A historical marker dedicated to Elizabeth Gurley Flynn stands in...

A historical marker dedicated to Elizabeth Gurley Flynn stands in Concord, N.H., Friday, May 5, 2023. A judge dismissed a lawsuit against the state brought by supporters of the marker, saying they lacked the legal right or interest to argue for the marker's restoration. Credit: AP/Kathy McCormack

CONCORD, N.H. — A judge has dismissed a lawsuit brought against the state of New Hampshire after government officials removed a historical marker dedicated to a feminist and labor activist who also led the U.S. Communist Party.

The sponsors of the marker honoring Elizabeth Gurley Flynn, who filed the lawsuit last year, lack the legal right or interest to argue for the marker's restoration, Judge John Kissinger wrote, agreeing with the state's argument for a dismissal. The ruling was made public Wednesday.

The sponsors argued they had standing because they spent time and energy researching Gurley Flynn, gathering signatures in support of the marker and filing for its approval. They said state officials violated a law regarding administrative procedures and should put it back up.

“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.

One of the plaintiffs, Arnie Alpert, said Thursday that they were considering filing a request with the judge for reconsideration.

The green and white sign describing the life of Flynn was installed last May in Concord, close to where she was born on 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.

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.

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.

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 Stewart's 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 follow the guidelines, which require the department to consult with the advisory historical resources council before markers are “retired.”

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