Franklin v. Town of Newport

• Decision Date: 30 November 2004
• Docket Number: No. 2004–211.,2004–211.
• Citation: 861 A.2d 777,151 N.H. 508
• Court: New Hampshire Supreme Court
• Parties: Peter FRANKLIN v. TOWN OF NEWPORT.

151 N.H. 508

861 A.2d 777

Peter FRANKLIN

v.TOWN OF NEWPORT.

No. 2004–211.

Supreme Court of New Hampshire.

Submitted: Sept. 10, 2004.

Opinion Issued: Nov. 30, 2004.

Peter Franklin, by brief, pro se.

Gardner Fulton & Waugh P.L.L.C., of Lebanon (Adele M. Fulton on the brief), for the respondent.

BRODERICK, C.J.

The petitioner, Peter Franklin, appeals orders of the Superior Court (Morrill , J.; Brennan , J.) denying his motion for summary judgment and granting the summary judgment motion of the respondent, the Town of Newport (Town), in his declaratory judgment action. We affirm.

The parties stipulated to the following facts. The Sullivan County Regional Refuse Disposal District (District) is a regional entity formed in 1981 pursuant to RSA chapter 149–L (repealed 1982) and RSA chapter 53–B (2003). The District, comprised primarily of Sullivan County municipalities, provides refuse disposal facilities for its member cities and towns. Under the terms of the Sullivan County Regional Refuse Disposal District Agreement (Agreement), each member municipality is entitled to a certain number of representatives on the District's governing body, the regional district committee (Committee). See RSA 53–B:6–a. The Agreement states that the Town's Board of Selectmen (Board) "shall ... appoint[ ]" all representatives and alternates.

At a May 13, 2003 town meeting, the citizens of Newport approved an article instructing the Board to appoint the petitioner to the Committee "as a full voting member." At the Board's June 16, 2003 meeting, it appointed the town manager to this position, not the petitioner. Therefore, the petitioner asked the superior court to declare this appointment unlawful. The court granted the Town's summary judgment motion and denied the petitioner's.

On appeal, the petitioner raises two issues: (1) whether the Board had the authority to appoint the town manager to the Committee, despite the vote of the town meeting to appoint the petitioner; and (2) whether, consistent with RSA 37:9 (2000) (amended 2004), the town manager is permitted to serve simultaneously as the Town's representative to the District. We address each issue in turn. In doing so we assume, for the purposes of this appeal, that the petitioner has standing to raise these arguments because the Town does not contend otherwise. Although the petitioner briefly references RSA 669:8 (1996) (amended 2004) in his brief, he does not develop any argument regarding this statute and thus we decline to address it. See Trachy v. LaFramboise, 146 N.H. 178, 181, 770 A.2d 1097 (2001).

RSA chapter 53–B governs solid waste management districts. In matters of statutory interpretation, this court is the final arbiter of the intent of the legislature as expressed in the words of a statute considered as a whole. Nilsson v. Bierman, 150 N.H. 393, 395, 839 A.2d 25 (2003). We begin by examining the language of the statute and ascribing the plain and ordinary meanings to the words the legislature used. Id. Although we look to the plain and ordinary meaning of the statutory language to determine legislative intent, we will not read words or phrases in isolation, but in the context of the entire statute. In re Juvenile 2003–248 , 150 N.H. 751, 751–52, 846 A.2d 551 (2004). When the language of a statute is plain and unambiguous, we do not look beyond it for further indications of legislative intent. Sanborn Regional Sch. Dist. v. Budget Comm. of the Sanborn Regional Sch. Dist.,

150 N.H. 241, 242, 836 A.2d 768 (2003). We review legislative history to aid our analysis where the statutory language is ambiguous or subject to more than one reasonable interpretation. Appeal of Inter–Lakes Sch. Bd. , 147 N.H. 28, 32, 780 A.2d 1275 (2001). We construe all parts of a statute together to effectuate its overall purpose and avoid an absurd or unjust result. Appeal of Estate of Van Lunen , 145 N.H. 82, 86, 750 A.2d 737 (2000).

Pursuant to RSA 53–B:6–a, a solid waste management district's "business affairs and actions ... shall be conducted and governed pursuant to the terms, conditions, and provisions of its district agreement." RSA 53–B:6–a. Generally, the use of the word "shall" in a statutory provision is a command, requiring mandatory enforcement. N.H. Dep't of Resources and Economic Dev. v. Dow, 148 N.H. 60, 63, 803 A.2d 581 (2002). In context, the plain meaning of the word "governed" indicates that the district agreement directs and controls the actions and business affairs of a solid waste management district. Webster's Third New International Dictionary 982 (unabridged ed.2002) (defining "govern"). RSA 53–B:6–a, III requires such agreements to specify, among other items, "[t]he method of selection and method of removal of representatives to the district committee, whether by legislative or governing bodies." When we read these two provisions together, we conclude that, by law, the Agreement controls whether the Town's governing body (the Board) or its legislative body (the town meeting) has the authority to appoint Committee representatives.

The Agreement provides that, "All representatives and alternates shall be appointed by the board of selectmen or city council." (Emphasis added.) The plain meaning of this is that every representative, whether full voting or alternate, must be appointed by a town's governing body (either the board of selectmen or city council). The Agreement does not grant appointing authority to a town's legislative body. In the context of this appeal, therefore, the Agreement grants the Board sole authority to appoint representatives to the Committee. Although the petitioner argues that the Board's authority is not exclusive, the Agreement's plain language refutes this assertion.

The petitioner also contends that the Agreement violates Part I, Article 8 and Part I, Article 37 of the State Constitution because it permits the Board to override the will of the people. Neither constitutional provision pertains to this appeal. Part I, Article 8 relates to the constitutional right to access to governmental proceedings and records; Part I, Article 37 relates to separation of powers between the three co-equal branches of government. N.H. CONST. pt. I, arts. 8, 37. These are not issues in this appeal and the petitioner's arguments to the contrary are not persuasive.

The petitioner further argues that the appointment of the town manager violated RSA 37:9. RSA 37:9, entitled "Incompatibility of Offices," provides:

The town manager during the time that he holds such appointment, may be manager of a district or precinct located wholly or mainly within the same town as hereinafter provided, and may be elected or appointed to any municipal office in such town or included district or precinct that would be subject to his supervision if occupied by another incumbent; but he shall hold no other public office except justice of the peace or notary public except as otherwise provided in RSA 37:16.

RSA 37:16 (2000) allows a town manager to hold the office of tax collector.

The petitioner argues that RSA 37:9 prevents a town manager from holding any other public office, except those the statute specifically lists. He contends that the use of the word "but" after the semicolon "indicates that the second section [of the statute] will consider any incompatibilities." He asserts that the use of the phrase "public office" in that section, instead...