THE STATE OF NEW HAMPSHIRE

Transcription

1 THE STATE OF NEW HAMPSHIRE SUPREME COURT No City of Manchester, Barbara E. Shaw and John R. Rist et al. v. Secretary of State Interlocutory Transfer from Superior Court without Ruling BRIEF OF PETITIONERS CITY OF MANCHESTER BARBARA E. SHAW AND JOIIN R. RIST CONCERNING STANDING Counsel for Petitioners: Thomas J. Donovan, No. 664 McLANE, GRAF, RAULERSON & MIDDLETON PROFESSIONAL ASSOCIATION 900 Elm Street, P.O. Box 326 Manchester, NH To be argued by: Thomas J. Donovan

2 TABLE OF AUTIIORITIES TABLE OF CONTENTS Page...ii QUESTTON PRESENTED FOR REVrE\il...1 CONSTITUTIONAL PROVISIONS AND STATUTES STATEMENT OF TIrE CASE STATEMENT OF THE FACTS...,...4 SUMMARY OF THE ARGUMENT ARGUMENT I. THIS COURT NEED NOT REACH THE STANDING OF PARTICULAR PETITIONERS BECAUSE THERE ARE, SUFFICIENT PETITIONERS WITH UNDISPUTED STA IDING TO PERMIT A SPEEDY DETERMINATION OF THE CONSTITUTIONAL CIIALLENGES II. MANCHESTER AND OTHER MUNICIPALITIES HAVE STANDNG AS PETITIONERS...,...L2 A. Municipal Standing Permitted in Redistricting Cases...,...12 III. B. New Hampshire Municipalities Have Broad Standing Rights...15 THE INDIVIDUAL PETITIONERS ALSO HAVE STANDING TO CHALLENGE RSA 662: IV. \ühether COMMUNITY OF INTEREST FACTORS MERIT CONSTITUTIONAL STATUS MUST BE ADDRESSED ON THE MERITS AND NOT AS A STANDING ISSUE CONCLUSTON...20 REQUEST FOR ORAL ARGUMENT i-

3 TABLE OFAUTHORITIES C.sns Pase(s) Appeal of Town of Exeter, 126 N.H. 68s (198s)...16, 18 Avery v. Department of Education, 162 N.H. 604 (2011) Baer v. Department of Education, 160 N.H. 727 (2010)...18 Below v. Gardner, 148 N.H. (2002)...11 Board of llater Commissioners v. Mooney, 139 N.H. 621 (t99s)...15 Brookline v. Secretary of the Commonwealth, 631 N.E.2d 968 (Mass. 1994)...13 Brouillard v. Governor and Council, 114 N.H. s4t (t974)...17 Burling v. Chandler, 148 N.H. t43 (2002)...11 Canaan v. Secretary of State, 1s7 N.H. 795 (2003)...72, t3 Claremont School District v. Governor, 138 N.H. 1S3 (1993)...1s Claremont School District v. Governor, 144 N.H. s90 (1999)...1s Greenwood Village v. Petitíoners þr the Proposed City of Centennial, 3 P.3d 427 (Co1o.2000) Hayes v. Division of Aeronautics, 1s2 N.H. 30 (200s)...18 New Hampshire Assoc. of Counties v. State, 158 N.H. 284 (1999)

4 O'Neil v. Thomson, 114 N.H. t55 (t974)...11, 17 Opinion of the Justices (Weirs Beach),134 N.H. 7Il(1991)...15 Powers v. Ohio, 499 U.S. 400 (1999)...r4 Reynolds v. Sims, 377 U (1964)...t2,13,r4 Stephenson v. Bartlett, s62s.e.2d 377 (N.C. 2002); s82 S.E.2d 247 (2003)...19 Town of Nelsonv. Department of Transportation, 146 N.H. ]s (200r)...16 Twin Falls County. v. Idaho Commission on Redistricting, 271P.3d 1202 (Idaho 2012) United States v. Hays, sls u.s. 731 (r99s)...19 [4reel<s Restaurqnt Corp. v. City of Dover, 119 N.H. s4r (1979)...19 Srarurns RSA 24: RSA 44:3, , 15 RSA 198:40-a and 4L RSA491: , 10, 11, 17, 18 RSA 662:5 (2012)... passim RSA Chapter Voting Rights Act of 1965,42 U.S.C. $ 1973 et seq CoNsrrrurroNAr, Pnovrsrons United States Constitution, Fifteenth Amendment United States Constitution, Fourteenth Amendment N.H.CONST. pt. I, Article I,2 and

5 N.H. CONST., pt. II, Article , 13 N.H. CONST., pt. I, Article 28-a N.H.CONST. pt. I! Article Passim N.H.CONST. pt. II, Article Orrrsn Aurnomrrns 14 Loughlin, New Hampshire Practice: Local Government Law (3'd ed.2011) $ MacDonald, New Hampshire Practice: Civil Practice (3'd ed. 2010), $6.04, n. 11, $36.0s iv-

6 QUESTION PRESENTED FOR REVIEW Whether the City of Manchester, Petitioners who reside in Manchester, and other municipal and individual petitioners have standing to challenge the constitutionality of RSA 662:5 (2012) under N.H.CONST. Part I, Art. 1,2 and 11 and Part II, Art. 9 and 11. CONSTITUTIONAL PROVISIONS AND STATUTES New Hampshire Constitution Part I Article 1. [Equality of Men; Origin and Object of Government.] All men are bom equally free and independent; therefore, all govemment of right originates from the people, is founded in consent, and instituted for the general good. [Art.] 2. [Natural Rights.] All men have certain natural, essential, and inherent rights - among which are, the enjoying and defending life and liberty; acquiring, possessing, and protecting, property; and, in a word, of seeking and obtaining happiness. Equality of rights under the law shall not be denied or abridged by this state on account ofrace, creed, color, sex or national origin. [Art.] 11. [Etections and Elective Franchises.] All elections are to be free, and every inhabitant of the state of 18 years of age and upwards shall have an equal right to vote in any election. Every person shall be considered an inhabitant for the purposes of voting in the town, ward, or unincorporated place where he has his domicile. No person shall have the right to vote under the constitution of this state who has been convicted of treason, bribery or any willful violation of the election laws of this state or of the United States; but the supreme court may, on notice to the attorney general, restore the privilege to vote to any person who may have forfeited it by conviction of such offenses. The general court shall provide by law for voting by qualified voters who at the time of the biennial or state elections, or of the primary elections therefor, or of city elections, or of town elections by ofhcial ballot, are absent from the city or town of which they are inhabitants, or who by reason of physical disability are unable to vote in person, in the choice of any officer or officers to be elected or upon any question submitted at such election. Voting registration and polling places shall be easily accessible to all persons including disabled and elderly persons who are otherwise qualified to vote in the choice of any officer or officers to be elected or upon any question submitted at such election. The right to vote shall not be denied to any person because of the non-payment of any tax. Every inhabitant of the state, having the proper qualifications, has equal right to be elected into office. Part II [Art.] 9. [Representatives Elected Every Second Year; Apportionment of Representatives.] There shall be in the legislature of this state a house of representatives, biennially elected and founded on principles of equality, and representation therein shall be as

7 equal as circumstances will admit. The whole number of representatives to be chosen from the towns, wards, places, and representative districts thereof established hereunder, shall be not less than three hundred seventy-five or more than four hundred. As soon as possible after the convening of the next regular session of the legislature, and at the session in 1971, and every ten years thereafter, the legislature shall make an apportionment of representatives according to the last general census of the inhabitants of the state taken by authority of the United States or of this state. In making such apportionment, no town, ward or place shall be divided nor the boundaries thereof altered. [Art.] 11. [Small Towns; Representation by Districts.] When the population of any town or ward, according to the last federal census, is within a reasonable deviation from the ideal population for one or more representative seats, the town or ward shall have its own district of one or more representative seats. The apportionment shall not deny any other town or ward membership in one non-floterial representative district. When any town, ward, or unincorporated place has fewer than the number of inhabitants necessary to entitle it to one representative, the legislature shall form those towns, wards, or unincorporated places into representative districts which contain a sufficient number of inhabitants to entitle each district so formed to one or more representatives for the entire district. In forming the districts, the boundaries of towns, wards, and unincorporated places shall be preserved and contiguous. The excess number of inhabitants of district may be added to the excess number of inhabitants of other districts to form at-large or floterial districts conforming to acceptable deviations. The legislature shall form the representative districts at the regular session following every decennial federal census Laws, Chapter 9 9:1 State Representative Districts. RSA 662:5 is repealed and reenacted to read as follows: 662:5 State Representative Districts. The state is divided into districts for the choosing of state representatives, each of which may elect the number of representatives set forth opposite the district, as follows:... 9:2 Application. The changes in state representative districts established by this act shall not affect constituencies or terms of office of representatives presently in offrce. The state representative districts established by this act shall be in effect for the purpose of electing representatives at the 2012 state general election. If there shall be a vacaîcy in a state representatives district for any reason prior to the 2012 state general election, the vacancy shall be filled by and from the same state representative district that existed for the 2010 state general election. No provision of this act shall affect in any manner any of the proceedings of the membership of the house of representatives of the general court that assembled for a biennial session in January 201I.

8 9:3 Ward Boundaries; Legislative Districts. Ward boundaries adopted as of January 77,2012 shall be the ward boundaries used to determine state legislative districts beginning with the November 2012 state general election. 9:4 City of Portsmouth; Wards.... Effective Date. This act shall take effect upon its passage. Approved: Enacted in accordance with Part II, Article 44 of N.H. Constitution, without the signature of the govemor, March 28,2012. RSA 491:22, Judgments) I. Any person claiming a present legal or equitable right or title may maintain a petition against any person claiming adversely to such right or title to determine the question as between the parties, and the court's judgment or decree thereon shall be conclusive. The existence of an adequate remedy atlaw or in equity shall not preclude any person from obtaining such declaratory relief. However, the provisions of this paragraph shall not affect the burden of proof under RSA 49I:22-a or permit awards of costs and attomey's fees under RSA 491 :22-b indeclaratory judgment actions that are not for the purpose of determining insurance coverage. RSA 44:3 (City Councils) The administration of all the fiscal, prudential and municipal affairs of any city, and the govemment thereof, shall be vested in one principal officer called mayor, a board of aldermen, and a common council, and the said mayor and aldermen and common council, in their joint capacity, shall be called the city councils. RSA 44:4 (Wards) Each ward into which a city may be divided by law, or in pursuance of law, shall be a town for the purpose of the election of govemor, councilor, state senator, representative to the general court, all county offrcers, senator and representative in congress, and electors ofpresident and vice-president of the United States, and in all matters relating to jurors. -1

9 STÄTEMENT OF THE CASE Section I of the Interlocutory Transfer Statement sets forth the Statement of the Case. Only one party filed a brief challenging the standing of Petitioners, the Intervenor, denominated as "New Hampshire House of Representative, by and through Representative William O'Brien, in his official capacity as Speaker of the House of Representatives of the General Court of the State of New Hampshire" ("Speaker O'Brien"). The Secretary of State, by the Attorney General, has noted his concurrence in that brief. STATEMENT OF THE FACTS Section II of the Interlocutory Transfer Statement sets forlh the Statement of the Facts. Of particular relevance to Petitioners City of Manchester, Barbara E. Shaw and John R. Rist ("Manchester Petitioners") are the following facts as numbered in Section II: 3. The City of Manchester ("Manchester") is a municipality with a total population, according to the 2010 Decennial Census conducted by the United States Department of Commerce Bureau of the Census (the "Census"), of 109,565. Manchester has divided itself into twelve wards of roughly equal population based on 2010 Census block data. The population of those wards according to the 2010 Census is as follows: a. b. c. d. e. f. û Manchester Ward I - 9,121; Manchester Ward 2-9,219; Manchester Ward 3-9,113; Manchester Ward 4-9,115; Manchester Ward 5-9,250; Manchester Ward 6-9,260; Manchester Ward 7-9,178; h. Manchester Ward 8-9,1 35; 4-

10 i. Manchester Ward 9-9,169; j. Manchester Ward I0-9,012; k, Manchester Ward 11-8,991; L Manchester Ward 12-9, The Honorable Barbara E. Shaw is an individual who resides at 45 Randall Street in Ward 9 in Manchester, New Hampshire. 5. John R. Rist is an individual who resides ai192 Mammoth Road in Ward 8 in Manchester, New Hampshire. 68. Regarding the City of Manchester, RSA 662:5,VI (2012) gives each Manchester ward its own district with its own two representatives. It then places the excess inhabitants of each ward into the following floterial districts: a. Manchester Wards 1,2, and 3 - two representatives (Hillsborough County, District No, að; b. Manchester Wards 4,5,6, andt - three representatives (Hillsborough County, District No.43); c. Manchester Wards 8, 9, and Litchfield - two representatives (Hillsborough County, District No. 44); d. Manchester Wards 10, 1 1, and 12 - two representatives (Hillsborough County, District No.45). 98. Using the component method of deviation, and accounting for the floterial seats shared with Litchfield, Manchester as a whole has a surplus of 3,287 inhabitants above the ideal of 3,29 I inhabitants per representative. -5-

11 99. Manchester has found no record of it sharing a representative with a surrounding town since its incorporation as New Hampshire's first city in Demographically, Manchester and Litchf,reld are different communities. As to housing, according to the 2010 Census, Manchester has 2I,661owner occupied units (47%o) compared with 2,528 for Litchfield (89%). Manchester has 24,105 renter occupied units (53%) compared with 300 for Litchfield (11%). See, 20 I OCensus/index.htm (demographic_profile 7.xls) 101. According to the 2010 Census, Manchester has 89,893 Non-HispanicÆ.{on-Latino White inhabitants (82%) compared with 7,87 (95%) for Litchfield. Manchester has 18,672 Hispanic/Latino and Non-white inhabitants (18%) compared with 400 for Litchfield (5%). See, (demographic_profile 7.xls) According to the United States Census Bureau American Community Survey (5 year average ), the median household income in Manchester is 953,377 and in Litchfreld $ 100,051. See, ACS/municipal_data.htm (Seq53 (1).xls) According to the New Hampshire Department of Revenue Administration 2011 Property Tax Tables, tax assessment data showed the following values for commercial/industrial buildings: Statewide:$ 18,539,471,I02;Manchester:$2,3 6I,516,527 (13% of statewide); and Litchfield 518,376,200 (.U% of statewide). See, htç:// do cuments/tb c- alpha. pdf. I04. According to data maintained by the New Hampshire Department of Education, in 2011 there were 6780 Manchester students eligible for free or reduced priced meals out of 14,268-6-

12 students in grades 1 through 12, or 48%. The comparable data for Litchfield show i49 students eligible out of 1418 students, or 110lo. See, datal attendance.htm (lunch_school11_12 (1).xls). Manchester's Bakersville School serves students in the nofihern portion of Ward 9. The same data show that for grades 1 through 5,212 out of 256 students (83%) are eligible for free or reduced price meals. Southside Middle School serves students in Wards 8 and 9 and other areas. For grades 6 through 8, 425 out of 820 students (52Yo) are eligible for free or reduced price meals. See, data/ attendance.htm (lunch_ schooll I_12 (3).xls) The data also show that for the 20lI year, the maximum income level for a student in a family of four for free meals is $29,055 and for reduced price meals is $4 1, http ://www. education.nh. gov/pro gr aml nutrition/do cuments/nslp_app_attach_n. pdf According to data maintained by the New Hampshire Department of Education, as of October 7,2071, the Manchester school enrollment of Hispanic and non-white students was 4,989 out of 15,536 total enrollmenl (32o/o). The comparable number in Litchfield was 116 out of 1,501 total enrollment (8%), See, data/attendance.htm (racel1_12 (2).xls) The data for Bakersville School (October 1, 2010) showed that out of 368 students, 222 are Hispanic or non-white, i.e. 600/o. See, profile.aspx?oid:9099&s:&d:&yea=20i1&tab:student. The data also shows that for Southside Middle School (October 1, 2010) out of 861 students, 301 are Hispanic or non-white, i.e. 35olo. See, &s:&.d:&year-201i&iab:student The New Hampshire Department of Education also maintains data concerning students eligible to receive services for limited English proficiency services. For Manchester, as of -7 -

13 October 1,2010, there are 1,732 eligrble students out of 75,732 total enrollment (11%). See, &s:&d:&year:&tab:student. The comparable figures for Litchfield are 0 out of 1,580 total enrollment (0%). See, http,llmy.doe.nh.gov/profiles/profile.aspx?oid:27656&,s:&d:&year:20ii&tab:student. Out of 368 students at Bakersville School, the data showed that there were 1 15 students eligible to receive services for limited English prohciency, or 3lo/o. See, profile.aspx?oid:9099&s:&d:&yea=2011&tab:student. Out of 861 students at Southside Middle School, there were 65 students receiving services for limited English proficiency, or 8Yo. See, oid:93i7 &.s:&d:&ye a=20i1&tab:student. l0l. Manchester and Litchfield do not share municipal services in common. Manchester is a member of the Southern New Hampshire Regional Planning Commission, which also serves Londonderry, Derry, Candia, Deerfield, Hooksett, Auburn, Bedford, Goffstown, New Boston, Raymond, Chester and Weare. Litchfield is a member of the Greater Nashua Regional Planning Commission. Manchester Water Works also serves parts of Hooksett, Aubum, Goffstown, Auburn, Derry and Londonderry. Manchester Environmental Protection Division (waste water treatment) also serves parts of Bedford, Goffstown, and Londonderry. Manchester School District also educates high school students from Aubum, Candia and Hooksett and provides career training services to students from Goffstown and Londonderry. Litchfield has an entirely separate school system Manchester has specific interests in dealing with state legislation. Manchester received from the state this fiscal year $56,761,000 of annual education adequacy grants under a formula that currently targets additional funding based upon the number of English language learners, special education participants and free and reduced lunch. RSA 198:40-a and 41. Under the -8

14 state budget, Manchester received from the state this fiscal year $4,894,000 in revenue sharing from rooms & meals tax receipts. Since 90Yo of that revenue is obligated to bond repayment on the city-owned Verizon Wireless Arena, reduction or elimination of that revenue sharing would cause technical default of the bond covenants. A large portion of Manchester's budget comes from its receipt of federal contracts that pass through state government agencies, including public health, human services, education and refugee resettlement. SUMMARY OF THE ARGUMENT This Court need not reach the standing issue, because Speaker O'Brien concedes that at least some of the individual petitioners have standing to challenge RSA 662:5. Standing is really a proxy argument for whether any of RSA 662:5 may be severed if parts are found to be unconstitutional. That argument is Question C, to be addressed by the parties on the merits. Also, this Court recognizes that reapportionment cases needs to move fast and there is no time to deal with unnecessary issues apart from the merits. Manchester and other municipalities have standing to challenge the constitutionality of RSA ó62:5 because they have important interests at stake in the apportionment of representatives. There is no known case in which a municipality has ever been denied standing to challenge a redistricting plan. Redistricting cases from New Hampshire and other states include municipalities as petitioners. Specifically as to New Hampshire, N.H.CONST. Part II, Art. 11 gives municipalities certain rights with respect to the apportionment of representatives that they may enforce. Municipalities have regularly brought declaratory judgment petitions under other provisions of the New Hampshire Constitution. The one exception involved a collateral constitutional attack appended to an administrative appeal. The individual petitioners also have standing. It will waste valuable time for this Court to examine which petitioner lives where, how they are treated under RSA 662:5 and how their 9-

15 circumstances relate to the constitutional challenges. New Hampshire civil procedure under RSA 491 :22 andmore broadly is inclusive as to who may bring constitutional challenges. The recent cases limiting taxpayer standing do not apply to voter standing. Particularly in the 400 member House of Representatives, any change to one district will reverberate to other districts within that same county. The Manchester Petitioners also have standing to argue on the merits whether the New Hampshire Constitution must consider community of interest factors. There is precedent for such a constitutional basis. This Court will read that argument in response to Question B. It is a waste of valuable time for this Court to make a determination -- as part of the standing question - concerning the merits of community of interest factors. -10-

16 ARGUMENT I. THIS COURT NEED NOT REACH THE STANDING OF PARTICULAR PETITIONERS BECAUSE THERE ARE SUFFICIENT PETITIONERS WITH UNDISPUTED STANDING TO PERMIT A SPEEDY DETERMINATION OF THE CONSTITUTIONAL CHALLENGES Intervenor "..." ("Speaker O'Brien") believes that the best way to win his case is to deprive some or all Petitioners of the opportunity to have their day in court. The nub of Speaker O'Brien's argument is: "none of the petitioners have [sic] standing under RSA 491:22 to challenge the entirety of RSA 662:5 (2012) as unconstitutional...." Speaker O'Brien's Brief, p. 6. Still, in making his argument, Speaker O'Brien impliedly concedes that some petitioners have standing to challenge some of RSA 662:5. The problem with Speaker O'Brien's argument is that the Manchester Petitioners and other petitioners have flagged serious constitutional issues which this Court can and should address in an expeditious fashion. Unless this Court finds some or all of RS A 662:5, candidates will file nomination papers for seats in the House of Representatives beginning on June 6,2072 based upon RSA 662:5. See, RSA 652:12 and20i Secretary of State Political Calendar. "[W]here the public need requires a speedy determination of the important issues in controversf' the use of a declaratory judgment proceeding "filed by plaintiffs in their several capacities... have sufficient right and interest to entitle them to maintain these proceedings." O'Neil v. Thomson,114 N.H. 155, (1974) (Court found governor's executive orders unconstitutional based upon declaratory judgment challenge brought by various parties where Court accepted case on interlocutory transfer without ruling). This Court is very familiar with decennial disputes conceming redistricting. See, e.g. Below v. Gardner, 148 N.H. I (2002) (state senate redistricting); Burling v. Chandler, 148 N.H. 143 (2002) (house of representatives redistricting). At least one of those cases featured a - 11-

17 municipality as lead petitioner, with Speaker O'Brien (then in a different position) as the Town of Canaan's lawyer. Canaan v. Secretary of State,157 N.H. 795 (2008). Redistricting cases need to move fast. Time spent on arguments about standing could better be spent dealing with the substantive constitutional issues. Also, this Court has accepted for briefing as Question C: "[i]f part of RSA 662:5 is determined to be unconstitutional, whether that part is severable from the remaining parts of the statute?" Speaker O'Brien singles out only the municipalities and certain individuals and claims that they lack standing in this matter. This means that al least the remaining individual petitioners will have the opportunity to argue Question C on severability. Therefore the Court will read arguments whether some or all of RSA 662:5 should be struck down, no matter how many petitioners might lack standing. Speaker O'Brien attempts to make standing a proxy for severability. The Court should therefore find that all parties have standing and allow all parties to argue whether or not some or all of RSA 662:5 is severable. II. MANCHESTER AND OTHER MUNICIPALITIES HAVE STANDNG AS PETITIONERS A. Municipal Standing Permitted in Redistricting Cases Speaker O'Brien argues that cities and towns have no standing to challenge a redistricting plan because they do not vote. On that point, his brief cites a colorful quote from a United States Supreme Court case: "!]egislators are elected by voters, not farms or cities or economic interests". Reynolds v. Sims,377 U.S. 533,562 (1964). B;ut Reynolds v. Sims had nothing to do with restricting municipal standing to challenge redistricting, rather that case established the "one person one vote" standard for apportionment, and the cited quotation merely reinforced the priority of that standard over other methods for allocating representation, such as by county or by property valuation. In fact, Reynolds v. Sims recognized that "[a] consideration that appears to I2

18 be of more substance in justifying some deviations from population-based representation in state legislatures is that of insuring some voice to political subdivisions, as political subdivisions" so long as population remained the controlling consideration. 377 U.S. at In fact, Speaker O'Brien cited no federal or state case which held that municipalities lack standing to challenge a redistricting plan. There are cases that hold the opposite. See, e.g., Brookline v. Secretary of the Commonwealth, 631 N.E.2d 968 (Mass. 1994). In Brookline, the Massachusetts Supreme Judicial Court agreed that five towns had standing to challenge a redistrictingplanin which cross-border districts affected the "territorial integrity''of those towns. In Canaan, supra, this Court never questioned the Town of Canaan's standing. See also, Twin Falls County. v. Idaho Commission on Redistricting,2Tl P.3d 1202 (Idaho 2012) (counties and municipalities challenged redistricting plan). Municipal standing to challenge RSA 662:5 is grounded as well in the applicable provisions of the New Hampshire Constitution. Recently amended Part II, Art. 11 is replete with protections for the territorial integrity and representative strength of individual municipalities, including the following language: o a...the town or ward shall have its own district of one or more representative seats. The apportionment shall not deny any other town or ward membership in one non-floterial representative district. When any town, ward, or unincorporated place has fewer than the number of inhabitants necessary to entitle it to one representative, the legislature shall form those towns, wards, or unincorporated places into representative districts which contain a sufficient number of inhabitants to entitle each district so formed to one or more representatives for the entire district. In forming the districts, the boundaries of towns, wards, and unincorporated places shall be preserved and contiguous. Similar recognition is found in Part II, Art. 9: o In making such fdecennial] apportionment, no town, ward or place shall be divided nor the boundaries thereof altered. -13-

19 It is for this reason that municipalities are not seeking "third party standing" because they have standing in their own right to protect their interests specifically described in the New Hampshire Constitution. But beyond that, municipalities have their own interest in the New Hampshire legislature with respect to local matters. Manchester has at stake specific issues related to education funding, revenue sharing and pass-through grants. Interlocutory Transfer Statement, I 108. See, Reynolds v. Sims,377 U.S. at 580 (local goveíìments have an interest in apportionment because they carry out many state functions). Speaker O'Brien calls that "third party standing". But in support of that he cites a United States Supreme Court case granting third party standing to a criminal defendant who complained against aracially based peremptory challenge to a person in a jury venire, even though the venireman could theoretically bring that claim himself or herself. Powers v. Ohio,499 U.S. 400 (1999). Speaker O'Brien does not cite any case holding that municipal challengers to a redistricting plan lack standing as a "third party." Speaker O'Brien then singles out the cities of Manchester, Concord and Dover. He argues that while towns might have standing to challenge redistricting plans -- because they are specifically mentioned in the applicable constitutional sections -- cities have no standing because they are not so mentioned. He notes that Part II, Art. 11 mentions only towns and wards and that a city "cannot assert the rights of its wards." To do so would againbe "third party standing" and Speaker O'Brien returns to Powers v. Ohio. For a city ward to have standing to bring a redistricting or any other claim presupposes a misreading of their limited function in New Hampshire. Unlike the governmental structure in some other states, New Hampshire cities are divided into wards "solely for the purpose of conducting elections". 14 Loughlin, New Hampshire Practice: Local Government Law (3'd ed. -14-

20 20lI) $1314.,See, RSA 44.3,4 (cities are governed by mayors and aldermen or councils; wards conduct elections). Wards have no corporate identity, and the only entity that can represent their electoral apportionment interests is the city in which those wards are located. B. New Hampshire Municipalities Have Broad Standing Rights Beyond the specifics of redistricting cases, there is nothing in this Courl's general jurisprudence concerning other constitutional challenges or conceming standing that would prevent municipalities from participating as petitioners here. Speaker O'Brien notes at page 10 of his Brief that political subdivisions "derive their authority from the legislature," Opinion of the Justices (lveirs Beach),134 N.H. 717,715 (199I), "and have only the powers fthat] are expressly granted to them by the legislature and such as are necessarily implied or incidental thereto. " Board of Water Commissioners v. Mooney,139 N.H. 621,625 (1995). But the only case he cites which specifically addressed the scope of municipal standing in the context of the limited authority of municipalities comes not from New Hampshire, but rather Colorado. Greenwood Village v. Petitioners þr the Proposed City of Centennial,3 P.3d 427 (Co\o.2000). And in that case, the court determined after a lengthy analysis that the municipality in fact didhave standing to challenge certain legislation. Municipalities are not uncommon plaintiffs in New Hampshire courts challenging perceived unconstitutional acts of state govemment. The series of Claremozl school funding cases included at least five school districts as plaintiffs. See, e.g., Claremont School District v. Governor,138 N.H. 183, 134 (1993). This Court noted in the seventh of its Claremont opinions that: "[t]he plaintiffs were entitled to maintain their suit in this case even without legislative consent, however, because their theory was that the official actions taken by the fstate] defendants were unconstitutional." Claremont School District v. Governor,144 N.H. 590, 592 (leee). -15-

21 Similarly, this Court has accepted the standing of towns and counties by ruling on their appeals alleging a downshifting of expenses contrary to New Hampshire's "unfunded mandate" amendment, N.H. CONST., Part I, Art.28-a. See, New Hampshire Assoc. of Counties v. State, 158 N.H. 284 (1999); Town of Nelson v. Department of Transportation,146 N.H. 75 (2001). The one possible outlier decision on municipal standing, Appeal of Town of Exeter, 126 N.H. 685 (1985), may be readily distinguished. The case centered on whether the Right{o- Know Law, RSA Chapter 91-4, required that collective bargaining negotiations be held in the open. After discussing and affirming the Public Employee Labor Relations Board on its unfair labor practice finding, the Court dispatched sua sponte and in one paragraph Exeter's altemative claim - violation of equal protection and free speech. The Court did so on the basis that Exeter lacked standing to bring challenges based on the constitutional protections of individuals. The cited cases applied the federal court standing rule that municipalities cannot challenge the actions of their own states under the Fourteenth Amendment. Given the many municipal challenges in New Hampshire to the constitutionality of state law since Appeal of Town of Exeter, the case can be limited to attempts to insert a collateral constitutional attack into a garden variety administrative agency appeal. III. THE INDIVIDUAL PETITIONERS ALSO HAVE STANDING TO CHALLENGE RSA 6ó2:5 Having attempted to dismiss Manchester, Concord, Gilford and Dover from this case, Speaker O'Brien tums his attention to many of the individual petitioners. He seeks to dismiss from the case eight residents of Manchester, two of Exeter, and one each of Concord, Belmont, Rochester, Peterborough and Dover. He then seeks to limit the remaining individual petitioners to complain about RSA 662:5 only as it may apply specifically to them as inhabitants of a particular legislative district. t6

22 With respect to the fifteen individual petitioners who Speaker O'Brien claims have no standing, that determination depends upon the Court's review of a number of facts, and specifically Speaker O'Brien's analysis of how many representatives are elected from what districts. The Court could better devote its time to reviewing the merits of the constitutional claims here. Even if those individual petitioners live in districts receiving at least one of its own representative, N.H.CONST. Part II, Art. 11 states that each town or ward "shall have its own district of one or more representative seats" (emphasis added). The Manchester Petitioners will argue that at least Wards 8 and 9 deserve more representative seats in their own district(s), and not in a floterial district with Litchfield. Other individual petitioners may argue the same as to their districts. Beyond that, those petitioners meet the traditional standard for standing as articulated by RSA 49I:22 and New Hampshire's common law of civil procedure. Speaker O'Brien correctly notes that the standard for filing a declaratory judgment action requires "a present legal or equitable right or title". RSA 491:22,I. Generally, that articulation of "right" has received a liberal interpretation in politically oriented constitutional challenges. See, Brouillard v. Governor and Council,l 14 N.H. 541 (1974) (present and former advisory commission members sought to require governor to appoint new members); O'Neil, supra (employee union among parties challenging govemor's hiring freeze). See generally,4macdonald, New Hampshire Practice: Civil Practice (3'd ed. 2010), $ This broad scope accords with New Hampshire's common law tradition dating back to the time of legal reformer Chief Justice Charles Doe. The jurisprudence from that era expanded the sorts of plaintiffs who may bring actions to include "a person with any interest". 4 MacDonald, Civil Practice, $6.04, n

23 That tradition of liberal standing in declaratory judgment actions took a much commented-upon turn with the Court's recent limitation upon so-called taxpayer standing to challenge a govemment's action. Baer v. Department of Education, 160 N.H. 727 (201 0). I In that case, this Court was faced with a taxpayer challenge based upon the alleged violation of a state regulation and, secondarily of the New Hampshire Constitution. The Court stated: "we hold that taxpayer status, without an injury or an impairment of rights, is not sufficient to confer standing to bring a declaratory judgment action under RSA 491:22." 160 N.H. at 731. In a case with similar facts, the Court clarified that there must be "an impairment of a present legal or equitable right arising out of the application of the rule or statute." Avery v. Department of Education,162 N.H. 604,608 (2011). As with Appeal of Town of Exeter, these cases presented collateral constitutional attacks following an administrative agency ruling. Hayes v. Division of Aeronautics, 152 N.H. 30, (2005), cited by Speaker O'Brien, likewise involved a collateral constitutional attack related to an administrative agency decision, But taxpayer standing is not the same as voter standing in a redistricting constitutionality challenge. Voters always have an interest in the apportionment of representatives to be elected from their own district. And with 400 members in the New Hampshire House of Representatives, any redistricting plan that is unconstitutional as to one district will very likely affect the remaining districts, at least in that same county.2 For instance, if as a result of this Court's decision, Pelham (which RSA 662:5 places into a district with Hudson) is entitled to elect its own representatives, that decision will require a change in apportionment for Hudson as well. That in tum will reverberate into adjoining Litchfield and also into Manchester, because RSA 662:5 creates a floterial district shared among Manchester I ZOi.Z tls I 5 l0 would amend RSA 49 I :22 to pennit taxpayel standing. 2 RSe 662,S does respect county boundaries lnterlocutory Transfer Staternent, 167. See,RSA 24:l (representatives from districts \ùithin a county fonn the county convelrtion)

24 Wards 8 and 9 and Litchfield. Therefore, a voter may have a present and direct interest in an unconstitutional redistricting scheme even though his or her district does not trigger the unconstitutionality. See generally, Weeks Restaurant Corp. v. City of Dover,119 N.H. 541, 545 (1979) (non-abutters with a "direct interest" have standing to appeal a planning boatd decision). New Hampshire's 400 member House of Representatives presents a very different situation from that found in redistricting cases coming out of states without floterial and multimember districts. The issues are simply different for redistricting plans where there are singlemember districts each encompassing many inhabitants, and as a result the standing criteria for individuals may also differ. Applying that difference, federal courts have developed specific standards as to who may make claims under both the Voting Rights Act,42 U.S.C. $1973b et seq. and the Fifteenth Amendment. See, United States v. Hays,515 U.S. 737 (1995). IV. WHETHER COMMUNITY OF INTEREST FACTORS MERIT CONSTITUTIONAL STATUS MUST BE ADDRESSED ON THE MERITS AND NOT AS A STANDING ISSUE The Manchester Petitioners plan to argue that RSA 662:5 is unconstitutional because it created an unnecessary floterial district encompassing Litchfield and Manchester Wards 8 and 9, two communities not sharing a community of interest. The facts contained in the Interlocutory Transfer Statement, Tll highlight just how different Manchester and Litchfield are in terms of race, ethnicity, English language skills, home ownership, income, business focus and connection with state goveíìment programs. The facts demonstrate how Manchester is connected with every community around it - except Litchfield - with respect to education, water supply, waste water treatment and regional planning. The Manchester Petitioners seek to brief whether community of interest factors have constitutional significance in New Hampshire. See, e.g. Stephenson v. Børtlett, 562 S.E.2d 37l, (N.C. 2002); second appeal582 S.E.2d 247 N.C.2003) ("communities of interest" must be constitutionally -19-

25 considered in reconciling federal population-based apportionment requirements and the "whole county provision" in North Carolina constitution). The Manchester Petitioners claim a present legal interest and so have standing to argue community of interest factors on the merits, apart from the application of N.H.CONST. Part II, Art. 11. This Court should not waste valuable time now to examine the merits of community of interest factors which could only serve to deny Petitioners their day in court on that point. CONCLUSION Manchester Petitioners and other Petitioners have standing to bring their constitutional challenges before this Court. This Court should instead devote its limited time to the question on the merits: the constitutionality of RSA 662:5. REQUEST FOR ORAL ARGUMENT Manchester Petitioners request oral argument of not less than fifteen minutes. Thomas J. Donovan will argue for Manchester Petitioners. Respectfully submitted, CITY OF MANCHESTER BARBARA E. SHAW and JOHN R. RIST By their Attomeys: MoLANE, GRAF, RAULERSON & MIDDLETON, PROFESSIONAL A TION Date: May 2I,2012 By: n, No , P.O.Box326 Manchester, NH Telephone (603)

26 Certifïcate of Service I hereby certify that on Ì:ly'ray 2I,2072,I served the foregoing Brief by electronic mail upon Jason B. Dennis, Esq., Tony F. Soltani, Esq., Jason M. Surdukowski, Esq., Martin P. Honigberg, Esq., Danielle L. Pacik, Esq., Peter V. Millham, Esq., Matthew D. Huot, Esq., Anne M. Edwards, Esq., Stephen G. LaBonte, Esq.,Ri, Esq., David A. Vicinanzo, Esq. and Anthony L. Galdieri, Esq., pursuant ay 74,2012 scheduling order