By PAULA TRACY, InDepthNH.org
CONCORD – A Merrimack County Superior Court judge has dismissed a lawsuit brought by sponsors of the Elizabeth Gurley Flynn historic marker which was removed after an Executive Councilor objected to it because of her Communist party leanings and support for the Soviet Union.
In an eight-page ruling, Merrimack County Superior Court Judge John C. Kissinger Jr. wrote that Mary Lee Sargent, Arnie Alpert and others who petitioned to have the marker for the labor leader, feminist, and founder of the American Civil Liberties Union reinstated in Concord lacked legal standing.
Kissinger agreed with the state’s motion to dismiss the groups’ request for declaratory and injunctive relief.
From May 1, 2023 until it was removed two weeks later, the marker was located at the corner of Montgomery and Court streets in Concord, just outside the courthouse where the judge’s ruling was drafted on March 14.
But the controversy led to many news articles, editorials and discussion about the Flynn marker and the state’s historic marker program.
Alpert said Wednesday that it is his understanding the group has 10 days to appeal, and it is now being considered.
The state had moved to dismiss the case claiming the matter was nonjusticiable because the plaintiffs lacked standing, and any remedy would violate a separation of powers.
Though the group considered themselves the “sponsors” of the effort to get the marker in place, and collected 40 signatures on a petition, and they argued they paid taxes to the state which paid to create the marker, they failed to meet the court’s legal interpretation for standing.
Kissinger determined that Alpert and Sargent and others in the group lacked standing and therefore said he did not need to go further on the state’s other arguments.
Citing Avery v. Comm’r NH Dept of Corr. “in evaluating whether a party has standing to sue (the court) focus(es) on whether the party suffered a legal injury against which the law was designed to protect.”
“Neither an abstract interest in ensuring that the state Constitution is observed nor an injury is indistinguishable from a generalized wrong allegedly suffered by the public at-large is insufficient to constitute a personal, concrete interest.”
“Rather the party must show that its own rights have been or will be directly affected,” the judge wrote.
The taxpayer argument also fell short with the money spent not being the core of the plaintiffs’ challenge, Kissinger wrote, and indeed the group had sought to have the state spend the money in petitioning for it. He cited the case Carrigan v. NH Department of Health and Human Services.
The state has a series of historic markers across New Hampshire that depict people, places and things that occurred that are of historic significance. They range from a reported extraterrestrial sighting to individuals like Hannah Duston, a colonial Massachusetts Puritan woman taken captive by Abenaki, who killed and scalped 10, including children.
There are 288 historical markers which have been installed since 1958.
Elizabeth Gurley Flynn’s parents lived on Montgomery Street in Concord, She rose to national and international levels of prominence for her work in support of a woman’s right to vote and was known as “The Rebel Girl.”
Alpert and Sargent were among “sponsors” of the Flynn marker who collected more than 40 signatures to support it. On July 8, 2021, the plaintiffs applied to a commission overseeing placement of the markers to have the Flynn marker approved and installed, according to the ruling. It was unveiled May 1, 2023.
At the May 3, 2023 Executive Council meeting, Executive Councilor Joe Kenney of Wakefield, a Republican, expressed objection to the marker, citing Flynn’s Communist party connections and support of the Soviet Union.
Gov. Chris Sununu, a fellow Republican, said he would look into removing it.
The state Department of Natural and Cultural Resources, which is in charge of the markers, has a policy for removal of markers with certain criteria needing to be met which include inaccuracy on the marker, a lack of cultural and historical relevance and other matters. But the plaintiffs allege that that process was not followed and that commissioner of the department, Sarah Stewart, ordered the marker be removed and did not notify the group of the “retirement” of the marker.
While Judge Kissinger said the claim of not following policy could be argued, the fact that the plaintiffs lack legal interest in the marker stood before that.
“In conclusion, while the plaintiffs argue that the commissioner failed to comply with the relevant statutes and policies related to the removal of the historical highway markers, the Court determines the plaintiffs lack the personal interest required to challenge these provisions, statutes and policies or whether the commissioner properly abided by or followed them,” Kissinger wrote.
Paula Tracy is InDepthNH.org’s senior writer with 30 years reporting experience.
Disclaimer: Arnie Alpert writes an occasional column Active with the Activists for InDepthNH.org.