2009-791, City of Manchester v. Secretary of State & a.; Ryan Cashin & a. v. City of Manchester

No. 2009-791

Hillsborough-northern judicial district

Backus, Meyer & Branch, LLP

City Solicitor’s Office

brief and orally), for the petitioners, Ryan Cashin & a.

orally), for the City of Manchester.

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 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as consistent with the general laws of this state.” RSA 49-B:5-a, I (Supp. 2006) p. 2 administration for their review “to insure that [the proposed amendment] is the attorney general and the commissioner of the department of revenue report relative to the proposed charter amendment with the secretary of state, accordance with RSA 49-B:5-a, the City filed a certified copy of the preliminary Joseph Kelly Levasseur sufficient to require a public hearing pursuant to RSA 49-B:5, IV(a) (2003). In interlocutory transfer without ruling from the Superior Court (O’Neill with additional valid signatures, the deputy city clerk found that it was proposed amendment to the City of Manchester’s charter are before us on the budget adoption” (the spending cap). After the petition was supplemented Department of Labor for the calendar year immediately preceding the year of 2 the National Consumer Price Index – Urban as published by the United States amending the City’s charter to limit annual budget increases “to the change in Manchester (City) received a charter amendment petition that proposed are supported by the record. On July 30, 2008, the city clerk for the City of The following facts are recited in the interlocutory transfer statement or

Douglas, Leonard & Garvey, P.C. HICKS, J. These consolidated cases challenging the legality of a

Association, as amicus Supreme Court under Rule 33(2), on the brief and orally, for Nashua Taxpayers Fred S. Teeboom, non-lawyer representative appearing by approval of the

Sup. Ct. R. 9. We conclude that the amendment is invalid.

Wadleigh, Starr & Peters, PLLC

Administration.

Association, as amicus curiae. Gregory M. Sargent on the brief), for New Hampshire School Administrators

the brief), for Concord Taxpayers Association, as amicus curiae.

Advantage Coalition.

General and Commissioner, New Hampshire Department of Revenue general, on the brief and orally), for defendants Secretary of State, Attorney Michael A. Delaney, attorney general (Glenn A. Perlow, assistant attorney amendment conflicts with RSA 49-C:12, I.

p. 3 Whether the two-thirds override provision of the proposed charter

question of law: interlocutory transfer statement, on our own motion, to add the following (Capitalization omitted.) On October 6, 2010, we issued an order amending the

cap? D. Whether RSA 49-B expressly prohibits the legislation of a tax

and 47?

powers and duties vested in the city’s elected body by RSA 44

C. Whether the proposed charter amendment illegally impairs the

financial needs of the city?

mayor and aldermen with an original budget based upon the mayor’s duty under RSA 49-C:16 to present the city’s board of

B. Whether the proposed charter amendment illegally impairs the

amendment?

enacted under RSA 49-C:23 preempts the proposed charter

A. Whether the statutory scheme for municipal budget process

The trial court transferred the following questions of law:

was supplemented accordingly. judgment action with the City’s appeal and the interlocutory transfer statement City’s appeal. Subsequently, the trial court consolidated the declaratory interlocutory transfer without ruling to this court of certain questions in the judgment action. On September 15, 2009, the trial court authorized an 3 (NHTAC) moved to intervene in both the City’s appeal and the declaratory On September 8, 2009, New Hampshire Tax Advantage Coalition

profit organization Keep Manchester Moving. their own behalf as voters and citizens of Manchester and as part of the non- Josiette White, Michael Farley and Bonnie Doherty (the Cashin petitioners), on McCloskey, Benjamin Clifford, Kathy Desjardin, Scott Nichols, Maxine Mosley, petitioners Ryan Cashin, Richard Rothwell, Joseph Gallagher, David relief challenging the legality of the proposed amendment was filed by On August 20, 2009, a petition for declaratory judgment and injunctive

appealed that determination pursuant to RSA 49-B:10, IV (2003). they did not object to the proposed amendment. On July 6, 2009, the City attorney general’s office and the department of revenue administration, that (amended 2008). The secretary of state replied, on behalf of himself, the amendment as required by statute, see p. 4 The State agencies note that while they reviewed the proposed charter

validity of municipal charter amendments have employed both modes of City lacked authority to adopt the amendment. Our cases examining the argument in terms of preemption, while the Cashin petitioners argue that the C:23 invalidates the charter amendment at issue. The City frames its RSA 49-C:23. Both the City and the Cashin petitioners argue that RSA 49- We begin with the first transferred question, regarding preemption by

argues that the charter amendment does not conflict with RSA 49-C:12, I. from placing a spending cap in its charter. In its supplemental brief, NHTAC and the Cashin petitioners argue that, like the amendment at issue in City of charter to follow” and asserts that nothing in that statute prohibits the City powers and duties of the City’s elected body under RSA chapters 44 and 47 argues that RSA 49-C:23 merely “lay[s] out a basic structural form for a city In addition, the City argues that the amendment impermissibly impairs the the structure and formation of the City’s annual budget procedure.” It further scope of a permissible charter amendment under RSA chapters 49-B and 49-C. The NHTAC argues that the charter amendment “is simply a change to present a budget to the board of mayor and aldermen; and (3) exceeds the governing the budget process for cities; (2) interferes with the mayor’s duty to

with RSA 49-C:12, I. supplemental brief contending that the charter amendment does not conflict charter processes under RSA ch[apter] 49-C.” The State agencies also filed a preserved by RSA 49-C:15”; and (3) “falls within the scope of permissible the powers and duties of the elected body under RSA ch[apters] 44 and 47 intent underlying either RSA 49-C:23 or RSA 49-C:16; (2) does not “impair[] (1) neither expressly contradicts nor otherwise runs counter to the legislative Amendment at issue.” That interpretation is essentially that the amendment: “their interpretation of the issues raised by the City in the proposed Charter interest in the outcome of this matter.” They nevertheless filed a brief offering amendment: (1) is preempted by the comprehensive statutory scheme for or against the proposed Charter Amendment, and do not have a direct On appeal, the City and the Cashin petitioners argue that the charter RSA 49-B:5-a, I, they “do not advocate

I. petitioners argue that the charter amendment also conflicts with RSA 49-C:12, rather than the voters.” In their supplemental briefs, the City and the Cashin “derogates from the plenary authority granted to the governing body of a city Claremont v. Craigue, 135 N.H. 528 (1992), the charter amendment here

added question. (Capitalization omitted.) We also ordered supplemental briefing to address the p. 5 RSA chapters 49-B, 49-C and 49-D. See The legislation implementing the home rule amendment is embodied in

N.H. CONST. pt. I, art. 39.

approval of the voters of each such city or town on a referendum.

amendment,” Part I, Article 39 of the State Constitution. City of Manchester

Coco v. Jaskunas such charters or amendments shall become effective only upon the any way which is not in conflict with general law, provided that towns to adopt or amend their charters or forms of government in

The statutory scheme at issue implements the so-called “home rule

context of the overall statutory scheme. words used. We interpret statutes not in isolation, but in the The legislature may by general law authorize cities and N.H. at 667. RSA chapter 49-B “provides the statutory framework through

where possible, we ascribe the plain and ordinary meanings to provides in part: statute, we first examine the language found in the statute, and Sch. Dist. v. City of Manchester, 150 N.H. 664, 666 (2004). That amendment

omitted).

, 159 N.H. 515, 518-19 (2009) (quotations and citation

statutory scheme.” Town of Hooksett statute or otherwise runs counter to the legislative intent underlying a preemption will occur when local legislation either expressly contradicts a legislation is invalid if it is repugnant to, or inconsistent with, State law. Thus, the entire statutory scheme. When construing the meaning of a enacting them, and in light of the policy sought to be advanced by “The preemption doctrine flows from the principle that municipal Our goal is to apply statutes in light of the legislature’s intent in

well-settled rules: N.H. 164, 168 (2008) (quotation omitted). Accordingly, we apply the following interpretation and construction.” Lakeside Lodge v. Town of New London, 158 omitted). The preemption issue is, then, “essentially one of statutory

issue in preemption terms, we elect to address it under that rubric. constitutional provision”). However, since the transferred question couches the ability to enact such legislation has been preempted by either State statute or elected officials . . . necessarily involves an inquiry into whether the town’s town has the authority under RSA chapter 49-B to impose term limits upon 148 N.H. 625, 626 (2002) (stating that resolution of the issue of “whether the analysis, sometimes interchangeably. See, e.g., Town of Hooksett v. Baines, the city should follow when putting its charter together” and does not set forth p. 6 roadmap for the city to follow when initiating its own form of budget ordinances contends that this provision is “nothing more than a structural plan or authority of the City’s elected body to approve the City’s budget. NHTAC amendment conflicts with this provision, in particular, with the duty and sole The Cashin petitioners assert that the spending cap in the charter

any public hearing.

public hearing shall be published at least one week in advance of final adoption. A copy of the proposed budget and notice of the

II. One or more public hearings on the budget before its

charter. chief administrative officer if no such provision is made in the city as provided in the city charter, or as originally submitted by the adoption by the established date, the budget shall be determined budget shall be finally adopted by the elected body. Failing final I. A budget submission date and a date by which an annual

for [the mayor-board of aldermen] form of government.” City of Manchester We have noted that “RSA chapter 49-C sets forth an exhaustive blueprint

the following: Budget Process and Fiscal Control. The charter shall provide for

(Supp. 2009). RSA 49-C:23 provides in part: contain certain provisions relating to the city’s budget. See RSA 49-C:23 Sch. Dist., 150 N.H. at 668. In particular, it mandates that the city’s charter

49-C:8 (2003). aldermen comprise the City’s elected body. See RSA 49-B:2, IV(b) (2003); RSA City of Manchester Sch. Dist., 150 N.H. at 668. Thus, the mayor and board of of aldermen form of government as permitted under RSA chapter 49-C. See charter denominates it as a city and that the City has chosen the mayor-board 49-D (2003 & Supp. 2009) (town). We take judicial notice that Manchester’s that municipal form. See RSA ch. 49-C (2003 & Supp. 2009) (city); RSA ch. must prepare its charter according to the framework statutorily mandated for establish either a town or city government,” RSA 49-B:2, I (Supp. 2009), and Manchester Sch. Dist., 150 N.H. at 669. Specifically, a municipality “may list of forms of government that are available to municipalities.” City of and 49-D work in conjunction with RSA chapter 49-B by providing a limited Hooksett, 148 N.H. at 628 (quotation omitted). In turn, “RSA chapters 49-C grants them the power necessary to carry out such changes.” Town of which cities and towns may amend their actual forms of government, and p. 7 RSA 49-C:12, I; see

the board except in case of equal division.” counted to make a quorum of such board, nor vote as a member of

cases where the mayor is directly elected, the mayor shall not be

meetings upon pending measures without resigning the chair. In bills and initiate other measures at the meetings and to speak at business of the board. The mayor shall have the right to introduce majority shall constitute a quorum for the transaction of the

charter. The elected body shall establish its own rules, and a

and special meetings upon such notice as is required in the

days of the week, at such intervals, as the charter may designate

RSA 91-A. Regular meetings shall be held at such hours on such

meetings of the elected body shall be public in accordance with body, and the city clerk shall act as a clerk of the body. All

I. The mayor shall preside over all meetings of the elected

RSA 49-C:12, I, provides:

See mandating a two-thirds majority in specific instances bolster this conclusion. ordinary business by the vote of a simple majority. Other statutory provisions division” manifests the legislature’s intention that aldermanic boards conduct The admonition that the mayor may not vote “except in case of equal

business] matters.” We agree. be by majority vote” and “disallow[s] super-majority votes in . . . [general 7 concerning the business to come before a board of mayor and alderm[e]n . . . to assert, to the contrary, that RSA 49-C:12, I (2003) requires “decisions the City to pass its budget by a simple majority.” The Cashin petitioners majority. N. Singer, Statutes and Statutory Construction NHTAC also asserts that “[t]here is nothing in state law that forces 417 (7th ed. 2007) (“The budget because that body retains authority to override the cap by a two-thirds inconsistent with the board of mayor and aldermen’s authority to adopt a

meetings). (2003) (city may by charter amendment allow mayor to vote at city council of board of aldermen “except in case of an equal division.”); cf. RSA 49-C:12, II

NHTAC and the state agencies argue that a spending cap is not

the proposed amendment conflicts with this intent. City of Claremont, 135 N.H. at 531. Accordingly, we must examine whether legislature’s intent that the [city’s elected body] approve the annual budget.” we previously determined, however, that this provision “makes explicit the not determine how extensive or “inclusive” the mandates of RSA 49-C:23 are; spending restrictions on its government.” For purposes of this appeal, we need “all inclusive legislative mandates preempting the city from establishing p. 8 Remanded

override it, it conflicts with the board’s authority to adopt a budget, see concurred. the board to either abide by the spending cap or act by a two-thirds majority to BRODERICK, C.J., and DALIANIS, DUGGAN and CONBOY, JJ., amendment is inconsistent with state law. Because the amendment constrains unless otherwise specified by statute, we conclude that the proposed charter Having interpreted RSA 49-C:12, I, to require a simple majority vote

other arguments or the remaining transferred questions of law. affirmatively and, in light of this conclusion, we need not address the parties’ C:23. Accordingly, we answer the first and the added transferred questions therefore, that the spending cap is preempted by RSA 49-C:12, I, and RSA 49- 49-C:23, by the vote of a simple majority, see RSA 49-C:12, I. We conclude,

super-majority vote.” vote of a quorum to adopt a measure, it did so by a specific provision for such a wanted to deviate from the general requirement in RSA 49-C:12, I for a majority human services). Thus, as the Cashin petitioners assert, “when the legislature refinery in a city); RSA 48:20, III (2003) (establishment of office of director of 47:11-a, III (2003) (mass transportation); RSA 47:27, I (2003) (siting of oil thirds majority of board of aldermen required to override mayor’s veto); RSA budget as adopted.” RSA 49-C:23, VI (Supp. 2009); see RSA 45:9 (2003) (twopublic hearing and by a 2/3 vote, for purposes not included in the annual charter set forth “[p]rocedures for appropriation of funds, after notice and intended to use it broadly”). For example, RSA 49-C:23 itself directs that a city to be assumed that the Legislature, when using the word without limitation word “regulate” six times in a statute “with other words limiting its scope, it is v. Guertin, 89 N.H. 126, 128 (1937) (noting that where the legislature used the a thing is provided in one part of the statute and omitted in another.”); cf. State force of the maxim [expressio unius est exclusio alterius] is strengthened where