A Matter of Equity, Not Law - Granite Grok

A Matter of Equity, Not Law

This afternoon a Judge seemingly took the City of Manchester to task for it’s handling of a School Charter Commission’s filing period, even questioning whether the City acted in bad faith.  Judge Anderson’s ruling will come down Monday, according to him, one day before Manchester’s Municipal Elections.

Related: Well is Mayor Joyce Craig and the Manchester City Charter Commission about to get a Wedgie?

The complaint, filed on October 21, alleges that Mark Warden, a resident of Manchester, was not allowed to file for the School Charter Commissioner that will be elected Tuesday during the prescribed filing period. HB544, passed and signed this year, mandates the election of a 9 member commission this Tuesday during the regular municipal elections.

Matthew Normand, City Clerk, did not allow Warden to file for the position on October 7th, and told him that he would not be able to file for the position as the filing period was held in July. Specifically, it was open July 8th through 18th.

HB544 wasn’t signed into law until July 10th, when it became effective. “How is that not in bad faith,” Judge Anderson quipped.

The RSA cited in HB544 that determines how the commission shall be chosen is RSA 49-b:4(b) which states

(b) Members shall be elected in the same manner as the municipal officers except that they shall be elected at large and without party designation. The names of the candidates shall be arranged on the ballot in an order determined by lot, publicly selected by the city or town clerk. Declarations of candidacy for the commission shall be filed as provided in RSA 669:19, except that the filing period shall begin on the fourth Wednesday before the election and end on the Friday of the following week. (Emphasis Added)

NH RSA 49-b:4(b)

The City attempted to argue that the first sentence applies, the second sentence applies, but the third sentence… well… that one does not apply. The Judge did not appreciate their logic, and accused them of having a “tortured reading of Statute.”

In short, he said if sentence one applies to both cities and towns, which is apparent, and sentence two applies to both cities and towns, then it doesn’t follow that the third sentence, crafted by the legislature, wouldn’t apply to both cities and towns.

Court of Equity

court of equityequity court or chancery court is a court that is authorized to apply principles of equity, as opposed to those of law, to cases brought before it.

Wikipedia

Today’s hearing was held in a court of equity. Basically, it means the Judge may choose to ignore the law just like Manchester did, and grant a judgement based on fairness, instead of statute. So, even though on it’s merits the case against Manchester seems to be a slam-dunk it might not matter. At all.

The election is scheduled for Tuesday, November 5. The ruling from Judge Anderson is, according to him, going to be handed down on Monday, November 4. There is no possible way to remedy the situation, as it was the testimony of City Clerk Matthew Normand it would be both “impractical and impossible” to print 35,000 new ballots before the election.

The Judge inquired about a Special Election for the commission, but mused it may disenfranchise voters who would otherwise get their say on Tuesday. He also inquired about voiding the results of the vote for this office entirely, but again mused that it would invalidate the lawful authority of the legislature, who crafted this mandate.

So, there’s no way for Mr. Warden to appear on the ballot, and equity demands that voters get their say. Scheduling the special election for the same day as the Presidential Primary also came up, but would appear to also disenfranchise certain voters who might not vote that day. The Judge is in a pickle here.

While a surprise may be in the offing it seems unlikely and the election probably moves forward without Mark Warden.

What’s the Law Worth?

Patrick Long, State Rep from Manchester, was the sole-sponsor of this bill. Instead of going through the Election Law Committee in the House, where it belonged, it was rammed through Education. It received a 17-0 unanimous OTP recommendation, and slid through the House on a Voice Vote of the Consent Calendar.

One of over 1,000 bills introduced for 2019 session, it’s not unrealistic that no one caught the problems with this bill, which are many. After all, most reps are not from Manchester, so why meddle in the affairs of that City?

All that aside, the bill is the law, as it was passed by both chambers of the legislature and signed by the Governor. Specifically, the bill requires the filing period to open “[t]he filing period shall begin on the seventh fourth Wednesday and end on the Friday of the following week before the town election.” (RSA 669:19, as modified by 49-b:4(b)) That specific filing period shall be October 9th through October 18th, 2019.

Manchester completely ignored the statute, and applied instead the City Charter. And they may just get away with it.

So, what’s the law worth, when Cities and Towns can ignore and flaunt it at will? We see towns, school boards, and cities trying and passing ordinances they are not statutorily authorized to pass. And the Attorney General sits on his hands, doing absolutely nothing about flagrant violations of state law by elected officials.

Related: What’s The Point of Dillon’s Rule?

Andru Volinsky and the other two Democrats on the Executive Council had different reasons, but it seems to be a good thing that AG MacDonald was not confirmed to be Chief Justice of the New Hampshire Supreme Court after all. He can’t even do that job he has now, or just chooses not to.

In this particular case we have a law that was passed for one sole purpose; a city that ignored parts of that law that they didn’t like, or weren’t convenient enough; a Secretary of State who agreed the law was violated and forwarded a complaint to the Attorney General; an Attorney General who didn’t execute the authority of his office; and potentially a judge that grants relief not based on the law but based on equity.

Some system. Some justice.