Bar Journal - December 1, 2002
Lex Loci: A Survey of New Hampshire Supreme Court Decisions
By: Attorney Charles A. DeGrandpre
Among the dozens of opinions handed down by the Supreme Court in the past few months are many that have been issued within a very short time after oral argument, demonstrating that the Court is making good on its commitment to speed up the process between argument and opinion. Attorneys, and in particular, the parties involved, can only applaud this achievement.
As if the Court didn't have enough on its plate already, in Burling v. Chandler, Docket No. 2002-0210, and Petition of Below, Docket No. 2002-0243, the Court was confronted during the summer months with the failure of the New Hampshire legislature to redistrict itself as required by the results of the 2000 Census. This is a case that the Court didn't need and did everything to avoid. The Court did not seize upon the opportunity to become involved in these cases and did everything it could to avoid them, without debasing its constitutional responsibility to decide cases and controversies of all sorts. Contrary to the savage and corrosive editorials and cartoons carried almost daily by the Union Leader, the Court at several points gave the two parties an opportunity to come up with a redistricting plan on their own, without the need of Court intervention. The Court signaled early on to the two political parties and the Governor that its approach would differ greatly from the historical norms of redistricting in New Hampshire. The Court also warned that it had been called upon to act upon such a uniquely political controversy, one left best for the political parties to decide. But to no avail.
The Court handled this politically charged matter magnificently. It proceeded patiently and, at all times, unanimously, dealing with the strongly stated views of the two competing political parties. It is controversies such as this that validates the farsighted ideas of the founders of our American constitutions which uniquely provide for three branches of government, with the third branch, the judicial branch, designed to settle controversies between the two other branches. The Court made clear that it required the assistance of experts and appointed a neutral, technical advisor to assist it in the case, and ordered the State to assume responsibility for the payment of the Court's "unanticipated expenses that were not provided for in its budget, including the expense of technical advisors to assist the Court." The author refers those readers who want a more detailed understanding of these cases to read the voluminous court opinions and orders these cases generated.
It is enough to say that the Court, once "required to scrutinize the process of apportioning the people's right to vote in the election of representatives" for the first time in the history of this State, discovered that there were "significant anomalies, perpetuated for many years in the legislative redistricting process, which have undermined the principles of equality upon which the New Hampshire House of Representatives was founded." The Court set as its guiding principle that Part I, Article 11 of the New Hampshire Constitution "guarantees that each citizen's vote will have equal weight." This one person/one vote rule required the Court to remake the political face of New Hampshire, particularly with respect to the House of Representatives. The Court rejected both plans offered by the two competing parties. In seeking to achieve the one person/one vote requirement, the Court eliminated so-called "floterial" districts, i.e., a district which "floats over" several districts and "as constructed in New Hampshire, have led to unusual results and voting right inequities." The Court chose the use of multi-member districts over single number districts as the best way to achieve its one person/one vote guideline and imposed its new redistricting plan on the face of the political map of New Hampshire.
As could be expected, the cries of outrage and anguish were loud as each incumbent realized how the Court's plan affected his or her district and as each individual city and town (and even wards of towns) won or lost in the one person/one vote plan. It's the author's observation1 that both political parties got what they asked for, but it may very well be that the Republican Party, by failing to take the initiative early on in the legislative session to address the redistricting issue, has miscalculated and will suffer more over the long term from the Court's redistricting plan than it would have had if it had compromised with the Democratic Party.
In Re Baby Girl P., opinion issued June 21, 2002, is an example of the most agonizing type of case that can confront family law practitioners: the controversy between the prospective adoptive parents of a child already placed in their possession and with whom they have bonded, on the one hand, and, on the other, a natural parent of the child seeking to have the child returned to him or her. This important case split the Supreme Court and the arguments by both the majority and the dissent have merit.2 The appeal arose from an order of the probate court dismissing the adoptive parents' petition for adoption and ordering the child returned to her biological father. The child was born in Arizona which has a putative father's registry. The putative father did not enter his name into this registry. The natural mother gave consent in Arizona to the adoptive parents who were from New Hampshire and who then took custody of the child in Arizona and returned to New Hampshire and filed a petition for adoption in the New Hampshire probate court. The mother's affidavit indicated that the child had been conceived in Arizona and that the pregnancy was the result of a one night relationship and that she did not know any identifying information concerning the natural father. After a search of the putative father's registry in Arizona was undertaken finding no putative father, the New Hampshire probate court went further and published a notice in an Arizona newspaper and the putative father responded indicating his intent to claim paternity. He alleged that he had had a several month relationship with the mother, that he knew of the pregnancy and that he had been in prison during most of the pregnancy and at the time of the child's birth. A paternity test confirmed him to be the biological father of the child and he refused to consent to the adoption. The lower court, applying New Hampshire law, ruled that since he was the biological father, he must either consent to the adoption or have his parental rights terminated in order for the adoption to proceed. Failing that, the court ordered the child returned to the natural father.
The majority opinion of the Court was written by Justice Duggan. It was first confronted with the task of deciding which state law applies to adoption cases. The Court adopted the Rule of the Restatement (Second) of Conflicts of Laws, § 289, which provides "[I]n general, the law of the forum State applies to adoption cases," and the Court, therefore, applied "New Hampshire's adoption statute, RSA chapter 170-B, to determine if [the putative father] was entitled to notice and the right to consent to the adoption."
The Court acknowledged it was confronted with a Gordian knot, as it observed that "the determination of [the putative father's] paternity in this case was not the type con templated by the adoption statute." The Court looked to the legislative purposes in enacting the law and observed that
[c]onsistent with this purpose, the legislature has articulated a time period during which a putative father has the opportunity to establish his parental rights. If, before the mother's consent is given, the father's identity is not known by the courts, the adoptive parents or their attorney or he fails to come forward, he is thereafter barred from bringing any action to establish paternity. That the natural mother knows of his identity is irrelevant to the statutory analysis. Indeed, under the statute, a natural mother is not required to identify anyone as the father.
Justice Duggan went on to point out that its interpretation "does not allow the mother to unilaterally divest a father of his paternal interests. As previously stated, a biological father has the opportunity to come forward. However, in order to protect the interest of the child, the legislature has provided that the unwed father's opportunity to preserve his right is decidedly limited in duration." [Emphasis added]. With this statement, the majority gave greater emphasis to the best interest of the child over the interest of the biological parent.
The dissent, written by Justice Dalianis, contended that the New Hampshire statute was clear that the consent of a biological father, when known, was necessary to the adoption and that since his parental rights were not terminated, his rights superceded that of the child. Both sides have merit but to the author, the majority's opinion seems the better solution to these very difficult cases.
Heartz v. City of Concord, opinion issued September 17, 2002,3 is a rare example of the Court rejecting a proffered Restatement of Laws rule, specifically in this case dealing with the scope of an easement, § 4.1 of the Restatement (Third) of Property which establishes the rule that "an appurtenant easement...may not be used for the benefit of property other than the dominant estate." A unanimous Supreme Court rejected the adoption of an absolute rule prohibiting such a benefit and concluded that the issue whether an easement could serve a non-dominant property turned upon the language of the easement itself. In this case, the Court held that the language of the easement ["at all times and for all purposes"] was broad enough to allow the easement holder to use the easement to benefit a non-dominant property tenement
[b]ecause nothing in the deed's language indicates an intention to prevent non-dominant, third-party tenements from benefiting from the easement, we hold that [the easement holder's] proposed use of the easement across [the servient] property is not illegal even if it benefits property beyond...the dominant tenement.
In the case of In Re Shelby R., opinion issued on August 20, 2002, the Supreme Court had to determine "whether a stepparent has a legally protected interest and, if so, to decide whether the Due Process Clause may require the appointment of counsel as an appropriate procedural safeguard to protect that interest." The Court was confronted whether RSA 169-C:10, II (a) of the Child Protection Act which prohibited the court from appointing an attorney to represent persons other than those specifically named under the chapter (stepparents not being so named). The Court split on the issue and the majority, speaking through Justice Nadeau, reasoned that
[i]n determining that stepparents are entitled to certain due process rights, we are not required to choose between the liberty interests of natural or adoptive parents and those of stepparents. Finding that due process under our State Constitution requires the appointment of counsel to stepparents accused of abuse or neglect neither erodes the fundamental rights of natural or adoptive parents, nor imbues stepparents with the same fundamental liberty interest in a child as natural or adoptive parents. Instead, we merely recognize that stepparents, like natural or adoptive parents, are susceptible to charges of abuse or neglect.
The Court majority concluded that
due process requires the appointment of counsel to a stepparent accused of abuse or neglect under RSA chapter 169-C. Because RSA 169-C:10, II(a) not only fails to provide for, but rather prohibits the appointment of counsel for the accused stepparent, the statute is inconsistent with the requirements of due process.
Justin Duggan dissented, stating that although he agreed that RSA 169-C:10, II(a) violates due process by prohibiting under any circumstances court-appointed counsel for an indigent stepparent accused of abusing or neglecting his or her stepchild, he disagreed with the Court that the "due process clause found in Part I, Article 15 of the New Hampshire Constitution required court-appointed counsel in every case charging an indigent stepparent with abusing or neglecting his or her stepchild."
Several cases can be noted briefly. State v. Martineau, decided September 6, 2002, established a rule "that New Hampshire common law prevents a private complainant from prosecuting a class A misdemeanor." In State v. Gifford, decided August 16, 2002, the Court had before it the issue of "the criminal responsibility of a twenty-two-year-old defendant for acts allegedly committed when the defendant was thirteen years old." The Court concluded that RSA 628:1 does not bar prosecution of the defendant, but that the requirements of certification under RSA 169-B must be met. This certification is a certification from a hearing in the juvenile proceedings in the district court where the state has the burden of persuading the district court that the juvenile should be held responsible as an adult, which had not been done here.
In The Matter of Johane R. Telgener and Richard J. Telgener, opinion issued July 29, 2002, the Court had before it a question of first impression, whether a trial court in a domestic relations case should consider the tax consequences of a division of property. The Court established the rule that
a trial court may consider tax consequences only when the tax liability is reasonably ascertainable. If a taxable event such as sale of property is required by the property distribution or is certain to occur shortly thereafter, a court should consider the tax consequences of the property distribution....consideration of a tax consequence is precluded, however, when the trial court must speculate as to a party's future dealing with the property....as such, where there is merely a likelihood or possibility that a taxable event will occur, a court may not reduce the value of an asset by uncertain tax consequences.
Once establishing the rule, the Court held that the Court was not required to consider the tax penalty that the early withdrawal of retirement funds from an IRA account by the defendant in order to pay his wife the property settlement required by the Court, because "the withdrawal of the retirement funds was neither required by the trial court's order nor certain to occur within a short time after the divorce decree."
The old saying goes that from tiny acorns, grow mighty oaks. Such was the appeal from a small claims case in the district court where the Supreme Court had before it its first Internet jurisdiction case, Metcalf v. Lawson, opinion issued June 25, 2002. This is an interesting jurisdiction case which will appeal to pleading aficionados. The plaintiff, a New Hampshire resident, was the high bidder on a piece of equipment at an internet auction site known as eBay offered for sale by defendant who was a resident of New Jersey and who had never been physically present in New Hampshire. Subsequently, the plaintiff went to New Jersey and concluded the purchase and returned to New Hampshire with the excavator. After experiencing difficulties with its operation, the plaintiff initiated action against the plaintiff in New Hampshire by filing a small claims complaint in the district court. Over the defendant's objection, the district court found that there was jurisdiction over the defendant because the court ruled that by offering the excavator for sale over the internet, the seller knew or should have known that the offer would be extended to buyers in all fifty states and "that by doing business on the Internet, the defendant has the requisite minimum contact with the State of New Hampshire."
Using a federal due process analysis, the Court, speaking unanimously through Justice Dalianis, recognized that "[i]t can be difficult to apply long-standing jurisdictional principles in cases involving Internet contacts," and held that the general test in determining if the exercise of specific personal jurisdiction comports with due process is a three pronged one, requiring the Court to examine whether:
(1) the contacts relate to the cause of action; (2) the defendant has purposefully availed herself of the protections of New Hampshire law; and (3) it would be fair and reasonable to require the defendant to defend the suit in New Hampshire....All three factors must be satisfied in order for the exercise of jurisdiction to be constitutionally proper.
The Court directed its attention to the second prong, whether the defendant purposely availed herself of the protections of New Hampshire's laws and found that, because of the unique operation of the eBay auction site, held that "[n]othing indicates, therefore, that the defendant intentionally directed her activities at New Hampshire or was aware she was contracting with a New Hampshire resident until after the transaction was completed." The Court concluded "that the defendant did not engage in sufficient activity in this State to make it fair and reasonable for purposes of due process to require her to defend this claim here." The author would predict that this is just the tip of the iceberg and that there will be many more jurisdictional tests coming in the future as the use of the Internet for other than auction site commercial purposes continues to grow.
Lawyers Title Insurance Corp. v. Groff, opinion issued September 17, 2002, is an interesting case of interest to real estate lawyers, especially conveyancers. The defendant attorney became an agent of the plaintiff title insurance company in 1991. Subsequently, the defendant was the settlement agent and attorney for a lender in a real estate action and hired a title abstractor as an independent contractor to conduct a title search and prepare an abstractor's report. The title abstractor negligently failed to find and disclose a construction mortgage and the defendant issued a title insurance policy to both the lender and the buyers without excepting the mortgage. The plaintiff title company paid the mortgagee when the mortgage was later discovered and turned around and sued the attorney to recover as damages what it had paid the mortgagee. The superior court ruled that the defendant was vicariously liable for the title search conducted by a third party. On appeal to the Supreme Court, the Supreme Court reversed, in a lucid opinion written by Chief Justice Brock.
The question turned upon whether the attorney was negligent for the mistake of his independent contractor, the title examiner. That question itself turned on the issue of whether the defendant's attorney duty to examine and clear title was nondelegable. The Court first recognized that "[w]hether lawyers owe any nondelegable duties to their clients is an issue of first impression for this court."
The Court reviewed cases from other jurisdictions and found that certain nondelegable duties of an attorney existed, such as the duty to exercise care in the service of process or the attorney's fiduciary responsibility for his clients' trust funds, but "[d]eclined to hold that an attorney may not delegate to an independent contractor the duty to ex amine title in a real estate transaction," holding that
Were we to classify the duty to examine title as nondelegable, we would 'open[ ] up an unrealistic and undue liability channel not only with respect to the relationship of attorneys to [title abstractors] but, by analogous extension, also to many other relationships in which attorneys retain specialists and experts in the discharge of their professional obligations to clients.'
The Court pointed out that "the attorney is subject to liability for negligently hiring, supervising retaining the abstractor, negligently reviewing the abstractor's report, or negligently rendering an opinion based upon the abstractor's report," but held that those were not issues in the present case. This opinion is a welcome limitation on the otherwise rapid judicial expansion of attorney liability for all sorts of activity.
Finally, State v. Boyle, opinion issued September 16, 2002, involved what is probably every driver's worst nightmare, a stop for allegedly operating under the influence of alcohol. Here, under the curious facts involved, the defendant was convicted in the superior court of driving while certified as a habitual offender and for disobeying an officer. Upon appeal to the Supreme Court, the Supreme Court reversed his arrest and conviction. It appears that an overly zealous police officer of the Town of Rye [are there any in this town who cannot be so described?] observed a vehicle stopped in the travel lane on a residential street in the town at about 1:00 in the morning. As the officer approached, the vehicle pulled off to the side of the street and the officer pulled up along side the vehicle, rolled down his passenger side window, and asked the driver if he had broken down. Curiously, the defendant replied "that he had just dropped off a drunk female and was waiting to see if she was okay." Most readers will admit that they have probably heard of every possible explanation given by a suspect under these conditions, except the one given by the defendant. The officer then parked behind the defendant's vehicle "and activated his front 'takedown lights,' front spot light, and the strobe light on top of the cruiser." [What happened to the old, simple, blue, revolving light atop a cruiser?] The activation of these blinding lights is enough to cause an innocent person to have a heart attack. In the dizzying atmosphere of these pounding lights, even a sober person would have trouble walking a straight line or finding his nose.
After approaching the vehicle, the officer smelled a strong odor of alcohol and arrested him after discovering that he lacked a valid license. Both sides agreed that "the defendant was seized when the officer parked behind the defendant's vehicle and activated his lights," leaving the Court's sole task to determine whether the seizure or stop of the defendant was constitutional. The State argued that the seizure was a "well-being" check by the officer and was "authorized absent either reasonable suspicion or probable cause because the officer was acting as a 'community care taker.'"
The Court had previously recognized a community caretaking exception for a warrant-less search, but held that it did not apply here. The Court pointed out that it was being asked for the first time, "to apply the community caretaking doctrine to the seizure of a person in an automobile for a routine check on health and safety. To be valid under the community caretaking exception, the seizure or stop must be 'totally separate from the detection, investigation or acquisition of evidence relating to a criminal matter.'" The Court also pointed out that the officer had justified that he had seized the defendant because he found "the defendant's response to [his] initial questioning 'unusual'" [Does anyone disagree with that?] and the officer then testified that "the focus of his concern was the drunk female, not the defendant." The Court held that these facts did not justify the seizure of the defendant under the community caretaking exception. The defendant should be forever thankful that his karma was especially good that morning.
The author is a member of the Democratic Party and, therefore, his views may be colored.
The author is the parent of two adoptive children and as a result, his views may be colored.
The author's firm represented a party to the action and, therefore, the author's view may be colored.
Attorney Charles A. DeGrandpre is a director and treasurer in the firm of McLane, Graf, Raulerson & Middleton, P.A., Portsmouth, New Hampshire.