"Real liberty is neither found in despotism or the extremes of democracy, but in moderate governments.
Alexander Hamilton

Friday, February 17, 2017

Be Careful What You Wish For

A recent NH Supreme Court decision on a case regarding alteration of a petitioned warrant article during a Deerfield NH Deliberative session, determined that altering the intent of a warrant article was allowed so long as it doesn't change the subject matter.
The warrant articles in question, proposed making the police chief and welfare director elected, instead of appointed. They were amended at the deliberate session to say: “Shall we express an advisory view that the position … be an appointed position, as it is at the present time?”
The court in its ruling stated that "..we conclude that RSA 40:13, IV(c) prohibits only amendments that eliminate a warrant article’s textual subject matter, not amendments that may change the intent or purpose sought to be achieved by the article’s drafters,”
Deerfield is an SB2 town and according to the NH Municipal Association,  "The Court decided that the statute was intended to prohibit warrant articles from being amended in a manner that eliminates their subject matter entirely, thereby making it impossible for voters at the second session to determine what the article is about. Although these amendments substantially changed the original articles, the subject matter—the welfare director and police chief positions—remained the same. "
The NHMA " Practice Pointer" states that  "Deliberative session amendments to warrant articles in an SB2 town may substantially change a warrant article, provided the subject matter is not effectively eliminated. This means that, as long as the subject matter remains the same, the intent of the article may be changed by amendment." Does this apply to traditional town meeting? Doesn't seem so and moderators all over NH may be challenged this town meeting season to rule on similar amendments.

Why am I writing this? There is some movement afoot to amend one of the petitioned warrant articles at the coming town meeting to " To see if the town will vote to direct the governing body to continue to plow private roads as has been, and is the present practice."  Presumably, this possible amendment will be proposed for ARTICLE 16 "To see if the Town will vote to rescind and repeal Board of Selectmen Policy Number 2 establishing recommendations for so called “private roads”."
The Town Moderator will have to make a determination as to whether it changes the subject matter or the Legislative body can overrule his decision. 

No way to know what will happen or the outcome, but I want to focus on a scenario that may actually increase the likelihood of ending the town plowing of private roads. 
Lets say that the article is successfully amended and passes. Can it be enforced? No. We can't enforce warrant articles that are not legal. The opinion of many attorneys including our own,  is that towns can't use public money for private benefit.
If this were to be challenged in court, it is possible that it could backfire and the town could be ordered to discontinue the practice.
We are already plowing private roads, have budgeted funds for 2017, and have stated repeatedly we are not going to discontinue doing so and are seeking a legislative solution. Why muddy the waters?

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