United States Court of Appeals
For the First Circuit
No. 01-2262
GEORGE M. WALKER; JERE BECKMAN; JOEL SIGRIST;
SUSAN M. NEWELL; and LEE SLOCUM,
Plaintiffs, Appellants,
v.
EXETER REGION COOPERATIVE SCHOOL DISTRICT;
OYSTER RIVER COOPERATIVE SCHOOL DISTRICT;
JOHN STARK REGIONAL SCHOOL DISTRICT;
WINCHESTER SCHOOL DISTRICT; and
AMHERST-SOUHEGAN COOPERATIVE SCHOOL DISTRICT,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. James R. Muirhead, U.S. Magistrate Judge]
Before
Boudin, Chief Judge,
Selya and Lipez, Circuit Judges.
Paul McEachern with whom Alec L. McEachern and Shaines &
McEachern, P.A. were on brief for appellants.
David H. Barnes with whom Daniel E. Will and Devine, Millimet
& Branch, P.A. were on brief for appellees.
March 19, 2002
BOUDIN, Chief Judge. This case concerns a challenge on
equal protection grounds to the vote requirements for issuance of
bonds in certain New Hampshire school districts. For present
purposes, school districts in New Hampshire are treated as
municipalities. N.H. Rev. Stat. Ann. § 33:8 (2000). While some
communities use a "city form" of government where bond issues along
with legislation are approved by elected officials (e.g., a city
council), id. § 33:9, there are two other types of municipal
government recognized by state law where legislation including bond
issues requires voter approval.
One such form of organization is the traditional town
meeting in which voters assemble on a regular basis to vote upon
legislation, including bond issues. N.H. Rev. Stat. Ann. § 39:1.
In a variation, other municipalities have retained direct voter
control but adopted a so-called "official ballot" regime in which
residents vote directly on legislation including bond issues not at
a town meeting but by paper ballot at the polls on a designated
day. Id. § 40:13 (2000 & Supp. 2001). Voters in school districts
may alter their form of governance by a three-fifths vote. Id. §
40:14.
Prior to 1999, state law required a super-majority of
two-thirds of those voting, either in town meetings or by official
ballot, in order to approve local bond issues. N.H. Rev. Stat.
Ann. § 33:8. Then, in 1999, the state statute was amended so that
the two-thirds vote requirement was continued for town meeting
districts, but the super-majority required for approval was reduced
-2-
to three-fifths in municipalities using the official ballot system.
In other words, a different super-majority is required depending on
whether the voters vote in a town meeting or official ballot school
district.
In June 2001, plaintiffs filed a declaratory judgment
action in federal district court in New Hampshire. Each plaintiff
claimed to be a resident in one of the defendant school districts
using the official ballot method and further claimed that each of
the districts after the 1999 amendment had approved bond issues by
a vote greater than three-fifths but less than two-thirds. The
complaint sought a declaration that the lesser percentage required
in official ballot districts, by contrast to the greater percentage
required in town meeting districts, violated plaintiffs' rights
under the Equal Protection Clause of the Fourteenth Amendment by
according different weights to the votes of similarly situated
voters.1
The defendant school districts moved to dismiss the
complaint for failure to state a claim. Fed. R. Civ. P. 12(b)(6).
They contended that voters in the two different types of district
are not similarly situated and, even if they were, the
legislature's vote-percentage distinction is rational and does not
violate equal protection standards. In August 2001, the district
1
The state itself was not joined as a defendant. Because we
find that the challenged statute does not violate equal protection,
we bypass the question whether the state Attorney General is a
necessary party. See Fed. R. Civ. P. 19(a); cf. Norwood v.
Harrison, 581 F.2d 518, 519 (5th Cir. 1978); Liquifin
Aktiengesellschaft v. Brennan, 383 F. Supp. 978, 983-84 (S.D.N.Y.
1974).
-3-
court granted the motion to dismiss, ruling that voters residing in
the two different types of school district are not similarly
situated, that "uniformity among a state's local subdivisions is
not a constitutional requisite," and that no equal protection claim
could be based on the different super-majority requirements.
Plaintiffs now appeal to this court.
On appeal, plaintiffs' central argument is that voters in
official ballot and town meeting districts are similarly situated
because even though each school district votes separately on its
own bond issues, school financing in New Hampshire is inherently a
"state" matter that requires uniformity across the state. See
Claremont Sch. Dist. v. Governor, 703 A.2d 1353 (N.H. 1997).
Defendants say that the local districts are not similarly situated
and distinguish Claremont; but they argue in any event that the
different super-majority requirements are rationally based and
therefore valid even if comparison is warranted.
Supreme Court cases have often described as the basic
equal protection principle that "all persons similarly situated
should be treated alike."2 This may lead one to suppose that an
equal protection challenge automatically fails whenever there are
2
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439
(1985); see also Plyler v. Doe, 457 U.S. 202, 216 (1982) ("The
Equal Protection Clause directs that 'all persons similarly
circumstanced shall be treated alike.'" (quoting F.S. Royster Guano
Co. v. Virginia, 253 U.S. 412, 415 (1920)); Atchison, Topeka &
Santa Fe R.R. Co. v. Matthews, 174 U.S. 96, 104 (1899) ("[T]he
equal protection guaranteed by the Constitution forbids the
legislature to select a person, natural or artificial, and impose
upon him or it burdens and liabilities which are not cast upon
others similarly situated.").
-4-
substantial differences between the two groups and without further
inquiry into whether those differences justify the classification;
the New Hampshire Supreme Court's decision rejecting plaintiffs'
challenge to the 1999 amendment under the state equal protection
clause may seem to support this view. McGraw v. Exeter Region
Coop. Sch. Dist., 765 A.2d 710, 712 (N.H. 2001). But so far as
federal equal protection law is concerned, this is an over-
simplification.
Rather, putting aside the special problem of suspect
classifications, the underlying equal protection inquiry--at least
under federal law--is whether different treatment of two separately
classified groups is at least marginally reasonable. Thus, Supreme
Court cases refer to the "similarly situated" rubric as the
cardinal principle but then implement it through the "general rule
. . . that legislation is presumed to be valid and will be
sustained if the classification drawn by the statute is rationally
related to a legitimate state interest."3
Decisions may sometimes use the similarly situated
language to conflate the two inquiries--by pointing to a
differentiating characteristic so self-evidently a basis for a
reasonable classification as to show both dissimilarity and
reasonableness at the same time. Imagine state-enacted water
3
Cleburne, 473 U.S. at 440; accord Plyler, 457 U.S. at 216
(usual requirement is "that the classification at issue bears some
fair relationship to a legitimate public purpose"); Tribe, American
Constitutional Law §§ 16-1 to 16-2 (2d ed. 1988); Tussman &
tenBroek, The Equal Protection of the Laws, 37 Cal. L. Rev. 341,
346 (1949).
-5-
conservation measures directed to any county with a drought but not
to any with a rich supply of water. But in our case, merely to
point to a difference in voting mechanisms (between official
ballots and town meetings) is to identify a differentiating
characteristic without automatically explaining why it justifies
the difference in treatment (different super-majorities).
This does not make it irrelevant to ask whether two
groups are similarly situated. Our own cases do ask this
question.4 If there are no differences at all, that is likely to
be fatal to the classification; and if there are differences
between the two groups, this will focus attention on distinctions
that may rationally justify the difference in treatment. But
unless the distinctions are self-evidently a rational justification
for the discrepant treatment--which is not true in our case--the
justification question remains to be addressed.
The district court appears to have assumed that a per se
rule exists that differential treatment of local units within a
state is always and everywhere lawful because they are not
similarly situated. There may be a hint of this view in the oldest
of the cases invoked,5 but the more recent case law appears to go
4
See Barrington Cove Ltd. P'ship v. R.I. Hous. & Mortgage Fin.
Corp., 246 F.3d 1, 8 (1st Cir. 2001); Rubinovitz v. Rogato, 60 F.3d
906, 909-10 (1st Cir. 1995). The similarly situated rubric was
also used in The Dartmouth Review v. Dartmouth College, 889 F.2d
13, 19 (1st Cir. 1989), for a quite different purpose, namely, to
refute a factual inference of race discrimination. Once again, the
same words may play different roles in different contexts.
5
Missouri v. Lewis, 101 U.S. 22, 30 (1879) (stating that equal
protection "has not respect to local and municipal regulations that
do not injuriously affect or discriminate between persons or
-6-
no further than to recognize that differential treatment of local
units may be easily justified. Holt Civic Club v. City of
Tuscaloosa, 439 U.S. 60, 68-70 (1978); Salsburg v. Maryland, 346
U.S. 545, 553 & n.9 (1954). "Normally" is not the same as
"always"; and it does not take too much imagination to conjure up
differential treatment by the state of different communities that
might well raise equal protection concerns.
We note in passing that even if there were an independent
similarly situated requirement, plaintiffs would not be helped by
Claremont. There, the state supreme court held that using widely
varying property tax rates for schools in different communities
violated a state constitutional requirement that state taxes be
"proportional and reasonable." 703 A.2d at 1355 (quoting N.H.
Const. pt. 2 art. 5). Although the court applied this requirement
to locally prescribed and collected taxes, its concern was based on
the perceived impact of local discrepancies on public education
within the state. Id. at 1356-57.
In short, Claremont addressed a different constitutional
provision (the state's proportional and reasonable requirement), a
different subject (tax rates themselves as opposed to voting
regimes for bond issuance), and a different concern (the impact of
differential tax rates on state education). That it had nothing to
classes of persons within the places or municipalities for which
such regulations are made" (emphasis added)). Even in Lewis,
however, the Court went on to address justification, saying that
the state's establishment of a special court of appeals with
exclusive jurisdiction over appeals from certain counties was
justified by "[c]onvenience, if not necessity." Id. at 30-31.
-7-
do with judging different voting regimes was made clear by the same
court's later decision in McGraw, which brushed aside plaintiffs'
state equal protection challenge to the 1999 amendment. 765 A.2d
at 712.
This brings us to the question of what test should be
used in judging the different super-majorities in this case.
Super-majorities are not inherently unlawful for referenda, Gordon
v. Lance, 403 U.S. 1, 6-7 (1971), but the issue here is unequal
treatment. There is some indication that heightened scrutiny
exists where a state distinguishes among voters within the relevant
jurisdiction. See, e.g., Harper v. Va. Bd. of Elections, 383 U.S.
663, 665 (1966). Certainly, the Supreme Court has regularly
invalidated schemes of this kind, although more recent cases have
sometimes allowed voting to be limited to or weighted unequally
toward specially affected residents.6
But here, New Hampshire has prescribed different voting
regimes for decisions made separately in differently structured
local communities, though admittedly for the same kind of decision.
6
Compare, e.g., Hill v. Stone, 421 U.S. 289 (1975)
(invalidating "dual box" municipal bond election procedure that
required majority of property taxpayers and majority of all
voters), and Gray v. Sanders, 372 U.S. 368 (1963) (invalidating
Georgia's county-unit method of voting, which gave disproportionate
weight to rural voters), with Town of Lockport v. Citizens for
Cmty. Action, 430 U.S. 259 (1977) (holding that divergent interests
of cities and towns justified requirement of majority of voters in
both to approve new county charter), and Salyer Land Co. v. Tulare
Lake Basin Water Dist., 410 U.S. 719 (1973) (allowing election for
water storage board, which oversaw distribution of water to farms,
to be limited to landowners). See generally Gelfand, Federal
Constitutional Law and American Local Government § 1-3 (1984);
Briffault, Who Rules at Home?: One Person/One Vote and Local
Governments, 60 U. Chi. L. Rev. 339, 345-369 (1993).
-8-
The few Supreme Court cases in point indicate that in this
situation, equal protection claims are properly tested by asking
whether there is a rational basis for the difference in treatment
based on some conceivable legitimate legislative objective.7 This
seems fair enough: the votes are on local bond issues and each
vote within the district is counted equally. There is no issue
here of a state-wide vote tabulated differently in constituent
districts. Cf. Bush v. Gore, 531 U.S. 98 (2000).
The defendants' brief refers to legislative history
indicating that the 1999 amendment was prompted by several related
concerns: first, the need in town meeting districts for a larger
super-majority rested in part on the risk of smaller turnouts at a
town meeting, whereas in ballot communities voting is much easier,
lessening the need for a large super-majority; and, second, such
easy voting in the latter districts had led to a substantial
decline in bond approvals in such communities because of a passive
minority who might not trouble to attend town meetings but would
vote no almost automatically on school financing under the official
ballot mechanism.8
7
Holt, 439 U.S. at 68-70; Salsburg, 346 U.S. at 553 & n.9; see
Neuman, Territorial Discrimination, Equal Protection, and Self-
Determination, 135 U. Pa. L. Rev. 261, 273-75 (1987).
8
See, e.g., Hearing on H.B. 487 Before the Senate Comm. on
Education, 1999 Gen. Ct., 156th Sess. (N.H. June 9, 1999)
(statements of Rep. Lynde and Dean Michener, Dir. of Gov't
Relations, N.H. School Boards Ass'n); Public Hearing on H.B. 487
Before the House Comm. on Education, 1999 Gen. Ct., 156th Sess.
(N.H. Mar. 24, 1999) (statement of Rep. Estabrook).
-9-
Although legislative history is by no means necessary to
sustain a classification as rational, both distinctions articulated
by the legislature seem plausible enough to satisfy the lenient
rational basis test. See FCC v. Beach Communications, Inc., 508
U.S. 307, 313-15 (1993); McGowan v. Maryland, 366 U.S. 420, 425-26
(1961). If the state legislature had allocated different super-
majority requirements at random, this would be a quite different
case. But here, different requirements apply to different methods
of voting, and the explanation as to why the different methods
might warrant the small adjustment in the super-majority
requirement (amounting to an additional one-fifteenth of the vote
in town meeting districts) can hardly be described as arbitrary on
its face in view of legislative history.
We need not pursue the issue much farther because the
plaintiffs have failed to make any serious effort to counter this
claim of rational basis. Defendants moved in the district court
for a dismissal of the complaint on two separate grounds--the
similarly situated rubric and the claim of rational basis. The
district court did not reach the second ground, and therefore
plaintiffs had no obligation to address the issue in their opening
brief. But it is well-settled that on appeal the defendants may
defend the judgment below on any ground that would serve. See
Roeder v. Alpha Indus., Inc., 814 F.2d 22, 28, 30-31 (1st Cir.
1987).
Accordingly, if the plaintiffs did not anticipate this
alternative ground and address it in their opening brief, prudence
-10-
dictated that they counter with a reply brief showing that the
defendants were wrong or that the issue was not subject to
disposition on the pleadings. Plaintiffs have made no serious
effort to anticipate the issue, save for a claim, not seriously
developed and so disregarded, Mass. Sch. of Law v. Am. Bar Ass'n,
142 F.3d 26, 43 (1st Cir. 1998), that the legislature was
impermissibly trying to dilute the votes of bond issue opponents.
And plaintiffs filed no reply brief at all. Absent any sustained
challenge to defendants' rational basis claims, we have no cause to
doubt the defendants' proffered rationales.
Affirmed.
-11-