Gulick v. Cormier, Doc. No. 211-2014-CV-034 (Belknap Super. Ct., April 15, 2014) (O'Neill, J.)

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Ruth P. Gulick, et al.


Jane Cormier, Clerk, et al.

Docket No. 14-CV-034


Hearing held (4/3/14) on the plaintiffs' Complaint for Violation of RSA 91-A (filed 3/3/14), the defendants' Motion to Dismiss (filed 4/1/14), and the plaintiffs' Objection to same (filed 4/8/14). Following the hearing on this matter, the plaintiffs submitted a Motion to Amend (filed 4/8/14). Subsequent to review, the Court renders the following determination(s).

By way of brief background, the plaintiffs, Ruth Gulick, Ian Raymond, Beth Arsenault, David Huot and Lisa DiMartino, filed a Complaint against the defendants, Jane Cormier and Collette Worsman, as clerk and chairman of the Belknap County Convention. The Complaint alleges that the defendants violated RSA ch. 91-A by allowing Representative Comtois to participate in a meeting of the Belknap County Convention without permission from the public body.

Motion to Amend

The plaintiffs filed a Motion to Amend to include the Belknap County Convention as a defendant in this matter. Based on the plaintiffs' representations in their Motion to Amend, the defendants do not object. Upon review, the Court finds the plaintiffs should be permitted to amend their Complaint to include the Belknap County Convention as a defendant.

Accordingly, the plaintiffs' Motion to Amend is GRANTED.

[2] Motion to Dismiss

The defendants move to dismiss the Complaint, arguing that the issues raised in the Complaint are nonjusticiable political questions. Specifically, the defendants argue that establishing rules of procedure of a legislative body is committed to the legislative branch, so the judicial branch should not weigh-in on this issue and consider invalidating a legislative member's vote.

The plaintiffs object and argue that county conventions do not have general legislative authority and only have authority as specifically delegated by the legislature. The plaintiffs also argue that the allegations in their Complaint are not based on purported violations of rules and procedures of a legislative body.

The political question doctrine "prohibits each branch of government from encroaching on the powers and functions of another branch." Petition of the Judicial Conduct Comm., 145 N.H. 108, 109 (2000). "The principle of justiciability prevents judicial violation of the separation of powers by limiting judicial review of certain matters that lie within the province of the other two branches of government." Horton v. McLaughlin, 149 N.H. 141, 143 (2003). "A controversy is nonjusticiable--i.e., involves a political question--where there is a textually demonstrable constitutional commitment of the issue to a coordinate political department . . . ." Petition of the Judicial Conduct Comm., 145 N.H. at 111 (quotations and citations omitted). "Accordingly, if the text of the constitution has demonstrably committed the disposition of a particular matter to a coordinate branch of government, a court should decline to adjudicate the issue to avoid encroaching upon the powers and functions of that branch." McLaughlin, 149 N.H. at 143.

Upon review, the Court finds the questions presented in the Complaint are not nonjusticiable political questions. Based on the allegations in the Complaint, and their [3] the budget by a roll call vote. The motion failed by a 7-7 vote. Representative Comtois was representations in their objection to the motion to dismiss, the plaintiffs allege a breach of RSA 91-A:2 and not a violation of any rules of procedure of the Belknap County Convention. Thus, the allegations are properly before this Court for adjudication.

Accordingly, the defendants' Motion to Dismiss is DENIED.

Violation of RSA ch. 91-A

Turning to the merits of the Complaint, the Court finds the following facts taken from the parties' Agreed Statement of Facts and the Delegation Meeting Minutes. A meeting of the Belknap County Convention was scheduled for February 18, 2014 at 5:00pm. Due to inclement winter weather, a quorum of at least ten members was not present at 5:00pm. Chairperson Worsman delayed the meeting to allow more members to arrive. A quorum was physically present at 5:44pm, when the meeting commenced. Due to an emergency with his home's roof, Representative Comtois participated via speakerphone. All present members could hear and speak with him, and the reason for his absence was recorded in the minutes. No member objected to Representative Comtois's participation via speakerphone. The members proceeded to vote on among those who voted against adopting the budget.

On February 24, 2014, the Belknap County Convention met for another meeting. At this meeting, Representative Gulick stated she was going to talk to the Attorney General's Office regarding the legality of the vote taken on the budget at the February 18 meeting. She invited any member who disagreed with her position on the legality of the vote to join her in speaking with the Attorney General's Office. None of the members responded. Thereafter, at the March 4, 2014 meeting of the Belknap County Convention, the members approved the minutes from the [4] February 18 and February 24 meetings. The members also voted to adopt the budget with several modifications.

RSA 91-A:2, III, provides in relevant part:

A public body may, but is not required to, allow one or more members of the body to participate in a meeting by electronic or other means of communication for the benefit of the public and the governing body, subject to the provisions of this paragraph.
(a) A member of the public body may participate in a meeting other than by attendance in person at the location of the meeting only when such attendance is not reasonably practical. Any reason that such attendance is not reasonably practical shall be stated in the minutes of the meeting.
(b) Except in an emergency, a quorum of the public body shall be physically present at the location specified in the meeting notice as the location of the meeting. . . .
(c) . . . . Each member participating electronically or otherwise must be able to simultaneously hear each other and speak to each other during the meeting, and shall be audible or otherwise discernable to the public in attendance at the meeting's location. Any member participating in such fashion shall identify the persons present in the location from which the member is participating. No meeting shall be conducted by electronic mail or any other form of communication that does not permit the public to hear, read, or otherwise discern meeting discussion contemporaneously at the meeting location specified in the meeting notice.
(d) Any meeting held pursuant to the terms of this paragraph shall comply with all of the requirements of this chapter relating to public meetings, and shall not circumvent the spirit and purpose of this chapter as expressed in RSA 91-A:1.
(e) A member participating in a meeting by the means described in this paragraph is deemed to be present at the meeting for purposes of voting. All votes taken during such a meeting shall be by roll call vote.

The plaintiffs aver that the members were not provided advance notice that Representative Comtois wished to participate telephonically, and they never allowed Representative Comtois to participate telephonically because there was no discussion or vote regarding his participation. However, the statute does not require advance notice and does not explicitly require the public body to take any affirmative action in allowing a member to participate telephonically. Nor does it define the word allow. Thus, the Court will accord the [5] word allow its ordinary meaning. See In re Ashland Elec. Dep't, 141 N.H. 336, 341 (1996) (stating that undefined statutory language is given its plain and ordinary meaning, keeping the intent of the legislation in mind). To allow is "to let someone or something do something; to let something happen or be done." OXFORD ADVANCED AMERICAN DICTIONARY, (last visited April 15, 2014).

In this case, the members were aware that Representative Comtois was participating via speakerphone. However, none of the members objected or requested that the body discuss and vote on Representative Comtois's participation. The members essentially let him participate and did not object to same. As the definition provides, one can allow someone to do something by passively letting it happen, which was the case here. Thus, the members allowed Representative Comtois's participation, within the meaning of the statute.

The plaintiffs also allege Representative Comtois's participation violated RSA 91-A:2, III(a) and (c) because the reason why his physical attendance was not reasonably practical was not stated in the minutes and because he failed to identify anyone else present with him at the location from which he was participating. Contrary to the plaintiffs' assertions, the minutes do in fact state that Representative Comtois was "tending to a roof emergency." (Delegation Meeting Minutes, Feb. 18, 2014.) With respect to subparagraph (c), it only requires a member participating electronically or otherwise to "identify the persons present in the location from which the member is participating." RSA 91-A:2, III(c). Presumably, Representative Comtois did not identify any other persons present with him because there were none, and the plaintiffs have presented no evidence to the contrary. Thus, Representative Comtois's telephonic participation did not violate RSA 91-A:2, III.

Accordingly, the plaintiffs' Count I and Count II are DENIED.

[6] The plaintiffs have submitted Requests for Findings of Fact and Rulings of Law. Pursuant to RSA 491:15, the narrative order above constitutes the Court's specific findings of fact and rulings of law. Any of the plaintiffs' Requests for Findings and Rulings not GRANTED or DENIED herein, either expressly or by implication, are determined to be unnecessary for resolution in light of the Court's determination(s).


   4/15/14       /s/   

Date James D. O'Neill, III

Presiding Justice