ERPG’S SUIT - A FAILURE TO COMMUNICATE!

by Tom Sutliffe

To the citizens of Epping:

What we have here is pure and simple…. a failure to communicate. Epping Residents for Principled Government (ERGP) sued the Board of Selectmen and the School Board last year because it claimed both bodies illegally lobbied townspeople using taxpayer monies to influence the election without allowing opposing viewpoints. ERGP alleged that elementary school children were used to carry home political newsletters, a principal promoted a lobbying group in a public newsletter and boards spent town funds to produce a flier advocating certain positions. ERPG also claimed that town officials made statements improperly lobbying for positions in the 2003 and 2004 school and town annual report, paid for by taxpayers.

This was steadfastly denied by all Epping officials and even the school board, thus, necessitating a legal suit in the Courts of New Hampshire. The town and the school board think they are justified in spending more than $40,000 of the taxpayers’ money to defend their wrongdoing. Now wouldn’t you think that if a citizens’ group goes to court to ask if their rights are being violated, that the town and school officials would allow the courts to adjudicate un-contested whether or not they were breaking the law. They would have, had they felt they were following the law? But no, not Epping elected officials. They had to hire a plethora of attorneys to justify and defend their wrongdoing and to add insult to injury….. on your dime! How offensive and how convenient to use taxpayer money to defend themselves against suits for violating your taxpayer rights! In our Court suit, we cited several Federal cases as well as the New Hampshire Constitution that pointedly illustrated that we (ERPG) had a valid complaint. No frivolous suit here! Acting as a pro se litigant on behalf of our group, I tried to the best of my ability, to present a well-documented legal case against the town officials. The Court chose not to allow me to broaden my case, something which is highly unusual, and I guess, reserved only for pro se litigants in New Hampshire. The Court had already pre-determined what the outcome would be. The Court now had to legitimize its findings. Our group questioned the way that they arrived at its decision by asking the Supreme Court to review it. The Supreme Court chose, at its option, not to rule on the issue, thus neither upholding nor denying ERPG’s suit. Now, they had to find an excuse not to rule in on this issue. The following is an example taken from the Supreme Court’s decision:

“Because this appeal concerns important matters of public policy, which are likely to recur but continue to evade review, we exercise our discretion to consider this appeal.”

They further state in their decision:

“Although we find some of this material troubling, we decline the petitioner’s invitation to rule upon it.”

Now, what we have here is a failure to communicate. Do the above indicate to you that they ruled against ERPG, or does it appear they chose not to rule on the issues of the Petitioner’s (ERPG’S) appeal?

To further add insult to injury, the Supreme Court in their ruling stated:

“The only other issue for our review is whether the trial court erred when it removed a February 26, 2004 letter from Exhibit 1 and declined to enter it into evidence. We review a trial court’s ruling on the admissibility of evidence under an unsustainable exercise of discretion standard, and reverse only if the ruling is clearly untenable or unreasonable to the prejudice of a party’s case. Figlioli v R. J. Moreau Cos., 151 N.H. 618, 626 (2005). As the petitioner has failed to demonstrate that the trial court’s ruling prejudiced the petitioner’s case, we uphold the trial court’s decision to remove the February 26, 2004 letter from Exhibit 1.”

The above caption is the last paragraph of the Supreme Court’s Decision of October 3, 2006. Notice that the document, referenced above, dated February 26, 2004 from an attorney working with the New Hampshire School Board Association totally concurred with the ERPG suit. The document was submitted by ERPG at hearing, but it was stricken by order of Superior Court Judge Morrill after the hearing was completed, which is highly unusual. We filed a motion not to strike because the information contained in the document, if stricken would be highly prejudicial, because it supported ERPG’s complaint! Superior Court Judge Morrill struck this evidence anyhow after the hearing had ended. The Court never noticed ERPG of his decision to strike this evidence. Thus, ERPG never asked for a reconsideration of his order, having no knowledge it had been stricken. The first ERPG ever knew of the ruling was when it was asked to have its complete file sent up to the Supreme Court for the appeal process. Please note that every order issued by Judge Morrill was followed by reconsideration from ERPG, as it was quite clear Judge Morrill had his own agenda as this case’s outcome! Why strike the document…. because it contradicts Judge Morrill’s predetermined conclusion regarding the case’s outcome. Would this happen to a member of the “brotherhood”, or is this treatment specifically reserved for pro-se litigants in New Hampshire? Having no knowledge an order was entered, there would be NO request for reconsideration of such an order. Thus, after the allotted time, the issue becomes non appealable! Why... because no reconsideration was requested within the ten day allotted timeframe. The Supreme Court gang declined to act on this issue because it said ERPG failed to ask for a reconsideration of the Judge's order in a timely manner. The Supreme Court gang, referred to it as a procedural issue! Citizens looking for justice in New Hampshire.... are then required to go to Federal Court for a decision.

On another issue regarding the case, I thought you might like to see two different interpretations of the same Supreme Court decision placed on the websites of the New Hampshire School Board Association and the Epping SAU #14 websites respectively. The following reflects these two differing interpretations of the same decision, depending on your personal agenda:

1. NH Supreme Court Rules on Epping School Board Case

On October 6, 2006, the New Hampshire Supreme Court issued an order in Epping Residents for Principled Government, Inc. v. Epping School Board. The issue was whether the Epping School Board used "unwarranted advocacy" in support of certain ballot issues and warrant articles, in violation of the Constitutional rights of certain taxpayers who held opposing viewpoints.

The New Hampshire Supreme Court upheld the School Board's actions. However, the order was not a clear-cut victory for New Hampshire school boards, as the order raises more questions than it resolved and does not provide definitive guidance for the difference between appropriate and inappropriate advocacy.

The Court's decision was based largely on procedural grounds, as opposed to being decided on the merits of the law. The Court ruled that the taxpayers did not properly preserve certain of their arguments for the Court to review. The Court may have been looking for a better case upon which to make some significant rulings.

It appears that some statements by a School Board are clearly acceptable, such as "we urge you to support the budget because we need it to fund our program" and "we need a new high school and ask you for your support". These kinds of "advocacy" appear to be tolerable, especially if they appear in the School District Annual Report. However, some Epping School Board practices were, in the Court's words, "troubling."

Specifically, the Court had reservations about the Board's direct attacks upon opponents of the budget or new school and using students as "mules" or couriers to send "political" messages home.

Because the decision was unclear, the legality of some board practices is still unsettled, such as using public money for mass mailings advocating a particular position. There probably would not be anything wrong with a mass mailing that conveys information on important issues, provided that it is consistent with the acceptable language. Also, it appears to be unlikely that the Board would be required to give dissenting viewpoints equal space and time in the School District Annual Report, or pay for an opposing mass mailing. Until the law is further clarified, NHSBA urges school boards to proceed with caution when "advocating" for particular political ballot issues and warrant articles. NHSBA Policy KDCA recommends that school districts do not use student as couriers for information that advocates a particular position on bond issues, political matters, labor relations issues or District budgets. NHSBA also recommends that any mass mailings contain purely "neutral" information related to the issue at hand, as opposed to including potentially coercive statements from the school board.

The New Hampshire School Board Association

2. NH Supreme Court Affirms Decision Of Superior Court In Erpg Vs Epping School Board

On October 6, 2006 the NH Supreme Court issued an order regarding the appeal of the Epping Residents for Principled Government, Inc. versus the Epping School Board. The Supreme Court affirmed the trial court's determination. In summary the Superior Court:

1. Denied ERPG's request to declare the school district annual report as unwarranted advocacy and an incorrect expenditure of public funds in violation of the State and Federal Constitutions.

2. Denied ERPG's request to enjoin all officials as to the unwarranted advocacy in the future and to contain a statement in the next two annual reports about the constitutional prohibition against using public monies for the purpose of advocacy.

3. Ruled that the statements made by public officials were made on behalf of public purpose, not private statements.

4. Ruled that the district did not inappropriately or excessively use public funds for the annual report.

5. Ruled that the district did not violate ERPG's rights under the First and Fourteenth Amendments of the Federal Constitution or the Equal Protection under the State Constitution (to have access for presenting an opposing view).

The Epping Superintendent, Barbara Munsey

Pick an interpretation that suits your agenda. Epping Superintendent Barbara Munsey did. It appears that at this point a little more clarification is in order. The Superior Court, as well as, the Supreme Court both refused to do the right thing and uphold the citizens’ rights. These rights are the law! Now, the Town wants you to anti up another $10,000 for their legal defense team, above and beyond what has already been spent. Say buddy, can you spare a dime? We are hopeful, with the filing of a Federal Complaint, the questions left un-answered by the New Hampshire state courts, will be definitively resolved and that you will vote not to allow the Town to spend more of your money on their legal defense.