2006-542, JOHN J. BABIARZ v. TOWN OF GRAFTON

The plaintiff, John J. Babiarz, appeals an order of the

Spector on the brief), for the defendant. Mitchell & Bates, P.A., of Laconia (Walter L. Mitchell and Laura A.

to press. Errors may be reported by E-mail at the following address: John J. Babiarz, by brief, pro se.

editorial errors in order that corrections may be made before the opinion goes No. 2006-542 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Grafton Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

page is: http://www.courts.state.nh.us/supreme. 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 p. 2 22 as 2

election contest.” p. 2 29 C.J.S. contrary, “a voter or elector who is not a candidate may not maintain an RSA 669:35 – is critical. In the absence of a statutory provision to the Thus, the language of the statute creating the right to contest the recount –

669:35. This appeal followed. Elections § 436, at 409 ( p. 2 2005). to pursue it since he was not a “person aggrieved” within the meaning of RSA superior court dismissed the petition, holding that the plaintiff lacked standing the town.

must ordinarily bring themselves clearly within the terms of such a statute.”). conferring upon them the right of contest. Persons attacking local elections right to contest local government elections unless they can show a statute 1 p. 2 24 (S. Stevenson, ed., 2d ed., 2007) (“Individuals are generally denied the – rights and privileges. 6 Antieau on Local Government Law § 86.20[2], at 86- Generally, election contests are based upon statutory – not common law 14th stood as the official results. article 22. For the remaining contests, the machine tabulations from March II. Discussion

winner of the planning board election from being sworn into office. The alleged injury from the recount is any different from that of any other voter in defendant is not a “person aggrieved” because he has not established that his in or were elected at the annual meeting.” The Town counters that the meeting, and is] subject to decisions made by elected officials who participated he “has shown an interest in and pays taxes towards the results of [the town phrase “person aggrieved” should be construed broadly to include him because Citing the State and Federal Constitutions, the plaintiff contends that the

was deemed the official result for purposes of the planning board election and purchase a new compactor for the Town’s recycling center. The hand recount planning board and the vote on warrant article p. 2 22, a proposed appropriation to margin of victory was less than ten percent, including a race for a seat on the hand recount from March 25th. He also asked the court to enjoin the declared count from the night of the town meeting as the official tally, instead of the to RSA 669:35, seeking to have the court order the Town to use the machine 22, the plaintiff filed a petition for injunctive relief in superior court pursuant Dissatisfied with the results for the planning board election and article

working properly, a hand recount was undertaken for contests in which the had been working properly. After it was determined that the first machine was and then into a second machine that was used to ascertain whether the first meeting were placed first into the machine used to count them on that night, In connection with the recount, the ballots cast the night of the town p. 3 3

Since it did not, we conclude that by using the phrase “person aggrieved,” the “electors” (or any combination thereof) by simply using any of those words.

that “[a]ny person aggrieved” may contest a recount in superior court.

recount in superior court upon either “taxpayers,” “voters,” “candidates” or Our legislature could easily have conferred the right to challenge a

(allowing “any 10 voters” to apply for a recount). Instead, RSA 669: p. 3 35 provides (allowing voters to petition for recount of local questions); RSA 40:4-c (2000) (allowing voters to petition for recount on county referenda); RSA 660:13 (1996) on questions involving constitutional amendments); RSA 660:12 (Supp. 2006) bring challenges. Cf. RSA 660:10 (1996) (allowing voters to petition for recount within 15 days after election day . . . .”). Nor does it say that only voters may municipal office may proceed against another who claims title to the office statute as saying that “[A] person who claims to have been elected to any see also Marden v. City of Waterville, 226 A.2d 369, 370 (Me. 1967) (quoting RSA 660:1 (1996) (“candidate” in state general election may apply for recount); writing to the town clerk for a recount of the ballots cast for such office . . . .”); for whom a vote was cast and recorded for any office . . . may . . . apply in candidates may bring challenges. See, e.g., RSA 669:30 (1996) (“Any person election . . . or by any taxpayer, respectively.”). Nor does it say that only a whole. unsuccessful candidate . . . or by any elector qualified to vote in the of the legislature’s intent as expressed in the words of the statute considered as (LexisNexis 2006) (An election “may be contested in the circuit court by any taxpayer may appeal to the superior court. See, e.g., Fla. Stat. Ann. § 102.168 which we review order to have standing. RSA 669:35 does not say that any candidate, voter or that a plaintiff must have “a sufficient interest in the outcome of the vote” in The plain language of RSA 669:35 supports the superior court’s ruling

language that the legislature did not see fit to include. Id. written and will not consider what the legislature might have said or add N.H. p. 3 314, 319 (2006). We interpret legislative intent from the statute as and ordinary meaning to the words used. Appeal of Town of Bethlehem, 154

Id. When examining the language of a statute, we ascribe the plain

70, 72 (2005). In matters of statutory interpretation, we are the final arbiters

de novo. Town of Hinsdale v. Town of Chesterfield, 15 p. 3 3 N.H.

The interpretation and application of statutes present questions of law,

question presented. have jurisdiction in equity to hear and determine the in which such town is located; and such court shall thereafter, appeal to the superior court for the county recount with respect to any ballot may, within 5 days Any person aggrieved by a ruling of the board of

RSA 669: p. 3 35 provides: decision.” 4 p. 4 the community who might feel that they are hurt by a local administrator’s

the outcome of the proceedings. Standing will not be extended to all persons in [or she] is . . . aggrieved, [a person] must show some direct definite interest in A taxpayer must be “personally aggrieved” by a tax in order to receive an local zoning board of adjustment, we have held that “[t]o demonstrate that he in property within the boundaries of the municipality,” his position is incorrect. in the context of RSA 676:5, I (1996), which addresses standing to appeal to a whether that taxpayer is a resident or not as long as they [sic] have an interest aggrieved,” as used in that statute, “is so broad that it covers any taxpayer the tax abatement statute. Although the plaintiff argues that “person We have also construed “person aggrieved” in the context of RSA 76:16-a, “person aggrieved” by a decision of the board of recount. and brackets omitted).

Goldstein v. Town of Bedford, 154 N.H. 393, 395 (2006) (quotations decisions in the election recount context. For example, in

interpretation of the phrase “person aggrieved” in other contexts. For example, It also bears noting that our reasoning is consistent with our

interest that could be injured. Therefore, he or she would easily qualify as a directly affected by the outcome of an election and would have a special In both cases, there can be little doubt that a losing candidate would be special or superior interest in the election is not inconsistent with our previous superior court was not challenged on appeal, it cannot seriously be questioned. pursuant to RSA 669:35. Id. Although her standing to contest the matter in recount. She appealed the outcome of the recount to the superior court candidate for selectman in the Town of Milton lost an election as a result of a RSA 59:113.” Id. In Kibbe v. Town of Milton, 142 N.H. 288, 290 (1997), a inserted the word “aggrieved” into the statute. “qualifie[d] as a person aggrieved by a ruling of the Board of Recount under had any special or superior interest in the election, then it would not have was a candidate in the election and challenged the legality of all ballots cast, he voter, taxpayer or candidate to bring a contest regardless of whether he or she 59:113, the predecessor to RSA 669:35. Id. We held that since the plaintiff election after a recount. He then appealed to the superior court under RSA 110 N.H. 348, 349 (1970), a candidate for selectman in Goffstown lost the

Interpreting RSA 669:35 to require that a “person aggrieved” have a

words). N.H. 613, 616 (2000) (legislature is presumed not to have used superfluous

If the legislature intended, as the plaintiff appears to argue it did, to allow any Elections § 436, at 409 (emphasis added). Such persons would be “aggrieved.” special or superior to that of a mere [voter] or member of the public.” 29 C.J.S. candidates or to persons having or claiming in the election an interest which is legislature granted “the right [to bring a recount contest in superior court] to p. 5 5

under RSA 669:3 p. 5 5.

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

correctly determined that he did not have standing to pursue his challenge other special or superior interest in the election. Therefore, the superior court board and has pointed to nothing in the record indicating that he had any we decline to analyze his assertions under the Federal Constitution. participant, voter, and taxpayer, but he was not a candidate for the planning In conclusion, the plaintiff in the instant case was a town meeting

by neither argument nor authority warrant no extended consideration). N.H. 494, 499 (1988) (“off-hand invocations” of constitutional rights supported Matter of Thayer and Thayer, 146 N.H. 342, 347 (2001); Keenan v. Fearon, 130 likewise undeveloped, and therefore we refrain from addressing it. See In the renders argument waived). The plaintiff’s state constitutional argument is v. Chick, 141 N.H. p. 5 503, 504 (1996) (passing reference to constitutional claim

legal argument citing federal constitutional authority in support of his position, Constitution that he contends has been violated, nor offered a fully developed violated. Since the defendant has neither specified any portion of the Federal Constitution and Part I, Articles 11 and 14 of the State Constitution will be under RSA 669:3 p. 5 5, his rights under unspecified provisions of the Federal The plaintiff contends, in passing, that if he is denied standing to pursue relief Before concluding, we address the plaintiff’s constitutional arguments.

from other members of the community. Here, the plaintiff did not. must have sustained a direct injury that somehow differentiates him or her similar cases is that, consistent with our holding today, the “person aggrieved” and ellipses omitted)). The upshot of Goldberg, Barksdale, Cassube and tax commission granting an abatement to a particular taxpayer.” (quotation right to appeal or to contest by other means the administrative decision of the considered sufficient, has not given to city officials or to other taxpayers the Cassube v. Maynard, 112 N.H. 229, 231 (1972) (“[T]he legislature, for reasons abatement. Barksdale v. Town of Epsom, 136 N.H. p. 5 511, 514 (1992); accord