THE STATE OF NEW HAMPSHIRE SUPREME COURT CASE NO. 2020-0414 Request for an Opinion of the Justices (Quorum under Part II, Article 20) MOTION FOR RECONSIDERATION OF DENIAL OF MOTION TO STRIKE MEMORANDUM OF LAW OF REPRESENTATIVE LEE OXENHAM This filing was prepared with the assistance of a New Hampshire attorney. Now comes the Honorable Joseph A. Hoell Jr., Secretary of The New Hampshire Firearms Coalition Inc., and the Honorable Andrew J. Manuse, Chairman of ReopenNH, and respectfully submit this Motion for Reconsideration of this Court’s Denial of their Motion to Strike the Memorandum of Law submitted by Representative Lee Oxenham and in support thereof, state as follows: 1. Hoell and Manuse had far more to offer in aid of the Court’s effort to answer the question presented, but did not do so out of respect for the Court’s 4,000-word limit. The Oxenham Memorandum exceeded that limit by over 50%, which overage bespeaks wanton disregard. 2. It is patently unfair to enforce rules unevenly. 3. With knowledge that the length limit was “flexible”, petitioners would have advised this Honorable Court as follows: 4. Dr. David R Coursin, MD – in support of electronic meetings – writes “...To insist that we cannot plan accordingly, because our original constitution did not specifically enumerate such issues, is short-sighted at least, and potentially endangering at worst.” Regardless of any alleged “good” that remote session would offer, there is no exception for an alleged “good” based on violation of Page 1 of 11 constitutional provisions. For example, Dr. Coursin claims that “this is the 4th such pandemic since 1957 [and therefore] there is good reason to expect further widespread and disruptive infectious events...". If true, that supports a view that there were many missed opportunities to amend the Constitution, to address the issue before this Court. 5. “The Constitution empowers each house to determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained.” United States v. Ballin, 144 U.S. 1, 5 (1892). 6. Our Constitution’s framers – and sitting legislators – knew well the extensive history of pestilence and disease. They chose not to amend the constitution to allow for remote meetings. Part II Article 100 allows legislators to ask for a constitutional convention or they may offer a legislative amendment. Since 1784 there have been some 200 Constitutional amendments many in recent decades. 7. “Reviewing the history of the constitution and its amendments is often instructive, and in so doing, "it is the duty of the court to place itself as nearly as possible in the situation of the parties at the time the instrument was made, that it may gather their intention from the language used, viewed in the light of the surrounding circumstances. While the constitution as it now stands is to be considered as a whole as if enacted at one time, to ascertain the meaning of particular expressions, it may be necessary to give attention to the circumstances under which they became parts of the instrument." Attorney-General v. Morin, 93 N.H. 40, 43, 35 A.2d 513, 514 (1943) (quotations and citations omitted); see also Opinion of the Justices, 126 N.H. at 495, 494 A.2d at 266.” Warburton v. Thomas, 136 N.H. 383, 387 (1992). Page 2 of 11 8. "'[W]e regard it as a well settled and unquestioned rule of construction that the language used by the legislature, in the statutes enacted by them, and that used by the people in the great paramount law which controls the legislature as well as the people, is to be always understood and explained in that sense in which it was used at the time when the constitution and the laws were adopted.'" Opinion of the Justices, 121 N.H. at 483, 431 A.2d at 136 (emphasis added in 121 N.H. at 483, 431 A.2d at 136) (quoting Opinion of the Justices, 41 N.H. at 551). Warburton v. Thomas, 136 N.H. 383, 387 (1992). 9. Art. 43. [In Cases of Disagreement Governor to Adjourn or Prorogue Legislature; If Causes Exist, May Convene Them Elsewhere.] In cases of disagreement between the two houses, with regard to the time or place of adjournment or prorogation, the governor, with advice of council, shall have a right to adjourn or prorogue the general court, not exceeding ninety days at any one time, as he may determine the public good may require, and he shall dissolve the same on the first Wednesday of December biennially. And, in cases whereby dangers may arise to the health or lives of the members from their attendance at the general court at any place, the governor may direct the session to be holden at some other the most convenient place within the state. June 2, 1784. (emphasis supplied) 10. The Constitution is clear, the Governor has the power to direct the session to be held some other place “place” is understood to mean a physical environment, 1 space, physical surroundings. 2 11. Sheridan’s 1781 Dictionary defines: To Assemble: v.a. To bring together into one place. To Assemble: v.n. To meet together. 1 https://www.merriam-webster.com/dictionary/place last visited 10/26/2020. 2 Thomas Sheridan, A Complete Dictionary of the English Language (Fourth Edition, 2 volumes; London: Printed for Charles Dilly et al., 1797) available at https://archive.org/details/completedictiona02sheriala. Last visited October 26, 2020. Page 3 of 11 Place: a particular portion of space; locality; local relation; local existence; space in general; a seat, residence, mansion,... Present: Not absent, being face to face, being at hand; not past, not future ... These words are used specifically at certain Articles in the Constitution, and as this contemporaneous source clearly evidences a physical place of meeting together. 12. If one substitutes the definitions in Sheridan’s for the words in the Constitution, one cannot escape the necessity of meeting in person. Note that “place” in Article 43 is singular. Even in 1794, plurals of nouns were well known. 13. In all facets of law, courts have found, "No measure or recommendation shall be reported from any such committee unless a majority of the committee were actually present." Christoffel v. United States, 338 U.S. 84, 87-88 (1949). 14. “The House insists that to be such a tribunal a committee must consist of a quorum, and we agree with the trial court's charge that, to convict, the jury had to be satisfied beyond a reasonable doubt that there were "actually and physically present" a majority of the committee.” Christoffel v. United States, 338 U.S. 84, 89 (1949). 15. “A tribunal that is not competent is no tribunal, and it is unthinkable that such a body can be the instrument of criminal conviction. The Court of Appeals erred in affirming so much of the instructions to the jury as allowed them to find a quorum present without reference to the facts at the time of the alleged perjurious testimony, and its judgment is reversed.” Christoffel v. United States, 338 U.S. 84, 90 (1949). 16. This is not the first pandemic to strike our county, and it likely will not be the last. The House and Senate met through the Spanish flu. In 1918, an influenza epidemic began. (https://www.cdc.gov/flu/pandemic-resources/1918- commemoration/1918-pandemic-history.htm). There were no remedies against pandemic influenza: no vaccines, no anti-viral medicines, and no antibiotics to treat pneumonia, which often accompanied the flu. Appx. 1 -6. Page 4 of 11 17. In 1918 and 1919, Statistics as to mortality and morbidity were gathered and published by the Department of Commerce Census Bureau. See Appx. 7-10, 11- 13. The Centers for Disease Control and Prevention was not founded until 1946 (See: https://www.cdc.gov/about/history/index.html). 18. Census Bureau data did not cover the entire country but were, “based on transcripts of death certificates received from the registration area for deaths, which in 1918 had an estimated population of 82,091,523, or 77.8 per cent of the total estimated population of the United States and the Territory of Hawaii.” (Mortality Statistics – 1918, Letter of Transmittal, Sam L. Rogers, Director of the Census to Joshua W. Alexander, Secretary of Commerce; 21 January 1920 – Appx. 8). The data covered only civilian deaths. 19. In 1918, there were 245,846 deaths from influenza. The national rate per 100,000 residents was 302.1. In 1919, the number of deaths was 84,113 (98.8 / 100,000). From 1911-17, the annual average death rate was 15.3 / 100,000 (ibid., p. 32). It is thus obvious that the pandemic flu strain caused a huge surge in mortality. 20. Of the 30 states for which statistics were gathered in 1918, New Hampshire’s death rate – 452.1 per 100,000 – was topped only by Montana (551.4). In 1919, when 33 states were included, New Hampshire’s death rate (111.4 / 100,000) put it in 12th place. (ibid., p. 32) 21. From 1877 until 1984, the General Court met every other year: so they did not convene in 1918 (see https://www.nh.gov/glance/constitution.htm). Accordingly, “At 11 o'clock in the forenoon of the first Wednesday of January, in the year of our Lord one thousand nine hundred and nineteen, being the day prescribed by the constitution for the Legislature of New Hampshire to assemble, the following named persons, elected senators, assembled in the capitol, in the City of Concord, in said state, and His Excellency, the Honorable Jesse M.