Petitioner's Statement in Court

The officers of the Oyster River School district neglected their responsibilities to uphold the laws of this state, when they allowed illegal measures to deny the right of registered voters to vote on issues that were legally and rightfully put forth to be voted on.

There is no question as to the events that occurred at the deliberative session of February 8, 2000. Not only is a verbatim transcript available, there is also a VHS recording of the meeting.

Articles 4 and 5 were alternate bond proposals to increase high school capacity. Article 11 concerned establishing new curriculum standards, enforcing curriculum standards, and the reporting of students progress to ensure smooth transition between grades without gaps or redundancy in the learning process.

Article 4 was first amended to clarify which bond article would be followed should more than one pass. Then it was amended to reduce the dollar values to 1 dollar. And thirdly it was amended to eliminate several lines explaining the school construction proposal. Article 5 was also amended to reduce the dollar values to 1 dollar. The clearly expressed purpose of reducing the dollar values was to invalidate the proposals so there would be no alternatives or competition to the school board's proposal.

Article 11 was amended to eliminate the deadline for action, change enforcement to implementation, and to completely eliminate the third proposal concerning the reporting of students progress.

These amendments were made in violation of the provision to vote on all issues by official ballot, as adopted under RSA 40:13, as well as the right to petition the legislative body as established in the 32nd article of the Bill of Rights, of the New Hampshire Constitution.

The intent and purpose of RSA 40:13 can be found by reading the minutes of the debate of SB2 on March 15 1995, that are in the Senate Journal. The primary purpose was to eliminate the ability of the small minority of people who attended meetings under the town meeting process to vote on issues that effect the vast majority of voters. And to instead let the issues be voted on by the far greater number of people who vote by official ballot on election day.

Quoting Senator Roberge:

"The purpose of SB2 is threefold - to maximize the number of people who can vote on warrant articles of towns and village districts and school districts; to ensure that every vote is strictly private; and three, to provide that all warrant articles shall be voted on by official ballot. Concerning item one, many more people vote on election day than vote at town or village or school district meetings. In my town of Bedford, for example, this year, only about 125 or so attended the town meeting and something over 200 attended our school district meeting. But yesterday 2,500 people voted for the town and school district officials. Also this is a typical turnout. So when 25 percent of the registered voters turn out on election day that is far more than the 1.5 percent at town meeting or a little over 2 percent at the school district meeting. By voting by absentee ballot, for those who cannot get to the polling place for whatever reason, it will ensure that everyone who wants to vote will be able to do so. Item 2. Since voting by official ballot is in the privacy of the voting booth, no one except the voter will know how he or she voted. There will be no more intimidation, retribution, retaliation, or acrimony. Neighbors can be neighbors again. Item 3. SB2 provides that all warrant articles, including budgets and bond issues, shall be voted on by official ballot."

And referring to the town meeting process. "If it ain't broke why Fix It? It is broke when only two to five percent of registered voters turn out at a town meeting, and only five to seven percent turn out at school district meetings, then something is drastically wrong. When the few people determine the spending, hence the taxes for the other 93 and 97 percent, something is broke. On election day, typically, from 25 to 80 percent turn out depending on the community. Voting by official ballot and absentee ballot on election day will get a much more represented view of the community's wishes than is given by the few who attend meetings. Since it is broke, let's fix it. The town meeting is the legislative body, so they will be denied their rights. True they are the legislative body, but they will not be denied any rights. In fact, by enabling more people to vote by official ballot and by absentee ballot, the legislative body will be enlarged, thus a truly more representation of the people."

That purpose is not achieved when a small group uses amendment procedures, that were intended to allow for corrections and clarifications, to invalidate an article or eliminate one of the principal issues of an article to prevent it from being voted on by the full legislative body. The situation is even worse, because the 447 who attended the deliberative session is far smaller than the 1153 (1994 annual) to 1820 (1992 special) who attended district meetings under the old process.

In March of 1996 the district adopted the provisions of RSA 40:13. The question on the ballot was "Shall we adopt the provisions of RSA 40:13 to allow official ballot voting on all issues before the district?". RSA 40:13 section I. reads "Notwithstanding RSA 39:3-d, RSA 40:4-e, or any other provisions of law, any local political subdivision as defined in RSA 40:12 which has adopted this subdivision shall utilize the official ballot for voting on all issues before the voters." When the statute specifies that all articles must be placed on the ballot for a final vote, articles refers to the issues that were in the warrant not to the numbers that were assigned to those issues. What would be the point of insisting on placing articles on the ballot if they were allowed to address no issue?

Article 4 and 5 were amended to the extent that they no longer addressed any issue, nor any semblance of the issue that appeared on the warrant. Article 4 asked for the issuance of 15.5 million dollars in bonds for renovations and additions to the high school to accommodate 850 students. As amended it asked for the issuance of 1 dollar in bonds to pay for renovations and additions. The idea of issuing 1 dollar in bonds is absurd. It is especially absurd when 1 dollar is also raised and appropriated to pay the interest anyway. There is no question that it is impossible to complete a renovation and addition project for 1 dollar. For renovations you would be able to purchase a light switch or a floor tile but you couldn't hire anyone to install either. Any sort of addition would be completely out of the question. Article 4 as amended is invalid. The dollar amount is not even close to what would be necessary to meet the requirements of the proposal.

The same holds true for article 5 which asked for the issuance of 10 million dollars in bonds for the construction of a new 400 student high school. A light switch or floor tile wouldn't be much use however with no floor, walls, or electrical service.

Article 11 included three main issues. The first on establishing new curriculum standards, the second on accountability of enforcing those standards, and the third on reporting students progress in a way that ensures a smooth transition between grades. The amendment to the article completely struck the third proposal. It was set off as a separate proposal of equal importance to the other two. The issue was not addressed by the other two proposals. If you could eliminate the third proposal you could just as well of eliminated the first and second instead. But if you do both and eliminate all three you have quite clearly eliminated the article.

For my second argument. All three of the articles are petitions. As petitions they have additional protections under the right to petition of the New Hampshire Bill of Rights.

It seems to me that SB2 intended that all existing laws on the wording, content, and presentation of articles be followed whether specifically mentioned or otherwise overlooked. There are further restrictions on how articles can be amended, besides prohibiting amendments to wording prescribed by law. Laws requiring direct placement on the ballot must still be followed, for building codes, zoning ordinances, historic district ordinances, and any other article that the law may require. Also, the district has previously held that laws regulating the content and presentation of articles must still be followed. At the 1999 annual meeting, an amendment to change the apportionment formula to be based on the number of students from each town was rejected because statute requires that such a formula must first be approved by the school board. At the same meeting legal counsel also advised that an article couldn't be amended to include the reconsideration of a sale of land because articles on the purchase or sale of land must be separate from other issues. As a state law, the constitutional right to petition should also directly apply as a law regulating wording, content, and presentation of articles.

Articles 4, 5 and 11 were placed on the warrant by petition. The primary law concerning petitions is Article 32 of the Bill of Rights of the New Hampshire Constitution. It states "The people have a right, in an orderly and peaceable manner, to assemble and consult upon the common good, give instructions to their representatives, and to request of the legislative body, by way of petition or remonstrance, redress of the wrongs done them, and of the grievances they suffer."

In the town meeting system these rights are fully protected when the petition is placed on the warrant. If the petition is a type of article requiring an official ballot vote it is placed on the ballot for a direct vote, if not it appears on the warrant to be discussed and voted on during the regular town or district meeting. In either case the petition is presented directly to the body with the authority to approve the request.

SB2 creates a new form of government. Although there is still a deliberative session and a ballot session, the legislative authority to approve articles was completely striped from the deliberative session and invested entirely in the ballot session. It is this authority to raise and appropriate funds, adopt enabling legislation, and approve local ordinances that defines a legislative body. The deliberative session may still have many of the trappings that give the appearance of a legislative body, but any group can gather to debate and discuss the articles that appear on the warrant but that won't make them a legislative body.

Even if you believe that the authority to amend articles is sufficient to qualify a gathering as a legislative body. The constitution gives people the right to request redress. That constitutional requirement can not be fulfilled unless that request reaches the legislative body with the authority to grant that request.

Furthermore, the legislative body is the 9300 or so registered voters in the district. The 3311 plus 3758 voters who turn out to vote during the ballot session constitute the legislative session of that body. The 447 voters who showed up at the deliberative session is only a small fraction of that body. Common standards require a quorum of 50%. 447 is only 13.5% less than 12% of the voters who cast ballots. That hardly qualifies the deliberative session to conduct the business of the full legislative body. The 447 voters that turned out represent less than 5 percent of the registered voters.

Thank You.

Last update on 20-Apr-00 at 10:56 PM.

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This page is edited by David K. Taylor. Please send questions or comments to editor@orol.org.