City of Portsmouth v. Schlesinger ( 1995 )

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-