2005-464, WILLIAM SULLIVAN & a. v. TOWN OF HAMPTON BOARD OF SELECTMEN

Senate Bill 2 (SB 2) jurisdiction, meaning that it has adopted the official

be granted. We affirm.

The record supports the following facts. The Town of Hampton is a

(selectmen) motion to dismiss for failure to state a claim upon which relief may Court (McHugh, J.) granting defendant Town of Hampton Board of Selectmen’s Gillick, are three taxpayers (taxpayers) who appeal the order of the Superior HICKS, J. The plaintiffs, William H. Sullivan, Edward Buck and Thomas

Government Center, as amicus curiae. C. Christine Fillmore, of Concord, by brief, for the New Hampshire Local defendant. Mark S. Gearreald, of Hampton, on the brief and orally, for the

S. Krupski orally), for the plaintiffs. Errors may be reported by E-mail at the following address: Cook & Molan, P.A., of Concord (Richard E. Molan on the brief, and John

page is: http://www.courts.state.nh.us/supreme. v.

errors in order that corrections may be made before the opinion goes to press. No. 2005-464 Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Rockingham Readers are requested to notify the Reporter, Supreme Court of New ___________________________

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as twenty-nine of the thirty-four line items. p. 2 “default budget,” but deviated from the prior year’s individual appropriations in

did not exceed the bottom line default budget total in the previously disclosed

selectmen chose to implement the “default budget.”

appropriations for the 2005 budget year. This resulted in a 2005 budget that subsequently held four weekly public meetings during which they altered meeting to plan and submit a “revised operating budget” to voters. million) shortfall in the town’s anticipated operating budget. The selectmen 2

the “default budget” amount and how it was calculated. “operating budget” for approval, the selectmen must disclose on a special form $23,552,795. The voters failed to adopt the “operating budget,” and the At the first budget meeting, prior to presenting the budget committee’s

appropriations within a “default budget.”

“default budget,” or the governing body may choose to have a special town 15% reduction in their individual budgets to offset the approximate 15% ($2.8

other relief on April 22, 2005, in the superior court. The selectmen moved to The taxpayers filed a petition for injunctive relief, writ of mandamus and

budget” of $26,392,546 to its voters alongside the “default budget” of presumably to enhance the transparency of the “default budget” calculation. budget” represents the town’s annual appropriated line item expenditures.

limits the selectmen’s authority pursuant to RSA 32:10 to transfer line item

proposed “operating budget,” they are either deemed to have approved the The selectmen then solicited proposals from each town department for a obligations and reduced by one-time expenditures. If voters fail to adopt the budget” is calculated as the prior year’s budget, adjusted up or down by other

In March 2005, the Town of Hampton presented its municipal “operating public disclosure of the line item appropriations within a “default budget,” line sum of the entire “operating budget.” If adopted by voters, that “operating

The issue presented for review is whether RSA 40:13, as amended in 2004, transfer funds within a previously adopted budget as unplanned needs arise. RSA 32:10, I (Supp. 2005) gives the selectmen discretionary authority to

budget” if voters fail to adopt the proposed “operating budget.” The “default

The 2004 amendment to RSA 40:13 also included new procedures for approval. When submitted to voters, the ballot reflects only a single bottom develops an “operating budget” that the selectmen submit to voters for put to voters, including annual town budgets. An SB 2 town budget committee

The legislature amended RSA 40:13 in 2004 to provide for a “default

(Supp. 2005). RSA 40:13 prescribes balloting procedures on all warrant issues balloting procedures for the town meeting form of government in RSA 40:13 p. 3 Both are questions of first impression. within the meaning of RSA 40:13, X, requiring notice to and approval by voters. appropriation. appropriation an unexpended balance remaining in some other for a specific purpose, the governing body may transfer to that

that states: 3

the budget because the altered budget constituted a “revised operating budget”

make it necessary to expend more than the amount appropriated

budget.” In support of their position, they point to language in RSA 32:10, I,

selectmen failed to follow the prescribed statutory procedures for implementing discretionary authority to make line item changes within the budget, the taxpayers argue that even if the selectmen did properly exercise their If changes arise during the year following the annual meeting that trial court’s ruling

exception to the doctrine of mootness. “default budget” in response to the voters’ failure to adopt the “operating the selectmen improperly exercised this authority by immediately adjusting the pressing authority to make adjustments to a “default budget.” Rather, they argue that The taxpayers do not argue that the selectmen lacked the statutory

Id. if possible, construe the language according to its plain and ordinary meaning. change line item appropriations within the “default budget.” Further, the When interpreting a statute, we consider the language of the statute itself, and

Because the interpretation of a statute is a question of law, we review the

find sufficient public interest in the outcome of this controversy to justify an

public interest involved, or future litigation may be avoided. Id. We

324, 327 (1971). A decision upon the merits may be justified where there is a regarded as one of convenience and discretion. Herron v. Northwood, 111 N.H. (1996). However, the question of mootness is not subject to rigid rules, but is that “have become academic or dead.” Petition of Brooks, 140 N.H. 813, 816 budgetary year. The doctrine of mootness is designed to avoid deciding issues RSA 32:10 provides the town selectmen “unfettered” discretionary authority to dispute is substantially moot because Hampton is now well into the 2006 challenge the implementation of Hampton’s 2005 budget. The underlying We first address whether to dismiss this case as moot. The taxpayers

On appeal, the taxpayers argue that the trial court erred in finding that

superior court granted the selectmen’s motion to dismiss. dismiss. A temporary hearing was held by offers of proof on May 5, 2005. The adopted default budget. p. 4 discretionary authority of selectmen to transfer appropriations within an language or structure of amended RSA 40:13, however, that restricts the no “unexpended balance remaining in some other appropriation” within the

“operating budget.” RSA 40:13, IX-XI (Supp. 2005). We find nothing in the instead of acting to prevent it. We find the taxpayers’ argument that there was the selectmen to sit idly by awaiting the onset of a foreseeable budget crisis 32:10, I, to justify the use of transfer authority. Holding otherwise would force the default budget disclosure form.

appropriations comprising the “default budget” before voting on the proposed

budget” was a sufficient change in circumstances within the meaning of RSA I(a) or transfer appropriations for a purpose that was not originally reflected on amount appropriated at the town or district meeting” as required in RSA 32:10, adopted default budget is permissible as long as they do “not exceed the total within the limitations of RSA 32:10, I.

to require that selectmen disclose the calculation of the individual line item

We agree with the selectmen that the failure to pass the “operating requirements of “good cause” and approval by the budget committee.

appropriated amounts. They argue that transferring appropriations within an one category to free up budget funds to overspend in another provided they act

RSA 40:13 was amended in 2004 to both define the “default budget” and

exercise of the selectmen’s transfer authority by conditioning it upon the for individual line items. We held that the town voters may not restrict the budget” was a change in circumstances sufficient to merit changing the default rejected the voters’ attempt to lock the selectmen into an appropriated amount

funds. This authority is expressly set forth in the language of RSA 32:10, I. immediately after the “default budget” is implemented. requisite flexibility to address unplanned needs by redirecting appropriated Discretionary transfer authority ensures that selectmen have the

transferred.” RSA 32:10, I(b). purposes of appropriations to which, and from which, amounts have been requesting such records pursuant to RSA 91-A:4 . . . [to] ascertain the

The selectmen respond by arguing that the failure to adopt the “operating

selectmen have “unfettered” authority to alter the individual line items requiring prior disclosure of the default budget calculation is meaningless if the Finally, the taxpayers urge that the 2004 amendment to RSA 40:13

were kept, as required by RSA 32:10, I(b), which would allow “any citizen The taxpayers further argue that no evidence was presented that records p. 5 “revised operating budget.”

accessible to the public.

consider issues raised on appeal that were not presented in the trial court. evidentiary hearing on these matters. It is well established that we will not

public. Minutes of these meetings and recorded television broadcasts remain requirements that apply to a p. 5 “revised operating budget.”

is raised for the first time on appeal as the taxpayers never requested an

“default budget.”

finding on two issues: (1) whether the selectmen properly exercised their RSA expressly denies citizens the “authority to dispute or challenge the discretion of the exercise of transfer authority is inappropriate because RSA 32:10, I(b) Daboul v. Town of Hampton, 124 N.H. 307, 309 (1983). Second, a challenge to made over the course of four weekly televised meetings that were open to the funds without increasing the bottom line did not trigger the procedural selectmen pointed out at the trial court’s motion hearing, the transfers were from which, amounts have been transferred.” RSA 32:10, I(b). As the budget. We deny this request for three reasons. First, we note that this request budget” and triggered the necessary procedural steps to implement such a budgeted “amount” for the resulting budget to fall within the meaning of extent to which changes were made converted it into a “revised operating RSA 40:13, XI(c). Thus, the selectmen needed only to stay within the original the warrant article will reflect the “default budget” as only a dollar “amount.” The taxpayers alternatively ask that we remand this matter for fact-

The statutory language is budget,” it does provide a definition for a “default budget.” RSA 40:13, IX(b). appropriations among budget categories that had already been appropriated “revised operating budget” was the result. However, merely transferring RSA 91-A:4 . . . [to] ascertain the purposes of appropriations to which, and bottom line of the “default budget,” we might be inclined to agree that such a

See RSA 40:13, IX(b). Had the selectmen increased the

authority to make such discretionary changes to the “default budget,” the

“amount” and prescribes how to calculate that “amount.” When put to voters, 141 N.H. 379, 380 (1996). RSA 40:13, IX(b) defines the “default budget” as an

We disagree. Although RSA 40:13 does not define a “revised operating

See RSA 40:13, XVI. of records which would allow “any citizen requesting such records pursuant to

The taxpayers next argue that even if the selectmen had the statutory

We reject the taxpayers’ argument that no evidence was presented at trial

default budget line item were “unexpended” when the transfers were made. meaning of RSA 32:10, I, without merit because the remaining funds in each p. 6 6

of the legislature as expressed in the words of a statute.” statutory interpretation for this court, and we are “the final arbiter of the intent

concurred. BRODERICK, C.J., and DALIANIS, DUGGAN and GALWAY, JJ.,

Effingham Zoning Bd. of Adjustment, 152 N.H. 171, 174 (2005).

whether the transfers created a “revised operating budget” is a matter of the governing body in making such transfers.” RSA 32:10, I(b). Finally,