Walker, et al. v. Exeter, et al.

2001 DNH 153

• Court: District Court, D. New Hampshire
• Decided: August 15, 2001
• Docket: CV-01-222-JM
• Status: Published

Opinion

Walker, et a l . v. Exeter, et a l . CV-01-222-JM 08/15/01 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

George M. Walker, et al.

v. Civil No. 01-222-JM Opinion No. 2001 DNH 153 Exeter Region Cooperative School District, et a l .

O R D E R

Plaintiffs in this action challenge the constitutionality of

N.H. Rev. Stat. Ann. ("RSA") 33:8, as amended in 1999, which sets

forth the percentage of votes required for a school district or

municipality to issue bonds or notes. Before me for

consideration is the defendant school districts' Motion to

Dismiss the plaintiffs' Petition for Declaratory Judgment,

pursuant to Fed. R. Civ. P. 12( b ) (6), and the plaintiffs'

obj ection.

Standard of Review

In evaluating the defendants' motion, the court must accept

the factual allegations contained in the plaintiffs' Petition as

true and draw all reasonable inferences in the plaintiffs' favor.

See Blackstone Realty LLC v. F.D.I.C., 244 F.3d 193, 197 (1st

Cir. 2001); Tompkins v. United Healthcare of New England, Inc.,

203 F.3d 90, 93 (1st Cir. 2000) . "A Rule 1 2 (b) (6) motion will be granted only if, when viewed in this manner, the pleading shows

no set of facts which could entitle plaintiff[s] to relief."

Goolev v. Mobil Oil Corp., 851 F.2d 513, 514 (1st Cir. 1988).

Although the threshold for stating a claim under Rule

12(b)(6) may be low, it is real. Id. While I must construe all

well-pleaded facts in the plaintiffs' favor, I need not accept

any unsupported conclusions or interpretations of law. See Stein

v. Roval Bank of Canada, 239 F.3d 389, 392 (1st Cir. 2001); Roqan

v. Menino, 175 F.3d 75, 77 (1st Cir. 1999) .

Background

The following facts are taken from the plaintiffs' Petition.

Each of the defendant school districts is a political subdivision

of the State of New Hampshire. Each of the plaintiffs is an

individual who resides within one of the defendant school

districts and is entitled to vote at the school district's annual

meeting. Prior to 1999, the voters in each of the defendant

school districts adopted RSA 40:13, which changed the district's

voting procedure from a town meeting procedure to an official

ballot procedure. At the time, RSA 33:8 required a two-thirds

vote to authorize a school district to issue bonds, whether that

school district used the official ballot or the town meeting

2 method of voting.1

In 1999, however, the New Hampshire Legislature amended RSA

33:8 to lower the supermajority needed to issue bonds to three-

fifths in those districts that had adopted the official ballot

voting procedure. The amendment did not alter the two-thirds

vote required to issue bonds in districts using the town meeting

voting procedure.2 The legislative history of the amendment

reveals that the Legislature's purpose was to reduce the

influence of voters opposing bond issues in official ballot

districts where, the legislators believed, it had become more

difficult to obtain bond issue approval.3

2In New Hampshire, school districts issue bonds in order to fund school construction and renovation. See McGraw v. Exeter Region Coop. Sch. List., 765 A. 2d 710, 711 (N.H. 2001) . The indebtedness on those bonds is paid for with property tax revenues raised from the respective community.

2RSA 33:8, as amended, provides in relevant part: "the issue of bonds or notes by any municipal corporation . . . except a school district or municipality which has adopted official ballot voting procedures pursuant to RSA 40:13 shall be authorized by a vote by ballot of 2/3 . . . The issue of notes or bonds by a school district or municipality which has adopted official ballot voting procedures pursuant to RSA 40:13 shall be authorized by a vote of 3/5."

3The defendants argue that the New Hampshire Legislature had several reasons for amending RSA 33:8, which the plaintiffs did not describe in their Petition. For example, the defendants assert that the Legislature found that the official ballot procedure eliminated the concerns that had justified the need for

3 Subsequent to the effective date of the 1999 amendment, the

voters in each of the defendant school districts voted to approve

bond issues by a majority greater than three-fifths, but less

than two-thirds. Each of the plaintiffs voted to oppose the bond

issue in his or her respective school district.

Discussion

The question raised by the defendants' motion to dismiss is

whether the 1999 amendment to RSA 33:8 violates the Equal

Protection Clause of the Fourteenth Amendment to the

Constitution. The plaintiffs claim that the amendment is

unconstitutional because it impermissibly treats citizens who

vote on bond issues in official ballot districts differently from

citizens who vote on bond issues in town meeting communities.

The defendants argue first that RSA 33:8 raises no equal

protection concerns because voters residing in separate

a two-thirds vote on bond issues. In addition, according to the defendants, the Legislature found that the two-thirds voting requirement in official ballot districts magnified the influence of voters in the minority and enabled them to defeat the majority's efforts to approve bond issues. In support of their reading of the amendment's legislative purpose, the defendants attached a copy of the legislative history to their motion to dismiss. Because the legislative purpose for amending RSA 33:8 does not affect my ruling on the current motion, however, I decline to examine the Legislature's motives and I accept the plaintiffs' characterization of the legislative history for purposes of this opinion.

4 geographic units operating under different systems of local

government are not similarly situated; and second, even if voters

residing in different school districts were similarly situated,

RSA 33:8 is rationally related to a legitimate government purpose

and survives equal protection scrutiny.

The defendants' first argument is dispositive. "The Equal

Protection Clause commands that no State shall 'deny to any

person within its jurisdiction the equal protection of the laws.'

This provision creates no substantive rights. Instead, it

embodies a general rule that States must treat like cases alike

but may treat unlike cases accordingly." Vacco v. Quill, 521

U.S. 793, 799 (1997)(citations omitted). Significantly for this

case, equal protection "relates to equality between persons as

such rather than between areas . . . 'It means that no person or

class of persons shall be denied the same protection of the laws

which is enjoyed by other persons or other classes in the same

place and under like circumstances'." Salsburg v. Maryland, 346

U.S. 545, 551(1954)(quoting Missouri v. Lewis, 101 U.S. 22, 31

(18 7 9)). Accord Griffin v. County Sch. Bd. of Prince Edward

County, 377 U.S. 218, 230 (1964); Walsh v. Massachusetts, 618

F.2d 156, 158 (1st Cir. 1980). Thus, uniformity among a state's

5 local subdivisions is not a constitutional requisite, and it is

not a violation of the Equal Protection Clause for New Hampshire

to impose different voting requirements for bond issues upon

different school districts using different voting procedures.

See Holt Civic Club v. Tuscaloosa, 439 U.S. 60, 68-9 (1978);

McGowan v. Maryland, 366 U.S. 420, 427 (1961); Salsburg, 346 U.S.

at 552.4

I reject the plaintiffs' argument, based on the New

Hampshire Supreme Court case of Claremont Sch. Dist. v. Governor,

142 N.H. 462 (1997), that funding for school construction and

renovation is a statewide concern, and that the governmental

entity at issue for equal protection purposes is not the school

district, but the entire State of New Hampshire. Although the

Claremont court declared that the taxing district is the State

and not the local governmental unit for purposes of levying

41he distinction that RSA 33:8 makes between voters in different communities using different forms of government is minor compared to the discrepancies created by other statutes that have withstood equal protection scrutiny. See e.g.. Holt Civic Club v. Tuscaloosa, 439 U.S. 60 (1978)(upholding constitutionality of statutes authorizing city's exercise of police powers over neighboring town without concomitant extension of the right to vote in city elections). Even as amended, RSA 33:8 preserves the disproportionate power that voters in the minority have consistently enjoyed over those in the majority.

6 property taxes used to fund public education, the case was

decided under the proportionality clause of the New Hampshire

Constitution and involved neither state nor federal equal

protection claims. Moreover, in McGraw v. Exeter Region Coop.

S c h . Dist., 765 A.2d 710 (N.H. 2001), the New Hampshire Supreme

Court declined to apply the reasoning of Claremont to the equal

protection context.5 Instead, the McGraw court ruled that voters

living in official ballot communities and voters living in town

meeting communities are not similarly situated for purposes of

the New Hampshire Constitution's equal protection provisions, and

specifically rejected the argument that RSA 33:8 violates the

equal protection guarantees of the State Constitution. See

McGraw, 765 A.2d at 712-13. I find no logical basis for the

plaintiffs' proposal that this court extend Claremont to this

5I do agree with the plaintiffs that a logical extension of Claremont would render the funding of public school buildings in New Hampshire a statewide concern. In ruling that the taxing district is the State, the Claremont court did not specifically distinguish between property taxes levied to fund public school operations and monies raised to fund school facilities. Furthermore, the Claremont court found that the New Hampshire Constitution compels the State to provide public school students an adequate education, and it is difficult to conceive that a constitutional right to an adequate education does not encompass the right to receive that education in minimally adequate facilities. Nonetheless, neither federal nor New Hampshire equal protection law supports the plaintiffs' position.

7 case, but reject McGraw. Neither case analyzed the right to

equal protection under the United States Constitution, but McGraw

at least involved the same equal protection analysis under the

New Hampshire Constitution that this court must engage in under

federal law. Even if this court looked to the New Hampshire

Supreme Court's analysis of State constitutional law for

guidance, therefore, the court still would find for the

defendants.6

6I reject the plaintiffs' suggestion that the sweeping language used by the United States Supreme Court in Bush v. Gore, 531 U.S. 98 (2000) supports an equal protection claim against the defendants in this action. The Supreme Court was cautious to limit its ruling in that case to the circumstances before it, which involved a statewide election for the President of the United States. See i d . at 109 ("Our consideration is limited to the present circumstances . . . ."). Therefore, its applicability to this or any other case involving concerns over voting rights and equal protection is dubious. In addition, numerous commentators and law professors have criticized the decision for its usurpation of state court power and its unjustifiable expansion of the Equal Protection Clause. See e.g., Erwin Chemerinsky, Bush v. Gore Was Not Justiciable, 76 Notre Dame L. Rev. 1093 (2001)(arguing that (1) Bush lacked standing to assert his equal protection claims, (2) the case was not ripe for review, (3) the Court should have allowed the Florida Supreme Court to interpret Florida law, and (4) the Court should have abstained because the case involved a political question); David A. Strauss, Bush v. Gore: What Were They Thinking?, 68 U. Chi. L. Rev. 737 (2001) (criticizing the Court's decision to intervene and describing the Court's ruling on equal protection as "very adventuresome" and "novel"); Cass R. Sunstein, Order Without Law, 68 U. Chi. L. Rev. 757 (2001)(criticizing the Court's reasoning as "embarrassingly weak" and noting that its equal protection holding lacked any basis in Conclusion

The plaintiffs have failed to state an equal protection

claim under the United States Constitution. Accordingly, the

defendant school districts' Motion to Dismiss (document no. 4) is

granted. The Clerk is directed to enter judgment consistent with

this Order.

SO ORDERED.

James R. Muirhead United States Magistrate Judge

Date: August 15, 2001

cc: Paul McEachern, Esq. David H. Barnes, Esq.

history or in precedent). Whether the court was in fact guided more by personal preferences than by sound legal principles need not be addressed since the court has expressly indicated its intent to severely limit the case and the expert analysts suggest that the case has little or no value as precedent in the equal protection area.