2007-174, KEN GRANT & a. v. TOWN OF BARRINGTON

The petitioners, Ken Grant and Robert Ott, appeal an order of

orally), for the respondent. Mitchell & Bates, P.A., of Laconia (Judith E. Whitelaw on the brief and

orally), for the petitioners. to press. Errors may be reported by E-mail at the following address: Soltani/Mosca P.L.L.C., of Epsom (Tony F. Soltani on the brief and

editorial errors in order that corrections may be made before the opinion goes No. 2007-174 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Strafford 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 22 as first session, subject to the following limitations:

p. 2 40:10, II shall not apply. Warrant articles may be amended at the

action on the restricted article until the second session, and RSA to restrict reconsideration shall be deemed to prohibit any further explanation, discussion, and debate of each warrant article. A vote

not be amended. (a) Warrant articles whose wording is prescribed by law shall

statutory interpretation. Accordingly, our standard of review is RSA 40:4, 40:4-a, 40:4-b, 40:4-f, and 40:6-40:10, shall consist of 2007) to this case. As the trial court noted, resolution of this case involves The first session of the meeting, governed by the provisions of warrant article and therefore permissible; and (2) applying RSA 32:10 (Supp. RSA 40:13, IV provides:

250 (2006) (quotation omitted). Town of Barrington at taxpayer’s expense. meanings to the words used.” means of private investors and private developers and not by the Lacasse v. Spaulding Youth Ctr., 154 N.H. 246, examine the language of the statute and ascribe the plain and ordinary drains, utilities, etc.) of said town center/village district shall be by intent as expressed in the words of the statute considered as a whole. We first “In matters of statutory interpretation, we are the final arbiter of legislative Nenni v. Comm’r, N.H. Ins. Dept., 156 N.H. ___, ___, 938 A.2d 116, 119 (2007).

determining that the amendment was within the subject matter of the original On appeal, the petitioners argue that the trial court erred in: (1)

deliberative session.” Barrington acted within their authority to amend warrant articles at the denied the petition for injunctive relief, ruling that “the voters of the Town of landscape development (i.e. road, streets, water, sewer, storm article as originally worded on the ballot for the second session. The trial court The petitioners sought an injunction to require the town to place the

article by deleting all of the language except the introductory phrase “To see.” held on February 3, 2007. At that session, a motion passed to amend the The question appeared as submitted on the warrant for the deliberative session

To see if the Town of Barrington will vote that infrastructure and

warrant for town meeting: The petitioners submitted the following question for placement on the no subject matter? p. 3 it is one with wording prescribed by law), be validly amended to have effectively 3

matter to be acted upon at a town meeting “is to inform the inhabitants of the

question: can a warrant article, regardless of its original subject matter (unless matter of every proposed Warrant Article.” This merely restates the pertinent nothing is within this subject matter, then nothing is always within the subject same subject matter as a village center. By an extension of the same logic, if voters. The purpose of RSA 39:2’s requirement that a warrant state the subject the amendment may not add a subject matter not originally noticed to the RSA 32:18-a. amendment must be within the same subject matter as the original, but that would violate the provisions of RSA 32:18, except as provided in amendment of warrant articles contained in RSA 39:2 is not that the Contrary to the petitioners’ premise, the implicit restriction upon

They contend that “the trial court erroneously found that nothing is within the its substance is not “within the same subject matter” as the original article. proposed Warrant Article.” They assert that an article amended so as to delete under the municipal budget act no increase shall be valid which vote. agreement that an amendment “may not change the subject matter of the increased by the vote of the town, provided further that in a town provided that the amended article is placed upon the official ballot for final On appeal, the petitioners describe this “common understanding” as an

addressed at the deliberative session.” voters may not vote onto the ballot subjects which were not noticed to be parties reached a “common understanding, with which the court agrees, that The trial court noted that from the principles embodied in these statutes, the

the sum of money appropriated thereunder may be decreased or unless the wording is prescribed by law, a restriction not applicable here, and the warrant calls for the appropriation of a specific sum of money, thereof is so stated. Provided that in a case where the article in law to be made at such meeting, shall be valid unless the subject at any meeting, except the election of any town officer required by meeting shall be distinctly stated in the warrant, and nothing done The subject matter of all business to be acted upon at the town

Also relevant to this case is RSA 39:2 (2000), which provides in part:

Thus, amendment of warrant articles at the deliberative session is authorized

official ballot for a final vote on the main motion, as amended. (b) Warrant articles that are amended shall be placed on the amending an article to delete the entire subject thereof.

p. 4 effectively removing a subject from consideration at the second session by RSA 40:13, IV or RSA 39:3 that prevents voters at the deliberative session from

the subject of this litigation is on the ballot as amended.” We find nothing in satisfied: the court noted it was undisputed that “the warrant article which is appropriated for a specific purpose, the governing body may main motion, as amended.” The trial court specifically found this requirement

meeting that make it necessary to expend more than the amount of the notice requirement,” and was not contrary to RSA 39:2. that are amended shall be placed on the official ballot for a final vote on the was not noticed on the warrant, . . . the amendment did not violate the purpose because “[t]he article as amended did not contain a new subject matter that

whether they were interested in attending the deliberative session. I. If changes arise during the year following the annual number of registered voters. RSA 40:13, IV requires that “[w]arrant articles based upon the timely submission of the written application of a specified part: very amendment that deleted its substance. We agree with the town that grants a “right to have an article inserted in the warrant” for a town meeting We find support for this interpretation in RSA 32:10, which provides, in deprive the voters or take final action on the same.” We disagree. RSA 39:3

therefore did not have an opportunity to consider when deciding

discuss and participate in any business pertaining to that article, including the voters had the opportunity to attend the deliberative session to consider, assert that “[t]he deliberative session, by law, may amend articles but may not in the town center/village district should attend the deliberative session. Such RSA 40:13, IV. Citing RSA 40:13, IV and RSA 39:3 (2000), the petitioners in the alternative, was a vote to restrict reconsideration of the article under amendment at all[,] [b]ut . . .was a final vote on the entire Warrant Article,” or, The petitioners next argue that “the proposed amendment was not an

subjects being addressed about which they had no notice and the voters who decided not to attend the first session from new inserted into the articles at the deliberative session. This protects

interested in the funding source for infrastructure and landscape development The original warrant article adequately notified voters that those

is to ensure that subjects that were not noticed to voters are not [t]he prohibition against changing the subject of a warrant article

town that, with respect to SB 2 towns, Justices, 101 N.H. 544, 545 (1957) (quotation omitted). We agree with the business upon which they are called to act in the meeting.” Opinion of the upon an express grant of authority by RSA 32:10. p. 5 alternative justification for its ruling, and our analysis above does not depend as the trial court’s interpretation of RSA 32:10 provided essentially an 5 article to delete its substance. We need not address this argument, however,

session of the opportunity to vote on that purpose. transferred to or expended for such purpose. its purpose, which, in an SB 2 town, would deprive the voters at the second Thus, RSA 32:10 implicitly recognizes authority to amend an article to delete RSA 32:10, I(e) expressly granted voters the authority to amend the warrant meeting from having a meaningful vote on the original proposed appropriation.” and the right to due process and equal protection under the law guaranteed the petitioners of the right to franchise, the right to petition their government article to the voters “deprived the rights of the citizens of Barrington along with further discussion, that the town’s failure to present the original warrant In the concluding paragraph of their brief, the petitioners assert, without

which no appropriation is made, and no amount shall be separate article, that purpose or article shall be deemed one for

The petitioners next contend that the trial court erred in concluding that to zero or does not approve an appropriation contained in a notes, that action “necessarily deprives the voters at the second session of town purpose, or reduces the amount appropriated for that purpose an appropriation only at the deliberative session. As the town also correctly recognized by RSA 32:10. in an SB 2 town, the voters may delete a purpose of appropriation or “zero out” RSA 40:13, IV, RSA 39:2 or RSA 39:3 to nullify an authority implicitly both eviscerate the purpose of the article.” The town correctly points out that, v. Town of Newington, 142 N.H. 804, 806 (1998). We therefore decline to read to reasonable results and do not contradict each other.” Sprague Energy Corp. We construe statutes, “[w]here reasonably possible, . . . so that they lead

appropriations, provided, however, that if the meeting deletes a affect the governing body’s legal authority to transfer warrant article or budget, but such a separate vote shall not

analogous to an amendment that reduces a proposed appropriation to zero – individual purposes of appropriation contained within any The town contends that the amendment to the article at issue here “is

(e) The town or district meeting may vote separately on

. . . .

some other appropriation, provided, however, that: transfer to that appropriation an unexpended balance remaining in p. 6 6

concurred.

neither by argument nor by authority . . . warrant[] no extended consideration.”

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

the petitioners’ constitutional claims. Keenan v. Fearon, 130 N.H. 494, 499 (1988). Accordingly, we need not address

Constitution.” “[O]ff-hand invocations of the State Constitution . . . supported under . . . Articles 1, 2, 7, 11, 14 and 32 of Part I of the New Hampshire