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Bar Journal - March 1, 2000

Using Print Resources to Research the NH Statutes

By:
 
I. INTRODUCTION

Locating applicable statutes is one of the most important jobs in researching state or federal legal issues. Although occasionally a researcher finds an issue to which no statutes apply, usually one or more statutes relate to the problem in some way. Even when a researcher suspects an issues has no statutory basis, the researcher must still check to verify that. Only after a thorough check of the statutes can the researcher be comfortable that the applicable law is completely contained in the common law for the jurisdiction. Once the researcher knows the statutory framework of the law applicable to a particular research problem, the researcher can, from that point, more easily identify applicable cases and perhaps administrative regulations or other authorities which might also apply to the problem. Because the statutory framework provides the foundation and direction for much of the rest of the research task, the researcher should locate the applicable statutes early in the research process.

Traditionally when a researcher wishes to locate a statute in New Hampshire (or any other jurisdiction), the researcher consults either the general index of the statutory compilation when doing research in print materials, or does a search in either WESTLAW or LEXIS in the appropriate database when doing electronic research. These are excellent methods of locating a statute. However, there are other very effective but not so frequently considered methods of locating relevant New Hampshire statutes. For print research, these other methods include locating statutes through a broad topical approach, through defined words contained in the statute, through the statute's popular name, through a check of relevant uniform laws, through a relevant case or case reporter, through an administrative regulation, and through a wide variety of secondary authorities which may have cited to a New Hampshire statute in an interpretive discussion. For electronic research these methods include using a natural language search on WESTLAW or a free style search on LEXIS; doing a "terms and connectors" search on either system; searching the statutes on Webster, accessible through the New Hampshire state home page on the Internet; searching LOIS, an electronic service currently available in either a CD or an Internet format; or searching on the NH Law on Disc from LEXIS Law or the West New Hampshire Statutes CD products. Having a choice of all of these methods enhances the chances of locating relevant statutes and helps alleviate the frustration experienced when a first attempt does not produce the anticipated easy entry into the code.

This article gives a brief general discussion of the publication and content of the current New Hampshire statutes, and then discusses researching and updating using the print materials.1  It also provides some historical background on their publication, provides suggestions for locating interpretive materials, and discusses how these tools fit in the overall research process. This information should benefit the more experienced researcher as well as providing an introduction for the novice researcher.

II. PUBLICATION AND CONTENT OF THE NEW HAMPSHIRE REVISED STATUTES ANNOTATED

A. Publishers

The original version of the New Hampshire Revised Statutes Annotated, which was published by Lawyers Cooperative Publishing Company in 1955, consisted of six volumes.2  The code included the laws as they existed on December 31, 1955;3  the 1955 laws were not included in the revision, but were planned to be added in a later pocket part.4  The New Hampshire annotated code has been published by several different publishers over the years, reflecting the trend toward mergers in the legal publishing industry. Equity Publishing Company in Orford, New Hampshire had taken over the publication of the statutory code from the Lawyers Cooperative Publishing Company by the time the 1961 replacement volume was issued. Then followed a time of relative stability. Equity published the code for almost thirty years, and in 1990 the British Butterworth Publishing Company, based locally in Orford and later Salem, New Hampshire, took over Equity. By 1995 Butterworth had merged with the Michie Publishing Company out of Charlottesville, Virginia, and by 1998 that company became Lexis Law Publishing Company. In January 2000, subscribers to the New Hampshire Revised Statutes Annotated learned that the WestGroup Publishing Company had been awarded the official contract for its publication, and that Lexis Law Publishing Company planned to continue publishing another version, entitled LEXIS New Hampshire Revised Statutes Annotated.

B. Editorial Enhancements

Over the years, these publishing companies provided a variety of editorial features which enhance the usefulness of the code beyond the text of the law itself. Of most importance was the addition of annotations to cases interpreting the New Hampshire statutory provisions. Prior to the publication of the New Hampshire Revised Statutes Annotated, only "mere references to cases in which the statute had been cited"5  were provided (and that feature still exists today), but in the new annotated code these were expanded into statements of the holdings of cases,6  similar to headnotes of the points of law from the cases. "The decisions included were primarily those listed in the Revised Laws of 1942, and in the tables of statutes in the subsequent volumes of New Hampshire Reports...[and] digests were consulted for additional cases."7  The annotations also included decisions of the U.S. Supreme Court and of lower federal courts if they cited New Hampshire statutes.8  Also, "[d]ecisions which had been or which were thought to have been affected by changes in the statute were included in the annotations, accompanied by an appropriate evaluating statement"9 to help the reader understand the change in the law.  Therefore, the New Hampshire Revised Statutes Annotated were New Hampshire's first annotated statutory compilation. This feature was a huge advancement in the potential utility of the statutory publication. By the 1982 replacement volume, Equity Publishing Company began including references to New Hampshire Attorney General Opinions, and by the 1986 replacement volumes, annotations from West's Bankruptcy Reporter and the Federal Rules Decisions were included.

The annotated statutes also included historical information pertaining to each statutory section, given after the text of that section. Labeled "Source," these provided, and currently continue to provide, the references to the source of the statutory section as taken from the prior law, "facilitating any inquiry into the legislative history of each section."10  This includes references to the section number within each prior statutory compilation from which this section derived.11  As time progressed, references to subsequent session laws affecting this statutory section were also included. This information is a critical link to the historical development of each section and is very valuable in identifying the relevant events in the development of this statutory section over time.

Lawyers Cooperative Publishing Company also included cross-references to other relevant sections of the statute and to relevant ALR annotations in the 1955 publication of the annotated code. By the 1964 replacement volume, Equity began including reference to Corpus Juris Secundum, to relevant West Topics and Key Numbers, and to New Hampshire Bar Journal articles. When the New Hampshire Practice Series began in 1982, Equity also included references to relevant sections in existing treatises from the series. In 1986, Equity added references to the New Hampshire Administrative Rules Annotated which correspond to the statutes and references to the New Hampshire Criminal Jury Instructions. And finally, in 1995, Butterworth began including references to the New Hampshire Handbook Series, and to related sections of the New Hampshire Court Rules Annotated. All of these cross-references greatly enhance the utility of the annotated code, providing the researchers with many ways to link to other New Hampshire authorities.

III. INTRINSIC AIDS: CONSTITUTIONAL AND STATUTORY PROVISIONS12

 

A. Prohibition of Retrospective Laws in N.H. Constitution

There is one constitutional provision and several statutory sections which provide guidance on the interpretation of the statutes. N.H. Const. pt. 1, art. 23 is entitled "Retrospective Laws Prohibited," and states: "Retrospective laws are highly injurious, oppressive, and unjust. No such laws, therefore, should be made, either for the decision of civil causes, or the punishment of offenses." Many cases are listed in the annotations which have interpreted this constitutional provision, and a West Topic and Key Number, a CJS section and several ALR annotations are cited which expand this topic.

B. Statutory Provisions Concerning Retrospective Laws

Several New Hampshire statutory sections also establish the lack of retroactive effect for a repeal of a statute. N.H. Rev. Stat. Ann. 21:37 (1988 & Supp.1998), entitled "Effect of Repeal," provides that "[t]he repeal of an act shall in no case affect any act done, or any right accruing, accrued, acquired, or established, or any suit or proceeding had or commenced in any civil case, before the time when the repeal shall take effect." N.H. Rev. Stat. Ann. 37:38, entitled "Pending Prosecution" then provides in a related section, "[n]o suit or prosecution, pending at the time of the repeal of any act, for any offense committed or for the recovery of a penalty or forfeiture incurred under the act so repealed, shall be affected by such repeal," and N.H. Rev. Stat. Ann. 21:39, entitled "No Revival" provides that [t]he repeal of an act shall not revive any other act which has been repealed." Several case annotations are included to show the interpretation of these provisions. Together these three sections and case law expand on the constitutional principle that New Hampshire statutes cannot operate retroactively, either by undoing any previously decided or pending cases or reactivating any other previously repealed act. The repeal of a statute, like the revision or amendment of a statute, cannot create a new penalty or take away a right previously held.

C. Statutory Construction under N.H. Rev. Stat. Ann. Ch. 21

N.H. Rev. Stat. Ann. ch. 21 (1988 & Supp.1998) is entitled "Statutory Construction." It lists 54 sections providing detailed rules which apply to interpretation of all the statutes throughout the New Hampshire code. Some are broad in scope like N.H. Rev. Stat. Ann. 21:1 which is entitled "Application" and says "[in] the construction of all statutes the following rules [from Chapter 21] shall be observed, unless such construction would be inconsistent with the manifest intent of the legislature or repugnant to the context of the same statute." Another broad section, N.H. Rev. Stat. Ann. 21:2 provides an arguably opposite and conflicting rule. It is entitled "Common Usage," and says "[w]ords and phrases shall be construed according to the common and approved usage of the language; but technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in law, shall be construed and understood according to such peculiar and appropriate meaning."13  These are general statutory construction rules useful in interpreting any code provision.

Most of the sections from N.H. Rev. Stat. Ann. ch. 21 are much more narrow and specific.14  Many of them provide generic definitions which may be used throughout the statutes, in addition to the specific definitions which exist in each chapter. Many of these provisions have been in existence since the earliest codifications; some seem a bit paternalistic and are interesting mostly for historical reasons, but many of these sections would still be relevant to explain the exact meaning of a statutory section.

IV. RESEARCHING NEW HAMPSHIRE STATUTES IN PRINT

 

A. Four Standard Approaches

Legal research textbooks discussing statutory research using a print statutory compilation list four standard access methods from which the researcher may chose: the general index method, the topical method, the definition method, and the popular name of the statute method.15  A researcher using the New Hampshire annotated code can use these methods as well. The "definition" method and the "popular name" method currently do not exist separately but are both available and are integrated within the general index. There are also several other creative methods of locating statutes using tools beyond those available through the statutory compilation itself.

B. General Index Method

Certainly the most common entry point to the annotated statutes in print format is the general index method. It may be the only method a researcher considers and it should ideally provide the most comprehensive print access to the text of the statutes. In previous years, the general index to the New Hampshire Revised Statutes Annotated was not as logical and detailed as one would need to have good access to New Hampshire statutes. Previous indexes tended to use archaic terms, lacked adequate cross-referencing, and did not provide a consistent depth of coverage a researcher would desire for optimal results. However, the quality of indexing has continually improved, especially since the Michie Publishing Company (later Lexis Law Publishing Company) took over the publication of the code in 1990. According to an indexer from Lexis Law Publishing, the publisher "updated, enhanced and improved" the index over the past few years.16  Although not without problems, a close inspection of the prior and current indexes supports this claim. The discussion in this section is focused on the Lexis index, although a West index will presumably be available when the West statutes are published, and the same research principles will apply.

Although the indexing process used by Lexis is computerized, the human element is critical in maintaining the quality of the index.17  Lexis Law Publishing Company employs several indexer-lawyers, all of whom have earned the J.D. degree, and many of whom are members of the bar. Lexis Law Publishing is very concerned that the indexers fully understand what is important to attorneys and are conversant with the language attorneys would use to search for statutes. The indexers are very interested in the quality of the indexing and actively solicit input from users by providing a toll free phone number, an e-mail address and a fax number on the cover of the index. They are willing to answer questions, assist users in locating elusive statutes, and receive comments from users about improvements which might be made to the index. They are especially interested in input which will help them provide state-specific entries (since they do indexing for several state statutes).18  They are concerned that the index reflects not only the individual New Hampshire statutory framework, but also the actual terms and any idiosyncratic terms used by practitioners in the state. The New Hampshire index contains a foreword which describes the purpose, coverage, philosophy, and cross-referencing policy and also provides detailed suggestions on how to use the index most effectively. Each researcher would benefit from an understanding of the principles listed in the foreword, since it provides specific guidance as well as a general description of Lexis' indexing policy.

The current index is generated by a computer which guarantees the addition of amendment and repeal information every year to update the index.19  The computer also generates lists of key words and cross-references which are then checked by the indexer-lawyers. The computer helps them ensure the use of a standard or uniform terminology in the index.20  The indexers will index under a main topical heading, and organize all sub-entries under the main heading. "The main index headings are derived from the language of the Revised Statutes Annotated, from phraseology commonly used by the courts of New Hampshire, and from terminology commonly used in the legal profession."21  This provides complete coverage of the topic in one area of the index, unless a cross-reference ("see" or "see also") links to another section as well.22  "Cross-references are used to keep the indexes to a manageable size and reduce the amount of repetition of treatment under different headings."23  Main headings include such broad categories as "Motor Vehicles," "Schools and School Districts," "Handicapped Persons," and "Consumer Protection," with multiple subheadings and further subheadings under each. Of course, not all entries are as broad as the ones listed above. There are many entries which cover narrow topics as well.

The indexer-lawyers provide several suggestions to help researchers use the index most effectively. They suggest users of the code: (1) gain familiarity with the contents of the statutes and the index; (2) consult the principal subject (the main heading) and not the secondary, and consult the noun instead of the adjective; (3) search under commonly used legal phrases or terms of art; (4) look under broader areas of the law and not under the more narrow area; (5) look for the most pertinent subject, and not a related topic; (6) be ready to look for related headings if you find nothing under your initial heading; (7) use descriptive words or phrases, perhaps a more popular name for the cause of action, if you cannot locate a legal term; (8) begin the search with "defined terms" (see below for a discussion of this), and (9) use both internal (directing you to another sub-heading within that same main heading) and external cross-references (directing you to another main heading in the index) to find the main topical heading.24 

Looking in the index under broad terms works well. For example, statutes relating to institutions are indexed under that name (supreme court, superior court, general court, Congress of the United States); statutes relating to an office or position within the state are indexed under that position (governor, chief justice, attorney general, commissioner); statutes relating to cities or counties are listed under those terms (Rochester, Rockingham County); statutes relating to administrative procedure are indexed under this term; statutes relating to causes of actions are indexed together under actions and proceedings; statutes relating to statutes of limitation are indexed here as well as under limitation of actions; statutes based on uniform laws are indexed under that term,25  and statutes for very broad areas such as "damages" or "crimes" are listed under these broad topics, and include many subheadings, but many additional entries occur elsewhere in the index under more specific terms. Therefore, if one looks under a very broad heading, one is likely to locate the specific subject as a subheading under it, but if one starts researching with the more narrow subject, one may find it listed separately in the index as well.

The index provides multiple access points to a particular statute. For example, the statute making the sale of tobacco products to a minor a crime is indexed under "Tobacco Products - Minors - Youth access to and use of products," "Crimes - Tobacco - Sale and distribution to minors," "Fines - Tobacco - Sale and distribution to minors," and "Minors - Tobacco products." However, the existence of multiple access points does not guarantee that the researcher will locate the statute under the index terms selected. There are no index entries to this statute under some other logical terms such as "Children - Sale of tobacco products" or "Youth - Sale of tobacco products," and, for this example, no cross-references from "Children" or "Youth" to the term "Minor" which would have led to the relevant statute. A persistent researcher would have found this by checking under several terms and checking synonyms (children - youth - minor). There are also no entries under the logical terms of "smoking" or "cigarettes" which would lead the researcher to this statute. These terms are narrower, and only if one checked the broader generic term "tobacco," which encompasses these terms, would one locate the relevant statute.

There are many standard subheading entries under the main headings. Words defined by the statute appear as subheadings under the main heading ("interested party, defined"; "funds, defined" as subheadings under the main heading of "Unemployment Compensation"). "Limitation of actions," "fines," and "fees" appear as a subheading under many main headings. Although there is no separate "rulemaking" entry in the index, there is a standard subheading under the main heading for the agencies which have rulemaking authority. This internal consistency makes research easier and more predictable.

The successful researcher, then, considers alternative terms, broader as well as narrower terms, and checks many related terms before concluding that there is no statute on any particular topic. This does not necessarily mean there is a problem with the indexing; this reflects the reality of using any controlled subject index. Doing full text electronic searches presents other problems which means neither way of searching (index or full text) is perfect. The researcher must understand and compensate for this.

Because both the text of the U.S. Constitution and the New Hampshire Constitution are set out in full in the first volume of the New Hampshire annotated code, the general index includes indexing for these two documents as well as for the statutes. Individual topics are indexed fully (Search and Seizure, Privileges and Immunities) and integrated alphabetically in the index, facilitating comparison of U.S. and N.H. constitutional provisions, and there are general entries for the very broad topics of Constitution of New Hampshire and Constitution of the United States. Thus, there is no need for a separate index to either constitution.

Although previous publishers updated the general indexes every year with pocket parts, the replacement volumes for the indexes were issued infrequently.26  Lexis Law Publishing Company more recently issued a new cumulative index every year. This is a great improvement over having to rely on pocket parts to cover many years of information before the new replacement index was issued. Having all of the new index entries integrated with the main index is a time-saver for researchers. However, the 1999 General Index also covers through the 1998 session and includes a separate index for the 1999 special session. A researcher would need to check it as well for complete indexing for current New Hampshire statutes.

C. Topical Method

The topical method of research is another traditional method for locating statutes, and is probably the least effective way of accessing specific code sections. This is what some might describe as the "pull-the-book-off-the-shelf method." The topical method requires one to scan the volumes of the code and select one volume which contains the title which covers the general area of interest. This technique sometimes works well when one understands the overall structure of the code, but it is not recommended for the novice. The code is organized by titles (broad subject areas) which are themselves grouped with other related titles. Within each title are a series of related chapters organized together. Each volume does contain a listing at the beginning of that volume of the 64 titles under which the statutes are organized, and each volume contains a listing of chapters within that one volume. The only place where the researcher could see a full listing of all of the titles and all of the chapters found within each title is in the beginning of the first volume of the code. This organization scheme is not readily apparent from the information on the spine of each volume.

A continuation of this method would require that, once the researcher located an applicable chapter, the researcher would study the list of sections of the statute found at the beginning of each chapter. This is a very valuable thing to do, no matter how one found the chapter. The list of sections gives one an overview of the statutes and allows one to focus of the interrelationships among all of the relevant statutory sections.

This risk, of course, with the topical method is that a researcher might overlook some of the relevant statutes. However, this risk is really inherent to a lesser extent in all print and electronic statutory access methods.

D. Access by Popular Name

The third print access method for locating statutes is by using a statute's popular name (or short title).27  This is an easy and accurate way to locate statutes providing the researcher knows the name of the act. Many statutory compilations have a separate popular name table. Previously, the annotated code had a separate, very short, popular name table but currently there is no separate listing. Instead, the editors have chosen to integrate this information into the general index. This is a big improvement, since many researchers might not know to check a separate table. The general index provides a main heading "Popular Names" which lists over one page of subheadings of popular names of acts, from "Access to Public Records" to "Youth Employment Law." Additionally, each popular name is also an individual entry in the general index. Therefore, a researcher could gain access to the statute by looking under the specific name of the act itself in the index, or scan through the entries under "Popular Name" if the researcher was not sure of the exact name of the act. "Popular Name" is also a standard subheading under main headings; this shows the location of the "short title" section in the act being researched.

A publication entitled Shepard's Acts and Cases by Popular Name - Federal and State is an alternative, which lists alphabetically the popular names of New Hampshire statutes integrated with the same kind of information for the federal and other state jurisdictions. This is not as convenient as using the general index to the code but it would provide an efficient print method of doing comparative state statutory research.

E. The Definition Method

Frequently the statute a researcher seeks revolves around some identifiable key words or phrases relevant to the subject being controlled by the statute, and these words or phrases may be defined in the statute. Most chapters contain a "Definitions" section, usually found near the beginning of the chapter. The definitions provided by the statute are specifically applicable only to the statutory provisions of the one chapter. Understanding of these terms and their definition is key to understanding the applicability and meaning of the statute.

These important words or phrases can also serve as access points into the code. If one looks in the 1999 General Index under "Defined Terms," one finds an amazing 78 index pages listing alphabetically every word or phrase defined in the code, along with the corresponding code chapter number(s) and sections. Some terms are defined in only one statute and some have been defined in many different statutes. For example, "good faith" has been defined in seven different statutes, and the term "person" has been defined in 143 different statutes.

If a researcher is able to identify a key word or phrase which is likely to be defined in the code, looking under "Defined Terms" in the general index can produce very specific and accurate results. If there is more than one definition of the word, the "defined terms" list can highlight potentially conflicting or at least related chapters in the code. This section would also include words defined in the statutory construction chapter, N.H. Rev. Stat. Ann. ch. 21 discussed above, where the definitions apply throughout the code. Focusing on the most important terms defined in the statute can prove more efficient than looking under a variety of other subjects in the same index.

F. Access by Table

A researcher may also access the code by various tables. Tables are a necessary part of statutory compilations since they provide cross-references from session law cites to corresponding code sections into which the session law is placed during the codification process, and from one of the earlier statutory compilations to the next (those which existed prior to the 1955 publication of the New Hampshire Revised States Annotated). The "tables" volume in the code can provide the necessary connections among different types of authority when doing historical research in the statutes.28  Tables were published in the original 1955 version of the code and most recently in a separate 1992 volume, with an annual supplement. The "Source" notes (discussed above) which are included after each statutory section also provide cites to previous codifications and any session laws affecting that section of the code; these notes may suffice to provide the relevant historical information without reference to the dispositional tables. Occasionally, however, the tables may prove very helpful in clarifying the development of the law and serve at least as a useful double check of the information in the "Source" section. The tables can also be the critical link for the researcher to previous laws on a topic when a chapter or title is revised, since in these situations the source notes do not include all prior references to the session laws and earlier codes, but only list sources beginning with the date of the new revision.29 

G. Other Access Methods

Although the access methods discussed above are the most traditional, there are other less traditional ways one may locate references to the current code and earlier statutory compilations. A researcher may use either of the administrative codes30  to locate statutory provisions if the researcher already happens to know an applicable New Hampshire administrative rule. Most New Hampshire Reports volumes and Atlantic Reporter volumes contain a table of statutes construed within the cases reported in that volume. There is also a wide range of available secondary authorities which provide a wealth of interpretive information and would provide citations to New Hampshire statutes, when they exist, for the issues being discussed. Unless the focus is limited to federal issues, most general treatises discuss state statutory law. Some also provide a state-by-state survey of individual state laws relevant to the topic of the treatise,31 and use of treatises specific to New Hampshire law32  would provide very focused discussions of mandatory authorities. Since there are many looseleaf services which include coverage of state law,33  this might be the best way to locate statutes relating to an administrative topic in New Hampshire. It is much more efficient, for example, to consult the CCH New Hampshire Tax Reporter to locate relevant New Hampshire tax statutes discussed within the context of the cases and other state authorities then it is to look at these statutes in the New Hampshire code. A quick check for law review articles or ALR annotations might provide very valuable insight into a statutory issue and place New Hampshire's law into a larger context. Since the code actually provides cross-references to many of the authorities just mentioned, a researcher who has already located a statute can use these cross-references to expand his knowledge.

V. UPDATING THE PRINT FORMAT

 

A. Pocket Parts; Advanced Code Service

A researcher must update the print statutes, of course, by checking the annual pocket part at the back of the main volume. If there is an "Advanced Code Service" pamphlet which updates the pocket part, the researcher should check this as well. Both of these provide any new text of the code, any new session law references and historical information related to that new text, any new cross-references to secondary authorities, and any annotations to new cases which have recently interpreted that statute. Thus, even if there is no new statutory text, the pocket parts and Advanced Code Service provide additional new interpretive leads to help the researcher understand the statute.

B. Advance Legislative Service

The final step in updating a statute found in print is to check the Advance Legislative Service volumes (similar to the formerly available "Advance Sheets"). These are published several times a year and provide the full text of the most recent session laws passed by the legislature. For the 1999 legislative session, these volumes contain two tables of interest. Table III lists code sections affected by legislative action, and simply provides the type of action (amended, new, recodified and repealed). A researcher who found code section listed there would then need to consult Table IV for a reference to the act (session law) which affected the code section. The researcher should check in the Advance Legislative Service pamphlet to read the full text of the act and see how that legislation has affected the section. The researcher would then have to integrate that information with the other portions of the relevant statute found in the main volume and the pocket part and Advance Code Service. This is a very complete way of updating.

C. Slip Laws

Alternatively, for the Advance Legislative Service step described above, a researcher may check the slip laws, issued individually as each chapter is passed. A few of the larger law libraries in New Hampshire subscribe to these. The slip laws duplicate the information contained in the Advance Legislative Service; there is no compelling reason to check these if one already has access to the session law service. One may also access this information several places online.34 

VI. VALIDATING A STATUTE USING SHEPARD'S IN PRINT FORM

 

A. What Shepard's Provides

A researcher may validate a code chapter or section by using the Shepard's New Hampshire Citations, Statutes (Shepard's) volume in print. To do a complete job the researcher would access this tool by checking under both the general chapter number and any of the individual sections within that chapter. This tool provides citations for the operation of the statute, including the date and session law chapter number for any amendments (A), additions (Ad), repeals (R), extended (E), renumberings, and several other choices, listed in the "Statutes Analysis - Abbreviations" table in the front of the Shepard's statutes volume.

Shepard's also provides treatment of the general statute or statute section when it has been cited by other authorities. It includes a listing of all cases which have cited the statute, by providing an abbreviated notation next to the citation for a variety of judicial actions within these cases which impact the authority of the statute, including a finding of a section of that statute section as being Constitutional "C", Unconstitutional "U", Unconstitutional in part "Up", valid "Va", void or invalid "V", and void or invalid in part "Vp". There are some newer,35  very interesting judicial notations indicating treatment of the statute by judicial action, including "f" meaning "followed...the cited opinion expressly relied on the statute...as controlling authority;" "i" meaning "interpreted...the cited opinion interprets the statute...in some significant way, often including a discussion of the statute's legislative history;" "na" meaning "not applicable...the cited opinion expressedly finds the statute...inapplicable to the ...cited case;" "rt" meaning "retroactive/prospective...the cited case discusses retroactive or prospective application of the statute." If the case treatment does not fit into one of these categories, the statute is listed without any symbol. Shepard's also provides citations for ALR annotations and twenty of the major law reviews which cite a statute, and also includes articles from the New Hampshire Bar Journal. Although much of the information provided by the statute Shepard's is obvious from a complete use of the annotated code, including citation to cases annotations and secondary authorities given in the code cross-references, the inclusion of the treatment notations indicating the impact of those cases on the statute is a useful feature, and provides a way to validate a statute section. Additionally, the inclusion of the newer "treatment" codes explained above is a welcome improvement in helping to define the exact type of treatment a court has given the statute section, and makes using the statute citator almost as valuable as using the case citator.

B. What Shepard's Does Not Provide

However, use of Shepard's and KeyCite36  is not a complete guarantee that a statutory section is valid. There is some chance that the authority of that section has "withered by adverse decisions,"37  but this would not be obvious until later, when the statute section is finally found unconstitutional by a court, which should cause the legislature to ultimately repeal the section. Another hidden way a state statute may lose its validity is if its authority is affected by some other entity than an appellate court.38  A whole state statutory scheme may be preempted by a change in federal law.39  A researcher working with state law might not think of checking the federal statutes and regulations to find conflicting provisions. This risk might be especially great in areas of administrative law, where the federal regulatory program experiences frequent upheaval. Again, this is where a check of current secondary authorities might alert the researcher to a potential problem.

C. Shepardizing Session Laws

Researchers may also Shepardize session laws in the same citator. This would be a relevant step only if the law had not been codified (otherwise the researcher would check under the code citation). This also allows a researcher to check both the history and judicial treatment of that authority, and is the only print method of location cases interpreting session laws which have not been subsequently codified.40  Researchers may also Shepardize in the same citator using citations to earlier New Hampshire statutory compilations and to superseded volumes of the New Hampshire Revised Statutes Annotated by first locating the division with the appropriate title (Revised Laws, etc.) and then checking under the appropriate earlier statutory citation. This also allows a researcher to check on the history of the early code section and access any cases citing that early code. Since the first inclusion of annotations to New Hampshire statutes was in the code published in 1955, this earlier information on cases interpreting the earlier codes is especially valuable.

VII. SUBJECT BOOKLETS FROM THE NEW HAMPSHIRE REVISED STATUTES ANNOTATED

As early as 1955, New Hampshire has authorized the publication of special portions of the statutes which are excerpted from the main set and focus on a special subject. One of the early titles was New Hampshire Revised Statutes Annotated 1955 of the Statutes Pertaining to Towns, Cities, Village Districts and Unincorporated Places and Taxation, published by Lawyers Cooperative Publishing Company. It was published separately "[b]ecause of the great demand therefor by selectmen, assessors, collectors of taxes and other municipal officials for a copy of the statutes which pertain to their duties."41  A similar publication excerpting the criminal laws has been published annually for many years, and as time passed, the publishers provided an increasing number of special booklets relating to a variety of fields.42  Although most of the focus seemed to be on booklets which various state government officials would find useful, they are handy for the researcher to use as well.

As of 1999, many, although not all, of these titles appeared in new editions every year. The titles combine a few or many statutes under one cover, as long as they relate to the overall topic. Each of these booklets has its own index, so the researcher has good subject access to the contents. And, on occasion, additional materials are included in these special subject volumes which are not included with the main set of the statutes. For example, the New Hampshire Juvenile Laws provides not only the text of many civil and criminal statutes relating to juveniles; it also includes an appendix with the Child Support Guidelines instructions and worksheet, and another appendix with the Child Support Guidelines Calculation Table, neither of which appear in the New Hampshire Revised Statutes Annotated. The New Hampshire Landlord & Tenant Law Annotated includes a section giving the text of administrative rules from the attorney general which are authorized by these statutes. These booklets are portable, complete within the subject area, easy to use, and reasonably priced, making this a bargain purchase for those who have a frequent need for this information.

VIII. CONCLUSION - WHEN THE RESEARCHER CANNOT FIND A STATUTE...

If, despite best efforts, the researcher is unable to locate a statute, the researcher should consider the following ideas.

(1) There may be no statute on this issue. The Lexis code editors warn that "[t]he General Index does not attempt to cover each topic in the vast field of law but refers only to those materials contained in the Revised Statutes Annotated."43 

(2) There may be other kinds of law which contain the detail which the researcher seeks. Instead of a being a statute, the law may be contained in a case, a court rule, an administrative regulation, or even an administrative decision relevant to a statute. One may find the relevant information by broadening one's approach and examining the overall structure of the general statutory area, and seeking details within other interpreting authorities for the statute.

(3) A researcher could try to search for a broader topic in the index (e.g., "motor vehicle" instead of "snowmobile").

(4) A researcher may consider alternative words. Maybe the researcher looking for "Lemon Law" would find the exact statute sought under the entry "Automobile Warranty."

(5) A researcher who locates an ALR article, a periodical article, or a treatise which discusses the general issue can use these tools to check his understanding of the framing of the issue and the terminology used generally. If the researcher is fortunate, that source will cite to some authority from New Hampshire which should allow the researcher to proceed with more success.

(6) A researcher who suspect that there actually is no statute or other authority for this issue in New Hampshire should consider looking at statutes from other states to gain ideas about how other states handle the issue. A well-defined search in STAT-ALL on WESTLAW or in the STATES Library and the ALLCDE file on Lexis, doing some basic comparative state statute research, might be worth the cost. This should help to confirm that the search terms being used were good and should lead one to authorities from other states which might help put the issue in a broader, national context.

(7) The law the researcher seeks may be controlled by federal law instead of state law. Again, a quick check of secondary authorities for context and cites to relevant authorities might help put the researcher on the right track.

(8) A researcher should realize that research should not stop after finding one applicable statute; there may be others which also apply. The job may be deciding how two or more statutes fit together.

 

ENDNOTES

1. There are two other related research articles in this issue of the New Hampshire Bar Journal. One article, "Researching New Hampshire Statutes Electronically," discusses similar aspects of researching in New Hampshire statutes which are available in electronic formats, and the other article, "Researching New Hampshire's Version of Uniform and Model Laws," discusses special considerations for researching in New Hampshire laws based on uniform or model laws, with a particular focus on researching in the Uniform Commercial Code and the New Hampshire criminal code.
2. "The contract for the editing and publication of the revision, supplemented by annotations and cross references, was let, after competitive bidding, to the Lawyers Cooperative Publishing Company, a long-established and well-known publisher of lawbooks." Report of Revision Commission, found in the Introduction to the first volume of the current New Hampshire Revised Statutes Annotated p. ix (1988).
3. Id. at vii.
4. Id. at ix.
5. Preface to the first volume of the current New Hampshire Revised Statutes Annotated p. vi (1988).
6. Id.
7. Id.
8. Id.
9. Id.
10. Id.
11. New Hampshire's previous statutory compilations were: Revised Statutes (1842); Compiled Statutes (1853); General Statutes (1867); General Laws (1878); Public Statutes (1891); Public Laws (1926); and Revised Laws (1942).
12. The primary reference law for statutory construction is the body of case law which has developed based on New Hampshire Supreme Court decisions. It is beyond the scope of this article to discuss the role of the case law in statutory construction. See "The Law in Court-a Guide to Selected Principles of New Hampshire Statutory Construction," also in this issue.
13. See 2A Norman J. Singer, Statutes and Statutory Construction Sec. 46.01 - 76.07 (1992 & Supp. 1999) for a detailed discussion of the plain meaning rule and other statutory construction rules which have developed from this rule.
14. For example, N.H. Rev. Stat. Ann. 21:3 provides that singular words may apply to more than one persons, plural words may include the singular, and words of the masculine gender apply also to females.
15. See, e.g., Christina L. Kunz et al. The Process of Legal Research 185-186 (4th ed. 1996).
16. Conversation on August 4, 1999, with Steve White, Legal Analyst with Lexis Law Publishing Company.
17. Id.
18. Id.
19. Id.
20. Id.
21. Forward to the general index volume of the current New Hampshire Revised Statutes Annotated at v (1999).
22. Id.
23. Id.
24. Id. at vi, vii.
25. See a related article called "Researching New Hampshire's Version of Uniform and Model Laws" in this issue of the Bar Journal.
26. Volume six of the original 1955 version of the New Hampshire Revised Statutes Annotated contained the general index; the next index revision was in 1976; and the next in 1990. The gaps between these revisions were covered by pocket parts.
27. "The term [popular name] means any descriptive name given to legislation, including official designations provided by the legislature itself as part of the act. Anything except a name designating only the date, such as 'Act of November 6, 1959' is considered a popular name." Robert C. Berring and Kent C. Olson, Practical Approaches to Legal Research 39 (1989).
28. The "Tables" volume included with the New Hampshire Revised Statutes Annotated includes a listing of the Revised Laws to the New Hampshire Revised Statutes Annotated (1955); and a listing of chapters from each year within the N.H. Laws (session laws) to the corresponding code provision.
29. See related article in this New Hampshire Bar Journal entitled "History and Organization of New Hampshire Statutory Law " for a more detailed discussion of this.
30. The two administrative codes are Code of New Hampshire Rules published by Weil Publishing Company, Inc. and New Hampshire Code of Administrative Rules Annotated published by LEXIS Law Publishing.
31. See e.g., Lex K. Larson, Unjust Dismissal (1985 looseleaf) (volume 2 has a state-by-state analysis); Bureau of National Affairs, Covenants Not to Compete; A State-by-State Survey (1991 & Supp. 1998); International Trademark Association, State Trademark and Unfair Competition Law (1989 looseleaf) (contains a chapter for each state); National Consumer Law Center, Consumer Warranty Law (1997 & Supp. 1999) (the Appendix contains a state-by-state analysis of New Car Lemon Laws, and another for Service Contract Laws & Regulations); this title is part of this group's Consumer Credit and Sales Legal Practice Series, which includes similar titles for other consumer areas which frequently includes a state-by-state analysis.
32. Included in this category of treatises are titles in the New Hampshire Practice Series, New Hampshire Handbook Series, and those Continuing Legal Education publications which are produced to be used during the programs presented on this topic, and published by either the N.H. Bar Association or the National Business Institute, Inc. There are also a few treatises on New Hampshire law which do not fall into these categories. Check a card catalog under either of the series names, the bar association name, the institute name, or under a topic with "New Hampshire" as a subdivision under that topic for a reference to a specific title.
33. See, e.g., New Hampshire Tax Reporter, State & Local (CCH); Tax Management Multistate Portfolios (BNA); Limited Liability Company Guide (CCH); Blue Sky Law Reporter (CCH).
34. See discussion in related article, "Researching New Hampshire Statutes Electronically," in this volume of the New Hampshire Bar Journal.
35 . These judicial codes were not given in the 1996 bound Shepard's New Hampshire Citations but are available in the supplements.
36. KeyCite is a new electronic tool from WESTLAW which allows a researcher to validate cases and statutes. The details of the statutory features of KeyCite are discussed in a related article, "Researching New Hampshire Statutes Electronically" in this issue of the Bar Journal.
37. Berring, supra note 27, at 70.
38. Id.
39. Id. at 70-71.
40. Id. at 83.
41. Foreword; New Hampshire Revised Statutes Annotated 1955 of the Statutes pertaining to Towns, Cities, Village Districts and Unincorporated Places and Taxation.
42. As of 1999, LEXIS Law Publishing Company offered the following special subject booklets: New Hampshire Criminal Code, New Hampshire Selected Motor Vehicle, Boating and Related Laws Annotated, New Hampshire Juvenile Laws, New Hampshire Fish and Game laws Annotated, New Hampshire Landlord & Tenant Law Annotated, New Hampshire Planning and Land Use Regulation, New Hampshire Education Laws Annotated, New Hampshire Retirement System, New Hampshire Banks and Banking Laws Annotated, New Hampshire Statutes Pertaining to Health and Human Services, New Hampshire For-Profit and Non-Profit Business Laws Annotated with Updated Forms, New Hampshire Statutes Relating to Surveying and Boundaries, New Hampshire Unclaimed and Abandoned Property Law, and New Hampshire Fire Laws Annotated.
43. Forward, general index, supra, note 21.

 

The Author

Professor Cynthia R. Landau teaches legal research at Franklin Pierce Law Center, Concord, New Hampshire and is the assistant director of the law library.

 

 

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