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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Merrimack

No. 2019-0507

JOHN BURT & a.

v.

SPEAKER OF THE HOUSE OF REPRESENTATIVES

Argued: March 10, 2020

Opinion Issued: August 28, 2020

Liberty Legal Services, of Manchester (Dan Hynes on the brief and orally), 

for John Burt.

James S. Cianci, house legal counsel, on the brief and orally, for the 

Speaker of the New Hampshire House of Representatives.

BASSETT, J. The appellant, John Burt, a member of the New Hampshire 

House of Representatives, appeals an order of the Superior Court (Kissinger, J.) 

dismissing his complaint against Stephen Shurtleff, in his official capacity as 

the Speaker of the New Hampshire House of Representatives. In the complaint, 

the appellant, together with co-plaintiffs Kevin Craig, Alicia Lekas, Tony Lekas, 

and Hershel Nunez, each a member of the New Hampshire House of 

Representatives, alleged that House Rule 63 — which, with limited exceptions, 

prohibits the carrying or possession of any deadly weapon in Representatives 

Hall, as well as in the anterooms, cloakrooms, and House gallery — violates 

their fundamental rights under Part I, Article 2-a of the New Hampshire

Constitution. The trial court dismissed the plaintiffs’ complaint,
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concluding that, because the issue presents a nonjusticiable political question,

the court lacked subject matter jurisdiction. We reverse and remand.

The pertinent facts are as follows. On January 2, 2019, the New 

Hampshire House of Representatives amended House Rule 63 to provide that

“[n]o person, including members of the House, except law enforcement officers 

while actively engaged in carrying out their duties as such, shall carry or have 

in possession any deadly weapon . . . while in the House Chamber, anterooms,

cloakrooms, or House gallery.” N.H.H.R. Jour. ____ (2019); 2 House Record 5-9 

(January 2, 2019). Previously, House Rule 63 permitted members of the 

House, and others, to carry weapons in the House Chamber so long as the 

weapons were not displayed. See N.H.H.R. Jour. 21-24 (2015). 

In April 2019, the plaintiffs filed a complaint in the superior court 

challenging the constitutionality of House Rule 63. They alleged that House 

Rule 63, as amended, violates their fundamental rights under Part I, Article 2-a 

of the State Constitution, which provides that “[a]ll persons have the right to 

keep and bear arms in defense of themselves, their families, their property and 

the state.” N.H. CONST. pt. I, art. 2-a. The Speaker moved to dismiss the 

complaint, arguing that, because the complaint presented a nonjusticiable

political question, the trial court lacked subject matter jurisdiction. The trial 

court agreed, and granted the Speaker’s motion to dismiss. 

The trial court observed that “[t]he separation of powers doctrine limits 

judicial review of certain matters that lie within the province of the other two 

branches of government,” and that “[w]hen the State Constitution commits an 

issue to one of the other two branches of government, the issue becomes nonjusticiable.” (Quotation omitted.) Noting that “[t]he State Constitution grants 

both houses of the legislature the authority to settle the rules of proceedings in 

their own [h]ouse,” the trial court found that “[i]t is [not] the constitutional duty 

of the judiciary to review . . . the rules of proceedings within the legislative 

chambers.” (Quotation omitted.) The trial court concluded that, “[a]s an 

independent and coequal branch of government, the legislature holds the 

inherent power to control the wearing of firearms within their chambers. This 

Court will not encroach on the legislature’s inherent authority to enact such 

rules.”

On appeal, the appellant argues that the trial court erred because the

plaintiffs’ challenge to the constitutionality of House Rule 63 presents a 

justiciable issue. He asserts that to find the challenge nonjusticiable would

“violate the principles of our checks and balances system of government, and 

deprive plaintiffs of their constitutional rights.” Indeed, he argues, if the trial 

court’s reasoning were upheld, it would enable a House majority to “ban 

women, African Americans, Jew[s], homosexual[s], republican[s], gun owners, 

or any other class of people they want from not only being present in the 
3

[H]ouse [C]hamber, but also from voting.” The Speaker counters that the trial 

court properly dismissed the plaintiffs’ complaint because “[t]his Court has 

consistently reaffirmed the constitutional rulemaking authority of all three 

branches of government and, specifically, the authority of the legislature to 

establish internal rules of proceeding,” and that, due to the constitutional 

separation of powers, “such action is not reviewable by the other branch[es].” 

We agree with the appellant.

Whether a controversy is nonjusticiable presents “a question of law, 

which we review de novo.” Hughes v. Speaker, N.H. House of Representatives, 

152 N.H. 276, 283 (2005). “The nonjusticiability of a political question derives 

from the principle of separation of powers,” id. (quotation omitted), a principle 

which is set forth in Part I, Article 37 of our State Constitution: 

In the government of this state, the three essential powers thereof, 

to wit, the legislative, executive, and judicial, ought to be kept as 

separate from, and independent of, each other, as the nature of a 

free government will admit, or as is consistent with that chain of 

connection that binds the whole fabric of the constitution in one 

indissoluble bond of union and amity. 

N.H. CONST. pt. I, art. 37. “The justiciability doctrine prevents judicial 

violation of the separation of powers by limiting judicial review of certain 

matters that lie within the province of the other two branches of government.” 

Hughes, 152 N.H. at 283 (quotation omitted). “‘Deciding whether a matter has 

in any measure been committed by the Constitution to another branch of 

government is itself a delicate exercise in constitutional interpretation, and is a 

responsibility of this Court as ultimate interpreter of the [State] Constitution.’” 

Id. (quoting Baker v. Carr, 369 U.S. 186, 211 (1962)) (ellipsis omitted). “Where 

there is such commitment, we must decline to adjudicate the matter to avoid 

encroaching upon the powers and functions of a coordinate political branch.” 

Id. “A controversy is nonjusticiable — i.e., involves a political question —

where there is a textually demonstrable constitutional commitment of the issue 

to a coordinate political department; or a lack of judicially discoverable and 

manageable standards for resolving it.” Id. (quotation omitted).

Here, the State Constitution demonstrably commits to the legislature the 

authority to enact its own internal rules of proceedings. Part II, Article 22 

provides that the House of Representatives “shall choose their own speaker, 

appoint their own officers, and settle the rules of proceedings in their own 

house.” N.H. CONST. pt. II, art. 22 (emphasis added). However, “[o]ur 

conclusion that the constitution commits to the legislature [such] exclusive 

authority . . . does not end the inquiry into justiciability.” Horton v. 

McLaughlin, 149 N.H. 141, 145 (2003). “The court system [remains] available 

for adjudication of issues of constitutional or other fundamental rights.” Id. 

(quotation omitted). “While it is appropriate to give due deference to a co-equal 
4

branch of government as long as it is functioning within constitutional 

constraints, it would be a serious dereliction on our part to deliberately ignore 

a clear constitutional violation.” Baines v. N.H. Senate President, 152 N.H. 

124, 129 (2005) (quotation omitted). 

In Baines, we faced the question of whether a law passed by the 

legislature constituted a “money bill,” and therefore whether the constitution 

required that the bill originate in the House. See id. at 125; N.H. CONST. pt. II, 

art. 18. Although we recognized that the constitutional authority to adopt 

internal procedural rules had been demonstrably committed to the legislature,

we held that “the question of whether the procedures set forth in Part II, 

Articles 2, 20, 37 and 44 [of the State Constitution] were violated is justiciable.”

Id. at 130, 132. Thus, as the final arbiter of state constitutional disputes, we

concluded that, “[w]hile we will not inquire into every allegation of procedural 

impropriety in the passage of legislation, when the question presented is 

whether or not a violation of a mandatory constitutional provision has 

occurred, it is not only appropriate to provide judicial intervention, we are 

mandated to do no less.” Id. at 129, 132 (quotations and ellipsis omitted).

Similarly, in Hughes, we found that the legislature’s internal rulemaking 

authority, although “continuous” and “absolute,” remains subject to 

constitutional limitations. Hughes, 152 N.H. at 284, 288 (quotations omitted). 

We observed that “[c]ourts generally consider that the legislature’s adherence to 

the rules or statutes prescribing procedure is a matter entirely within 

legislative control and discretion, not subject to judicial review unless the 

legislative procedure is mandated by the constitution.” Id. at 284 (quotation 

omitted; emphasis added). Thus, although claims regarding the legislature’s 

compliance with such rule-based or statutory procedures are not justiciable,

see id. at 284-85, 287-88, “[c]laims regarding compliance with . . . mandatory 

constitutional provisions are justiciable,” id. at 288 (quotation omitted; 

emphasis added). “It is our duty,” we stated, “to interpret constitutional 

provisions and to determine whether the legislature has complied with them.” 

Id.

Recognizing these principles, the Speaker acknowledges that “the case 

may arise where the legislature acts outside the scope of its constitutional 

authority or steps beyond its bounds.” (Quotation omitted.) Although he 

recognizes that, in such a case, “it is properly within the purview of the 

Judiciary to exercise its constitutional authority,” he asserts that “this is not 

that case,” because “[t]he precise issue presented by this case has been 

definitively decided by this Court in State v. LaFrance.” See State v. LaFrance, 

124 N.H. 171, 181-82 (1983). We disagree that LaFrance controls.

In LaFrance, we considered the constitutionality of a statute mandating 

that law enforcement officers be allowed to wear firearms in any courtroom in 

the state. See id. at 175. Because the statute infringed upon the judiciary’s 
5

inherent authority to make its own internal procedural rules, we found that the 

statute violated the separation of powers, and, therefore, was unconstitutional. 

See id. at 180, 182-83. We stated that “[i]t would not be within the 

constitutional prerogative of the judiciary to tell either of the other two 

branches of government who could or could not wear guns in the Executive 

Council Chamber or in the Representatives’ Hall.” Id. at 181. “That,” we said,

“would properly be a matter for those branches of government to resolve.” Id. 

This is the specific language that the Speaker cites in arguing his position, 

contending that “[t]his statement alone provides sufficient grounds for this 

Court to uphold the [s]uperior [c]ourt’s dismissal of this action.”

However, because it was not necessary in LaFrance to decide the extent 

to which any branch could regulate guns or other deadly weapons in 

Representatives Hall, the language relied on by the Speaker is dicta. See

Appeal of Town of Lincoln, 172 N.H. 244, 253 (2019) (observing that 

nonessential judicial pronouncements are nonbinding dicta). Moreover, the 

cited dicta did not directly address the constitutionality of a limitation on an 

individual’s fundamental constitutional rights, but rather, it dealt only with the 

interplay between branches of government. See LaFrance, 124 N.H. at 181. In

other words, in LaFrance, we addressed the separation of powers issue 

implicated by the legislature’s encroachment upon the internal procedures of 

the judicial branch; we did not directly address the related issue of whether a 

limitation on an individual’s right to keep and bear arms would be

constitutional. See id. at 175, 179-82. Nor did we address the specific 

question presented here: whether the judiciary has the constitutional authority 

to determine whether House Rule 63 violates the appellant’s fundamental 

rights under the State Constitution. Indeed, LaFrance did not involve a 

limitation on an individual’s fundamental right under the State Constitution to 

keep and bear arms, but rather, a statute safeguarding that right. See id.

Regardless, our decision in LaFrance does not permit us to treat the 

separation of powers as an “impenetrable barrier[],” State v. Carter, 167 N.H. 

161, 166 (2014) (quotation omitted), and thereby disregard our “duty to 

interpret constitutional provisions and . . . determine whether the legislature 

has complied with them.” Hughes, 152 N.H. at 288. The legislature may not, 

even in the exercise of its “absolute” internal rulemaking authority, violate 

constitutional limitations. Id. at 284, 288. Indeed, “[n]o branch of State 

government can lawfully perform any act which violates the State 

Constitution.” LaFrance, 124 N.H. at 176. Therefore, “[a]ny legislative act 

violating the constitution or infringing on its provisions must be void because 

the legislature, when it steps beyond its bounds, acts without authority.” Id. at 

177. Accordingly, because “[i]t is the role of this court in our co-equal, 

tripartite form of government to interpret the Constitution,” Petition of Judicial 

Conduct Comm., 145 N.H. 108, 113 (2000), and “to determine whether the 

legislature has complied with [its provisions],” Hughes, 152 N.H. at 288, we 

conclude that the controversy as to whether House Rule 63 violates the 
6

appellant’s fundamental right to keep and bear arms under Part I, Article 2-a of 

the State Constitution is justiciable, and that the trial court erred when it 

dismissed the complaint.

We are not alone in recognizing these important principles. In United 

States v. Smith, the United States Supreme Court observed that, although the 

Federal Constitution “empowers each house to determine its own rules of 

proceedings,” Congress “may not by its rules ignore constitutional restraints or 

violate fundamental rights.” United States v. Smith, 286 U.S. 6, 33 (1932)

(quotations omitted). Additionally, in Des Moines Register & Tribune Co. v. 

Dwyer, the Iowa Supreme Court found that “[i]t is within the power of the

judiciary to review the senate’s rules for constitutionality and to ensure they do 

not violate individual fundamental rights.” Des Moines Register v. Dwyer, 542 

N.W.2d 491, 496 (Iowa 1996).

Finally, the Speaker urges us to reject the constitutional challenge, 

arguing that House Rule 63 is constitutional because it “merely imposes a 

reasonable restriction on deadly weapons in the House chamber.” See Bleiler 

v. Chief, Dover Police Dep’t, 155 N.H. 693, 699-700 (2007) (recognizing that 

“the New Hampshire state constitutional right to bear arms is not absolute and 

may be subject to restriction and regulation,” and adopting a “reasonableness 

test” for evaluating substantive due process challenges to such regulations 

(quotation omitted)); District of Columbia v. Heller, 554 U.S. 570, 626-27, 627 

n.26 (2008) (observing that “laws forbidding the carrying of firearms in 

sensitive places such as schools and government buildings” are “presumptively 

lawful regulatory measures”). To the extent that the Speaker is asking us, in 

the first instance, to decide whether House Rule 63 is constitutional under Part 

I, Article 2-a, we decline to do so. See Atronix v. Morris, 171 N.H. 429, 436 

(2018) (refusing to address issues not decided by the trial court in the first 

instance). Here, the trial court did not address the merits of the constitutional 

challenge. We express no opinion as to that issue, and remand for further 

proceedings consistent with this opinion.

Reversed and remanded.

HICKS, HANTZ MARCONI, and DONOVAN, JJ., concurred.