NOW COMES Richard McGraw, a citizen of the Town of Exeter, 12 Oak Street, Exeter, New Hampshire. who, pursuant to RSA 491:22, complains against the Exeter Region Cooperative School DiStrict (the "District"), 24 Front Street, Exeter, New Hampshire, a body corporate and politic and says as follows:

1. The plaintiff is a person entitled to vote at the annual meeting of the District at which time the District plans to raise and appropriate money for the support of the schools within its jurisdiction by official ballot under voting procedures adopted by the District pursuant to RSA 40:13 and 14.

2. The annual meeting of the District is scheduled to occur on the 14th day of March.

3. As enacted, RSA 40:13, XIII provides "Approval of all warrant articles shall be by simple majority except for questions which require a 2/3 vote by law, contract, or written agreement."

4. At the time RSA 40:13 was adopted by vote of the citizens of the District entitled to vote under RSA 40:14, the approval of a vote to issue bonds under the Municipal Finance Act, RSA 33; et. seq. required a majority vote of 2/3 of the voters present and voting.

5. Subsequent to the enactment of RSA 40:13 providing for official ballot voting by the District, the legislature enacted an amendment to RSA 33:8 which changed the majority vote to approve the issuance of bonds from 2/3 majority to 3/5 majority. The amendment took effect August 17, 1999.

6. Unlike with the adoption of RSA 40:13 which required ratification by the District by vote of the District pursuant to RSA 40:14, the amendment imposing a change in the majority required to issue bonds was imposed upon the District without its consent.

7. RSA 33:8, as amended, is a change to the form of government adopted by the District as RSA 40:13 which, when adopted, required a 2/3 majority vote to issue bonds.

8. The Constitution of New Hampshire, Part I, Article 39 says:

"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 such law."

9. The enactment of RSA 33:8 (1999) is unconstitutional as it applies to the District which by vote enacted RSA 40:13 requiring a 2/3 majority vote to issue bonds. The legislative change in the majority vote from 2/3 to 3/5 is an unconstitutional change in the form of government of the district.

10. The enactment of RSA 33:8 (1999) creates two classes of voters which are not distinguished by a rational difference. In those local governments, including the District, which adopted RSA 40:13 on the representation by the legislature that there would be one continuing 2/3 majority vote on bond issues, are now classified differently by the legislature than other local governments with respect to the 2/3 majority required.

11. The language of RSA 33:8 (1999) makes crystal clear that two classes of voters now exist depending on whether they adopted RSA 40:13.

RSA 33:8 (1999) states in part:

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 official ballot voting procedures pursuant to RSA 40:13 shall be authorized by a vote of 3/5. (Emphasis is the 1999 Amendment.)

12. RSA 33:8 (1999) is unconstitutional under the Constitution of the State of New Hampshire as expressed by Part I, Article 12 Of the Constitution which guarantees the plaintiff and others similarly situated equal protection of the laws. The legislative classification of creating two classes of citizens with respect to their ability to vote for or against a bond issue depending on whether their vote is cast by official ballot under RSA 40:13 or in Town or District annual meeting is an arbitrary and unconstitutional classification.

13. Citizens in school districts without RSA 40:13 voting procedures are required to muster a 2/3 majority to approve a bond issue. Citizens in RSA 40:13 districts are required to muster a 3/5 majority. Citizens, including the plaintiff, in RSA 40:13 Districts must muster 40+% of the vote to defeat a bond issue. Citizens in non-RSA 40:13 Districts must muster only 33.4% of the vote to defeat a bond. There is no rational basis for the distinction.

14. RSA 40:13 XIII (cited in Paragraph 3 supra) says that all warrant articles shall be by simple majority except those requiring a 2/3 majority. This statute, now that the legislature has done away with the 2/3 majority vote as it applies to the district, may well require only a simple majority to approve a bond issue. Such a result caused by a literal reading of RSA 40:13, Paragraph XIII creates a greater irrational classification of voters. This absurd result can be avoided by declaring RSA 33:8 (1999) unconstitutional.

15. The District is planning on putting to vote at its annual meeting a warrant article proposing the issuance of $32,600,000.00 in bonds for school construction and land acquisition. The plaintiff believes there is a significant present legal question as to whether the amendment to the law lowering the majority required from 2/3 to 3/5 majority is constitutional under the New Hampshire Constitution. The District in its advertisement of the warrant maintains that a 3/5 majority vote is required. The plaintiff maintains that a 2/3 majority vote is constitutionally required.

WHEREFORE, the plaintiff prays:

A. The court declare RSA 33:8 (1999) unconstitutional under the Constitution of the State of New Hampshire Part I, Art. 12 and Art. 39 as the creation of two classes of voters without any rational basis for the distinction between classes, and for imposing a change in the form of government of those local governments which adopted RSA 40:13 without their consent;

B. The court award the plaintiffs his costs and attorney's fees of bringing this action; and,

C. The court declare such other relief as may be just.

Respectfully submitted,
Richard McGraw
By His Attorneys,
Shaines & McEachern, P.A.
PauI McEachern

Dated: March 3, 2000

Last update on 22-Apr-00 at 9:19 PM.

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