THE NEW HAMPSHIRE Supreme Court recently proposed sweeping rules changes that would largely do away with the court’s policy of "discretionary review," by which as many as two-thirds of appeals filed were declined or summarily affirmed without briefing.

The impact of this new policy will take several years to become apparent. But all practitioners should consider the anticipated impacts of this change upon their practice areas and provide comments to the court before the rules are finalized. (See links and e-mail address below.)

Under current rules, instituted in 1979, the appealing party’s Notice of Appeal describes the case and the issues, and argues why the case warrants review. The non-appealing party can file a motion for summary affirmance. The court then screens the case, without a transcript, and issues an order accepting or declining the appeal. A declination order does not explain why the case was rejected. The screening process takes several months, and requires significant judge time.

Under the proposed new rules, virtually all final orders will be entitled to "non-discretionary" appeals. The major exceptions are post-conviction criminal orders, interlocutory appeals and appeals from administrative agencies.

Dismissal Motions Limited

For "non-discretionary" cases, the new Notice of Appeal form is a simple informational listing of parties, hearing dates and other administrative data. The court will order the transcript immediately. The parties may not file motions for summary disposition. The rules do permit motions to dismiss the appeal for untimeliness, mootness or lack of jurisdiction, including claims that the order was not a final appealable order.

Unlike federal practice, the appealing party does not need to designate the record, which includes the entire record below. The appealing party also does not designate the issues before briefing, although the rule on briefs continues (apparently by oversight) to bar briefing of issues not listed in the appeal document.

The proposed change responds to years of criticism from lawyers, legislators and the public. New Hampshire has been one of only two states in which litigants were not entitled to some type of appeal. Many states and the federal courts have two levels of appeals courts, an intermediate court that hears all appeals (often using abbreviated procedures), and a high court that selects which cases to hear. Many, including retired Supreme Court Justice William E. Batchelder, have urged that New Hampshire move toward an intermediate appellate court, while recognizing that expansion of the judicial branch is unlikely in the current political and fiscal climate.

Complaints about discretionary review were a recurring theme at a November 1999 conference organized by the Bar Association titled "The New Hampshire Appellate System: Looking to the Future." When discretionary review began in 1979, the court expected to turn away only a handful of cases each year. As the number of filings increased – from 400 in 1980 to more than 800 currently – the declination rate grew to over 60 percent. Due to federal constitutional constraints, the court accepts virtually all criminal cases, making the acceptance rate in civil, family and administrative matters as low as 10 percent. In addition to leaving disgruntled litigants with no avenue of appeal, these low review rates left trial courts and lawyers without guidance on many areas of the law.

To enable it to hear more cases, the court late in 2000 instituted the "3JX" ("three-judge expedited") docket, with shorter briefs and a five-minute argument before a three-judge panel. Decisions are not "published" in the conventional sense, and may not be cited as authority, but are posted on the Bar Association’s Web site (check Publications sub-menu) and in Bar News. During 2002, the court heard 104 3JX arguments out of a total of 302 cases accepted. The procedure has met with general approval. The proposed rules leave the 3JX procedure in place.

Will the Policy Bog the Court Down?

It is difficult to gauge the impact of the new rules on court caseloads and processing time. Some theorize it may reduce the number of cases filed, as litigants learn that any appeal commits them to a long and expensive process. If the number of cases stays constant, some lawyers are worried that the increased workload could diminish the quality of the opinions.

The proposed rules contain several provisions designed to reduce the judges’ workload, including reducing briefs from 50 pages to 35 and making oral argument optional.

Pending legislation could significantly reduce the court’s caseload by shifting landlord-tenant appeals from the Supreme Court back to the Superior Court. This change would remove about 90 cases annually from the Supreme Court docket. The bill has passed the House and at press time was scheduled for a Senate hearing on May 14.

Some divorce lawyers worry that frivolous appeals could impose unfair delays and costs on the party who won below. The proposed rules do allow the non-appealing party to file a short memorandum of law, instead of a full brief, which also signals a willingness to waive oral argument.

The proposed rules also clarify that requests for stay must be filed first in the trial court, and that unless the trial court so orders, the final order does not go into effect while the appeal is pending, a frequent dispute in divorce cases.

Judge Batchelder commented, "I commend the Supreme Court for making this move." He noted that only after several years under the new rules will the court, the Bar and the public find out how well they work.

The court welcomes written comments through May 30, 2003. The proposed rules are available from the court and at www.courts.state.nh.us/supreme. Comments may be sent by mail or by e-mail to rulescomment@courts.state.nh.us.

Home | About the Bar | For Members | For the Public | Legal Links | Publications | Online Store
Lawyer Referral Service | Law-Related Education | NHBA•CLE | NHBA Insurance Agency | NHMCLE
Search | Calendar

New Hampshire Bar Association
2 Pillsbury Street, Suite 300, Concord NH 03301
phone: (603) 224-6942 fax: (603) 224-2910
email: NHBAinfo@nhbar.org
© NH Bar Association Disclaimer