City of Claremont v. Craigue

608 A.2d 866, 135 N.H. 528, 1992 N.H. LEXIS 72
CourtSupreme Court of New Hampshire
DecidedMay 5, 1992
DocketNo. 91-402
StatusPublished
Cited by2 cases

This text of 608 A.2d 866 (City of Claremont v. Craigue) 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
City of Claremont v. Craigue, 608 A.2d 866, 135 N.H. 528, 1992 N.H. LEXIS 72 (N.H. 1992).

Opinion

JOHNSON, J.

The respondents, five registered voters of the City of Claremont, appeal the Superior Court’s (Morrill, J.) order granting the City of Claremont’s petition for declaratory judgment. The court declared that proposed changes to the Claremont city charter, which a majority of Claremont’s voters approved, are invalid because they are inconsistent with State statutes. For the reasons that follow, we affirm.

Since the voters of the City of Claremont adopted a city charter in 1947, Claremont has had a city council-city manager form of government. The Claremont City Council has always prepared and adopted the city’s budget. In 1990, the respondents, displeased with increasing city budgets, proposed the following three changes to the city charter:

“41. BUDGET MEETINGS. PUBLIC MEETINGS ON THE BUDGET SHALL BE HELD BEFORE ITS FINAL ADOPTION BY THE VOTERS AT SUCH TIME AND PLACE AS THE COUNCIL SHALL DIRECT, AND NOTICE OF SUCH PUBLIC MEETING TOGETHER WITH A COPY OF THE BUDGET AS SUBMITTED SHALL BE PUBLISHED AT LEAST TWO WEEKS IN ADVANCE BY THE CITY CLERK.
42. DATE OF FINAL ADOPTION. THE BUDGET SHALL BE FINALLY ADOPTED BY A MAJORITY VOTE OF THE VOTERS AND FINALLY ADOPTED NOT LATER THAN THE LAST DAY OF THE SECOND [530]*530MONTH OF THE FISCAL YEAR. SHOULD THE COUNCIL TAKE NO FINAL ACTION ON OR PRIOR TO SUCH DAY, THE BUDGET AS SUBMITTED SHALL NOT EXCEED THE PREVIOUS YEARS BUDGET LESS FIVE PERCENT AND FINALLY ADOPTED BY THE PEOPLE.
43. APPROPRIATIONS AFTER BUDGET IS ADOPTED. NO APPROPRIATION SHALL BE MADE FOR ANY PURPOSE NOT INCLUDED IN THE ANNUAL BUDGET AS ADOPTED UNLESS VOTED BY THE VOTERS AFTER A PUBLIC MEETING HELD TO DISCUSS SAID APPROPRIATION. THE VOTERS SHALL BY RESOLUTION DESIGNATE THE SOURCE OF ANY MONEY SO APPROPRIATED.”

A majority of Claremont’s voters voted in favor of the proposed changes in November 1990. Subsequently, the members of the Claremont City Council petitioned the superior court for a judgment declaring the changes invalid, on the grounds that the proposed changes are in derogation of RSA chapter 49-B and intrude upon powers reserved for city councils. In July 1991, the court issued an order declaring the changes invalid because “the process of government put forth by the defendants does not comport with the modes of government envisioned by the legislature.” We agree.

RSA 49-B:2 sets out the scope of a municipality’s home rule powers.

“49-B:2 Scope of Authorization.
I. Any incorporated town or city, regardless of population, shall be entitled to exercise the home rule powers recognized by article 39, part first, of the New Hampshire constitution, and implemented through this chapter, to create a charter commission and to present to its inhabitants by referendum a municipal charter, in which they may establish either a town or city government.
II. If the proposed charter denominates the municipality as a town, the charter shall designate one of the following forms of town government:
(a) Board of selectmen — town meeting.
(b) Town council — town manager and mayor, with or without budgetary town meeting.
(c) Town council — town manager or mayor, with or without budgetary town meeting.
[531]*531III. If the proposed eharter denominates the municipality as a city, the charter shall designate one of the following forms of city government:
(a) Mayor — board of aldermen or mayor — city council.
(b) City council — city manager.
IV. While limited to the adoption of one of the above-listed forms of city or town government, the voters of a municipality may choose a form of government which, in their opinion, specifically meets the needs of their municipality.
Any charter may address such matters of loeal concern as number of elected officials; at-large or district representation; manner of filling vacancies; powers of nomination, appointment, and confirmation; and terms of office, so long as the provisions of the charter are not contrary to current state law.”

Claremont is a city. Accordingly, the extent of Claremont’s home rule power is the prerogative to choose one of the two specified forms of city government: either a mayor-board of alderman/city council form, or a city council-city manager form. Claremont’s charter denominates the latter. The proposed changes would give Claremont a form of government similar to that described in RSA 49-B:2, 11(c), an option available only to towns in New Hampshire. The legislature specifically made provision for a “budgetary town meeting” in the paragraph setting forth permissible forms of town government, RSA 49-B:2, II, but omitted any reference to budgetary approval by city voters in the paragraph specifying the two permissible forms of city government, RSA 49-B:2, III. We find that the legislature’s failure to provide for budgetary approval by a city’s voters manifests its intent to prohibit that form of government for cities.

Moreover, RSA 49-B:2, IV which grants to a municipality discretion in tailoring its charter to its needs, fails to list the mode of budgetary approval as one of those matters subject to local modification. In August 1991, the legislature amended RSA 49-B:2 and created a new chapter, RSA ch. 49-C (Supp. 1991), which governs the conduct of city government. RSA 49-C:23,1 (Supp. 1991) makes explicit the legislature’s intent that the city council approve the annual budget: “[A]n annual budget shall be finally adopted by the elected body.”

Furthermore, the duties imposed upon a city council by RSA chapters 44 and 47 are fundamentally incompatible with voter ap[532]*532proval of the annual budget. The legislature has conferred substantial authority upon city officials in order to facilitate the conduct of city government. For example, a city council has the power to purchase property for the city, RSA 47:5. A city council would be deprived of the power to purchase property if it could not guarantee that it would fund its purchases. The power to purchase implies the power to fund. The legislature has a strong interest in ensuring that the power to contract and the power to approve the budget are held by the same entity. The respondents’ changes would in effect give the city’s voters a veto over any proposed fiscal action by the council. Such a disjunction of power could render a city unable to fulfill its duties under RSA chapters 44 and 47.

Therefore, for all the foregoing reasons, we hold that the respondents’ proposed changes would create an impermissible form of government under State law.

The respondents next argue that, to the extent that RSA chapter 49-B prohibits voter ratification of a city’s budget, the statute violates part I, article 39 of the New Hampshire Constitution. Part I, article 39 defines the extent of municipalities’ home rule power in the State of New Hampshire:

“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 of such city or town upon a referendum to be provided for in said law.

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Related

City of Manchester v. Secretary of State
13 A.3d 262 (Supreme Court of New Hampshire, 2010)
Opinion of the Justices
746 A.2d 981 (Supreme Court of New Hampshire, 1999)

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Bluebook (online)
608 A.2d 866, 135 N.H. 528, 1992 N.H. LEXIS 72, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-claremont-v-craigue-nh-1992.