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NEW HAMPSHIRE was the first American colony to enact a constitution of its own, formally replacing British rule on Jan. 5, 1776. Since 1784, there have been numerous amendments to the New Hampshire Constitution, which require approval by two-thirds of voters in a statewide election.
In November 1984, 80.8% of Granite State voters approved adding Article 18-a to the Constitution regarding budget bills. Article 18-a reads as follows: “All sections of all budget bills before the general court shall contain only the operating and capital expenses for the executive, legislative and judicial branches of government.
”No section or footnote of any such budget bill shall contain any provision which establishes, amends or repeals statutory law, other than provisions establishing, amending or repealing operating and capital expenses for the executive, legislative and judicial branches of government.” The state budget historically consists of two documents enacted as separate pieces of legislation: the Operating Budget Bill (or HB 1 ), and the Trailer Bill (known as HB 2 ). RSA:9, Budget and Appropriations, partially outlines the organization and process to develop the state of New Hampshire’s budget, which is developed every two years.
Recently, as required, Gov. Kelly Ayotte sent the House her proposed operating budget for FY2026-FY2027 comprised of spreadsheets showing agency appropriations with a few explanatory notes. This year her proposed HB 1 was 1,255 pages long.
Gov. Ayotte also sent a lengthy Trailer Bill. Among other proposed changes, it would impact student cellphone usage in public schools and the hours certain OHRV trails are open.
It would change the state’s employee pension laws, eligibility for the Education Freedom Accounts, and place all state legalized gambling under the N.H. Lottery Commission.
None of these proposed changes in state law impact the “operating and capital expenses for the executive, legislative and judicial branches of government.” On Thursday, April 10, the House Finance Committee’s proposed versions of HB 1 and HB 2 were amended and passed by the full House and forwarded to the Senate for consideration. The Trailer Bill passed by the House would, as Governor Ayotte proposed, eliminate income eligibility for the Education Freedom Accounts, thus amending RSA 194-F:1 enacted in the 2021 Trailer Bill.
It would also eliminate the Office of the Child Advocate (enacted in RSA 21-V in 2022), the Human Rights Commission (enacted in RSA 354-A in 2018), and the State Arts Council, established in 1965 in RSA 19-A. Besides amending the state’s civil rights law (RSA 354-A:1) allowing transgender people to be barred from bathrooms and sports teams that align with their gender identities, it would limit vaccine requirements for children and end the ban on certain weapons, including brass knuckles, blackjacks and sling shots. None of these have anything to do with the state operating budget.
The title of the Trailer Bill (HB 2) is: “An act relative to state fees, funds, revenues, and expenditures.” Article 18a clearly reads that any bill that addresses “the operating and capital expenses for the executive, legislative and judicial branches of government” is a budget bill. In April 1985, House lawmakers passed House Resolution 30 requesting an opinion of the N.
H. Supreme Court justices regarding Article 18-a. The justices’ review read: “The practice of adding footnotes really began in the 1970s.
Then Governor [Meldrim] Thomson exercised the gubernatorial veto more frequently than previous chief executives and threatened its use even more often. The result was legislators who wanted to avoid that veto began attaching their bills as amendments or footnotes to the operating budget..
. the governor was forced to accept the whole package or nothing ..
. The representatives also faced an all-or-nothing choice when the Conference Committee report came back to the floor at the end of the legislative session.” In its decision #85-164, New Hampshire Supreme Court justices, including David Souter and Charles Douglas III, wrote: “A review of the history of Article 18-a makes clear the constitutional amendment was proposed to prohibit footnotes or sections altering general statutory law from being inserted into budget bills.
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Hence to the extent that the content of a budget section or footnote effectuates a change in general statutory law, that section or footnote would appear to violate Article 18-a.” In 2021, Gov. Chris Sununu signed HB 2, which changed the state’s abortion laws and created the “Education Freedom Voucher” program.
This year, both Governor Ayotte’s and the House versions of HB 2 are again amending current laws despite our constitutional article prohibiting it. If laws passed or amended as part of budget trailer bills are not constitutional because they violate Article 18-a, do they have the effect of law? What would our forefathers say if they saw the constitution was not being followed by our legislators? What will the current state Supreme Court say? I hope someone asks them soon..
