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Bar Journal - June 1, 2002

Lex Loci: A Survey of New Hampshire Supreme Court Decisions

LEX LOCI A Survey of New Hampshire Supreme Court Decisions

To use astronomer's jargon, a super nova of the recent opinions of the New Hampshire Supreme Court is an important decision in the sensitive area of the termination of parental rights, decided by a unanimous Supreme Court on February 5, 2002, In Re Antonio W. and Daniel M. The dispiriting facts of this case gave the Supreme Court a broad opportunity to review the nature and the law of parental rights under our New Hampshire Constitution.

Antonio and Daniel were young brothers brought up by their mother in a disorderly, dirty and "out of control" household in which one of the boys was abused sexually by his own mother and her many boyfriends, or as described in the careful words of the Court: "[a]lthough we do not relate in graphic detail the disclosed conduct, it was profoundly disturbing."

After numerous findings of neglect by the district court, the Department of Children, Youth and Family (DCYF) petitioned to terminate the mother's parental rights over the boys, alleging that she had failed to correct the conditions of neglect. A six-day termination hearing followed in Hillsborough County Probate Court, after which the court ruled that, the mother having failed to correct the conditions which led to the original findings of neglect, it was now in the best interests of the children to terminate her parental rights. The mother appealed. Justice Broderick's affirming opinion for a unanimous Court was a humdinger. The Court began by stating that although parental rights are "'natural, essential, and inherent' within the meaning of Part I, Article 2 of the New Hampshire Constitution....Nevertheless the fundamental rights of parents are not unassailable, and terminations will be upheld if applicable due process requirements have been met....The dominant consideration in termination proceedings under RSA chapter 170-C is the welfare of the child, which must prevail over the interests of the parents." [Emphasis supplied]. This is a welcome re-emphasis by the Court regarding the welfare of children in termination cases.

The Court next examined in detail the mother's attack on the nature of termination proceedings which, under RSA 170-C, are designed to be more informal and less rigid than a jury trial. For example, the mother complained that the trial court had admitted two statements from parental aides who were not available to testify, and thus she claimed hearsay was admitted. The Court found that the admission in such an instance was specifically authorized by the termination statute and found no constitutional problem. The mother also objected to the trial court's admission of a social worker's report from the DCYF, which the court found was also specifically authorized by the termination statute. The Supreme Court concluded that the probate court had placed little weight on the hearsay statements and had conducted the trial in a very careful and precise manner, in accordance with the less strict, statutory, evidentiary provisions of the termination statute. Happily, the Supreme Court affirmed the probate court's termination order. The unhappy fact is that many years passed before the defenseless children were removed from these deplorable conditions: The Supreme Court specifically found that "despite the number of years that DCYF worked with her, [the mother] failed to comply" with many court orders requiring her to attend counseling, to maintain proper living arrangements and to keep the children away from unrelated males.

Termination cases are always tough cases, but the probate court's careful and thoughtful handling of this matter and the Supreme Court's strong, lucid opinion should become leading guideposts in these difficult cases.

The lack of success of Dartmouth College in satisfying the long-held concerns of a substantial group of its alumni that the college trustees are engaged in a campaign to substantially change the current residential and social system by eliminating the single-sex fraternity and sorority system was before the New Hampshire courts for the third time in Brzica v. Trustees of Dartmouth College, decided February 22, 2002. [To some observers, this is a tiresome fight. Get a life. The rest of the world has passed you by]. The disgruntled alumni (some of whom had previously brought unsuccessful actions against the college in the Federal District Court of New Hampshire and Merrimack County Superior Court) brought the present action in Grafton County Superior Court. The nexus of the present scattershot complaint was that prior to the successful conclusion of a $568 million dollar capital campaign (to which some, but not all, of the plaintiff alumni had contributed), "the trustees decided to eliminate single-sex fraternities and sororities from the Dartmouth campus, but withheld the announcement until after the conclusion of the capital campaign." The Supreme Court upheld the findings of the lower court on these issues, holding that there was no fiduciary relationship between the trustees and the alumni, agreeing with the trial court that "no facts were pled to establish that the alumni stood in such a submissive, inferior or dependent position with respect to the college in the capital campaign so as to support the existence of a fiduciary relationship." The alumni also claimed that the actions of the trustees constituted an unfair and deceptive practice under the New Hampshire Consumer Protection Act, RSA 358-A:2. The Supreme Court again agreed with the analysis of the trial court that "the nature of the relationship between the trustees and the school's alumni is one of donor and donee; the nature of the transaction is a gift....Gifts are not business transactions and contributors of such gifts are not consumers seeking to purchase goods or services."

The alumni then sought the Court's intervention in connection with the manner in which trustees are elected. In response, the Court invoked the so-called "Bricker doctrine," which provides that "[j]udicial interference in the internal affairs of associations is strictly limited and will not be undertaken in the absence of a showing of injustice or illegal action and resulting damage to the complaining member."

The last allegation by the alumni [at least in this case] was that the unusual "charge" or oath required of all Dartmouth trustees upon taking office, vowing that all deliberations of the trustees are to remain confidential, breached the trustees' duties to the alumni. The Court agreed with the trial court and found that the so-called "trustee's charge" did not require the trustees to forsake their constituency of alumni, as the alumni argued, or somehow constituted bad faith. Hooray for the quiet, competent handling of this case by the trial court, affirmed, in toto, by the Supreme Court. It appears that the famous "Animal House" depiction of Dartmouth will die slowly, if it dies at all.

In Re Pack Monadnock, decided February 8, 2002, is another sad tale of the state failing to protect donated land according to the donor's wishes.1  This mountain, also known as South Pack Monadnock, from which can be seen Boston's skyscrapers and the Blue Hills in Massachusetts, has at its top Miller State Park, managed by the New Hampshire Department of Resources and Economic Development since 1892. In 1997, DRED issued a permit to the New Hampshire Department of Safety to construct a 134-foot communication tower and a small accompanying communication building on a tract of land at the summit. The land was given to the state in trust in 1891 with the restriction that the tract was "to be forever kept as a public park or pleasure ground for public use." The present action was commenced by the Conservation Law Foundation of Concord, which initiated an equitable proceeding in the superior court seeking the removal of the newly built communications tower from the donated tract. The case ended up in the probate court and the state filed a petition for instructions concerning the appropriate use of the donated tract.

The probate court analyzed the murky language of the chain of title creating the gift in trust to the state and found that, regardless of the donor's intentions as to the specific use of the land, the erection of the communications tower did not interfere with the recreational use of the land as a state park or reservation.

On appeal to the Supreme Court, the Court, in an opinion by Justice Duggan, unanimously found that the probate court's interpretation of the trust language was correct and that the true intent of the donor appeared to be that the property was to be used ultimately as a "state reservation," precisely the use it had been put to for the last 100 years. Since construction of communication towers on state reservations is not prohibited, the Court rejected the various arguments of the Conservation Law Foundation.

The moral of this story is that if you represent a donor who intends to give land to the State for a specific purpose, encourage your client to instead consider donating the land to another entity. The Legislature, as sovereign, is free to later change the rules or sell state property to private individuals, as in the infamous Pontook Dam giveaway,2  or to change the use of state-owned property.3  The proliferation of unsightly communications towers atop Mt. Kearsarge,4  Pack Monadnock and other such places (looking somewhat like birthday candles on a humongous forested birthday cake) endangers the very beauty of the land about which New Hampshire so often brags.

An uninsured motorist coverage case, Matarese v. New Hampshire Municipal Association Property-Liability Insurance Trust, Inc., decided January 11, 2002, was a rare split decision of the New Hampshire Supreme Court in which the Court overturned two recent decisions and, as a consequence, restricted the amount of uninsured motorist coverage available to injured parties.

The plaintiff was a police officer injured in an automobile collision with an uninsured motorist while on duty as a police officer. After failing, because of the application of the fireman's rule, to recover damages from the (uninsured) person who injured her, she then sought recovery from her employer's uninsured motorist coverage for its employees. Following trial, the superior court held that the fireman's rule of RSA 507:8, which had barred her action against the individual tort feasor also barred the plaintiff police officer for recovery of her damages against her employer's insurance carrier.

The majority opinion, written by Justice Broderick, first had to deal with the venerable rule of stare decisis, since two very recent cases (1993 and 1999) would have entitled the plaintiff officer to recover in this case. While recognizing "the value of stability in legal rules, we have also acknowledged that 'the doctrine of stare decisis is not one to be either rigidly applied or blindly followed. The stability of the law does not require the continuance of recognized error'....Where a decision has proven unworkable or badly reasoned...we will not hesitate to revisit it." From this springboard, the majority of the Court found that the reasoning of the earlier decisions extending uninsured motorist coverage in the earlier cases was faulty and thus justified a rare exception to the stare decisis rule. The majority's opinion quotes from Chief Justice Brock's dissent in one of the earlier cases, and the present case is a vindication of the chief justice's earlier reasoning.

After disaffirming the reasoning of its earlier cases, the majority then turned to the language of the policy in question, which has taken literally from the New Hampshire Uninsured Motorist statute that provides for the protection of persons injured "who are legally entitled to recover damages from owners or drivers of uninsured motor vehicles." RSA 264:14. Based on this language, the majority found that the "insured must be able to prove the liability of the uninsured motorist in order to recover uninsured motorist benefits under the statute and the policy." Since the fireman's rule prevents such a suit, the plaintiff could not recover under the uninsurance clause of her employer's policy.

In a rare dissenting opinion (at least in recent cases), Justice Nadeau dismissed the majority's approach to the phrase "legally entitled to recover" as being "a problem in semantics." Justice Nadeau would read the purposes of the uninsured motorist statute broadly and "would permit the plaintiff to recover uninsured motorist benefits even though she could not have recovered directly from the uninsured tort feasor in a negligence action because of a policy consideration which is not advanced by denying recovery in this case." He concluded that "preventing recovery in this case by allowing the insurer to assert the fireman's rule as a defense is inconsistent with the legitimate public policies and goals behind the uninsured motorist statute." Well, you've heard the reasoning of both sides - "You pays your money and you takes your pick."

In a case that can be noted briefly, State v. Jeleniewski, decided February 25, 2002, the Supreme Court had before it for the first time the question of whether a defendant's right to counsel attached to an extradition proceeding. Justice Dalianis, writing for a unanimous Court, held that "given the nature of extradition proceedings, the scope of inquiry at such proceedings does not involve the type of preliminary inquiry that traditionally occurs at critical stages between initial arrest and trial....Consequently, we hold that the defendant's right to counsel did not attach at the extradition hearing."

Another case of first impression was decided by the Court March 11, 2002, In Re Guardianship of Brittany S. The issue was whether, in a petition to terminate guardianship brought by the impoverished mother of a minor who had been placed in guardianship with another couple, the mother was entitled to have legal counsel appointed to represent her. A unanimous Supreme Court answered in the negative, holding that the probate court, under its discretionary authority, had not abused its discretion by denying counsel to the plaintiff, nor was there any constitutional requirement that counsel be appointed. The Court, pointing out the important difference between termination proceeding or even initial guardianship proceedings, held that "[t]he fundamental nature of a parent's liberty interest, which has long been recognized in termination of parental rights and abuse and neglect proceedings, is less substantial in a proceeding to terminate a guardianship."

In the hard-fought divorce battle that the author has followed in this column and to which he has previously referred to as "World War III," DeMauro v. DeMauro, decided March 8, 2002, the Supreme Court, in a unanimous opinion, rejected the defendant husband's appeal of an order of the superior court awarding the plaintiff wife $35,000,000 [yes, the zeros are correct] in marital assets and alimony of $20,000 per month. Although perhaps all of such monies are not collectible by the wife, it appears that a lot of it is, so it's fair to say that this ain't the bush leagues. The issue in the Supreme Court was "whether an appellate court may dismiss a civil appeal when the appellant is in contempt of a trial court order." A unanimous Supreme Court, speaking through Justice Dalianis, admitted that this was a case of first impression and held that

in limited circumstances, an appeal in a civil case may be dismissed if the appellant has failed to comply with an order of the trial court that relates directly to the issues raised by the appellant on appeal, and the issue of contempt is not being appealed. When a party has consciously and deliberately disregarded a trial court order that has direct bearing upon an issue for which that party seeks relief, we may exercise our discretion to dismiss.

The delinquent husband by now must be seriously considering a spousectomy, which the author's photo store proprietor informed him was an increasing frequent request made of him "to do a spousectomy," i.e., a request by a divorced spouse to have the ex deleted by computer from prior family pictures.

State v. Briggs, decided February 11, 2002, is an odd case in which two brothers and their father were charged and convicted of the wordy charge of "obstructing govern mental administration" under RSA 642:1 [where are simple charges such as "riot," "arson," "homicide," and "theft" when we need them?]. The contretemps that forms the basis for this case began on the night before the New Hampshire archery season for deer began [a big moment, let the author assure his readers], when a Fish and Game officer, one Officer McKenzie, "was on duty 'shining' fields by illuminating them with a hand-held light to check for deer or illegal activity." [If this doesn't sound like a boondoggle, what does?] Officer McKenzie was not in uniform, but was wearing a Fish and Game shirt with a badge embroidered on it. More curiously, he had with him a civilian friend, one Charlie, who was along for a joyride, but who strangely had an interest in the matter, since he had two deer stands in close proximity to the defendants' property! [Could it just be possible that Charlie was checking out deer locations for his morning shoot?] Officer McKenzie drove through a barway onto an enclosed field of the defendants' crops and, not unreasonably, upon seeing this happen, the defendant field owners hurried to the scene, claiming that Officer McKenzie was destroying their crops, this being fall and the crops being ready for harvest. It seems that Officer McKenzie, like Officer Krupke in West Side Story, got no respect. A hot argument ensued among the parties, during which Officer McKenzie threw a hissy fit and failed to "act with civility," and the defendants returned his vituperation in kind and called for their father to join them. He did, and soon became the third defendant with his two sons.

When Officer McKenzie tried to leave, one of the defendants indicated to him that he wasn't going to let McKenzie leave and blocked the field's barway with his truck, thus trapping the somewhat inept Officer McKenzie inside the field. A local police officer arrived in response to Officer McKenzie's frantic calls for assistance, but still the defendants refused to remove the truck, arguing that instead the local police officer should charge Officer McKenzie with trespassing on their fields. The three defendants were then arrested and charged with the crime of obstruction of governmental administration. In the superior court, the defendants were found guilty following a bench trial. On appeal, the defendants raised the issue of whether there was sufficient evidence to show that they had acted "with the requisite mental state to commit the act of obstructing government administration" as provided under RSA 642:2, II(a), which requires that a person act purposely with respect to committing the offense charged. The defendants claimed that their purpose in detaining Officer McKenzie's vehicle was to preserve proof that a crime had been committed, not to prevent him from performing his official duty of "shining" fields. The Supreme Court rejected this argument, indicating that there was sufficient evidence that the defendants' conscious purpose was to prevent Officer McKenzie from driving his truck out of the entrapment into which he had placed himself.

The defendants next raised the issue of whether Officer McKenzie was performing an official function, since he was not in uniform and he had his civilian buddy, Charlie, with him for the fun. The Supreme Court bought the outré nature of Officer McKenzie's line of duty, pointing out that he had simply been doing his duty of "shining" fields and that he had worked hard that night "shining" some 20 fields before entering the defendants' field. [One wonders whether Officer McKenzie gets comp time for his "shining" duties?]

The defendants next challenged the statute itself, saying that it was unconstitutionally overbroad because it prevented them, acting in good faith, from stopping a public servant from committing a crime, which they believe Officer McKenzie had done. But the Court impatiently rejected that argument and summed up its feelings as follows:

This incident escalated into an unnecessary confrontation because of the continuous uncivil conduct of the defendants and the intemperate response of the Fish and Game officer. Law enforcement officers are entitled to perform their duties without hostile challenges from members of the public. Officers of the law, on the other hand, are expected to act with civility even in the face of incivility. The absence of that civility, however, does not change the fact that the evidence in this case was sufficient to convict each defendant beyond a reasonable doubt.

All of which bring to the author's mind Leonard Bernstein's very funny song from West Side Story in which New York City street gang members taunt NYPD Officer Krupke with cries of "Gee, Officer Krupke, We're down on our knees. 'Cause no one wants a fella with a social disease. Gee, Officer Krupke, What are we to do! Gee, Officer Krupke, Krup you."


1. Since Pack Monadnock is a favorite hiking and picnic spot of the author, his views of this case may be colored.
2. The author's firm represented an opponent to the transfer of the dam rights and, therefore, his views may be colored.
3. Appeal of Committee To Save The Upper Androscoggin, 124 N.H. 17 (1983).
4. See the recent case of Nevins v. New Hampshire Department of Resources and Economic Development, decided March 11, 2002, in which the same Court upheld the right of DRED to erect a 180 foot communication tower on the summit of Mt. Kearsarge.



The Author

Attorney 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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