Olson v. Town of Grafton

• Decision Date: 12 February 2016
• Docket Number: No. 2015–0264,2015–0264
• Citation: 168 N.H. 563,133 A.3d 270
• Parties: Jeremy OLSON & a. v. TOWN OF GRAFTON
• Court: New Hampshire Supreme Court

168 N.H. 563
133 A.3d 270

Jeremy OLSON & a.
v.
TOWN OF GRAFTON

No. 2015–0264

Supreme Court of New Hampshire.

Argued: January 7, 2016
Opinion Issued: February 12, 2016

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

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

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

BASSETT, J.

168 N.H. 564

Plaintiff Jeremy Olson appeals an order of the Superior Court (MacLeod, J.) denying a petition filed by Olson and his co-plaintiffs, Thomas Ploszaj, Christopher Kairnes, and Howard Boucher, for declaratory and injunctive relief against the defendant, the Town of Grafton (Town). On appeal, Olson argues that the trial court erroneously determined that it was lawful

133 A.3d 272

for the Town to include on the official ballot for the annual Town meeting the phrase, "The Selectmen do not recommend this article, " below each of the plaintiffs' 20 warrant articles, which the plaintiffs had petitioned to include on the ballot. We affirm.

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

168 N.H. 565

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

....

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

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

....

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

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

At the January 20 meeting, one selectboard member moved that the ballot include the phrase "the Selectmen do not recommend this article" relative to each of the plaintiffs' warrant articles. The motion passed unanimously. On January 26, the selectboard signed the warrant for the annual Town meeting. On the official ballot, appearing below each of the plaintiffs' warrant articles, was the notation: "The Selectmen do not recommend this article ." On February 27, in response to citizen concern about the selectboard's inclusion of its recommendations on the plaintiffs' warrant articles, the selectboard met and voted unanimously to retain those recommendations on the official ballot.

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

At the annual meeting held thereafter, the voters rejected all of the plaintiffs' warrant articles by large margins. For instance, the article asking whether the Town would preclude the selectboard from "placing any opinion of any Warrant Article on the Warrant," except for articles concerning appropriations, was defeated by a vote of 81 in favor and 292 opposed. The plaintiffs unsuccessfully moved for reconsideration of the trial court's decision, and this appeal followed.

168 N.H. 566

On appeal, Olson does not seek to invalidate the votes taken at the March 2015 annual meeting. Instead, he requests that we reverse the trial court's determination that the selectboard acted lawfully and remand to the trial court with instructions to grant permanent, prospective injunctive relief and consider the plaintiffs' request for attorney's fees. Although any issues

133 A.3d 273

the plaintiffs raised in the trial court with regard to the March 2015 annual meeting are now moot, Olson's appeal is not moot because it presents legal issues that are of pressing public interest and are "capable of repetition yet evading review." Appeal of Hinsdale Fed. of Teachers, 133 N.H. 272, 276, 575 A.2d 1316 (1990) (quotation omitted).

Our resolution of the issues on appeal requires that we engage in statutory interpretation. We review the trial court's statutory interpretation de novo. Petition of Malisos, 166 N.H. 726, 729, 103 A.3d 793 (2014). In matters of statutory interpretation, we are the final arbiter of the intent of the legislature as expressed in the words of the statute considered as a whole. Id. We first look to the language of the statute itself, and, if possible, construe that language according to its plain and ordinary meaning. Id. We interpret legislative intent from the statute as written, and will not consider what the legislature might have said or add language that the legislature did not see fit to include. Id. When the language of a statute is plain and unambiguous, we need not look beyond the statute itself for further indications of legislative intent. Id.

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

Upon the written application of 25 or more registered voters or 2 percent of the registered voters in town, whichever is less, although in no event shall fewer than 10 registered voters be sufficient, presented to the selectmen or one of them not later than the fifth Tuesday before the day prescribed for an annual meeting, the selectmen shall insert in their warrant for such meeting the petitioned article with only such minor textual changes as may be required.

(Emphasis added.) Olson contends that the selectboard's recommendations on the plaintiffs' warrant articles constituted more than "minor textual changes" to those articles and, therefore, violated RSA 39:3. We disagree that the recommendations, which appeared in bolded, italicized text below each of the plaintiffs' warrant articles, constituted "textual changes" to the articles themselves. We have reviewed Olson's remaining arguments regarding RSA 39:3 and conclude that they do not warrant further discussion. See Vogel v. Vogel, 137 N.H. 321, 322, 627 A.2d 595 (1993).

168 N.H. 567

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

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

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

(b) If the article is amended at the first session of the meeting in an official ballot referendum

...