THE STATE OF NEW HAMPSHIRESUPREME 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 MANCHESTERBARBARA E. SHAW AND JOIIN R. RIST CONCERNING STANDING

Counsel for Petitioners:

Thomas J. Donovan, No. 664McLANE, GRAF, RAULERSON & MIDDLETON

PROFESSIONAL ASSOCIATION900 Elm Street, P.O. Box 326Manchester, NH 03105

To be argued by: Thomas J. Donovan

TABLE OF CONTENTSPage

TABLE OF AUTIIORITIES ............ii

QUESTTON PRESENTED FOR REVrE\il ........................1

CONSTITUTIONAL PROVISIONS AND STATUTES ............... ........................1

STATEMENT OF TIrE CASE............... ............4

STATEMENT OF THE FACTS............ ,...........4

SUMMARY OF THE ARGUMENT ........... ........................9

ARGUMENT............ ......11

I. THIS COURT NEED NOT REACH THE STANDING OFPARTICULAR PETITIONERS BECAUSE THERE ARE,SUFFICIENT PETITIONERS WITH UNDISPUTED STA¡IDINGTO PERMIT A SPEEDY DETERMINATION OF THECONSTITUTIONAL CIIALLENGES ......... ............... 11

II. MANCHESTER AND OTHER MUNICIPALITIES HAVESTANDNG AS PETITIONERS .........,.......L2

A. Municipal Standing Permitted in Redistricting Cases..................,....12

B. New Hampshire Municipalities Have Broad Standing Rights ..........15

III. THE INDIVIDUAL PETITIONERS ALSO HAVE STANDINGTO CHALLENGE RSA 662:5 ....................16

IV. \üHETHER COMMUNITY OF INTEREST FACTORS MERITCONSTITUTIONAL STATUS MUST BE ADDRESSED ON THEMERITS AND NOT AS A STANDING ISSUE.. ........19

CONCLUSTON ..............20

REQUEST FOR ORAL ARGUMENT......... .....................20

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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)........ .........15

Hayes v. Division of Aeronautics,1s2 N.H. 30 (200s) ......18

New Hampshire Assoc. of Counties v. State,158 N.H. 284 (1999) ......................16

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O'Neil v. Thomson,114 N.H. t55 (t974) ...............11, 17

Opinion of the Justices (Weirs Beach),134 N.H. 7Il(1991) ....................15

Powers v. Ohio,499 U.S. 400 (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) ........19

Town of Nelsonv. Department of Transportation,146 N.H. ]s (200r) ......16

Twin Falls County. v. Idaho Commission on Redistricting,271P.3d 1202 (Idaho 2012)...... .......................13

United States v. Hays,sls u.s. 731 (r99s) .....19

[4reel<s Restaurqnt Corp. v. City of Dover,119 N.H. s4r (1979) ......................19

Srarurns

RSA 24:1................ ............18

RSA 44:3, 4................ ....3, 15

RSA 198:40-a and 4L............. ...............8

RSA491:22............. .......3, 10, 11, 17, 18

RSA 662:5 (2012) ...... passim

RSA Chapter 91-4.... .........16

Voting Rights Act of 1965,42 U.S.C. $ 1973 et seq. ..............19

CoNsrrrurroNAr, Pnovrsrons

United States Constitution, Fifteenth Amendment................ ....................19

United States Constitution, Fourteenth Amendment............ .....................16

N.H.CONST. pt. I, Article I,2 and 11 ............ .........................1

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N.H. CONST., pt. II, Article 9................ ...........1, 13

N.H. CONST., pt. I, Article 28-a.......... .................16

N.H.CONST. pt. I! Article 11.............. ......... Passim

N.H.CONST. pt. II, Article 44............. ....................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

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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 equallyfree and independent; therefore, all govemment of right originates from the people, is founded inconsent, and instituted for the general good.

[Art.] 2. [Natural Rights.] All men have certain natural, essential, and inherent rights - amongwhich 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 lawshall not be denied or abridged by this state on account ofrace, creed, color, sex or nationalorigin.

[Art.] 11. [Etections and Elective Franchises.] All elections are to be free, and every inhabitantof 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, orunincorporated place where he has his domicile. No person shall have the right to vote under theconstitution of this state who has been convicted of treason, bribery or any willful violation ofthe election laws of this state or of the United States; but the supreme court may, on notice to theattorney general, restore the privilege to vote to any person who may have forfeited it byconviction of such offenses. The general court shall provide by law for voting by qualified voterswho at the time of the biennial or state elections, or of the primary elections therefor, or of cityelections, or of town elections by ofhcial ballot, are absent from the city or town of which theyare inhabitants, or who by reason of physical disability are unable to vote in person, in the choiceof any officer or officers to be elected or upon any question submitted at such election. Votingregistration 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 toany person because of the non-payment of any tax. Every inhabitant of the state, having theproper qualifications, has equal right to be elected into office.

Part II

[Art.] 9. [Representatives Elected Every Second Year; Apportionment ofRepresentatives.] 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 tenyears 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 orward, according to the last federal census, is within a reasonable deviation from the idealpopulation for one or more representative seats, the town or ward shall have its own district ofone 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 unincorporatedplace 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 inhabitantsof district may be added to the excess number of inhabitants of other districts to form at-large orfloterial districts conforming to acceptable deviations. The legislature shall form therepresentative 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 notaffect 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 electingrepresentatives 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 biennialsession in January 201I.

9:3 Ward Boundaries; Legislative Districts. Ward boundaries adopted as of January 77,2012shall 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 thesignature 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 petitionagainst 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. Theexistence of an adequate remedy atlaw or in equity shall not preclude any person fromobtaining such declaratory relief. However, the provisions of this paragraph shall notaffect the burden of proof under RSA 49I:22-a or permit awards of costs and attomey'sfees under RSA 491 :22-b indeclaratory judgment actions that are not for the purpose ofdetermining insurance coverage.

RSA 44:3 (City Councils)

The administration of all the fiscal, prudential and municipal affairs of any city, and thegovemment 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 jointcapacity, 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 forthe 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.

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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:

Manchester Ward I - 9,121;

Manchester Ward 2 - 9,219;

Manchester Ward 3 - 9,113;

Manchester Ward 4 - 9,115;

Manchester Ward 5 - 9,250;

Manchester Ward 6 - 9,260;

Manchester Ward 7 - 9,178;

Manchester Ward 8 - 9,1 35;

a.

b.

c.

d.

e.

f.

û

h.

4-

i. Manchester Ward 9 -9,169;

j. Manchester Ward I0 -9,012;

k, Manchester Ward 11 - 8,991;

L Manchester Ward 12 -9,002.

4. The Honorable Barbara E. Shaw is an individual who resides at 45 Randall Street in

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.

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99. Manchester has found no record of it sharing a representative with a surrounding town

since its incorporation as New Hampshire's first city in 1846.

100. 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 - 2010), the median household income in Manchester is 953,377 and in Litchfreld

$ 100,051 . 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. pdf.

I04. 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 of 14,268

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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

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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? oid:93I7 &.s:&d:&ye a=20I1&tab:student.

l0l. 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

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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. A large portion of Manchester's budget comes

from its receipt of federal 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

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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.

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ARGUMENT

I. THIS COURT NEED NOT REACH THE STANDING OF PARTICULARPETITIONERS BECAUSE THERE ARE SUFFICIENT PETITIONERS WITHUNDISPUTED STANDING TO PERMIT A SPEEDY DETERMINATION OFTHE 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 Brief, p.

6. Still, in making his argument, Speaker O'Brien impliedly concedes that some 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 of the important issues in controversf'

the use of a declaratory judgment proceeding "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 a

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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 HAVESTANDNG 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:

...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 ofinhabitants necessary to entitle it to one representative, the legislature shall formthose towns, wards, or unincorporated places into representative districts whichcontain 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 unincorporatedplaces 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.

o

a

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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.

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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).

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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{o-

Know 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 STANDINGTO 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 a

particular legislative district.

t6

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. 1 1.

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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 a

county fonn the county convelrtion).

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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 multi-

member districts. The issues are simply different for redistricting plans where there are single-

member 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 MERITCONSTITUTIONAL STATUS MUST BE ADDRESSED ON THEMERITS 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

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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 MANCHESTERBARBARA E. SHAW and JOHN R. RIST

By their Attomeys:

MoLANE, GRAF, RAULERSON & MIDDLETON,PROFESSIONAL A TION

Date: May 2I,2012n, No. 664

900 , P.O.Box326Manchester, NH 03105Telephone (603) 625-6464

By:

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Certifïcate of Service

I hereby certify that on Ì:ly'ray 2I,2072,I served the foregoing Brief by electronic mailupon 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., AnneM. Edwards, Esq., Stephen G. LaBonte, Esq.,Ri , Esq., David A. Vicinanzo,Esq. and Anthony L. Galdieri, Esq., pursuant ay 74,2012 scheduling order.

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