2015-0264, Jeremy Olson & a. v. Town of Grafton

and injunctive relief against the defendant, the Town of Grafton (Town). On Thomas Ploszaj, Christopher Kairnes, and Howard Boucher, for declaratory Court (MacLeod, J.) denying a petition filed by Olson and his co - plaintiffs, BASSETT, J. P laintiff Jeremy Olson appeal s an order of the Superior

brief, and Laura Spector - Morgan orally), for the defendant. Mitchell Municipal Group, P.A., of Laconia (Steven M. Whitley on the

filed no brief. Plaintiffs Thomas Ploszaj, Christopher Kairnes, and Howard Boucher

orally), for plaintiff Jeremy Olson. B.D. Ross Law Office, of Manchester (Brandon D. Ross on the brief and

No. 2 015 - 0264 Grafton

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, Concor d, 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 p. 2 22 as 2

recommend this artic le.” On February p. 2 27, in response to citizen concern plaintiffs’ warrant articles, was the notation: “The Selectmen do n ot annual T own meeting. On the official ballot, appearing below each of the unanimous ly. On January 26, the selectboard signed the warrant for the relative to each of the plaintiffs’ warrant articles. The motion passed ballot include the phrase “the Selectmen do not recommend this article” At the January 20 meeting, o ne sele ctboard member moved that the

otherwise required by RSA 3: VI. Warrant, except for Warrants that appropriate funds or are (Selectmen) from placing any opinion of any Warrant Article on the 3 p. 2 2) To see if the Town will vote to preclude the Select Boar d

legislation to repeal the licensing of dogs. Steven Darrow, Robert Hull and Jeffrey Shackett to propose 31) To see if the Town will vote to instruct State Representative[s]

. . . .

equipment previously received. require the immediate sale at public auction of any military accepting any Federal military equipment in the future and to p. 2 25) To see if the Town will vote to preclude the Town from

Agency (NSA). the use of any Town funds to coopera te with the National Security p. 2 24) To see if the Town will vote to preclude any Town official and

. . . .

United States Constitution. (marijuana) in compliance with Article IX and Article XIII of the prosecute any matter relating to the use or possession of cannabis 17) To see if the Town will vote to instruct the Chief of Police to not

The plaintiffs’ articles included: including p. 2 20 articles that the plaintiffs had petitioned to include on the ballot. placed on the ballot for the annual Town meeting scheduled for March 10, member selectboard reviewed and discussed the 36 warrant articles to be The relevant facts follow. On January 20, 2015, the Town’s three -

include on the ballot. We affirm. each of the plaintiffs’ p. 2 20 warrant articles, which the plaintiffs had petitioned to meeting the phrase, “The Selectmen do not recommend this article,” below lawful for the Town to include on the official ballot for the annual T own app eal, Olson argue s that the trial court erroneously determined that it was p. 3 3

or 2 percent of the registered voters in town, whichever is less, Upon the written application of 25 or more registered voters

plaintiffs’ warrant articles. RSA p. 3 39:3 provides, in pertinent part: (2000) to insert its recommendations on the official ballot below each of the Olson first argue s that the selectboard lacked authority under RSA 39:3

beyond the statute itself for further indications of legislative intent. Id. When the language of a statute is plain and unambiguous, we need not look have said or add language that the legislature did not see f it to include. Id. from the statute as written, and will not consider what the legislature might according to its plain and ordinary meaning. Id. We interpret legislative intent to the language of the statute itself, and, i f possible, construe that language expressed in the words of the statute considered as a whole. Id. We first look interpretation, we are the final arbiter of the intent of the legislature as novo. Petition of Malisos, 166 N.H. 726, 729 (2014). In matters of statutory statutory interpretation. We review the trial court’s statutory interpretation de Our resolution of t he issues on appeal require s that we engage in

(1990) (quotation omitted). evading review.” Appeal of Hinsdale Fed. o f Teachers, 1 p. 3 33 N.H. 272, 276 issues that are of pressing public interest and are “capable of repetition yet meeting are now moot, Olson’s appeal is not moot because it presents legal plaintiffs raised in the trial court with regard to the March 20 15 annual and consider the plaintiffs’ request for attorney’s fees. Although any issues the trial court with instructions to grant permanent, prospective injunctive relief court’s determination that the selectboard acted lawfully and remand to the March 2015 annual meeting. Instead, he request s that we reverse the trial On appeal, Olson do es not seek to invalidate the votes taken at the

and this appeal followed. plaintiffs unsuccessfully moved for reconsideration of the trial court’s decision, appropriations, was defeated by a vote of 81 in favor and 292 opposed. The any Warrant Article on the Warrant,” except for articles concerning whether the Town would preclude the selectboard from “placing any opinion of plaintiffs’ warrant articles by large margins. For instance, t he article asking At t he annual meeting held thereafter, t he voters rejected all of the

Town to place recommendations on any warrant article. March 9, denied the petition, concluding that RSA p. 3 32:5, V - a authorizes the declaratory relief. The trial court held a final hearing on offers of proof and, on On March 5, the plaintiffs filed their petition for injunctive and

recommendations on the official ballot. warrant articles, the selectboard met and voted unanimously to retain those about the selectboard’s inclusion of its recommendations on the pla intiffs’ p. 4 4

the legal validity of any appropriation otherwise lawfully made; and (c) Defects or deficiencies in these notations shall not affect

budget committee; shall be calculated based upon the initial recommendations of the 10 percent limitation on expenditures provided for in RSA 32:18 for the second session of the meeting provided, however, that the article and the revised recommendation shall appear on the ballot recommenda tion on the amended version of the special warrant and the budget committee, if one exists, may revise its in an official ballot referendum municipality, the governing body (b) If the article is amended at the first session of the meeting

recommended by the budget committee; is a budget committee, a notation of whet her or not it is appropriation is recommended by the governing body, and, if there (a) The article shall contain a notation of whether or not that

special warrant article: governing b ody or by petition, appears in the warrant as part of a When any purpose of appropriation, submitted by a

warrant articles. Under RSA 32:5, V: forms, certain procedural requirements, and the preparation of budget - related the preparation of municipal budgets and includes details regarding budget municipal budget s. See RSA ch. 32 (2000 & Supp. 2015). RSA 32:5 concerns (Supp. 2015) to insert its recommendations. RSA chapter 32 pertains to Olson next assert s that the selectboard had no authority under RSA 32:5

Vogel, 137 N. H. 321, 322 (1993). 39:3 and conclude that they do not warrant further discussion. See Vogel v. themselves. We have reviewed Olson’s remaining arguments regarding RSA plaintiffs’ warrant articles, constituted “textual changes” to the articles recommendations, which appeared in bolded, italicized text below each of the those articles and, therefore, violated RSA 39:3. We disagree that the the plaintiffs’ warrant articles constituted more than “minor textual changes” to (Emphasis added.) Olson contend s that the selectboard’s recommendations on

required. petitioned article with only such minor textual changes as may be the selectmen shall insert in their warrant for such meeting the the fifth Tuesday before the day prescribed for an annual meeting, sufficient, presented to the selectmen or one of them not later tha n although in no event shall fewer than 10 registered voters be p. 5 5

warrant articles.’” The Town asserts that RSA 32: p. 5 5, V - a expressly authorize s a limited to just budgetary items or special warrant articles, but [pertains] to ‘any against recommendation [s] as tallies on the warrant, and . . . [that] this is not that [the] town meeting may require the selectmen to record their votes for or The Town counters that the plain language of RSA 32:5, V - a “indicat es

warrant article.” “any warrant articles,” that phrase does not “literally mean[ ] every possible Accordingly, Olson conclude s that, although RSA 32: p. 5 5, V - a uses the phrase official ballot for warrant articles that do not pertain to the budget. selectboard has no statutory authority to insert its recommendations on the 32:5, V requires recommendations only for budget - related articles, a RSA 32:5, V - a does not refer to selectboard recommendations and because RSA matters — allows recommendations to be printed.” Olson reason s that, because numerical tallies. . . . [O]nly . . . RSA 32:5, V — explicitly restricted to budgetary 32:5, V - a says nothing of recommendations[;] [i]t allows the reporting of warrant article that is un related to the town budget. Olson assert s: “RSA not authorize a selectboard to include its recommendation regarding any “authorizes only ‘numerical tallies, ’ not recommendations,” and, therefore, does Olson argue s that RSA 32:5, V - a is “limited t o budgetary matters” and

(Emphases added.)

may do so on its own initiative. warrant next to the affected warrant article, the governing body to require such tallies to be printed in the town or school district body has voted otherwise, if a town or school district has not voted warrant next to the affected warrant article. Unless the legislative shall be printed in the town, school district, or village district shall be recorded votes and the numerical tally of any such vote governing body relative to budget items or any warrant art icles village districts without a budget committee, all votes of the committee, and the governing body or, in towns, school districts, or committee, a town, school district, or village district budget district may vote to require that all votes by an advisory budg et The legislative body of any town, school district, or village

RSA 32: p. 5 5, V - a provides:

by the meeting” a nd meets certain requirements. (Quotation omitted.) the warrant f or an annual or special meeting which proposes an appropriation RSA 32:3, VI (Supp. 201 p. 5 5) defines a “[s]pecial warrant article” as “any article in

of this section. shall be subject to the hearing requirements of paragraphs I and II (d) All appropriations made under spec ial warrant articles p. 6 6

that also include a required recommendation from the same boards.” Relative committee to include the numeric vote total s on the municipal budget reports response to a constituent “who asked the local board of selectmen and budget bill that resulted in RSA 32:5, V - a, Senate Bill (SB) 58, was proposed in Id. A s the co - spo nsor of the bill explained at a senate committee hearing, the

printed in the town warrant next to the affected warrant article. recorded votes and the numerical tally of any such vote shall be governing body relative to budget items or warrant articles shall be body or, in towns without a budget committee, all votes of the budget committee, a town budget committee, and the governing Any town m a y vote to require that all votes by an advisory

V - a provided: items and warrant articles. See Laws 2007, 305:1. As first enacted, RSA 32:5, RSA 32:5, V - a was first enacted in 2007, and applied only to budget

budget. Accordingly, we examine legislative history to aid our analysis. to apply to all warrant article s, including warrant articles not related to the word “any” to refer to “warrant art icles,” the legislature intended RSA 32:5, V - a arguably, it could have easily said so. Thus, it is unclear whether, by using the intended RSA 32:5, V - a to apply only to budget - related warrant articles, include. See Pet ition of Malisos, 1 p. 6 66 N.H. at 729. Moreover, if the legislature as written, and may not add language to it that the legislature did not see fit to articles.” On the other hand, we must interpret the language of RSA 32:5, V - a the word “any” was intended to refer to “any appropriation - related warrant RSA 32:5 in particular, upon the preparation of municipal budgets, arguably, applies.” Given that purpose and the focus of RSA chapter 32 in general, and and spending public funds in all municipal subdivisions to which this chapter legislature’s . . . purpose to establish uniformity in the manner of appropriating in RSA 32:1 (2000), which provides, in pertinent part, that “[i]t is the Here, the purpose sought to be advanced by RSA chapter 32 is set forth

be advanced by the statutory scheme.” Id. (quotation omitted). and to interpret statutory language in light of the policy or purpose sought to N.H. 232, 239 (2015). “This enables us to better discern the legislature’ s intent 32:5, V - a in the context of the overall statutory scheme. See Holt v. Keer, 1 p. 6 67 statute as a whole.” Id. (quotation omitted). Similarly, we must interpret RSA consider words and phrases in isolation, but rather within the context of the s ee Hogan v. Pat’s Peak Skiing, LLC, 168 N.H. 71, 73 (2015). “[W] e do not Dictionary 97 (unabridged ed. 2002), we cannot int erpret th is word in isolation, means “one, no matter what one: EVERY,” Webster’ s Third New International We conclude that RSA 32:5, V - a is ambiguous. Although the word “any”

meeting has not required them to do so.” selectboard “to make and insert recommendations, in the event that town p. 7 7

with money articles only. Associa tion]: This is only under RSA 32 so I would say it deals warrant articles also? [Judy Silva, New Hampshire Municipal Rep. Patten: This doesn’t mean just budget items but other

exchange: Committee on Municipal and County Government as a result of the following the word “any” to the phrase “warrant articles” was made by the House Jour. 141 (2009); see also N.H. S. Jour. 123 - 24 (2009). T he suggestion to add articles” after SB 38 was sent to the H ouse of Representatives. See N.H.H.R. Id. (emphases added). The word “any” was added to the phrase “warrant

governing body may do so on its own initiative. in the town warrant next to the aff ected warrant article, the article. If a town has not voted to require such tallies to be printed shall be printed in the town warrant next to the affected warrant shall be recorded votes and the numerical tally of any such vote governing body relative to budget items or any warrant articles body or, in towns without a budget committee, all votes of the budget committee, a town budget committee, and the gov erning Any town may vote to require that all votes by an advisory

amended, RSA 32:5, V - a provided: In 2009, RSA 32:5, V - a was amended by SB 38. See Laws 2009, 2:1. As

elected officials are voting.” Id. (statement of Sen. John S. Barnes). should be able to see what the vote was.. . . People should know how their didn’t they agree to that?’ They shouldn’t have to go through that stuff. They voters that sho w up have to ask, ‘Gee, did the selectmen all agree to that or Id. at 2 (quotation omitted). The other co - sponsor of SB 58 reiterated, “[T]he

easier on the public . . . . the numeric votes for budget recommendations in order to make it vo ted for what. . . . The local boards need to be forthcoming with town halls to ask for the numeric vote and, in some cases, ask who budget for the public to see. This forces the public to go to the members on them and often do not express a numeric vote on the Many of the New Hampshire budget committees have several

sponsor further explained: http://gencourt.state.nh.us/SofS_Archives/200 p. 7 7/senate/SB5 p. 8 8S.pdf. The co - Joseph D. Kenney) (quotation omitted), available at Sen. Comm. on Pub. & Mun. Affairs 1 - 2 (January 30, 2007) (statement of Sen. to the Recommendation for the Town Budget: Hearing on S.B. 58 Before the 8

without also including the numerical tall y of its u nanimous vote. including its recommendation below each of the plaintiffs’ warrant articles opinion as to whether the selectboard in this case v iolate d RSA 32:5, V - a by Hogan, 16 p. 8 8 N.H. at 75. Because the issue is not before us, we express no constitutional limitations, to amend the pertinent statutes as it sees fit. See the legislature disagrees with our statutory interpretation, it is free, subject to . . . warrant next to the affected warrant article.” RSA 32:5, V - a. Of course, if selectboard to include both its vote tall y and its recommendation “in the town its vote, RSA 32:5, V - a. Accordingly, we hold that RSA 32:5, V - a empowers a also empowering it to inform the electorate of the recommendation reflected by tallies “in the town. . . warrant next to the affected warrant article,” without conclude that it would be illogical to empower a selectboard to include its vote absu rd or illogical result,” Favazza v. Braley, 160 N.H. 349, 351 (2010), and presumption “that the legislature would not pass an act that would lead to an T o interpret the two statutes as congruent, we rely upon our

V, when it amended RSA 32:5, V - a, the two statutes appear to be incongruent. “special warrant article[s].” Because the legislature did not amend RSA 32:5, recommendation s on the official ballot, it applies only to appropriation - related the ballot. Although RSA 32:5, V mandates th at the selectboard include its official ballot. It does not speak to including selectb oard recommendations on concerns only the printing of “the numerical tally” of selectboard votes on the The legislative history also demonstrates, however, that RSA 32:5, V - a

(2009). value with them, and they’d like those v ote tallies as well.” N.H.S. Jour. 123 articles, and there are warrant articles before towns that don’t have a dollar articles, because the . . . original bill dealt with budgetary, financial warrant amendment as follows: “The House simply added the word ‘any’ before warrant returned to the Senate, Senator Bragdon, a sponsor of SB 3 p. 8 8, explained the all warrant articles, not “money articles only.” Id. When the amended bill was As the exchang e demonstrates, the word “any” was intended to refer to

http://gencourt.state.nh.us/SofS_Archives/2009/house/SB3 p. 8 8H.pdf. (emphasis added), available at on S.B. 38 Before the H. Comm. on Mun. & Cnty. Gov’t (February 11, 200 9) Relative to Placing Vote Tallies on Town and School District Ballots: Hearing

Bragdon: As long as it doesn’t slow the process. Rep. Patten: Would Sen Bragdon be upset if we add this?

only with the tally, not the recommendation. policy. I think other statutes need to be examined since this deals articles?’ Silva: You can do what you want to determine the Rep. Patten: Possible to put in the wording ‘all warrant p. 9 9

DALIANIS, C.J.