Opinion
No. 6014.
Decided December 4, 1969.
1. The Governor and Council may properly request an opinion of the Attorney General under the provisions of RSA 7:8, 9 as to the validity of an income tax imposed by the State of Maine on citizens of this state employed at the Portsmouth Navy Yard, where it was resolved that the economic impact of such a tax on a large number of the citizens of this state is a matter of public importance substantially affecting the welfare of this state.
2. The Attorney General has sole responsibility of formulating his legal opinion requested by the Governor and Council, but the Governor and Council in taking such action as they may determine for the protection of the interests of the State or of the people are not concluded thereby.
Richard F. Upton, amicus curiae, on behalf of the Governor and Council, for affirmative answers.
George S. Pappagianis, Attorney General, for negative answers.
The following resolution was adopted by the Governor and Council October 31, 1969 and filed in this court on November 3, 1969:
"Whereas the State of Maine has imposed a general income tax (Private and Special Laws of Maine, 1969, Chapter 154), which, by its terms, also applies to nonresidents of Maine as to income earned within the State of Maine;
"And Whereas the State of Maine claims that such tax may be lawfully collected from all nonresidents employed by the United States at the Portsmouth Navy Yard, a federal reservation located on Seavey Island in the Piscataqua River, a waterway separating Maine from New Hampshire;
"And Whereas the Governor and Council find that the said Maine income tax, if valid as to such nonresidents as claimed, will affect the earnings of all citizens of New Hampshire employed at the Portsmouth Navy Yard, who, with their immediate families and dependents, number approximately 18,000 persons;
"And Whereas the Governor and Council find that the economic impact of this income tax on such a large number of New Hampshire citizens is a matter of public importance, substantially affecting the welfare of this State;
"And Whereas the Governor and Council find that there is reasonable cause to believe that the validity and justice of the imposition of such tax on such New Hampshire citizens is now, or probably will soon become, an issue in such actions or proceedings as: (a) a class action by the affected New Hampshire citizens against the State of Maine in the appropriate state or federal court, (b) administrative proceedings before the Secretary of the Treasury of the United States or other federal agencies to determine whether the federal government should withhold the Maine income tax from the earnings of nonresidents of Maine employed at the Portsmouth Navy Yard or otherwise prevent its collection from them, (c) legislative hearings in the U.S. Congress, or (d) any other actions or proceedings (executive, legislative or judicial) lawfully available to this State to raise such issue;
"And Whereas the Governor and Council, in order to protect the interests of this State and its people, and in order to act, with foresight and planning, in the performance of their official duties, must now determine the feasibility and practicability of directing the commencement, participation or intervention by this State or its Attorney General in such actions or proceedings, either as a party or as amicus curiae, and for this purpose find that they ought to have pertinent legal advice and opinion;
"And Whereas the Attorney General has been requested by the Governor and Council to advise them officially on the above subject matter but has several times declined to do so on the alleged grounds that the legal issues are purely private and unrelated to the official duties of the Governor and Council;
"Now Therefore Be It Resolved by the Governor and Council that Justices of the Supreme Court be respectfully requested to give their opinion upon the following important questions of law:
"1. Under the Constitution and laws of New Hampshire, do the Governor and Council, in the light of the attendant circumstances and findings set forth above, have the power to require an opinion or opinions of the Attorney General on questions of law, within the scope of the subject matter set forth in the preamble of these resolutions?
"2. If the answer to the first question is in the affirmative, is the Attorney General required to render the opinion or opinions so requested?
"Further Resolved that the Secretary of State be directed to transmit six attested copies of these resolutions to the Clerk of Supreme Court for appropriate action."
To his Excellency the Governor and the Honorable Council:
The undersigned, the Justices of the Supreme Court, submit the following answers to the questions contained in the foregoing resolution filed in this court on November 3, 1969.
Your questions both relate to advice which you have requested from the Attorney General as to the validity of an income tax imposed by the State of Maine on citizens of New Hampshire employed at the Portsmouth Navy Yard and which you state he has declined to give on the grounds that the legal issues involved are purely private. You state that the "economic impact of this income tax on such a large number of New Hampshire citizens is a matter of public importance, substantially affecting the welfare of this State" and ask whether you may require an opinion from the Attorney General under RSA 7:8 which requires him to advise state agents and officers in the performance of their official duties.
RSA 7:9 provides that: "The governor and council may, in any action or proceeding, wherever pending, represent to the attorney-general that he should appear to protect the interests of the state or of the people, and thereupon it shall be his duty to appear."
Under the provisions of this section you are entitled to an opinion from the Attorney General to assist you in determining what action if any should be taken in the event that proceedings are or should be instituted. Such opinion would be within the scope of RSA 7:8, supra.
The Attorney General in his memorandum states that he has in fact advised you that the tax in question may validly be imposed on New Hampshire citizens. While the Attorney General has sole responsibility of formulating his legal opinion, any action which you may determine to take for the protection of "the interests of the state or of the people" will not be concluded by his opinion. RSA 7:9, supra. See Opinion of the Justices, 103 N.H. 508.
FRANK R. KENISON. LAURENCE I. DUNCAN. EDWARD J. LAMPRON. WILLIAM A. GRIMES. ROBERT F. GRIFFITH.
December 4, 1969.