Within thirty days from the date on the clerk's written notice of a decision on the merits, unless otherwise provided by law and except as otherwise provided by Rule 7 in criminal and probate appeals, the moving party shall file (a) 1 copy of this notice of appeal and of the attachments to it with each of the other parties, and with the attorney general in a criminal case; (b) either 2 or 3 copies with the clerk of the lower court depending upon whether a judge. or master and judge, decided the case; and (c) the original and 12 copies with the clerk of the supreme court. The moving party shall pay the filing fee simultaneously with the filing of the notice of appeal.

If party is a corporation or association, give the names and addresses of parent, subsidiaries, and affiliates (to extent known):

Number of days of trial: 1

Dates of hearing and/or trial: December 20, 1999

Does the moving party waive oral argument? No

List the exhibits necessary to determine the questions raised on appeal: All trial exhibits.

BRIEF DESCRIPTION OF NATURE OF CASE AND RESULT:

On November 16, 1999 at a special meeting of the Oyster River School District voters approved a $19,951,897 bond issue for the renovation of and additions to the Oyster River High School by a vote of 1883 to 1124. The special meeting of the District had been called by the School Board under the authority granted by Chapter 2:3 of the New Hampshire Laws of 1999 which provided:

"The School Board may call a special school district meeting under RSA 197:3, without court approval, and a town may call a special town meeting under RSA 31:5, without court approval, to address any issue raised by the resolution of the Claremont lawsuit. This authority shall expire no later than December 31, 1999."

Previously, due in part no doubt to its financial impact, a bond for renovations and additions to the high school had been defeated at annual meetings of the Oyster River School District in 1998 and in 1999. At the 1999 annual meeting of the School District, in addition to the projected financial impact of the proposed bond, uncertainty over school funding due to the Legislature's failure to arrive at a solution to this Court's decision in Claremont was cited by the Plaintiff in debate at the deliberative session as a reason for District voters to defeat the bond issue. Voters defeated the bond in March 1999 by a vote of 1941 yes to 1375 no. After the annual meeting had concluded its business the 1999 Legislature adopted Chapter 17. The so-called resolution to the Claremont lawsuit (and its various technical corrections bills) netted the Oyster River School District an additional $3,250,456 in revenue over what the District had received the previous year. In view of the long-awaited resolution to Claremont and the additional revenue for the District, the School Board called a special meeting to ask voters to revisit the bond issue.

On November 24, 1999 after voters had approved the bond issue by their vote on November 16, 1999, Mr. Beckman filed a petition for injunction seeking a court order invalidating the decision of the voters. After a hearing on the merits the trial court rejected most of the Plaintiff's grounds for relief but found that a school district's authority to make additional appropriations at a special meeting contained in Chapter 2:3 of New Hampshire Laws of 1999 did not extend to appropriations for bond issues. Therefore, the Court invalidated the vote of 3007 citizens of the Oyster River School District 62 percent of which approved a bond issue for additions and renovations to the Oyster River High School.

STATUTE, ORDINANCE, REGULATION, RULE, OR OTHER LEGAL AUTHORITY UPON WHICH THE CLAIM OF CIVIL OR CRIMINAL LIABILITY WAS BASED:

• Chapter 2:3 of New Hampshire Laws 1999
• Chapter 65:7 VI of New Hampshire Laws 1999
• RSA 33:8
• RSA 197:3

SPECIFIC QUESTIONS TO BE RAISED ON APPEAL, EXPRESSED IN TERMS AND CIRCUMSTANCES OF THE CASE, BUT WITHOUT UNNECESSARY DETAIL. SEE RULE 7(7). STATE EACH QUESTION IN A SEPARATELY NUMBERED PARAGRAPH. SEE RULE 16(3)(b).

1. Whether the vote of the Oyster River School District to approve a bond issue taken at a special meeting held without court approval was authorized by Chapter 2:3 of New Hampshire Laws of 1999?

2. Can Chapter 2:3 of New Hampshire Laws of 1999 be constructed in a way that preserves the validity of the Oyster River School District's November 16, 1999 vote approving a bond issue?

WITH REFERENCE TO EACH SPECIFIC QUESTION RAISED ON APPEAL, IDENTIFYING THE QUESTION BY ITS NUMBER, SPECIFY:

1. The proper standard of review to be applied by the court to the question, citing relevant authority;

2. The parts of the proceeding you would designate the court reporter to transcribe, or whether an adequate written substitute could be provided in place of a transcript; and

3. The case(s) most relied upon to support the moving party's position:

1. Question Nos. 1 and 2.

   The trial court's legal conclusions are reviewed independently under the plain error standard. Olbres v. Hampton Co-op Bank, 142 N.H. 227, 230-31 (1997).

2. Question Nos. 1 and 2.

None.

3. Question Nos. 1. and 2.

   • New London v. Davis, 73 N.H. 72 (1904)
   • Amy v. Pittsburg School District, 95 N.H. 386 (1949)
   • Hecker v. McKernan, 105 N.H. 195 (1963)

If the most extensive transcript designated above were ordered by the court, what is the court reporter's estimate (obtain directly from the trial court clerk) of the number of pages and the cost thereof:

A DIRECT AND CONCISE STATEMENT OF THE REASONS WHY A SUBSTANTIAL BASIS EXISTS FOR A DIFFERENCE OF OPINION ON THE QUESTIONS AND WHY THE ACCEPTANCE OF THE APPEAL WOULD PROTECT A PARTY FROM SUBSTANTIAL AND IRREPARABLE INJURY, OR PRESENT THE OPPORTUNITY TO DECIDE, MODIFY, OR CLARIFY AN ISSUE OF GENERAL IMPORTANCE IN THE ADMINISTRATION OF JUSTICE:

This Court has stated on a number of occasions that where two constructions of a statute are permissible the one which preserves the validity of a vote must prevail. Hecker v. McKernan, 105 N.H. 195, 196 (1963). It has also held that it is a principle of general application that votes passed at town meeting shall be liberally construed and that if they fall within the authorized power of the town ingenious distinctions will not be unnecessarily resorted to, when the effect would be to defeat the apparent intention of voters in a matter admittedly within their legislative province. See Amy v. Pittsburg, 95 N.H. 386, 388 (1949). These policies are based on the recognition that when voters act at a school or town meeting they are exercising their legislative prerogative and that as a legislature their actions should not be easily cast aside.

The trial court has ignored these policies and narrowly read a statute that permitted special meetings to be held before December 31, 1999 to deal with "any issue raised by the resolution of the Claremont lawsuit" (emphasis added). The trial court concluded the statute did not apply to the adoption of bond issues. The trial court's finding is wrong. It ignores the plain reading of Chapter 2:3. Under the law "any issue", including whether a bond issue was more affordable to voters in view of the additional revenue provided to the District as a result of the "resolution of the Claremont lawsuit", could be considered at a special meeting. It also ignores the plain reading of the legislative history of Chapter 2:3. The testimony on the bill reveals that the bill's sponsor and the Chairman of the House Finance Committee agreed that Chapter 2:3's language "any issue raised by the resolution of the Claremont lawsuit" was intentionally left vague to deal with a broad range of issue that might arise in districts and towns and that under the law "there is nothing that the second meeting couldn't do."

Without question the construction of school buildings has a significant and lasting impact on the lives of the District's citizens. For two years the District had put forward needed building plans to voters to accommodate the growth of the District and maintain accreditation. For the first time in November 1999 voters were faced with the prospect for a lasting change in the manner of funding education in New Hampshire and they finally supported the bond proposal presented to them ultimately concluding as a body that the bond was affordable. The District voters decision to finally approve the bond shortly after learning that the District would receive over $3,000,000 in additional education aid from the State demonstrates that the voters' action was in fact an issue raised by the resolution of the Claremont lawsuit. For the first time the bond was affordable to District voters.

It is very difficult to pass a bond issue in New Hampshire. Once passed, to undue a bond vote based on an unnecessarily narrow reading of Chapter 2:3 (1999) when other constructions of the statute are equally plausible would be a mistake. Even though the statute in question expired on December 31, 1999, the principle that the votes cast by 3007 voters of a District meeting should not be easily cast aside is critical for this Court to reaffirm.

TITLE OF CASES WITH SIMILAR OR IDENTICAL ISSUES PENDING, OR EXPECTED TO BE ENTERED IN THE SUPREME COURT (TO EXTENT KNOWN):

None

ATTACH TO THIS FORM THE DECISION BELOW AND ONLY SUCH OTHER PLEADINGS AND DOCUMENTS AS THE COURT NEEDS TO EVALUATE THE SPECIFIC QUESTIONS RAISED ON APPEAL. LEGAL MEMORANDA SHALL NOT BE SUBMITTED WITHOUT THE PRIOR APPROVAL OF THE CLERK. INCLUDE A TABLE OF CONTENTS LISTING EACH ATTACHMENT AND REFERRING TO SEQUENTIALLY NUMBERED PAGES. IF THE PARTIES; REQUESTS FOR FINDINGS AND RULINGS ARE ATTACHED, NOTE ON THE RIGHT SIDE OF PAGE WHETHER EACH REQUEST WAS GRANTED, DENIED, OR NOT RULED UPON [RULE 6(5)]. REGARDING THE TEXT OF RELEVANT CONSTITUTIONAL, STATUTORY, AND OTHER DOCUMENTS, SEE RULE 7(6).

1. I hereby certify that every issue specifically raised has been presented to the court below and has been properly preserved for appellate review by a contemporaneous objection or where appropriate by a properly filed pleading.

2. I hereby certify that copies of this notice of appeal have been served on all parties to the case and have been filed with the clerk of the court from which the appeal is taken in accordance with Rule 26(2) and (3).

Last update on 25-Mar-00 at 1:21 PM.

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