The following is the "Summary of Argument" from the brief submitted July 23, 2002, to the NH Supreme Court on behalf of Justices Sherman D. Horton, David A. Brock and John T. Broderick, Jr., by attorneys Kevin M. Leach and David L. Nixon. The case was accepted on June 7, 2002, by a substitute panel of the Supreme Court consisting of superior court justices Peter Fauver and Gary Hicks and retired superior court justices Margaret Flynn, Robert Dickson and George Manias. The state's reply brief is due Aug. 23, 2002.

THIS APPEAL INVOLVES momentous issues of constitutional law, including the principle of judicial independence. The outcome it produces will determine for decades, if not for all time, whether the judiciary of New Hampshire will be subordinate to the legislative and executive branches of government. In this appeal, petitioners are seeking reimbursement from the state of New Hampshire for the reasonable attorneys' fees and costs they incurred in successfully defending claims leading to and included in the impeachment proceedings before the New Hampshire House of Representatives and New Hampshire State Senate.

This issue is justiciable. An issue or question is non-justiciable only if it is textually committed by the Constitution to another branch of government, or if there is a lack of judicially discoverable or manageable standards for resolving the issue. Petition of the JCC, 145 N.H. 108, 111 (2000) (quoting Nixon v. United States, 506 U.S. 244, 228 (1993)). Even when a matter is textually committed to the Legislature, the judicial branch may adjudicate a controversy based on an alleged violation of another specific constitutional provision, such as the equal protection clause, as in this case.

In any event, this case clearly does not involve a subject textually committed to the Legislature. While the New Hampshire Constitution commits to the legislative branch the power to impeach and the power to try impeached officials, it says nothing about the power to award attorneys' fees to an accused judge after a trial or impeachment proceeding has been concluded in the judge's favor. Resolution of the attorneys' fees issue at this time can have no effect whatsoever on the procedures governing the impeachment or the trial, or on the outcome of such proceedings, and as such is not included within the Legislature's exclusive power to impeach. In addition, attorneys' fees issues are resolved every day by the courts under well-established and manageable standards. Hence, the attorneys' fees issue presented here is clearly justiciable.

Once justiciability has been established, this honorable court must decide whether the petitioners are entitled to their reasonable attorneys' fees and expenses under common law. This court has repeatedly held that public officials serve in a trustee capacity, and when they successfully defeat attempts to remove them from office they are entitled to attorneys' fees. These decisions rest on the sound principle that, by defending against unjust removals, these public officials are protecting an important state interest in maintaining the employment of qualified officials. King v. Thomson, 119 N.H. 219 (1979); Silva v. Botsch, 121 N.H. 1041 (1981); Foster v. Town of Hudson, 122 N.H. 150 (1982); Town of Littleton v. Taylor, 138 N.H. 419 (1994). That state interest is particularly strong here, where petitioners defended both their individual positions and also the independence of the judicial branch against ill-founded attacks by the Legislature. Thus, petitioners are clearly entitled to their reasonable attorneys' fees and costs under the well-established common law of this state.

To deny petitioners such fees and costs would be to deny them the equal protection of the laws guaranteed by the New Hampshire and U.S. Constitutions, because no legitimate distinction separates judges from other public officials who defeat attempts to remove them from office, and who are entitled by common law and statute to recover fees and costs. The only reason offered by the trial court for making such a distinction was its belief that the removal of judges, unlike the removal of other public officials, was committed by the Constitution to the legislative branch. But the trial court's approach confuses the issue of justiciability with the merits of petitioners' equal protection claim. And, on the merits, treating judges who defeat attempts to remove them from office less favorably than other public officials cannot withstand equal protection scrutiny. Such a distinction has no rational basis.

Indeed, denying attorneys' fees to judges, but not to other public officials, actually undermines the goal identified by the trial court - preserving the separation of powers. Depriving members of the judiciary of their common law right to fees would clearly impede the judiciary's discharge of its duties as an intended independent branch of government, diminish its constitutionally guaranteed independence, seriously damage the judicial branch of government by making it susceptible to politically motivated attacks, and almost certainly deter qualified candidates from seeking judicial office. Such a result would undermine the strength of New Hampshire's state government, which historically depends on an independent judiciary. As our constitution states: "It is therefore not only the best policy, but for the security of the rights of the people that the judges of the Supreme Judicial Court should hold their offices so long as they behave well." New Hampshire Constitution, Part1, Art. 35 (emphasis added).

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