Outcomes of Lawsuits Influence Legislation

A change to law in New Hampshire may make it easier for litigants to receive more favorable declaratory judgments without having to prove financial loss or that their personal rights were violated.

The law, HB 1510, was sponsored by state Rep. Rick Watrous, D-Concord, and state Rep. Seth Cohn, R-Canterbury, and prompted after judges in the state supreme court threw out court cases forwarded by Concord residents not happy with elements of the school building consolidation process. The changes proposed in the law came after the creation of a committee to study the issue last year was rejected, according to Cohn. Instead, legislators offered the change to the law to “fix the problem.”

“We believe that the addition of this one line will assist in showing judges that when they come to the road that splits into two halves, that we want them to take the other road from the one that they have been deciding to take now,” Cohn said.

At a recent hearing on the bill, former New Hampshire Supreme Court Justice Chuck Douglas said the law was written to assist litigants who were not suing for money but were suing for a declaration of what the law is. Since 1863, the state Supreme Court had held that the statute gave any kind of taxpayer in a community standing or the right to challenge what the government was doing or not doing, according to Douglas. In 1974, in a case called Green vs. Shaw, the court determined that every taxpayer has a right to the preservation of lawful government “regardless of whether his purse was immediately touched,” Douglas stated. Taxpayers had standing to seek redress of unlawful acts of their public officials, the court noted.

Two years ago, in a case in Concord, Baer vs. the New Hampshire Department of Education, the court stated that a higher standard was now required and said that a taxpayer without impairment no longer had sufficient grounds to sue, he said. In another case last year, Avery vs. the New Hampshire Department of Education, the litigants lost in court because they were not found to have standing to bring a case challenging the school construction that was occurring around a house they owned.

“I guess all I can say is, the picture’s worth a thousand words,” Douglas said, after passing out pictures of the construction site. “If these folks don’t have standing to challenge something the government’s doing, I don’t know who does. They are completely surrounded by the construction. They are the only house that is left standing on that block.”

Douglas said the cases had changed law that had been in place in the state for more than a century. The inclusion of the new text, he said, would “put back in a standing provision that would allow taxpayer suits to continue.”

Douglas said he was happy with the legislation but would like more added to it that would determine the locality of the taxpayers, in order to make sure that taxpayers from outside Concord, for example, couldn’t sue against the city government since they wouldn’t have standing as taxpayers.

Others testified in favor of the legislation, including Ed Naile of the Coalition of New Hampshire Taxpayers, and photographer Gary Brownfield. Brownfield filed a case against an Atkinson town moderator who would not allow Brownfield to photograph him during a public meeting. Later, Brownfield and others sued, saying the moderator was violating their first amendment rights. The court though threw the case out.

“You would not believe what I went through,” he said, “humiliation, damage to my personal reputation … only I was singled out. There were others in the room taking pictures.”

Brownfield said he had a right to seek justice and petition the court to preserve his rights and keep town officials open and honest. He believed the change to the law would help accomplish that.

No one testified against the legislation.

The previous court cases

While completely different, the two cases that prompted the change in legislation came from the outcome of the Concord School District’s elementary school consolidation project and decisions made by the state to allow new schools to be built on lots that were much smaller than the state traditionally allows.

Normally, new schools need to be built on about 10 acres of land. The current site of the new McAuliffe Elementary School, for example, even after more than $2 million was spent buying seven homes around the old Kimball Elementary School, still came in at less than three acres. The school district filed for waivers and received them.

In the Baer case, two local taxpayers, James Baer and Charlie Russell, filed a lawsuit claiming that the decision to allow the waiver on the lot sizes violated the separation of powers clause of the New Hampshire Constitution. They later added a claim to their case, suggesting that the minimum lot sizes violated the state’s duty to provide an adequate education, consistent with the finding of the Claremont decision nearly two decades ago.

Since both were taxpayers of the school district and their money would be used to construct the schools, they believed they had standing to sue. They also believed that the schools would be "substandard" to the needs and desires community.

The court denied the motion and an attempt to amend the petition to include a claim against the district itself. In the judgment, the judiciary stated that it was now requiring “taxpayers to demonstrate that their rights had been impaired or prejudiced in order to maintain a declaratory judgment action.”

In the Avery case, the owners of the home – which was in the same row as the seven homes purchased and demolished by the district to make way for the new McAuliffe school – requested to have the lot size waiver found “invalid and void.” The couple claimed that the district’s waiver application was “factually insufficient” and didn’t comply with waiver requirements, adding that the decision to allow the school to be constructed around their house would “diminish the value of their property.” The Averys also stated that the acquisition of their property would have allowed the site to be larger but that information was not stated in the district’s waiver application.

The court, however, threw out the petition saying the Averys had no standing in the case and did not provide information proving they did. In addition, the court believed that the petitioners should have found other forums to bring their complaints and stated that issues of the grant of the lot size and waiver rules were reserved for the Legislature.

The need for the changes

Both Cohn and Watrous said the change in the law was needed to ensure that taxpayers were protected and both agreed with Douglas on the need to return to the previous standard of standing.

“This bill, like many others I've sponsored, is about defending the individual, especially when the courts are failing to do the right thing,” Cohn said. “Too often, we put the needs of the many above the rights of the minority.”

Cohn said he has been trying to focus on that basic principle and has spent more than year working at the Statehouse to ensure just that.

“We really need more people to stand strong, and when they do, we need to be sure they have a voice,” he said.

Watrous said he would introduce an amendment to the bill clarifying the issue of the locality of the taxpayer.

“A Portsmouth taxpayer would not have standing in Concord, etc.,” he noted.

But more importantly, Watrous said, was the preservation of the previous hundred years of case law, where taxpayers had standing regardless of whether or not they were harmed financially by government decisions. He said it was about government doing the right thing.

“I think what happened in Concord, where Concord taxpayers were found to have no standing in regards to Kimball School, defied common sense,” he said. “My hope is that this bill will restore citizens' judicial standing rights within their own community.”

The bill is due to be voted on by the House Judiciary Committee on Feb. 21. If approved, it will be sent to the full Legislature, the state Senate, and then the governor, for approval.

Editor's note: This story has been edited, correctly identifying Douglas' former role as a New Hampshire Supreme Court justice.