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                 THE SUPREME COURT OF NEW HAMPSHIRE

                           ___________________________


Rockingham
No. 2016-0152


                               HARRIET E. CADY

                                        v.

                             TOWN OF DEERFIELD

                          Argued: November 16, 2016
                       Opinion Issued: January 18, 2017

      Harriet E. Cady, self-represented party, by brief.


      Upton & Hatfield, LLP, of Concord (Barton L. Mayer and Michael P.
Courtney on the brief, and Mr. Mayer orally), for the respondent.

      LYNN, J. The petitioner, Harriet E. Cady, appeals an order of the
Superior Court (Delker, J.) denying her petition for injunctive relief against the
respondent, the Town of Deerfield (Town). We affirm.

                                         I

      The relevant facts are as follows. The Town has adopted the provisions
of RSA 40:13 (Supp. 2016), pursuant to which it conducts its town meetings in
two sessions. As such, the Town is a so-called SB 2 municipality. See RSA
40:14, V (Supp. 2016). The first session is deliberative in nature and consists
of “explanation, discussion, and debate” over each proposed warrant article.
RSA 40:13, IV (Supp. 2016). Warrant articles may be amended at the
deliberative session, subject to the following statutory limitations:

        (a) Warrant articles whose wording is prescribed by law shall not
      be amended.

        (b) Warrant articles that are amended shall be placed on the
      official ballot for a final vote on the main motion, as amended.

        (c) 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.

RSA 40:13, IV(a)-(c) (emphasis added). Final voting occurs by official ballot
during the second session. RSA 40:13, VI-VII.

      On January 30, 2016, the Town held a deliberative session. During the
session, two petitioned warrant articles, titled Article 16 and Article 17, were
considered and amended as follows. The original text of Article 16 read:

      We the undersigned registered voters of [Town] petition the [Town]
      Welfare Director be an elected position as of March, 2016 to be
      paid no more than $5,000 per year with no raises as an employee
      but raises to be given if voted by the taxpayers by a Warrant
      Article.

After Article 16 was amended, it read:

      Shall we express an advisory view that the position of [Town]
      Welfare Director be an appointed position as it is at the present
      time?

Similarly, Article 17 initially read:

      We the undersigned registered voters of [Town] petition the [Town]
      Police Chief be an elected position as of March, 2017 to be paid
      $65,000 per year with cost of living increases each year if voted by
      the taxpayers.

After Article 17 was amended, it read:

      Shall we express an advisory view that the position of [Town] Police
      Chief be an appointed position as it is at the present time[?]



                                         2
       Following the amendment of the two articles, the petitioner filed a
petition for injunctive relief against the Town requesting an immediate hearing
on the grounds that the alterations violated RSA 40:13, IV(c). The Town
objected and moved to dismiss. The trial court held an evidentiary hearing on
February 5 and denied the petition on February 10, concluding that the
amendments to Articles 16 and 17 did not “remove or eradicate the subject
matter of the original articles” and thus did not violate RSA 40:13, IV(c). This
appeal followed.

                                        II

       On appeal, the petitioner appears to argue that: (1) RSA 40:13, IV(c)
prohibits a town from amending a petitioned warrant article in a manner that
changes or eliminates the intent or subject matter of the warrant article; and
(2) the January 30 amendments to Articles 16 and 17 changed and/or
eliminated the intent and subject matter of the articles.

       “[R]esolution of this case involves statutory interpretation.” Grant v.
Town of Barrington, 156 N.H. 807, 808-09 (2008). “Accordingly, our standard
of review is de novo.” Id. at 809. “In matters of statutory interpretation, we are
the final arbiter of legislative intent as expressed in the words of the statute
considered as a whole.” Id. (quotation omitted). “We first examine the
language of the statute and ascribe the plain and ordinary meanings to the
words used.” Id. (quotation omitted). “We interpret legislative intent from the
statute as written and will not consider what the legislature might have said or
add language that the legislature did not see fit to include.” Attorney General,
Dir. of Charitable Trusts v. Loreto Publ’ns, 169 N.H. 68, 74 (2016) (quotation
omitted). “Unless we find statutory language to be ambiguous, we will not
examine legislative history.” Id. (quotation omitted).

       The petitioner first argues that RSA 40:13, IV(c) prohibits amendments
that change or eliminate the subject matter or intent of a petitioned warrant
article. RSA 40:13, IV(c) provides, in pertinent part, that “[n]o warrant article
shall be amended to eliminate the subject matter of the article.”

       The petitioner appears to argue that amendments that change the intent
or purpose of an article effectively eliminate the subject matter of that article.
Her argument, in effect, is that the subject matter of a warrant article should
be narrowly construed. For example, in this case, she argues that the subject
matter of the proposed warrant articles was whether the Town should elect the
police chief and welfare director. Thus, she argues that the amendments, by
changing the warrant articles to ask whether the police chief and welfare
director should remain appointed positions, eliminated the subject of whether
those positions should be elected.




                                         3
       Conversely, the Town argues that the subject matter of a warrant article
should be more broadly construed. Thus, with regard to the proposed warrant
articles, it argues that the subject matter concerned how the positions of
welfare director and police chief should be filled, rather than whether the
welfare director and police chief should be elected.

      RSA 40:13, IV(c) provides no specific guidance as to whether the phrase
“subject matter” should be narrowly construed, in the manner the petitioner
advocates, or more broadly construed, in accordance with the Town’s position.
Because we conclude that the phrase “subject matter” is subject to more than
one reasonable interpretation, it is ambiguous. See Loreto Publ’ns, 169 N.H. at
74. We therefore look to the statute’s legislative history to determine the
phrase’s meaning. See id.

       RSA 40:13, IV(c) was enacted in response to our decision in Grant, in
which we held that the voters in an SB 2 municipality could amend a warrant
article “to delete the entire subject thereof.” Grant, 156 N.H. at 811. The
warrant article in Grant originally 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.

Id. at 808. After the warrant article was amended, it stated only “To see.” Id.

       Following Grant, a bill was introduced in the House of Representatives to
prevent warrant articles from being “amended to delete the substance of the
original subject matter.” H.B. 77, 2011 Sess. (N.H. 2011). One of the bill’s
sponsors stated that the bill was introduced to prevent warrant articles from
being amended to the phrase “To see,” arguing that “no article should be
amended so that you can’t even see what it [is] about.” Relative to
Amendments to Warrant Articles: Hearing on H.B. 77 before the H. Comm. on
Mun. and Cnty. Gov’t (January 18, 2011) (statement of Rep. Kathleen M.
Hoelzel). The House Committee on Municipal and County Government echoed
this concern when it found that “eliminat[ing] all the subject matter [of an
article] creates confusion and often discourages citizen[s’] participation.”
N.H.H.R. Jour. 80 (2011) (emphasis added). The statute was thus designed to
prevent warrant articles from being amended so as to remove all of their
meaning.

      The legislative history of RSA 40:13, IV(c) demonstrates that the statute
was intended to prohibit warrant articles from being amended in a manner that
eliminates their subject matter entirely, thereby making it impossible for voters
at the second session to determine what the article is about. Thus, RSA 40:13,


                                          4
IV(c) does not prohibit amendments that change, but do not eliminate, the
entire subject matter of warrant articles.

       The petitioner next argues that RSA 40:13, IV(c) prohibits warrant
articles from being amended to change the intent of the articles. We find this
argument unpersuasive. The text of RSA 40:13, IV(c) plainly prohibits only
amendments that eliminate the subject matter of a warrant article. Accepting
the petitioner’s argument would require us to read the word “intent” into the
statute, which we will not do. See Loreto Publ’ns, 169 N.H. at 74 (stating that
we will not “add language that the legislature did not see fit to include”).

       Our conclusion here is consistent with the legislature’s recent rejection of
a proposed amendment to RSA 40:13, IV(c). In 2016, House Bill 1389 sought
to modify the language of RSA 40:13, IV(c) as follows: “No petitioned warrant
article shall be amended to [eliminate] change the subject matter or the intent
of the article.”1 H.B. 1389, 2016 Sess. (N.H. 2016). This bill would have
amended the statute precisely as the petitioner contends the present version of
the law should be construed. Significantly, however, the legislature rejected
H.B. 1389.2 For these reasons, we conclude that RSA 40:13, IV(c) prohibits
only amendments that eliminate a warrant article’s textual subject matter, not
amendments that may change the intent or purpose sought to be achieved by
the article’s drafters.

      We next turn to the petitioner’s contention that the January 30
amendments eliminated the subject matter of the warrant articles in question.
She argues that by changing the articles from the question of whether the
welfare director and police chief should be elected to the question of whether
those positions should continue to be filled by appointment, the Town
eliminated the subject matter of the articles.3 We disagree.

      As explained above, RSA 40:13, IV(c) prohibits amendments that
eliminate the entirety of the subject matter of a warrant article. Although the
proposed warrant articles posed the question of whether two municipal

1 Matter added to current law appears in bold. Matter removed from current law appears [in
brackets and struckthrough].
2 Although subsequent legislative history is not always helpful in construing a statute’s meaning,

see Kneeland v. Administrator, Unemployment Comp. Act, 88 A.2d 376, 378 (Conn. 1952), here
we find the rejection to support our interpretation of RSA 40:13(c).
3 In support of her argument, the petitioner also relies upon an unpublished superior court order

that addressed the issue of whether amendments to warrant articles violated RSA 40:13, IV(c):
Alan Bailey v. Town of Exeter, No. 218-2011-CV-203 (N.H. Super. Ct. May 27, 2011). In that case,
the parties conceded that the amendments to the warrant articles in question rendered one article
moot and one article a nullity. The court, in construing RSA 40:13, IV(c), ruled that “[t]he 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.” Here, however, the petitioner has not demonstrated that the
January 30 amendments either made Articles 17 or 18 moot or rendered them a nullity.


                                                5
positions should be elected, the subject matter of the articles encompasses the
broader question of how the town should fill those two municipal positions, i.e.,
by election or appointment. Therefore, because the amended warrant articles
did not entirely eliminate the subject matter of the proposed warrant articles,
the January 30 amendments do not violate RSA 40:13, IV(c).

       Accordingly, we affirm the trial court’s denial of the petitioner’s petition
for injunctive relief.

                                                    Affirmed.

      DALIANIS, C.J., and HICKS, CONBOY, and BASSETT, JJ., concurred.




                                          6
