2010-448, James Baer & a. v. New Hampshire Department of Education & a.

No. 2010-448

Merrimack

an order of the Superior Court (Sullivan Upton & Hatfield, LLP DALIANIS, J. The petitioners, James Baer and Charles Russell, appeal

a

Charles A. Russell declaratory judgment. We affirm.

Michael A. Delaney

District. O’Shaughnessy on the memorandum of law), for respondent Concord School

Department of Education. attorney general, on the memorandum of law), for respondent New Hampshire 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 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 declaratory judgment statute set forth in RSA 491:22. See p. 2 threshold matter, meet the requirements for standing under the general Declaratory judgment actions brought pursuant to RSA 541-A:24 must, as a (2007) and their constitutional challenges under RSA 491:22 (2010). The petitioners bring their rulemaking challenges under RSA 541-A:24

Wolfeboro Planning Bd., 157 N.H. 94, 96 (2008). dispute, we review the trial court’s determination de novo. Johnson v. Town of Board, 134 N.H. 401, 403-04 (1991). Because the underlying facts are not in of standing is one such defense. See Ossipee Auto Parts v. Ossipee Planning relief.” Id. at __ (quotation omitted). A jurisdictional challenge based upon lack the facts, whether the plaintiff has sufficiently demonstrated his right to claim look beyond the plaintiff’s unsubstantiated allegations and determine, based on plaintiff’s legal claim but, instead, raises certain defenses, the trial court must “[W]hen the motion to dismiss does not challenge the sufficiency of the Town of Plainfield, 160 N.H. __, __ (decided July 20, 2010) (quotation omitted). sufficiently establish a basis upon which relief may be granted.” Atwater v. determine whether the allegations contained in the plaintiff’s pleading “Generally, in ruling upon a motion to dismiss, the trial court must

appeal followed. the allegations were identical to the dismissed claims against DOE. This District. The court denied the motion, stating that the claim was moot because the petitioners moved to amend their petition to include a claim against the The trial court dismissed the petition for lack of standing. Thereafter,

Governor, 138 N.H. 183, 184 (1993). adequate education. See N.H. CONST. pt. II, art. 38; Claremont School Dist. v. the minimum lot size violated the State’s duty to provide a constitutionally the motion to dismiss was pending, the petitioners added a claim that waiving other reasons, that the petitioners lacked standing to bring the action. While intervened in the action. The respondents moved to dismiss asserting, among New Hampshire Constitution. See N.H. CONST. pt. I, art. 37. The District RSA 21-N:9, II(c) (2000) and violated the Separation of Powers Clause of the a declaration that the waiver rules exceeded DOE’s rulemaking authority under The petitioners, taxpayers of the City of Concord, filed a petition seeking

granted the District’s waiver requests. with respondent New Hampshire Department of Education (DOE). DOE rules) the District filed two applications for waiver of the lot size requirements Rule, Ed 321.03(f)(1). Pursuant to Rules 321.03(g) and 321.30 (the waiver minimum lot size requirements set forth in New Hampshire Administrative District’s elementary schools. The lot sizes of two schools did not meet the District (the District) approved plans for the construction and renovation of the The record reveals the following facts. Respondent Concord School set of facts, and it cannot constitute a request for advice as to

p. 3 financial loss to the town. Green v. Shaw of it, unless he shows that some dependent upon showing that the illegal acts of the public officials resulted in a 491:22. “A party will not be heard to question the validity of a law, or any part unlawful acts of their public officials, even when the relief sought was not 3 judgment action, a party must show “a present legal or equitable right.” RSA have permitted taxpayers to maintain an equity action seeking redress for the standing to bring a declaratory judgment action. Under one line of cases, we consistent with the language of RSA 491:22. To maintain a declaratory Our case law contains two conflicting lines of cases regarding taxpayer We find our more recent analysis of taxpayer standing to be more

adverse interests. The action cannot be based on a hypothetical definite and concrete touching the legal relations of parties having The claims raised in any declaratory judgment action must be

Asmussen, 145 N.H. at 587 (quotation omitted).

judgment action. See their rights are impaired or prejudiced in order to maintain a declaratory More recently, however, we have required taxpayers to demonstrate that

against city to prohibit city from taxing them for mobile home units). harmed because these “substandard” schools will be in their community. (taxpayers who owned mobile parks sought declaratory and injunctive relief meet minimum lot size standards. The petitioners also assert that they will be Meadows Mobile Homes v. City of Concord rules permit their taxpayer dollars to be used to finance schools that do not, 156 N.H. 394, 395 (2007) personal rights to bring a declaratory judgment action. See District. They assert that they will be harmed by the waiver rules because the, e.g., Green evident from the facts of recent cases that we require an impairment of The petitioners argue that they have standing as taxpayers of the tax). Even when we have not explicitly addressed taxpayer standing, it is required to establish they were harmed by the practical operation of challenged

Grinnell v. State, 121 N.H. 823, 825 (1981). purse is immediately touched.” Id. at 292 (quotation omitted); see also, e.g., preservation of an orderly and lawful government regardless of whether his have reasoned that “every taxpayer has a vital interest in and a right to the

enumerated in RSA 541-A:24. 491:22 will we consider their rulemaking challenges under the standard under RSA 491:22. Only if the petitioners demonstrate standing under RSA our analysis upon whether the petitioners have standing to bring these claims Comm’r, N.H. Dep’t of Safety, 145 N.H. 578, 587 (2000). Therefore, we focus p. 4 Mahmoud v. Irving Oil Corp. demonstrate that the appellant raised those issues before the trial court. with a record sufficient to decide the issues raised on appeal and to the trial court. It is the burden of the appealing party to provide this court petitioners have not pointed to, any evidence that this argument was made in intervention in this case. However, the record does not reflect, and the The petitioners also attempt to gain standing through the District’s

The petitioners appear to contend that Claremont impaired or prejudiced by the waiver rules. See status. They have not alleged that they have any personal rights that are still allege a present legal or equitable right, which they have failed to do here. The petitioners’ only basis for standing in this case is their taxpayer exception to the statutory requirements of RSA 491:22. The petitioners must Board of Education, 76 N.H. 296 (1912)). Claremont did not create an standing to enforce this right.” Claremont, 138 N.H. at 192 (citing Fogg v. rather is a right held by the public to enforce the State’s duty. Any citizen has constitution is not based on the exclusive needs of a particular individual, but Claremont states: “The right to an adequate education mandated by the violations of the constitutionally guaranteed right to an adequate education. the requirements of RSA 491:22 and confers standing to any person alleging

judgment action for lack of standing. prejudice their rights, the trial court properly dismissed this declaratory Because the petitioners failed to demonstrate how the waiver rules impair or were subject to challenged statute to maintain declaratory judgment action). tax); Asmussen, 145 N.H. at 587 (intervenors required to demonstrate they statute required to establish they were harmed by the practical operation of the 370-71 (taxpayers bringing declaratory judgment action challenging a tax to maintain standing in a declaratory judgment action. See Sirrell, 146 N.H. at interest other than one shared by all Concord taxpayers, which is insufficient

Id

declaratory judgment action under RSA 491:22. injury or an impairment of rights, is not sufficient to confer standing to bring a more recent case law. Accordingly, we hold that taxpayer status, without an have been impaired or prejudiced, those cases were implicitly overruled by our upon a party’s taxpayer status without any evidence that his personal rights we previously permitted a declaratory judgment action to proceed based only have the authority to circumvent this statutory requirement. To the extent that party is required to meet the standard articulated in RSA 491:22. We do not . (quotation omitted). Therefore, to bring a declaratory judgment action, a

through a decree of a conclusive character. which will permit an intelligent and useful decision to be made future cases. Furthermore, the controversy must be of a nature p. 5 5

in bad faith.” LaMontagne Builders v. Brooks attorney’s fees for an appeal, “if the appeal is deemed to have been frivolous or Supreme Court Rule 23 gives this court the exclusive authority to award precedent, and was filed only to delay the pending construction projects. appeal. The District argues that the appeal is frivolous, contrary to established DUGGAN, HICKS and CONBOY, JJ., concurred. The District seeks attorney’s fees and costs for having to respond to this

Therefore, we deny the District’s request for attorney’s fees. or in bad faith because it necessarily clarified our taxpayer standing case law. (quotation and ellipsis omitted). We cannot find that this appeal was frivolous

discussion. See Vogel v. Vogel, 137 N.H. 321, 322 (1993). argument and conclude that it lacks merit and warrants no extended decline to address this argument. We have reviewed the petitioners’ remaining