Petition of Pamela Smart

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Original
No. 2022-0198

PETITION OF PAMELA SMART

Argued: February 14, 2023
Opinion Issued: March 29, 2023

Sisti Law Offices, of Chichester (Mark L. Sisti on the brief and orally), for
the petitioner.

John M. Formella, attorney general, and Anthony J. Galdieri, solicitor
general (Laura E. B. Lombardi, senior assistant attorney general, on the brief
and orally), for the State.

DONOVAN, J. The petitioner, Pamela Smart, petitions this court to issue
a writ of mandamus ordering the Governor and Executive Council to reconsider
whether to grant a hearing on the substance of her Petition for Commutation.
See Sup. Ct. R. 11. We conclude that the petitioner’s challenge to the executive
branch’s discretionary exercise of its clemency power seeks a ruling on a
political, nonjusticiable question. Accordingly, we dismiss the petition for lack
of jurisdiction.
 Facts

The following facts are undisputed. The petitioner is currently serving a
life-without-parole sentence for her conviction as an accomplice to first degree
murder. See State v. Smart, 136 N.H. 639, 643 (1993). In August 2021,
counsel for the petitioner submitted a Petition for Commutation (Petition)
addressed to the Governor, Executive Council, and New Hampshire Attorney
General’s Office. See RSA 4:21 (2020). The Petition requested a hearing before
the Executive Council and for the Governor to commute her sentence.
Specifically, the petitioner requested that her sentence be “modified to
eliminate the ‘without the possibility of parole’ condition, and commuted to
time served.” In support, the Petition included a memorandum, as well as
voluminous letters, academic degrees, and inmate progress reports.

The Governor included the Petition on the agenda for the March 23, 2022
meeting of the Governor and Executive Council. It is undisputed that the
Governor and Executive Council’s discussion of the Petition lasted less than
two and a half minutes. Ultimately, the Governor and Executive Council voted
to deny “consideration of whether the petition of Pamela Smart (age 54)
requesting a commutation hearing for the offense of Accomplice to First Degree
Murder should be granted.” This petition for a writ of mandamus followed.

I. Analysis

The petitioner asks this court to “issue a writ of mandamus ordering the
Governor and Executive Council to re-consider [the petitioner’s] request in a
manner consistent with the dictates set forth in [State v. Farrow, 118 N.H. 296
(1978)].” The petitioner argues that under this court’s application of Part I,
Article 18 of the New Hampshire Constitution in Farrow, she has a
constitutional right to “demonstrate her fitness to return to society” before the
Governor and Executive Council. She complains that the Governor and
Executive Council denied her that right when they acted “arbitrarily and in bad
faith” when denying her Petition without due consideration of its merits.
Accordingly, we construe the petitioner’s argument as challenging the manner
by which the executive branch exercised its discretion in declining to consider
her Petition for Commutation.

As a threshold matter, the State argues that we should dismiss the
petition for lack of jurisdiction because the petitioner raises a nonjusticiable
political question. We agree. “Courts lack jurisdiction to decide political
questions.” Richard v. Speaker of the House of Representatives, 175 N.H. 262,
267 (2022); see Baines v. N.H. Senate President, 152 N.H. 124, 128 (2005)
(explaining that “[i]f a question is not justiciable, it is not ours to review”).
Cases that raise nonjusticiable political questions have certain characteristics,
including, inter alia, “a textually demonstrable constitutional commitment of

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the issue to a coordinate political department.” Richard, 175 N.H. at 267-68
(quotation omitted) (enumerating six characteristics of nonjusticiable political
questions).

“The nonjusticiability of a political question derives from the principle of
separation of powers,” as set forth in Part I, Article 37 of our State
Constitution. Burt v. Speaker, N.H. House of Representatives, 173 N.H. 522,
525 (2020) (quotation omitted). “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.” Id. (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 Constitution.”
Richard, 175 N.H. at 268 (quotation 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. (quotation
omitted).

Here, Part II, Article 52 of the New Hampshire Constitution provides:

The power of pardoning offenses, except such as persons may be
convicted of before the senate, by impeachment of the house, shall be in
the governor, by and with the advice of council: But no charter of
pardon, granted by the governor, with advice of council, before
conviction, shall avail the party pleading the same, notwithstanding any
general or particular expressions contained therein, descriptive of the
offense or offenses intended to be pardoned.

The plain language of our State Constitution demonstrably commits to
“the governor, with the advice of council,” the power of pardoning offenses,
which includes the lesser power of commutation. N.H. CONST. pt. II, art. 52;
see also Doe v. State, 114 N.H. 714, 718 (1974) (explaining that the pardon
power “is an act of executive grace”). Our State Constitution recognizes “the
traditional conception of clemency as an Executive Branch function separate
from adjudicatory proceedings within the Judicial Branch.” Bacon v. Lee, 549
S.E.2d 840, 846-47 (N.C. 2001) (collecting cases explaining the same); see N.H.
CONST. pt. II, art. 52; see also Herrera v. Collins, 506 U.S. 390, 411-12 (1993)
(explaining the origins of the clemency power as an executive branch function).
Consequently, “pardon and commutation decisions have not traditionally been
the business of courts” and “they are rarely, if ever, appropriate subjects for
judicial review.” Connecticut Board of Pardons v. Dumschat, 452 U.S. 458,
464 (1981).

However, “concluding that the State Constitution commits to a
coordinate branch of government certain exclusive authority does not

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necessarily end the justiciability inquiry.” Richard, 175 N.H. at 268. We have
recognized that when authority to determine internal procedures has been
demonstrably committed to another branch of government, “the question of
whether a constitutionally-mandated procedure has been followed is
justiciable.” Id. “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. (quotation
omitted).

Here, Part II, Article 52 of our State Constitution imposes no
“constitutionally-mandated procedures” defining the manner by which the
executive branch exercises its discretion when considering whether to invoke
its clemency power. Instead, that provision limits only when the Governor,
with the advice of the Executive Council, may exercise the power to pardon or
commute by excluding: (1) cases of impeachment by the House of
Representatives and conviction by the Senate; and (2) cases brought before
conviction for a criminal offense. N.H. CONST. pt. II, art. 52. As a result,
nothing in the plain language of Part II, Article 52 of our State Constitution
vests this court with jurisdiction to adjudicate whether the executive branch
acted, as the petitioner argues, “arbitrarily and in bad faith” in an otherwise
lawful exercise of discretion in its clemency power. Cf. Richard, 175 N.H. at
268 (“However, to the extent that the constitution vests the Speaker and the
Senate President, on behalf of their legislative bodies, with the discretion to
take certain actions, we conclude that whether they erred in the manner in
which they exercised that discretion is not justiciable.”).

Moreover, we are unpersuaded by the petitioner’s argument that other
provisions of our State Constitution impose “constitutionally-mandated
procedures” upon the Governor and Executive Council’s discretionary exercise
of the executive branch’s clemency power. Specifically, the petitioner argues
that our holding in Farrow establishes a constitutional right to have the
Governor and Executive Council review and “engage in good faith discussion”
about the merits of her Petition. We disagree. In Farrow, we concluded that
the legislature’s prescription of a life-without-parole-sentence did not
constitute a sentence of extermination in violation of Part I, Article 18 of the
New Hampshire Constitution. Farrow, 118 N.H. at 304-05. We observed that
in addition to such a sentence not being equivalent to execution, a prisoner
also “has many opportunities to improve his life” while incarcerated, which may
culminate in “a pardon if he can demonstrate to the Governor and Council his
fitness to return to society without being a threat to it.” Id. at 305. Simply
put, the petitioner’s reliance upon Farrow is misplaced because nothing in our
holding implied that the executive branch must apply any particular
procedures when exercising its clemency powers.

The petitioner also asserts that the manner by which the executive
branch exercised its discretion in this instance denied her the “minimal due

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process” required under Part I, Articles 14 and 15 of our State Constitution.
However, the petitioner’s passing references to constitutional provisions
without application of the text of those provisions to the executive branch’s
exercise of its clemency power in this case does not develop a legal argument
sufficiently for our review. See State v. Blackmer, 149 N.H. 47, 49 (2003).

Even if the petitioner had developed this argument, we conclude that, in
the context of the executive branch’s discretionary exercise of its clemency
power, under our State Constitution the petitioner does not have a legally
protected interest in obtaining a commutation hearing that would implicate
procedural due process rights. See In re Kilton, 156 N.H. 632, 637-38 (2007)
(explaining that to determine whether particular procedures satisfy the
requirements of due process, “we ascertain whether a legally protected interest
has been implicated”); see also Dumschat, 452 U.S. at 464 (concluding that an
inmate has “no constitutional or inherent right” to commutation of his life
sentence (quotation omitted)).

Therefore, in the absence of any controlling “constitutionally-mandated
procedures” applicable to the executive branch’s exclusive authority to exercise
its clemency power, we conclude that the petitioner seeks a ruling on a
political, nonjusticiable question. Because imposing procedural rules or
standards upon the executive branch in the commutation process would
violate the separation of powers doctrine, we dismiss the Rule 11 petition for
lack of jurisdiction.

Petition dismissed.

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

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