• TABLE OF AUTHORITIES

• FACTUAL AND PROCEDURAL BACKGROUND

• ARGUMENT

  1. SB 365 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 SB 365

     3. Paragraph Two of Article 39 Does Not Apply to SB 365

     4. SB 365 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. SB 365 Does Not Violate The Equal Protection Clauses Of The New Hampshire And United States Constitutions

     1. Equal Protection Analysis

     2. SB 365 Does Not Classify For Equal Protection Purposes

     3. SB 365 Bears A Rational Relation To Its Purpose

• CONCLUSION

Cases

1. Bogert v. Kinzer, 465 P.2d 639 (Idaho 1970) 15

2. Clough v. Osgood, 87 N.H. 444 (N.H. 1935) 12

3. Dugas v. Town of Conway, 125 N.H. 175 (1984) 12

4. Girard v. Town of Allenstown, 121 N.H. 268 (1981) 8

5. Gordon v. Lance, 403 U. S. 1 (1971) 17

6. Harriman v. City of Lebanon, 122 N.H. 477 (N.H. 1982) 8, 9

7. Holt Civic Club v. Tuscaloosa, 439 U.S. 60 (1978) 8, 19

8. In re Kearsarge Regional School District, 138 N.H. 211, 216 (1994) 18

9. In the Matter of a Contest of a Certain Special Election, 659 P.2d 1294 (Ariz. 1982) 18

10. LeClair v. LeClair,137 N.H. 213 (1993) 15, 18, 19

11. Opinion of the Justices, 112 N.H. 42 (1972) 10

12. Opinion of the Justices, 117 N.H. 749 (1977) 19

13. Opinion of the Justices, 134 N.H. 711 (N.H. 1991) 6

14. Opinion of the Justices, 137 N.H. 260 (1993) 15

15. Opinion of the Justices, 94 N.H. 499 (1947) 14

16. Petition of Barney, 142 N.H. 798 (1998) 5

17. Public Service Co. v. Town of Hampton, 120 N.H. 68 (N.H. 1980) 12

18. Seabrook Citizens for Defense of Home Rule v. Yankee Greyhound Racing, Inc., 123 N.H. 103 (1983) 12, 18, 19

19. Smith v. State, 118 N.H. 764 (1978) 6[page ii]

20. Smith v. Town of St. Johnsbury, 554 A.2d 233 (Vt. 1988) 18

21. State v. Bernard, 141 N.H. 230 (1996) 5

22. Tiews v. Timberlane Regional School Dist., 111 N.H. 14 (1971) 15-19

23. Union Leader Corp. v. New Hampshire Housing Finance Auth., 142 N.H. 540 (1997) 5

24. Union School Dist. v. School Dist. No. 20, 71 N.H. 269 (1902) 14

On March 17, 2000, the Clerk of this Court signed an Order in which this Court agreed to issue an advisory opinion on the constitutionality of Senate Bill 365 - LOCAL ("SB 365") pursuant to a request transmitted by the Senate to this Court in Senate Resolution 12 on March 9, 2000 (the "Senate Request"). Senate Resolution 12 specifically requests this Court to give its opinion on the constitutionality of SB 365 under Part I, Article 39 of the New Hampshire Constitution, or under the equal protection, voting, or due process protections of the state or federal constitutions. This Court ordered that "[t]ypewritten memoranda on the questions presented by the request may be furnished by any legislator, attorney, organization, interested party or member of the public on or before April 17, 2000."

Due to the importance of the issues raised by the request for advisory opinion, five school districts -- Oyster River Cooperative School District, Exeter Region Cooperative School District, John Stark Regional School District, Contoocook Valley School District, and Winchester School District -- jointly submit this memorandum as interested parties. The issues raised by the request for advisory opinion on the constitutionality of SB 365 potentially concern every municipality and school district that has adopted the "official ballot" ("SB 2") and seeks to issue bonds.¹

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. Due to the questions regarding the constitutionality of SB 365 raised by Senate Resolution 12, as [page 1] well as similar questions regarding RSA 33:8 in a declaratory judgment action pending in the Rockingham County Superior Court, the districts on whose behalf this Memorandum is being submitted have been informed that bond counsel will be unable to render the requested opinion with regard to their respective bond issues. As such, the projects to be financed by the bond issues cannot proceed unless and until these constitutional questions have been resolved.

In the context of that general discussion, the five school districts and their interests in this matter are as follows:

• 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.

• 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.

• 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.

None of these bond issues can go forward, and none of the projects they fund can commence, as long as constitutional questions about SB 365 and RSA 33:8, the statute SB 365 would amend, continue to linger. These five districts, through counsel, have concluded that SB [page 2] 365 does not violate any provisions of the New Hampshire or federal constitutions. For the reasons that follow, therefore, these five school districts respectfully request that this Court answer each of the questions presented in Senate Resolution 12 in the negative.

SB 365 would amend RSA 33:8 to reduce the voting majority required to authorize the issuance of bonds or notes in cities, towns, school districts and village districts to a uniform three-fifths for all municipalities. In its current form, RSA 33:8 requires a three-fifths majority to authorize the issuance of bonds in "official ballot" towns and school districts, and a two-thirds majority to authorize the issuance of bonds in all other towns and school districts that operate under a traditional "town meeting" form of government. In Senate Resolution 12, the Senate has inquired whether SB 365, in its current form, violates either Part I, Article 39 of the New Hampshire Constitution or the equal protection, due process or voting rights provisions of the New Hampshire or United States Constitutions.

I. SB 365 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 where 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." Report of the Commission to Study the State Constitution to the Fifteenth Constitutional Convention at 23 ("Constitutional Convention Report") (attached hereto as Exhibit A). 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 to provide cities and towns with a limited form of"home rule." [page 3] The amendment was adopted by the voters statewide and 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." (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) (attached hereto as Exhibit B). 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. 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. The Voter's Guide explained that the function of this [page 4] 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. The Voter's Guide continued, "[t]his provision could eventually lighten the workload 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 SB 365

Even a casual reading of Paragraph One of Article 39 reveals that the paragraph does not apply to SB 365 because both RSA 33:8 and the amendment contained in SB 365 apply generally to all municipalities, and not to "particular" cities or towns. Only by reading Paragraph One expansively and ignoring the word "particular" can an argument be made that SB 365 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 flout 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 can 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, moreover, [page 5] 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 all, or an entire class, of cities or towns.

This Court has construed Paragraph One consistent with its plain language. See Opinion of the Justices, 134 N.H. 711 (N.H. 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 (N.H. 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 of the legislation, this Court construed it 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 [page 6] 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 SB 365. Neither SB 365 nor RSA 33:8 in its present form applies to a particular city or town. Instead, both measures constitute general legislation that applies to all municipalities.

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, each of which has selected from among the various forms of government made available by the legislature. 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. 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 (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 that which singles out one town.

SB 365 applies to all cities and towns in New Hampshire. 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. Accordingly, because SB 365 does not purport to change the [page 7] form of government of any particular town, Part I, Article 39 of the New Hampshire constitution does not proscribe it.

C. Paragraph Two of Article 39 Does Not Apply to SB 365

Paragraph Two does not, by its terms, apply to legislation such as RSA 33:8 and SB 365 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 and SB 365 constitute nothing more than continued legislative efforts in the "science of experiment" known as government, Holt Civic Club v. Tuscaloosa, 439 U.S. 60, 71 (1978) (internal quotation and citation omitted), debated and enacted in the context of the legislature's virtual 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 (N.H. 1982). RSA 49-B, along 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 [page 8] extension of any argument to the contrary is that the legislature could never amend such enabling laws once enacted.

D. SB 365 Does Not Effect a Change in the Form of Government of Any City or Town

Even if this Court determines that SB 365 does fall under either Paragraph One or Paragraph Two, SB 365 does not effect a change in the "form of government" of cities or towns and therefore would not violate Part I, Article 39.

As indicated, SB 365 would make the bond and other debt issue voting requirements for all municipalities uniform, so that all municipalities would need the approval of three-fifths of the voters to approve bonds and other such debt. 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; Harriman v. City of Lebanon, 122 N.H. 477, 481 (N.H. 1982). 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.

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 [page 9] Convention Report at 24. See also Journal of Constitutional Convention, Tuesday, May 22, 1956, at 85-86. 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 (N.H. 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, the 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 [page 10] 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 so-called SB 2 towns and school districts have, of course, adopted the official ballot town meeting form of government through the procedure set forth in RSA 40:14. Under SB 365, those municipalities that have adopted the official ballot, for example, are not being subjected to a change in the form of government. The only change is in the percentage vote required to approve a bond issue. This is not a change in the town's "form of government" but rather a change in the manner in which that form of government conducts its business. As such, SB 365 does not require voter approval.

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 also must violate 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. [page 11]

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 meeting in some significant respect, they clearly did not change any town'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 city or town that would require local approval under Article 39.

Furthermore, this Court has held that both towns and school districts 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 (N.H. 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 (N.H. 1980). An interpretation of Part I, Article 39 to require a referendum on every statute, such as SB 365, which alters the process by [page 12] which a municipality's form of government functions, would erode the legislature's plenary power 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

To the extent the applicability of Part I, Article 39 to SB 365 in the context of towns may be questioned, the plain language of the provision limits its reach to towns or cities, and does not extend to school districts. As such, SB 365 raises no Part I, Article 39 issue with respect to 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 1, Article 39, therefore, simply does not reach school districts.

Furthermore, neither the Voter's Guide nor the Constitutional Convention Report mentions school districts in its interpretation of 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 1, Article 39. [page 13]

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 this situation, especially in light of the plain language of Part I, Article 39. That plain language allows no construction of Article 39 as applicable to school districts.

II. SB 365 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.² As such, "[t]he first [page 14] 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 also 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 id. 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, where state action classifies on the basis of race, creed, color, gender, national origin or legitimacy, or 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 request for an advisory opinion, applies to virtually all other classifications. See id. at 223. Unlike [page 15] classifications subject to strict scrutiny, very few classifications fail to pass rational basis scrutiny.

B. SB 365 Does Not Classify For Equal Protection Purposes

As indicated, SB 365 would amend RSA 33:8 to allow bond issues to be approved by a three-fifths vote in traditional town meeting municipalities, thereby eliminating the current distinction in bond issue voting requirements between traditional town meeting and official ballot municipalities. To the extent SB 365 would make the bond issue voting requirements of the two forms of government the same, SB 365 would eliminate an obvious distinction between municipal forms of government that currently exists in RSA 33:8.

The question then becomes whether SB 365 itself creates any type of classification that could subject this bill to an equal protection challenge. Both this Court and the United States Supreme Court have squarely faced this issue, and both have determined that supermajority voting requirements do not violate equal protection.

In Tiews v. Timberlane Regional School District, 111 N.H. 14 (1971), this Court unequivocally held that extra-majority municipal voting requirements did not impair the right to vote. In rejecting an equal protection challenge to RSA 33:8, this Court pointed out that the so-called voting rights cases, upon which the plaintiff based his challenge, differ from the case at hand in that, in those cases, the state "denied certain persons an effective vote on the basis of a classification which was . . . inherently suspect." Id. at 17 (analyzing equal protection under United States Constitution). This Court concluded that "[n]othing in the Constitution . . . says that the class of persons who favor municipal bonds have a right to have their views prevail [page 16] merely because their votes preponderate numerically over the votes cast by the class of persons opposed to those expenditures." Id. at 18.

Shortly after this Court's Tiews decision, the United States Supreme Court echoed this Court's equal protection reasoning in Gordon v. Lance, 403 U.S. 1 (1971). In upholding a West Virginia law that required a three-fifths majority to approve bond issues, the Court held that the voting requirement did not raise an equal protection issue because it did not single out any "discrete and insular minority" for differential treatment. Id. at 5. Thus, any suggestion that SB 365's imposition of a three-fifths voting requirement creates "classes" of majority and minority voters presents the precise issue raised in Tiews and Gordon, and has been squarely foreclosed by those decisions. They have unequivocally established that a voter has no constitutional right to a particular voting requirement.

As SB 365 eliminates any distinction in bond issue voting requirements between official ballot and traditional town meeting municipalities, and as extra-majority requirements do not classify for equal protection purposes, SB 365 does not create any classifications among voters and, therefore, raises no equal protection issue.

C. SB 365 Bears A Rational Relation To Its Purpose

Even if this Court determines that SB 365 does somehow trigger equal protection concerns, it does not run afoul of equal protection principles. Any classification attributable to SB 365 would trigger rational basis scrutiny, which SB 365 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. As long as a statutory scheme does not classify on the basis of a [page 17] 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 SB 365 trigger rational basis scrutiny, as such statutory schemes establishing voting requirements neither impinge on a suspect class, nor impair the fundamental right to vote.³ 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 will uphold a statute provided it bears a rational relationship to a legitimate state purpose. See LeClair, 137 N.H. at 223; In re Kearsarge Regional School District, 138 N.H. 211, 216 (1994). Stated alternatively, rational basis seeks to measure the nexus between a statutory scheme and the legitimate interest the statute serves.

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 [page 18] 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. 749, 758 (1977).

The purpose behind SB 365 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.

The purpose of SB 365 is clear from its face: to equalize voting requirements for all bond issues throughout the various forms of government available to municipalities. SB 365 emerges from the crucible of governmental theory as part of the legislature's continuing effort to perfect municipal government. Since enactment, and after surviving its first constitutional challenge in the Tiews case, the legislature has amended RSA 33:8 at least five times, none of which have raised constitutional concerns. In this context, it cannot be viewed as irrational for the legislature to determine that lowering bond issue voting requirements in some towns, thus equalizing bond issue voting requirements in all municipalities, is in the public interest. Since SB 365 is rationally related to the achievement of a legislative state purpose, it does not violate equal protection. [page 19]

For the above stated reasons, SB 365 neither violates Part I, Article 39, equal protection, or any other provisions of the New Hampshire or United States Constitutions. The parties to this memorandum request the opportunity for oral argument by their counsel, should this Court determine to hear argument on Senate Resolution 12.

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¹In an "official ballot" form of government, voters cast their votes on each issue via a secret, written ballot which can be submitted over the course of a given day at a designated location or by absentee ballot. See RSA 40:13. [page 1]

²While 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, equal protection analysis is coequal with federal equal protection analysis. See In re Kearsarge Regional School Dist., 138 N.H. 211, 214 (1994). [page 14]

³Notably, rational basis is the same whether under due process or equal protection. If a statute meets rational basis scrutiny, it violates neither due process nor equal protection. See Tiews, 111 N.H. at 19; Boehner v. State, 122 N.H. 79, 83-4 (1982) (quoting Opinion of the Justices, 117 N.H. 749, 758 (1977)). The determination that the rational basis test applies also necessarily dispenses with any suggestion that SB 365 might impinge on voting rights, which would trigger strict scrutiny. See Tiews, 111 N.H. at 16-17 (stating that voting requirements do not impinge on fundamental right to vote). [page 18]

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