Town Charter’s Recall Provision Ruled Invalid

Knowles v. Latham
Knowles v. Latham
No. 04-E-0361 (Rockingham Superior Court)
Monday, March 7, 2005

The following case is a state superior court decision and, therefore, has limited statewide precedential authority

The Seabrook town charter, which was adopted in 1983, provides for the recall of any elected official upon the filing of a petition with the town clerk signed by 10 percent of the town's registered voters. If the official does not resign upon filing of the petition, a recall election is to be held. In May 2004, a petition calling for the supervisors of the checklist certified the recall of Selectman Asa Knowles as having the requisite number of signatures. A majority of the board of selectmen filed a petition of declaratory judgment and injunctive relief, claiming the recall provision of the town charter was invalid. The superior court granted the preliminary injunction, preventing the recall election pending final judgment by the court of the validity of the recall provision. The town clerk filed a motion for summary judgment, asking the court to declare the recall provision valid and to lift the temporary injunction.

At issue in the case was whether RSA Chapter 49-B and the home rule provision of the New Hampshire Constitution grant the town authority to adopt a recall provision in its charter.

The respondent in this case, who initiated the recall petition against Knowles, argued that the recall provision in the charter was explicitly authorized by RSA 49-B:2, which authorizes municipalities to adopt charter provisions concerning the “terms of office” of elected officials. The superior court disagreed, citing Hooksett v. Baines, 148 N.H. 625 (2002), in which the New Hampshire Supreme Court held that a term limit provision in a town charter were not authorized by RSA 49-B and that the provision conflicted with the state's comprehensive statutory election laws and was, thus, preempted. “If the legislature had intended to explicitly grant municipalities the power to recall elected officials,” the superior court wrote, “it could have done so by adding that power to those listed in RSA 49-B:2.”

The superior court also rejected the argument that the towns had implied authority to adopt a recall provision in its charter. “However, implied authority granted to municipalities must be necessarily implied or incidental to express authority,” the superior court wrote, adding that RSA 49-B:2 grants express authority to municipalities to adopt a form of government and that “recall of elected officials is not necessarily implied from such authority.”

The superior court also said legislative history is evidence of the legislature's intent to not provide municipalities with recall or removal procedures in their charters. The original House bill granted authority to municipalities to adopt charters governing the “[n]umber, powers, election and removal of officials,” however, the legislation ultimately adopted as RSA 49-B:2 “does not include language concerning the removal of officials.”

The superior court agreed with the petitioners (the board of selectmen) that several sections of RSA Chapter 41 and RSA 31:39, all of which were in effect in 1983, evidence an intention by the legislature to preempt the field of removal of elected town officials. These statutes govern removal proceedings for town clerks, tax collectors and treasurers, as well as authorize municipalities to adopt conflict of interest ordinances that provide for removal of elected officials upon petition to the superior court.

“Thus, the Court finds that the Town's recall provision, which allows recall of elected officials without cause and without a hearing or judicial review, is inconsistent with expressed legislative intent to remove such officials only for cause and with procedural safeguards.” The superior court declared the charter provision invalid and issued a permanent injunction to prevent recall elections in Seabrook. The court also ordered the board of selectmen to begin a charter amendment procedure under RSA 49-B:5 to delete the recall provision. Neither party appealed the case to the New Hampshire Supreme Court.

It is important to note that the charter statutes were significantly amended and expanded by the legislature in 1991 and that Seabrook's charter pre-dated these amendments. RSA 49-D:3, I(e) currently provides that charters establishing a town council as both the governing and legislative body of the town – in other words, there is no town meeting – may include recall provisions “as described in RSA 49-C,” which is the statute on city charters. To complicate matters, however, there are no recall provisions in the current version of RSA 49-C. Whether that fact is simply a glitch in the statutes or raises more serious doubt about the validity of such recall provisions is a question yet to be decided. However, town charters that establish a governing body and a separate legislative body–such as selectmen and town meeting–may not include recall provisions.