Amendments to Warrant Articles: Guidance for Town Meeting

Once the public hearings are over and the warrant is drafted and posted, it is up to the moderator—with the assistance of other officials, staff and the town attorney—to make sure that the town’s business is accomplished fairly and efficiently at the annual meeting. Preparation is, of course, the key to a successful town meeting. But there is no way to fully anticipate and prepare for a crucial legal issue that can arise whenever a voter at town meeting makes a motion to amend a warrant article: Would the proposed amendment violate a statute and thus make the article unenforceable? The following discussion addresses some of the most common legal issues involved with amendments to warrant articles,
including some unique problems facing moderators at official ballot referendum (SB 2) town meetings. (The usual practice is to move and second an article as printed before discussion and amendment. Strictly speaking, however, there is no legal requirement for the initial main motion to track the language of the warrant. All the issues concerning amendments also apply to main motions that deviate from the language of the warrant.)

RSA 39:2, Fair Notice to Voters
When an amendment is offered, the moderator must determine whether it impermissibly adds a new purpose to the warrant article. This fundamental principle of town meeting is set out in RSA 39:2, which provides in part:

…The subject matter of all business to be acted upon at the town meeting shall be distinctly stated in the warrant, and nothing done at any meeting, except the election of any town officer required by law to be made at such meeting, shall be valid unless the subject thereof is so stated….

“It has long been the law of this state that the purpose of this requirement ‘is to inform the inhabitants of the business upon which they are called to act in the meeting,–to bring before the town substantially and intelligently the subject with which it has to deal.’ [citation omitted]” Opinion of the Justices, 101 N.H. 544, 545 (1957). The classic illustration of a valid amendment is Sawyer v. Manchester & Keene R.R., 62 N.H. 135 (1882). In Sawyer, the warrant article had called for the town to make a payment if a particular railroad were built by January 1878. The vote that was actually taken omitted the condition of the completion date. The Court said the vote was nevertheless valid and the amendment meant that construction implicitly must take place within a reasonable time. The Court remarked that alternative and additional conditions could have been added as well.

The distinction can be subtle, as shown by a pair of 19th century decisions. In Converse v. Porter, 45 N.H. 395 (1864), the warrant article read: “To see if the town will alter the boundaries of any of the school districts in town.” The Court upheld a vote that combined two districts because possible elimination of districts was deemed implicit in alteration of boundaries. In Child v. Colburn, 54 N.H. 71 (1873), the warrant article read: “To see if the town will vote to redistrict its school districts.” The Court invalidated a vote to abolish all the school districts and adopt a single-district system with a single board of education for the entire town under a recently enacted enabling statute:

It is very manifest that the article in question does not distinctly state the subject-matter of the business to be voted upon. We can hardly suppose that a voter, ignorant in fact of what was contemplated, would ever imagine, by reason of any information conveyed by this warrant, that the subject-matter of the business to be acted upon was the abolition of the school districts and the adoption of the act of 1870.

54 N.H. at 81. More recently, in Grant v. Barrington, 156 N.H. 807, 811 (2008), the Court described the purpose of RSA 39:2 in the context of an official ballot referendum (SB 2) town meeting:

This protects the voters who decided not to attend the first session from new subjects being addressed about which they had no notice and therefore did not have an opportunity to consider when deciding whether they were interested in attending the deliberative session.

This is what is described as the “stay-at-home test” for determining whether an amendment impermissibly introduces a new subject.

RSA 32, Appropriations
Consistent with RSA 39:2, RSA 32:6 requires that the “purpose” of any appropriation must appear in the budget (MS-6 or MS-7 form posted with the warrant) or in a special warrant article. The statute adds that the legislative body may vote to appropriate more than or less than the amount recommended in the budget or warrant article. RSA 32:10, I€ specifies that the voters may ensure that no money is spent for a given purpose by deleting a proposed appropriation or reducing it to zero. In terms of permissible amendments at town meeting, these statutes mean that the voters may not add a new purpose of appropriation that is not in the posted warrant and budget, but amendments may increase or decrease a proposed appropriation or entirely eliminate the purpose of appropriation. 

The Department of Revenue Administration (DRA) considers the following amendments from the floor of the meeting as a change in the subject matter of the warrant article and will disallow them:

• Naming agents to expend capital reserve funds or town-funded trust funds when the article as posted in the warrant did not name agents.
• Changing an article from appropriating money for a capital reserve or trust fund to expending the money in the current fiscal year. In other words, an amendment to buy the police cruiser now instead of putting the money in the police cruiser capital reserve fund (or vice versa).
• Designating an appropriations article as “special” when the article as posted did not.

See the DRA technical assistance document 2012 Meeting Suggested Warrant Articles for Towns, Village Districts and School Districts (2012 Suggested Warrant Articles), pp. 1-2. However, DRA has generally found acceptable an amendment to switch from one source of funding to another, such as an amendment changing the source of revenue from a capital reserve fund withdrawal to general taxation.

RSA 32:18, ‘Ten Percent Rule’
The final clauses in both RSA 39:2 and RSA 32:6 provide that no amendment to increase appropriations is valid if it violates RSA 32:18, the “ten percent rule” in towns with official budget committees. The total amount appropriated by the meeting, including amounts appropriated in special warrant articles, cannot exceed the total recommended by the budget committee by more than 10 percent. RSA 32:18. The 10 percent calculation is computed on the total amount recommended by the budget committee, less that part of any appropriation item which constitutes “fixed charges.” Fixed charges include appropriations for principal and interest payments on bonds and notes, as well as mandatory assessments imposed on towns by the county, state or federal governments. (The 10 percent rule can be overridden by a proper warrant article in the case of a bond request. RSA 32:18-a.)

The statute is silent as to what happens in the event that the total appropriations at a given meeting do, in fact, exceed the recommended budget plus 10 percent. DRA explains its practice and makes recommendations:

If the 10% increase of voted appropriations occurs, DRA will disallow on a “last voted, first out” basis. Therefore, it is important to consider the order in which the warrant articles will be voted. We recommend that priority articles, like the operating budget, be placed on the warrant before other articles, however, the voters can still change the order in which the warrant articles are addressed and voted upon.

2012 Suggested Warrant Articles, p. 2. To avoid such an outcome, the moderator should have a clear awareness of the problem. Before the meeting someone should calculate the 10 percent limit using DRA’s Budget Committee Supplemental Schedule (For Calculating 10% Maximum Allowable Increase) (available on the DRA website). Then the moderator should make sure someone is tallying the total as amendments to the budget are passed during the meeting, so that the voters can be informed before a vote is taken that will violate the limit.

RSA 33, Bond Articles
The procedure for authorizing long-term borrowing must comply with RSA 33, the Municipal Finance Act. Towns must be particularly careful to avoid errors. As the DRA puts it, “The major lending institutions, through their bond counsel, will examine the process to be sure it is not faulty.” 2012 Suggested Warrant Articles, p. 5. Bond articles for amounts in excess of $100,000 require a public hearing with newspaper publication of a notice of “the time, place and subject” of the hearing. Thus, any amendment to a bond article must satisfy not only RSA 39:2, but must also not change the “subject” for purposes of RSA 33:8-a, I. There are no Supreme Court cases on the scope of permissible amendments of a bond article. Given the level of scrutiny, amendments to bond articles should be treated conservatively. Check with bond counsel if an amendment is anticipated.

Warrant Article Language Prescribed by Statute
Some statutes prescribe the language of the warrant article that must be used to exercise certain authority. Examples:

• RSA 31:5, III, contingent authorization for special town meeting if cost items of a collective bargaining agreement are not approved
• RSA 31:95-d, creation of special revenue fund
• RSA 36-A:4-a, II(d), authorizing conservation commission to expend funds to help third-party organizations to acquire conservation easements
• RSA 79-A:25-b, I©, separate accounting for land use change tax revenues
• RSA 289:6, II-a, delegating duties of cemetery trustees to board of selectmen

RSA 31:130 provides that the prescribed language is advisory only, and failure to conform to the precise wording does not invalidate the vote “so long as the action taken is within the scope of, and consistent with the intent of, the enabling statute or statutes.” Thus, there is some room for selectmen or petitioners to deviate from the prescribed language in drafting the warrant article.

However, it appears that the voters are not intended to have an opportunity to amend many such articles at town meeting. RSA 39:3-d, II(b) provides that an article that prescribes the wording of a question may, but need not, be placed on the official ballot “unless a contrary intent is specified.” If the official ballot is not used, the prescribed wording shall be placed on the warrant and “may be placed on a preprinted ballot to be acted upon in open meeting in the same manner as a secret ‘yes-no’ ballot under RSA 40:4-a.” At SB 2 deliberative sessions, “[w]arrant articles whose wording is prescribed by law shall not be amended.” RSA 40:13, IV(a). Check each statute for its intent.

RSA 40:13, IV©, SB 2 Deliberative Session Restrictions
Moderators in towns with SB 2 town meetings face the additional issue of whether a proposed amendment at a deliberative session will violate RSA 40:13, IV©, which provides:

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.

This subparagraph was enacted by the legislature, effective February 4, 2011 (the day before many 2011 deliberative sessions), as a reaction to Grant v. Barrington, 156 N.H. 807 (2008). In Grant the original warrant article read: “To see if the Town of Barrington will vote that infrastructure and landscape development (i.e. road, streets, water, sewer, storm drains, utilities, etc.) of said town center/village district shall be by means of private investors and private developers and not by the Town of Barrington at taxpayer’s expense.” At the deliberative session, a motion passed to amend the article by deleting all of the language except the introductory phrase “To see.” The Supreme Court upheld the amendment. “We find nothing in RSA 40:13, IV or RSA 39:3 that prevents voters at the deliberative session from effectively removing a subject from consideration at the second session by amending an article to delete the entire subject thereof.” 156 N.H. at 811.

RSA 40:13, IV© is designed to prohibit the practice of “to-seeing.” Questions remain, however, as to the meaning of “eliminate the subject matter” in the statute. The Town of Exeter’s 2011 deliberative session addressed a warrant article which proposed the establishment of an official budget committee under RSA 32:14. The voters amended the article to read, in part, “To see if the [town] will not establish an official budget committee…” and went on to add language to continue with the advisory budget committee currently in place. Whether the voters voted “yes” or “no” at the second session ballot voting, an official budget committee could not have been created. The original petitioner of the article challenged this amendment in court. The Superior  Court ruled that the amendment was not permissible under RSA 40:13, IV©,  stating that “the only way the phrase ‘no warrant article shall be amended to eliminate the subject matter of the article’ can be logically read is to conclude that any amendment that made the subject matter of the article a nullity was forbidden.” The statute, the Court held, “permits the creation of a nullity only when dollars and cents are contained in the warrant article under consideration. All other attempts to render an article void are prohibited.” Bailey v. Exeter, Docket No. 218-2011-CV-203 (Rockingham County Superior Court, May 27, 2011). The Town was ordered to hold a special town meeting to correct the problem, and did not appeal the decision to the New Hampshire Supreme Court.

It remains to be seen what other creative amendments can be offered at the deliberative session to defeat the purpose of an article. For example, it is common for the legislature to amend a bill intended to accomplish a specific purpose and change it to a measure to “study” the issue and report back in the future.

Illegal or Nonbinding Articles
Selectmen will often receive a warrant article by petition of voters that calls for the town to take some action that is not authorized by law. The Supreme Court has upheld the right of selectmen not to include an article that calls for patently unauthorized action. Levasseur v. Selectmen of Hudson, 116 N.H. 340 (1976)(article would have removed planning board authority over bonds posted to secure installation of subdivision improvements). On the other hand, petitioners have a right to have an article included in the warrant if it calls for lawful action, Woodside v. Derry, 116 N.H. 606 (1976), and RSA 39:3-b subjects selectmen to fines for refusal to insert petitioned articles in the warrant. So, if there is any doubt, the prudent practice is to insert the petitioned article, consult counsel and the moderator, and then point out the article’s deficiencies at the town meeting. The article will then usually be defeated or modified into an unobjectionable “sense of the meeting” resolution. However, there is a third possibility to keep in mind: In some cases, a proper amendment to the “illegal” or “nonbinding” warrant article could correct the defect. The article would then be in order for passage. Moderators and selectmen should be prepared to recognize and deal with such amendments.

David Connell is legal services counsel for the LGC Legal Services and Government Affairs Department. Local officials in NHMA-member municipalities may contact LGC’s legal services attorneys for more information on this and other topics of interest Monday through Friday from 8:30 a.m. to 4:30 p.m. by calling 800.852.3358, ext. 384.