Albert v. City of Laconia

592 A.2d 1147, 134 N.H. 355, 1991 N.H. LEXIS 64
CourtSupreme Court of New Hampshire
DecidedJune 12, 1991
DocketNo. 90-353
StatusPublished
Cited by4 cases

This text of 592 A.2d 1147 (Albert v. City of Laconia) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Albert v. City of Laconia, 592 A.2d 1147, 134 N.H. 355, 1991 N.H. LEXIS 64 (N.H. 1991).

Opinion

Brock, C.J.

The plaintiffs, nineteen Laconia voters, challenge the Superior Court’s (McHugh, J.) order upholding the validity of procedures used by the city of Laconia in amending its municipal charter.

[356]*356On appeal the plaintiffs argue that, when the defendant amended its municipal charter, it violated New Hampshire’s “home rule” statute, RSA chapter 49-B (Supp. 1990), in two ways. First, they assert that the changes to the city charter were of such a fundamental and broad nature that the city should have followed the charter revision procedures under RSA 49-B:3 and :4 (Supp. 1990), instead of the charter amendment procedures under RSA 49-B:5 (Supp. 1990). Second, they argue that, even if it was correct to use the amendment procedures, the city failed to comply with the statute in presenting a referendum question which violated the “single subject” requirement of RSA 49~B:5, 11(a) (Supp. 1990). For the reasons set forth below, we affirm.

The facts as presented to the trial court are as follows. Since 1970, the Laconia City Council has consisted of nine councilors, six of whom were elected from each of the city’s wards and three of whom were elected city-wide, or “at-large.” Beginning in 1987, the position of Mayor was filled by the councilor “at-large” who received the most votes. In the summer of 1989, after having collected the signatures required by RSA 49-B:5, II (Supp. 1990), a group of Laconia citizens successfully petitioned the Laconia City Council to include a referendum question on the November 1989, city-wide ballot which sought approval of several changes in Laconia’s city charter.

The referendum question and explanation, as presented on the ballot to the Laconia voters, was as follows:

“Shall the municipality approve a charter amendment to Sections 3.01 and 3.08, to the City Charter, as summarized below:
The governing body of the city shall be an elected city council headed by a mayor who will be elected at large, by popular vote.
The council shall be composed of ward councilors, one elected from each of the city wards.
The elected mayor shall have the power to vote only in the event of a tie vote among the councilors.
At its first meeting, the council shall elect one of its own members to act as mayor pro tem. The mayor pro tem shall at all times retain his authority to vote as his ward’s councilor.
EFFECT OF CHANGE
This change eliminates three at-large council seats and provides for one councilor from each ward and an at-large [357]*357mayor who has authority to vote only in the event of a tie vote by the council. Under the current charter, the mayor is the at-large councilor receiving the highest number of votes.
It provides that at its first meeting, the council shall elect one of its own members to act as mayor pro tem and that he shall at all times retain his authority to vote as his ward’s councilor. Under the present charter, the mayor pro tem is the at-large candidate receiving the second highest number of votes.
This change leaves the City Council/City Manager form of government unchanged. Except for voting power of the mayor, the duties of the council, mayor and city manager remain as provided for, in the current charter.”

On a vote of 2,134 in favor and 1,241 against, the proposed amendments were approved. The plaintiffs then petitioned the superior court to review the validity of the procedures used by the city in placing the referendum question on the ballot. See RSA 49-B:10 (Supp. 1990). After an evidentiary hearing, the trial court made findings of fact and ruled that the amendments were validly enacted. It is from this ruling that the plaintiffs now appeal.

RSA chapter 49-B (Supp. 1990), New Hampshire’s “home rule” statute, provides two means by which a municipality, such as Laconia, can make changes to its charter: “revision”, see RSA 49-B:3 and :4 (Supp. 1990), and “amendment,” see RSA49-B:5 (Supp. 1990). The initial question on appeal is whether the changes presented to Laconia voters on the November ballot were properly treated as an amendment, rather than as a revision, to the charter.

Although neither “amendment” nor “revision” is defined by the statute, an examination of the procedures required for accomplishing each provides some guidance as to their respective meanings and purposes. Both charter amendment and revision may be initiated by voter petition presented to the municipal officers. See RSA 49-B:3, II, :5, II (Supp. 1990). If the petition calls for an amendment, the petition form must set out the specific terms of the amendment. RSA 49-B:5, III (Supp. 1990). If the form is deemed sufficient, a public hearing is held on the proposed amendment and then the amendment is “submitted to the voters at the next regular municipal election. . . .” Id. at IV(e) (Supp. 1990).

A proposed charter revision, on the other hand, is neither as specific, nor as expeditiously handled, as a proposed amendment. A voter’s petition for a charter revision requests that “a charter com[358]*358mission for the purpose of revising the municipal charter . . be established. RSA49~B:3,111(b)(1) (Supp. 1990). No specific proposed charter revision is placed in the petition. If the revision petition is deemed sufficient, the only question placed on the ballot is: “Shall a charter commission be established for the purpose of revising the municipal charter. ...” Id. at V. Any specific changes to the charter are then proposed by the charter commission, but only after extensive public consideration and upon the submission of both a preliminary and a final report by the commission on its proposed changes. RSA 49-B:4, V (Supp. 1990). The legislature clearly anticipated that the charter commission process not only would be lengthy but would place a significant demand upon city resources in order to accomplish the commission’s goals. See RSA 49-B:4 (Supp. 1990).

Thus, from the foregoing, it is clear that the amendment process is directed toward specific changes to a city charter, whereas the revision process is less specific and contemplates the possible need for a general, more fundamental, change in a city’s governmental structure. In a case interpreting a “home rule” statute similar to that found in New Hampshire, the Michigan Supreme Court aptly explained the difference as follows:

“ ‘Revision’ and ‘amendment’ have the common characteristics of working changes in the charter, and are sometimes used inexactly, but there is an essential difference between them. Revision implies a re-examination of the whole law and a redraft without obligation to maintain the form, scheme, or structure of the old. As applied to fundamental law, such as a constitution or charter, it suggests a convention to examine the whole subject and to prepare and submit a new instrument, whether the desired changes from the old be few or many. Amendment implies continuance of the general plan and purport of the law, with corrections to better accomplish its purpose. Basically, revision suggests fundamental change, while amendment is a correction of detail.”

Kelly v. Laing, 259 Mich. 212, 217, 242 N.W. 891, 892 (1932).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Fair Elections Portland, Inc. v. City of Portland
2021 ME 32 (Supreme Judicial Court of Maine, 2021)
Handley v. Town of Hooksett
785 A.2d 399 (Supreme Court of New Hampshire, 2001)
City of Claremont v. Craigue
608 A.2d 866 (Supreme Court of New Hampshire, 1992)

Cite This Page — Counsel Stack

Bluebook (online)
592 A.2d 1147, 134 N.H. 355, 1991 N.H. LEXIS 64, Counsel Stack Legal Research, https://law.counselstack.com/opinion/albert-v-city-of-laconia-nh-1991.