New Hampshire Bar Association
About the Bar
For Members
For the Public
Legal Links
Online Store
Vendor Directory
NH Bar Foundation
Judicial Branch

A confidential, independent resource for NH lawyers, judges and law students.

NH Bar's Litigation Guidelines
New Hampshire Bar Association
Lawyer Referral Service Law Related Education NHBA CLE NHBA Insurance Agency
Member Login
Member Portal

Bar Journal - Summer 2005

LEX LOCI: A Survey of New Hampshire Supreme Court Decisions


Baines v. New Hampshire Senate President
, opinion issued April 20, 2005, is a brilliantly crafted opinion by Justice Nadeau for a unanimous Court that skillfully navigates the shoals of constitutional interpretation surrounding the enactment of Laws 2004, chapter 200, which increased the uniform rate at which statewide property educational tax would be imposed.  The politically nuanced opinion deftly maneuvered its way through some major constitutional questions.  In summary, the Court held that certain issues raised by the petitioners [the mayors of certain New Hampshire cities] were “justiciable issues” and, thus, subject to Supreme Court review, but others, concerning the legislators' alleged violation of statutes relating to legislative procedures were “nonjusticiable” because they raised purely political questions.

Front and foremost was the issue whether this bill, amended by a conference committee of the House and Senate, changed the purpose of a Senate bill which did not originally raise taxes to a bill that increased the statewide educational property tax, and thus was a “money bill” which must originate in the House as required by the origination clause of the New Hampshire Constitution, pt. II, art. 18.  The Court first brushed aside whether or not the issue of justiciability had been preserved for review stating that “[a]s with other kinds of jurisdictional questions, such as subject matter jurisdiction or sovereign immunity, we may address justiciability even if this issue is raised for the first time on appeal.”

On the issue of whether or not the bill violated the origination clause of our Constitution, the Court carefully reviewed the history of both the New Hampshire and federal Constitution provisions and held that the bill at issue was indeed a money bill, but concluded that even though it began and was “designated a Senate bill” it originated in the House.  The Court ruled that New Hampshire does not follow the “enrolled bill doctrine.”  This doctrine holds that the enrolled bill is conclusive proof of proper legislative action, but the Court stated that New Hampshire courts instead would use “legislative journals…to determine whether the presumed validity of a bill is refuted…. We will not find legislation invalid, however, unless the journals clearly indicate that constitutional procedures were not followed.”  Using that standard, the Court found that the bill had become a money bill in the conference committee to which the House had appointed a majority of the members and even more significantly, “the journals reveal that ‘the bill was first approved in its final form by the House’” before being passed by the Senate.

Moving on to the issue of whether or not the legislature had violated certain statutes relating to its own procedures, the Court held that such questions were non-justiciable questions and the Court refused to consider them.

Finally, responding to the allegations that the bill had been substantially changed from its legislative intent in the enrolled bills committee, the Court dismissed these allegations either for the reason that they embody technical changes or that the Senate Journals were silent to the legislation’s intent and, thus, “we must indulge the opposite presumption.  Unless the journals clearly indicate that the legislature failed to follow constitutionally mandated procedures, we must presume that it adhered to them.”

Whether or not you agree with the Court’s conclusions, observers should applaud the decision’s masterly craftsmanship regarding the hot button issues presented to it.

For some unexplained reason, the author cannot pass up a probate case, however boring or arcane its principle.  King v. Onthank, Jr., opinion issued March 18, 2005, was a case that probate attorneys (and, more significantly, probate paralegals) deal with every day: the valuation date for distribution in an estate.  Is it the date of death or is it the date of distribution?  In this case, the Supreme Court, relying on the principle that the settlor’s intent is determinative of the issue, found that the equal distribution directed between the two children by the testator/settler pointed to valuation as of the distribution date of the trust assets, rather than the date of death.  The case involved a frequently encountered situation where the residuary clause provides for a substantially equal distribution amongst children, but provided that a particular piece of real estate be included in one particular child’s share, “if possible.”  The Court construed that language as not creating a specific device which would give it a higher status, instead describing the “if possible” language as precatory (expressing a desire not a mandate) and it concluded that the language of the trust taken as a whole indicated that an equitable date for valuation was the date of distribution of the trust assets because it more appropriately caused a more equal distribution to the children.

Pope v. Lee, revised opinion issued June 3, 2005, is a very interesting lease option renewal case.  The lower court, confronted by a somewhat confused series of lease renewals and changes, had found that the lease in question did not confer upon the lessee the perpetual right to renew the lease, even though the lessee was given “the option to renew this lease in 1999 automatically thereafter….”  The Supreme Court held that the issue we must resolve is whether the trial court, having determined that the lease did not create a right to perpetual renewals, erred in concluding that the defendant was a tenant at will.  The defendant argues that the trial court erred because although the 1998 lease agreement did not create a right to perpetual renewals, it nevertheless, by its plain language, entitled her to renewals in 1999 and thereafter without the need for additional writing.  We agree.

In our contemporary society with its attendant growth in population density, it is often thought that in a suit to partition, the only way to go is to sell the property and divide the proceeds between the co-tenants.  However, DeLucca v. DeLucca, opinion issued April 8, 2005, makes clear that the Court must make a determination “whether a physical division can be made without great prejudice or inconvenience…before a sale of the whole can be ordered.”  Furthermore, where the property in question consisted of two parcels, it was not enough for the trial court to determine that the parcels could not be divided between the co-tenants, one to each, because of the disproportionate value of the properties.  Rather, the Supreme Court ruled that the trial court must first make a determination whether each parcel could be separately divided between the parties to achieve an equitable division of the property.

The author is constantly surprised by the growth of legal acronyms of which he was not heretofore aware.  In Woodview Development Corporation v. Town of Pelham, opinion issued April 11, 2005, the issue before the Court was the imposition of the LUCT (land use change tax) when current use property is subdivided.  The question was whether the town was permitted to include the enhanced value for betterments that would serve the subdivided property in computing the LUCT and the Supreme Court agreed, rejecting the landowner’s argument as follows: “At oral argument, the petitioner posited that the LUCT should be levied upon the value of the land plus any enhancement attributable to the betterments less the landowner’s or developer’s costs for installing the betterments.  This is not the statutory scheme, however.”  (Emphasis added).

A promissory estoppel case, Jackson v. Morse, opinion issued April 1, 2005, brought to the author unsettling reminiscences of his first year contracts class, which, in olden times, consisted of a one year course, five days a week, including a Saturday morning class each week.  (Those were the days when, as a first year law student, you were told to look to the person to the right of you and to the person to the left of you and to realize that one of the three of you would no longer be there at the end of the three-year grind to a law degree.)  To get back to the point at issue, the contract sought to be enforced was a simple contract in which the defendant promised the plaintiffs to manage their money in a way so that it would not fall below a certain value and if it did, he would make up the difference.  Of course, the investment did just that by dropping substantially below that level and the plaintiffs brought a promissory estoppel claim against the defendant.  The disputed issue was the measure of damage.  The plaintiffs argued that the measure of damage was the expectation damage, i.e., the amount between the floor and the ultimate value of the investments.  However, the defendant argued that the there was an alternative measure of damages in such cases which would result in a lesser award, that is, reliance damages, i.e., the loss would be limited to the expenses incurred in reasonable reliance on the promise.

The Supreme Court chose a middle course, finding that when a promise was a clear and definite promise as the one here, “the presumptive measure of damages in [such a] case is expectation damages,” but the trial court may submit alternative damages to the jury if the matter turns on the “resolution of a dispute of fact.”

Sherman v. Graciano, opinion issued April 11, 2005
1, was a question submitted by agreement of the parties to binding arbitration.  The dispute involved a buy and sell agreement between shareholders in a medical professional association and the arbitrator found that the contract provision was ambiguous and construed it against the plaintiff.  The plaintiff moved in the superior court to modify the arbitrator’s decision claiming the provision was not ambiguous, but the trial court disagreed and the plaintiff appealed.

The Supreme Court reversed, stating that an arbitration agreement may be corrected or modified upon the showing that the arbitrator committed plain mistake “when it is determined that an arbitrator misapplied the law to the facts.”  The Supreme Court found that this indeed was the case in the situation before it because it found that the agreement was not ambiguous.  The Court found that the agreement did, in face, provide for a method of distribution to a departing partner that was clear and enforceable and not ambiguous, although its effect was disputed by the parties.  The moral to the story here is that even binding arbitration decisions can be overturned in unusual circumstances.

In a further spin-off from the use vs. area variance standards of Boccia v. City of Portsmouth,
2 the Court recently considered whether a zoning ordinance which established a maximum number of manufactured housing sites that could be located in a manufacturing housing park was a use variance or an area variance.  In Harrington v. Town of Warner, opinion issued April 4, 2005, the Court determined that such a zoning regulation was a use variance and therefore subject to the rule that such variances “pose a greater threat to the integrity of a zoning scheme because the fundamental premise of zoning laws the segregation of land according to uses.”  Using the standard for granting such a variance that the Court established in the Simplex Case,
3 the Court held as follows:

To establish unnecessary hardship for a use variance, an applicant must show that: (1) the zoning restriction as applied interferes with the applicant’s 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 Court concluded by affirming the trial court’s decision which affirmed the zoning board’s decision to grant the variance as requested by the manufactured housing park owner.

Estate of Gordon-Couture v. Brown, opinion issued May 23, 2005, is a case based on a horrific state of facts, but which involves very important questions of the duties of landowners to social guests.  The decedent was a two-year old who accidentally drowned while attending a birthday party at the lakeside property owned by the defendants.  The infant had been brought to the party by an invited guest.  The estate sued the defendant alleging that they were negligent in keeping their beach and dock areas safe for guests, but the trial court granted the defendant’s motion for summary judgment, ruling that so-called, recreational use statutes, RSA 212:34 and RSA 508:14, I, gave the defendants immunity.  The plaintiff’s estate appealed and argued that “the recreational use statutes do not apply to private land used for private activities.  Rather, the plaintiff argues that the statutes only apply to private land that is open to the general public.”

The Supreme Court agreed and reversed the trial court’s granting of the defendant’s motion for summary judgment.  The Court analyzed the statutes as immunity provisions barring common law rights and, as such, were to be strictly construed.  The Court found that the statutes had been enacted at a time when many states were enacting recreational use statutes that had as their purpose the encouragement to landowners to make their properties available for public use.  The New Hampshire statutes applied such immunity to a landowner who without charge permits “any person” to use its land for recreational purposes (RSA 508:14, I), or lets access to its properties “by others for hunting, fishing, trapping, camping, horseback riding, [etc.],” RSA 212:34.  The Supreme Court held that both statutes should be construed together and “[b]ecause the legislature did not clearly abrogate the common law duties of landowners toward all entrants on land, we narrowly construe RSA 21:34 and RSA 508:14, I, as providing immunity only to landowners who open their land to the general public…. Here, the defendants’ land was used for a private birthday party, which was not open to the general public.  Therefore, RSA 212:34 and RSA 508:14, I, do not apply.”

Richmond’s Case, opinion issued May 6, 2005, is a reminder to all lawyers that they should neither represent that they have expertise in a field that they do not have, nor actually practice in that field if they do not have specialized expertise needed to effectively represent a client in a transaction involving that field.  Richmond’s Case involved the field of securities law and the Supreme Court upheld the Master’s recommendation of a six-month suspension based on the fact that the attorney’s web site “advertises expertise in financing and raising capital” although, in fact, he did not have any special training or experience in securities law.  The Court found that this was a violation of Professional Conduct Rule 7.1 prohibiting a lawyer from making false or misleading communication about a lawyer or the lawyer’s services.

Similarly, the Court found that the attorney had violated Rule 1.1(a) and Rule 1.1(b) of the Professional Rules of Conduct which require an attorney to provide competent representation to a client including having specific knowledge about the fields of law in which the lawyer practices.  The Court found that the defendant, here practicing in the securities law field, failed to have the needed knowledge and skill concerning the operation and interplay of state and federal securities law statutes and had failed to acquire the needed knowledge from other sources and, hence, the attorney was in violation of the Rules.  Again, the takeaway from this case is that an attorney must be careful not to claim an expertise which the attorney does not have, and if the attorney determines to practice in a field with which the attorney is not familiar, the attorney must gain the necessary skills in order to adequately represent the client.

The issue before the Court in Taylor v. Plaistow, opinion issued April 22, 2005, was the validity of zoning “proximity regulations.”  The particular regulation involved here was the Town of Plaistow’s zoning ordinance that required a minimum of 1,000 feet between motor vehicle dealerships in commercial zones.  The plaintiff was denied a variance and brought the instant action seeking a declaration that the zoning ordinance was unconstitutional “because no legitimate purpose is served by the imposition of the 1,000-foot proximity regulation.  Furthermore, they argue that the ordinance violates their right to equal protection because there is no valid basis for treating vehicular dealerships differently from other retail businesses in terms of their proximity to each other.”  The Supreme Court, citing to cases in other jurisdictions held the proximity regulation because it was “rationally related to legitimate town goals and, therefore, comports with the due process requirements of our constitution.”  Furthermore, on the equal protection issue, the Court found that “the classification created by the ordinance bears a fair and substantial relationship to the Town’s goals of preserving aesthetics and ensuring traffic safety.”

Finally, a criminal case provides a rare bit of humor in the usually morbid world of the criminal elements, State v. MacMillan, opinion issued April 1, 2005.  In this criminal case, it appeared that a Portsmouth police detective, intent on rooting out perversion on the World Wide Web, posed as a fourteen-year-old girl in an internet chat room using the screen name “Kimmiesue87.”  The bait was taken by the defendant who used the crudely described screen name “Willpay4BJ” and who contacted “Kimmiesue87” and, learning that she was fourteen-years-old, solicited her “to perform a sexual act in exchange for fifty dollars.”  “Willpay4BJ” and “Kimmiesue87” proceeded to arrange a rendezvous to accomplish this transaction at that infamous trysting spot, the State Liquor Store on the Portsmouth rotary.  The detective preserved the online conversation by using a program which recorded online conversations and then by cutting and pasting the on-screen dialogue into a word processing document that was saved on the hard drive of his computer.

After the trap was sprung, and the defendant taken into custody at the rotary, the Portsmouth Police Department, with the assistance of the State, proceeded to indict the defendant on one count of certain prohibited uses of computer services in violation of RSA 649-B:4.  The defendant moved to exclude any evidence from the computer chat communication because it was recorded without authorization, as required by the wiretap statute, RSA chapter 570-A.  The trial court denied the State’s motion to allow the detective’s testimony and the State appealed.  The Supreme Court first found that the computer chat room information as preserved by the software function used by the detective was an “on-screen recording, analogous to a tape recorder” and, thus, subject to the wiretap provisions of RSA 570-A, and, as such, the recorded conversation could not be admitted into evidence.  However, the Supreme Court ruled that the detective police officer could testify about the contents of the conversation he had heard because he had “obtained his knowledge of the contents of the conversation first-hand, not through the interception,” and thus came under an exception to the wiretap statute (RSA 570-A:6) and held that “when a law enforcement officer fails to obtain authorization for a one-party interception under RSA 570-A:2, II(d), exclusion of the officer’s testimony is not required under RSA 570-A:6 if the testimony is based upon personal recollection of the conversation, independent from the unauthorized recording.”  The Court reversed and remanded the case to the trial court for trial allowing admission of the detective’s testimony so it appears probable that the defendant “Willpay4B[ad]J[udgment].”



1.   The author’s firm represented a party to the action and, therefore, the author’s views may be colored.

2.   151 N.H. 85 (2004).

3.   145 N.H. 727 (2001).

4 .      Interestingly, the Court did not cite to its 1971 opinion in Vannah v. Town of Bedford, 111 N.H. 105 (1971), which upheld the validity of a proximity regulation of the Town of Bedford which restricted gasoline service stations from being located within two miles of each other.


Attorney Charles A. DeGrandpre is a director and treasurer in the firm of McLane, Graf, Raulerson, and Middleton, P.A., Portsmouth, New Hampshire.

Your New Hampshire resource for professional investigative services since 2005.

Home | About the Bar | For Members | For the Public | Legal Links | Publications | Online Store
Lawyer Referral Service | Law-Related Education | NHBA•CLE | NHBA Insurance Agency | NHMCLE
Search | Calendar

New Hampshire Bar Association
2 Pillsbury Street, Suite 300, Concord NH 03301
phone: (603) 224-6942 fax: (603) 224-2910
© NH Bar Association Disclaimer