Sandown v. Timberlane, Doc. No. 218-2015-CV-706 (Rockingham Super. Ct., September 29, 2015) (Schulman, J.)




Rockingham, ss.






The matters before are (a) Plaintiff's Motion For Reconsideration And Clarification (Docket Document 15) and (b) Defendant's Motion To Dismiss For Lack Of Standing (Docket Document 16). For the reasons set forth below:

-The motion for reconsideration is GRANTED IN PART and DENIED IN PART;

-The motion to dismiss for lack of standing is GRANTED IN PART and DENIED IN PART; and

-The Complaint is dismissed in its entirety.

A. The Order Of August 7, 2015

The court's order of August 7, 2015 contains a comprehensive discussion of the claims, defenses and underlying facts of this case. Accordingly, the court incorporates its earlier order by reference.

A. Standing

In its August 7, 2015 order, the court sua sponte raised the question of whether the plaintiffs have standing to maintain their claims. The court invited the parties to submit supplemental memoranda of law. The plaintiffs did so in the form of a motion for [2] reconsideration and clarification The defendants did so by means of a motion to dismiss for lack of standing.

The court has given substantial consideration to the plaintiffs' thoughtful arguments concerning standing. The court continues to believe, for the reasons set forth in its Order of August 7, 2015, that the plaintiffs lack standing with respect to their Municipal Budget Act (RSA Chapter 32) claims. Therefore, the court GRANTS the defendants' motion to dismiss for lack of standing with respect to the Municipal Budget Act claims.

The court recognizes, however, that the plaintiffs have standing to assert their Right To Know (RSA Chapter 91-A) claims. The court agrees with and adopts the reasoning in paragraphs 10, 11 and 12 of the plaintiffs' motion for reconsideration and clarification. Therefore, the court DENIES defendant's motion to dismiss, to the extent that it seeks dismissal of the Right To Know claims for lack of standing.

B. The Merits Of The Right To Know Claim

The Superintendent's advisory committee no longer exists and it kept no records (aside from its final report, which the plaintiffs have). Therefore, the only plausible 91-A claim that the plaintiffs may assert is their claim for invalidation of the School Board's vote (which occurred in an open meeting) adopting the advisory committee's recommendations. The court has given renewed consideration to plaintiffs' arguments in favor of invalidation under RSA 91-A:8, III. Once again, the court concludes that invalidation would be a grossly inappropriate remedy in this case.

The plaintiffs' Right To Know claim is now DISMISSED for failure to state a claim. More specifically, even (a) accepting dubitante the plaintiffs' argument that the [3] Superintendent's advisory committee was a public body and (b) accepting the allegations in the Complaint, and the plaintiffs' written and oral offers of proof, and (c) taking all reasonable inferences from those allegations in the plaintiff's favor, the court still finds that plaintiffs have failed to make out a case for invalidation.

C. Merits Of The Municipal Budget Act Claims

The court notes that, putting standing to the side, it has given due consideration to plaintiff's arguments concerning the merits of the Municipal Budget Act claims. The court sees no reason to alter its findings and rulings in this respect. Therefore, the court continues to believe that, even if standing were not an issue, the plaintiffs failed to establish a likelihood of success on the merits.

D. Operative Conclusions

The Municipal Budget Act claims are dismissed on the defendant's motion for lack of standing.

The Right To Know claims are dismissed by the court sua sponte for failure to state a claim.

September 29, 2015    /s/   

Andrew R. Schulman

Presiding Justice