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Bar News - February 15, 2017

Section Connection: Municipal Section Members Discuss New Ruling on Town Meeting Amendments


The NH Supreme Court in January issued a decision in Cady v. Deerfield, analyzing the parameters within which an “SB2” town can amend petitioned warrant articles. This decision was the subject of much discussion at a recent meeting of the NH Bar Municipal and Government Law Section.

SB2 towns have a bifurcated town meeting. Warrant articles are discussed, explained, and debated at a “deliberative session” and later voted on through official ballot at a second session. Articles can be amended at the deliberative session; however, RSA 40:13, IV(c) prohibits amendments that “eliminate the subject matter of the article.”

In Cady, an SB2 town received petitioned warrant articles that sought to have the town’s welfare director and police chief become elected positions with a set salary. At the deliberative session, the articles were amended to see if the town meeting would issue an “advisory view” that the two positions would be appointed, changing how the positions were to be filled and striking any mention of compensation. One of the petitioners of the articles sued, arguing that the amendments violated RSA 40:13, IV(c).

The Supreme Court determined 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.” The Court further stated that “RSA 40:13, IV(c) does not prohibit amendments that change, but do not eliminate, the entire subject matter of the article.” In doing so, the Court construed a town’s ability to amend a warrant article broadly. The Court also held that the subject amendments did not violate RSA 40:13 because the subject matter remained the same, i.e. how the town should fill two positions.

The Court’s decision provides guidance into what constituted a permissible amendment. Municipal practitioners had been weary of expansive interpretations of a town’s ability to amend since the Rockingham County Superior Court’s decision in Bailey v. Town of Exeter (2011). In Bailey, the Superior Court ruled that insertion of the word “not” into a warrant article, essentially “nullifying” the article’s effect, was prohibited under RSA 40:13, IV(c). Although Cady distinguished Bailey on the facts, the Supreme Court’s construction of “eliminate the subject matter” suggests (but does not state with certainty) that such an amendment would be permissible so long as it still addresses the same subject matter. What remains prohibited is the practice of striking the entire article.

Eric A. Maher

Eric A. Maher is a non-equity partner at Donahue, Tucker, & Ciandella and chair of the NHBA Municipal and Government Section.

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