliberation and debate. Part I, Article 30 provides: "The freedom of deliberation, speech, and debate, in either house of the legislature, is so essential to the rights of the people, that it cannot be the foundation of any action, complaint, or prosecution, in any other court or place whatsoever." The New Hampshire Speech and Debate Clause "is the equivalent of the speech or debate clause, article I, section 6 of the United States Constitution." … As the Supreme Court has stated with regard to the federal Speech or Debate Clause, "[t]he central role of the Speech or Debate Clause [is] to prevent intimidation of legislators by the Executive and accountability before a possibly hostile judiciary." … Thus, Part I, Article 30 protects the right of individual legislators and the legislature as a whole to freely deliberate and debate. While this right inures to the benefit of the public, Part I, Article 30 confers no right upon members of the public to participate in legislative debate or deliberation….

The plaintiff appears to maintain that he had a due process right to a legislative hearing on his remonstrances. The United States Supreme Court rejected a similar argument in Bi-Metallic Co. v. Colorado (1915), construing the Due Process Clause of the Fourteenth Amendment to the Federal Constitution…. We adopt the same reasoning [details omitted -EV] under our State Constitution.

As Chief Justice Doe explained in State v. Hayes (1881), ours is a representative democracy, not a "pure democracy." "It is inherent in a republican form of government that direct public participation in government policymaking is limited." "Not least among the reasons for refusing to recognize such a right is the impossibility of its judicial definition and enforcement," implicating separation-of-powers concerns. "However wise or practicable various levels of public participation in various kinds of policy decisions may be," nothing in the Due Process Clause of the State Constitution suggests that "government must provide for such participation." …