New Hampshire is sued over removal of marker dedicated to Communist Party leader

CONCORD, N.H. (AP) — Supporters of a former historical marker dedicated to a feminist and labor activist from New Hampshire who also led the U.S. Communist Party sued the state Monday, saying officials violated a law around administrative procedures and should put it back up.

The green and white sign describing the life of Elizabeth Gurley Flynn was installed May 1 in Concord close to where she was born Aug. 7, 1890. It was one of more than 275 across the state that describe people and places, from Revolutionary War soldiers to contemporary sports figures. But it was taken down two weeks after it went up.

Known as “The Rebel Girl” for her fiery speeches, Flynn was a founder of the American Civil Liberties Union and advocated for women’s voting rights and access to birth control. The marker said she joined the Communist Party in 1936 and was sent to prison in 1951. She was one of many party members prosecuted “under the notorious Smith Act,” the marker said, which forbade attempts to advocate, abet or teach the violent destruction of the U.S. government.

Flynn later chaired the Communist Party of the United States. She died at 74 in Moscow during a visit in 1964.

The marker had drawn criticism from two Republican members of the Executive Council, a five-member body that approves state contracts, judicial nominees and other positions, who argued it was inappropriate, given Flynn’s Communist involvement. Republican Gov. Chris Sununu agreed and called for a review of the historical marker process. It was removed in consultation with Sununu, according to Sarah Crawford Stewart, commissioner of the Department of Natural and Cultural Resources.

But "the marker was illegally removed based on ideological considerations that fly in the face of the historical marker program’s purpose,” said plaintiff Mary Lee Sargent, an American history teacher who, along with activist Arnold Alpert, filed the lawsuit against the state in superior court.

The lawsuit says that state officials violated the state's Administrative Procedures Act, its historic markers program and the plaintiffs' rights to due process by interfering with Sargent's and Alpert's rights “to duly petition for the approval and erection of a historical marker” near Gurley Flynn's birthplace.

The complaint specifically names Secretary of State David Scanlan as representative of New Hampshire, along with Stewart and Transportation Commissioner William Cass. Messages seeking comment on the lawsuit were sent to all three, as well as to the New Hampshire attorney general's office, which represents the state and its departments in litigation.

“We will review the complaint and respond as appropriate in court in due course,” said Michael Garrity, a spokesperson for the attorney general's office.

Under the current process, any person, municipality or agency can suggest a marker as long as they get 20 signatures from New Hampshire residents. Supporters must draft the marker’s text and provide footnotes and copies of supporting documentation, according to the state Division of Historical Resources. The division and a historical resources advisory group evaluate the criteria.

The lawsuit said that policies and guidelines used by the department to run the program are invalid because their adoption wasn't consistent with requirements of the Administrative Procedures Act. The lawsuit said Stewart didn't even follow the guidelines, which require the department to consult with the advisory historical resources council before markers are “retired.”