We want to thank Attorney Bevill for his well-researched testimony on HB 1309 and why it should be allowed to pass in the NH Legislature.
Dear Committee Members:
Thank you for allowing me to testify on H.B. 1309. I would also like to thank Representative Jeanine Notter for sponsoring this bill.
The intention of this bill is the continued protection of citizens’ rights to hold their elected town representatives accountable to the will of the people, without usurping the enumerated power vested in them by the legislature, without having to resort to “voting [a majority of] the bums out,” and without having to continuously ask the courts to intervene in requiring those bodies to follow the current laws.
Our NH Constitution guarantees in Pt. 1, Art 32: “the people have a right, in an orderly and peaceable manner, to assemble and consult upon the common good, give instructions to their representatives, and to request of the legislative body, by way of petition or remonstrance, redress of the wrongs done them, and of the grievances they suffer.”
Under our constitutional assumptions, all power derives from the people, who can delegate it to representative instruments which they create. See, E. g., The Federalist No. 39 (v. Madison). In establishing legislative bodies, the people can reserve to themselves power to deal directly with matters which might otherwise be assigned to the legislature.
The United States Supreme Court stated that: “the reservation of such power is the basis for the town meeting, a tradition which continues to this day in some States as both a practical and symbolic part of our democratic processes. The referendum, similarly, is a means for direct political participation, allowing the people the final decision, amounting to a veto power, over enactments of representative bodies. The practice is designed to “give citizens a voice on questions of public policy (emphasis added, citations omitted).” City of Eastlake v. Forest City Enterprises, Inc., 426 U.S. 668, 672-73 (1976).
The New Hampshire Supreme Court said in 1890: “The New Hampshire Constitution guarantees that all powers are derived from the people. Article 8 must be read in conjunction with the preceding Article 7 which states in part that ‘The people of this state have the sole and exclusive right of governing themselves as a free, sovereign, and independent state. These sections express the American theory of government that the state being sovereign, the people being the state, and all magistrates and public officers being their substitutes and agents they are accountable to the people.” See Attorney General v. Taggart, 66 N.H. 362, 369, 29 A. 1027, 1031 (1890); Opinion of the Justices, 111 N.H. 175, 177 (1971).
In 2016, Citizens of Deerfield wanted to change the position of town police chief to an elected position. They submitted a proper petitioned warrant article to be discussed at the SB-2 town meeting to call for the election of town police chief. A small majority in attendance at the SB-2 meeting changed the wording on the warrant article to render it ineffective. So, the citizens who originally created the warrant article took their argument to the NH Supreme Court. The NH Supreme Court ruled against the voters, saying that if the changes to the warrant article didn’t eliminate the matter “entirely,” then it didn’t violate town meeting statutes. See Cady v. Town of Deerfield, 169 N.H. 575 (2017).
As a result, in 2018, the legislature changed the law to protect citizen petitioners to include the following language: “Such corrections shall not in any way change the intended effect of the article as presented in the original language of the petition”. RSA 93:3 and RSA 197:6.
In 2019, Bedford overwhelmingly voted against changing their Historical district to allow for multi-dwelling and high-density housing units. However, in late 2019, Bedford town officials and Governor Sununu tried to shame Bedford voters as being “racists” for their votes to preserve their historical district and not allow for multi-dwelling units to be built there. There is already a movement afoot to create a non-elected body to usurp the will of the Bedford voters and create a non-elected state board which could override any town’s zoning laws, over the objections of its people.
In 2019, Warrant Article #8 was approved by the Merrimack voters to instruct the school board to re-adopt the previously-approved policy of grading student homework – a matter that greatly affected the future of college-bound students and those seeking academic scholarships. But the school board ignored the will of the voters on the homework policy vote, illegally declaring the vote an “advisory-only” opinion, and rejected any changes to the zero-grade homework policy. In addition, on the same Warrant Ballot, Merrimack voters overwhelmingly rejected Article #7 which proposed a $1.2mm AstroTurf field for the Merrimack High school football field. Again, the school board rejected the will of the voters and have re-introduced the AstroTurf into the budget forecast for 2021-2022.
In January 2020, voters in Milford filed an appropriate petitioned warrant article with the town for consideration at the next SB-2 town meeting. The Milford school board met in non-public session and voted to not include the petition for consideration, in violation of RSA 197:6-a which states: “a school board is guilty of a violation if it refuses to insert an article in the warrant, after being petitioned to do so in accordance with RSA 197:6.”
I wish to include some additional comments after hearing the testimony of the lobbyist of the New Hampshire Municipal Association. The lobbyist incorrectly related that this bill would usurp the authority of town and school boards reserved by statutory law. This is a scare tactic, and is incorrect. The proposed language to be inserted by H.B. 1309 into both RSA 39:3 (for town meetings) and RSA 197:6 (for school board town meetings): “Unless restricted by any other provision of law…” This specifically states that those powers that are reserved to town council and to school board by the legislature are not subject for review under the petitioned warrant articles. In addition, if the town councils or school boards have any questions as to the legality of any petitioned warrant article, they may petition the Superior Court to provide instructions, without violating the rights of the people.
If you prefer, please consider that towns and school boards are also corporations and have to follow federal and state laws for corporations. While it is the responsibility of the corporation’s board of directors to make day-to-day policy, it is also within the right of any stockholder to bring a motion before the stockholders’ meeting to vote on any policy change enacted by the board of directors that is not restricted by the corporation’s bylaws, or state or federal laws. The same applies to towns and school boards.
The lobbyist also argued that if voters disagreed with decisions of the board, that their only remedy was to “vote the bums out.” In our case in Merrimack, only one of the five school board positions is up for reelection this year. Next year, there are only two of the five positions are up for reelection. It could conceivably take almost three whole years to swing the majority decision of the school board, and would be ineffective in making changes to the policy and direction of the school board.
The lobbyist for the NH Municipal Association also referred to the incident I related in Milford where the school board refused to put a petitioned warrant article on the ballot was unrelated to this topic. I believe, however, that it is very relevant because goes to the heart of the matter in that many of our elected officials are trying to thwart the will of the voters. True, the Milford voters could seek a legal remedy for the violation. But, by the time that they learned the warrant article would not be included, the time had passed for objecting. So, it is a moot point if there is a law to protect citizens, but the voters did not know in time to ask the courts for redress. Again, the town councils and school boards seem to feel that they do not have to answer to the voters, except only on their respective re-election day.
Our state constitution guarantees our right of assembly over our elected officials. Whatever authority that has not been restricted by statute or deemed unconstitutional by the courts remains reserved for the people to deal directly with matters which might be otherwise assigned to the legislature.
I ask that this committee recommend the approval of H.B. 1309, as it protects the interests of citizen petitioners without usurping those enumerated powers currently vested in the town councils or school boards granted by the legislature. Thank you.
Robert T. Bevill, JD, LL.M.
12 Blair Road
Merrimack, NH 03054-2510
O: 603-722-0990 F: 603-722-0997
Email: bob@bevill.com