TABLE OF AUTHORITIES

QUESTIONS PRESENTED FOR REVIEW

CONSTITUTIONAL PROVISIONS, STATUTES, ORDINANCES, RULES OR REGULATIONS AT ISSUE

STATEMENT OF THE CASE

STATEMENT OF THE FACTS

SUMMARY OF ARGUMENT

ARGUMENT

1. RSA 33:8 Does Not Violate Part I. Article 39 Of The New Hampshire Constitution

   1. History of Part I, Article 39 of the New Hampshire Constitution

   2. Paragraph One of Article 39 Does Not Apply to RSA 33:8

   3. Paragraph Two of Article 39 Does Not Apply to RSA 33:8

   4. RSA 33:8 Does Not Effect a Change in the form of Government of Any City or Town

   5. Part I, Article 39 Does Not Apply to School Districts

2. RSA 33:8 Does Not Violate The Equal Protection Clauses Of The New Hampshire And United States Constitutions

   1. Equal Protection Analysis

   2. RSA 33:8 Does Not Classify For Equal Protection Purposes

   3. RSA 33:8 Bears A Rational Relation To Its Purpose

CONCLUSION

CERTIFICATE

ADDENDUM

Constitutional Provisions and Statutes

New Hampshire Constitution, Part I, Article 12

New Hampshire Constitution, Part I, Article 39

RSA 195:18

RSA 33:8

RSA 39:3

RSA 40:10

RSA 40:11

RSA 40:13

RSA 40:14

RSA 40:4-a

RSA 49-B

RSA 49-C

RSA 49-D

Cases

Anderson v. Dunn, 6 Wheat 204 (1821)

Bogert v. Kinzer, 465 P.2d 639 (Idaho 1970)

Clough v. Osgood, 87 N.H. 444 (1935)

Dugas v. Town of Conway, 125 N.H. 175 (1984)

Girard v. Town of Allenstown, 121 N.H. 268 (1981)

Harriman v. City of Lebanon, 122 N.H. 477 (1982)

Holt Civic Club v. Tuscaloosa, 439 U.S. 60 (1978)

In re Kearsarge Regional School Dist., 138 N.H. 211 (1994)

In the Matter of a Contest of a Certain Special Election, 659 P.2d 1294 (Ariz. 1982)

LeClair v. LeClair, 137 N.H. 213 (1993)

Opinion of the Justices (Weirs Beach), 134 N.H. 711 (1991)

Opinion of the Justices, 109 N.H. 396 (1969)

Opinion of the Justices, 112 N.H. 42 (1972)

Opinion of the Justices, 117 N.H. 749 (1977)

Opinion of the Justices, 137 N.H. 260 (1993)

Opinion of the Justices, 94 N.H. 499 (1947)

Petition of Barney, 142 N.H. 798 (1998)

Public Service Co. v. Town of Hampton, 120 N.H. 68 (1980)

Seabrook Citizens for Defense of Home Rule v. Yankee Greyhound Racing. Inc., 123 N.H. 103 (1983)

Seabrook Citizens v. Yankee Greyhound Racing. Inc., 123 N.H. 103 (1983)

Smith v. State, 118 N.H. 764, 768 (N.H. 1978)

Smith v. Town of St. Johnsbury, 554 A.2d 233 (Vt. 1988)

State v. Bernard, 141 N.H. 230, 233 (N.H. 1996)

Tiews v. Timberlane Regional School Dist., 111 N.H. 14 (1971)

Union School Dist. v. School Dist. No. 20, 71 N.H. 269 (1902)

Other

House Committee on Education Public Hearing on HB 487, March 24, 1999

Journal of Constitutional Convention, Tuesday, May 22, 1956, at 85-86

Report of the Commission to Study the State Constitution to the Fifteenth Constitutional Convention

Senate Chamber Floor Debate, June 17, 1999

Senate Committee on Education Hearing on HB 487, June 9, 1999

Voter's Guide to Proposed Amendments to Constitution of the State of New Hampshire, Nov. 8, 1966, at Question No. 3

1. Whether RSA 33:8, as amended in 1999 to change the vote percentage required for the approval of bond issues in official ballot municipalities (including school districts) from two-thirds to three-fifths, violates Part I, Article 39 of the New Hampshire Constitution.

2. Whether RSA 33:8, as amended in 1999 to change the vote percentage required for the approval of bond issues in official ballot municipalities (including school districts) from two-thirds to three-fifths, violates the equal protection provisions of the New Hampshire Constitution.

Part I, Article 39:

Changes in Town and City Charters, Referendum Required. No law changing the charter or form of government of a particular city or town shall be enacted by the legislature except to become effective upon the approval of the voters of such city or town upon a referendum to be provided for in said law.

The legislature may by general law authorize cities and towns to adopt or amend their charters or forms of government in any way which is not in conflict with general law, provided that such charters or amendments shall become effective only upon the approval of the voters of each such city or town on a referendum.

Part I, Article 12:

Protection and Taxation Reciprocal. Every member of the community has a right to be protected by it, in the enjoyment of his life, liberty, and property; he is therefore bound to contribute his share in the expense of such protection, and to yield his personal service when necessary. But no part of a man's property shall be taken from him, or applied to public uses, without his own consent, or that of the representative body of the people. Nor are the inhabitants of this state controllable by any other laws than those to which they, or their representative body, have given their consent.

RSA 33:8:

Town or District Bonds or Notes. Except as otherwise specifically provided by law, the issue of bonds or notes by any municipal corporation, except a city or a town which has adopted a charter pursuant to RSA 49-B, without a budgetary town meeting, and except a school district or municipality which has adopted official ballot voting procedures pursuant to RSA 40:13 shall be authorized by a vote by ballot of 2/3, and the issue of tax anticipation notes, by a vote of a majority, of all the voters present and voting at an annual or special meeting of such corporation, called for the purpose. The issue of notes or bonds by a school district or municipality which has adopted office ballot voting procedures pursuant to RSA 40:13 shall be authorized by a vote of 3/5. No such action taken at any special meeting shall be valid unless a majority of all the legal voters are present and vote at such special meeting, unless the governing board of any municipality shall petition the superior court for permission to hold an emergency special meeting, which, if granted, shall give said special meeting the same authority as an annual meeting. The warrant for a special meeting shall be published once in a newspaper having a general circulation in the municipality within one week after the posting of such special meeting. The warrant for any such annual or special meeting shall be served or posted at least 14 days before the date of such special meeting. Every warrant shall be deemed to have been duly served or posted, if the return on the warrant shall so state, and it shall be certified by the officer or officers required to serve or post the same. All bonds or notes, authorized in accordance with this chapter, shall be signed by the governing board, or a majority of the governing board, and countersigned by the treasurer of the municipality, and shall have the corporate seal, if any, affixed to it. The discretion of fixing the date, maturities, denominations, the interest rate, or discount rate in the case of notes, the place of payment, the form and other details of said bonds or notes and of providing for the sale of such bonds or notes, may be delegated to the governing board or to the treasurer and shall, to the extent provision therefor shall not have been made in the vote authorizing the same, be deemed to have been delegated to the governing board.

This interlocutory transfer without ruling arises out of a Petition for Declaratory Judgment ("Petition") brought by Richard McGraw, a citizen of the Town of Exeter, against the Exeter Region Cooperative School District. As detailed infra, Mr. McGraw seeks a declaratory judgment with respect to the constitutionality of RSA 33:8 under Part I, Article 39 and the equal protection provisions of the New Hampshire Constitution. Mr. McGraw's Petition raised purely legal and constitutional issues which did not require the development of a factual record prior to disposition. The parties, moreover, anticipated that the issues raised by Mr. McGraw's Petition would ultimately come before this Court through a notice of appeal of one of the parties.

The parties sought an interlocutory transfer without ruling to this Court, which the Rockingham County Superior Court granted on April 19, 2000. During the same period, several other school districts moved to intervene on an assented-to basis. The Rockingham County Superior Court also granted these motions on April 19, 2000, allowing the Oyster River Cooperative School District, John Stark Regional School District, Contoocook Valley School District, and Winchester School District to intervene. Where necessary, the Exeter School District and the intervenors are collectively referred to as "the respondents."

This Court accepted the interlocutory transfer without ruling and joined the intervenors as additional parties on July 11, 2000. The respondents now submit this brief in support of the constitutionality of RSA 33:8.

On March 3, 2000, Richard McGraw filed a Petition for Declaratory Judgment through counsel in the Rockingham County Superior Court. In his Petition, Mr. McGraw alleged that, as a resident of Exeter, he was a person entitled to vote at the annual meeting of the Exeter Region Cooperative School District ("Exeter School District") and vote on school funding issues by official ballot as established by RSA 40:13 & 14. See Petition, ¶2 (Addendum ("Add.") at 37). Mr. McGraw further contended that, when adopted by the citizens of Exeter, RSA 40:13 and 14, which establish and frame the official ballot form of government for municipalities that adopt it, required a two-thirds vote to approve bond issues pursuant to RSA 33:8. id. at ¶4. Mr. McGraw contended, however, that, subsequent to the residents' adoption of the official ballot form of government, the legislature amended RSA 33:8 to change the voting percentage required to issue bonds in those municipalities which have adopted the official ballot form of government from two-thirds to three-fifths. Indeed, effective August 17, 1999, the amended RSA 33:8 provides that the "[i]ssue of notes or bonds by a school district or municipality which has adopted official ballot voting procedures . . . shall be authorized by a vote of 3/5." The percentage vote required for municipalities using a town meeting form of government remains at two-thirds.

Despite having met the voting percentage requirements of the current RSA 33:8, the declaratory judgment action has effectively blocked the Exeter School District's bond issue, as well as the important and necessary construction and renovation it would fund. Under the practices followed in the municipal credit markets, municipal bonds will not be purchased by investors unless they are accompanied by an unqualified opinion of bond counsel. Mr. McGraw's declaratory judgment action precludes bond counsel from rendering an unqualified approving opinion, thus making the bonds unmarketable in the public credit markets. The same is true for each of the intervenors, and virtually every municipality and school district in the State of New Hampshire which has adopted the official ballot form of government and which has approved bond issues by greater than three-fifths, but less than a two-thirds vote.

The bond issues involved, moreover, pertain to very real and critical projects for the Exeter School District and each of the intervenors. In each case, bond issues have been approved by greater than three fifths, but less than two thirds vote. The bond issues would fund the following projects:

• Exeter Region Cooperative School District -- 60.8% of the voters voted to approve a $32,600,000 bond which was part of a $35,000,000 renovation project for the high school.

• Oyster River Cooperative School District -- 65.48% of the voters voted to approve a $20,401,960 bond for the purpose of renovations and additions to the high school.

• John Stark Regional School District -- approximately 65% of the voters voted to approve a $5,000,000 bond responding to the fire marshall's orders relating to safety and health violations in the high school building.

• Contoocook Valley School District -- 66% of the voters voted to approve a $4,250,000 bond for the purposes of financing the completion of major construction projects in eight of the nine towns in that school district. In 1997, $15,500,000 was appropriated for this project. Currently, construction on the Peterborough Elementary School is partially completed and the school district is $2,000,000 short of completing the project. The Antrim Elementary School renovations have not yet commenced due to a lack of funds.

• Winchester School District -- 61.2% of the voters voted to approve a $5,500,000 bond for the purpose of renovating the high school.

Mr. McGraw launches two constitutional challenges to RSA 33:8. First, he claims that the statute, as amended in 1999, constitutes a change in the form of government of the Exeter School District that was not approved by its residents, and, therefore, violated Part I, Article 39 of the New Hampshire Constitution. Second, he claims that RSA 33:8, as amended in 1999, distinguishes between two similarly situated classes of voters and that such classification bears no rational relation to a legitimate state purpose. Therefore, Mr. McGraw argues, the statute violates the equal protection guaranty of the New Hampshire Constitution, specifically, Part I, Article 12.

RSA 33:8, as amended, neither violates Part I, Article 39 of the New Hampshire Constitution as an impermissible change to a form of government, nor Part I, Article 12 or any other equal protection provision in the New Hampshire Constitution, because it does not create distinct classes of similarly situated voters and, in any event, it bears a rational relation to a legitimate state purpose. As such, the respondents respectfully request that this Court answer the interlocutory transfer without ruling by finding RSA 33:8, as amended, constitutional.

Part I. Article 39

Part I, Article 39 must be viewed in the context of New Hampshire's historical rejection of "home rule" and its consistent affirmation that municipalities are "mere creatures of the state and may be not only created but altered or abolished at its will." Report of the Commission to Study the State Constitution to the Fifteenth Constitutional Convention at 23 ("Constitution Convention Report") (Add. at 44). Part I, Article 39 provides a limited exception to that broad rule by allowing municipalities to select their form of government from a legislatively provided array of choices (RSA 49-B, 49-C & 49-D). Part I, Article 39 also prevents any specific municipality from having a particular form of government imposed on it by the state, or from having some aspect of its specific form of government altered by the state without the approval of the municipality's voters. Part I, Article 39 does not, however, preclude the legislature from changing the details of the various forms of government available to municipalities. In other words, Part I, Article 39 does not proscribe the legislature from offering new forms of government for municipalities to select, or from altering any of those forms already available.

Part I, Article 39 is comprised of two discrete paragraphs. The first paragraph, by its own express language, prohibits the legislature from altering the form of government of particular towns and cities. Only by ignoring the word "particular" could the first paragraph be construed as prohibiting the 1999 amendment to RSA 33:8, a mode of construction that would contravene well established principles of statutory construction requiring courts to give effect to all of the words of a statute or constitutional provision. The history of the first paragraph, as well as decisions of this Court, make it clear that the provision prevents the legislature from adopting special legislation aimed at particular municipalities rather than general legislation aimed at all municipalities. As RSA 33:8 is a general statute applicable to all municipalities which have adopted the official ballot form of government, changes to the statute are not prohibited by the first paragraph of Part I, Article 39.

The second paragraph of Part I, Article 39 also, by its terms, does not extend to RSA 33:8. The second paragraph grants the legislature authority to establish the forms of government municipalities may select. This Court has held that paragraph 2 of Part I, Article 39 is not self executing, and that the legislature must implement that provision by enacting legislation that provides "forms of government" that can be adopted for a particular municipality upon the affirmative vote of its residents. The legislature has implemented the second paragraph of Part I, Article 39 through the passage of RSA 49-B, 49-C and 49-D. The power to create a form of government necessarily carries with it the power to fine tune its details. The 1999 amendment to RSA 33:8 did not constitute a change in a form of government, but rather an alteration of one of the existing options. As such, RSA 33:8 does not run afoul of, but rather further implements the second paragraph of Part I, Article 39.

As a threshold matter, equal protection analysis becomes necessary only when a statutory scheme treats similarly situated classes of citizens - in this case voters - differently. Nothing in RSA 33:8 creates such a classification because the statute, one of general applicability, equally affects the bond issue voting requirements of all official ballot municipalities. RSA 33:8 can only classify for equal protection purposes if residents in official ballot and town meeting municipalities, i.e., residents in municipalities operating under distinct forms of government, were deemed to constitute similarly situated classes of voters. Citizens residing in separate political subdivisions operating under different governmental systems are not similarly situated for equal protection purposes. Distinctions among voters under different governmental systems raise no equal protection concerns.

Even if RSA 33:8 can be characterized as treating similarly situated classes of voters differently, the statute does not deprive anyone of the guarantees of equal protection. Among the three types of "scrutiny" within equal protection analysis, RSA 33:8 would trigger rational basis analysis, the least rigorous. Under rational basis analysis, a statute passes constitutional muster if it presents a scheme that is rationally related to a legitimate state interest. RSA 33:8 must be viewed in the context of the broad discretion given to the legislature to create various types of political subdivisions and to confer authority upon them. More specifically, RSA 33:8 reflects the legislature's determination that the official ballot system has increased voter participation in local legislative affairs by permitting voting over the course of an entire day or by means of absentee ballots, thus diminishing the need for the two-thirds voting requirement as a means of protecting against the imposition of long-term debt obligations of a small number of voters. Similarly, the 1999 amendment to RSA 33:8 reflects a legislative response to the fact that it has become increasingly difficult to pass bond issues in communities operating under the official ballot system. The amendment to RSA 33:8 seeks to strike a balance between these two outcomes of the official ballot system, and constitutes nothing more than the legislature's ongoing efforts in the "experiment of government." Not only was the legislative purpose legitimate, but the amended RSA 33:8 is certainly rationally related to the achievement of that purpose.

For these reasons, RSA 33:8 violates neither Part I, Article 39 nor the equal protection provisions of the New Hampshire Constitution.

I. RSA 33:8 Does Not Violate Part I. Article 39 Of The New Hampshire Constitution

A. History of Part I, Article 39 of the New Hampshire Constitution

Historically, New Hampshire has never been a "home rule" state in which local governments have a semi-sovereign relationship with the state. Instead, municipalities are "mere creatures of the state and may be not only created but altered or abolished at its will." Constitutional Convention Report at 23 (Add. at 44). In that context, and as a result of the Fifteenth Constitutional Convention, Article 39 was added to Part I of the New Hampshire Constitution in 1966, and adopted by the voters statewide, to provide cities and towns with a limited form of "home rule." The amendment serves both as a narrow exception to the legislature's plenary control over municipalities and as a grant of power to the legislature regarding the forms of government that can be adopted by municipalities.

Part I, Article 39 contains two distinct paragraphs that are designed to address two distinct areas of concern. Paragraph one of Part I, Article 39 ("Paragraph One") states that:

"[n]o law changing the charter or form of government of a particular city or town shall be enacted by the legislature except to become effective upon the approval of the voters of such city or town upon a referendum to be provided for in said law." New Hampshire Constitution, Part I, Article 39, ¶1 (emphasis added).

According to the Voter's Guide to the proposed constitutional amendments for the November 8, 1966 election ("Voter's Guide"), this provision is one which "forbid[s] the legislature to change the charter or form of government of any particular city or town without the approval of the voters thereof." Voter's Guide to Proposed Amendments to Constitution of the State of New Hampshire, Nov. 8, 1966, at Question No. 3 (emphasis added) (Add. at 47). The Voter's Guide further states that the provision would not "affect special acts which do not literally change the charter or form of government of a city or town." Id.

Paragraph two of Part I, Article 39 ("Paragraph Two") grants the legislature the authority to "authorize cities and towns to adopt or amend their charters or forms of government in any way which is not in conflict with general law" as long as the voters of such city or town approve the change in the charter or form of government by referendum. New Hampshire Constitution, Part I, Article 39, ¶2. Paragraph Two was enacted in response to concerns raised at the Fifteenth Constitutional Convention that the number of charter issues continually brought to the legislature amounted to a misuse of the legislature's time. See Constitutional Convention Report at 24, Add. at 45. The Voter's Guide explained that the function of this paragraph of Article 39 was to "empower the legislature to delegate by general law to cities and towns the power to adopt or amend their charters or forms of government, in conformity with the general law, if approved by a popular vote at a local referendum thereon." Voter's Guide at Question No. 3, Add. at 47. The Voter's Guide continued, "[t]his provision could eventually lighten the workloads of the legislature in this field." Id.

The legislature has exercised the power granted by Paragraph Two through the adoption of RSA 49-B, 49-C and 49-D, which allow cities, towns and municipalities to exercise certain "home rule" powers as set forth therein. See RSA 49-B; RSA 49-C; RSA 49-D.

B. Paragraph One of Article 39 Does Not Apply to RSA 33:8

Even a casual reading of Paragraph One of Article 39 reveals that the paragraph does not apply to RSA 33:8 because RSA 33:8 applies generally to all municipalities which have adopted the official ballot form of government pursuant to RSA 40:13, and not to "particular" cities or towns. Only by reading Paragraph One expansively and ignoring the word "particular" can an argument be made that RSA 33:8 is unconstitutional pursuant to that paragraph because it changes the form of government of cities and towns. Accepting this interpretation would require this Court to overlook well established canons of construction and would turn the plain language of Paragraph One on its head.

As in most jurisdictions, New Hampshire courts construe statutory language by first examining the plain meaning of the statutory language. If the meaning is clear, there is no need for further inquiry. See Petition of Barney, 142 N.H. 798, 801 (1998), Union Leader Corp. v. New Hampshire Housing Finance Auth., 142 N.H. 540, 553 (1997). New Hampshire courts neither ignore the plain language of a statute nor add words which the legislature did not see fit to include. See State v. Bernard, 141 N.H. 230, 233 (1996). These same principles apply with equal force to the interpretation of constitutional provisions. See Smith v. State, 118 N.H. 764, 768 (1978) (in interpreting the meaning of a constitutional amendment, "we first will inquire as to the plain meaning of the amendment''). Paragraph One plainly limits its application to special legislation affecting "particular" cities or towns. Nothing in Paragraph One prohibits legislation which affects an entire group of cities or towns.

This Court has construed Paragraph One consistent with its plain language. See Opinion of the Justices, 134 N.H. 711 (1991). That decision raised the question of whether a law to create a new town out of a region currently within a city would constitute a change in the form of government of the existing city. This Court emphasized that "Article 39 prohibits a change to the form of government of a particular city or town." Id. at 716 (emphasis in original).

Prior decisions of this Court further buttress this interpretation of Article 39. See, e.g., Opinion of the Justices, 109 N.H. 396 (1969). In that opinion, this Court examined the constitutionality of proposed legislation to authorize those municipalities with populations in excess of 60.000 to assess certain fees or issue bonds for the purpose of constructing, operating and maintaining public parking facilities. See id. at 400. In finding that the proposed legislation would not violate Paragraph One, this Court stated that the bills in question were "of general application, and do not purport to alter the charter or form of government of a 'particular city or town.'" Id. (emphasis added). Notably, the legislation in question would have affected Manchester alone, the only municipality in the state at that time with a population over 60,000. Despite the practical effect, this Court construed the legislation to be of "general application," and therefore beyond the parameters of Paragraph One. See id. at 401. According to this Court, the statute was "capable of general application in the future to other municipalities as they increase in population to the level established by the legislation, thus the statute was generally applicable." Id.

The same principle applies in the context of RSA 33:8 because that statute does not apply to a particular city or town. Instead, RSA 33:8 constitutes general legislation that is potentially applicable to all municipalities, as was the case with the public parking facility legislation discussed above.

The history of Paragraph One further establishes its applicability to special legislation aimed at specific municipalities rather than laws which are generally applicable to all municipalities. Paragraph One was the subject of significant discussion in the Constitutional Convention Report. In recommending adoption of the provision, the Commission to Study the State Constitution sought to respond to concerns that the "legislature may still try to subject a city to restrictions which do not apply to cities generally." Constitutional Convention Report at 24, Add. at 45. The Voter's Guide further explains that the amendment aimed to prevent the legislature from changing the charter or form of government of a "particular city or town" without the approval of the voters of that city or town, Voter's Guide at Question No. 3, Add. at 47 (emphasis added), a statement that reinforces the position that Article 39 does not apply to legislation which affects cities and towns in general, but only to legislation that singles out one town.

RSA 33:8 applies to all cities and towns in New Hampshire which have adopted the official ballot form of government pursuant to RSA 40:13. As such, it is a bill of general application and, assuming for the sake of argument that it does change the form of government of a city or town, it does not apply to a particular city or town but instead would change the form of government of all cities and towns which have adopted, or may adopt in the future, an official ballot form of government. Accordingly, because RSA 33:8 does not purport to change the form of government of any particular town, it does not run afoul of the first paragraph of Part I, Article 39 of the New Hampshire Constitution.

C. Paragraph Two of Article 39 Does Not Apply to RSA 33:8

Paragraph Two does not, by its terms, apply to legislation such as RSA 33:8 since such legislation cannot reasonably be construed as an undertaking by the legislature to offer a particular "form of government" as an option to cities, towns and municipalities. Instead, RSA 33:8 constitutes nothing more than continued legislative efforts in the "science of experiment" known as government, Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60, 71 (1978) (internal quotation and citation omitted), debated and enacted in the context of the legislature's plenary power over the existence and form of municipalities.

Paragraph Two grants the legislature authority to establish forms of government which may be selected by municipalities via referenda. This Court has clearly held that Paragraph Two of Article 39 is not self-executing and "does not become operative until the enactment of legislation setting out the method of exercising such home-rule powers." Harriman v. City of Lebanon, 122 N.H. 477, 481 (1982). RSA 49-B, together with RSA 49-C and 49-D, "provides the statutory framework through which cities and towns may amend their actual forms of government, and grants them the power to carry out such changes." Id.; see also Girard v. Town of Allenstown, 121 N.H.268, 272-73 (1981). Thus, Paragraph Two requires the legislature to allow municipalities to choose from those forms of government which the legislature may offer as options via enabling legislation such as RSA 49-B. Paragraph Two does not require the legislature to obtain the consent of the voters before revising the mechanics of an existing particular form of government already available to the municipalities. The logical extension of any argument to the contrary is that the legislature could never amend such enabling laws once enacted.

D. RSA 33:8 Does Not Effect a Change in the Form of Government of Any City or Town

Even if this Court determines that RSA 33:8 does fall under either Paragraph One or Paragraph Two, RSA 33:8 does not effect a change in the "form of government" of cities or towns and therefore does not violate Part I, Article 39.

As indicated, RSA 33:8 was amended to reduce the bond issue voting requirements for municipalities which have adopted the official ballot form of government from two-thirds to three-fifths. The legislative history of Article 39 clearly establishes that both paragraphs are concerned with changes to "charters" and "form[s] of government" rather than with legislation that has a less material effect on municipalities. The Voter's Guide to the 1966 election, as this Court has noted, states that Article 39 does not "affect special acts which do not literally change the charter or forms of government" of municipalities. Voter's Guide at Question No.3, Add. at 47; Harriman, 122 N.H. at 481. The Constitutional Convention Report also discusses this issue, pointing out that Article 39 does not go as far as similar provisions in other states which have forbidden all special legislation with respect to municipalities. See Constitutional Convention Report at 23, Add. at 44.

The Report also contrasts Article 39 with an earlier proposed amendment to the Constitution, defeated in 1956, which prohibited the legislature from enacting any law which affected "in any manner any other powers, rights, duty, property or affairs of a particular city or town or of any agency thereof" without the consent of such city or town. Constitutional Convention Report at 24, Add. at 45; see Journal of Constitutional Convention, Tuesday, May 22, 1956, at 85-86, Add. at 49. The fact that this language was not included in Article 39 as enacted suggests that Article 39 was not intended to be so restrictive as to prevent the legislature from making changes to the administration of the form of government chosen by a city or town. To the contrary, it was intended to target only changes to the actual form of government selected by a specific town. For example, the legislature may not change a town from a traditional town meeting form of government to an official ballot form of government without the consent of the town's voters.

This Court, supporting this construction of Part I, Article 39, has stated that the provision grants "municipal citizens the right to approve a proposed change to the form of their local government 'as enacted in their charters.'" Opinion of the Justices (Weirs Beach), 134 N.H. 711, 716 (1991). In an earlier opinion, this Court also noted that "part I, article 39 was intended to prevent the form of government as provided by a charter from being altered by the legislature without a referendum of the people affected . . . ." Opinion of the Justices, 112 N.H. 42, 46 (1972) (emphasis added). In the same opinion, this Court discussed the fact that a town's form of government is contained in the town's charter, suggesting that the "form of government" is the type, rather than the mere mechanics, of the town government.

Finally, the legislature has clarified what constitutes a "form of government" to the exclusion of bond voting requirements. RSA 49-B, 49-C and 49-D, all of which were enacted pursuant to Article 39 to grant cities and towns limited home rule power, clearly indicate that a "form of government" speaks to the type of government (e.g. town meeting, city council, board of aldermen, official ballot) that a city or town may select rather than the manner in which that type of governmental system is administered. The official ballot system, for example, requires approval by a three-fifths majority of each town or school district's voters to adopt it because it is a form of government. See RSA 49-D; RSA 40:13. In this context, a "form" of government speaks to the governmental option that a community has selected as a vehicle to express the will of its voters (e.g. traditional town meeting, official ballot), rather than to the procedural rules that the community must follow in going about its business (e.g. bond voting requirements).

The respondents have, of course, adopted the official ballot form of government through the procedure set forth in RSA 40:14. Neither the respondents nor any other municipalities that have adopted the official ballot form of government are being subjected to a change in the form of their government. The only change is in the percentage vote required to approve a bond issue. This is not a change in a "form of government" but rather a change in the manner in which that form of government conducts its business. As such, RSA 33:8 does not require voter approval under Part I, Article 39.

If the legislature's tinkering with the logistics or mechanics of a given "form of government," i.e., RSA 49-B, 49-C or 49-D, constitutes a change in a form of government for purposes of Part I, Article 39, then a multitude of statutes enacted in recent years would also have violated that provision. In 1969, for example, the legislature amended RSA 33:8 to provide that all votes on bond issues must be by printed ballot. This change -- from a voice vote to a secret, written ballot -- certainly was at least as significant a change as the reduction in the supermajority requirement because it affected the nature of a municipal vote and not merely a vote requirement. Yet the written ballot, which was never subjected to local voters' approval via referenda, has become a uniformly accepted feature of the town meeting.

In the same vein, in 1971, the legislature enacted RSA 40:4-a, which provided that voters at a town meeting may request a secret written ballot on any matter. In 1990, the legislature amended RSA 39:3 to change the number of voters required to place an article on the warrant by petition. In 1991, the legislature enacted RSA 40:10, authorizing a town meeting to restrict reconsideration of votes previously taken. In 1994, the legislature enacted RSA 40:11, stating that in towns with a population of 10,000 or more, every article included in a warrant must be acted upon before final adjournment of the town meeting. Finally, the legislature has amended the official ballot voting procedures contained in RSA 40:13 three times since the statute was adopted in 1995 with no suggestion of any challenge, constitutional or otherwise.

While each of these enactments changed the procedures for town meetings in some significant respect, they clearly did not change any municipality's broader "form of government" itself. Thus, it follows that a change in the percentage of votes required to approve a bond issue is not a change in the "form of government" of a municipality that would require local approval under Article 39.

Furthermore, this Court has held that municipalities are subdivisions of the state and, as such, "may be altered, modified or divided as the Legislature deems [necessary]." Clough v. Osgood, 87 N.H. 444, 447 (1935). Municipalities have only those powers which are granted to them by the state, and the state may take such powers away as it sees fit. See Dugas v. Town of Conway, 125 N.H. 175, 181 (1984); Seabrook Citizens for Defense of Home Rule v. Yankee Greyhound Racing. Inc., 123 N.H. 103, 108 (1983); Public Service Co. v. Town of Hampton, 120 N.H. 68, 71 (1980). An interpretation of Part I, Article 39 to require a referendum on every statute which alters the process by which a municipality's form of government operates would erode the legislature's plenary powers over municipalities far beyond that contemplated by the framers of the provision and the voters who adopted it. Such an approach is inconsistent with the historical relationship between the legislature and local governments, see Section I(A), supra, and is inconsistent with this Court's interpretation of the legislature's plenary powers over local government.

E. Part I, Article 39 Does Not Apply to School Districts

The plain language of Part I, Article 39 limits its reach to towns or cities, and does not extend to school districts. As such, RSA 33:8 raises no Part I, Article 39 issue with respect to the respondents, all of whom are school districts.

As in the discussion of "particular," see Section I(B) supra, regarding Paragraph One, the plain language of the constitutional provision controls its construction unless unclear. Nothing, however, in Part I, Article 39 lacks clarity: the provision expressly applies to towns and cities, but makes no mention of school districts. The plain language of Part I, Article 39, therefore, simply does not reach school districts.

Neither the Voter's Guide nor the Constitutional Convention Report mentions school districts in its interpretation and discussion of the effects of the change in "form of government" provision of Part I, Article 39. The discussion focused solely on towns and cities, and changes made to their charters or forms of government. The fact that school districts were not included further indicates that the word "town," as used in part I, Article 39, was not intended to encompass school districts. The history confirms that school districts played no role in the framing and adoption of Part I, Article 39.

To be sure, the word "town," as used in various New Hampshire statutes, has been interpreted to include school districts. See Opinion of the Justices, 94 N.H. 499, 500 (1947); Clough v. Osgood, 87 N.H. 444, 447 (1935); Union School Dist. v. School Dist. No. 20, 71 N.H. 269 (1902). This definition of the word "town," however, has been authored by the legislature and applies to the interpretation of statutes, and not provisions of the New Hampshire Constitution, of which this Court is the final arbiter. While the legislature may freely define its own statutory usages, the legislature has no authority to establish rules for interpreting the constitution, and subsequent judicial interpretations of the word "town" in the context of analyzing specific statutes, therefore, do not apply to the analysis of Part I, Article 39, especially in light of the plain language of that provision. That plain language allows no construction of Article 39 as applicable to school districts.

II. RSA 33:8 Does Not Violate The Equal Protection Clauses Of The New Hampshire And United States Constitutions

A. Equal Protection Analysis

The equal protection clauses of the United States and New Hampshire constitutions serve to ensure that no law treats similarly situated groups of citizens differently.¹ As such, "[t]he first question in an equal protection analysis is whether the State action in question treats similarly situated persons differently." LeClair v. LeClair, 137 N.H. 213, 222 (1993); see Opinion of the Justices, 137 N.H. 260, 265-66 (1993). Upon identifying a statutory distinction in treatment, referred to as a "classification" of an identifiable group, equal protection analysis seeks to eliminate those classifications that reflect an invidious, discriminatory intent, while leaving intact those classifications that make sense in the context of a legislative purpose.

Equal protection does not forbid classifications, but rather, through an examination of the affected individual rights and the involved legislative purpose, seeks to separate ill-conceived classifications from those which serve some legitimate public purpose. See LeClair, 137 N.H. at 222. As this Court has stated, equal protection "'is a moral standard wrapped in a legal command which allows the Court in establishing constitutional doctrine to help shape the nation's thinking about social justice and ethical conduct.'" Tiews v. Timberlane Regional School Dist., 111 N.H. 14, 18 (1971) (quoting Bogert v. Kinzer, 465 P.2d 639, 647 (Idaho 1970)).

Equal protection analysis comprises three tiers of scrutiny: strict scrutiny, middle tier scrutiny and rational basis scrutiny. See LeClair, 137 N.H. at 222. Strict scrutiny applies to "suspect" classifications, meaning state action that classifies on the basis of race, creed, color, gender, national origin or legitimacy, or that impairs an identified "fundamental" right, such as the right to vote. Very few classifications meet the rigors of strict scrutiny. Middle tier scrutiny applies to classifications made on the basis of "important substantive rights," such as the right to tort recovery. Id. Finally, rational basis scrutiny, germane to the issues raised in this case, applies to virtually all other classifications. See id. at 223. Unlike classifications subject to strict scrutiny, very few classifications fail to pass rational basis scrutiny.

¹While the Fourteenth Amendment to the United States Constitution contains a specific "Equal Protection Clause," the New Hampshire Constitution contains no similarly cognizable provision. The concept of equal protection, however, is present throughout New Hampshire constitutional jurisprudence, and has been identified as a component of several constitutional provisions, including Part I, Articles 1, 2, 12, and 14. While the New Hampshire constitutional language does not mirror the United States Constitution, it has long been settled in New Hampshire that the Equal Protection Clause of the United States Constitution provides no greater relief than that available under the New Hampshire Constitution. Accordingly, in New Hampshire, state equal protection analysis is coequal with federal equal protection analysis. In re Kearsarge Regional School Dist., 138 N.H. 211, 214 (1994).

B. RSA 33:8 Does Not Classify For Equal Protection Purposes

RSA 33:8 requires a three-fifths majority to approve the issuance of bonds in municipalities that have adopted the "official ballot" form of government, and a two-thirds majority to authorize the issuance of bonds in municipalities which use the traditional town meeting form of government. The threshold inquiry in an equal protection context is whether the statute in question creates a classification. As demonstrated below, RSA 33:8 does not classify between any identifiable groups of similarly situated voters and, therefore, does not raise equal protection concerns.

RSA 33:8 provides, in relevant part, that "the issue of bonds by any municipal corporation, . . . except a school district or municipality which has adopted official balloting procedures pursuant to RSA 40:13 shall be authorized by a vote by ballot of 2/3 . . . ." The statute further provides that "[t]he issue of notes or bonds by a school district or municipality which has adopted official ballot voting procedures pursuant to RSA 40:13 shall be authorized by a vote of 3/5." Id. As such, the statute sets forth different voting requirements for bond issues depending on whether a particular municipality has adopted the town meeting or official ballot form of government. In this fashion, Mr. McGraw contends that RSA 33:8 classifies between similarly situated classes of voters.

While RSA 33:8 certainly reflects a distinction in bond issue voting requirements between official ballot and town meeting municipalities, it falls far short of establishing differential treatment of similarly situated voters, the touchstone of equal protection analysis. Bond issue voting requirements are but one of a myriad of distinctions between official ballot and town meeting municipalities. Obvious differences include the very nature by which municipal business is conducted - by town meeting or official ballot. Official ballot voters enjoy a secret, written ballot they can cast at their convenience over the course of a voting day or by absentee ballot, while town meeting voters must attend a meeting at a designated time to exercise their franchise. Other, less obvious differences exist as well. All of these differences, however, including bond issue voting requirements, demonstrate not a classification between similarly situated voters, but rather different treatment of different groups of voters, depending on the form of government within the municipality in which they reside. An argument that differing voting requirements between the two forms of government creates a classification for equal protection purposes is no different than an argument that voting at a town meeting rather than by official ballot creates a classification for equal protection purposes.

At its core, an equal protection argument based on the difference between bond issue voting requirements in official ballot and town meeting municipalities compares not similarly situated voters, but rather voters who reside in separate, geographic units operating under different governmental systems. The United States Supreme Court has clarified that voting qualification challenges prevail only when the challenged statute "denie[s] the franchise to individuals who [are] physically resident within the geographic boundaries of the governmental entity concerned." Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60, 68 (1978). None of the voters within specific official ballot or town meeting municipalities receive different treatment from anyone else within that same municipality as a result of the language or effect of RSA 33:8. A comparison of official ballot voters and town meeting voters, necessarily a comparison of distinct geographic units, has no bearing on whether either voting requirement establishes different classes of similarly situated voters for equal protection purposes. Simply put, voters in different municipalities operating under different governmental forms are not similarly situated.

The decision of the United States Supreme Court in Holt Civic Club underscores the fact that voters must reside in the same political subdivision in order to be similarly situated for equal protection purposes. Holt involved an equal protection challenge to Tuscaloosa's subjection of Holt, an unincorporated, rural community, to Tuscaloosa's police and sanitary regulations, the jurisdiction of Tuscaloosa's criminal court and Tuscaloosa's power to license businesses, trades and professions. See 439 U.S. at 61-62. Tuscaloosa imposed these so-called extraterritorial police powers over Holt residents without granting "a concomitant extension of the franchise on an equal footing with those residing within the corporate limits . . . ." See id. at 62. Unlike the RSA 33:8 situation, the Tuscaloosa statutory scheme actually disenfranchised a group of its subjects. Holt residents argued that the statutes created a classification that infringed on their right to vote; specifically, to participate in municipal elections. The United States Supreme Court, reviewing the voting rights cases in which it identified classifications raising equal protection concerns, stated that

a common characteristic emerges: The challenged statute in each case denied the franchise to individuals who were physically resident within the geographic boundaries of the governmental entity concerned.

Id. at 68 (emphasis added). The Court went on to note that

our cases have uniformly recognized that a government unit may legitimately restrict the right to participate in its political processes to those who reside within its borders.

Id. The Court concluded that government "'is the science of experiment,' and a state is afforded wide leeway when experimenting with the appropriate allocation of state and legislative power." Id. at 71 (quoting Anderson v. Dunn, 6 Wheat 204, 206 (1821)).

Holt's reasoning applies analogously to the "distinction" in RSA 33:8. The difference in bond issue voting requirements that RSA 33:8 establishes between official ballot and town meeting municipalities can only be viewed as a classification if this Court determines that voters residing in completely separate and distinct geographical units or political subdivisions are similarly situated. RSA 33:8 creates no distinction within any given town meeting municipality or official ballot municipality, and equal protection does not prohibit the legislature from offering a variety of governmental forms for municipalities to select. As RSA 33:8 treats all residents within any given municipality equally, the statute fails to classify for purposes of equal protection.

The element of voter selection that underlies RSA 33:8 further undermines any purported classification in RSA 33:8. Voters in every municipality in the State of New Hampshire have the right to select their form of government by referendum. See RSA 49-B, RSA 49-C and RSA 49-D. Municipalities can elect, through referendum, to adopt the official ballot form of government in place of the traditional town meeting form of government. In its different bond issue voting requirements, therefore, RSA 33:8 does not classify or discriminate between similarly situated classes of voters because the two options - town meeting or official ballot, two-thirds or three-fifths - are ultimately adopted by the voters in any given municipality, and can be changed by those voters. To the extent a challenge to RSA 33:8 focuses on a purported class of voters who adopted the official ballot form of government when it required a two-thirds vote, those voters have every right, if they can muster the support, to adopt the town meeting form of government. Notably, not a single municipality has made that change through referendum since RSA 33:8 was amended to its present form.²

This Court's decision in In re Kearsarge Regional School District, 138 N.H. 211 (1994), underscores the importance of the element of voter choice in this context. In Kearsarge, voters challenged RSA 195:18, which governs the organization of cooperative school districts, on equal protection grounds, among others. Prior to 1963, RSA 195:18 required a simple majority vote to amend the district funding formula. The statute was amended in 1963 to allow voters in school districts formed in 1963, or any time thereafter, to choose between simple majority and two thirds voting requirements. See id. at 216. The fact that voters in the post-1963 districts could choose their voting requirement in large part eviscerated the challengers' equal protection claim. See id. at 216.

The reasoning in Kearsarge applies with equal force to RSA 33:8. Viewed broadly, RSA 33:8 does not require any particular bond issue voting requirement. To the contrary, RSA 33:8, in conjunction with RSA 49-B, allows municipalities to select the voting requirement they desire, depending on the form of government they choose. Voters who regret the three-fifths voting requirement of RSA 33:8 may seek to change to the town meeting form of government with its two-thirds requirement by referendum.

In short, RSA 33:8 fails to result in a classification among similarly situated voters at all, much less so as to trigger equal protection concerns.

²The logical extension of this latter argument, moreover, is that the legislature could not continue with the governmental "science of experiment" by revising the municipal forms of government as public policy dictates were it required to obtain the approval of all affected municipalities before making such revisions.

C. RSA 33:8 Bears A Rational Relation To Its Purpose

Even if this Court determines that RSA 33:8 does somehow classify among similarly situated voters, the amended statute does not run afoul of equal protection principles. Any classification attributable to RSA 33:8 would trigger rational basis scrutiny, which RSA 33:8 would surpass with ease, due to the fact that it is rationally related to a legitimate state purpose.

As indicated, equal protection comprises three levels of analysis: strict scrutiny, middle tier scrutiny and rational basis scrutiny. As long as a statutory scheme does not classify on the basis of a suspect class, fundamental right or an important substantive right, it triggers rational basis scrutiny. See LeClair, 137 N.H. at 222.

This Court has clearly indicated that challenges to municipal voting requirements such as RSA 33:8 trigger rational basis scrutiny because they neither impinge on a suspect class nor impair the fundamental right to vote. See Tiews, 111 N.H. at 16-17. This Court's view comports with virtually every other authority confronted by an equal protection challenge to a voting requirement of this nature. See Smith v. Town of St. Johnsbury, 554 A.2d 233, 238 (Vt. 1988); In the Matter of a Contest of a Certain Special Election, 659 P.2d 1294, 1298 (Ariz. 1982).

Rational basis analysis presumes the validity of a statute, and the statute will be upheld provided that it bears a rational relationship to a legitimate state purpose. See LeClair, 137 N.H. at 223; Kearsarge, 138 N.H. at 216. Inquiry into legislative purpose under rational basis scrutiny is not a searching one, and this Court may identify a legislative purpose from any number of sources. The purpose may be identified from the face of the statute itself, see, e.g., Seabrook Citizens for Defense of Home Rule v. Yankee Greyhound Racing. Inc., 123 N.H. 103, 109 (1983), from legislative history, see LeClair, 137 N.H. at 224, or on the basis of potential purposes a statute might serve, see, e g., Opinion of the Justices, 117 N.H. at 758.

The purpose behind RSA 33:8 must be viewed in the larger context of legislation pertaining to municipalities, in which states enjoy "extraordinarily wide latitude . . . in creating various types of political subdivisions and conferring authority upon them." Holt, 439 U.S. at 71. Indeed, this Court has stressed that the legislature's "exercise of its plenary power over municipalities is limited only by provisions of our State Constitution which grant municipalities only the right to control the form of their local government as enacted in their charters." Yankee Greyhound, 123 N.H. at 108. Where the statute at issue presents a question of governmental theory, and not an issue of social justice, morality or inequality, the legislature has broad discretion to operate. See Tiews, 111 N.H. at 18.

On its face, the amendment to RSA 33:8, which decreased the voting requirement for the approval of the issuance of bonds by official ballot municipalities from two-thirds to three-fifths, thereby prompting this challenge to the statute, reflects the legislature's ongoing efforts in "the science of experiment" of government. Holt, 439 U.S. at 71 (internal quotation and citation omitted). Since enactment, and after surviving its first constitutional challenge in the Tiews case, the legislature has adopted at least five amendments to RSA 33:8, none of which have raised constitutional concerns. In this context, it cannot be viewed as irrational for the legislature to determine that it is in the public interest to alter the voting requirements to approve bond issues in any form of municipal government.

The legislative history to the amendment to RSA 33:8 suggests several legitimate considerations before the legislature as it determined to amend RSA 33:8. As the legislature hoped, the official ballot option increased voter participation; more people vote in official ballot municipalities than in traditional town meeting municipalities. See Senate Chamber Floor Debate, June 17, 1999 (Statement of Senator Cohen), Add. at 51. The increase in voter participation resulting from the official ballot system eliminated the reasons that traditionally supported the need for a two-thirds vote on bond issues. As Representative Iris Estabrook pointed out in testimony before the House Education Committee,

[i]n 1895, when the 2/3 statute was enacted, it was clearly more difficult to assure that voters were enfranchised than it is in 1999 under official ballot procedures. Under this system, voters may even absentee ballot. Clearly everyone is now fully enfranchised. This process has radically changed over the century, and so too should this statute. With everyone fully enfranchised, each vote should carry the same weight.

House Committee on Education Public Hearing on HB 487, March 24, 1999 (Statement Representative Estabrook), Add. at 58. Mr. Dean Michener of the New Hampshire School Boards Association, testifying before the Senate Education Committee, echoed this theme, stating

Senate Bill 2 has really worked . . . The whole intent of Senate Bill 2 was to enable everybody to vote. Balloting is open all day long or absentee balloting is allowed for. What we're looking at here is bringing a very significant increase in the participation of voting through the Senate Bill 2 process. I think that participation should mean we can move away from a two thirds requirement - which was really there in terms of trying to protect what might be a small turnout at a district meeting.

Senate Committee on Education Hearing on HB 487, June 9, 1999 (Testimony of Dean Michener), Add. at 67.

The two-thirds voting requirement in town meeting municipalities sought to protect those voters unable to attend the town meeting from a minority's imposition of long-term debt obligations. See id. While any number of reasons, including scheduling, duration of town meeting sessions, health and others might prevent a citizen from attending a town meeting, the official ballot system, allowing even for absentee balloting, presents no such hurdles to participation. As both Representative Estabrook and Mr. Michener noted, "the two thirds requirement seemed to work when we had traditional meetings and sometimes they were held late or would go late into the evening and it was often difficult for some or many people to be there." Senate Committee on Education (Statement of Dean Michener), Add. at 67. That purpose diminished in an official ballot context, in which voters may cast their votes at their convenience over the course of a day, or even by absentee ballot.

At the same time, the legislature perceived an unexpected but apparent occurrence in official ballot municipalities, namely, a dramatic decline in the approval of bond issues. The House Education Committee noted that data showed that a bond was twice as likely to fail in an official ballot district than in a town meeting district. See House Education Committee Report - HB 487, April 20, 1999 Add. at 86. Senator Cohen noted that in March, 1999, the passage rate for bonds in town meeting districts was sixty-seven percent (67%), whereas in official ballot districts, the passage rate was only thirty-six percent (36%). See Senate Floor Debate (Statement of Senator Cohen), Add. at 51. In 1998, the passage rate for bonds in official ballot districts was a mere fifteen percent (15%) as opposed to a forty-four percent (44%) passage rate in town meeting districts. See Senate Education Committee, Add. at 78. The House Report stated that the reduction in the voting requirement for official ballot districts was being made "to lessen the minority's ability, clearly magnified in [official ballot] communities, to block the interest of the majority and its ability to address pressing facilities needs" while still maintaining a supermajority voting requirement. House Education Committee Report, Add. at 86. Senator Cohen explained this phenomenon in part as a by-product of a tendency toward decreased voter awareness and attendant likelihood of simply voting "no." See Senate Floor Debate (Statement of Senator Cohen), Add. at 51. The very convenience of the official ballot, which increased voter participation, to some degree undermined voter knowledge because voters did not need to attend a town meeting at which the issues were thoroughly vetted in order to cast their vote.

The legislature also became aware of another unintended consequence of the official ballot system: the considerable effort bond issues now require, in terms of expense and time of proponents. Citing to one specific example in Keene, Mr. John Lewis, Chairman of the State Board of Education, pointed out that in order to pass a bond issue in Keene, "[t]he proponents had to spend for Madison Avenue type advertising." House Education Committee (Testimony of John Lewis), Add. at 54. Representative Iris Estabrook, a sponsor of the bill to amend RSA 33:8, recounted that in the Oyster River Cooperative School District,

[t]he board's effort to inform the public this second time was extraordinary. Board members were everywhere -- on the radio, in homes, at the dump . . . . This board effort far surpassed my experience on an earlier board trying to 'sell' a bond issue. Commentary I have heard from other communities indicates the passage of a bond issue has indeed become a 'sell.' It requires the kind of campaign usually directed by a marketing expert and often results in significant costs to the district.

Id. (Statement of Representative Estabrook), Add. at 59.

The legislature's response to these issues, moreover, constitutes a very measured and "rational" attempt to meet them. The legislature, in its ongoing effort to improve the forms of municipal government made an incremental change in voting requirement for bond issues in official ballot municipalities, from two-thirds to three-fifths. As Mr. Dean Michener noted, faced with similar concerns, Vermont, for example, changed its bond issue voting requirement from two-thirds to a simple majority. See House Education Committee (Testimony of Dean Michener), Add. at 55. New Hampshire's response appears a far more measured and balanced approach that will allow municipalities to pass bond issues but will not encourage fiscal irresponsibility.

In short, the amendment to RSA 33:8 acknowledged changes wrought by the official ballot from of government that rendered the need for the two-thirds requirement obsolete, and sought to alter the unintended consequence of the official ballot on bond issues. The amendment to RSA 33:8 constitutes a rationally related effort to account for and correct these effects and consequences. The legislature's action falls in the realm of governmental theory, and not social justice, morality or inequality, and, therefore, falls well within the legislature's broad discretion. See Tiews, 111 N.H. at 18. In the context of the legislature's broad discretion with respect to municipalities, RSA 33:8 cannot be said to be anything other than rationally related to the achievement of a legitimate state purpose and, as such, it does not violate the equal protection provisions of the New Hampshire Constitution.

As detailed above, RSA 33:8 neither impinges on Part I, Article 39 nor the equal protection provisions of the New Hampshire Constitution. The respondent and intervenors respectfully request that this Court rule that RSA 33:8 is constitutional.

Pursuant to New Hampshire Supreme Court Rule 16(7) the undersigned certifies that the original and twelve (12) copies of this brief have been hand-delivered on this day to the Clerk of the Supreme Court of New Hampshire.

Pursuant to New Hampshire Supreme Court Rules 16(7) and 16(10)(1) the undersigned certifies that on this day two copies of this brief have been sent via first class mail Mr. Paul McEachern, Esquire, counsel for Mr. McGraw.

Pursuant to New Hampshire Supreme Court Rule 16(10)(2) the undersigned requests oral argument and designates David H. Barnes, Esq. to be heard. The undersigned estimates that oral argument will require fifteen (15) minutes.