Residents in Auburn and Derry who want their votes counted on the fluoridated water distributed by Manchester Water Works have filed a lawsuit challenging a regional referendum on the issue scheduled for the state primary election on Sept. 14.

The Legislature ordered the referendum for “municipalities whose voters directly receive water from the city of Manchester,” but election officials did not interpret that wording to include Auburn and Derry, even though some households in those communities are tied into the city’s drinking water distribution system.

The plan calls for ballots asking the question, “Shall fluoride be used in the Manchester public water system?” to be provided on election day to voters in Bedford, Goffstown, Hooksett, Londonderry and Manchester.

The lawsuit was filed on behalf of Auburn residents Thomas Upham and David Lariviere; Derry residents Fred W. DeJong, Kim and Charles Statler; and Manchester state Rep. Barbara J. Hagan, by Concord lawyer Jed Z. Callen in both Hillsborough and Rockingham counties.

Callen wants the Superior Court to either extend the vote on Sept. 14 to include the Rockingham County towns of Auburn and Derry or delay the referendum.

“If, for practical reasons, it’s impossible to distribute ballots by September 14 to those towns, I’m going to ask the court to order that the ballots be produced and the vote be held as soon as possible, perhaps during the November election,” Callen said.

He told the Sunday News he is unsure whether it would be better to delay the vote in Manchester and the other towns — so that everyone votes in November — or to proceed in five communities on Sept. 14, with the counting of the referendum ballots being delayed until Auburn and Derry voters are given an opportunity to participate.

Tom Clark, city solicitor for Manchester, declined comment on the lawsuit Friday, explaining that he had yet to receive a copy.
Controversial issue

Manchester Water Works has about 140,000 customers in the city and the six neighboring communities. Since December 2000, the water works has been adding hydrofluorisilicic acid to its treated water to provide fluoride, a substance many health officials endorse as effective in reducing tooth decay.

But many people question the value of fluoridation, especially with hydrofluorisilicic acid, which may contain small amounts of arsenic, lead and other potentially poisonous contaminants.

In the papers he filed with the court, Callen questions the constitutionality of a ballot that simply asks for a vote on fluoridation.

“The language mandated (by the Legislature) . . . fails to inform the voters and potential consumers of the public water of salient facts concerning their choice, namely what they are being asked to approve being added to their water, and what it’s actual and potential health effects are,” he wrote.

Four years ago, the Manchester referendum that authorized the water works to fluoridate had passed 11,450-10,797, a margin of only 653 votes.

In response to that vote, in February 2001, Callen filed suit in Hillsborough County Superior Court on behalf of 19 residents in communities that get water from Manchester Water Works. They complained they had not been allowed to vote in the Manchester referendum that approved fluoridation of their drinking water.

The case made its way to the state Supreme Court, where a ruling was issued on Sept. 30, 2003, that instructed the Legislature to correct the fluoridation referendum law to assure all customers a vote when it comes to deciding whether to fluoridate their public water supply.
Changes in the law

Lawmakers responded by making several changes in the fluoridation referendum statute.

Under the old law, a majority of voters in each community had to approve for a multi-town water system to fluoridate. Now, it’s “a majority of those voting in all of the municipalities combined.”

The new law limits the fluoridation referendum to voters in communities that have “100 or more user connections that are served from the public water supply.”

It also included a specific reference to the situation in Manchester by ordering a referendum held in next month’s election “for the city of Manchester and other municipalities whose voters directly receive water from the city of Manchester.”

“The reason for this suit,” said Callen, “is that the city of Manchester and the Secretary of State have agreed to interpret the statute to exclude Auburn and Derry.”

The city’s water works has fewer than 100 customers in Auburn, but Callen contends the law’s reference to the number of users a system has in a specific community applies only to future referendums, not next month’s vote.

“When you have a specific directive, it overrides the general statements in the statute,” he said.

Callen believes Derry was unfairly excluded only because the law limits participation to “municipalities whose voters directly receive water” from the city’s water system.

“In all the other communities, the individual users are billed by Manchester Water Works. In Derry, Derry pays Manchester and bills the users in Derry. They pay their water bills to Derry. So there is a distinction on the financial side, but in terms of plumbing there is absolutely no distinction. . . . I believe that where the bills are sent makes no difference,” Callen said.

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