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Bar Journal - Spring 2004

Lex Loci: A Survey of New Hampshire Supreme Court Decisions


A most welcome announcement from the Supreme Court came recently when the Court announced that effective January 1, 2004, it would implement an expanded appellate review process and "begin accepting all direct appeals from the state's trial courts for the first time since 1979." This brings the Court back full circle to its prior practice and gives the citizens of the state an absolute right to have at least one review of a fact finder's decision involving any matter in which the citizen is involved. The 1979 change was a result of the Court's then heavy backload of work, but it was widely criticized and was perhaps constitutionally defective. In any event, the reversion to the old rule will cause a strain on the Court's already tight financial situation. Under the present system, the Court accepts about 40% of all appeals, but under the new system, the Court "will accept virtually all cases from the district, probate and superior courts, and review them following full briefing and submission of a transcript of the lower court proceedings." The Court showed courage to reverse direction when circumstances demonstrated that a wrong direction was first taken.

Also effective January 1, 2004 is the new Supreme Court Attorney Discipline system with the laudable, dual purposes of improving "the effort to protect client's rights and guaranteeing lawyers a full and fair evaluation of complaints against them." See the press release of the Professional Conduct Committee at <>. The Court is seeking participation from lawyers and members of the public since the new procedures create a three tier system of a complaint screening committee (9 members), a hearings committee (20-30 members with 15 alternates), and a professional conduct committee (12 members). Membership of these committees will be approximately two-thirds lawyers and one-third members of the public. The new procedure was designed to reduce the burden on non-paid volunteer members of the old Professional Conduct Committee by streamlining the hearing process and beefing up the staff of the Committee.1 Those attorneys who were troubled by the procedures and protections accorded to attorneys under the old procedure will have to wait to see how the new procedure works in practice. Stay tuned.

In New Hampshire, we haven't had many freedom of the press cases but Hippopress, LLC v. SMG, opinion issued December 8, 2003, is one of that rare bird. The issue arose whether the plaintiff, publishers of a newspaper, could distribute its newspaper in the new Verizon Arena in Manchester. The defendant, the City of Manchester, owned the arena and the City and the defendant SMG had entered into an agreement which allowed SMG to manage and operate the arena, including contracts for the use of advertising space in and about the arena. Under this provision, SMG had entered into contract with the defendant Union Leader which provided that the Union Leader would have the exclusive right to sell and distribute newspapers within the arena. Hippopress requested permission to distribute newspapers inside the arena but was refused. It brought an action against the defendants and was successful in the superior court where the trial judge ruled that SMG had violated Hippopress' free press rights under both Part I, Article 22 of the New Hampshire Constitution and of the First Amendment of the United States Constitution by not allowing the plaintiff to distribute its newspaper in the arena.

A unanimous Supreme Court, speaking through Justice Broderick, reversed, holding "the arena is a nonpublic forum" as such, "[r]estrictions on speech in nonpublic fora are subject to a far more limited review and are constitutional if they are reasonable and not an effort to suppress expression based on the speaker's viewpoint." The Court held that the contract between SMG and the Union Leader was a reasonable restriction.

In Re Grand Jury Subpoena For Medical Records of Payne, opinion issued January 6, 2004, gave the Supreme Court an opportunity to expound upon the extent of the physician-patient privilege in New Hampshire, in the con text of a ruling of the superior court allowing the State access to the defendant's privileged medical records for the purposes of establishing whether serious bodily injury had occurred to prove a charge of the felony of aggravated driving while intoxicated. Interestingly, the privilege was not recognized in common law but was established in New Hampshire only as recently as 1969. Although the Court held that the privilege was not absolute and that a person's medical records were disclosable under certain circumstances, the Court created a very high threshold to such disclosure:

When construing the physician-patient privilege, we do so strictly,....and in recognition that the legislature did not intend for the privilege to compromise the judicial function of ensuring 'the just resolution by giving [one party] the right to deprive [another] of relevant information....The legislature designed the privilege 'not to exclude relevant evidence, but simply to facilitate activities which require confidence'....Indeed, much of the information it shields may well be 'of little real consequence to society'....Confidential medical information pertinent to criminal investigation and prosecution, however, may be of significant consequence to society in some circumstances, and we are reluctant to conclude that the legislature intended the privilege to operate as a cloak for criminal wrongdoing. The proper administration of justice requires that every reasonable effort be made to search for the truth....Our case law supports disclosure of privileged and relevant medical records when: (1) a statute specifically authorizes disclosure...(superseded on other grounds as recognized by...; (2) a sufficiently compelling countervailing consideration is identified...; or (3) disclosure is essential under the specific circumstances of the case....

The politically charged, festering sore that is the Claremont School Decisions continues its toxic effect on our governmental, three branch structure. Asked to give an advisory opinion on the validity of RSA 490:1 enacted in 2001 which automatically makes the senior most justice of the Court Chief Justice upon the retirement of the sitting Chief Justice, Opinion of The Justices (Appointment of Chief Justice of The Supreme Court), opinion issued December 19, 2003, the Court sought to sidestep the issue: "we respectfully request to be excused from answering the questions posed," chiefly for the reason that the request was about an existing statute: "with respect to issuing advisory opinions about existing statutes...our constitutional authority is especially limited. We have no authority under pt. II, art. 74 to issue advisory opinions to either branch of the legislature regarding existing legislation." The opinion is also unique in that Chief Justice Brock went on to write separately to explain why he was "not authorized to appoint replacement Justices in this matter" because the advisory opinion clause of the New Hampshire Constitution referred cases to "the justices of the supreme court" and not the Supreme Court as a body. Since replacement justices never become justices of the Supreme Court under RSA 490:3 Brock wrote, such replacement justices would have no authority under the Constitutional provision to issue advisory opinions. Thus, the Court artfully attempted to dodge this politically charged minefield, but, as sure as God made little green apples, the matter was not to rest there. The Governor and Council would not accept the Court's answer, accusing the Court of "abdicating" its responsibilities. In a stroke of creative genius, the Governor and Council filed a petition "for exercise of original jurisdiction" in the Supreme Court, serving the petition on the Attorney General, the President of the Senate, the Speaker of the House, and Justice John T. Broderick. The petition sought the same relief sought in the advisory opinion in the form of a declaratory judgment request and the Court bowed to the inevitable by accepting the petition and naming replacement justices for all of the sitting Supreme Court Justices to decide the matter. As this column went to press, the Court had appointed retired Supreme Court Justice William Johnson and four retired superior court judges to hear the matter.

In Re Guardianship of Henderson, opinion issued December 19, 2003, is a short but important decision reminding attorneys of the distinction between the role of legal counsel for a proposed ward in a guardianship proceeding and a guardian ad litem for the ward in such circumstances. In this case, the probate court had appointed a lawyer for the 31 year old son of a mother who sought to be appointed guardian over him. The person appointed as legal counsel for the proposed ward filed a seven page report supporting the guardianship proceedings, even though the son opposed the petition and raised with the lawyer defenses to the petition. The Supreme Court reversed, finding that counsel had "blurred the boundaries of the two roles," on the one hand that of legal counsel and on the other, that of guardian ad litem. The individual involved had been appointed as legal counsel to the ward and not as guardian ad litem [which the probate court could have done, but did not do so here, RSA 464-A:41, I]. A guardian ad litem must act in the best interest of a proposed ward, but the ward's "legal counsel must, as far as reasonably possible, carry out the client's decisions."

An unusual attorney's disciplinary case, Werme's Case, opinion issued December 19, 2003, involved the issue whether a lawyer may counsel her client to violate a statute prohibiting the release of confidential information about a child abuse case in which the client was personally involved. The attorney's defense was that the statute was unconstitutional as a prior restraint on free speech, violating both the New Hampshire and United States constitutions. However, the action of the lawyer violated the New Hampshire Professional Conduct Rule 1.2(d) which prohibits a lawyer from counseling a client to engage in criminal conduct. That rule has a good faith exception but the Supreme Court ruled it did not apply here. The lawyer argued that she was entitled to counsel a client to violate "a facially unconstitutional statute," but the Supreme Court disagreed, and upheld the Professional Conduct Committee reprimand of the attorney. The Court pointed out that the lawyer's argument "empowered her to self-determine the validity of the statute," and dryly observed that there were at least two routes through court actions that the attorney could have taken to raise the issue of the unconstitutionality of the records disclosure provision, neither of which the attorney had availed herself. Therefore, the attorney's "decision to circumvent the judicial process was a failure to make a 'good faith' effort" to determine the validity of the law.

The pain producing action of tax assessors of particular towns with waterfront property which move to increase the assessment all waterfront owners by an identical valuation increase was before the Court in Porter v. Town of Sanbornton, opinion issued December 22, 2003. The facts were peculiar in that the town of Sanbornton had moved to increase by 14% the assessment of all waterfront properties in the town bordering on Lake Winnisquam. After the howls from the aggrieved taxpayers were heard, the town rescinded the valuation increase until it could look further into the tax assessor's questioned methodology, despite the argument of the assessor that the properties were, in fact, undervalued by 20%. After further study, the board came back and increased the valuations by 18%!! Upon appeal to the superior court, the lower court rescinded the town's reassessment, finding that the town had both (1) acted in an arbitrary fashion and (2) acted in bad faith. A unanimous Supreme Court, speaking through Justice Dalianis, reversed the trial court. On the issue of bad faith where the trial court had found that the 18% reassessment was in retaliation for the taxpayers' challenge of the initial 14% increase, the Court held that

We presume that boards act in good faith and in conformity with the requirements of law....Bad faith involves more than mere bad judgment or negligence....Bad faith implies conscious wrongdoing...To carry the heavy burden of proving bad faith in this context, one must demonstrate intent to injure or intent to disregard duties.

The Court found that the taxpayers had not met this heavy burden as set forth by the Court. On the issue whether the board had acted in an arbitrary fashion, the Court first held defined arbitrary action as "(1) action arising from the unrestrained exercise of the will, caprice, or personal preference; or (2) based upon random or convenient selection or choice, rather than reason or nature." The Court found that although the board had perhaps made a mistake in methodology used to come up with the new assessments, it was "clear that the board gave due consideration to both its initial decision to increase the assessments by 14% and its final decision to increase the assessments by 18%."

The reaction to State v. Boulais, opinion issued November 7, 2003, may depend on whether you are a woman or a man. Here, the defendant was charged with disorderly conduct under RSA 644:2, II(b). The defendant was a tanning salon employee who, in the most colorful count against him, was alleged to have, in a public place, and in the presence of others, made offensive remarks to a customer of the tanning salon who chanced upon him at a restaurant and asked him what "he was up to." The defendant responded by making an "aggrandizing, crude self-description" of the length and heft of his love muscle: "10 1/2 inches, fully extended." The woman customer's reaction was that she was humiliated and embarrassed by the defendant's comments and "that she wanted to punch him in the face but she chose not to because she is 'a little bit too much of a lady.'" The Supreme Court held that to find the defendant guilty of having violated the disorderly conduct statute by his language required the offensive words to be words "likely to provoke a violent reaction on the part of an ordinary person." RSA 644:2, II(b). Surprisingly, the Court found that the remark, although offensive, would not be likely to provoke a violent reaction on the part of an ordinary person. The Court's laudable goal in preventing the disorderly conduct statute to become a vague dragnet for ridding the streets of undesirables2 is laudable but perhaps too tightly construed in the instant case.

Turning finally to a decision that the author feels compelled to comment upon, despite his every intention to be above such prurient allurements. You know it's a good case when both the majority and minority opinions cite former U.S. Supreme Court Justice Potter Stewart's famous observation that although he couldn't define pornography, "I know it when I see it." In The Matter of Blanchflower,3 opinion issued November 7, 2003, the question was whether under New Hampshire's fault-based divorce laws, a cause of action for divorce upon the grounds of adultery could be based upon a spouse's (here the wife's) homosexual liaison with a person of the same gender. The Supreme Court split three to two on the issue and whether you agree with the majority or with the minority will probably depend on your outlook on life. The majority, speaking through Justice Nadeau, hued strictly to the 1961 definition of adultery found in Webster's Third New International Dictionary of that year. That definition of adultery turned upon the term "sexual intercourse" which Webster's dictionary defined as "sexual connection esp. between humans: COITUS, COPULATION."4 As the dissent delicately pointed out, the opening phrase did require sexual intercourse between persons of the same gender so the majority then proceeded to turn to Webster's again for a definition of coitus which, eureka!, provided the key definition: coitus was defined to require the "insertion of the penis in the vagina"!! Since this definition requires persons of different genders to commit the act of sexual intercourse [ignoring for a moment an artificial penis, a dildo, used between persons of the same sex], the majority arrived at the conclusion that adultery meant what Webster's said it meant in 1961, sexual intercourse between a heterosexual couple requiring the insertion of a penis into a vagina.

The minority, in an unusual, jointly authored opinion by Chief Justice Brock and Justice Broderick, chastised the majority for its "narrow construction" of the word "adultery" which contravened the legislature's intended purpose in sanctioning fault-based divorce for the protection of the injured spouse. The minority pointed out that several other states which had considered the issue had defined the word "adultery" to include "intimate extramarital homosexual sexual activity by a spouse" and the dissent went on to point out that

[f]rom the perspective of the injured spouse, the very party fault-based divorce law is designed to protect, '[a]n extramarital just as devastating...irrespective of the specific sexual act performed by the promiscuous spouse or the sex of the new paramour'....Indeed, to some, a homosexual betrayal may be more devastating.

In sum, the dissenters would take a broad look at the word, updating it to the realities of the modern world:5

We believe that the majority's interpretation of the word 'adultery' is overly narrow in scope. It is improbable that our legislature intended to require an innocent spouse in a divorce action to prove the specific intimate sexual acts in which the guilty spouse engaged. There are usually no eyewitnesses to adultery....It ordinarily must be proved by circumstantial evidence....Nor does it seem reasonable that the legislature intended to allow a guilty spouse to defend against an adultery charge by arguing that, while he or she engaged in intimate sexual activity with another, the relationship was not adulterous because it did not involve coitus. It is hard to comprehend how the legislature could have intended to exonerate a sexually unfaithful or even promiscuous spouse who engaged in all manner of sexual intimacy, with members of the opposite sex, except sexual intercourse, from a charge of adultery. Sexual infidelity should not be so narrowly proscribed.

Ah, where is Bill Clinton when we need him. He did not have sex with "that woman" since, of course, he did not perform "sexual intercourse" with her, although what allegedly occurred would certainly seem to have been "adulterous" to many citizens.


  1. 14 N.H. Bar News 1, January 23, 2004.
  2. Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).
  3. The author's firm represented a party to the action and, therefore, the author's views may be colored.
  4. Compare the definition in the 2002 printed edition of Webster's Third New International Dictionary which has a second definition of sexual intercourse "2: intercourse involving genital contact between individuals other than penetration of the vagina by the penis."
  5. Id.


Attorney Charles A. DeGrandpre


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