THE STATE OF NEW HAMPSHIRE
SUPREME COURT
No.2012-0338
City of Manchester, Barbara E. Shaw and John R. Rist et al.
v.
Secretary of State
Interlocutory Transfer from Superior Court without Ruling
BRIEF OF PETITIONERS CITY OF MANCHESTER
BARBARA E. SHAW AND JOIIN R. RIST CONCERNING STANDING
Counsel for Petitioners:
Thomas J. Donovan, No. 664
McLANE, GRAF, RAULERSON & MIDDLETON
PROFESSIONAL ASSOCIATION
900 Elm Street, P.O. Box 326
Manchester, NH 03105
To be argued by: Thomas J. Donovan
TABLE OF CONTENTS
Page
TABLE OF AUTIIORITIES
QUESTTON PRESENTED FOR
............ii
REVrE\il
CONSTITUTIONAL PROVISIONS AND STATUTES
........................1
...............
........................1
STATEMENT OF TIrE
CASE...............
............4
STATEMENT OF THE
FACTS............
,...........4
SUMMARY OF THE ARGUMENT
...........
........................9
ARGUMENT............
I.
II.
......11
THIS COURT NEED NOT REACH THE STANDING OF
PARTICULAR PETITIONERS BECAUSE THERE ARE,
SUFFICIENT PETITIONERS WITH UNDISPUTED STA¡IDING
TO PERMIT A SPEEDY DETERMINATION OF THE
...............
CONSTITUTIONAL CIIALLENGES .........
MANCHESTER AND OTHER MUNICIPALITIES HAVE
STANDNG AS PETITIONERS
11
.........,.......L2
A.
Municipal Standing Permitted in Redistricting Cases..................,....12
B.
New Hampshire Municipalities Have Broad Standing Rights ..........15
III.
THE INDIVIDUAL PETITIONERS ALSO HAVE STANDING
....................16
TO CHALLENGE RSA 662:5
IV.
\üHETHER COMMUNITY OF INTEREST FACTORS MERIT
CONSTITUTIONAL STATUS MUST BE ADDRESSED ON THE
MERITS AND NOT AS A STANDING ISSUE..
CONCLUSTON
REQUEST FOR ORAL
........19
..............20
ARGUMENT.........
-i-
.....................20
TABLE OFAUTHORITIES
Pase(s)
C¡.sns
Appeal of Town of Exeter,
126 N.H. 68s (198s)
................16, 18
Avery v. Department of Education,
162
N.H. 604 (2011)..............
........18
Baer v. Department of Education,
160 N.H. 727 (2010)
......................18
Below v. Gardner,
148
N.H.
| (2002)
........11
Board of llater Commissioners v. Mooney,
139
N.H.
621
(t99s)
......................15
Brookline v. Secretary of the Commonwealth,
631 N.E.2d 968 (Mass. 1994)
........13
Brouillard v. Governor and Council,
114 N.H. s4t (t974)
......................17
Burling v. Chandler,
148 N.H. t43 (2002)
......................11
Canaan v. Secretary of State,
1s7 N.H. 795 (2003)
................72, t3
Claremont School District v. Governor,
138 N.H. 1S3 (1993)
......................1s
Claremont School District v. Governor,
144 N.H. s90 (1999)
......................1s
Greenwood Village v. Petitíoners þr the Proposed City of Centennial,
3 P.3d 427 (Co1o.2000)........
Hayes v. Division of Aeronautics,
1s2 N.H. 30 (200s)
.........15
......18
New Hampshire Assoc. of Counties v. State,
158 N.H. 284 (1999)
......................16
-11 -
O'Neil v. Thomson,
114 N.H. t55 (t974)
...............11, 17
Opinion of the Justices (Weirs Beach),134 N.H.
Powers v. Ohio,
499 U.S. 400
7Il(1991)
....................15
(1999)
.....r4
Reynolds v. Sims,
377 U.5.533 (1964)
...........t2,13,r4
Stephenson v. Bartlett,
s62S.E.2d 377 (N.C. 2002); s82 S.E.2d 247
(2003)
Town of Nelsonv. Department of Transportation,
146 N.H. ]s
(200r)
Twin Falls County. v. Idaho Commission on Redistricting,
271P.3d 1202 (Idaho 2012)......
United States v. Hays,
sls u.s. 731
(r99s)
[4reel<s
........19
......16
.......................13
.....19
Restaurqnt Corp. v. City of Dover,
119
N.H. s4r (1979)
......................19
Srarurns
24:1................
RSA 44:3, 4................
RSA 198:40-a and 4L.............
RSA491:22.............
RSA 662:5 (2012)
RSA Chapter 91-4....
............18
RSA
....3, 15
...............8
.......3, 10, 11, 17, 18
...... passim
.........16
Voting Rights Act of 1965,42 U.S.C. $ 1973 et seq.
..............19
CoNsrrrurroNAr, Pnovrsrons
United States Constitution, Fifteenth
Amendment................
....................19
Amendment............
.....................16
United States Constitution, Fourteenth
N.H.CONST. pt. I, Article
I,2
and
11
............
-111-
.........................1
9................
N.H. CONST., pt. I, Article 28-a..........
N.H.CONST. pt. I! Article 11..............
N.H.CONST. pt. II, Article 44.............
N.H. CONST., pt. II, Article
...........1, 13
.................16
......... Passim
....................3
Orrrsn Aurnomrrns
14 Loughlin, New Hampshire Practice: Local Government Law (3'd ed.2011) $1314................14
4 MacDonald, New Hampshire Practice: Civil Practice (3'd ed. 2010), $6.04, n. 11,
$36.0s.......
....................17
-iv-
QUESTION PRESENTED FOR REVIEW
Whether the City of Manchester, Petitioners who reside in Manchester, and other
municipal and individual petitioners have standing to challenge the constitutionality of RSA
662:5 (2012) under N.H.CONST. Part I, Art. 1,2 and 11 and Part II, Art. 9 and 11.
CONSTITUTIONAL PROVISIONS AND STATUTES
New Hampshire Constitution
Part
I
Article 1. [Equality of Men; Origin and Object of Government.] All men are bom equally
free and independent; therefore, all govemment of right originates from the people, is founded in
consent, and instituted for the general good.
[Art.] 2. [Natural Rights.] All men have certain natural, essential, and inherent rights - among
which are, the enjoying and defending life and liberty; acquiring, possessing, and protecting,
property; and, in a word, of seeking and obtaining happiness. Equality of rights under the law
shall not be denied or abridged by this state on account ofrace, creed, color, sex or national
origin.
[Art.] 11. [Etections and Elective Franchises.] All elections
are to be free, and every inhabitant
of the state of 18 years of age and upwards shall have an equal right to vote in any election.
Every person shall be considered an inhabitant for the purposes of voting in the town, ward, or
unincorporated place where he has his domicile. No person shall have the right to vote under the
constitution of this state who has been convicted of treason, bribery or any willful violation of
the election laws of this state or of the United States; but the supreme court may, on notice to the
attorney general, restore the privilege to vote to any person who may have forfeited it by
conviction of such offenses. The general court shall provide by law for voting by qualified voters
who at the time of the biennial or state elections, or of the primary elections therefor, or of city
elections, or of town elections by ofhcial ballot, are absent from the city or town of which they
are inhabitants, or who by reason of physical disability are unable to vote in person, in the choice
of any officer or officers to be elected or upon any question submitted at such election. Voting
registration and polling places shall be easily accessible to all persons including disabled and
elderly persons who are otherwise qualified to vote in the choice of any officer or officers to be
elected or upon any question submitted at such election. The right to vote shall not be denied to
any person because of the non-payment of any tax. Every inhabitant of the state, having the
proper qualifications, has equal right to be elected into office.
Part
II
[Art.] 9. [Representatives Elected Every Second Year; Apportionment of
Representatives.] There shall be in the legislature of this state a house of representatives,
biennially elected and founded on principles of equality, and representation therein shall be as
equal as circumstances will admit. The whole number of representatives to be chosen from the
towns, wards, places, and representative districts thereof established hereunder, shall be not less
than three hundred seventy-five or more than four hundred. As soon as possible after the
convening of the next regular session of the legislature, and at the session in 1971, and every ten
years thereafter, the legislature shall make an apportionment of representatives according to the
last general census of the inhabitants of the state taken by authority of the United States or of this
state. In making such apportionment, no town, ward or place shall be divided nor the boundaries
thereof altered.
[Art.] 11. [Small Towns; Representation by Districts.] 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 representative districts
which contain a sufficient number of inhabitants to 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 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.
2012 Laws, Chapter 9
9:1 State Representative Districts. RSA 662:5 is repealed and reenacted to read as follows:
662:5 State Representative Districts. The state is divided into districts for the choosing of state
representatives, each of which may elect the number of representatives set forth opposite the
district, as follows:.. .
9:2 Application. The changes in state representative districts established by this act shall not
affect constituencies or terms of office of representatives presently in offrce. The state
representative districts established by this act shall be in effect for the purpose of electing
representatives at the 2012 state general election. If there shall be a vacaîcy in a state
representatives district for any reason prior to the 2012 state general election, the vacancy shall
be filled by and from the same state representative district that existed for the 2010 state general
election. No provision of this act shall affect in any manner any of the proceedings of the
membership of the house of representatives of the general court that assembled for a biennial
session in January 201I.
9:3 Ward Boundaries; Legislative Districts. Ward boundaries adopted as of January 77,2012
shall be the ward boundaries used to determine state legislative districts beginning with the
November 2012 state general election.
9:4 City of Portsmouth; Wards.
...
Effective Date. This act shall take effect upon its passage.
Approved: Enacted in accordance with Part II, Article 44 of N.H. Constitution, without the
signature of the govemor, March 28,2012.
RSA 491:22,
I @eclaratory Judgments)
I.
Any person claiming a present legal or equitable right or title may maintain a petition
against any person claiming adversely to such right or title to determine the question as
between the parties, and the court's judgment or decree thereon shall be conclusive. The
existence of an adequate remedy atlaw or in equity shall not preclude any person from
obtaining such declaratory relief. However, the provisions of this paragraph shall not
affect the burden of proof under RSA 49I:22-a or permit awards of costs and attomey's
fees under RSA 491 :22-b indeclaratory judgment actions that are not for the purpose of
determining insurance coverage.
RSA 44:3 (City Councils)
The administration of all the fiscal, prudential and municipal affairs of any city, and the
govemment thereof, shall be vested in one principal officer called mayor, a board of aldermen,
and a common council, and the said mayor and aldermen and common council, in their joint
capacity, shall be called the city councils.
RSA 44:4 (Wards)
Each ward into which a city may be divided by law, or in pursuance of law, shall be a town for
the purpose of the election of govemor, councilor, state senator, representative to the general
court, all county offrcers, senator and representative in congress, and electors ofpresident and
vice-president of the United States, and in all matters relating to jurors.
-1
STÄTEMENT OF THE CASE
Section I of the Interlocutory Transfer Statement sets forth the Statement of the Case.
Only one party filed a brief challenging the standing of Petitioners, the Intervenor, denominated
as
"New Hampshire House of Representative, by and through Representative William O'Brien,
in his official capacity as Speaker of the House of Representatives of the General Court of the
State of New Hampshire" ("Speaker
O'Brien"). The Secretary of State, by the Attorney General,
has noted his concurrence in that brief.
STATEMENT OF THE FACTS
Section II of the Interlocutory Transfer Statement sets forlh the Statement of the Facts.
Of particular relevance to Petitioners City of Manchester, Barbara E. Shaw and John R. Rist
("Manchester Petitioners") are the following facts as numbered in Section II:
3.
The City of Manchester ("Manchester") is a municipality with a total population,
according to the 2010 Decennial Census conducted by the United States Department
of
Commerce Bureau of the Census (the "Census"), of 109,565. Manchester has divided itself into
twelve wards of roughly equal population based on 2010 Census block data. The population of
those wards according to the 2010 Census is as follows:
I
- 9,121;
a.
Manchester Ward
b.
Manchester Ward 2 - 9,219;
c.
Manchester Ward 3 - 9,113;
d.
Manchester Ward 4 - 9,115;
e.
Manchester Ward 5 - 9,250;
f.
Manchester Ward 6 - 9,260;
û
Manchester Ward 7 - 9,178;
h.
Manchester Ward 8 - 9,1 35;
4-
i.
Manchester Ward 9
j.
Manchester Ward I0 -9,012;
k,
Manchester Ward 11
L
Manchester Ward 12 -9,002.
4.
The Honorable Barbara E. Shaw is an individual who resides at 45 Randall Street in
-9,169;
-
8,991;
Ward 9 in Manchester, New Hampshire.
5.
John R. Rist is an individual who resides aI192 Mammoth Road in Ward 8
in
Manchester, New Hampshire.
68.
Regarding the City of Manchester, RSA 662:5,VI (2012) gives each Manchester ward its
own district with its own two representatives. It then places the excess inhabitants of each ward
into the following floterial districts:
a.
Manchester Wards 1,2, and 3 - two representatives (Hillsborough County, District No,
aÐ;
b.
Manchester Wards
4,5,6,
andT
-
three representatives (Hillsborough County, District
No.43);
c.
Manchester Wards 8, 9, and Litchfield
-
two representatives (Hillsborough County,
District No. 44);
d.
Manchester Wards 10, 1 1, and 12
- two representatives (Hillsborough
County, District
No.45).
98.
Using the component method of deviation, and accounting for the floterial seats shared
with Litchfield, Manchester as a whole has a surplus of 3,287 inhabitants above the ideal of
3,29
I
inhabitants per representative.
-5-
99.
Manchester has found no record of
it sharing a representative with a surrounding town
since its incorporation as New Hampshire's first city
100.
in 1846.
Demographically, Manchester and Litchf,reld are different communities. As to housing,
according to the 2010 Census, Manchester has 2I,661owner occupied units (47%o) compared
with 2,528 for Litchfield (89%). Manchester has 24,105 renter occupied units (53%) compared
with 300 for Litchfield (11%).
See, http://www.nh.gov/oep/programs/DataCenter/
20 I OCensus/index.htm (demographic_profile 7.xls)
101. According to the 2010 Census, Manchester has 89,893 Non-HispanicÆ.{on-Latino White
inhabitants (82%) compared with 7 ,87
|
(95%) for Litchfield. Manchester has 18,672
Hispanic/Latino and Non-white inhabitants (18%) compared with 400 for Litchfield (5%). See,
http://www.nh.gov/oep/programs/DataCenferl20lOCensus/index.htm
(demographic_profile
7.xls).
102.
According to the United States Census Bureau American Community Survey (5 year
average 2006
$ 100,051
-
2010), the median household income in Manchester is 953,377 and in Litchfreld
. See, http://www.nh.gov/oep/programs/DataCenter/
ACS/municipal_data.htm (Seq53
(1).xls).
103.
According to the New Hampshire Department of Revenue Administration 2011 Property
Tax Tables, tax assessment data showed the following values for commercial/industrial
buildings: Statewide:$ 18,539,471,I02;Manchester:$2,3 6I,516,527 (13% of statewide); and
Litchfield 518,376,200 (.U% of statewide). See, htç://www.revenue.nh.gov/munc_prop/
do cuments/tb c- alpha.
I04.
pdf.
According to data maintained by the New Hampshire Department of Education, in 2011
there were 6780 Manchester students eligible for free or reduced priced meals out
-6-
of 14,268
students in grades 1 through 12, or 48%. The comparable data for Litchfield show
i49 students
eligible out of 1418 students, or 110lo. See, http://www.education.nh.govl datal attendance.htm
(lunch_school11_12 (1).xls). Manchester's Bakersville School serves students in the nofihern
portion of Ward 9. The same data show that for grades
1
through 5,212 out of 256 students
(83%) are eligible for free or reduced price meals. Southside Middle School serves students in
Wards 8 and 9 and other areas. For grades 6 through 8, 425 out of 820 students (52Yo) are
eligible for free or reduced price meals. See, http://www.education.nh.gov/ data/ attendance.htm
(lunch_ schooll I_12 (3).xls) The data also show that for the 20lI
- 2072 year, the maximum
income level for a student in a family of four for free meals is $29,055 and for reduced price
meals is $4
1, 3 4
8. http ://www. education.nh. gov/pro gr aml
nutrition/do cuments/nslp_app_attach_n. pdf.
105. According to data maintained by the New Hampshire Department of Education,
as
of
October 7,2071 , the Manchester school enrollment of Hispanic and non-white students was
4,989 out of 15,536 total enrollmenl (32o/o). The comparable number in Litchfield was 116 out
of 1,501 total enrollment (8%),
See,
http://www.education.nh.govl data/attendance.htm
(racel1_12 (2).xls) The data for Bakersville School (October 1, 2010) showed that out of 368
students, 222 are Hispanic or non-white, i.e. 600/o. See, http:llmy.doe.nh.gov/profiles/
profile.aspx?oid:9099&s:&d:&yea=20I1&tab:student. The data also shows that for
Southside Middle School (October 1, 2010) out of 861 students, 301 are Hispanic or non-white,
i.e. 35olo. See,
http:l/my.doe.nh.gov/profiles/profile.aspx?oid:9377 &s:&.d:&year-201I&Iab:student.
106. The New Hampshire
Department of Education also maintains data concerning students
eligible to receive services for limited English proficiency services. For Manchester, as of
-7
-
October 1,2010, there
are
1,732 eligrble students out of 75,732 total enrollment (11%). See,
http:l/my.doe,nh.gov/profiles/profile.aspx?oid:27667 &s:&d:&year:&tab:student. The
comparable figures for Litchfield are 0 out of 1,580 total enrollment (0%). See,
http,llmy.doe.nh.gov/profiles/profile.aspx?oid:27656&,s:&d:&year:20II&tab:student. Out of
368 students at Bakersville School, the data showed that there were 1 15 students eligible to
receive services for limited English prohciency, or 3lo/o. See, http://my.doe.nh.gov/profiles/
profile.aspx?oid:9099&s:&d:&yea=2011&tab:student.
Out of 861 students at Southside
Middle School, there were 65 students receiving services for limited English proficiency, or 8Yo.
See, http://my.doe.nh.gov/profìles/profile.aspx?
l0l.
oid:93I7 &.s:&d:&ye a=20I1&tab:student.
Manchester and Litchfield do not share municipal services in common. Manchester is a
member of the Southern New Hampshire Regional Planning Commission, which also serves
Londonderry, Derry, Candia, Deerfield, Hooksett, Auburn, Bedford, Goffstown, New Boston,
Raymond, Chester and Weare. Litchfield is a member of the Greater Nashua Regional Planning
Commission. Manchester Water Works also serves parts of Hooksett, Aubum, Goffstown,
Auburn, Derry and Londonderry. Manchester Environmental Protection Division (waste water
treatment) also serves parts of Bedford, Goffstown, and Londonderry. Manchester School
District also educates high school students from Aubum, Candia and Hooksett and provides
career training services to students from Goffstown and Londonderry. Litchfield has an entirely
separate school system.
108.
Manchester has specific interests in dealing with state legislation. Manchester received
from the state this fiscal year $56,761,000 of annual education adequacy grants under a formula
that currently targets additional funding based upon the number of English language learners,
special education participants and free and reduced lunch. RSA 198:40-a and 41. Under the
-8
state budget, Manchester received from the state this fiscal year $4,894,000 in revenue sharing
from rooms & meals tax receipts. Since 90Yo of that revenue is obligated to bond repayment on
the city-owned Verizon Wireless Arena, reduction or elimination of that revenue sharing would
cause technical default of the bond covenants.
from its receipt of federal
A large portion of Manchester's budget comes
contracts that pass through state government agencies, including
public health, human services, education and refugee resettlement.
SUMMARY OF THE ARGUMENT
This Court need not reach the standing issue, because Speaker O'Brien concedes that at
least some of the individual petitioners have standing to challenge RSA 662:5. Standing is really
a
proxy argument for whether any of RSA 662:5 may be severed if parts are found to be
unconstitutional. That argument is Question C, to be addressed by the parties on the merits.
Also, this Court recognizes that reapportionment cases needs to move fast and there is no time to
deal with unnecessary issues apart from the merits.
Manchester and other municipalities have standing to challenge the constitutionality
of
RSA ó62:5 because they have important interests at stake in the apportionment of
representatives. There is no known case in which a municipality has ever been denied standing
to challenge
a
redistricting plan. Redistricting cases from New Hampshire and other states
include municipalities as petitioners. Specifically as to New Hampshire, N.H.CONST. Part II,
Art. 11 gives municipalities certain rights with respect to the apportionment of representatives
that they may enforce. Municipalities have regularly brought declaratory judgment petitions
under other provisions of the New Hampshire Constitution. The one exception involved a
collateral constitutional attack appended to an administrative appeal.
The individual petitioners also have standing. It will waste valuable time for this Court to
examine which petitioner lives where, how they are treated under RSA 662:5 and how their
9-
circumstances relate to the constitutional challenges. New Hampshire civil procedure under
RSA 491 :22 andmore broadly is inclusive as to who may bring constitutional challenges. The
recent cases limiting taxpayer standing do not apply to voter standing. Particularly in the 400
member House of Representatives, any change to one district will reverberate to other districts
within that same county.
The Manchester Petitioners also have standing to argue on the merits whether the New
Hampshire Constitution must consider community of interest factors. There is precedent for
such a constitutional basis. This Court
will
read that argument in response to Question
B. It is a
waste of valuable time for this Court to make a determination -- as part of the standing question -
concerning the merits of community of interest factors.
-10-
ARGUMENT
I.
THIS COURT NEED NOT REACH THE STANDING OF PARTICULAR
PETITIONERS BECAUSE THERE ARE SUFFICIENT PETITIONERS WITH
UNDISPUTED STANDING TO PERMIT A SPEEDY DETERMINATION OF
THE CONSTITUTIONAL CHALLENGES
Intervenor
"...." ("Speaker O'Brien") believes that the best way to win his case is to
deprive some or all Petitioners of the opportunity to have their day in court. The nub of Speaker
O'Brien's argument is: "none of the petitioners have [sic] standing under RSA 491:22 to
challenge the entirety of RSA 662:5 (2012) as unconstitutional.
.
.." Speaker O'Brien's
6. Still, in making his argument, Speaker O'Brien impliedly concedes that some
Brief, p.
petitioners have
standing to challenge some of RSA 662:5.
The problem with Speaker O'Brien's argument is that the Manchester Petitioners and
other petitioners have flagged serious constitutional issues which this Court can and should
address in an expeditious fashion. Unless this Court finds some or all of RS A 662:5, candidates
will file nomination papers for seats in the House of Representatives beginning on June 6,2072
based upon RSA
662:5. See, RSA 652:12 and20I2-2013 Secretary of State Political Calendar.
"[W]here the public need requires
a speedy determination
the use of a declaratory judgment proceeding
of the important issues in controversf'
"filed by plaintiffs in their several capacities.
.
.
have sufficient right and interest to entitle them to maintain these proceedings." O'Neil v.
Thomson,114 N.H. 155, 158
-
59 (1974) (Court found governor's executive orders
unconstitutional based upon declaratory judgment challenge brought by various parties where
Court accepted case on interlocutory transfer without ruling).
This Court is very familiar with decennial disputes conceming redistricting. See, e.g.
Below v. Gardner, 148 N.H.
I
(2002) (state senate redistricting); Burling v. Chandler, 148 N.H.
143 (2002) (house of representatives
redistricting). At least one of those cases featured
- 11-
a
municipality
as lead
petitioner, with Speaker O'Brien (then in a different position) as the Town
of Canaan's lawyer. Canaan v. Secretary of State,157 N.H. 795 (2008). Redistricting cases
need to move fast. Time spent on arguments about standing could better be spent dealing with
the substantive constitutional issues.
Also, this Court has accepted for briefing as Question C:
"[i]f
part of RSA 662:5 is
determined to be unconstitutional, whether that part is severable from the remaining parts of the
statute?" Speaker O'Brien singles out only the municipalities and certain individuals and claims
that they lack standing in this matter. This means that
aL
least the remaining individual
petitioners will have the opportunity to argue Question C on severability. Therefore the Court
will
read arguments whether some or all of RSA 662:5 should be struck down, no matter how
many petitioners might lack standing. Speaker O'Brien attempts to make standing a proxy for
severability. The Court should therefore find that all parties have standing and allow all parties
to argue whether or not some or all of RSA 662:5 is severable.
II.
MANCHESTER AND OTHER MUNICIPALITIES HAVE
STANDNG AS PETITIONERS
A.
Municipal Standing Permitted in Redistricting
Cases
Speaker O'Brien argues that cities and towns have no standing to challenge a redistricting
plan because they do not vote. On that point, his brief cites a colorful quote from a United States
Supreme Court case: "!]egislators are elected by voters, not farms or cities or economic
interests". Reynolds v. Sims,377 U.S. 533,562 (1964). B;ut Reynolds v. Sims had nothing to do
with restricting municipal standing to challenge redistricting, rather that case established the
"one person one vote" standard for apportionment, and the cited quotation merely reinforced the
priority of that standard over other methods for allocating representation, such
as
by county or by
property valuation. In fact, Reynolds v. Sims recognized that "[a] consideration that appears to
I2
be of more substance in justifying some deviations from population-based representation in state
legislatures is that of insuring some voice to political subdivisions, as political subdivisions" so
long
as
population remained the controlling consideration. 377 U.S. at 580 - 81.
In fact, Speaker O'Brien cited no federal or state case which held that municipalities lack
standing to challenge a redistricting plan. There are cases that hold the opposite. See, e.g.,
Brookline v. Secretary of the Commonwealth, 631 N.E.2d 968 (Mass. 1994). In Brookline, the
Massachusetts Supreme Judicial Court agreed that five towns had standing to challenge a
redistrictingplanin which cross-border districts affected the "territorial integrity''of those
towns. In Canaan, supra, this Court never questioned the Town of Canaan's standing.
See also,
Twin Falls County. v. Idaho Commission on Redistricting,2Tl P.3d 1202 (Idaho 2012) (counties
and municipalities challenged redistricting plan).
Municipal standing to challenge RSA 662:5 is grounded as well in the applicable
provisions of the New Hampshire Constitution. Recently amended Part II, Art. 11 is replete with
protections for the territorial integrity and representative strength of individual municipalities,
including the following language:
o
a
...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 representative districts which
contain a sufficient number of inhabitants to 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.
Similar recognition is found in Part II, Art. 9:
o
In making such fdecennial] apportionment, no town, ward or place shall be
divided nor the boundaries thereof altered.
-13-
It is for this reason that municipalities are not seeking "third party standing" because they
have standing in their own right to protect their interests specifically described in the New
Hampshire Constitution. But beyond that, municipalities have their own interest in the New
Hampshire legislature with respect to local matters. Manchester has at stake specific issues
related to education funding, revenue sharing and pass-through grants. Interlocutory Transfer
Statement,
I
108. See, Reynolds v. Sims,377 U.S. at 580 (local goveÍìments have an interest in
apportionment because they carry out many state functions). Speaker O'Brien calls that "third
party standing". But in support of that he cites a United States Supreme Court case granting
third party standing to a criminal defendant who complained against aracially based peremptory
challenge to a person in
a
jury venire, even though the venireman could theoretically bring that
claim himself or herself. Powers v. Ohio,499 U.S. 400 (1999). Speaker O'Brien does not cite
any case holding that municipal challengers to a redistricting plan lack standing as a "third
party."
Speaker O'Brien then singles out the cities of Manchester, Concord and Dover. He
argues that while towns might have standing to challenge redistricting plans -- because they are
specifically mentioned in the applicable constitutional sections -- cities have no standing because
they are not so mentioned. He notes that Part II, Art. 11 mentions only towns and wards and that
a
city "cannot assert the rights of its wards." To do so would againbe "third party standing" and
Speaker O'Brien returns to Powers v. Ohio.
For a city ward to have standing to bring a redistricting or any other claim presupposes a
misreading of their limited function in New Hampshire. Unlike the governmental structure in
some other states, New Hampshire cities are divided into wards "solely for the purpose
of
conducting elections". 14 Loughlin, New Hampshire Practice: Local Government Law (3'd ed.
-14-
20lI) $1314.
,See,
RSA 44.3,4 (cities are governed by mayors and aldermen or councils; wards
conduct elections). Wards have no corporate identity, and the only entity that can represent their
electoral apportionment interests is the city in which those wards are located.
B.
New Hampshire Municipalities Have Broad Standing Rights
Beyond the specifics of redistricting cases, there is nothing in this Courl's general
jurisprudence concerning other constitutional challenges or conceming standing that would
prevent municipalities from participating as petitioners here.
Speaker O'Brien notes at page 10 of his Brief that political subdivisions "derive their
authority from the legislature," Opinion of the Justices (lVeirs Beach),134 N.H. 717,715
(199I), "and have only the powers fthat] are expressly granted to them by the legislature and
such as are necessarily implied or incidental thereto.
" Board of Water Commissioners v.
Mooney,139 N.H. 621,625 (1995). But the only case he cites which specifically addressed the
scope of municipal standing in the context of the limited authority of municipalities comes not
from New Hampshire, but rather Colorado. Greenwood Village v. Petitioners
þr
the Proposed
City of Centennial,3 P.3d 427 (Co\o.2000). And in that case, the court determined after a
lengthy analysis that the municipality in fact didhave standing to challenge certain legislation.
Municipalities are not uncommon plaintiffs in New Hampshire courts challenging
perceived unconstitutional acts of state govemment. The series of Claremozl school funding
cases included at least
five school districts
as
plaintiffs
.
See, e.g., Claremont School
District
v.
Governor,138 N.H. 183, 134 (1993). This Court noted in the seventh of its Claremont opinions
that: "[t]he plaintiffs were entitled to maintain their suit in this case even without legislative
consent, however, because their theory was that the
official actions taken by the fstate]
defendants were unconstitutional." Claremont School District v. Governor,144 N.H. 590, 592
(leee).
-15-
Similarly, this Court has accepted the standing of towns and counties by ruling on their
appeals alleging a downshifting of expenses contrary to New Hampshire's "unfunded mandate"
amendment, N.H. CONST., Part
I, Art.28-a.
See, New Hampshire Assoc.
of Counties v. State,
158 N.H. 284 (1999); Town of Nelson v. Department of Transportation,146 N.H. 75 (2001).
The one possible outlier decision on municipal standing, Appeal of Town of Exeter, 126
N.H. 685 (1985), may be readily distinguished. The case centered on whether the Right{oKnow Law, RSA Chapter 91-4, required that collective bargaining negotiations be held in the
open. After discussing and affirming the Public Employee Labor Relations Board on its unfair
labor practice finding, the Court dispatched sua sponte and in one paragraph Exeter's altemative
claim
-
violation of equal protection and free speech. The Court did so on the basis that Exeter
lacked standing to bring challenges based on the constitutional protections of individuals. The
cited cases applied the federal court standing rule that municipalities cannot challenge the actions
of their own states under the Fourteenth Amendment. Given the many municipal challenges in
New Hampshire to the constitutionality of state law since Appeal of Town of Exeter, the case can
be limited to attempts to insert a collateral constitutional attack into a garden variety
administrative agency appeal.
III.
THE INDIVIDUAL PETITIONERS ALSO HAVE STANDING
TO CHALLENGE RSA 6ó2:5
Having attempted to dismiss Manchester, Concord, Gilford and Dover from this case,
Speaker O'Brien tums his attention to many of the individual petitioners. He seeks to dismiss
from the case eight residents of Manchester, two of Exeter, and one each of Concord, Belmont,
Rochester, Peterborough and
Dover. He then
seeks to
limit the remaining individual petitioners
to complain about RSA 662:5 only as it may apply specifically to them as inhabitants of
particular legislative district.
t6
a
With respect to the fifteen individual petitioners who Speaker O'Brien claims have no
standing, that determination depends upon the Court's review of a number of facts, and
specifically Speaker O'Brien's analysis of how many representatives are elected from what
districts. The Court could better devote its time to reviewing the merits of the constitutional
claims here. Even if those individual petitioners live in districts receiving at least one of its own
representative, N.H.CONST. Part II, Art. 11 states that each town or ward "shall have its own
district of one or more representative seats" (emphasis added). The Manchester Petitioners will
argue that at least Wards 8 and 9 deserve more representative seats in their own district(s), and
not in a floterial district with Litchfield. Other individual petitioners may argue the same as to
their districts.
Beyond that, those petitioners meet the traditional standard for standing as articulated
by RSA 49I:22 and New Hampshire's common law of civil procedure. Speaker O'Brien
correctly notes that the standard for filing a declaratory judgment action requires "a present
legal or equitable right or
title". RSA 491:22,I. Generally, that articulation of "right"
has
received a liberal interpretation in politically oriented constitutional challenges. See, Brouillard
v. Governor and Council,l 14 N.H. 541 (1974) (present and former advisory commission
members sought to require governor to appoint new members); O'Neil, supra (employee union
among parties challenging govemor's hiring freeze). See generally,4MacDonald, New
Hampshire Practice: Civil Practice (3'd ed. 2010), $36.05. This broad scope accords with New
Hampshire's common law tradition dating back to the time of legal reformer Chief Justice
Charles Doe. The jurisprudence from that era expanded the sorts of plaintiffs who may bring
actions to include "a person with any interest". 4 MacDonald, Civil Practice, $6.04, n.
-77
-
1
1.
That tradition of liberal standing in declaratory judgment actions took a much
commented-upon turn with the Court's recent limitation upon so-called taxpayer standing to
challenge a govemment's action. Baer v. Department of Education, 160 N.H. 727 (201 0). I In
that case, this Court was faced with a taxpayer challenge based upon the alleged violation of a
state regulation and, secondarily of the New Hampshire Constitution. The Court stated: "we
hold that taxpayer status, without an injury or an impairment of rights, is not sufficient to confer
standing to bring a declaratory judgment action under RSA 491:22." 160 N.H. at 731. In a case
with similar facts, the Court clarified that there must be "an impairment of a present legal or
equitable right arising out of the application of the rule or statute." Avery v. Department
of
Education,162 N.H. 604,608 (2011). As with Appeal of Town of Exeter, these cases presented
collateral constitutional attacks following an administrative agency ruling. Hayes v. Division
of
Aeronautics, 152 N.H. 30, 35 - 36 (2005), cited by Speaker O'Brien, likewise involved a
collateral constitutional attack related to an administrative agency decision,
But taxpayer standing is not the same as voter standing in
a
redistricting
constitutionality challenge. Voters always have an interest in the apportionment of
representatives to be elected from their own
district. And with 400 members in the New
Hampshire House of Representatives, any redistricting plan that is unconstitutional as to one
district will very likely affect the remaining districts, at least in that same county.2 For instance,
if
as a result of this Court's decision, Pelham (which RSA 662:5 places into a district
with
Hudson) is entitled to elect its own representatives, that decision will require a change in
apportionment for Hudson as well. That in tum will reverberate into adjoining Litchfield and
also into Manchester, because RSA 662:5 creates a floterial district shared among Manchester
I ZOi.Z tls I 5 l0 would amend RSA 49 I :22 to pennit taxpayel standing.
2 RSe 662,S does respect county boundaries lnterlocutory Transfer Staternent,
167. See,RSA 24:l (representatives from districts \ùithin
county fonn the county convelrtion).
- 18 -
a
Wards 8 and 9 and Litchfield. Therefore, a voter may have a present and direct interest in an
unconstitutional redistricting scheme even though his or her district does not trigger the
unconstitutionality.
See
generally, Weeks Restaurant Corp. v. City of Dover,119 N.H. 541, 545
(1979) (non-abutters with a "direct interest" have standing to appeal a planning boatd decision).
New Hampshire's 400 member House of Representatives presents a very different
situation from that found in redistricting cases coming out of states without floterial and multimember districts. The issues are simply different for redistricting plans where there are singlemember districts each encompassing many inhabitants, and as a result the standing criteria for
individuals may also differ. Applying that difference, federal courts have developed specific
standards as to who may make claims under both the Voting Rights Act,42 U.S.C. $1973b et
seq. and the Fifteenth Amendment. See, United States v. Hays,515 U.S. 737 (1995).
IV.
WHETHER COMMUNITY OF INTEREST FACTORS MERIT
CONSTITUTIONAL STATUS MUST BE ADDRESSED ON THE
MERITS AND NOT AS A STANDING ISSUE
The Manchester Petitioners plan to argue that RSA 662:5 is unconstitutional because
it created
an unnecessary
floterial district encompassing Litchfield and Manchester Wards 8 and
9, two communities not sharing a community of interest. The facts contained in the
Interlocutory Transfer Statement, Tll 100
-
108 highlight just how different Manchester and
Litchfield are in terms of race, ethnicity, English language skills, home ownership, income,
business focus and connection with state goveÍìment programs. The facts demonstrate how
Manchester is connected with every community around it
-
except Litchfield
- with respect
to
education, water supply, waste water treatment and regional planning. The Manchester
Petitioners seek to brief whether community of interest factors have constitutional significance
in New Hampshire. See, e.g. Stephenson v. Børtlett, 562 S.E.2d 37l, 396- 98 (N.C. 2002);
second appeal582 S.E.2d 247
N.C.2003) ("communities of interest" must be constitutionally
-19-
considered in reconciling federal population-based apportionment requirements and the "whole
county provision" in North Carolina constitution).
The Manchester Petitioners claim a present legal interest and so have standing to
argue community of interest factors on the merits, apart from the application of N.H.CONST.
Part II, Art. 11. This Court should not waste valuable time now to examine the merits of
community of interest factors which could only serve to deny Petitioners their day in court on
that point.
CONCLUSION
Manchester Petitioners and other Petitioners have standing to bring their constitutional
challenges before this Court. This Court should instead devote its limited time to the question on
the merits: the constitutionality of RSA 662:5.
REQUEST FOR ORAL ARGUMENT
Manchester Petitioners request oral argument of not less than fifteen minutes. Thomas J.
Donovan
will
argue for Manchester Petitioners.
Respectfully submitted,
CITY OF MANCHESTER
BARBARA E. SHAW and JOHN R. RIST
By their Attomeys:
MoLANE, GRAF, RAULERSON & MIDDLETON,
TION
PROFESSIONAL A
Date: May 2I,2012
By:
n, No. 664
900
, P.O.Box326
Manchester, NH 03105
Telephone (603) 625-6464
20
Certifïcate of Service
I hereby certify that on Ì:ly'ray 2I,2072,I served the foregoing Brief by electronic mail
upon Jason B. Dennis, Esq., Tony F. Soltani, Esq., Jason M. Surdukowski, Esq., Martin P.
Honigberg, Esq., Danielle L. Pacik, Esq., Peter V. Millham, Esq., Matthew D. Huot, Esq., Anne
M. Edwards, Esq., Stephen G. LaBonte, Esq.,Ri
, Esq., David A. Vicinanzo,
ay 74,2012 scheduling order.
Esq. and Anthony L. Galdieri, Esq., pursuant
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