Fed. Dist. Court in NH Denies Leave to File a Third-Party Complaint Against State Over Denial of Electronic Sign Permit

In April 2015, Signs for Jesus and Hillside Baptist Church applied for a permit to install an electronic sign on Pembroke Street in Pembroke, New Hampshire. When their application was denied, they filed this action against the Town of Pembroke, Pembroke’s Zoning Board of Adjustment, and Pembroke’s Code Enforcement Officer. Plaintiffs alleged that Pembroke’s zoning ordinance, and defendants’ actions, violated the United States and New Hampshire constitutions, as well as federal and state statutes. Defendants moved for leave to file a third-party complaint against the State of New Hampshire and School Administrative Unit 53 (“SAU 53”), which operated Pembroke’s local public high school. In the alternative, defendants would like to add the State and SAU 53 as required parties under Federal Rule of Civil Procedure 19(a)(1).

Both counts of Defendants’ argument rest on the same legal theory—that “the Town has no control over the allowance of … signs for governmental actors [like the SAU 53 and the New Hampshire Department of Transportation], but is instead required to allow them by RSA 674:54.” Therefore, according to defendants, “the State and SAU 53 are responsible for any discrimination among speakers, not the Town.” However, New Hampshire law allows entities, like the State and SAU 53, to install signs that would otherwise violate local zoning regulations. Defendants failed to allege any facts to show that the State and SAU 53 somehow compelled defendants’ conduct. Instead, the defendants independently chose to deny the Church’s application.

The court likewise rejected the defendants’ request for joinder because even assuming that the Church or defendants would question section 674:54’s constitutionality later in this suit, other mechanisms adequately protected the State and SAU 53. The court determined that if any “pleading, written motion, or other paper” draws into question the statute’s constitutionality, then Federal Rule of Civil Procedure 5.1 requires notice to the New Hampshire attorney general, while 28 U.S.C. § 2403 provides an opportunity for the attorney general to intervene. Accordingly, the court found that, if necessary, the State would have its chance to defend section 674:54. The defendants’ motion for leave to file a third-party complaint was therefore denied.

Signs for Jesus v Town of Pembroke, 2016 WL 4083723 (D. NH 8/1/2016)