The attempt by appellants to cast this appeal in terms of a threat to judicial independence turns the issue of separation of powers on its head. To the extent this appeal raises a momentous issue, it is whether or not the separation of powers doctrine has vitality when authority is constitutionally committed to the legislature, not the judiciary.

Appellants do not dispute that the fees they seek to collect are a "remedy" resulting from the legislative impeachment process. The House and Senate are constitutionally given all judicial power in matters relating to the impeachment process. New Hampshire Constitution Part II, Article 17 and Article 38. When sitting on impeachment matters, the legislature sits as a court and exercises judicial functions. Appellants have steadfastly refused to request that the legislature pay their attorney's fees. The appellants point to no provision of the constitution or any statute that provides attorney's fees to any state officer that successfully defends against impeachment proceedings. The cases relied on by appellants in which attorney's fees have been allowed demonstrate that the decision to award attorney's fees is part of the underlying authority of the trial court over a matter in which it had jurisdiction. In the case of impeachment, the trial court is the legislature. The discretion to award the fees requested by appellants rests with the legislature and nowhere else.

There is no concurrent authority to award the appellants' impeachment related fees under the Court's general equity powers based upon the concept of justiciability. Justiciability requires that, even if a court has jurisdiction, the court must refrain from addressing issues that involve political questions. Petition of Judicial Conduct Committee, 145 NH 108 (2000); Baker v. Carr, 369 U.S. 186 (1962); Nixon v. United States, 506 U.S. 224 (1993). Using the test in Baker, this case involves a political question under not just one but four of the six alternative factors. The judicial power to "do justice" in regards to impeachment is a political question because it has been textually committed by the constitution to the legislature. Determination of appellants' fee request also falls into the category of a political question because there is a lack of judicially discoverable and manageable standards for resolving the question. Under appellants' "public benefit" theory, the request clearly calls for non-judicial resolution because it would require an evaluation that cannot be made without a policy determination of whether the legislative impeachment attempts were ill founded or baseless.

Alternatively, for the same reasons, the "public benefit" determination must be considered a political question because it necessarily would involve the court's undertaking an independent review of the wisdom of the legislative impeachment proceedings that would express a lack of respect for the actions of a co-equal branch of government.

Even if this matter were justiciable, appellants' common law claim must be denied because it is based on legislative action. The principle of sovereign immunity has specifically been adopted by New Hampshire. New Hampshire Constitution Part II, Article 1; RSA 99-D: 1. The limited waiver of the state's sovereign immunity by statute or case law does not apply to claims based on legislative or judicial action. RSA 541-B: 19, I(a).

Even if sovereign immunity did not apply, appellants' claim to be entitled to attorney's fees and expenses under common law must fail. Unlike the cases in which attorney's fees have been awarded to public officials who have defended their positions based on threatened removal under statutory law, appellants have a more limited exposure to removal from office only through a constitutional process: impeachment or a bill of address. In addition to failure to recognize that they are not subject to a statutory removal process, appellants fail to acknowledge that they are not the only public officials subject to the constitutional impeachment or bill of address process. Many state officers including the Governor, Executive Council members, legislators and commissioned state officers are subject to impeachment. New Hampshire Constitution Part II, Article 38, Article 40. All commissioned officers are also subject to removal by a bill of address. New Hampshire Constitution Part II, Article 73.

However, judges, unlike most other commissioned state officers are not subject to statutory removal under RSA 4:1. RSA 4:1 provides a much less cumbersome method of removal of a state officer, because it does not require action by both Houses of the Legislature. Moreover, there is a fundamental difference involving the separation of powers between the court's review of a statutory removal process and an attempt to have the court review the constitutional removal processes.

There is no authority in the constitution, statutes or case law that provides that any state officer, whether it be the Governor, Executive Council member or a judge, is entitled as a matter of right to attorney's fees incurred in an impeachment process. The case law from other jurisdictions stands for the same conclusion. It has always been the state's position that the authority to grant such a request rests with the legislature. The legislature approved reimbursements in regards to a request on behalf of state employee witnesses in the impeachment process. 2001 Session Laws Chapter 173. An analysis of a hypothetical request to the legislature acting as a court under appellants' "public benefit" theory demonstrates why appellants' claims are not justiciable. Only the Senate or House could answer the question of whether or not the appellants defense in the impeachment proceedings conveyed a substantial benefit to the public. Because the legislature's power to impose a penalty as a result of impeachment is limited to removal from office and disqualification to hold or enjoy any place of honor, trust or profit in the future, New Hampshire Constitution Part II, Article 39, the impeachment decision, in and of itself, conveys no finding of whether the Senate or House would have found a public benefit.

Appellants' equal protection argument must also fail. For there to be an equal protection violation, there must be a state law that treats the appellants differently from similarly situated individuals. Here, the appellants point to no state law that grants attorney's fees to a state official subject to impeachment.

It is highly unlikely that the appellants would argue that judges should be subject to the same removal process by which other commissioned state officers can be removed under RSA 4:1. Judges, and some few other state officials such as the Governor and Executive Council members, are constitutionally granted the right and protection of being subject to removal from office only through the extremely stringent procedures involved in impeachment and the bill of address. Therefore appellants are not similarly situated to other public officials who can be removed by the much simpler process involved in RSA 4:1 or other removal procedures applicable to local municipal officials.

As Professor Charles Black said: "There are about ten rules about judicial review of the judgments of the Senate on impeachments. The first rule is that the Courts have, in this, no part at all to play. The other nine rules don't matter." Black, "Impeachment Handbook" (Yale University Press) (1974) at p. 63. In order to keep the principle of the separation of powers of the New Hampshire Constitution Part I, Article 37, as a vital limitation as intended by the founders, the Court should affirm the decision below.

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