The following summary is based on a decision of the Rockingham County Superior Court. Please note that (a) superior court opinions are not binding on the New Hampshire Supreme Court, and (b) at the time this summary went to print, it was still possible for this decision to be appealed to the New Hampshire Supreme Court.
The latest chapter in the evolution of official ballot referendum government ("SB 2") includes a legislative change, a creative deliberative session and an opinion from the Rockingham County Superior Court. At issue is the scope of the deliberative session's ability to amend warrant articles. RSA 40:13, IV states that "[w]arrant articles that are amended shall be placed on the official ballot for a final vote on the main motion as amended." In other words, the deliberative session may amend warrant articles but some form of the article must go on the ballot.
In the wake of the New Hampshire Supreme Court's 2008 decision in Grant v. Barrington, 156 N.H. 807, it appeared that the deliberative session had great latitude in amending warrant articles. According to the Court, the deliberative session could go so far as to delete the substance of an article so long as it left the voters with something on which to vote. The practice of deleting everything after the first two words ("To see…") became common among SB 2 jurisdictions. As a result of this development, the legislature amended RSA 40:13 to prohibit the practice of "to-seeing" as of February 4, 2011 (the day before many 2011 deliberative sessions). The new subsection RSA 40:13, IV(c) reads, "No warrant article shall be amended to eliminate the subject matter of the article. An amendment that changes the dollar amount of an appropriation in a warrant article shall not be deemed to violate this subparagraph." In other words, an article may still be amended to change the dollar amount, including reducing it all the way to zero, but it may not be amended by deleting everything after the words "To see."
On February 5, 2011, the Town of Exeter held its deliberative session. Perhaps bearing in mind the change in law that had taken effect the previous day, the voters amended two petitioned warrant articles. One amendment changed the question from whether the town should "establish and adopt an Official Budget Committee…" to whether the town "will not establish an Official Budget Committee…" (emphasis added). The other article was amended so that, rather than electing particular people to the new budget committee, members would be appointed to the existing advisory budget committee. One of the warrant articles' petitioners challenged these amendments in the superior court, arguing they violated the newly-passed law. All the parties agreed that the changes made by the deliberative session had rendered the first article moot and significantly changed the second article. In particular, no matter how a voter addressed the first article, an official budget committee would not be established. The question for the Court was, did this illegally "eliminate the subject matter of the warrant article," or legally alter the subject matter?
In the opinion of the judge in this case, rendering the article meaningless or a nullity was equivalent to eliminating the subject matter of the article, and therefore was forbidden. As a result, the Town was ordered to hold a special town meeting to act upon those two articles again.
This opinion was not appealed to the New Hampshire Supreme Court. Although it is binding only upon the parties, the opinion may be persuasive and has implications for all SB 2 jurisdictions. In the universe of potential warrant article amendments, it is difficult to know exactly which ones may be found to render an article "meaningless," or even what that word means. The only certainty after this opinion is that further development in this area of the law, whether in the legislature or the courts, is likely.