Brian Chirichello & a. v. Town of Derry

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2015-0566, Brian Chirichello & a. v. Town of
Derry, the court on October 5, 2015, issued the following order:

Having considered the briefs of the parties and the record submitted on
appeal, the court concludes that a formal written opinion is unnecessary in
this case. The respondent, the Town of Derry (Town), appeals an order of the
Superior Court (Anderson, J.) granting the petition for declaratory and
injunctive relief filed by the petitioners, Brian Chirichello, Jenna Paradise, and
Neil Wetherbee, and issuing a writ of mandamus requiring the Town to
schedule a special election on eight referendum petitions. We affirm.

The relevant facts are as follows. On May 19, 2015, the Town Council
(Council) amended the Town’s proposed budget by: (1) eliminating several full-
time positions at the Town’s fire, police, executive, and public works
departments; (2) reducing the amount of overtime approved for several
departments; and (3) closing one of the Town’s fire stations. The amendments
reduced the proposed budget by approximately $1.5 million. The Council
adopted the amended budget at its May 19 meeting.

On June 11, eight referendum petitions related to the budget were
submitted to the Town Clerk. Each petition targeted a specific item deleted
from the budget by the Council’s amendments. For each item, the subject
petition sought to repeal the Council’s vote to reduce the expenditure by a
specific amount and sought to reinstate that amount into the final budget. The
Town Clerk verified that each petition contained the number of signatures
required by the Town’s charter. At the Council’s July 28 meeting, it decided,
by a 4-3 vote, that it would not repeal the challenged budget items and that it
would not schedule a special election on the petitions.

The petitioners, signatories to the referendum petitions at issue, filed the
instant action on August 14, seeking a writ of mandamus ordering the Council
to schedule a special election on the petitions and a declaration that the
Council had violated the Town’s charter by refusing to schedule that election.
Subsequently, the petitioners requested an expedited hearing and a
preliminary injunction that would order the Council to hold the special
election. Following a hearing, the trial court granted the petitioners’ requested
relief.

The trial court first concluded that the Town’s charter allowed the
referendum process to be used to challenge specific budgetary items. In
reaching this conclusion, the court relied upon Section 10.8(I) of the charter,
which defines a “referendum measure” as “[a] measure protested by
referendum procedures under this Charter, including a specific item in the
Town budget.” The trial court noted that Section 10.8(I) also provides that a
“referendum measure” excludes “items 1 through 7” in the charter’s definition
of an “initiative measure,” and that item 3 in that definition is “The Town
budget.” The trial court reasoned that, pursuant to its plain language, the
charter distinguishes between “a specific item in the Town budget” and “the
Town budget” as a whole such that, when Section 10.8(I) is read in its entirety,
it allows “the use of referendum petitions to challenge specific items in the
Town budget, but . . . preclude[s] the use of referendum petitions to challenge
the Town budget as a whole.”

The trial court next rejected the Town’s argument that, to the extent that
Section 10.8(I) of the Town’s charter allows the referendum petition process to
be used to challenge specific budgetary items, it violates RSA chapter 49-D.
The trial court concluded that RSA chapter 49-D does not apply to the Town’s
charter and that, even if it did apply, RSA chapter 49-D does not preclude use
of the referendum petition process to challenge specific budgetary items.

In reaching the latter conclusion, the trial court relied upon RSA 49-D:3,
I(e) (2012), which describes the “matters of local concern” that “may be
included in a [town] charter including, but not limited to . . . citizen powers of
initiative, referendum and recall as described in RSA [chapter] 49-C.” RSA 49-
C:33, I(a) (2012) allows charters to include provisions for “[r]eferendum
procedures whereby voters may petition to suspend implementation of an
ordinance, except budget adoption and land use regulation ordinances,
enacted by the elected body, require a reconsideration by the body and, failing
satisfactory reconsideration, require a referendum on approval.” The trial court
determined that RSA 49-C:33, I(a) “does not limit the subject matter of
referendum petitions.” Rather, it sets forth the remedies that may be sought
by such petitions and provides that a petition related to “budget adoption” may
not seek to suspend implementation of ordinances related to “budget
adoption.” RSA 49-C:33, I(a). Accordingly, the court concluded, RSA 49-C:33,
I(a) allows “a town charter [to] provide referendum procedures to challenge
budgetary items.”

On appeal, the Town argues that the trial court erroneously: (1)
interpreted the charter to allow the referendum process to be used to challenge
specific budgetary items; (2) ruled that RSA chapter 49-D does not apply to the
charter; and (3) determined that RSA chapter 49-D authorizes a form of
government in which voters may, through the referendum process, challenge a
portion of a town budget adopted by the town council. To the extent that the
Town characterizes the trial court’s decision as allowing the referendum
process to be used to repeal, in its entirety, the Town budget as adopted by the
Town Council, we disagree with that characterization.

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 As the appealing party, the Town has the burden of demonstrating
reversible error. Gallo v. Traina, 166 N.H. 737, 740 (2014). Based upon our
review of the trial court’s well-reasoned order, the Town’s challenges to it, the
record submitted on appeal, and the relevant law, we conclude that the Town
has not demonstrated reversible error. See id. Regardless of whether the trial
court erroneously determined that RSA chapter 49-D does not apply to the
Town’s charter, the Town has failed to demonstrate that the trial court’s
alternative conclusion ― that RSA chapter 49-D allows the use of the
referendum process to challenge specific budgetary items ― constitutes
reversible error.
Affirmed.

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

Eileen Fox,
Clerk

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