Brief Of N.H. Municipal Association
As Amicus Curiae

• PREFACE

  1. Statement Of Facts And Of The Case

  2. NHMA's Official Policy On Ch. 134 of 1999

  3. What Is At Stake In This Proceeding

• SUMMARY OF ARGUMENT

1. The Court's Should Not Hinge Its Decision On The Mere Fact That SB 365 Doesn't Alter A Particular Town's Charter

   1. "...Charter Or Form Of Government..."

   2. "...Of A Particular City Or Town..."

2. A Law Changes The Form Of Government Only lf It Alters The Balance Of Authority In The Makeup Of The Local Legislative Process

3. RSA 33:8 (1999) Affects Only The Substantive Powers Of The Municipality As A Whole, Not The Balance Of Authority In The Local Legislative Process

   1. The issuance Of Debt Is A Substantive Municipal Power, Not Part Of The Form Of Government

   2. Contrasting Examples Which Would Be Changes ln The Form Of Government

4. For Political Subdivisions With Town Meetings, The Local Referendum Requirement Has, In Effect, Been Met

5. Altering The Type Of Supermajority Required For Issuing Debt Does Not Raise Equal ProtectIon Problems

   1. Residents of Different Municipalities Are Not "Similarly Situated."

   2. In Any Event, The Classification Is Supported By A Rational Basis

• CONCLUSION

Black's Law Dictionary, 6^th Ed
Hall, Douglas and Steven Knapp: The Effect Of The Official Ballot Referendum Form of Meeting on the Towns and School Districts of New Hampshire, N.H. Center for Public Policy Studies (2000), p. 12. (See: www.unh.edu/nhcpps/sb2.html (Feb. 15, 2000))
Laws of 1999, Ch. 134
McQuillen, Municipal Corporations § 13.31.15 (3d Ed.)
N.H. Const., Part 1, Article 39
RSA 31:8-a
RSA 31:39
RSA 31:131
RSA 32:14 et. seq.
RSA 32:18
RSA 33:8 (1999)
RSA 33:9
RSA 37
RSA 40:12 - 14
RSA 40:13
RSA 47:17
RSA 49-B
RSA 49-C
RSA 49-D
RSA 49-D:3, II-a

A. Statements Of Facts And Of The Case.

Your amicus curiae New Hampshire Municipal Association ("NHMA") defers to the Statement of Facts and Statement of the Case as set forth by the Defendant School District.

B. NHMA's Official Policy On Chapter 134 of 1999.

The statute at issue here - the 1999 amendment to RSA 33:8 - was actively supported by NHMA when it was under consideration by the Legislature. NHMA is a non-profit service organization whose membership consists solely of municipalities, and at this time includes all 234 towns and cities in the State. NHMA is recognized by statute - RSA 31:8-a - which authorizes local governing bodies to pay dues, and limits NHMA's legislative advocacy to non-partisan positions on municipal issues. The policies NHMA advocates before the Legislature are developed by policy committees composed of municipal officials, and voted upon at a policy conference held every two years. Under NHMA's bylaws each town or city has one vote, regardless of size, and policies are adopted by a vote of 2/3 of those present and voting at the conference. One of the policies adopted for 1999-2000 was as follows:

"NHMA supports a change in the vote required to issue municipal or school district bonds (RSA 33:8, :9) from 2/3 to 3/5."

In accord with that policy, NHMA sought sponsorship for, and supported, Ch. 134 of the Laws of 1999. That Act began its life as a bill (HB 487 of 1999) to alter the required majority for issuance of bonds or notes from 2/3 to 3/5 for all political subdivisions. But it was amended to apply only to those which have adopted the Official Ballot Referendum form of meeting (RSA 40:12 - 14) colloquially known as "SB 2."

Municipal officials on the whole are acutely aware of Part 1, Article 39's prohibition on changes to the local form of government without a local referendum. It is therefore telling that at no time during NHMA's development of the above policy was the potential of an Article 39 violation raised. The possibility would have seemed too far-fetched.

C. What Is At Stake In This Proceeding.

This brief will argue that RSA 33:8 (1999) is constitutional, and that the Defendant and Intervenor School Districts should be allowed to proceed to issue bonds authorized by a vote of 3/5, under their "SB 2" form of school district meeting.

However, unlike the School Districts, NHMA will argue that this result should be reached on narrow grounds. This Court has, in its prior decisions under Article 39, never articulated a precise construction of the phrase "form of government", as it appears there. The Court's decision here will thus have broad future implications for local government in New Hampshire. NHMA implores the Court not to construe Article 39 in a manner so restricted as to strip away the protection which 2/3 of the citizens of New Hampshire voted in 1966 to provide to municipalities when they adopted Part I, Article 39.

1. Legislation does not alter the "form of government," for Article 39 purposes, unless it alters the makeup of the local legislative body, or shifts the balance of authority among local officials or bodies in the enactment or execution of local legislation. RSA 33:8 (1999) did not make any such change.

2. The change in the type of supermajority required to issue debt, from 2/3 to 3/5, was an relaxation in the substantive power of the municipality's legislative body - viewed as a whole - to issue debt. It was not an alteration in the local form of government.

3. In addition, the statute does not violate Article 39 because, since a ballot vote is required in order to issue bonds in "SB 2" districts, the local "referendum" required by Article 39 has in fact been provided for. In municipalities with the official ballot referendum (RSA 40:13) form of meeting, every local legislative action is literally by referendum.

4. NHMA urges the Court not to hinge its decision upon the mere fact that the statute doesn't alter a particular towns charter. Article 39 plainly covers all form-of-government changes, not just those in charters.

5. RSA 33:8 does not violate equal protection. Residents of different towns are not "similarly situated" for equal protection purposes. And at any rate the differing voting procedures and higher voter turnouts in "SB 2" districts provide a rational basis for the different treatment.

I. THE COURT SHOULD NOT HINGE ITS DECISION ON THE MERE FACT THAT RSA 33:8 DOESN'T ALTER A PARTICULAR TOWN'S CHARTER.

The first sentence of Part 1, Article 39 - the sentence upon which this case turns - is as follows:

"No law changing the charter or form of government of a particular city or town shall be erected by the legislature except to become effective upon the approval of the voters of such city or towns upon a referendum to be provided for in said law."

A. "...Charter OR Form Of Government..."

As a preliminary matter, NHMA urges the Court not to dispose of this appeal solely on the ground that RSA 33:8 (1999) does not overtly alter any particular municipality's charter. It is true that this Court has in the past made some statement tending to suggest that the scope of Article 39 was charters and charters alone. See: Harriman v. City of Lebanon, 122 N.H. 477, 481 (1982); Opinion of the Justices (Wiers Beach), 134 N.H. 711, 716 (1991). However those cases involved municipalities which do have charters. And in any event such an implication was merely dictum in those cases.

On its face Article 39 plainly goes beyond charters. It says "No law changing the charter or form of government..." The word "or" is disjunctive. [The "or" cannot be meant in its occasional alternate sense of "in other words" (See Black's Law Dictionary, 6^th Ed), because (a) it is not preceded by a comma, and (b) the term "form of government" is so much broader in scope than the term "charter."]

Furthermore, Article 39 is worded to apply to, and to protect, both cities and towns, whereas very few towns have charters. In 1966 when Article 39 was adopted - before the "Home Rule Charter" statute existed (current version at RSA 49-B, 49-C and 49-D) - there were even fewer towns with charters. If Article 39 had been meant to apply only to that handful of towns with charters, it would have contained limiting language, rather than employing the unmodified term "town."

Moreover the Legislature has provided towns with several form-of-government options which do not require charters, for example the Town Manager form, RSA Chapter 37. Indeed the Official Ballot Referendum form of government - the one at issue in this case - is available both as a charter option (RSA 49-D:3, II-a) and as a non- charter option (RSA 40:12 - 14). Plainly, then, a law which alters a town's form of government is within the ambit of Article 39, whether that town has a charter or not. For the Court to construe Part I, Article 39 as applying only to charter communities would be to disregard its plain intent.

B. "...Of A Particular City Or Town..."

Similarly, NHMA implores the Court not to rest its decision solely on the fact that the legislation affects more than one municipality. It could not have been the intent of Article 39's framers, in using the word "particular," that a statute which indisputably violated Article 39 - one which, for example, repealed the City of Lebanon's charter, and returned that City to a town meeting form of government without a referendum - could somehow be rendered constitutional merely by expanding the bill to apply to all cities of a certain class (e.g. those under 25,000 people)! It would thus be nonsensical to construe the word "particular" as a mere reference to the number of municipalities affected by a bill.

The word should instead be construed as serving to differentiate those statutes which have a particular immediate effect, without any local action, from statutes such as RSA 49-B, which merely alter general state law setting forth municipal options, including form-of-government options. As this Court said concerning RSA 49-B in City of Claremont v. Craigue, 135 N.H. 528, 533 (1992): "RSA chapter 49-B does not alter the form of government of any municipality; instead it constrains the available forms of government from which a municipality may choose."

In short, Article 39 should be construed to give effect to its evident purpose -- to prevent any municipality's form of government from being altered without a local referendum. The change in the supermajority required to authorize debt, as contained in RSA 33:B (1999) is constitutionally valid vis-à-vis Article 39, not because it is a generic form-of-government alteration affecting multiple municipalities, but rather because, as detailed below, it does not effect a form-of-government alteration at all, for any municipality. The key question is: what counts as a form-of-government change?

II. A LAW CHANGES THE FORM OF GOVERNMENT ONLY IF IT ALTERS THE BALANCE OF AUTHORITY IN THE MAKEUP OF THE LOCAL LEGISLATIVE PROCESS.

This Court has never articulated a precise construction of the phrase "form of government" as it appears in Part 1, Article 39. NHMA would submit that the construction which best harmonizes with Article 39's intent is to treat "form of government" as referring to the makeup of, or balance of authority among, local officials or bodies in the enactment and execution of local legislative actions. Hence a law which alters (without a referendum) the composition or mode of selection of the local legislative body, or the authority of the chief executive or governing body to bring proposed actions before that legislative body, would violate Article 39, no matter how generic that law was. But a change in the type of legislation which that legislative body has the option to enact does not violate Article 39. The distinction is one between the substantive powers of the municipality as a whole, versus the internal balance of authority among the various local officials and bodies in the exercise of those substantive powers.

The above formulation appears consistent with the decided cases:

See:

• Girard v. Town of Allenstown, 121 N.H. 268, 272 (1981) - Article 39 held not to grant municipalities any substantive legislative authority.

• Opinion of the Justices, 112 N.H. 42, 46 (1972) - Proposed law allowing Dover to finance an industrial park did not violate Article 39: "We are of the opinion that New Hampshire Constitution, part 1, 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, and not to prevent the legislature from conferring additional powers upon a particular city to be exercised under its existing form of government."

• Opinion of the Justices (Weirs Beach), 134 N.H. 711, 716 (1991) - Proposed law to alter boundaries of City of Laconia did not affect its form of government, even though such boundaries were included in the City's charter.

• Sedgewick v. City of Dover, 122 N.H. 193 (1982) - Alteration of City's authority to operate a hospital did not violate Article 39, even though it revised some wording in the City's charter.

• Seabrook Citizens For Defense Of Home Rule v. Yankee Greyhound Racing, Inc., 123 N.H. 103 (1983) - Legislative withdrawal of local option to disapprove dog racing, was part of legislature's substantive control over local powers: "Neither the provisions of the town charter nor the form of town government are at issue."

III. RSA 33:8 (1999) AFFECTS ONLY THE SUBSTANTIVE POWERS OF THE MUNICIPALITY AS A WHOLE, NOT THE BALANCE OF AUTHORITY IN THE LOCAL LEGISLATIVE PROCESS.

A. The Issuance Of Debt Is A Substantive Municipal Power, Not Part Of The Form Of Government.

The most fundamental rule of municipal law in New Hampshire is that towns and cities have only such powers as are given them by the Legislature (Girard, supra). "[T]he legislature may grant, withhold, or withdraw local control as it sees fit" (Seabrook Citizens for Defense of Home Rule, supra, at 108; citing Region 10 Client Mgt., lnc. v. Town of Hampstead, 12O N.H. 885, 888 (198O)).

The issuance of debt is one of those substantive powers. The Legislature has the authority either to empower municipalities to issue debt, or to refuse to so empower them. In Opinion of the Justices, 111 N.H. 144 (1971), the House of Representatives inquired of this Court whether a bill to increase the debt limit of the Pelham School District would "change [its] charter or form of government." The Court responded in the negative. That opinion is right on all fours with the present case. If the Legislature can empower the issuance of municipal debt, or refuse to do so, or do so with limitations, as was at issue with the Pelham School District bill (supra), then surely it can "split the difference" by inserting, as a pre-condition, that the debt be authorized by a certain type of supermajority vote.

A change in the type of supermajority required as a condition of issuing debt - from 2/3 to 3/5 - is simply an alteration in the substantive power of the municipality to issue debt. It is not an alteration in that municipality's form of government. Such a change does not, for example, alter the balance of authority between the voters and the school board, or between the selectmen and the budget committee. It merely adjusts the height of the hurdle which the local legislative process - viewed as a whole - must jump in taking a particular type of action. It merely alters one of the municipality's substantive options.

As was said in Opinion of the Justices, 112 N.H. 42, 46 (1972) (cited supra), Article 39 does not "prevent the legislature from conferring additional powers upon a particular [municipality] to be exercised under its existing form of government." That's all that has happened here - Official Ballot Referendum communities have been conferred additional power to issue debt, via the relaxing of the prerequisite which must be met in order to exercise that power.

B. Contrasting Examples Which WOULD Be Changes In The Form Of Government

This is not to say that every piece of legislation imposing a supermajority requirement would be outside the ambit of Article 39. For example, under current law voters in municipalities with town meetings have the same authority over a warrant article, whether that article is submitted by the governing body or is submitted by petition (RSA 31:131). Suppose, for illustration, that the Legislature were to enact a provision that warrant articles submitted by petition could not be amended by the voters except by a 3/5 majority, regardless of the substance of the question. Such a provision would arguably be a change in the form of government because it would tilt the balance of local legislative power away from the voters and selectmen, and toward particular groups of petitioners.

Another example: Under current law, in towns which have adopted budget committees (RSA 32:14 et. seq.), voters cannot pass appropriations which exceed the total amount recommended by the budget committee by more than 10%, as adjusted (See: RSA 32:18). The budget committee has been given, in effect, a veto over appropriations exceeding that amount (See: Baker v. Hudson School Dist., 110 N.H. 389 (1970)). Suppose that the Legislature were to enact a law, effective without a local referendum, providing that the town meeting could exceed the 10% limitation if an appropriation receives a 3/5 vote. Such a law would arguably violate Article 39, because it would alter the balance of legislature authority, previously adopted in that town, between the budget committee and the town meeting.

RSA 33:8 (1999), by contrast with both these examples, does not alter the balance of authority between any municipal officials or bodies.

IV. FOR POLITICAL SUBDIVISIONS WITH TOWN MEETINGS, THE LOCAL REFERENDUM REQUIREMENT HAS, IN EFFECT, BEEN MET.

Even assuming, for argument's sake, that RSA 33:8 (1999) were seen as affecting the local form of government, nevertheless it still does not violate Article 39 for those towns and school districts operating under the town meeting form of government. Article 39 does not prevent all changes in the form of government, merely those where no referendum of the voters is provided for. The issuance of bonds or notes in political subdivisions with the town meeting form of government already requires a ballot vote - indeed a supermajority (RSA 33:8). Such a ballot vote plainly satisfies the referendum mandated by Article 39. Since Article 39 does not specify the type of majority required, the common-law rule is that a simple majority of those present and voting on such a referendum would be sufficient (McQuillen, Municipal Corporation, § 13.31.15 (3d Ed.)), and a supermajority vote more than satisfies that rule.

What more could possibly be required! Granted, the Legislature could have inserted a procedure for each town or district to first vote by a simple majority to adopt this change, before taking a second 3/5 majority vote in order to implement and exercise it. But such duplication would border on the absurd. A group of voters which votes by a supermajority referendum to issue bonds can certainly also be presumed to be in favor, by at least a simple majority, of its authority to take such a vote.

The above argument applies with particular force here, because this case involves political subdivisions which have adopted RSA 40:12 - 14, the "Official Ballot Referendum" system. Under that system every vote is, quite literally, a referendum. That is all that Article 39 requires.

IV. ALTERING THIS TYPE OF SUPERMAJORITY REQUIRED FOR ISSUING DEBT DOES NOT RAISE EQUAL PROTECTION PROBLEMS.

The other constitutional infirmity alleged by the Plaintiff is that RSA 33:8 (1999) violates Equal Protection, because the type of supermajority required for issuing debt differs between "SB 2" communities (those operating under Official Ballot Referenda, RSA 40:12 - 14) and non-SB 2 communities. NHMA submits that Equal Protection has not been violated, for the following reasons:

A. Residents of Different Municipalities Are Not "Similarly Situated."

The mandate imposed by the equal protection clauses of State and Federal constitutions is that "those who are similarly situated be similarly treated" (Carson v. Maurer, 120 N.H. 925, 931 (1980)). "If persons are not similarly situated,... no equal protection problem is involved" (LeClair v. LeClair, 137 N.H. 213, 222 (1993), citation omitted).

This Court has already held firmly that supermajority requirements do not violate equal protection within a single municipality (Tiews v. Timberlane Regional School District, 111 N.H. 14 (1971)). And it is questionable whether residents of two different municipalities can even be said to be "similarly situated" with respect to their participation in municipal affairs. For example residents of town meeting towns may vote directly on budgets, whereas residents of cities cannot. Cities have long been given different substantive powers from towns (Compare RSA 31:39 with RSA 47:17.) Yet the creation, by a state, of differing classes of municipalities has never been held to raise equal protection problems. On the contrary, the Legislature's power to create and modify different municipalities has been deemed plenary (Lisbon v. Lisbon Village District, 104 N.H. 255, 258 (1962) - subject now only to the limitations of Article 39. More to the point, in Chasan v. Village District of Eastman, 128 N.H. 807 (1986) this Court upheld different treatment of voters based on municipality of residence:

"No decision of this Court has extended the 'one man, one vote, principle to individuals residing beyond the geographic confines of the governmental entity concerned, be it the State or its political subdivision." (Id. at 821, quoting Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60, 68-69 (1979).)

The ad absurdum upshot of adopting the Plaintiff's logic would be that all municipalities would be required to be identical - in governmental, regulatory, and all other respects - absent some articulated justification for being different.

B. In Any Event, The Classification is Supported By A Rational Basis.

Even assuming, for argument's sake, that residents of two different municipalities were deemed "similarly situated," nevertheless distinctions treating residents of one municipality differently from those of another are subject only to the rational basis level of court scrutiny, See: Boehner v. State, 122 N.H 79 (1982) (Requiring district court "host" towns to bear full cost of court operations held, under the rational basis test, not to violate equal protection rights of "host" community taxpayers vis-à-vis taxpayers of other towns within the same judicial district).

A rational basis for treating "SB 2" communities differently is easy to articulate. In "SB 2" communities, all local legislative actions require an official ballot referendum, conducted in the manner of a ballot election, complete with absentee voting (See: RSA 40:13, esp VI, VII and XlI). The Legislature could (and did) rationally believe that voter turnout using such procedures is generally higher than in communities with traditional town meetings, that minority views are lese likely to prevail merely by superior attendance, and hence that a lesser supermajority is required in order to assure that the issuance of debt is truly the will of the voters. A recent study confirmed that voter participation on money issues is in fact higher in "SB 2" communities:

"Approximately three times as many registered voters vote on the town's budget and special appropriations in official ballot towns compared to traditional meeting towns. For school districts, the ratio is even greater: nearly five times as many voters vote on the budget in official ballot districts compared to traditional districts." (Douglas Hall and Steven Knapp: The Effect Of The Official Ballot Referendum Form of Meeting on the Towns and School Districts of New Hampshire, N.H. Center for Public Policy Studies (2000), p. 12. (See: <www.unh.edu/nhcpps/sb2.html>).)

Clearly such data buttresses the Legislature's rational basis for non-invidious different treatment of voters in "SB 2" official ballot referendum communities. Equal protection is not violated by such classifications. As was said in Tiews (supra): "What is urged on us here has nothing to do with social justice, morality or inequality. It presents [only] a question of governmental theory" (111 N.H. at 13, citation omitted).

For all of the above reasons, the New Hampshire Municipal Association urges the Court to find that RSA 33:8, as amended by Laws of 1999, Ch. 134, does not violate either state or federal constitutions.

I hereby certify that on this 4th day of August, 2000, two copies each of this brief were mailed to counsel of record: Paul McEachern, Esq., David H. Barnes, Esq., Daniel E. Will, Esq., and Kimberly A. Burke, Esq.