Wuelper v. University of New Hampshire
| Citation | 112 N.H. 471,298 A.2d 747 |
| Decision Date | 29 December 1972 |
| Docket Number | No. 6345,6345 |
| Parties | Erik WUELPER et al. v. UNIVERSITY OF NEW HAMPSHIRE. |
| Court | Supreme Court of New Hampshire |
Perkins & Douglas, Concord (Charles G. Douglas III, Concord, orally), for plaintiffs.
Devine, Millimet, Stahl & Branch and Silas Little III, Manchester (Joseph A. Millimet, Manchester, orally), for defendant.
The only issue presented to this court is whether we should determine by declaratory judgment that the compulsory collection by the State university of a student activity tax which might be used to finance partisan or political off-campus speakers similar to the so-called 'Chicago Three' would violate the constitutional guarantees of freedom of association of the four student plaintiffs or other students at the university.
Plaintiffs, on May 4, 1970, filed a petition in superior Court seeking a temporary and permanent injunction restraining the university from releasing any funds obtained from its student activity tax to pay the fee or costs of speeches to be given at the university the next day by Abbot 'Abbie' Hoffman, David Dellinger, and Jerry Rubin. Plaintiffs also sought a declaration that the use of those funds for that purpose would be an unconstitutional abridgement of their rights of free political association.
By agreement of counsel the amount of $1350, derived from this tax and voted by two student organizations to be used to pay those speakers, was deposited with the clerk of court. It is unnecessary for the purposes of the present decision, to detail the meetings, court proceedings and orders which preceded and followed the appearance and speeches of the above-named before several thousand students in the field house of the university on May 5, 1970.
Thereafter, on December 7, 1970, the university filed a motion seeking a refund of the $1350 deposited with the clerk on the grounds that the speakers in question had violated an order of the United States District Court and that their speeches when given were not authorized by the university. See United States v. Wefers, 314 F.Supp. 137 (D.N.H.), rev'd, 435 F.2d 826 (1st Cir. 1970). Plaintiffs filed a motion to amend their petition for declaratory judgment to cover the use of the activity tax to pay speakers similar to the 'Chicago Three' and included a request that that issue be transferred to this court. The defendant filed a motion to dismiss on the grounds that no justiciable controversy existed and that plaintiffs' amended allegations were so vague, broad and indeterminate as to present no judicial standars for decision. The Court (Laughlin, J.) granted plaintiff's motion to amend and transfer to this court, and also transferred, without ruling on an agreed statement of facts, defendant's motion to dismiss.
It is essential to point out, at the outset, that the appearance of the 'Chicago Three' at the university on May 5, 1970, is now merely a prologue to these proceedings. We are not called upon, nor do we intend, to comment thereon except as it may be material to the decision of the issue presently before us. That issue, we repeat, is whether this court should determine by declaratory judgment if the use of student activity tax funds to pay off-campus speakers similar to the 'Chicago Three' would violate the constitutional guarantee of freedom of association of those students who might oppose the speakers' views.
Declaratory relied before an actual wrong has occurred was unknown at common law. 22 Am.Jur.2d Declaratory Judgments s. 3 (1965). However, most states, including our own, have enacted statutes permitting such relief. Our statute reads in part as follows:
The adverse claim...
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Asmussen v. Comm'r, NH Dep't of Safety, 97-787.
...of ALS hearings. Because declaratory relief is unavailable absent statutory authorization, see Wuelper v. University of N.H., 112 N.H. 471, 473, 298 A.2d 747, 749 (1972), the parties' arguments require that we first determine the statutory authority for the intervenors' 145 N.H. 586 RSA 541......
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