 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 |
 
|
|
 |
||||||||||||||||
|
Bar News - January 20, 2006 Supreme Court At-a-Glance – December 2005 By: Michael J. Listner
State v. Derek Sean Pierce, No. 2004-491 Appeal from Durham District Court, December 2, 2005: Reversed. Defendant appeals his conviction under RSA 644:4 for harassment after the District Court denied Defendant’s motion to dismiss on the grounds that RSA 644:4 is unconstitutional because it impermissibly shifts the burden of disproving an element of harassment to the defendant in violation of Part I, Article 15 of the New Hampshire Constitution, as well as the Fifth and Fourteenth Amendments to the United States Constitution.” Defendant reinforces his constitutional argument by claiming that the statute is unconstitutionally overbroad because it criminalizes protected speech, thus chilling First Amendment freedoms. The Court held that that RSA 644:4 is unconstitutionally overbroad and as such it did not address the Defendant’s argument that RSA 644:4, I (f) requires unconstitutional burden shifting nor did it address the State’s argument that subparagraph (f) and paragraph I is an affirmative defense rather than an element of the offense when considered together. The Court did not address Defendant’s claims under the Federal Constitution because his conviction necessitated reversal under the State Constitution. In the Matter of R.A. and J.M., No. 2004-721 Appeal from Sullivan County Superior Court, December 30, 2005 Final decree affirmed. In this appeal of a decree granting physical custody of a child, the Court examined the constitutionality of RSA 458:17, VI and whether a parent’s fundamental right to raise and care for his child prohibits the State from allowing stepparents or grandparents, under any circumstances, to intervene and be awarded custody absent a finding that the parent is unfit and if it does, whether that statute meets muster under strict scrutiny analysis. The Court determined that the statute in question was unambiguous and the legislative intent of the statute was to allow stepparents and grandparents to intervene in a dispute between parents. The Court examined whether or not the statute violates parents fundamental rights and applied the strict scrutiny standard. The Court noted that the strict scrutiny standard need not be applied in a custody dispute; however, given that a third party was intervening in this matter, the Court chose to do so. The Court noted that when writing the statute, the Legislature made clear its compelling interest in protecting children, thus Paragraph IV of the statute justifies the superior court’s grant of custody to a grandparent or stepparent only when such an intrusion is neither unreasonable nor disproportionately restrictive. The Court in comparing the statute to the statute in Troxel v. Granville, 530 U.S. 57 (2000) found that the statute in question only allows two classes of people, the stepparents or the grandparents, to intervene in an existing custody dispute. However, the Court held that to award custody to a stepparent or a grandparent over the objection of a fit natural or adoptive parent is not unreasonable or unduly restrictive of parental rights only if the petitioning party can show by clear and convincing evidence that: (1) the custody award would specifically be in the child’s best interest because of a significant psychological parent-child relationship; (2) the custody award is only allowed where the family is already in the process of dissolution; and (3) there is some additional overriding factor justifying intrusion into the parent’s rights, such as a significant failure by the opposing parent to accept parental responsibilities.” Justice Nadeau and Justice Galway concurred in part and dissented in part. Justice Dalianis and Justice Duggan dissented. In Re Juvenile, No. 2004-822 Appeal from Rochester District Court, Juvenile defendant appeals district order sentencing him to a suspended jail term for delinquency and aggravated felonious sexual assault, which he allegedly committed at the age of 12. Juvenile contends on appeal that: 1) RSA 169-B:19, III-c (Supp 2005) is unconstitutional because it establishes a system of juvenile jury trials that subjects juveniles to double jeopardy; and (2) that the trial court erred in imposing a suspended jail sentence because RSA 628:1 (Supp. 2005) precludes holding a person “criminally responsible” for an act he committed when he was twelve years old. The Court rejected the juvenile’s argument that RSA 169-B:19, III-c subjects the juvenile to double jeopardy and is therefore unconstitutional. The Court noted that the statute in question does not place a juvenile in the general criminal system but rather the matter is kept in the juvenile system and the juvenile does not stand trial as an adult. Rather, the statute provides a de novo jury trial for juveniles who are sentenced to suspended jail time. The statute does not prohibit the juvenile from forgoing a full contest of the charges in the initial adjudication by having the district court enter a finding of “true,” and proceeding directly to a de novo jury trial. The Court thus held that the statute does not violate the juvenile’s double jeopardy rights. The Court also rejected the juvenile’s argument that the statute bars holding a person criminally responsible for an act committed when he was 12 years old and that the district court’s imposition of the suspended sentence has held done so. The Court held that the juvenile was not subjected to the full range of criminal sanctions available to adults and that his adjudication of “true” was not the same as finding guilt in a criminal proceeding. Therefore, the Court held that the suspended sentence was not in violation of the statute. The Associated Press v. State, Appeal from Merrimack County Superior Court, December 30, 2005 Affirmed in part; reversed in part; Trial court denied petition seeking declaratory and injunctive relief by requesting the court to rule that RSA 458:15-b is unconstitutional. Petitioners put forth that RSA 458:15-b is unconstitutional because: 1) it violates the public’s right of access to court records guaranteed by Part I, Articles 8 and 22 of the State Constitution; 2) it is an impermissible prior restraint on freedom of speech as guaranteed by Part I, Article 22 of the State Constitution and the First Amendment to the Federal Constitution; and 3) it violates the separation of powers guaranteed by Part I, Article 37 of the State Constitution. The trial court denied the petition noting that the statutes constitutionality depends on a compelling state interest and the statute advances a fundamental right to privacy, which is a compelling state interest. Petitioner’s appeal and ask the Court to hold RSA 458:15-b unconstitutional. The Court held as follows: 1) That paragraphs I and II of RSA 458:15-b, as construed, do not violate the right of access to court records provided by Part I, Articles 8 and 22 of the State Constitution. Nor do paragraphs I and II violate the separation of powers guaranteed by Part I, Article 37 of the State Constitution. 2) RSA 458:15-b, III is an unconstitutional restriction on the public right of access to court records provided by Part I, Articles 8 and 22 of the State Constitution. 3) Since RSA 458:15-b, III is severable from the other constitutional provisions of RSA 458:15-b, the constitutional provisions remain valid, as construed in this opinion. The Court acknowledged “the New Hampshire Constitution creates a public right of access to court records.” However, that access may be limited when a sufficiently compelling interest for nondisclosure is identified. To determine whether there is a constitutional right of access to court records to cases other than criminal proceedings and specifically to financial affidavits filed in domestic relations cases, the Court adopted the United States Supreme Court’s experience and logic test. The Court held that the State constitutional right of access attaches only to documents that are important and relevant to a determination made by the court in its adjudicatory function in connection with a proceeding to which the State constitutional right of access has attached. The Court further held that financial affidavits filed in domestic relations cases are important and relevant to a determination made by the court in its adjudicatory function in connection with a presumptively open proceeding and therefore are subject to the constitutional right of access. Criminal Law State v. Richard Edson, No. 2004-384 Appeal from Belknap Superior Court, December 28, 2005 Convictions affirmed; allocation of Defendant appeals his conviction of second degree assault, escape, driving while intoxicated and driving while certified as a habitual offender. Defendant argues that there was insufficient evidence for the jury to find him guilty of second degree assault and that the trial court erred in its allocation of the defendant’s pretrial credit among the four consecutive sentences imposed. The Court rejected the defendant’s contention that there was insufficient evidence for a jury to find him guilty of second degree assault given that a reasonable jury in a light most favorable to the State could have found that defendant’s repeated attacks were made in a manner that were extremely indifferent to human life. The Court vacated the trial court’s allocation of 365 days of pretrial confinement credit to the defendant’s 12-month house of correction sentence. The Court reasoned that because the defendant could not furnish bail, the trial court’s allocation deprived the defendant of any opportunity to earn time off of his house of correction sentence for good behavior, and therefore he could conceivably serve more time than a similar offender who was able to furnish bail. State v. Steven Gubitosi, No. 2004-110 Motion to void a capias, Court issued orders and memorandum. Defendant’s conviction of stalking was affirmed by the Court on October 28, 2005. The same day, the trial court ordered sua sponte that the defendant’s bail pending appeal was no longer appropriate and issued a capias ordering the defendant’s capture to begin his sentence. Defendant filed a Motion to Stay Writ of Capias in the trial court and alleged he was out of state on business. Defendant further alleges that the Supreme Court has continued jurisdiction over his case until the Court issued a mandate. The trial court denied the motion. Defendant subsequently filed an Emergency Motion to Void Capias with the Supreme Court. A justice of the Court issued an order that stayed the order of the trial court in anticipation of a further order from the Court. The Court examined the statutes relevant to bail revocation and determined that while an appeal may be pending for a defendant’s bail revocation, the anticipation of that appeal does not deprive the superior court of its jurisdiction to modify or revoke conditions of the defendant’s release pursuant to RSA 597:7-a. While an appeal deprives the trial court of jurisdiction of the cause of action, it does not prevent it from ruling on independent matters affecting the case. The Court determined that bail pending an appeal is an independent matter. In this case, however, the superior court did not rely upon RSA 597:7-a, but instead ruled that the bail pending appeal was no longer proper because the defendant’s stalking conviction had been affirmed by the Court. The Court noted that a defendant has 10 days from the issuance of an affirmation to file a motion for reconsideration. If that motion is denied, a mandate would be issued within 7 days of the denial. Even if a motion is not filed, a mandate would not be forwarded until the time for the defendant to file a motion has been expired. The date of the mandate, not the date of the issuance of the Court’s decision, is the effective date of the Court’s decision. The Court stayed the trial court’s capias because the time for the defendant’s motion for reconsideration had not expired and no mandate had been issued by the Court. Domestic Law In re Juvenile, 2004-637 & a. Appeal from Grafton County, Reversed and remanded. Mother appealed to the Supreme Court to review the superior court’s dismissal of her de novo appeal of an adjudicatory order dismissing DCYF’s petitions for abuse and neglect by the father; the motion to dismiss was made by the father. The sole issue on appeal was whether the superior court erroneously granted the father’s motion to dismiss the mother’s appeal. The Court held that the superior court erred by granting the father’s motion to dismiss the appeal and that the superior court was mandated under RSA 169-C:28 to hold a hearing de novo and that the superior court had no room for the exercise of discretion concerning the mandate of the statute. The Court rejected the father’s argument that the superior court’s dismissal was proper since there was “no case or controversy” before the superior court once DCYF withdrew its petitions. The Court found that the plain language of RSA 169-C:28, I did not support this argument. The Court also rejected the father’s argument that that the superior court could not have conducted a de novo hearing under RSA 169-C:28, without the same parties who appeared in the family division, and the Court refused to read this requirement into the statutory definition of de novo under RSA 169-C:28. Finally, the Court rejected the father’s argument that the mother’s hearing upon remand to the superior court is barred by res judicata because of the family division’s dismissal of her own petitions and her failure to appeal that dismissal. The Court determined that the family division did not dismiss the abuse and neglect petitions on their merits and therefore res judicata will have no effect upon remand. In the Matter of Brian Stall and Lynne Stall, No. 2005-110 Appeal from Hillsborough Superior Court, December 30, 2005 Affirmed in part; vacated in part; The respondent appealed an order from the Hillsborough Superior Court on the following grounds: 1) whether the trial court erred by making its child support modification order retroactive to when she “was put on formal notice;” 2) that the trial court impermissibly imputed income to her after finding that she was voluntarily unemployed; and 3) that the trial court impermissibly found that she was in contempt of the court’s April 2004 order requiring her to transport the children’s belongings within ten days of the order and erroneously ordered her to pay the petitioner $1,300. The Court held that the trial court erred when it interpreted RSA 458-C:7, II, which governs when a child support modification order becomes effective. In this instance, the trial court construed the meaning of the word “notice” in a manner not set forth in the statute. The Court subsequently vacated the trial court’s order pertaining to child support and remanded to the trial court with instructions to make the modification order consistent with RSA 458-C:7, II. The Court also held that the record supported the trial court’s determination that the respondent was voluntarily unemployed. The respondent argued that the trial court failed to give the proper consideration for her reasons for moving and thus being unemployed, however, the Court noted that the Court’s task on appeal is to determine whether a reasonable person could have found as the trial judge did. Therefore, the Court upheld the trial court’s ruling of imputing an annual income to the respondent. Finally, the Court rejected the respondent’s contention that the trial court’s sanction was criminal in nature. The Court reasoned that the trial court treated the petitioner’s motion as a civil motion for damages. The Court concluded that the sanction was one meant to benefit the petitioner and not meant to protect the court’s authority, as is the case of criminal contempt. The Court therefore upheld the trial court’s contempt ruling and the monetary award to the petitioner. Employment Law Appeal of Ronald Pelleteri & a., Appeal from the Department of Employment Security, December 9, 2005: Affirmed. Petitioners appealed their denial of unemployment benefits. The department of employment security (DES) denied Petitioner’s unemployment benefits pursuant to RSA 282-A:14, I. Petitioners appealed to the appeal tribunal which upheld the DES ruling. Petitioners then appealed to the appellate board and argued for the first time that RSA 282-A:14, III is unconstitutionally vague. The appellate board sustained the DES ruling. Petitioners appealed to the Supreme Court on the grounds that RSA 282-A:14, III: 1) violates the Due Process Clause of both the Federal and State Constitutions; (2) violates the Equal Protection Clause of both the Federal and State Constitutions; and (3) expressly grants the appellate board authority to determine the constitutionality of RSA 282-A:14, III. The Court recognized that its jurisdiction when considering an appeal of an administrative decision is limited to reviewing the record for errors of law. Therefore, when considering Petitioners’ constitutional argument, the Court first considered whether the petitioners’ claims were preserved for review. The Court determined that Petitioners failed to raise their constitutional argument until after the appeal tribunal had reached its final determination, nor did the Petitioners’ arguments before the appeal tribunal neither implicate nor articulate the constitutional issues that they subsequently raised. Therefore, the Court held that the Petitioners’ constitutional arguments were not timely raised and the Court did not address them. Evidence State v. Elementis Chemical, Appeal from Hillsborough Superior Court, December 9, 2005 Reversed and remanded. State appealed ruling dismissing the State’s petition for civil forfeiture against the defendant, Elementis Chemical. State argues that 1) the trial court erred in excluding as evidence defendant’s manifests of hazardous wastes based upon the policy of New Hampshire Rule of Evidence 407 regarding subsequent remedial measures and 2) that the trial court should have found sufficient evidence to conclude that waste on the defendant’s property was hazardous between 1998 and 2001. The Court held that the voluntary remediation inherent to Rule 407 is not present when such remediation is pursuant to a statutory mandate and that the fairness concern of Rule 407 does not require exclusion of involuntary acts of remediation. Since the defendant was mandated under New Hampshire law to remove the hazardous waste, the act of removing the waste was not voluntary; therefore, the fairness concern of Rule 407 did not provide a foundation for excluding the manifests. The Court also rejected the defendant’s argument that the trial judge correctly excluded the manifests under Rule 403. The Court found no support for this contention in the record, as the defendant did not move to have the manifests excluded under Rule 403 nor did the trial judge ever cite Rule 403 or mention the probative value of the manifests as evidence against the danger of unfair prejudice. Accordingly, the Court found that the trial judge should not have excluded the manifests and that with the manifests as evidence, and the State should have had sufficient evidence to prove that waste on the defendant’s property was hazardous. Because of the large number of cases decided by the Supreme Court in December, the remainder of Attorney Listner’s At-a-Glance column will appear in the Feb. 3, 2006 issue of Bar News.
|
|
Home | About the Bar | For Members | For the Public | Legal Links | Publications | Online Store New Hampshire Bar Association |
