January 25, 2001

No. 4

WAYS & MEANS, Room 103, SH

FINANCE, Room 103, SH

PUBLIC AFFAIRS, Room 105-A, SH

EDUCATION, Room 105-A, SH

EXECUTIVE DEPARTMENTS & ADMINISTRATION, Room 104, LOB

INSURANCE, Room 101, LOB

JUDICIARY, Room 103, LOB

WAYS & MEANS, Room 103, SH

ENERGY & ECONOMIC DEVELOPMENT, Room 102, LOB

PUBLIC AFFAIRS, Room 105-A, SH

PUBLIC INSTITUTIONS, HEALTH & HUMAN SERVICES, Room 101, LOB

INSURANCE, Room 101, LOB

JUDICIARY, Room 103, LOB

WAYS & MEANS, Room 103, SH

EDUCATION, Room 105-A, SH

INSURANCE, Room 101, LOB

NH LAND & COMMUNITY HERITAGE AUTHORITY BOARD OF DIRECTORS (RSA 227-M:4) Room 305, LOB

COMMISSION ON EDUCATION OF DEAF AND HARD OF HEARING PERSONS IN NEW HAMPSHIRE (HB 1283, Chapter 43, Laws of 2000) Room 205, LOB

NEW HAMPSHIRE COLLEGE TUITION SAVINGS PLAN ADVISORY COMMISSION (RSA 195-H:2) Room 103, SH

SEED STERILIZATION STUDY (HB 291,Chapter 282, Laws of 1999) Room 303, LOB

ADEQUATE EDUCATION FINANCING (RSA 1989:49) Rooms 210-211, LOB

POSTSECONDARY EDUCATION AND TEMPORARY ASSISTANCE RECIPIENTS RELATIONSHIP COMMISSION (SB 313, Chapter 122:2, Laws of 2000) Room 201, LOB

LEGISLATIVE ETHICS COMMITTEE (RSA 14-b:2) Room 304, LOB

NH CIVIL WAR MEMORIALS COMMISSION (RSA 21-L:18) Room 203, LOB

NH DEPARTMENT OF TRANSPORTATION (Keene-Swanzey NH Route 9,10,12, & 101 upgrade) Keen Public Library, Winter Street, Keene, NH

CAPITAL BUDGET OVERVIEW COMMITTEE Room 201, LOB

NH DEPARTMENT OF TRANSPORTATION (Ossipee 10431, NH 16/NH 28 Reconstruction and widening) Ossipee Town Hall, 55 Main Street, Ossipee, NH

LONG RANGE CAPITAL PLANNING AND UTILIZATION COMMITTEE (RSA 17-M:1) NH Hospital Acute Psychiatric Services Building

CERTIFICATE OF NEED BOARD (RSA 151) Rooms 306-308, LOB

NH DEPARTMENT OF TRANSPORTATION (Newfields 12466, NH Route 85 bridge over B&M Railroad) Newfields Town Hall, Route 85, Newfields, NH

IMPACT OF WATER WITHDRAWALS ON INSTREAM FLOWS (SB 330, Chapter 242, Laws of 2000) Rooms 305-307, LOB

COMMISSION ON EDUCATION OF DEAF AND HARD OF HEARING PERSONS IN NEW HAMPSHIRE (HB 1283, Chapter 43, Laws of 2000) Room 205, LOB

KIDS CABINET MEETING Governor and Council Chambers

GUARDIANS AD LITEM BOARD (SB 448, Chapter 321, Laws of 2000) Room 104, LOB

FISCAL COMMITTEE OF THE GENERAL COURT Rooms 210-211, LOB

JOINT LEGISLATIVE COMMITTEE ON ADMINISTRATIVE RULES Rooms 306-308, LOB

DEVELOPMENTAL DISABILITY WAITLIST FUND ALLOCATION OVERSIGHT COMMITTEE (RSA 171-A:1-b) Room 205, LOB

WORKERS COMPENSATION ADVISORY COUNCIL (RSA 281-A:62) Room 306, LOB

JOINT HEALTH COUNCIL (RSA 326:10-b) NH Board of Nursing offices, Room 17, 78 Regional Drive, Building 2, Concord, NH

OIL FUND DISBURSEMENT BOARD (RSA 146-D:4) Room 305, LOB

NEW HAMPSHIRE COLLEGE TUITION SAVINGS PLAN ADVISORY COMMISSION (RSA 195-H:2) Room 103, SH

FISCAL COMMITTEE OF THE GENERAL COURT Rooms 210-211, LOB

JOINT LEGISLATIVE COMMITTEE ON ADMINISTRATIVE RULES Rooms 306-308, LOB

KIDS CABINET MEETING Governor and Council Chambers

FISCAL COMMITTEE OF THE GENERAL COURT Rooms 210-211, LOB

Senator President Arthur P. Klemm, Jr.

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Senator Sylvia B. Larsen

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Senator Katherine Wells Wheeler

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Senator Gary Francoeur

Senator Beverly Hollingworth

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Senator Lou D'Allesandro

Senator Katherine Wells Wheeler

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Senator Katherine Wells Wheeler

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Please join us to learn more about this excellent North Country Institution!

Senator Ned Gordon

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Senator Lou D’Allesandro

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Friday, December 22, 2000, The Office of Legislative Services shall not draft a Senate bill or resolution, other than the general appropriations (budget) bill or the capital budget bill, unless a request by a member for drafting with complete information has been received not later than 3:00 p.m. on Friday, December 22, 2000.

Friday, January 19, 2001, Every Senate bill and joint resolution, except the general appropriations (budget) bill or the capital budget bill, must be signed off in Legislative Services by 5:00 p.m. on Friday, January 19, 2001.

Monday, February 26, 2001 - March 2, 2001 Senate Vacation Break

As a convenience to the members of the NH General Court, the Visitors’ Center offers the following schedule of schools and other groups visiting the State House in January 2001. These listings will replace individual notifications in an effort to reduce paper usage and to ensure all members will be notified in a timely manner. Our schedule is tightly booked for the remainder of the school year. Please contact the Visitors’ Center concerning school tour booking information. I would like to take the opportunity to introduce you to the new Visitors’ Center Assistant Mrs. Virginia Drew, please drop by and welcome her on board. Thank you for your continued participation with your School Visitation Program.

Kenneth Leidner, Director

Request of the Senate

No. 00-148

(Municipal Bonds)

January 19, 2001

It was resolved by the Senate:

"That the Justices of the Supreme Court be respectfully requested to give their opinion upon the following questions of law:

1. If SB 365-LOCAL with the proposed amendment is enacted, would it in any way violate the provisions of the first sentence of Part I, Article 39 of the New Hampshire Constitution, specifying that no law changing the charter or form of government of a particular city or town shall be enacted by the legislature except to become effective upon the approval of the voters in a local referendum provided for in the law?

2. If SB 365-LOCAL with the proposed amendment is enacted, would it in any way violate the provisions of the second sentence of Part I, Article 39 of the New Hampshire Constitution, specifying that general laws authorizing cities and towns to adopt or amend their charters or forms of government shall become effective only upon the approval of the voters in a local referendum?

3. If under SB 365-LOCAL with the proposed amendment the majority voting requirements would differ between local political subdivisions with and without the optional voting procedures under RSA 40:13, will this result in the infringement of any person's rights under the equal protection, voting, or due process protections of the state or federal constitutions?

4. Do any other aspects of SB 365-LOCAL with the proposed amendment violate or conflict with any provisions of the state constitution?"

The full text of the senate resolution is reproduced as an appendix to this opinion.

To the Honorable Senate:

The following response is respectfully returned:

Senate bill 365-LOCAL (the bill) proposes to amend RSA 33:8 to reduce the voting majority necessary to authorize the issuance of bonds or notes in cities, towns, school districts and village districts to a uniform three-fifths for all such entities. Currently, RSA 33:8 requires a three-fifths majority to authorize the issuance of bonds in "official ballot" towns and school districts, and a two-thirds majority to authorize the issuance of bonds in all other towns and school districts that operate under a traditional "town meeting" form of government.

Your first and second questions ask whether the bill would violate the provisions of Part I, Article 39 of the New Hampshire Constitution. We answer these questions in the negative.

Part I, Article 39 provides:

This constitutional provision was added in 1966 to address two specific concerns: first, that the legislature could "subject a city to restrictions in its charter which do not apply to cities generally"; and second, that cities would continue to burden the legislature with charter issues rather than solving them locally. Report to the Fifteenth Constitutional Convention, Commission to Study the State Constitution at 24. As the November 8, 1966 Voters' Guide explained, the proposed constitutional amendment was limited in that it would "not require a referendum on general legislation which affects alike all cities and towns, or all cities or towns in the same class. Nor w[ould] this provision affect special acts which do not literally change the charter or form of government of a city or town." Voters' Guide to Proposed Amendments to Constitution of the State of New Hampshire, Election Question 3.

Opinion of the Justices, 109 N.H. 396, 400, 254 A.2d 273, 276 (1969) (citation omitted).

The bill before us does not trigger either of the referendum requirements of Part I, Article 39. The bill proposes general legislation that applies to all cities, towns, school districts and village districts in the State, not to a particular city, town, school district or village district. See id. The purpose of the bill is to establish a uniform state-wide supermajority voting requirement for the issuance of bonds and notes. Thus, the bill as proposed does not change the charter or form of government of a "particular city or town."

In addition, the bill does not "authorize cities and towns in general to amend their own charters or forms of government, so as to require approval by the voters on referendum." Id. Part I, Article 39 "was intended to prevent the form of government . . . from being altered by the legislature without a referendum of the people affected, and not to prevent the legislature from conferring additional powers upon a particular city to be exercised under its existing form of government." Opinion of the Justices, 112 N.H. 42, 46, 288 A.2d 697, 700 (1972).

The extent of home-rule power granted by Part I, Article 39 is "the prerogative to choose" one of the statutorily specified forms of municipal government. See Girard v. Town of Allenstown, 121 N.H. 268, 272, 428 A.2d 488, 491 (1981); RSA 49-B:2, I-III. Thus, the legislature's plenary power over municipalities is limited "by provisions of our State Constitution which grant municipalities only the right to control the form of their local government as enacted in their charters. Otherwise, the legislature may grant, withhold, or withdraw local control as it sees fit." Seabrook Citizens v. Yankee Greyhound Racing, Inc., 123 N.H. 103, 108, 456 A.2d 973, 975-76 (1983) (citations omitted).

Part I, Article 39 "has never been interpreted as a grant to municipalities of the supreme legislative authority over all municipal affairs." Opinion of the Justices (Weirs Beach), 134 N.H. 711, 715, 598 A.2d 864, 867 (1991). "This broader authority is exclusively vested in the legislature by part II, article 2 of our constitution." Id. at 716, 598 A.2d at 867.

The bill would impose upon cities and towns, under their existing forms of government, a uniform voting requirement for the issuance of debt. This reduces, in some cities and towns, the supermajority threshold for municipalities to issue debt, a power vested solely in the legislature and subsequently delegated. See id. (Part I, Article 39 has no impact on the legislature's unrestricted authority over other aspects of municipal functions). For these reasons, we answer your first and second questions in the negative.

Your third question asks whether differing majority voting requirements between local political subdivisions with and without the optional voting procedures under RSA 40:13 would "result in the infringement of any person's rights under the equal protection, voting, or due process protections of the state or federal constitutions." We answer in the negative.

In 1999, RSA 33:8 was amended to reduce the majority vote requirement for approval of bonds and notes by municipalities which have adopted voting procedures pursuant to RSA 40:13 from two-thirds to three-fifths. RSA 33:8 (2000). In all other municipalities, the required majority vote remained at two-thirds. The bill proposes to amend RSA 33:8 again to change the majority vote required for bonds and notes to three-fifths for all municipalities. On its face, the legislation would result in a uniform majority vote requirement across the State, thereby raising no equal protection, voting, or due process implications.

Your fourth question asks whether any other aspects of the bill "violate or conflict with any provisions of the state constitution." In accordance with our long-standing practice, we respectfully decline to answer this question because of its generality. See Opinion of the Justices (Weirs Beach), 134 N.H. at 717, 598 A.2d at 867-68.

____________________________

David A. Brock

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John T. Broderick, Jr.

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Joseph P. Nadeau

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Linda S. Dalianis

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James E. Duggan

January 19, 2001

Devine, Millimet & Branch, P.A., of Manchester (David H. Barnes & a. on the memorandum), filed a memorandum on behalf of Oyster River Cooperative School District, Exeter Region Cooperative School District, John Stark Regional School District, Contoocook Valley School District, and Winchester School District in support of negative answers to the questions.

Philip T. McLauglin, attorney general (Anne M. Edwards, assistant attorney general), joined in the memorandum of Oyster River Cooperative School District & a.

Edward N. Damon, senate legal counsel, filed a memorandum on behalf of Senator Caroline McCarley and Senator Rick A. Trombly in support of negative answers to the questions.

Shaines & McEachern, P.A., of Portsmouth (Paul McEachern on the memorandum), filed a memorandum on behalf of Richard McGraw in support of the court declining to answer question 3.

New Hampshire Municipal Association, of Concord (H. Bernard Waugh, Jr. on the memorandum), filed a memorandum in support of negative answers to the questions.

Jane Johnson, of Weare, filed a memorandum in support of negative answers to the questions.

Bill and Linda Ramsey, of Henniker, filed a memorandum in support of negative answers to the questions.

Sue Drake, of Weare, filed a memorandum in support of negative answers to the questions.

Bob Costa, of Henniker, filed a memorandum in support of negative answers to the questions.

John Stark Regional School District School Board, of Henniker, filed a memorandum in support of negative answers to the questions.

APPENDIX

The following request of the senate for an opinion of the justices was adopted on March 9, 2000, and filed with the supreme court on March 13, 2000:

"Whereas, there is presently pending in the Senate, SB 365-LOCAL, 'An Act relative to the adoption of bonds or notes in certain school districts and municipalities'; and

"Whereas, there has been proposed to SB 365-LOCAL an amendment (document number 2000-3618s) which would generally reduce the voting majority required to authorize the issuance of bonds or notes in cities, towns, school districts, and village districts from 2/3 to 3/5; and

"Whereas, SB 365-LOCAL with the proposed amendment does not provide for a local referendum accepting or declining the reduction in the voting majority; and

"Whereas, questions have arisen concerning the constitutionality of SB 365-LOCAL with the proposed amendment; and

"Whereas, it is important that the questions of the constitutionality of SB 365-LOCAL with the proposed amendment should be settled in the near future, and in any event before final passage by the senate; now therefore, be it

"Resolved by the senate:

"That the Justices of the Supreme Court be respectfully requested to give their opinion upon the following questions of law:

1. If SB 365-LOCAL with the proposed amendment is enacted, would it in any way violate the provisions of the first sentence of Part I, Article 39 of the New Hampshire Constitution, specifying that no law changing the charter or form of government of a particular city or town shall be enacted by the legislature except to become effective upon the approval of the voters in a local referendum provided for in the law?

2. If SB 365-LOCAL with the proposed amendment is enacted, would it in any way violate the provisions of the second sentence of Part I, Article 39 of the New Hampshire Constitution, specifying that general laws authorizing cities and towns to adopt or amend their charters or forms of government shall become effective only upon the approval of the voters in a local referendum?

3. If under SB 365-LOCAL with the proposed amendment the majority voting requirements would differ between local political subdivisions with and without the optional voting procedures under RSA 40:13, will this result in the infringement of any person's rights under the equal protection, voting, or due process protections of the state or federal constitutions?

4. Do any other aspects of SB 365-LOCAL with the proposed amendment violate or conflict with any provisions of the state constitution?"