
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 94-1274                          CITY OF PORTSMOUTH NEW HAMPSHIRE,                               Plaintiffs - Appellants,                                          v.                      RICHARD SCHLESINGER AND WILLIAM WEINSTEIN,                               Defendants - Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                    [Hon. Paul J. Barbadoro, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                            Aldrich, Senior Circuit Judge,                                     ____________________                             and Young,* District Judge.                                         ______________                                _____________________               Steven E.  Grill, with  whom Alexander  J. Walker,  Jr., and               ________________             __________________________          Devine, Millimet & Branch, P.A. were on brief for appellants.          _______________________________               Christopher  Cole, with  whom  Peter S.  Cowan and  Sheehan,               _________________              _______________      ________          Phinney, Bass & Green, P.A. were on brief for appellees.          ___________________________                                 ____________________                                     May 9, 1996                                 ____________________                                        ____________________          *  Of the District of Massachusetts, sitting by designation.                    Per Curiam.  The Supreme Court of New Hampshire  issued                    __________          its  opinion  on  March  12,  1996,  in  City  of  Portsmouth  v.                                                   ____________________          Schlesinger, et al., No.  95-399, 1996 WL 112,644 (N.H.  Mar. 12,          ___________________          1996),  responding to  the question  certified by  this  court on          June 13,  1995.  See City  of Portsmouth v.  Schlesinger, 57 F.3d                           ___ ___________________     ___________          12, 18 (1st Cir. 1995).                    Having dealt  with appellant's  other arguments in  our          earlier  decision, the  sole remaining  issue  in this  appeal is          whether the  appellees' so-called  "illegality" defense  was time          barred.  The district  court held the defense timely  and, ruling          that it applied to appellant's  conduct, entered judgment for the          appellees.  On appeal, this court considered that  the timeliness          issue turned on whether the short statutes of limitation found in          New Hampshire Rev. Stat. Ann. sections 677:2 and  :4 apply in the          circumstances  of this case.  The New Hampshire Supreme Court has          now responded in the negative when that question was certified to          it.  The  New Hampshire  Supreme Court ruled  that the  questions          presented by  this case --  questions of an  ordinance's legality          and  ultimately the binding effect  of a promissory  note -- were          not questions of  administrative action subject to  RSA 677:2 and          :4,  but were  affirmative  defenses relating  to the  underlying          legality of the appellant's legislative action.                    In light of  the opinion  of the Supreme  Court of  New          Hampshire,  we hold  that the  district court's judgment  for the          appellee must be affirmed.                           ________                                         -2-
