The Oyster River School District is a so-called SB-2 school district. At a special School District meeting held in the fall of 1999, the School District voters approved a bond issue for renovation of the Oyster River High School and construction of an addition to the high school. On December 27, 1999, this Court issued an order invalidating the meeting, on the basis that 50 percent of the registered voters did not participate in the vote as required by required RSA 197:3 and that Chapter 2 of the New Hampshire Laws of 1999 did not authorize the school board to call a special meeting, without court approval, for purposes of appropriating money. That case has been appealed to the New Hampshire Supreme Court.

At the 2000 Annual Meeting of the Oyster River School District, the School Board prepared and submitted to the voters a warrant article for 20 million dollars, for renovation of the Oyster River High School and construction of an addition. The School Board article was inserted in the warrant for the annual meeting as Warrant Article 3. Two petition articles (Articles 4 and 5) proposing bond issues to deal with the high school problem were also submitted. Article 4, was the same as Article 3, except that the amount of the bond issue, in Article 4, was 15.5 million dollars. Article 4 included the following additional language:

This project, conforming to usual and customary New Hampshire high school building specifications, will on a timely basis relieve the present congestion and discomfort experienced by students and teachers. The proposed building will adequately and comfortably accommodate a student enrollment of 850 and satisfy the NEAS & C space requirements for accreditation. The building's capacity of 850 students is in excess of the enrollment of 770 students anticipated by the long-range planning committee's projections. In the event that more than one warrant article appropriating the sum of money for work related to high school enlargement receives the required majority of votes, no more than the sums specified in any one warrant article may be appropriated.

The second petition article, Article 5, proposed construction of a second high school in the Oyster River School District, at a cost of 10 million dollars. This article also included a sentence reading:

Provided that no such aforementioned sums shall be raised or bonds issued if the Annual District meeting determines by legal vote to authorize renovation and expansion of the current high school.

The deliberative meeting was held on February 8, 2000. At the meeting, Article 3 was amended (Transcript page 62) by adding the following language:

Adoption or defeat of this Article is not a reconsideration or rescission of the vote of the November 16, 1999, Special School District meeting, approving a bond article for the high school.

Article 4 was amended three times. The last sentence of Article 4 was amended by deleting the final sentence and replacing it with different wording, as follows:

In the event that more than one warrant article appropriated [sic] the sum of money for work related to high school enlargement receives the required majority of votes, the amount of the several articles may not be combined, and no more than the highest sums specified in any one article may be appropriated. (Transcript page 102).

The second amendment to Article 4 reduced the dollar amount for Article 4 to one dollar. (Page 105). This amendment was adopted by secret ballot, with 376 "yes" votes and 71 "no" votes. (Transcript page 137). Article 4 was amended again, to delete the following:

This project, conforming to usual and customary New Hampshire high school buildings specifications, will on a timely basis relieve the present congestion and discomfort experienced by students and teachers. The proposed building will adequately and comfortably accommodate a student enrollment of 850 and satisfy the NEAS & C space requirements for accreditation. The building capacity of 850 students is in excess of the enrollment of 770 students anticipated by the long-range planning committee's projections.

As part of this amendment, an additional sentence was added to read: "A vote to approve this article shall not constitute reconsideration of Article 3." (141-142).

The voters next took up Article 5, the petition article proposing a second high school. After discussion of Article 5, a motion was made to amend Article 5, to reduce the dollar amount to one dollar and to add a sentence to the end to read, "A vote to approve this article shall not constitute a reconsideration of Article 3." The amendment was adopted by a show of hands: (Transcript page 168-170).

The second session of the Annual Meeting, for official ballot voting, was held on March 14, 2000. 3,311 people voted on Article 3. 2,168 (65.48 percent) voted "yes"; 1,143 (34.52 percent) voted "no". Article 4 was defeated, with 770 voting in favor and 2,294 against. Article 5 was rejected with 679 in favor and 2,482 against.

1. The votes at the deliberative meeting to amend Articles 4 and 5 to one dollar were not unlawful. The primary issue in this case is the extent of the authority of the deliberative meeting, in a Senate Bill 2 school district, to amend the dollar amount of warrant articles. RSA 40:13 establishes only two limits on the authority of the first session of a school district meeting to amend warrant articles. Specifically, RSA 40: 13, IV reads in pertinent part:

Warrant articles may be amended at the first session, subject to the following limitations: (a) Warrant articles whose wording is prescribed by law shall not be amended. (b) Warrant articles that are amended shall be placed on the official ballot for a final vote on the main motion, as amended.

Under SB-2 the annual meeting is a single meeting, at which the legislative body acts, although the meeting itself is divided into two sessions, a first session and a second session. There is nothing in SB-2 suggesting that the deliberative meeting is, in some sense, an inferior legislative body, or that under Senate Bill 2, the authority of the deliberative meeting to amend warrant articles is any different from the authority of the deliberative meeting, operating under the traditional town meeting form of government, to amend warrant articles.

Under Senate Bill 2, the statutory procedure for development of the warrant remains the same. The opportunity for debate and amendment and the actual voting have been split into two separate sessions. There is nothing in the legislative history of SB-2 suggesting a legislative intent to change the procedure for amending warrant articles. The purpose of SB-2 was stated as "this bill enables towns, village districts, and school districts to use the official ballot for voting on all warrant articles.", thus, expanding the use of the official ballot to all warrant articles. The legislative history of Senate Bill 2 makes clear that the right of the voters to amend warrant articles, within the bounds of statute and common law, has not changed.

RSA 197:5 requires that the warrant state, "the time and place of the meeting and the subject matter of the business to be acted upon." The same requirement applies to town meetings. RSA 39:2. The purpose of this requirement "is to inform the inhabitants of the business upon which they are called to act in the meeting-'to bring before the town substantially and intelligently the subject with which it has to deal'." Opinion of the Justices, 101 NH 545 (1957); Sawyer v. Railroad, 62 NH 135, 108; Tucker v. Aiken, 7 NH 113, 125. RSA 32:6 expressly empowers the town or school district meeting to amend the dollar amount of warrant articles up or down. RSA 32:6 reads:

"All appropriations and municipalities subject to this chapter [the municipal budget law] shall be made by vote of the legislative body of the municipality at an annual or special meeting. No such meeting shall appropriate any money for any purpose unless that purpose appears in the budget or in a special warrant article, provided, however, that the legislative body may vote to appropriate more than, or less than, the amount recommended for such purpose in the budget or warrant, except as provided in RSA 32:18."

(RSA 32:18 is the section of the municipal budget law, applicable only to towns and school districts which have budget committees, restricting appropriation authority of the annual or special meeting to no more than 10% beyond the total recommended by the budget committee.)

The deliberative meeting has always had the power to amend the dollar amount of warrant articles. Sawyer v. Railroad, 62 NH 135 (1882). The rules are the same for petition warrant articles; they can be amended up or down. There is no support, anywhere in the statutes, for different treatment of petition warrant articles.

Petitioners often argue that the result is not what they intended and/or that the result is contrary to their intent, when they submitted the petition. This issue has already been dealt with by at least two Superior Court decisions involving municipalities operating under SB-2. In the first case, Tucker v. Goffstown, Hillsborough Superior Court, Northern District, Docket Number 97-E-103, the article submitted by petitioners called for the sale of the Grange Hall. A member of the Board of Selectmen moved to amend the article to provide for preservation of the Grange Hall as a public building under the ownership of the town. The moderator ruled that the amendment was proper, so long as the subject matter of the article remained the same as the petition.

Petitioners in that case also argued that the amendment effectively removed the article from the ballot, contrary to the statute. Noting again that the intent of the warrant is to notify the voters of the subject to be discussed and voted on, the Court concluded, "it is, therefore, the subject matter that is paramount, not the intent of the original petitioners of the articles. The townspeople debated and approved the amendment to Article 20. The amendment substantially changed the intent of the article, but because the subject remained the same, the amendment was proper."

In another case, decided by the Rockingham County Superior Court, the result was the same. Moreau v. Exeter School District, (Rockingham Superior Court Docket No. 99-E-87). In Moreau the issue again was the authority of a Senate Bill 2 deliberative meeting to amend warrant articles. At the deliberative session of the 1999 Exeter School District meeting, the voters voted to amend Article 9 by deleting the article from the warrant. Thus, the official ballot read as follows "9. This article is deleted as a result of a vote at the first session of this annual meeting held February 2, 1999." The Court agreed that because RSA 40:13 IV (b) requires that warrant articles that are amended at the deliberative session be placed on the official ballot for final vote on the main motion, and that Article 9 should have been placed on the ballot for a final vote. Thus, the Court concluded that the voters at the deliberative session were not legally empowered to amend an article by deleting it from the official ballot.

However, in answering the question of how far the New Hampshire voters at a deliberative meeting can go in amending a warrant article, the Court said that "warrant articles in Senate Bill 2 districts may be amended just as creatively and liberally as warrant articles have traditionally been amended in New Hampshire town and school meetings. In other words, amendments to a warrant article can range from a minor improvement, to a complete reversal, to a deletion, but the amended article must be placed on the official ballot for a final vote. Of course, absurdities have, could, and probably will result from time to time, as the respondent observes in its memorandum of law: 'presumably Article 9 could have been amended to read 'shall Article 9 be deleted?'. The Court finds that it could have been. This particular situation may seem absurd, but the statutes require that the amended article be put to a final vote and law will not be satisfied unless the amended article is printed on the official ballot with the "yes" and a "no" box next to it."

The legislative history of Senate Bill 2 also makes clear that the authority of the voters to amend warrant articles includes the authority to amend appropriation articles to one dollar, or to zero. The original draft of Senate Bill 2 prohibited amendment of petition warrant articles without written consent of all petitioners. That particular provision of SB-2 generated a lot of opposition and it was deleted from the bill. An SB 594 study committee was established in 1996, to consider and recommend changes to SB-2. The committee issued a final report on October 2, 1997. On issue 15, the committee concluded as follows:

"Petitioned articles should remain amendable. Committee notes that operating budget is amendable, as should petitioned articles. Prohibiting amendment of petitioned articles would be an unconstitutional change of government. Committee strongly encourages voters to remember that first session is an integral part of local government and that there is no substitute for showing up. Committee agrees to require deletion of warrant articles with expenditures amended to zero from the second session warrant as such questions confuse voters: i.e. 'should Canaan appropriate zero to repair the town hall?'"

The draft bill generated by the committee included the following:

"5. New subparagraph: Official ballot meeting: zero expenditure warrant to be deleted from ballot. Amend RSA 40:13, IV by inserting after subparagraph (b) the following new subparagraph: (c) not withstanding subparagraph (b), a warrant article with an appropriation that has been amended to zero shall not be placed on the official ballot for a final vote."

Thus, even the senate committee working on Senate Bill 2 was aware of and saw no need to change the practice of amending warrant articles to zero. The change they proposed, which would have deleted those articles from the warrant, was eventually dropped from the bill.

Other proposals have been considered by the legislature and deemed inexpedient to legislate, regarding limitations on amendment of warrant articles at the deliberative meeting of SB-2 towns and school districts. The 1998 legislative session did some work on HB-1236. Initially, HB-1236 proposed to prohibit amendment of cost items for collective bargaining agreements and warrant articles petitioned by a number of voters equal to at least 20% of the number of votes cast at the last regular election, but in no case less than 10 voters. Another version of HB-1236 proposed to prohibit amendment only of collective bargaining cost items. Neither of these amendments made it into law.

Also during the 1998 session, HB-1343 was proposed to deal with multiple and contingent warrant articles in official ballot law towns and school districts. This proposal would required consolidation of multiple warrant articles on the same issue into a single warrant article with two or more choices, allowing the voters to choose one or none of the above. The legislature determined that HB- 1343 was inexpedient to legislate.

The actions of the legislature make clear, first, everyone's understanding that, under Senate Bill 2, the authority of the deliberative meeting to amend warrant articles includes the authority to amend those articles to zero. In addition, the legislature has resisted several attempts to curtail the authority of the deliberative meeting to amend warrant articles. The legislative history also establishes that the legislature is also aware of the problems created, under Senate Bill 2, by multiple warrant articles dealing with a single subject matter. Thus far, the legislature has been content to allow the power of the deliberative meeting to amend warrant articles to resolve those difficulties.

A vote approving a bond issue is an authorization for the school board to sell those bonds. Each warrant article is considered separately and on its own merits. Petitioner has objected to amendment of the two petition warrant articles to one dollar, which was done to eliminate the problem of multiple warrant articles dealing with the same subject matter. What no one has considered is that if the meeting does not have that authority, there is always the risk that the voters would have approved all three articles dealing with the same subject matter, in which case the school board, could, if it wanted to, at least in theory, have combined the amounts appropriated under Articles 3 and 4, to spend $35,000,000 for the new high school, rather than $20,000,000. While it is unlikely that a school board would be so rash as to spend $35,000,000 in that circumstance, what about the situation where the Board, after approval of the bond articles, discovers that the project will really cost $25,000,000 instead of $20,000,000? It is unlikely that the voters would want the Board to have the leeway to increase the project amount by 25%, simply because the voters, in order to insure that they get at least something for a new high school, have voted in favor of multiple bond articles dealing with the same subject matter. The ability of the deliberative meeting to amend warrant articles to one dollar or to zero is the best way, under the present law, to deal with the problem of multiple warrant articles covering the same subject matter.

Amendment of warrant articles to zero or one dollar is nothing new, under Senate Bill 2. The advice that school districts and towns have consistently been given, by the New Hampshire Department of Revenue Administration as well as by the Municipal Association, is that the best way to deal with multiple warrant articles covering the same subject matter, is for the deliberative meeting to choose the one it wants and amend the others to zero, or one dollar.

For example, on February 15, 1996, the Department of Revenue Administration, Commissioner Barbara T. Reid, disseminated the Department of Revenue Administration's interpretation of Senate Bill 2. Question 10 in this information packet was "Can petition articles be amended at the first session, even amended to zero?". The answer from DRA was "Yes, the first session may discuss, debate and amend each warrant article, including petition warrant articles. Since all petition articles are 'special' articles, they must be placed on the official ballot for a vote of the second session, even if amended to zero."

Similarly, the New Hampshire Municipal Association's legal counsel, H. Bernard Waugh, Jr., who participated in the committee hearings, of the legislature, when it considered SB-2, prepared an article discussing Senate Bill 2. In the article, Attorney Waugh dealt with the following question:

"Question 13: Under SB-2, what's to prevent an article from being amended on the floor of the first session so as to essentially gut the substance of it (for example amending the amount of a bond issue down to one dollar)? Answer: Nothing at all. Once voters grasp this, it will become clear that all factions on any controversial issue will have just as much reason to attend the open first session under Sb-2 as they do today.

In a later article Attorney Waugh responded to the question of how far a proposed amendment can stray from the original article, pointing out that the purpose of the warrant is only to place the subject matter before the voters, and that, in his opinion, SB-2, by allowing amendments, intended to allow the same range of possible amendments voters now have under the traditional meeting system. He advised that amending appropriation items up or down is permitted and that any details as to how a subject matter is to be treated, or the addition or deletion of any terms and conditions can be done through amendments, as long as they relate to the general subject matter citing Pittsburgh v. Danforth, 56 NH 272; and Sawyer v. Railroad, 62 NH 135.

In response to another question "what happens if the warrant contains more than one operating budget (one put in by the governing body and others by petition)?" Waugh advised that "the only way to avoid the confusion of contradictory ballot questions is for the voters to amend the governing body's operating budget to the amount they want (maybe even the petitioned amount) but then reduce the petition budget down to zero."

2. Petitioner asks this Court to disenfranchise the more than 3000 voters who voted on Article 3 because of perceived irregularities in the amendments approved for Articles 4 and 5. Such a request is unprecedented. Each warrant article is voted separately and must stand on its own merits. There is no precedent for invalidating the vote under one article because of irregularities or even errors in the votes taken on other articles. For example in Lamb v. Danville School Board, 102 NH 569 (1960) the Supreme Court held that the vote at a special school district meeting to appropriate money to construct a school and issue bonds was not rendered invalid, where the moderator failed to comply with the strict rules of parliamentary procedure and when no appeal was taken by any voter from the rulings of the moderator during the course of the meeting, where the procedure adopted by the school district did not violate any statute but was at most a violation of parliamentary procedure. In Lamb v. Danville, the Court pointed out that "the machinery of government would not work if it weren't allowed a little play in its joints", quoting Mr. Justice Holmes. 109 NH at 571. In the case at hand, Petitioner fails to identify any statute which was violated by the action of the school district meeting. Furthermore although a voter questioned the legality of the moderator ruling that Articles 4 and 5 could be amended to one dollar he did not otherwise challenge the ruling of the moderator, nor did he request a vote of the meeting on that issue. In fact, the only ruling of the moderator which was challenged during the meeting was the moderator's refusal to allow an amendment changing the subject matter of Article 3 which was proposed by a voter other than Petitioner. (Transcript page 64).

I hereby certify that on April 19, 2000, a copy of the foregoing document was hand delivered to Kevin E. Shenefiel, Plaintiff, Pro Se.

[signed] Barbara F. Loughman

\\C:\Amy Docs\OYSTER\shenefiel memo of law 4.18.doc

SOULE, LESLIE, KIDDER,
SAYWARD & LOUGHMAN
P. L. L. C.
ATTORNEYS AT LAW
SALEM & LACONIA
NEW HAMPSHIRE

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