THE STATE OF NEW HAMPSHIRE
MERRIMACK, SS. SUPERIOR COURT
Louise Andrus, et al.
v.
Merrimack Valley School District School Board, et al.
Docket No. 217-2016-CV-30
ORDER
Plaintiffs, Louise Andrus and Ken Ross-Raymond, filed a complaint against Defendants, Merrimack Valley School District School Board ("Board") and SAU 46, alleging violations of RSA chapter 91-A and RSA chapter 659. Defendants object and move to dismiss. After consideration of the parties' pleadings and arguments and the applicable law, the Court finds and rules as follows.
Factual Background
The following facts are derived from the allegations contained in Plaintiffs' amended complaint. On May 10, 2004, the Board voted to appoint an individual to a vacant Board position during a nonpublic session. (Compl. ¶ 6.) On March 11, 2013, the Board appointed Seelye Longnecker to a vacant Board position "by ballot." (Compl. ¶ 7.) On August 11, 2014, during a nonpublic session, the Board deliberated about who to appoint to a vacant Board position. (Compl. ¶ 8.) On July 13, 2015, the Board voted to enter a nonpublic session to discuss the candidates for a vacant Board position and then voted during a public session to appoint Bobbi Jo Michael. (Compl. ¶ 11.)
[2] Board meetings are held in a high school library "that readily disperses the sound." (Compl. ¶ 12.) During nearly all Board meetings, some Board members speak softly and nothing is used to amplify the Board members' voices. (Compl. ¶ 12.) During the July 13, 2015 meeting, Plaintiff Andrus and other members of the public told the Board that parts of the meetings were inaudible and requested future meetings have adequate sound. (Compl. ¶ 12.) On August 10, 2015, Board member Will Renauld turned his head several times "to face the Board Chair and raised his hands to cover his mouth to direct and muffle his voice to purposefully hinder the ability of the public to discern what he was saying." (Compl. ¶ 13.)
The Board regularly meets during nonpublic sessions with administrators, such as the superintendent, the assistant superintendent, the business administrator, and the human resources manager. (Compl. ¶ 14.) The Board does not record the administrators' names in the minutes of the nonpublic sessions. (Compl. ¶ 14.)
Additionally, in 2015, Plaintiff Andrus and Longnecker were candidates for a Board position. (Compl. ¶ 9.) During the March 5, 2015 election, Longnecker, while inside the building where the voting was taking place, gave leaflets to voters arriving at the poll. (Compl. ¶ 9.) Longnecker ultimately won the election. (Compl. ¶ 9.)
Plaintiffs subsequently initiated the instant action. Defendants now move to dismiss the complaint, to which Plaintiffs object. The Court addresses the parties' arguments in turn.
Legal Standard
In ruling on a motion to dismiss, the Court must determine whether a plaintiff's allegations are "reasonably susceptible of a construction that would permit recovery." [3] Bohan v. Ritzo, 141 N.H. 210, 212 (1996) (quotation omitted). This determination requires the Court to test the facts contained in the complaint against applicable law. Tessier v. Rockefeller, 162 N.H. 324, 330 (2011). In rendering such a determination, the Court "assume[s] the truth of all well-pleaded facts alleged by the plaintiff and construe[s] all inferences in the light most favorable to the plaintiff." Bohan, 141 N.H. at 213 (citation and quotations omitted). "The plaintiff must, however, plead sufficient facts to form a basis for the cause of action asserted." Mt. Springs Water Co. v. Mt. Lakes Vill. Dist., 126 N.H. 199, 201 (1985). A Court "need not accept statements in the complaint which are merely conclusions of law." Id. (citation omitted).
Analysis
In their amended complaint, Plaintiffs allege violations of New Hampshire's Right-to-Know Law, RSA chapter 91-A, (Count I) and violation of election procedures under RSA chapter 659 (Count II). Defendants argue the Court should dismiss Count I because Plaintiffs fail to state a claim upon which relief may be granted and the doctrines of laches and/or mootness bar the claim. Plaintiffs make several separate allegations in support of their RSA chapter 91-A claim: (1) on May 10, 2004, the Board voted to appoint an individual to a vacant Board position during a nonpublic session; (2) on March 11, 2013, the Board voted by ballot1 to appoint Longnecker to a vacant Board position; (3) on August 11, 2014, the Board deliberated about who to appoint to a vacant Board position during a nonpublic session; (4) on July 13, 2015, the Board voted to enter a nonpublic session to discuss the candidates for a vacant Board decision and then voted during a public session; (5) on August 10, 2015, a Board member turned his [4] head several times to face the Board Chair and covered his mouth thereby hindering the public's ability to hear what he was saying; (6) some Board members speak too quietly during meetings and nothing is used to amplify their voices; and (7) the Board does not record the names of the administrators with whom it meets during nonpublic Board sessions. Plaintiffs allege these failures have deprived them of access to information and proceedings guaranteed by RSA chapter 91-A.
The purpose of New Hampshire's Right-to-Know Law "is to ensure both the greatest possible public access to the actions, discussions and records of all public bodies, and their accountability to the people." RSA 91-A:1. Recognizing the conflicting interests to ensure the privacy of individuals, security considerations, and "[o]penness in the conduct of public business," the Right-to-Know Law prohibits public bodies from meeting in nonpublic sessions, but contains several enumerated exceptions to this general rule. Id.; RSA 91-A:3. Additionally, "[e]xcept for town meetings, school district meetings, and elections, no vote while in open session may be taken by secret ballot." RSA 91-A:2, II.
"Although the statute does not provide for unrestricted access to public records and proceedings, to best effectuate the statutory and constitutional objective of facilitating access to all public documents and proceedings, [the Court] resolve[s] questions regarding the Right-to-Know Law with a view to providing the utmost information." Lambert v. Belknap Cty. Convention, 157 N.H. 375, 379 (2008). "The Right-to-Know Law, if violated, provides for three possible remedies: (1) an award of reasonable costs and attorney's fees; (2) an order voiding action taken by a public body [5] or agency; and (3) an injunction." ATV Watch v. N.H. Dep't of Res. & Econ. Dev., 155 N.H. 434, 437 (2007) (internal citations omitted).
Here, Plaintiffs allege the Board voted to appoint an individual to a vacant Board position during a nonpublic session on May 10, 2004, voted by secret ballot on March 11, 2013, and deliberated about who to appoint during nonpublic sessions on August 11, 2014 and July 13, 2015. Plaintiffs argue these actions do not fall under one of the exceptions to the general rule that vacant Board positions are to be filled in public and are "part of a pattern of related violations that together warrant the remedy of enjoining future such violations." (Pl.'s Obj. to Supplemental Mot. to Dismiss 1, 28.) These allegations, taken as true, are sufficient to form the basis of an RSA chapter 91-A claim.
Defendants argue Plaintiffs' claim is moot because years have passed since the voting occurred and those individuals are either no longer on the Board or have been subsequently elected in intervening elections. "The doctrine of mootness is designed to avoid deciding issues that have become academic or dead. However, the question of mootness is not subject to rigid rules, but is regarded as one of convenience and discretion." Sullivan v. Town of Hampton Bd. of Selectmen, 153 N.H. 690, 692 (2006) (internal citation and quotations omitted). An issue is moot if it no longer presents a justiciable controversy. ATV Watch, 155 N.H. at 437.
Here, Plaintiffs do not seek to remove the individuals appointed to Board positions during the nonpublic sessions and through the secret ballot at issue. Rather, they seek to enjoin the Board from future violations. As a result, Plaintiffs' claim is not moot.
Defendants also argue Plaintiffs' claim is barred by the doctrine of laches.
[6] Laches is an equitable doctrine that bars litigation when a potential plaintiff has slept on his rights. Ascertaining whether the doctrine of laches applies is not a mere matter of time, but is principally a question of the inequity of permitting the claim to be enforced. Because it is an equitable doctrine, laches will constitute a bar to suit only if the delay was unreasonable and prejudicial. [The Court] consider[s] four factors in [its] analysis: (1) the knowledge of the plaintiffs; (2) the conduct of the defendants; (3) the interests to be vindicated; and (4) the resulting prejudice.
Thayer v. Town of Tilton, 151 N.H. 483, 485-86 (2004) (internal citations and quotations omitted). "The party asserting laches bears the burden of proving both that the delay was unreasonable and that prejudice resulted from the delay." Id. at 486 (quotation omitted).
In arguing Plaintiffs' delay in bringing suit is unreasonable and prejudicial, Defendants assert Board appointments require swift action; testimony is necessary to fully understand the actions documented in the Board minutes; and there are currently different taxpayers, Board members, and students than existed at the time of the conduct at issue. This is insufficient to establish the delay was unreasonable and prejudicial because Plaintiffs do not seek to impact the prior appointments, but seek to enjoin future violations.
Defendants further argue Plaintiffs' claim is barred by the statute of limitations. In support of this proposition, Defendants point to RSA 508:4, which states, in relevant part, that "all personal actions, except actions for slander or libel, may be brought only within 3 years of the act or omission complained of." However, Defendants fail to support the contention that an RSA chapter 91-A claim constitutes a personal action subject to the three-year statute of limitations under RSA 508:4, which, even if applicable, would only affect the May 10, 2004 Board meeting.
[7] Regarding Plaintiffs' claims that it is difficult to hear during Board meetings, Defendants argue there is no minimum auditory standard for the meetings. Meetings required to be open to the public are also required to be audible or otherwise discernable. See RSA 91-A:2, III. Here, Plaintiffs allege on August 10, 2015, a Board member turned his head and covered his mouth with his hands thereby hindering the public's ability to hear what he was saying. Plaintiffs further allege certain Board members speak too quietly during meetings and nothing is used to amplify their voices. These allegations, taken as true, are sufficient to form the basis of an RSA chapter 91-A claim.
Additionally, Plaintiffs claim the Board does not record the names of the administrators with whom it meets during nonpublic Board sessions.2 Board meeting minutes are required to include the names of members and individuals appearing before the Board, as well as "a brief description of the subject matter discussed and final decisions." See RSA 91-A:2, II; RSA 91-A:3, III. As a result, Plaintiffs' allegations, taken as true, are sufficient to form the basis of an RSA chapter 91-A claim. Accordingly, Defendants' Motion to Dismiss, as it relates to Count I, is DENIED.
Regarding Count II, Defendants argue the Court should dismiss the complaint because Plaintiffs lack standing, the claim is moot, Plaintiffs failed to allege sufficient facts, and Defendants are not liable for the acts of a third party. In their RSA chapter 659 claim, Plaintiffs allege the school district, through its moderator, allowed Longnecker to distribute campaign materials at the polling place with the intention of [8] influencing voters to vote for her, which denied Plaintiff Andrus her right to a free and fair election.
"No person who is a candidate for office or who is representing or working for a candidate shall distribute or post at a polling place any campaign material . . . which is intended to influence the action of the voter within the building where the election is being held." RSA 659:43, I; see also RSA 659:45 ("It shall be the responsibility of the moderator to report any violation occurring under RSA 659:34 through RSA 659:44 to the attorney general."). The statute provides the attorney general with standing to pursue violations of the restriction against distributing campaign materials at a polling place, but does not provide standing for a private cause of action. RSA 659:43, IV; see also RSA 666:8 ("The attorney general shall be responsible for the enforcement of the election laws."); RSA 7:6-c ("Upon receipt of a signed written complaint, or upon his or her own motion, the attorney general may in his or her discretion, conduct investigations to determine whether any violation of the election laws has occurred and may prosecute anyone responsible for such a violation."). As a result, Plaintiffs lack standing to bring their RSA chapter 659 claim. Accordingly, Defendants' Motion to Dismiss, as it relates to Count II, is GRANTED.
Based on the foregoing, Defendants' Motion to Dismiss is DENIED, as it relates to Count I, and GRANTED, as it relates to Count II.
SO ORDERED.
1 Although not specifically stated in Plaintiffs' Amended Complaint, Plaintiffs appear to allege the Board used a secret ballot to appoint Longnecker at the March 11, 2013 meeting.
2 Defendants argue they have previously indicated they will voluntarily identify the attendees at nonpublic sessions in the future. However, they have not specifically indicated whether that includes individuals appearing before the Board as well.