State Supreme Court Denies Stay of Election Order

A special election to decide the fate of eight referendum petitions will go forward after the New Hampshire Supreme Court denied the town’s motion to stay a lower court’s ruling until the town’s appeal of the ruling is concluded, and also gave the Superior Court jurisdiction to rule on the election date.

The New Hampshire Supreme Court has denied the Town of Derry’s motion to either automatically stay the lower court’s Sept. 14 order to hold a special election or to stay the court’s order until the town’s appeal of the Sept. 14 ruling is concluded.

On Sept. 14, Judge David Anderson ruled that the town must hold its special election by Sept. 30. The town later appealed the ruling to the state Supreme Court. But faced with being held in contempt of court, the Town Council voted unanimously in a special meeting last week to set a date of Oct. 13 for the special election (see story page 1), and later filed a motion in Superior Court to extend the deadline from Sept. 30 to Oct. 13.

Attorney Donald L. “Lee” Smith is representing the town and Attorney H. Jon Meyer is representing the petitioners, Brian Chirichiello, Jenna Paradise and Neil Wetherbee.

Eileen Fox. clerk with the Supreme Court, wrote in a letter to attorneys Smith, Meyer and the Rockingham Superior Court, “In the event that the trial court extends the deadline for the special election from Sept. 30 to Oct. 13, we anticipate resolving this appeal in a sufficiently timely fashion so that, in the event that we affirm the trial court’s Sept. 14, 2015 order, a special election may proceed on Oct. 13, 2015.”

Fox also wrote that in the opinion of the Supreme Court, the lower court has the jurisdiction to rule on extending the date for the special election.

In a phone interview Tuesday, Chirichiello said the Supreme Court has asked for paperwork from Smith and Meyer, but has not asked for oral arguments. “This,” Chirichiello said, “leads me to believe that the Supreme Court is fast-tracking the appeal.” He said he wouldn’t be surprised to see a Supreme Court ruling on the appeal by Oct. 5.

“It won’t be Sept. 30,” Chirichiello said of the election. “That’s tomorrow.” But he said he was fairly confident that the election would be allowed to go forth Oct. 13.

“The Superior Court judge was fairly strong in his ruling,” Chirichiello said. “I can’t see the Supreme Court overturning it.”

If Superior Court does rule on the issue, the judge has two options, Chirichiello observed. “They can hold the town in contempt, or allow the extension. Or both,” he said.

At issue are eight “referendum petitions” on budget votes made May 19. A majority of the Council voted 4-3 to cut police personnel, police overtime, fire personnel, fire overtime, public works personnel, and public works overtime; eliminate the Human Resources Director position and close a fire station. The action cut the tax rate by $1.21, but raised concern in several residents about corresponding cuts to services, and community members took advantage of the “referendum petition” option in the Town Charter.

A referendum petition must be signed by 20 percent of the number of registered voters voting in the most recent election, and it must then be acted on by the Council, which is required either to reverse its votes on the items or hold a special election. The Council voted in the majority July 28 not to take action on the petitions, and Chirichiello, Wetherbee and Paradise took them to court. Anderson ruled Sept. 14 in favor of the petitioners, which the Council then appealed to the Supreme Court.