City of Nashua v. Secretary of State

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case Nos. 2014-0632 and 2015-0041, City of Nashua v.
Secretary of State, the court on May 12, 2015, issued the
following order:

Having considered the briefs, the respondent’s memorandum of law
addressing mootness, and the record submitted on appeal, we conclude that
oral argument is unnecessary in this case. See Sup. Ct. R. 18(1). In these
consolidated appeals, the respondent, the Secretary of State, appeals orders of
the Superior Court (Colburn, J.) that: (1) granted the petitioner, the City of
Nashua, a writ of mandamus requiring the respondent to place a municipal
charter amendment question on the November 2014 state election ballot for
Nashua voters (mandamus order); and (2) required the respondent to
reimburse the petitioner for its costs associated with conducting a recount of
the charter amendment question, subject to our affirmance of the mandamus
order (recount order). The petitioner cross appeals the trial court’s decision not
to award attorney’s fees. We affirm the decision not to award attorney’s fees.
We conclude, however, that the issues raised by the respondent are moot, and
dismiss its appeals of the mandamus order and recount order.

We first address the petitioner’s argument that the trial court erred by
not awarding it attorney’s fees. The trial court may award attorney’s fees to the
prevailing party when the recovery of fees is authorized by statute, an
agreement between the parties, or an established judicial exception to the
general rule precluding the shifting of counsel fees. In the Matter of Mason &
Mason, 164 N.H. 391, 398 (2012). We defer to the trial court’s decision on
whether to award attorney’s fees, and will not overturn its decision absent an
unsustainable exercise of discretion. Id. at 399.

In this case, the petitioner argues that it was entitled to an award of fees
on grounds that it was forced to seek judicial intervention to secure a clearly
defined right, see id. at 399, and that the relief it obtained in securing the
mandamus order conferred a substantial benefit upon the general public, see
Frost v. Comm’r, N.H. Banking Dep’t, 163 N.H. 365, 378 (2012). Upon this
record, however, we cannot say that the trial court’s decision not to award
attorney’s fees was necessarily for reasons clearly untenable or to an extent
clearly unreasonable to the petitioner’s prejudice. Frost, 163 N.H. at 377.

Turning to the respondent’s appeal of the mandamus order, the record
reflects that the trial court issued the mandamus order pursuant to RSA 49-
B:5, IV(c) (2013) (amended 2014). As it existed at the time of the trial court’s
order, RSA 49-B:5, IV(c) authorized municipal officers in municipalities with
biennial elections to “order” that citizen-petitioned municipal charter
amendments “be placed on the ballot . . . at the next regular state biennial
election.” In the mandamus order, the trial court rejected the respondent’s
argument that “the ballot” meant only “a ballot” prepared by the municipality,
ruling instead that the statute obligated the respondent to place the question
on the state general election ballot. In accordance with the order, the
respondent created a state election ballot for Nashua voters to vote on the
proposed charter amendment at the November 2014 state biennial election.

Effective September 30, 2014, five days after the mandamus order, the
legislature amended RSA 49-B:5 to require municipal officers to place citizen-
petitioned municipal charter amendments “on the ballot at either the next
regular municipal election or at a special municipal election.” RSA 49-B:5, V(c)
(Supp. 2014). The parties agree that, under the current statute, a citizen-
petitioned municipal charter amendment may no longer be voted upon at a
state election. Accordingly, we ordered the parties to brief whether the
respondent’s appeal of the mandamus order is now moot.

A matter is moot if it no longer presents a justiciable controversy because
the issues involved in the case have become academic or dead. Londonderry
Sch. Dist. v. State, 157 N.H. 734, 736 (2008). We have held that a statutory
challenge seeking prospective or declaratory relief only is rendered moot when
the statute has been amended so that it is no longer applicable. Id. We have
also recognized, however, that mootness is ultimately a question of judicial
discretion and convenience, and that a decision on the merits may be
warranted in circumstances involving a “pressing public interest,” or where a
decision may avoid future litigation. See Batchelder v. Town of Plymouth
Zoning Bd. of Adjustment, 160 N.H. 253, 255-56 (2010).

Both parties argue that the respondent’s appeal of the mandamus order
is not moot. The respondent contends that it is not moot because “[i]f the State
prevails in this appeal, . . . it will be entitled to reimbursement from the City of
Nashua for the expenses of printing the ballots.” The petitioner argues that it
is not moot because the provision of RSA 49-B:5 governing municipal charter
amendments that are proposed by municipal officers, as contrasted with those
that are petitioned by citizens, contains language allowing municipal officers to
“order [the] amendments to be placed on the ballot at either the next regular
municipal election or the next state biennial election.” RSA 49-B:5, I (Supp.
2014). The petitioner contends that, because this language is similar to the
language of the prior version of RSA 49-B:5, IV(c), the respondent is likely to
take the same position with respect to municipal-officer-proposed charter
amendments that he has taken in this case. The petitioner further notes that,
in March 2015, the Nashua Board of Aldermen introduced legislation proposing

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a charter amendment that, should the legislation pass, “and depending on the
timing, the municipal officers . . . could order . . . [to be] placed on the ballot at
the next state biennial election.”

We reject these arguments. The November 2014 state biennial election
has come and gone, and the answer to whether Nashua officials had authority
to order the Secretary of State to place a citizen-petitioned charter amendment
on a state ballot under the prior version of RSA 49-B:5 has no bearing on
whether they can today. See In re Guardianship of R.A., 155 N.H. 98, 101
(2007). Moreover, this case involves a citizen-petitioned charter amendment,
not an amendment proposed by municipal officers, and we decline to speculate
whether the petitioner or another municipality might “order” the Secretary of
State to place a municipal-officer-proposed charter amendment on a future
state ballot, or what position the Secretary of State might take if that occurs.

With respect to the respondent’s assertion that if he prevails on the
merits of this appeal, the State “will be entitled to reimbursement . . . for the
expenses of printing the ballots,” he cites no authority for this position. See
State v. Blackmer, 149 N.H. 47, 49 (2003) (declining to review issues that are
not fully briefed). Nor are we aware of any such authority.

Indeed, we have long held that a party is not entitled to recover costs
incurred as a result of a wrongful injunction unless that party has requested,
and the trial court has granted, an order requiring the petitioner to post a
bond. See Tilton v. Sharpe, 84 N.H. 43, 48 (1929) (absent an injunction bond,
damages for a wrongfully issued injunction were not recoverable against a
municipality); Rogers v. Clough, 76 N.H. 272, 274 (1911) (absent an injunction
bond, the respondent’s recovery for a wrongfully issued injunction is limited to
taxable costs); but see Merrimack Valley Wood Prods. v. Near, 152 N.H. 192,
203-04 (2005) (allowing recovery for wrongful injunction in the absence of an
injunction bond where the respondent requested a bond, and where the trial
court erroneously failed to require it). Although this case may involve a request
for a writ of mandamus, and not an injunction, there is “no substantial
distinction between mandamus and a mandatory injunction directing the
performance of official public duties.” Guy J. v. Commissioner, 131 N.H. 742,
747 (1989). Nothing in the record establishes that the respondent requested,
or the trial court ordered, a bond to reimburse the State in the event
mandamus was later deemed to have been erroneously granted.

We conclude that the respondent’s challenge to the mandamus order is
moot, and dismiss his appeal of the mandamus order. With respect to the
recount order, it was expressly conditioned, at the request of the petitioner,
upon our “affirmance” of the mandamus order. In context, we construe the
recount order to require the State’s reimbursement of the petitioner’s recount
costs only if we affirm the merits of the trial court’s analysis of RSA 49-B:5 in
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the mandamus order. See In the Matter of Salesky & Salesky, 157 N.H. 698,
702 (2008) (interpretation of trial court order is a question of law, which we
review de novo). Because we have not affirmed the merits of the mandamus
order, but have instead dismissed the respondent’s appeal of it, the recount
order does not require the respondent to reimburse the petitioner for its
recount costs. Accordingly, we conclude that the respondent’s challenge to the
recount order is likewise moot, and dismiss that appeal as well.

Affirmed in part; and
dismissed in part.

Dalianis, C.J., and Hicks, Conboy, Lynn, and Bassett, JJ., concurred.

Eileen Fox,
Clerk

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