Independent New Hampshire Journalism · Northfield, NHThe New Hampshire Supreme Court ruled on October 19, 2010, that a defectively noticed Grafton County Convention vote on officials’ pay was not void. The same date holds a 1775 plea from Portsmouth for gunpowder and the 14th New Hampshire’s fight at Cedar Creek in 1864.
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A public body can break the notice rules and still make a decision that counts. New Hampshire’s Supreme Court said so about Grafton County on October 19, 2010, and the case still shows the distance between proving a meeting was improperly noticed and getting its vote thrown out. The same date in the state’s record runs back to a Portsmouth committee short on gunpowder in 1775, a House of Representatives sorting out powder, recruits and a day of thanksgiving in 1776, a New Hampshire regiment’s heavy losses at Cedar Creek in 1864, a submarine launch in 1933 and a post office name in 2000.
October 19, 2010
The Pay Vote That Survived Its Own Notice Problem
On May 21, 2008, eighteen of the twenty-six members of the Grafton County Convention met in Concord to set salaries for the county’s elected officials. The meeting had been noticed in the House Record on May 16, and no other public notice had been given. By a vote of 15 to 3, the convention raised the pay of the County Attorney, High Sheriff, Register of Deeds and Treasurer by 2.3 percent for fiscal 2009. It held the commissioners at their 2008 level.
Robert P. Hull asked for documents about the meeting on June 24 and received them on June 30. He and John J. Babiarz then, through their lawyer, told the county’s counsel the notice was deficient under RSA 91-A:2, II and RSA 24:9-d. The convention met again on July 21, properly noticed, and ratified the May vote. The raises added $4,288.78 in salary for fiscal 2009.
Hull and Babiarz sued in October 2008. Their argument ran through a deadline. RSA 23:7 requires a convention to set those salaries before the candidate filing period under RSA 655:14, which closed on June 13, 2008. If the May vote was void, the July vote came too late. They also asked for an injunction, a court-appointed monitor and attorney’s fees. The superior court agreed the May meeting violated RSA chapter 91-A and RSA 24:9-d, and ruled against them on everything else.
The Supreme Court affirmed on October 19, 2010, in an opinion by Chief Justice Broderick. The court found nothing in the plain language of RSA 23:7 that made a defectively noticed vote automatically a nullity. The deadline exists so salaries are set before candidates file, the court wrote, and it was not meant to strip officials of pay because a convention made a notice error. The court upheld the denial of the injunction and the monitor. On fees, it pointed to RSA 91-A:8, I, which makes a public body liable for fees when it refused a record or access and the suit was necessary to open the record or the proceeding. The record showed the May meeting was “neither closed to the public nor secret,” and the petitioners had not been refused access to the meeting or its records.
The lesson travels. A finding that a meeting broke the notice rules is one thing. Undoing what the meeting decided is another. The opinion notes that RSA 91-A:8, II leaves invalidation to the trial court’s discretion, and it held that the petitioners had not preserved an argument that the trial court should have used it.
October 19, 1775
Portsmouth Asks Washington for Gunpowder
The Portsmouth Committee of Safety wrote to George Washington on October 19, 1775, over the signature of its chairman, H. Wentworth. An express had come in from Falmouth on Casco Bay, now Portland, Maine. The letter relayed its report: an armed ship it called the Canso, under a Capt. Mouat, had arrived with other vessels and threatened to fire on the town unless it gave up its arms and hostages. The committee said its own stock of powder was “only Seventeen Barrells” and sent a Mr. Duing to ask Washington for as much powder as he thought proper.
The editors of Washington’s papers identify the ship as the Canceaux and its commander as Lt. Henry Mowat of the Royal Navy. They report that Horatio Gates answered on October 20 that Washington could not immediately comply, and that Washington sent Gen. John Sullivan with a small party of riflemen to help defend Portsmouth.
October 19, 1776
Powder, Recruits and a Day of Thanksgiving
The New Hampshire House journal for Saturday, October 19, 1776, opens with Benjamin Whittier of Nottingham, whom the House had heard the day before on an accusation from his town’s committee of safety. He came before the House and entered a recognizance of five hundred pounds for his good behavior toward the state for six months.
Then came the war business. The House voted a joint committee to recommend whether to store the state’s powder or spread it among several towns, “as the Powder house in Exeter is full.” It named Benjamin Giles and Jonathan Blanchard of the Council and Col. David Gilman and Col. Stephen Evans of the House to go to Ticonderoga about recruiting the new battalions the state was raising on the Continental Establishment. And it set the third Thursday of November as a day of public thanksgiving, with the Committee of Safety to write the proclamation.
October 19, 1864
The 14th New Hampshire at Cedar Creek
Union forces in the Shenandoah Valley were surprised in the night and routed at Cedar Creek on October 19, 1864, then rallied the same day and drove the Confederates from the field. The 14th New Hampshire Volunteers were in the fight. Francis H. Buffum’s 1882 history of the regiment says it took a conspicuous and honorable part.
Buffum measured that part in losses, citing the official report. The 14th lost more men killed than any other regiment in its brigade, and more than one-third of all the wounded in a brigade of six regiments. Only eighteen of its members were missing that night, which Buffum credits to discipline. He names Sergt.-Major J. Henry Jenks, killed in the last charge, as “the last man who fell in battle in the Fourteenth,” and singles out the color-bearer, Charles G. Howard, for his bravery at a critical moment. The narrative gives no total of killed and wounded; the book follows with obituary notices of the killed and mortally wounded.
October 19, 1933
Cachalot Is Launched at Portsmouth
The Portsmouth Navy Yard launched the submarine Cachalot on October 19, 1933, under the designation V-8 (SC-4). Miss K. D. Kempff sponsored her, according to the Navy’s Dictionary of American Naval Fighting Ships, and she was commissioned on December 1, 1933, with Lt. Cmdr. M. Comstock in command. The Navy’s history lists her as SS-170.
October 19, 2000
A Derry Post Office Takes an Astronaut’s Name
Public Law 106-337, approved October 19, 2000, named the Postal Service facility at 24 Tsienneto Road in Derry the Alan B. Shepard, Jr. Post Office Building. The bill, H.R. 4517, passed the House on July 18 and the Senate on October 6. The law itself is two short sections and states no reason for the choice of name.
Your Turn
Tell us: Has your town, school board or county ever met without proper notice, and did anything change afterward? Do you know a Granite Stater who served in the 14th New Hampshire? Write to granitestatereport@gmail.com or leave a comment.
Fact check
| # | Claim | Status | Source |
|---|---|---|---|
| 1 | Hull v. Grafton County, No. 2009-527, 160 N.H. 818, opinion issued October 19, 2010; author Broderick, C.J.; disposition “Affirmed.” | VERIFIED | CourtListener, Hull v. Grafton County (headmatter: “Opinion Issued: October 19, 2010”) |
| 2 | On May 21, 2008, 18 of 26 convention members met in Concord; notice ran in the House Record May 16 with no other public notice; vote 15-3 for 2.3 percent raises for four offices; commissioners held at 2008 level. | VERIFIED | Opinion, Part I |
| 3 | Hull requested documents June 24 and received them June 30; the convention ratified the vote July 21; aggregate fiscal 2009 increase $4,288.78. | VERIFIED | Opinion, Part I |
| 4 | RSA 23:7 ties the salary vote to the RSA 655:14 filing period, which ended June 13, 2008; the trial court found the May 21 meeting violated RSA 91-A and RSA 24:9-d. | VERIFIED | Opinion, Parts I and II |
| 5 | The court found nothing in RSA 23:7’s plain language making defective notice automatically void the vote; invalidation under RSA 91-A:8, II is discretionary and the argument was not preserved; upheld denial of injunction, monitor and fees; meeting “neither closed to the public nor secret.” | VERIFIED | Opinion, Parts II to V |
| 6 | Portsmouth Committee of Safety letter to Washington dated October 19, 1775, signed H. Wentworth, reporting the Falmouth express; powder “only Seventeen Barrells”; Mr. Duing sent. | VERIFIED | Founders Online, Washington Papers 03-02-02-0179 |
| 7 | Editors identify the Canceaux and Lt. Henry Mowat; Gates replied October 20 that Washington could not immediately comply; Washington sent Sullivan with riflemen; Falmouth is now Portland. | VERIFIED | Founders Online, editorial notes |
| 8 | House journal, Saturday, October 19, 1776: Whittier recognizance of 500 pounds for six months; powder committee (“Powder house in Exeter is full”); Ticonderoga committee of Giles, Blanchard, Gilman and Evans; Thanksgiving on the third Thursday of November. | VERIFIED | Provincial and State Papers, Vol. VIII, pp. 354-355 |
| 9 | Cedar Creek fought October 19, 1864; surprised in the night, Union forces drove the enemy from the field the same day. | VERIFIED | Buffum, Memorial of the Great Rebellion (1882), p. 273; Lincoln’s letter quoted on p. 297 names October 19, 1864 |
| 10 | 14th NH lost more killed than any regiment in its brigade and more than one-third of the brigade’s wounded; eighteen missing; Jenks the last man to fall; color-bearer Charles G. Howard. | ATTRIBUTED | Buffum (1882), p. 291, citing the official report; the narrative gives no totals |
| 11 | Waud drawing dated 1864 October 19, inscribed “Oct 19-64,” no known restrictions on publication. | VERIFIED | Library of Congress item 2004660854 |
| 12 | Cachalot launched October 19, 1933, as V-8 (SC-4) by Portsmouth Navy Yard; sponsor Miss K. D. Kempff; commissioned December 1, 1933, Lt. Cmdr. M. Comstock. | VERIFIED | Naval History and Heritage Command, DANFS: Cachalot |
| 13 | Public Law 106-337 (H.R. 4517) approved October 19, 2000; names the facility at 24 Tsienneto Road, Derry, for Alan B. Shepard, Jr.; House passage July 18, Senate October 6. | VERIFIED | Public Law 106-337, congress.gov |
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Related GSR coverage: Four Attorneys General Rewrote the Same Records Rule. Only Congress Made One Stick.; Avoid the Unhappy and Unlucky (Right-to-Know fees); October 18 in New Hampshire History.
Editor’s note. This edition draws on the New Hampshire Supreme Court’s opinion in Hull v. Grafton County, the Washington Papers at Founders Online, the Provincial and State Papers of New Hampshire, Francis H. Buffum’s 1882 history of the 14th New Hampshire, the Naval History and Heritage Command’s ship histories, Public Law 106-337 and the Library of Congress Prints and Photographs Division. Dates are as those sources give them.
Corrections: Granite State Report corrects verified errors promptly and appends a dated note identifying what changed and when. The corrections policy and the corrections register are public, and correction notes are never removed.
