CONCORD, NH—Responding to a motion from the State Attorney General for their lawsuit to be dismissed on the grounds that they lack legal standing, the organizers of the historical marker for Elizabeth Gurley Flynn responded that their standing as the marker’s “sponsors” gives them the right to challenge the marker’s removal.
In a Memorandum of Law filed at Merrimack County Superior Court on November 7, Attorney Andru Volinsky representing Mary Lee Sargent and Arnie Alpert said, “the State has mischaracterized the historical marker program as ‘discretionary’ and ‘political,’” whereas by statute and the published policies of the Department of Natural and Cultural Resources, decisions about the installation and removal of markers are supposed to be based on decisions of the department’s professional staff and an appointed panel of historical experts.
Following the State’s removal of the Flynn marker on May 15, Sargent and Alpert filed a complaint in Merrimack County Superior Court calling for the marker to be returned to its spot near Flynn’s birthplace on Montgomery Street in Concord.
“In its legal memorandum, the State acknowledges that the marker was removed due to political considerations, not on grounds of historical merit or accuracy,” said Sargent, who taught American history for several decades at colleges and universities. “That violates the statutes, rules, and principles which are supposed to guide the marker program.”
“The State argued that the Commissioner of Natural and Cultural Resources had full discretion to order the marker’s removal,” said Alpert, a longtime local activist. “Our argument is that the Commissioner’s authority is constrained by the statutes governing the marker program and by her department’s own rules, which she failed to follow.”
Moreover, a response to a right-to-know request revealed a May 15 text message from Division of Historical Resources director Ben Wilson saying, “The Governor had DOT remove the marker in the middle of the night last night.”
“Whatever discretion the Commissioner has,” Alpert said, “she wasn’t the one who ordered the marker’s removal.”
The immediate legal issue is whether Sargent and Alpert have legal standing for their complaint to be considered. In a memorandum of law that accompanied its October 27 motion to dismiss, the State said that Sargent and Alpert had suffered no harm, but rather that “Plaintiffs’ alleged injuries are common to all.”
To the contrary, Volinsky wrote, “The DNCR has a specific term to denote petitioners who seek the approval of historical markers that also distinguishes them from the public. They are called ‘sponsors.’” As the citizens and taxpayers who took the time and trouble to propose the Flynn marker in accord with the historical marker program’s public guidelines, Sargent and Alpert are not just ordinary citizens with regard to the marker’s fate, the Concord attorney wrote.
While the State called the conflict “a political quarrel” based on the fact that “not everyone shares Plaintiffs’’ fondness for Ms. Flynn,” Volinsky said none of the guidelines or statutes governing the program provide for markers to be installed or removed “based on whether a political leader or interest group is ‘fond of’ or dislikes the subject of the historic marker.”
Questions such as whether the plaintiffs’ first amendment rights were breached and whether the State can be ordered to reinstall the Flynn marker at the corner of Court and Montgomery Streets in Concord can wait until the Court decides whether Sargent and Alpert have legal standing, Volinsky said.
Born in Concord in 1890, Elizabeth Gurley Flynn became a prominent labor organizer at a young age and was also known as an advocate for women’s equality and defender of civil liberties during the time of the first “Red Scare.” Later in life, she joined the Communist Party.
“There is no doubt that Elizabeth Gurley Flynn’s place in history is secure,” said Sargent. “What is in dispute is whether the state’s historical marker program will live up to its purpose: educating the public about New Hampshire’s history.”
Disclaimer: Arnie Alpert writes a column Active with the Activists for InDepthNH.org. Attorney Andru Volinsky represents InDepthNH.org in its lawsuit seeking all of the names on the Laurie List of dishonest police officers. This lawsuit is unrelated to InDepthNH.org.