USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 94-1274

CITY OF PORTSMOUTH NEW HAMPSHIRE,

Plaintiffs - Appellants,

v.

RICHARD SCHLESINGER AND WILLIAM WEINSTEIN,

Defendants - Appellees.

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APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul J. Barbadoro, U.S. District Judge]

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____________________

Before

Boudin, Circuit Judge,

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Aldrich, Senior Circuit Judge,

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and Young,* District Judge.

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_____________________

Steven E. Grill, with

________________

whom Alexander J. Walker, Jr., and

__________________________

Devine, Millimet & Branch, P.A. were on brief for appellants.

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Christopher Cole, with
_________________

whom

Peter S. Cowan and

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Phinney, Bass & Green, P.A. were on brief for appellees.

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Sheehan,
________

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May 9, 1996
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____________________

Of the District of Massachusetts, sitting by designation.

Per Curiam.
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The Supreme Court of New Hampshire

issued

its

opinion

on

March

12,

Schlesinger, et al., No.

___________________

1996),

responding to

June 13,

1995.

1996,

in

City of Portsmouth
____________________

95-399, 1996 WL 112,644 (N.H.

the question

certified by

See City of Portsmouth v.

___ ___________________

this

v.

Mar. 12,

court on

Schlesinger, 57 F.3d
___________

12, 18 (1st Cir. 1995).

Having dealt

earlier

decision, the

whether the

barred.

with appellant's

sole remaining

appellees' so-called

The district

issue

in this

our

appeal is

"illegality" defense

court held the defense timely

that it applied to appellant's

appellees.

other arguments in

was time

and, ruling

conduct, entered judgment for the

On appeal, this court considered that

the timeliness

issue turned on whether the short statutes of limitation found in

New Hampshire Rev. Stat. Ann. sections 677:2 and

:4 apply in the

circumstances

of this case.

The New Hampshire Supreme Court has

now responded in the negative when that question was certified to

it.

The

New Hampshire

presented by

and

this case --

questions of an

ultimately the binding effect

not questions of

:4,

Supreme Court ruled

but were

that the

ordinance's legality

of a promissory

administrative action subject to

affirmative

questions

defenses relating

note -- were

RSA 677:2 and

to the

underlying

legality of the appellant's legislative action.

In light of

Hampshire,

we hold

the opinion

that the

appellee must be affirmed.

________

of the Supreme

Court of

district court's judgment

New

for the

-2-