2009-527, Robert P. Hull & a. v. Grafton County & a.

appeal from an order of the Superior Court (Bornstein BRODERICK, C.J. The petitioners, Robert P. Hull and John J. Babiarz,

No. 2009-527

William L. O’Brien

Sheehan Phinney Bass + Green, P.A. Chair and Clerk of the Grafton County Convention (Convention). We affirm. the respondents, Grafton County, its Commissioners and Treasurer, and the and attorney’s fees, and granting the cross-motion for summary judgment of their motion for summary judgment, denying their request for equitable relief

respondents. and Karyl Roberts Martin on the brief, and Ms. Bailey orally), for the

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 p. 2 21 [m]eeting.” public far greater than any suffered as the result of improper notice of the May valid, the relief requested is inequitable because it would cause injury to the denied the petitioners’ request, ruling that “[e]ven if the petitioners’ claims are not just payment of the approved raises, to the County’s elected officials. It request for a preliminary injunction to enjoin the payment of any salaries, and In November, the trial court conducted a hearing on the petitioners’

the petitioners be awarded attorney’s fees. to review their compliance and provide periodic reports to the court, and that from further violations of the statutory provisions, that a monitor be appointed levels. Further, the petitioners requested that the respondents be enjoined be enjoined from raising, appropriating, or spending monies for the new salary had violated the cited statutory provisions, and requested that the respondents 23:7 had expired. The petitioners sought a declaration that the Convention meeting on July 21, as the deadline established to set the salaries under RSA Further, they alleged that the Convention could not ratify its actions at the May its May 21 meeting, thus rendering the Convention’s vote “legally ineffective.” failed to follow the notice requirements of RSA chapter 91-A and RSA 24:9-d for In October 2008, the petitioners filed suit, alleging that the Convention

$4,288.78. for the County Attorney, High Sheriff, Register of Deeds, and Treasurer was salary increase for the 2009 fiscal year resulting from the 2.3 percent increase meeting. The approved salaries took effect in January 2009; the aggregate met again on July 21 and voted to ratify the actions taken at the May 21 requirements of RSA 91-A:2, II and RSA 24:9-d. Subsequently, the Convention notice for the May 21 meeting was deficient because it failed to comply with the the petitioners, through counsel, informed the respondents’ counsel that the meeting, which the County’s counsel provided on June 30. Shortly thereafter, 2 On June 24, 2008, Hull requested documents related to the May 21

2008 fiscal year level. unanimously that the County Commissioners’ salaries should remain at the and Treasurer for the 2009 fiscal year. The Convention also voted percent the salaries of the County Attorney, High Sheriff, Register of Deeds, Convention adopted, by a vote of fifteen to three, a resolution to increase by 2.3 Record on May 16; no other public notice had been given. At the meeting, the officials. The meeting had been noticed in the State of New Hampshire House Convention met in Concord to vote on the salaries for Grafton County’s elected by the record. On May 21, 2008, eighteen of the twenty-six members of the The following facts were either found by the trial court or are supported

p. 3 filing date required under RSA 655:14 for the elected offices listed be established biennially by the county convention prior to the treasurer, and county commissioners. . . . Said compensation shall officers including the county attorney, sheriff, register of deeds,

salaries, benefits and other compensation paid to elected county

Every county convention shall have the power to establish

RSA 23:7 (2000) reads, in pertinent part:

entitled to judgment as a matter of law. Coco v. Jaskunas genuine issue of material fact exists, we determine whether the moving party is favorable to each party in its capacity as the non-moving party and, if no

interpretation of a statute is a question of law, which we review de novo. Id. (2009). Here, our decision turns on the interpretation of RSA 23:7. The

summary judgment rulings, we consider the evidence in the light most most part, their motion for summary judgment. In reviewing the trial court’s The petitioners first contend that the trial court erred in denying, for the

award the petitioners attorney’s fees. We address each argument in turn. mandatory injunction and the appointment of a monitor; and (4) failing to failing to grant the petitioners the equitable relief sought, including a knew of the May 21 meeting or that salaries were to be set at that meeting; (3) the absence of evidence that all potential candidates for the county offices meeting; (2) granting the respondents’ cross-motion for summary judgment in established by RSA 23:7 to set those salaries had expired prior to the July 21 vote on the salaries for the elected county officials, when the deadline the Convention had the authority on July 21, 2008, to ratify its May 21, 2008 The petitioners contend that the trial court erred in: (1) concluding that

circumstances presented.” This appeal followed. compliance, as the court found “no basis for granting such relief in the the statutory notice provisions and to appoint a monitor to ensure such trial court denied their request to enjoin future violations by the respondents of respondents. In response to the petitioners’ motion for reconsideration, the motion. Attorney’s fees were not awarded to either the petitioners or the motion with respect to all other issues, and granted the respondents’ cross- RSA chapter 91-A and RSA 24:9-d. The trial court denied the petitioners’ the May 21 meeting was not properly noticed and was conducted in violation of the trial court granted the petitioners’ motion solely to the extent of ruling that Subsequent to the parties filing cross-motions for summary judgment, words of the statute considered as a whole. In re Juvenile 2005-212 p. 4 interpretation, we are the final arbiter of legislative intent as expressed in the “was ineffective because it was defectively noticed.” In matters of statutory We first address the petitioners’ threshold argument that the May 21 vote

RSA 91-A:8, II (2001) provides that the superior court may regard to the consequences for a violation of its provisions regarding notice, 91-A:2, II or RSA 24:9-d. Although RSA 91-A:2, II (Supp. 2009) is silent with The May 21 meeting did not comply with the notice requirements of RSA

establish county compensation by vote well in advance of the June 13 deadline. 4 case, the Convention did, at the May 21 meeting and pursuant to RSA 23:7, 21 vote a nullity, as argued by the petitioners. Indeed, we reiterate that in this 23:7, however, provides that defective notice automatically rendered the May chapter 91-A “if the circumstances justify such invalidation.” We note that the requirements provided by other statutes. Nothing in the plain language of RSA did of a public body taken at a meeting held in violation of the provisions of RSA mandate is fulfilled by way of a meeting that did not comply with notice requirements of those statutes. It is also undisputed that the July 21 meeting June 13, 2008), the statute is silent with regard to the consequences if its considered a nullity.” is undisputed that the May 21 meeting did not comply with the notice invalidate an action officers be established prior to the filing date required under RSA 655:14 (here, vote — whether considered as a ratification or a new original action — must be We need not set forth here the text of either RSA 91-A:2, II or RSA 24:9-d, as it contend that, based upon the plain meaning of RSA 23:7, “the July 21, 2008 While RSA 23:7 mandates that compensation for certain elected county RSA 23:7 to set those salaries had expired prior to the July 21 meeting. They the salaries for the elected county officials, because the deadline established by the Convention had the authority on July 21, 2008, to ratify its earlier vote on The petitioners argue that it was error for the trial court to conclude that

following week a declaration of candidacy . . . . add words that it did not see fit to include. Id. at 766. 763, 765 (2007). We will not consider what the legislature might have said, or

between the first Wednesday in June and the Friday of the at the time of filing, and he shall file with the appropriate official party for a primary unless he . . . meets all the other qualifications The name of any person shall not be printed upon the ballot of any delineated in RSA 655:14 ended on Friday, June 13. comply with those same notice requirements, and that the time period

RSA 655:14 (2008) reads, in pertinent part: p. 5 N.H.S. Jour.

understand that it will not be reviewed while they serve in office. running, exactly what their salary will be and they will fully mean that anyone running for those offices will know, prior to biennium and it will take place prior to the election. This will

reviews of the elected officials will only take place once in the 5 The second aspect of [the bill] makes it possible that the salary

consulting legislative history.

1208-09 (1987). We cannot say that the trial court erred in

Senator Pressly stated: 1987, 223:1. Speaking on behalf of House Bill 62, which added the deadline, deadline. In 1987, the current deadline was added to the statute, see Laws biennially, but did not require them to do so before the candidates’ filing Prior to 1987, RSA 23:7 empowered counties to establish salaries

mode of enforcement). mandatory time limits, court looked to statutory goals to determine appropriate 551 (1994) (given statute’s silence regarding remedy for failure to abide by history to aid our analysis); Smith v. N.H. Bd. of Psychologists, 138 N.H. 548, 23:7. See of the clerk [of the convention] to give notice.” Cheshire v. Keene id. at 765-66 (if the statute is ambiguous, we will consider legislative 154 N.H. at 766. Here, the trial court looked to the legislative history of RSA “[s]ince the defendant ha[d] not shown that anyone was prejudiced by a failure the convention did not comply with the notice requirements of RSA 24:9-d, manner, but by way of an improperly noticed meeting. See Juvenile 2005-212, the action of a county convention, in response to a defendant’s assertion that to the consequences of county compensation being established in a timely for a violation of its provisions regarding notice. We have declined to invalidate It may be argued that the silence of RSA 23:7 creates an ambiguity with regard salaries by improperly applying legislative history to refute that plain meaning.” RSA 24:9-d (Supp. 2009) is also silent with regard to the consequences meaning of RSA 23:7 establishing a deadline of June 13, 2008 to set those The petitioners do contend that the trial court erred “in ignoring the plain

deficiency in notice for the May 21 meeting. 59 (1974). The petitioners have not argued that they were prejudiced by the

briefed are deemed waived). appellate review. See State v. Kincaid, 158 N.H. 90, 95 (2008) (arguments not trial court). Consequently, the petitioners have not preserved this issue for RSA 91-A:8, II, decision whether to invalidate action is within discretion of the See Lambert v. Belknap County Convention, 157 N.H. 375, 381 (2008) (under unsustainably exercised its discretion by not invalidating the Convention vote. petitioners have not, with regard to this issue, argued that the trial court triable issue offered as to whether this purpose was achieved. As

p. 6 material fact. Nor was there any evidence sufficient to create a if it is limited to notifying candidates, rises to a genuine issue of

supposed purpose of the salary-setting statute was achieved, even defense of ratification. They failed to provide any evidence that the

establish in the record, any genuine issue of fact supporting this The Respondents failed to demonstrate in the trial court, or

judgment by asserting the defense of ratification, must set forth specific that the respondents, in opposing the petitioners’ motion for summary May 21 meeting or that salaries were to be set at that meeting. They argue that all candidates and potential candidates for the county offices knew of the respondents’ cross-motion for summary judgment in the absence of evidence The petitioners next contend that the trial court erred in granting the

its May 21 vote. not consider whether the Convention had authority on July 21, 2008 to ratify deficiencies in notice did not render the Convention vote ineffective, we need of RSA 23:7 to support the petitioners’ argument. Having determined that the Consequently, we see nothing in the legislative history or statutory goals

error of the county convention. See effect of depriving elected county officers of any salary based upon a procedural requirements, while at the same time setting a deadline that could have the would be incongruous for the legislature to set these minimum salary those in effect on December 31, 1972. We agree with the trial court that it from establishing salaries for elected county officers at a lesser amount than Finally, we note that the plain language of RSA 23:7 forbids counties

illogical result.”). 159 N.H. 601, 609 (2010) (“We will not interpret a statute to require such an

course of a biennium due to an error in notice committed by a convention. and elected officials to significant changes in, or the loss of, salaries over the notice of their intent to run for office. It is not intended to expose candidates salaries for elected county officers are established before candidates must file vote with the filing date for candidates indicates an intention to ensure that vote a nullity. Instead, we believe that the statute’s linking of a convention’s legislative intent that defective notice automatically rendered the Convention’s trial court that nothing in the plain language of the statute indicates a improperly noticed meeting before the June filing deadline. We agree with the regarding the consequences of a convention’s vote on county salaries at an Nor do we find error in the trial court’s interpretation of the statute trial court may p. 7 future compliance with the statutes. RSA 91-A:8, III (2001) provides that the RSA 24:9-d and RSA chapter 91-A, and that a monitor be appointed to review petitioners’ request that the respondents be enjoined from future violations of The only issue remaining is whether the trial court erred in denying the

injunction against the payment of the salaries. the May 21 vote was valid. Consequently, the petitioners cannot obtain an meeting. We agree. More importantly, however, we reiterate our holding that greater than any suffered as the result of improper notice of the May 21 requested relief was inequitable because it would cause injury to the public far approved raises, to the County’s elected officials, the trial court ruled that the injunction to enjoin the payment of any salaries, and not just payment of the 91-A. In denying the petitioners’ request, in November 2008, for a preliminary appointment of a monitor, in light of the respondents’ violations of RSA chapter the petitioners the equitable relief sought, including an injunction and the The petitioners next contend that the trial court erred in failing to grant

asserted a defense of ratification. notice deficiencies, we need not consider whether the respondents properly As we have held that the May 21 vote was not rendered ineffective by the

defense of ratification in this case.

candidates, and therefore no record evidence supporting the

prejudice of his case. demonstrate that the ruling was unreasonable or untenable to the party asserting that a trial court order is unsustainable must equitable order for an unsustainable exercise of discretion. The deadline knowledge [of compensation levels] on the part of in the sound discretion of the trial court. We, in turn, review an The propriety of affording equitable relief in a particular case rests 7

. . . There was no evidence presented establishing such pre-

unsustainable exercise of discretion standard. See Lambert, 157 N.H. at 381. permissive in nature, we review the trial court’s decision under our As it is a general rule of statutory construction that the word “may” is

issue an order to enjoin future violations of RSA chapter 91-A.

in a factual void. without factual foundation. The defense of ratification was argued Respondents and analyzed by the trial court in the Order was

such, the factual basis for ratification as argued by the the public. p. 8 order to make the information available or the proceeding open to

provided that the court finds that such lawsuit was necessary in attorney’s fees and costs incurred in a lawsuit under this chapter public body, public agency, or person shall be liable for reasonable

proceeding to a person who reasonably requests the same, such

governmental record or refuses access to a governmental in violation of the provisions of this chapter, refuses to provide a

If any public body or agency or employee or member thereof,

RSA 91-A:8, I (Supp. 2009) states, in pertinent part:

continuing violations of the Open Meeting Law by the Respondents.

Petitioners and the public being freed from the disability of this lawsuit will in fact have been brought, and will result in, the

monitor to ensure future public notice and access), then possible future violations of RSA chapter 91-A and the appointment of a argue that if they are granted equitable relief (either or both the enjoining of award them attorney’s fees, pursuant to RSA chapter 91-A. Specifically, they See Finally, the petitioners contend that the trial court erred in failing to appoint a court monitor to police future compliance with RSA chapter 91-A. compelled either to issue the injunctive relief sought by the petitioners, or to V the July 21 meeting. Under all of these circumstances, the trial court was not notice, the Convention cured those defects by promptly and properly noticing they sought was an unsustainable exercise of discretion. 21 meeting. Further, the record indicates that when informed of the defects in say that the trial court’s decision to deny the petitioners the equitable relief Grafton County provided petitioner Hull with the documents relative to the May unreasonable or untenable to the prejudice of their case. As such, we cannot closed to the public nor secret. The record also reflects that, upon request, that the petitioners have demonstrated that the trial court’s ruling was State of New Hampshire House Record on May 16. The meeting was neither harm to the party seeking injunctive relief). Consequently, we do not believe issue unless there is, among other things, an immediate danger of irreparable Here, the record reflects that the May 21 meeting was noticed in the 437-38 (2007) (issuance of injunction an extraordinary remedy, and should not , e.g., ATV Watch v. N.H. Dep’t of Resources & Econ. Dev., 155 N.H. 434,

omitted). Foley v. Wheelock, 157 N.H. 32 p. 9 9, 332 (2008) (quotation, citations, and ellipsis 9

DALIANIS, DUGGAN, HICKS and CONBOY, JJ., concurred.

Affirmed.

award attorney’s fees. reject the petitioners’ argument and affirm the trial court’s decision not to to make the information available or the proceeding open to the public. We was not compelled to find that the petitioners’ lawsuit was necessary in order records concerning the meeting. Under these circumstances, the trial court they were either refused access to the May 21 meeting or denied access to any noticing the July 21 meeting. As such, the petitioners have failed to show that defects in notice, the Convention cured those defects by promptly and properly the May 21 meeting. Finally, the record is clear that when informed of the request, Grafton County provided petitioner Hull with the documents relative to neither closed to the public nor secret. The record also reflects that, upon case. Further, and as noted, the record reflects that the May 21 meeting was We have already upheld the trial court’s denial of equitable relief in this