On November 24, 1999, the Petitioners filed this "Petition For Injunctive Relief From Action Taken At The November 16, 1999 Oyster River Special School Meeting". In its Order of Notice, this Court scheduled this expedited merits hearing.

The Petitioners have asked that this Court invalidate the results of the vote at the November 16, 1999 Special School District Meeting which had approved a $19,951,897 bond for construction at the Oyster River High School. Petition, Prayer for Relief A. The basis for the request is that neither majority of all legal voters were present and voting at the Special Meeting nor did the School Board obtain the Superior Court's permission prior to holding the meeting.

Chapter 2:3 of the New Hampshire Laws of 1999 (House Bill 111), effective February 3, 1999 provided:

"A 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 issues raised by resolution of the Claremont lawsuit. This authority shall expire no later than December 31, 1999."

On September 22, 1999, a Warrant was posted that the Oyster River School Board was calling a Special School District meeting to consider a bond issue for renovations and additions to the Oyster River High School. The Warrant notified the District's voters that Session I to discuss the Warrant would be held on October 14, 1999 and that official ballot voting would occur on November 16, 1999. Previously, on September 8, 1999 at the School Board meeting a hearing on the bond and revised budget for the 1999-2000 school year was held. In addition notice of a hearing on the bond to be held on September 28 was published in Foster's Daily Democrat on September 18 and on September 28 the bond hearing was held.

At the November 16, 1999 Special School District, the voters approved the bond by a vote of 1,883 to 1,124 or 62.6%.

Chapter 134:1 of the New Hampshire Laws of 1999 (HB 487) effective August 17, 1999, amended RSA 33:8 to provide:

"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."

At the March 5, 1996 School District Meeting, the Oyster River School District had adopted RSA 40:13.

I. THE SCHOOL BOARD WAS NOT REQUIRED TO OBTAIN SUPERIOR COURT APPROVAL IN ORDER TO HOLD A SPECIAL SCHOOL DISTRICT MEETING UNDER CHAPTER 2:3.

The School Board called the November 16, 1999 Special School District Meeting under the authority of Chapter 2:3. That law is unambiguous. It authorizes a special school district meeting until December 31, 1999 without court approval to address any issue raised by the resolution of the Claremont lawsuits. See, Citizens of Merrimack v. Merrimack School District, 99- E-0326, Hillsborough County Superior Court Southern District (copy attached).

The resolution of the Claremont lawsuit (Chapter 17, 1999) determined how much State aide District's throughout New Hampshire were to receive from education adequacy grants and as a result what the school tax rate in each community that had previously adopted a budget at the 1999 School District meetings would be. Specifically, after the resolution of the Claremont lawsuit, the Oyster River School District netted an additional $3,250,456 in State aide over the prior years foundation aide.

The school tax rates of each town within the Oyster River Cooperative School District before and after the resolution of Claremont were as follows:

The expectation of receiving additional State funds and the resulting lower tax rate were reasons for calling the Special School District Meeting. Since additional funds of $3,250,456 would be available to the District, Chapter 2:3 gave the School Board authority to call a District meeting to determine whether voters wanted to appropriate additional money for a building project. In essence, since the tax rate would be lowered in all the towns making up the District by the resolution of Claremont, Chapter 2:3 gave the School District authority to decide whether it could now afford a building project by making an additional appropriation to fund the project.

In addition to Chapter 2:3, Chapter 65:7, VI of the 1999 Laws (HB 300) revised the special transition rules of Chapter 17:15 (HB 117) by adding, "School districts may appropriate additional sums for the school year ending June 30, 2000 in accordance with the provisions of 1999, 2 and 197:3." This statute provides additional authority for the District's action in this case. A bond is simply an appropriation. RSA 32:3, VI; RSA 32:5, III. Therefore, taken together Chapter 2:3 and Chapter 65:7, VI authorized the Oyster River Cooperative School District to: (1) hold a special school district meeting without court approval; and (2) appropriate money including bonds at the meeting.

Pursuant to the clear authority in these statutes, the voters of the Oyster River School District voted on November 16, 1999 to make an additional appropriation of $19 million and to authorize the School District to issue bonds and notes for additions and renovations to the Oyster River High School.

Petitioners seem to allege that portions of RSA 33:8 on bond issues at a special meeting negate the "without court approval" language of Chapter 2:3 or that a majority of voters of the District is required to make an appropriation at a special meeting. They are wrong on both counts.

The restrictions on issuing bonds at special meetings contained in RSA 33:8, are identical to those contained in RSA 197:3 on appropriations at special meetings. Neither an appropriation nor a bond issue can be made unless at least one-half of the number of voters of such district entitled to vote at the regular meeting preceding such meeting vote unless the superior court grants a school board's petition for permission to hold a special school district meeting due to an emergency. RSA 33:8 and RSA 197:3, I(a). If a School Board's petition is granted, the special meeting shall have "the same authority as an annual [district] meeting." RSA 33:8 and RSA 197:3, I(a). Without question annual meetings have authority to approve bonds and notes. RSA 33:8. And, this year only until December 31, the Legislature by adopting Chapter 2:3 and Chapter 65:7, VI simply removed the requirement that a school board first petition the superior court to establish an emergency in order to hold a special meeting with the same authority as an annual meeting. The key is that the meeting, once called under Chapter 2:3, had the same authority as an annual meeting and it had all the requisite authority to act and approve a bond issue.

Three separate rules of statutory construction lead to the same result: special meetings to address resolution of Claremont held before December 31, 1999 do not require court approval or a majority of voters to make an additional appropriation.

The first rule is a basic rule of statutory construction that "where one statute deals with a subject on general terms, and another deals with a part of the same subject in a more detailed way, the latter will be regarded as an exception to the general enactment where the two conflict." State v. Farrow, 140 N.H. 473, 476 (1995) (quotation omitted).

RSAs 33:8 and 197:3 are general statutes that address bonds and special district meetings respectively. Chapters 2:3 and 65:7, VI are statutes that address a specific situation raised by the Claremont lawsuits and the resulting funding crisis that was pending at the time of the 1999 School District meetings. Under the basic rule of construction, the specific statutes which address the requirements and authority of special school district meetings until December 31, 1999 control.

The second rule of statutory construction is that when a court interprets two statutes which deal with a similar subject matter, the court "will construe them so that they do not contradict each other, and so that they will lead to reasonable results and effectuate the legislative purpose of the statute." Petition of Public Serv. Co. of N.H., 130 N.H. 265, 282 (1988) (citation omitted). "Where reasonably possible, statutes should be construed as consistent with each other." Appeal of Derry Educ. Assoc.. 138 N.H. 69, 71 (1993).

Petitioners' interpretation of the statutes to require compliance with RSA 33:8's and 193:7's court approval requirement or that a majority of voters voting prior to a valid action would conflict with Chapter 2:3 which explicitly provides that no court approval is necessary for a special meeting this year to have the same authority as an annual meeting. Construing the statutes so that they do not contradict each other, the reasonable interpretation is that for the short period of time addressed by Chapter 2:3 to deal with the resolution the Claremont lawsuit, court approval for a special meeting is not required.

The third rule of statutory construction is that the more recently enacted statute should govern particularly when the most recently enacted statute deals with the subject in a specific way. State v. Farrow, 140 N.H. at 477 (citation omitted). Again the later and more specific statutes here are Chapters, 2:3 and 65:7, VI. Each statute specifically allows a special meeting with the same authority as an annual meeting without court approval (RSA 197:3) and read together they clearly allow a special meeting to appropriate additional sums for the school year ending June 30, 2000.

Even if this Court determines that Chapter 2:3 is ambiguous, however, the legislative history of the statute demonstrates that as a way of dealing with the uncertainty that was created by the inability to reach a legislative solution before the 1999 Town and School meetings, the Legislature intentionally placed no limits on what action a second meeting could take this year.

The special meeting provision in Chapter 2:3 was not originally part of HB 111. It was added by an amendment recommended by the House Committee on Finance. The amendment was approved by a voice vote of the House on January 28, 1999, the same day that the bill passed both the House and the Senate. See, Legislative History attached hereto to Exhibit A.

When Representative Chandler introduced HB 111, he stated:

"The Municipal Association was very concerned, not - as we all are not sure what is going to be happening as a result of Claremont and if and when a final solution is arrived at. I should say if or when, I guess, but that not knowing what may happen at the first school and town meetings, that it may be necessary for the communities or the schools to have a second meeting. Right now, as you know, if that meeting is to raise any money, it is necessary to go to the court. This can sometimes be a fairly time consuming process and a needless waste of taxpayers money in a lot of cases and especially if it is going to be required for a number of towns and school districts to do this. So, the Municipal Association came to us and I am in full agreement with this, to amend this bill to allow another meeting to be held, if necessary, to deal with any of the ramifications of the Claremont issues without court approval" January 20, 1999 House Finance Committee Minutes, p. 2.

Later at the January 20, 1999 House Finance Committee meeting concerning HB 1 1 1, in answer to a question as to why the amendment which added Section 3 to the bill was so vague in the use of the language, "any issue raised by the resolution of the Claremont lawsuit" (emphasis added), Representative Peter Burling, the bill's co-sponsor, responded:

". . . Our purpose here is to remove the court review in this single experience. I mean this is sui generic. We are not going to do this year-after-year. This is just the transition and we have no way of knowing what an individual district may want to have resolved as part of the resolution of the Claremont lawsuit. I think leaving the language vague avoids a whole lot of rustling around and interpretation by the superior court judges that we really don't need to be doing." Minutes, p. 3.

Then, in response to a question by Finance Committee Chairman Neil Kurk asking whether under the amendment there was anything that "Could not be brought up at the subsequent school meeting," Representative Burling responded:

"I would suspect that the purchase of new basketballs for the athletic department. The ordinary - I suppose almost anything could be arguendo included with the resolution of the Claremont lawsuit. Mr. Chairman, I would have to think about that longer than you want to have me sitting here staring at the ceiling." Id.

To which Chairman Kurk responded:

"The reason for the question was, it seems to me that the way this is drafted, and because of your response, and I concur, that we are going to have a second school district meeting and the language to address any issue raised by the resolution of the Claremont lawsuit really is irrelevant, that there is nothing that the second meeting couldn't do. . ." Minutes, p. 4. (Emphasis added)

Finally, at the conclusion of the House Finance Committee Meeting, Representative Chandler summarized the effect of the amendment contained in Section 3 which is at issue here:

"So, all this is doing, hopefully, is saving some money and time on the schools' part. But more importantly, all these meetings will still have to be advertised. Yes, we are having a second meeting and there are some of us that sometimes think those aren't the right thing to do necessarily, but they are fully advertised. We are not saying you can just go have one on a Tuesday night sometime without notification. All of the laws still comply. Everyone in whatever community this is will be fully notified and if they don't chose to go to that second meeting, whether it raises less money or more money, that is the fault of the people in the community. I mean all of the notifications remain the same. So, I think we need to have a little faith in the people in the communities to say yes, we will be notified if we chose to go and that whatever the result taken in that town is what the town wants. Thank you." Id., pp. 13-14.

Voters in Oyster River were duly notified of the Special Meeting. They voted by more than the requisite supermajority to approve the bond issue here. The District's clear choice should not be undone.

II. PETITIONERS ARE BARRED BY THE DOCTRINE OF LACHES FROM OBTAINING RELIEF.

Laches is an equitable doctrine which is "principally a question of the inequity of permitting the claim to be enforced - an inequity founded on some change in the conditions or relations of the property of the parties involved. Because it is an equitable doctrine, '[aches will constitute a bar to suit only if the delay was unreasonable and prejudicial."' Healey v. Town of New Durham, 140 N.H. 232, 241 (1995).

Petitioner's were notified when the Warrant for the Oyster River School District Special meeting was posted on September 22, 1999 that the School District was calling a special meeting to be held on October 14, 1999 with ballot voting November 16, 1999 to consider a bond for renovations and additions to Oyster River High School.

Petitioners, however, failed to challenge the validity of the special meeting until November 24, 1999 after the bond had already passed. Their delay in challenging the validity of the special meeting until after the meeting was unreasonable and has severely prejudiced the School District.

By waiting until November 24, 1999 to file this petition and then amending the pleadings and delaying service until December 3, the District was prevented from resolving this matter in time to call a second special meeting, if necessary. RSA 197:3, V requires that any special meeting to raise and appropriate money must be held prior to December 31, 1999. Because of the timeframe for holding a budget hearing under RSA 32:5 (25 days prior to a school district meeting) and of the requirement in a district operating under the provisions of RSA 40:13 that ballot vote on the warrant articles as amended by the first session of the meeting cannot take place any sooner than 28 days nor later than 60 days following the deliberative session of the meeting (RSA 40: 13, XVI), the December notice of the petitioners' claim here effectively prevented the District from holding a School District meeting even if it did petition the Superior Court to hold that meeting.

Further, the Petitioners' delay has caused the District to undergo considerable expense in holding a special school district meeting and in preparations to sell the bond authorized by the November 16 meeting through the New Hampshire Municipal Bond Bank. The District's bond approved on November 16 were sold as part of Bond Bank's December 2 sale. Due to the Petitioners' actions in this case, the District's bonds were removed from the sale and the District, which was scheduled to receive the proceeds from the Municipal Bond Bank sale on December 16, 1999, has received no proceeds. As a consequence of this delay, the District is losing approximately $3000 per day in lost interest on the investment of bond proceeds.

In addition, due to the tardy notification to the District of the Petitioners' claims, the District is now faced with issuing bonds in the future at increased bond rates at great cost to the District. Bond rates for AAA insured general obligation bonds from Blumberg's Financial Bond Service averaged 4.91 percent in March of 1999. By December bonds averaged 5.69 percent. The average increase for the nine months is .08 percent each month. Each rise of .08 of a percent will cost the District $168,000 over 20 years.

The Special School District meeting in the Oyster River School District was well publicized within the District. Proper notice was timely published in the newspaper warning the District of the meeting. For the Petitioners to wait to see if the bond passed prior to challenging the District's authority to hold the School District meeting was unreasonable and prejudicial to the District under these circumstances. Therefore, even assuming the Petitioners' claim is supportable, their claim should be barred by the doctrine of [aches given the unreasonable delay in challenging the District's actions.

The statutory authority for the School District to hold a Special School District meeting with all the authority of an annual meeting until December 31, 1999 to address issues raised by the resolution of the Claremont lawsuit is clearly established by Chapter 2:3 of the 1999 Legislative Session. In spite of the Petitioners' contention, neither a majority of the voters nor Superior Court approval is required for the District to hold a school district meeting within that timeframe to appropriate additional sums of money for the fiscal year ending June 2000. (See Chapter 2:3, Chapters 65,7). Following resolution of the Claremont lawsuit (the enactment of Chapter 17 of the 1999 Legislative Session HB 1 17) the Oyster River School District received an additional $3,250,456 in net revenue under its "state adequacy grant". The School Board was within its authority to call a special school district meeting without first obtaining court approval to permit District voters to decide whether they wished to fund additions and renovations to the Oyster River High School as a result of the resolution of the Claremont lawsuit. Therefore, the Petitioners' claims should be dismissed and the District's vote approving the bond for renovations and additions to the Oyster River High School should be affirmed.

Respectfully submitted this 20th day of December 1999.

THE OYSTER RIVER SCHOOL BOARD,
OYSTER RIVER COOPERATIVE SCHOOL DISTRICT,
TOM CARROLL, SUPERINTENDENT OF SCHOOLS,
DREW CHRISTIE, CHAIRMAN OF THE OYSTER
RIVER SCHOOL DISTRICT
By Their Attorneys,
Soule, Leslie, Kidder, Sayward & Loughman

By: [signed]

Gordon B. Graham
220 Main Street
Salem, NH 03079
(603) 898-9776
N.H. Bar No. 981

I hereby certify that a copy of the foregoing Answer has this day been forwarded to Plaintiffs counsel, Anthony McManus at 100 Central Avenue, Dover, NH 03820.

Last update on 20-Dec-99 at 10:07 PM.

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