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Bar Journal - March 1, 2001

Lex Loci: A Survey of Recent NH Supreme Court Decisions

By:

An avalanche of opinions has been falling from our Supreme Court as a consequence of the huge reservoir of cases created by last year’s impeachment proceedings. With the vigor generated by many superior court justices joining the high bench, as well as the advent of newly confirmed justices to the Supreme Court, the Court has tirelessly sought to get its opinions out speedily so that the rights of litigants are not further delayed, while at the same time casting about for new ways of doing business in these extraordinary times.

The Court clearly recognizes that it must act forcefully and quickly to restore our citizens’ confidence in its procedures and decision making. It has hired its first public information officer, Laura Kiernan, of Concord, a seasoned and well-respected media journalist, for the purpose of helping "us communicate with the public about the Court’s work, which we are anxious to do."1 In a more substantial move, the justices have instituted on an experimental basis something they are calling "The Second Thursday Docket" which will be an expedited hearing schedule, of short oral arguments held one day each month. Cases will be heard by ten separate panels of three justices each, chosen randomly to sit at The Second Thursday arguments each month. Each party to an argument on The Second Thursday Docket will be limited up to five minutes of uninterrupted argument after which the three justices may ask questions. The justices plan to decide the case, including reasons for the decision, within three weeks of argument.

If this panel of three believes for any reason that the case should be presented to all the justices, the case will then be referred to the full Court, as will also be the case if the panel justices are not unanimous in their decision. The Court is urging parties to identify cases by agreement which would be appropriate for the expedited docket, the purpose of which is described by the Court as "to provide speedier, more efficient resolution of those disputes which lend themselves to an expedited process. Without such a process those cases would have to wait to be reached in the order in which they were filed."2

This new procedure seems loosely modeled on the Vermont Supreme Court’s "Rocket Docket" which was discussed at the October, 1998 Appellate Conference in Jackson, New Hampshire, but appears to be an improvement upon the Vermont process. This innovative approach is a praiseworthy and exemplary attempt by the Court to shake things up with the view that what wasn’t working in the past must be changed to accommodate the huge flow of cases before the Court, since an intermediate appellate court designed to relieve the work load pressure on the high court justices does not appear to be in the offing at the moment, to put it mildly.

Audacious is perhaps not the right word for this Court but spunky it seems to be. Again confronted by the school funding issue arising from the Claremont Decisions, the Court (all four justices sitting being unanimous) found constitutionally inadequate a proposed Senate Bill designed to establish a reformed public school financing system by tinkering with the state-wide education property tax enacted as a stop gap measure by the legislature in the wake of those decisions. Opinion of the Justices (Reformed Public School Financing System), decided December 7, 2000. Despite a multitude of entities urging the Court to find the proposed legislation constitutional, the Court stated that while the legislature and the Governor "have broad latitude to fashion the specifics" of an adequate funding for New Hampshire students and that the Court had "never directed or required the selection of a particular funding mechanism. If the legislature chooses to use the property tax, however, the tax must be equal and proportional across the State." Whether you agree or disagree with the Court’s opinion, the Court is doing what it needs to do, calling tough cases as they see them and moving on as rapidly as possible to the next.

This is a Court that also isn’t afraid to reverse lower courts on appeal to the higher court. To pick by chance the date of November 2, 2000 all four decisions that day were overrulings or reversals and remands. Three of the cases were criminal cases and one involved an appeal from the New Hampshire Compensation Appeals Board.

A couple of these recent reversal decisions are noteworthy. State v. Martin, decided November 2, 2000, involved a question whether a bench warrant was still in effect or whether it had been vacated before the defendant was arrested for illegal firearm possession by a felon. The warrant was dated by the judge but had no time of day indication. The trial court had held that "a warrant is not effectively vacated until the issuing court has provided actual notice. "The Supreme Court reversed, holding that the State had the burden of proving the legality of the search, admonishing trial judges that "we strongly encourage judges to record the date and time of signature on those orders where such information might prove crucial," ruling that "the superior court erred in denying the defendant’s motion to suppress evidence of firearm possession, as his arrest and the subsequent seizure of firearms were in violation of Part I, Article 19 of the New Hampshire Constitution." [regulating searches and seizures].

In an appellate decision that same day, Petition of James Mello, decided November 2, 2000, the trial court had been confronted with a hung jury (apparently 11-1 for acquittal) in a sexual assault case. The trial judge had learned (apparently from eavesdropping bailiffs) that a female juror (the lone hold out for conviction) had experienced, in the past, a personal encounter of a sexual assault nature but had not revealed this information on her jury questionnaire. The defendant’s attorney first moved for a mistrial but the trial court deferred action on the motion. Later, during the trial, the defendant’s attorney instead sought to get the trial judge to investigate the juror’s apparent fabrication on the jury questionnaire. The judge refused, brought the jury back into the courtroom and learning that it was still hopelessly deadlocked, granted the defendant’s mistrial motion, telling the defense counsel that the information given him about the juror "is not information that you can use in any way, shape, manner or form." When the State sought to retry the defendant, he claimed his rights under the New Hampshire Double Jeopardy Clause of the New Hampshire Constitution (pt. I, art. 16). On appeal, the Supreme Court reversed the trial court and observed that while a retrial is ordinarily not barred where the defendant, himself, moved for the mistrial, there may be some circumstance when the trial court must do more than it did in this case:

Once the trial court became aware that a juror may have failed to reveal information on her juror questionnaire that could have been grounds for her disqualification, the court had an independent obligation to voir dire the jurors individually and determine which, if any, had failed to disclose information that would justify her disqualification.

Averill v. Cox, decided October 31, 2000, is a decision of the Supreme Court that has received much attention in the written press and media. One contentious issue in this case was whether or not attorneys are exempt from the provisions of the New Hampshire Consumer Protection Act, RSA 358-A, the trial court having ruled that attorneys were per se exempt from the Act. A unanimous Supreme Court, speaking through Justice Broderick, stoutheartedly held that attorneys were exempt under the Act, even though the Act did not specifically exempt them, because they came within the express, broadly-phrased, exclusionary section of the Act (RSA 358-A:3, I.) which excludes from its application "[t]rade or commerce otherwise permitted under laws as administered by any regulatory board or officer acting under statutory authority of this state or of the United States."

The Court began by candidly admitting that it had earlier issued two rulings which were in conflict4. The Supreme Court in the present appeal unanimously adopted the reasoning of its first opinion on this issue and overruled the Gilmore Case. The Court strongly reaffirmed its holdings in the earlier Rousseau Case that the practice of law was regulated by the New Hampshire Supreme Court and therefore came within the statute’s exemption:

We conclude that our regulation of the practice of law is comprehensive and protects consumers from the same fraud and unfair practices as RSA chapter 358-A….All aspects of the attorney-client relationship are subject to regulation by this court….Indeed, the rules of professional ethics that attorneys are duty-bound to ‘observe most scrupu[l]ously are diametrically opposed to the code by which businessmen must live if they are to survive’….The Rules of Professional Conduct ensure that ‘[t]he practice of law is not simply an occupation; it is a profession’…whose members seek ‘to avoid even the appearance of impropriety and, thus, strive[] to live by a higher standard of conduct than a layperson’….Attorneys in this State are officers of the judicial branch of government who must secure and maintain membership in the bar association as a condition of the practice of law….The bar association was founded ‘to improve the administration of justice; to foster and maintain high standards of conduct, integrity, competence and public service on the part of those engaged in the practice of law;…[and] to carry on a continuing program of legal research and education’….To foster these high standards, we require all lawyers admitted to practice law in this State to complete at least twelve hours of continuing legal education each year, including at least two hours in ethics.

In Simonsen v. Town of Derry, decided November 15, 2000, the Court had before it a land owner’s appeal to the superior court from the planning board by an unverified petition, contrary to provisions of RSA 677:15, I, which states that the appeal must be by a verified petition. Derry argued that since the plaintiff’s petition was not under oath or accompanied by an affidavit, it failed the statutory test and, therefore, the superior court had no jurisdiction to consider the case. However, the Supreme Court took a broad view of the matter:

Ordinarily, however, the verification does not ‘constitute a part of the pleading itself but, rather, goes to the form of the pleading’….Accordingly, other jurisdictions liberally permit an improperly verified pleading to be amended, even beyond the jurisdictional time frame within which to file the pleading….Our legislature has likewise provided that trial courts may liberally allow parties to amend pleadings that contain technical defects….We decline, therefore, to construe the verification requirement in RSA 677:15 as a jurisdictional prerequisite.

The Court accordingly held that the appellant could correct the omission by amendment. Chock one up for the triumph of common sense over pedantry.

Asmussen v. Commissioner, New Hampshire Department of Safety, decided December 28, 2000, is a significant case for citizens who have motor vehicle licenses affected by administrative license suspensions (ALS) under RSA 565:91-A, which allows hearing examiners in the Department of Safety to preside over administrative motor vehicle license suspension hearings. After lengthy hearings, the trial court carefully dissected the complicated situation and essentially found that the assistant commissioner of the Department of Safety had promulgated de facto rules concerning the conduct of the hearings which had the effect of rules subject to promulgation under the Administrative Procedures Act [RSA 541-A] and not having been so promulgated, were defective.

This was a complicated case but it confirms the fears of many that the deck is stacked against you at an ALS hearing. For example, the assistant commissioner told the hearing examiners that hearsay material evidence could be considered whether the hearsay evidence was relevant or not. He went on to point out that the hearing examiners were not to act like judges or conduct hearings as if they were in a courtroom and that they should not dismiss hearings on technical grounds such as the failure of the officer to state that the road upon which the driver was arrested was a public way. If the police officer failed to appear, the hearing examiners were directed to continue the hearing to a later time and direct the officer to appear. If the police officer was having difficulty in presenting his case, the examiners were to "assist the officer in meeting his or her burden of proof"! Murphy’s 64th law holds that if it can get worse, it will. So here. The procedures of the assistant commissioner were promulgated by a memorandum marked "Privileged and Confidential" and the assistant commissioner later confirmed that the memorandum was binding on the hearing officers and that the contents were to be considered by them as confidential legal advice. Worse yet, the assistant commissioner reminded the hearing examiners that they were classified employees subject to assignment and, in fact, the assistant commissioner disciplined a hearing officer [no kidding, he was sent to be "retrained"] for failing to follow the procedures he had promulgated.

To the author, this hearing procedure can be equated to the proverbial story of the criminal court judge who, upon opening court, instructs the bailiff "to bring the guilty bastards in." Alas, for drivers confronted by the ALS hearing procedure, upon appeal to it, the Supreme Court in a lengthy and murky decision essentially upheld the position of the Department of Safety in most respects, even disallowing the lower court’s award of attorney’s fees to the intervenors who were the individuals who had been subject to this ALS procedure.

If one could take one paragraph out of this lengthy opinion to encapsulate the Court’s views, the author would take this one:

While a generally applicable administrative policy might in effect be aimed at influencing the outcome of individual proceedings,…we conclude that the December 1992 instructions merely circumscribed the discretion of hearings examiners in certain evidentiary and procedural matters. The limitation of discretion does not, alone, constitute the denial of due process, and may in fact further the due process value of providing consistent treatment to similarly situated individuals….Although the trial court found that the assistant commissioner’s goal was to simplify the ALS process for non-legally trained police officers, that goal was properly within his policy-making function.

Most Americans think the right to drive is a God-given, inalienable right, following only the pursuit of happiness of the Declaration of Independence and the right to bear arms of the Constitution. The Department of Safety policies and procedures as upheld by the Supreme Court will only reinforce a driver’s feeling that in an ALS hearing he stands little chance of success.

Moving on, is there any transaction more fraught with fear than that of a purchaser contemplating the purchase of a used automobile from a used car dealer? Who can forget the scathing Herblock cartoon of Richard Nixon with his shifty eyes and heavy five o’clock shadow with the caption underneath, "Would you buy a used car from this man?" In a pro se case, Fassi v. Auto Wholesalers of Hooksett, decided November 17, 2000, [that made it from the Derry District Court to the New Hampshire Supreme Court], the pro se purchasers of a used automobile sought to hold the used car dealer to its oral promises. The used car salesmen here involved lived up to his notorious reputation. The bill of sale, under the section captioned "TYPE OF GUARANTEE", had under it the handwritten phrase "30 DAY 1000 Mile Safety Items." Never explaining what this mumbo jumbo meant, the salesperson told the plaintiffs that they could have their own mechanic exam the car within thirty days after the purchase and if a problem were discovered [yes, it seems too true to be believed] the salesperson said that the dealer "would take care of it." It was only hours before the plaintiff purchasers encountered problems with the vehicle and within 24 hours they were back to the dealer and tried to rescind their purchase because of problems they had already experienced with the automobile. Instead, the defendant auto dealer talked them out of that course of action and promised to make some repairs. However, the defendant subsequently refused to fix the faulty fuel pump and transmission with which the car had been sold and which were conditions existing at the time the car was sold to the plaintiff’s, the dealer explaining that those items were not covered under its "Guarantee." The purchasers kept the automobile and sued for their damages.

The trial court ordered judgment for the plaintiff purchasers’ damages in the amount of $2,390.85, but the auto dealer, apparently hoping to "tire" the plaintiffs, appealed to the Supreme Court! The Supreme Court unanimously found for the plaintiff purchasers, holding that since the defendant used car dealer did not dispute the salesperson’s representation to the plaintiffs, under the Uniform Commercial Code, the representation gave rise to an express warranty for the breach of which the plaintiffs had a cause of action. Since the salesperson had said that the defendant would repair problems discovered by an independent mechanic’s examination within thirty days of the sale, the Court rejected the defendant’s contention that the phrase "30 DAY 1000 Mile Safety Items" on the bill of sale constituted a limited warranty, holding that the salesperson’s statements were the only explanation of the vehicle’s warranty.

In another act of chutzpah, the defendant next argued in the Supreme Court that the trial court should not have awarded damages for the required transmission repair because there was no evidence that the car was not "roadworthy" absent such a repair. The Court put aside this additional insult to the plaintiffs, holding that the defendant’s express warranty was sufficient to cover this item of damage. However, this was one determined used car dealer since the dealer finally argued that giving the plaintiff money to repair the vehicle’s transmission would result in a "windfall" to the plaintiffs since they had continued to operate the vehicle with the faulty transmission and because there was no evidence that the plaintiffs would use the damage money to repair the transmission! The Supreme Court held that this argument was not worthy of consideration since the evidence clearly showed that the transmission was faulty and it did not matter that the plaintiffs might be able to continue to operate the vehicle with its faulty transmission.

This case will probably embolden more pro se litigants into our court system, something that is hardly to be encouraged. However, it should be noted for the record that the plaintiff purchasers later were reported in a newspaper account to have said they still had not received payment. It appears that they may have a defective judgment, since the Supreme Court held that "it is unclear from the record whether the district court judgment applies to John Kelly, [the owner] as an individual" as well as to the automobile dealership, since the pro se complaint named as defendant "Auto Wholesalers of Hoo[k]sett and John Kelly, owner." The Supreme Court would offer no opinion on whether the district court’s judgment bound the owner as an individual.

Hooksett seems to have, not to put too fine a point on it, a second class reputation. The author well remembers a time in the early years of his practice when he represented an unlucky student at St. Anselm’s who was involved in an undeserved and most unfortunate scrape with the law in the town of Hooksett which resulted in him being charged with leaving the scene of an accident, a not insubstantial misdemeanor at that time. A lay judge presided over the municipal court of the town of Hooksett [yes, Virginia, there were lay judges sitting in New Hampshire in the not too distant past] and the case was scheduled for hearing before the judge at an evening session. The author came to court early to discuss the matter with the chief of police, who was the prosecutor. As a result of the author’s silver-tongued persuasive skills [and perhaps with a little help from the students’ advisor from St. A’s who came dressed in his flowing Benedictine garb], the chief of police was convinced to nol pros the complaint. However, the judge arrived and called the case for trial and demanded that the defendant plead guilty or not. The author got up and pointed out that since the case was being nol prossed by the chief, no plea was necessary. The judge was shocked and upbraided the chief, asking him "Do you understand what you are doing?!" Happily for the student, the chief braved the judge’s displeasure and reaffirmed his commitment to nol pros the case. Yes, Hooksett, indelibly inscribed on the author’s mind as those seemingly never-ending miles on the Daniel Webster Highway [the author wasn’t paid enough to afford the tolls at that point in his career] from Manchester to Concord and back on some witness chasing hunt concocted by Jack Middleton, the author’s superior and mentor at that time in all things litigation.

The author’s reference to "The Daniel Webster Highway" [old US Route 3] brings to mind many memories of driving New Hampshire’s primary north/south arterial highway, with its importance indicated by the many memorable sights that dotted its length. Entering New Hampshire at Nashua, a traveler in the early 1960’s first came upon Nashua’s Automobile Alley, passed the Green Ridge Turkey Farm Restaurant and traversed ill-favored, downtown Nashua, then winded through both Thornton’s Ferry and Reed’s Ferry in Merrimack and passed the Drugala House Restaurant. The traveler soon entered Bedford, New Hampshire, where at a dangerous curve right at the Bedford/Manchester town line, one passed the Carousel Ballroom, the site of many past political gatherings [as well as roller skating competitions since it doubled for that purpose also]. Passing over the crumbling, cement, Queen City Bridge, the traveler soon came upon the metropolis of Manchester. It was on to Manchester’s Automobile Alley and the a traveler passed the always overflowing Puritan ice cream stand and on to Hooksett where the traveler soon encountered crowded Riley’s Gun Shop, the Indian Cliff Moccasin and Gift Shoppe with its ersatz totems, and the outlandish China Dragon, and on past Suncook and Green’s Marine with its hundreds of canoes lying open to the eye [an attractive nuisance if ever the author saw one], to sophisticated downtown Concord, where the traveler crossed from one side of the Merrimack River to the other on a rusty, green, steel, two lane bridge. After passing the capitol building, the traveler passed the uninviting New Hampshire State Prison and traveled through those easily-forgotten towns of Penacook, Franklin and Tilton [long before they became the site of the huge shopping malls found there at the present time], and on past eternally eutrophic Lake Winnisquam and to downtown Laconia. A stop there at the Miss Laconia Diner might be in order at that point, and then the traveler quickly encountered Lakeport with its very own five and dime, and then to the Weirs which had as much honky tonk in those days as it has now.

Then the traveler followed the highway as it climbed a long hill up and down into Meredith where the traveler passed a competitor of Nashua’s Green Ridge Turkey Farm Restaurant, The Hart’s Family Turkey Farm Restaurant. The traveler next journeyed to rustic Plymouth and passed Plymouth State College. Leaving Plymouth, landmarks became fewer, but more exotic. One soon passed the Indian Head Lookout and Clark’s Trained Bears [it was hard not to stop here especially if there were kids in the car] and soon the traveler eagerly awaited the Jack-O-Lantern Inn located on a sweeping curve of the highway just outside of Woodstock. Soon thereafter the traveler was within Franconia Notch, passed by the Flume, the Basin, the Tramway and the Great Stone Face and then on to the tiny hamlet of Twin Mountain where the road took a sharp turn to the north. It was about here that the traveler began to notice along the side of the highway frequent signs for "Overnight Cabins," a type of lodging unique to New England. After passing through, in due course, Lancaster and Whitefield, [it always seemed longer when driving], a traveler, in some hours and many turns later, approached Colebrook (don’t blink) and the landmark Farmers’ and Mechanics’ Bank located there, and then passed by beautiful Lake Francis and the three Connecticut Lakes and millions of spiky spruce trees, finally leaving New Hampshire for Quebec at New Hampshire’s somnolent, International Border crossing. Everyone who has traveled that old highway will have his or her own nostalgic favorite landmark or vista. It was a storied roadway and the author has fond memories of it.

ENDNOTES

1. N.H. Supreme Court Press Release, December 19, 2000.
2. N.H. Supreme Court Press Release, December 1, 2000.
3. The author’s firm represented a party to the action and, therefore, the author’s views may be colored.
4. Rousseau v. Eshleman, 128, N.H. 564 (1986); reh’g denied, 129 N.H. 306 (1987) (Rousseau II) and Gilmore v. Bradgate Assoc., Inc., 135 N.H. 234 (1992).

The Author

Charles A. DeGrandpre is a director and treasurer in the firm of McLane, Graf, Raulerson & Middleton, P.A., Portsmouth, New Hampshire.

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