CONCORD, NEW HAMPSHIRE—In a motion filed Friday by their attorney, Andru Volinsky, Mary Lee Sargent and Arnie Alpert have asked Merrimack County Superior Court Judge John Kissinger to reconsider his ruling that they lack standing to sue the State for removing a historical marker about Elizabeth Gurley Flynn.

Sargent and Alpert led an effort for the Division of Historical Resources (DHR) to install a marker near the Concord birthplace of Flynn, who gained notoriety as a labor activist, civil libertarian, and advocate for women’s equality in the early twentieth century.  Later, she became a leader of the Communist Party for which she was jailed under the Smith Act during the McCarthy Period.  

The Flynn marker was installed at the corner of Court and Montgomery Streets in Concord on May 1, 2023, but was taken down only two weeks later on the orders of Governor Chris Sununu, apparently on the grounds that Flynn’s involvement in the Communist Party disqualified her from historical recognition.

When Sargent and Alpert sued the State in August, the Attorney General moved to have the case dismissed on the grounds that they lacked legal standing.  Judge Kissinger agreed.

“While no one disputes the time and effort expended by the plaintiffs in relation to the Flynn marker, the Court finds no support for a determination that such efforts give rise to a legal right interest, or privilege protected by law,” Kissinger wrote in a March 20 order. 

“The Court’s ruling protects the decision to remove the marker no matter the reason,” Volinsky wrote in the motion for reconsideration.  “All removal decisions are protected from review by the Court’s ruling on standing.  No one could challenge a similar decision to remove a marker because the subject of the marker was a Republican or Democrat, woman, LGBTQIA, Black, Brown, Asian, or any other factor an executive councilor or a governor deems objectionable.”

Volinsky’s motion also reasserted his clients’ views that their recognized status as the marker’s sponsors gives them legal standing. 

“The purpose of the marker program is educating the public about places, events, and people of historical significance, a category which certainly includes Elizabeth Gurley Flynn,” said Mary Lee Sargent, a Bow resident who taught American history and women’s studies at colleges and universities for several decades.  “There is no provision in statute or in the rules governing the marker program that says established markers can be removed based on ideological rather than historical grounds.” 

If Judge Kissinger accepts the motion for reconsideration, the case would move to the discovery phase and perhaps to a trial.  If the judge sticks to his previous opinion, the plaintiffs’ only legal recourse would be an appeal to the NH Supreme Court.

Born in Concord to an Irish immigrant family on August 7, 1890, Elizabeth Gurley Flynn was already a well-known speaker before reaching her twentieth birthday.  As a member of the Industrial Workers of the World, a labor union which sought to organize workers without regard to race, sex, or national origin, Flynn crisscrossed the country lifting the spirits of striking workers, raising funds for their defense, and helping to organize textile, mining, timber, and other workers to win better pay and working conditions.   A staunch defender of women’s equality, Flynn became a fierce defender of civil liberties during the first “Red Scare” and was among the founders of the American Civil Liberties Union.

At the age of 46, Flynn joined the Communist Party at a time the group was campaigning against fascism and promoting a “popular front” in support of President Franklin Roosevelt’s New Deal.  She soon rose to prominence within the party, for which she was indicted, tried, convicted, and sent to prison under the Smith Act.   

It was Flynn’s Communist affiliation which attracted the ire of Executive Councilor Joe Kenney, who two days after the marker was installed demanded it be removed.  Governor Sununu agreed, and the marker was taken away by the Department of Transportation on May 15.  It is believed to be still in the custody of the Department of Transportation. 

Alpert and Sargent worked for months on research and gathering support for the historical marker, all the while following DHR guidelines.  After giving its approval to the Flynn marker in 2022, the DHR unveiled the Flynn marker on May 1, 2023, at a ceremony organized by Alpert and Sargent. 

“As we wrote in a letter that accompanied our petition for the Flynn marker in 2021, Flynn’s life and historical significance are well documented by biographers, in her own memoirs, and with references in many books about the period in which she lived,” said Alpert, a resident of Canterbury.  “Less known was the fact that she was born in Concord, not far from the State House.  That, at least, has been remedied.” 

Disclaimer: Attorney Andru Volinsky represents InDepthNH.org in a lawsuit against the attorney general seeking the names of all police officers on the Laurie List. Arnie Alpert writes the column Active with the Activists for InDepthNH.org