Sununu Snookered by Volinsky and Foster

On Tuesday of this week, the Executive Council held a hearing on Governor Sununu’s nomination of Frank Edelblut to be Commissioner of the State Department of Education.  A vote was supposed to follow at the Council’s meeting on Wednesday.  It didn’t.

Democratic Councilor Andru Volinsky asserted that the vote would not be legally binding because State law requires as a prerequisite to the appointment of a Commissioner that the Governor consult with the entire State Board of Education, but Sununu had only talked to the Board’s Chairman.

Attorney General Joseph Foster, a Democrat, agreed with Volinsky’s interpretation.

Sununu responded by asking the Council to delay the vote to give him time to consult with the seven members of the Board of Education.

Sununu got snookered.

Here is the statute in question:

21-N:3 Commissioner; Deputy Commissioner; Directors; Compensation. –
I. The governor, after consultation with the board of education, shall appoint the commissioner and the deputy commissioner of the department of education with the consent of council. Each shall serve for a term of 4 years. The commissioner and the deputy commissioner may succeed himself or herself, if reappointed. The commissioner and deputy commissioner shall be qualified to hold their positions by reason of education and experience.

The statute says nothing about the form of the consultation.  It leaves it up to the Governor whether to consult with the Board as a whole, with all of the members individually, or with a representative of the Board .  Nor does the statute speak to the substance of the consultation.  It does not require the Governor to submit names to the Board, or to nominate only individuals approved by the Board.  Indeed, the statute does not require the Governor to place any weight at all on any input he may get from the Board.  The language regarding consultation is hortatory.

I am sure that, nonetheless, the Attorney General told the Governor that this hortatory language would allow someone to challenge Edelblut’s appointment in court if the vote took place as planned on Wednesday.


To have standing to challenge Edelblut’s appointment in court one would have to demonstrate a concrete personal injury.  An interest that proper procedures were followed in appointing Edelblut is not a concrete personal injury that would confer standing, but rather is a general interest shared by every citizen of New Hampshire that is not sufficient to confer standing.  From the 2014 case of Duncan vs. State of New Hampshire:

The text of the State Constitution nowhere suggests that the framers intended the judiciary to exercise a role of general superintendence over the whole of the State’s government — to function, in effect, as a body akin to the council of revision proposed at the Federal Convention of 1787. See J. Madison, The Debates in the Federal Convention of 1787 Which Framed the Constitution of the United States of America 25 (Gaillard Hunt & James Brown Scott, eds., int’l ed. 1920) (proposing a “Council of revision,” comprised of “the Executive and a convenient number of the National Judiciary,” to “examine every act of the National Legislature”). “Vindicating the public interest (including the public interest in Government observance of the Constitution and laws)” is the function of the legislative and executive branches. Lujan, 504 U.S. at 576, 112 S.Ct. 2130; see Merrill, 1 N.H. at 204 (“legislative power” is intended to “regulate publick concerns and to `make laws’ for the benefit and welfare of the state”). “It is the province of judges to determine what is the law upon existing cases” and “to decide private disputes between or concerning persons.” Merrill, 1 N.H. at 204 (quotation omitted); see Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170, 2 L.Ed. 60 (1803) (“The province of the court is, solely, to decide on the rights of individuals.”).

The Executive Council, not the courts, is the check on the Governor’s power to appoint the Education Commissioner.  In other words, Volinsky’s proper recourse was to try to convince his fellow Councilors to reject Edelblut on the grounds that proper procedure was not followed, more particularly that the Governor did not obtain input from the State Board of Education that the Governor is not required to follow.  Which explains why Volinsky and Foster cooked up the bogus legal argument that the vote was not legally binding because Sununu had not obtained sufficient input from the State Board.

Attorney General Foster was not giving Sununu objective legal advice, but rather was helping Volinsky play the role of obstructionist.  In short, Sununu got snookered.

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