City of Manchester v. State, No. 2012–338.

CourtSupreme Court of New Hampshire
Writing for the CourtPER CURIAM.
Citation163 N.H. 689,48 A.3d 864
Docket NumberNo. 2012–338.
Decision Date19 June 2012

163 N.H. 689
48 A.3d 864


No. 2012–338.

Supreme Court of New Hampshire.

Argued: June 6, 2012.
Opinion Issued: June 19, 2012.

[48 A.3d 867]

McLane, Graf, Raulerson & Middleton, P.A., of Manchester (Thomas J. Donovan on the brief and orally), for petitioners City of Manchester, Barbara E. Shaw, and John R. Rist.

Sulloway & Hollis, P.L.L.C., of Concord (Martin P. Honigberg and Jay Surdukowski on the brief, and Mr. Honigberg orally), for petitioners Mary Jane Wallner, Harold V. Lynde, Jr., Thomas Katsiantonis, Jean Sanders, Kathryn Miller, Patricia Martin, Joe Cicirelli, William Butynuski, Ph.D., William Donovan, Ginny Schneider, Michael Marsh, Peg Fargo, Joy K. Tilton, Roland Hofemann, Suzanne Gottling, Joseph Jesseman, Ron Geoffrey, Sr., Margaret Small–Porter, Brian T. Stern, Robyn St. Pierre, Jillian Dubois, Sinda Ullstrup, and Charles Townsend.

City Solicitor's Office, of Concord (James Kennedy and Danielle L. Pacik on the brief), for petitioner City of Concord.

The MuniLaw Group, of Epsom (Jason B. Dennis and Tony F. Soltani on the brief), for petitioners Marshall Lee Quandt, Tony F. Soltani, Matthew Quandt, Leo Pepino, Julie Brown, Steve Vaillancourt, Irene Messier, James Pilliod, M.D., James MacKay, Ph.D., Mary Ellen Moran–Siudut, M.S., David Pierce, Peter Leishman, Nicholas J. Lavasseur, Shaun Doherty, and Peter Schmidt.

Wescott, Dyer, Fitzgerald & Nichols, P.A., of Laconia (Peter V. Millham and Matthew D. Huot on the brief), for petitioners Town of Gilford, Peter V. Millham, and Leo B. Sanfacon.

Michael A. Delaney, attorney general (Anne M. Edwards, associate attorney general, and Stephen G. LaBonte, assistant attorney general, on the brief), for the attorney general.

Nixon Peabody LLP, of Manchester (David A. Vicinanzo and Anthony J. Galdieri on the brief, and Mr. Vicinanzo orally), for the intervenor, the New Hampshire House of Representatives, through its Speaker.

J. Miller & Associates, PLLC, of Concord (Christopher C. Buck on the brief), Allan B. Krans, Sr., of Dover, by brief, and Philip T. McLaughlin, of Laconia, by brief, for the City of Dover and Town of Meredith, as amici curiae.


[163 N.H. 694]These consolidated cases are before us on interlocutory transfer without ruling from the Superior Court ( Brown, J.). See Sup.Ct. R. 9. The petitioners, New Hampshire voters and the towns and municipalities in which some of them live, seek a declaration that Laws 2012, chapter 9, the law redistricting the New Hampshire House of Representatives (the Plan), violates the State Constitution. We conclude that such a declaration is unwarranted.

I. Background

The Plan redistricts the House based upon the 2010 census. It was passed by the House on January 18, 2012, and by the Senate on March 7, 2012. Appendix A to this opinion is a chart setting forth the

[48 A.3d 868]

Plan, which the court compiled from evidence in the record on appeal.

According to its statement of intent, the Plan represents “the culmination of months of research, public input, and discussion concerning how to appropriately apportion New Hampshire House seats [under] ... the 2010 census while complying with federal and state constitutional requirements.” Although the Governor vetoed the legislation, the legislature overrode his veto on March 28, 2012. Consistent with Part II, Article 9 of the State Constitution, the Plan sets the size of the House at 400 members. These representatives are divided among 204 legislative districts. Of these districts, ninety-one are single-town districts and seventy are multi-town [163 N.H. 695]districts. The remaining forty-three districts are “floterial” districts. A floterial district is a district that “floats above” several distinct single- or multi-member districts. Burling v. Speaker of the House, 148 N.H. 143, 150, 804 A.2d 471 (2002) (quotation omitted). In a single-member district, one representative is elected by the district's voters; in a multi-member district, voters elect more than one representative. Id.

This is not the first redistricting dispute we have been required to decide. In 2002, we were called upon to establish new district plans for both the House and Senate. See Below v. Secretary of State, 148 N.H. 1, 963 A.2d 785 (2002); Burling, 148 N.H. 143, 804 A.2d 471. “This task fell to the court because ... the New Hampshire legislature was unsuccessful in its efforts to reapportion the house and senate during the session following the 2000 census.” Petition of Below, 151 N.H. 135, 136, 855 A.2d 459 (2004). “We did so reluctantly because we understood that redistricting is an inherently political process.” Id. “Unlike the legislature, courts have no distinctive mandate to compromise sometimes conflicting state apportionment policies in the people's name.” Id. (quotation omitted); see Connor v. Finch, 431 U.S. 407, 414–15, 97 S.Ct. 1828, 52 L.Ed.2d 465 (1977).

Two years later, in 2004, the legislature amended the court's plan. Petition of Below, 151 N.H. at 137, 855 A.2d 459. We were then asked whether the legislature had the authority to amend the court's redistricting plan, and we concluded that it did. Id. In 2008, we were asked whether a 2006 amendment to Part II, Article 11 of the State Constitution mandated that the House be redistricted before the next decennial census. Town of Canaan v. Sec'y of State, 157 N.H. 795, 799–800, 959 A.2d 172 (2008). The amendment, Constitutional Amendment Concurrent Resolution 41 (CACR 41), was likely a response to the redistricting plan we created in Burling,id. at 797, 959 A.2d 172 which included numerous large multi-member at-large districts, but did not include “floterial” districts. Burling, 148 N.H. at 157, 159, 804 A.2d 471. We ruled that CACR 41 did not compel immediate reapportionment. Sec'y of State, 157 N.H. at 799–800, 959 A.2d 172.

As amended in 2006, Part II, Article 11 of the State Constitution now reads:

When the population of any town or ward, according to the last federal census, is within a reasonable deviation from the ideal population for one or more representative seats the town or ward shall have its own district of one or more representative seats. The apportionment shall not deny any other town or ward membership in one non-floterial representative district. When any town, ward, or unincorporated place has fewer than the number of inhabitants necessary to entitle it to one representative, the legislature shall form those towns, wards, or unincorporated places into

[48 A.3d 869]

representative districts which contain a sufficient number of inhabitants to [163 N.H. 696]entitle each district so formed to one or more representatives for the entire district. In forming the districts, the boundaries of towns, wards, and unincorporated places shall be preserved and contiguous. The excess number of inhabitants of a district may be added to the excess number of inhabitants of other districts to form at-large or floterial districts conforming to acceptable deviations. The legislature shall form the representative districts at the regular session following every decennial federal census.

N.H. CONST. pt. II, art. 11. In the instant case, we have been asked to decide whether the Plan violates Part II, Article 11, as amended in 2006, because it: (1) fails to provide approximately sixty-two towns, wards, and places with their own representatives; (2) divides certain cities, towns, and wards; and (3) devises multi-member districts comprised of towns, wards, and places that are not contiguous. We have also been asked whether the Plan is unconstitutional because it does not take into account “community of interest” factors. Although some of the petitioners purport to raise claims under the Federal Constitution, their federal constitutional arguments are not sufficiently developed to warrant our review. Because the petitioners have articulated claims only under the State Constitution, to the extent that we rely upon federal law, we do so solely to aid our analysis. See State v. Ball, 124 N.H. 226, 233, 471 A.2d 347 (1983).

II. Standard of Review

We first address the standard by which we review the Plan. As with any statute, we must presume that the Plan is constitutional, and we will not declare it invalid “except upon inescapable grounds.” New Hampshire Health Care Assoc. v. Governor, 161 N.H. 378, 385, 13 A.3d 145 (2011) (quotation omitted). This means that “we will not hold [the] statute to be unconstitutional unless a clear and substantial conflict exists between it and the constitution.” Id. (quotation omitted). “It also means that when doubts exist as to the constitutionality of a statute, those doubts must be resolved in favor of its constitutionality.” Id. (quotation and brackets omitted).

Courts generally defer to legislative enactments not only because they represent “the duly enacted and carefully considered decision of a coequal and representative branch of our Government,” Walters v. Nat. Assn. of Radiation Survivors, 473 U.S. 305, 319, 105 S.Ct. 3180, 87 L.Ed.2d 220 (1985), but also because the legislature “is far better equipped than the judiciary to amass and evaluate the vast amounts of data bearing upon legislative questions.” Turner Broadcasting System, Inc. v. FCC, 520 U.S. 180, 195–96, 117 S.Ct. 1174, 137 L.Ed.2d 369 (1997) (quotations omitted).

[163 N.H. 697]This is particularly so in the redistricting context. “Our State Constitution vests the authority to redistrict with the legislative branch, and for good reason.” Petition of Below, 151 N.H. at 150, 855 A.2d 459. “A state legislature is the institution that is by far the best situated to identify and then reconcile traditional state policies within the constitutionally mandated framework of substantial population equality.” Id. (quotation and brackets omitted); Connor, 431 U.S. at 414–15, 97 S.Ct. 1828. “[I]t is primarily the Legislature, not this Court, that must make the necessary compromises to effectuate state...

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1 practice notes
  • State v. Marchand, No. 2011–297.
    • United States
    • Supreme Court of New Hampshire
    • July 31, 2012
    ...see also Davis, 93 F.3d at 1295 n. 8; Zahradnick, 581 F.2d at 78. We stress that trial courts must diligently ensure that these procedures 48 A.3d 864 are followed when an examination is ordered, for if such examinations are used to "buttress [a defendant's] guilt, the self-incrimination qu......
1 cases
  • State v. Marchand, No. 2011–297.
    • United States
    • Supreme Court of New Hampshire
    • July 31, 2012
    ...see also Davis, 93 F.3d at 1295 n. 8; Zahradnick, 581 F.2d at 78. We stress that trial courts must diligently ensure that these procedures 48 A.3d 864 are followed when an examination is ordered, for if such examinations are used to "buttress [a defendant's] guilt, the self-incrimination qu......

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