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Bar Journal - June 1, 2001

Lex Loci: A Survey of New Hampshire Supreme Court Decisions


Observers of our New Hampshire Supreme Court should not be surprised that the Court, from time to time, alters its course of direction. That is, after all, the development of the common law.1  However, it’s not often that one sees a 180 degree turn in our jurisprudence in a relatively short period of time. Simplex Technologies, Inc. v. Town of Newington, decided January 29, 2001, is one of those landmark cases. The case didn’t seem to be that momentous when it came up to the Supreme Court as it was a run-of-the-mill appeal from a municipal board of adjustment which had denied the plaintiff’s request for a variance which the superior court on appeal had upheld. However, a seismic shock occurred when the case reached the Supreme Court. The Court reversed the denial of the variance and remanded the case to the trial court for a rehearing in light of its newly promulgated jurisprudential principal regarding zoning variances.

Our new Supreme Court was unanimous in this opinion. Essentially adopting Justice Horton’s dissent in an earlier case2 , [Justice Horton was part of the majority in the present appeal]. The Court explicitly weighed the scales of justice between the interests of landowners whose rights are protected under the New Hampshire Constitutional provision respecting the taking of property without just compensation and the right of the police power wielded by the municipalities to provide for regulation of land use the rights of property owners prevailed. This was a decision that our former Chief Justice William Grimes would have applauded.

The facts were straightforward. The Newington Board of Adjustment, in a variance proceeding by the landowner, had found that the landowner had not shown an unnecessary hardship as required by RSA 674:33, I(b), as the Supreme Court had interpreted that statute recently in the past. However, the Court, speaking through Justice Nadeau, rewrote our variance law in this opinion by holding that "[o]ur current restrictive approach is inconsistent with our earlier articulations of unnecessary hardship," citing for its earlier articulations decisions in the 1940’s! Conceding that there is "necessarily…a tension between zoning ordinances and property rights….in this balancing process, constitutional property rights must be respected and protected from unreasonable zoning restrictions," citing to Pt. I, Arts. 2 and 12 of the New Hampshire Constitution. Surprisingly, the Court did no analysis of the legislative history of the statute, RSA 674:33, I(b) which imposes the unnecessary hardship requirement.

The Court then went on to substantially lower the standard applied to variance seekers, speaking very broadly:

we depart today from the restrictive approach that has defined unnecessary hardship and adopt an approach more considerate of the constitutional right to enjoy property. Henceforth, applicants for a variance may establish unnecessary hardship by proof that: (1) a zoning restriction as applied to their property interferes with their reasonable use of the property, considering the unique setting of the property in its environment; (2) no fair and substantial relationship exists between the general purposes of the zoning ordinance and the specific restriction on the property; and (3) the variance would not injure the public or private rights of others.

The author believes that this change in our law represents a major turning point for the Court and that we will see the development of a line of cases which will, in substance, restrict the zoning power of our municipalities in favor of the property ownership rights of the landowner. This is a Court which would have decided the landmark new Hampshire police power case of Sibson v. State3 , [where Justice Grimes dissented] in a contrary manner.4 

We’ve all heard of the gang that couldn’t shoot straight. State v. McCabe, decided January 19, 2001, is about a lone gunman who couldn’t even shoot himself in the chest although he tried his best to do so. With a .45 caliber handgun the gunman sought to kill himself by shooting himself in the chest but he missed entirely, sending the bullet completely through the couch on which the defendant was lying, through the carpet below the couch, through the floor itself, and into the basement of the building where the bullet nicked a ceiling beam and, still traveling at high velocity, hit the basement wall.

No problem, said the defendant. However, it appeared that this defendant gunman’s actions took place while a mother and her two children were sleeping in adjoining rooms less than twenty feet away from him. The defendant was intoxicated. He was charged under RSA 626:2, II(c) with reckless conduct by placing others in his immediate area in danger of serious bodily injury. The defendant argued that he couldn’t be guilty of reckless conduct because he did not point the handgun in the direction of any of the occupants of the apartment, but in fact shot at himself. The Supreme Court affirmed the trial court jury’s finding that the defendant was guilty of felony reckless conduct, finding that there was ample evidence for the jury to have found the defendant to be reckless. The author is tempted to observe that the defendant "shot himself in the foot," but that hardly seems fair since he couldn’t even hit his chest.

A recent case, Town of Nelson v. New Hampshire Department of Transportation, decided March 1, 2001, addresses the issue of "unconstitutional unfunded mandate[s]," added to our New Hampshire Constitution in 1984 as Part I, Article 28-a of the New Hampshire Constitution which prohibits the legislature from imposing on municipalities or counties "programs or responsibilities" which require additional local expenditures "unless such programs or responsibilities are fully funded by the state or unless such programs or responsibilities are approved for funding by a vote of the local legislative body of the political subdivision." At issue in the instant case was whether State’s downward reclassification of two segments of "Old Route 9" from a Class I highway to a Class V highway violated this constitutional provision because the town would now have increased expenditures since it would be responsible for providing winter and summer maintenance of the highway as a Class V highway for which local municipality have responsibility.

The controversial constitutional amendment adopted in 1984 was then heralded by the conservatives as a piece of landmark constitutional revision which would protect the local municipalities from State encroachment. However, despite its vaunted "in terrorem" effect, there have been few Supreme Court cases interpreting this provision in the fifteen years since its adoption. In the present case, the New Hampshire Supreme Court, speaking unanimously through Chief Justice Brock, held as follows:

In this case, the State has not created any new program nor required that the town accept a new responsibility. It has simply decided that a road which now serves only local traffic will no longer be part of the State-maintained highway system. That the contested segments now serve only local traffic may be a new development; the town’s responsibility for maintaining roads that serve only local traffic is not new.

It’s probably an understatement to say that the adoption of Article 28-a of our Constitution has had less an effect on state versus municipal relationships as was expected by its authors.

In a case that can be noted briefly, Carter v. LaChance, decided February 2, 2001, the Supreme Court, in a unanimous decision, held that the mandatory damage provision provided tenants under RSA 358-A:10, where a landlord has been found to violate the landlord tenant law is indeed mandatory. The Supreme Court reversed a district court which had found a violation by the landlord but had refused to impose the minimum damages provided in RSA 358-A:10. The Supreme Court held that even though the plaintiff tenant had not pled or proved such damages "[t]he statutory minimum award of $1,000 is not based upon actual damages suffered, but is a penalty imposed upon landlords who violate RSA 540-A:3."

The extent of the right to cross-examine adverse witnesses in criminal cases was before the Court in State v. Etienne, decided March 7, 2001. At issue was whether defense counsel could question the purported eye witness concerning a civil lawsuit the eye witness had brought after the incident involving the defendant had occurred. Defense counsel claimed that the adverse witness had told a different story concerning the defendant’s conduct in the civil law suit. The trial court forbade defense counsel’s cross-examination on this issue. Since the Supreme Court held earlier that a criminal defendant has a right to confront witnesses, including the right to cross-examine regarding motive and bias arising from contemporaneous civil actions in which the witness has a financial interest, the Supreme Court concluded that the superior court erred by excluding the evidence. Furthermore, the Court rejected the State’s argument that the error was harmless holding "that the defendant should have been able to inquire into bias that might exist from the hope of financial gain in a pending civil lawsuit, even though he was otherwise allowed to discredit the witness for confusion or intoxication at the time of the relevant events." The moral of this story for trial judges is, give the defendant in a criminal action a wide scope of cross-examination.

The Supreme Court had before it in McGraw v. Exeter Region Cooperative School District, decided January 19, 2001, and Opinion of the Justices (Municipal Bonds), decided the same day, the issue whether the 1999 amendment to RSA 33:8, which provides for a supermajority vote of three-fifths of the votes cast where a town has adopted the official ballot voting procedure. The question was whether this amendment, as it applied to the issuance of bonds, constituted a violation of Part I, Article 39 or the equal protection provision of Part I, Article 12 of the New Hampshire Constitution. In the two opinions, the unanimous Supreme Court, speaking through Chief Justice Brock, first held that "a change in supermajority voting requirement for official ballot municipalities and districts under the 1999 amendment did not alter the form of government in any ‘particular city, town, school district, or village district.’" Thus, the Court held that it was not in violation of Article I, Part 39 of the State Constitution.

Next addressing whether or not the 1999 amendment violated equal protection provisions of Part I, Article 12 of the New Hampshire Constitution, the Court had before it the argument of citizens of the town "that the legislature, by lowering the threshold required to pass bond issues, has disadvantaged dissenting voters and devalued their votes, thereby impinging upon their fundamental right to vote and freedom of speech." This got the Court into a comparison of traditional town meeting government where all issues are decided up or down by vote of the attending citizens at a duly called meeting and which requires a 2/3 (66.6%) vote of the voters in bond issues, with the statutory provision adopted in 1995 which provides for towns to choose to be "official ballot" towns where a citizen can vote on a matter over a period of days without ever once attending the town meeting and hearing the discussion involving the article. By the 1999 amendment to the official ballot law, only 3/5 (60%) of voters in ballot towns are required to approve bond articles. The Court found no unequal protection violation of this provision, the Court having "previously upheld different treatment of voters based upon their residence in separate, geographic communities operating under different forms of government."

The knotty area of the law regarding the termination of parental rights was before the Court in In Re Shannon M., decided February 7, 2001. The Supreme Court had on appeal the order of the lower probate court denying the petition of the mother of a daughter to terminate the father’s parental rights, over the father’s vehement opposition. This was a case of a child born in wedlock followed by divorce in which the child’s mother was committed the care, custody and education of her daughter, subject to reasonable visitation rights of the respondent father.

The facts of the case are lamentable. After the divorce which became final in 1994, the former husband continued to psychologically and physically abuse his former wife, including both choking her and raping her. The former husband’s conduct resulted in the issuance of several restraining orders against him. The former husband used "vile, demeaning and humiliating language in his communications" with his former spouse. The evidence showed that the former husband led, to put it in the best perspective for him, a checkered career and was incarcerated on more than one occasion for driving while intoxicated.

The father’s contact with his daughter was quite limited during this four or five year period, as the father essentially ignored his daughter while fighting with his former spouse. He did send his daughter an occasional card and called occasionally, but only to talk to his former spouse. He never paid child support as ordered by the superior court in the divorce decree. The father even apparently offered to his former spouse to give up his parental rights in return for money and the cancellation of his unpaid back child support.

The mother finally filed a petition to terminate her former husband’s parental rights based on abandonment, pursuant to RSA 170-C:5, I. The probate court, in a carefully reasoned opinion, found that, although the respondent father’s conduct was "regrettable and unacceptable," it could not find beyond a reasonable doubt that the father had not attempted to establish a relationship with his daughter and exercise his visitation rights in the face of a course of conduct by his former spouse which prevented him from visiting with his daughter or establishing a relationship.

Citing to the standard enunciated in In Re Sheena B.5 , the Supreme Court held that the case should be remanded to the probate court for a rehearing, specifically requiring the probate court to determine "whether the respondent’s behavior manifested an intent to abandon Shannon under the language of Sheena B., which holds that if a father

engaged in voluntary conduct that he knew, or should have known, would necessarily and inexorably lead to the loss of opportunity to see his child, then one could find that this conduct—and hence the resulting lack of contact with the child—manifested an intent on the part of the respondent to abandon the child.

This a very significant victory for children’s rights. Too often have courts deferred to the parental rights of irresponsible parents, leaving children at the mercy of a parent who refuses to meet her or his basic obligations of love and affection to her or his child.

Appeal of Timothy Morrill, decided January 19, 2001, is a heavenly case about a serious matter, the right of a teacher to teach in New Hampshire public schools. [Sometimes the author thinks that the Court creates cases such as this to lure him in]. The teacher petitioner sought Supreme Court review of the revocation of his teaching certificate by the State Board of Education for grounds of lack of good moral character. It was uncontested that the petitioner had engaged in some serious monkey shines, but were they serious enough to form grounds for revocation of his teaching certificate?

The petitioner, while a teacher at the Pelham public high school, became a minister through a bible school correspondence course. The petitioner subsequently formed a church and named it "Fellowship In His [Christ’s or the petitioner’s?] Love," presumably based on evangelical principals [see Ambrose Bierce’s definition of an evangelist as "A bearer of good tidings, particularly…such as to assure us of our own salvation and the damnation of our neighbors."]6  In any event, the petitioner made himself pastor of the church and the church was located in his own home in Sandown, New Hampshire.

Subsequently, the petitioner was charged by the Sandown Police Department for behaving inappropriately with a thirteen year old girl [the victim] who attended his church services. He was found guilty in the local court and given a suspended sentence. Two years later, Pelham school officials received notice of the earlier shenanigans of the petitioner and began an investigation into his activities which eventually came before the State Board of Education. The Board conducted four days of hearings and concluded that the evidence showed that the petitioner had a history which showed a pattern of serious, inappropriate conduct toward adolescent females, utilizing his positions of authority to overpower them. The Board based its findings on conduct which included the following: when the victim began attending church services in the petitioner’s home, the petitioner

initiated the practice that the victim had to give him ‘holy kisses’ on the mouth and ‘holy hugs’ when she entered or left the house, and at other times, including during her tutoring. [The petitioner] engaged in other inappropriate conduct with the victim. For example, while on a church retreat to Rhode Island, [the petitioner] made her feel uncomfortable by putting his arm around her, placing his hand on her leg, and holding her hand.

Holy mackerel!7  It’s hard to believe that someone didn’t make up the facts in this case.

A year later, the petitioner and his wife volunteered to tutor the victim at their home because she was having trouble learning in school. During the tutoring, the petitioner continued to insist that the victim give him the "holy hugs" and "holy kisses" on the mouth into which practice he had initiated her into during church services. The victim complained to the petitioner’s wife that the petitioner was making her uncomfortable and complained to her mother to the same effect. The victim’s mother asked that the petitioner no longer give "holy kisses" to the victim but he failed to desist and continued to give the victim both "holy hugs" and "holy kisses." Perhaps the petitioner was a Holy Joe8  or a Holy Roller9 ?

The Supreme Court unanimously upheld the action of the State Board of Education and ruled [with a straight face] that although the petitioner might not exhibit "classic pedophilia," the defendant’s

history…suggests a heightened risk for less than ideal judgment should an extended relationship be allowed to develop from within the confines of his personal domain. Conduct leading to an assault against a minor female is a serious matter, especially in this context when [the petitioner] was told to stop kissing her because it made her uncomfortable. We agree with the hearing officer that this conduct demonstrates ‘serious disregard for children under his supervision and care.’

Would it be fair to say that the petitioner was a holy terror10  and caught holy hell11  in this matter?


  1. O.W. Holmes, The Common Law, (1923).
  2. Grey Rocks Land Trust v. Town of Hebron, 136 N.H. 239 (1992).
  3. 115 N.H. 124 (1975).
  4. See the front page headline of the January 31, 2001 edition of the Portsmouth Herald which reported the case in the following headlines: COURT EASES VARIANCE RULE—Decision Recognizes Rights of Owners to Enjoy Their Property.
  5. 139 N.H. 181.
  6. Ambrose Bierce, The Devil’s Dictionary, p. 44 (1991).
  7. Originally, "Holy cats", with variations such as "Holy cow" or "Holy gee" or "Holy Moses" or "Holy schmutz" or "Holy smoke" or Holy sox or "Holy s—" beginning variously from 1900 on. See Chapman, American Slang, p. 261, (2nd Ed. 1998).
  8. Chapman, American Slang, p. 261, (2nd Ed. 1998).
  9. Webster’s New World Dictionary, Sec. College Ed. (1982), p. 670.
  10. Chapman, American Slang, p. 261 (2nd Ed. 1998).
  11. Id.



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