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Bar Journal - Winter 2006

LEX LOCI: A Survey of New Hampshire Supreme Court Decisions


[T]he public right of access to court proceedings and records pre-dates the State and Federal Constitutions and is firmly grounded in the common law….The United States Supreme Court has also recognized the existence of a general common law right to access public records and documents, including judicial records…Both the State and Federal Constitutions were adopted against this common law background.

Turning to the most applicable New Hampshire Constitutional provision found in Part I, Article 8, [“Government, therefore should be open, accessible, accountable and responsive.  To that end, the publics’ access to governmental proceedings and records shall not be unreasonably restricted.”], the Court found that, unlike the federal right of access found only implicitly under the First Amendment to the United States Constitution, the state constitutional right of access to court proceedings and records is explicitly provided by this provision of the New Hampshire Constitution:

New Hampshire is one of only a handful of States with a constitutional provision that explicitly protects the public’s right of access to governmental proceedings and documents….The explicit incorporation of the right of access to governmental documents into the State Constitution provides greater textual support to the constitutional right of access to court records than does the First Amendment.

Addressing the particular statutory provision before it (RSA 458:15-b), the Court concluded “that financial affidavits filed in domestic relations cases are subject to the constitutional right of access because they are important and relevant to a determination made by the court in its adjudicatory function in connection with a presumptively open proceeding.”  The Court ruled, however, that there was nothing in our Constitution that prohibits the legislature from enacting legislation that, with sufficient justification, creates a procedure by which a narrow category of documents is made confidential upon filing with the court.  Yet, the Court found that the provisions of RSA 458:15-b, III providing for limited disclosure upon certain conditions were unconstitutional because they placed the burden of proof upon the proponent of disclosure, rather than the proponent of nondisclosure:

In keeping with our prior cases, we hold that, whenever a member of the public, including the press, seeks access to a sealed court document, Part I, Articles 8 and 22 of the State Constitution require: (1) that the party opposing disclosure of the document demonstrate that ‘there is a sufficiently compelling reason that would justify preventing public access to that document’; and (2) that the court ‘determine that no reasonable alternative to nondisclosure exists’ and ‘use the least restrictive means available to accomplish the purposes sought to be achieved.’

This opinion’s ringing endorsement of a broad interpretation of the right of the public to access public records will make this a seminal First Amendment/public access to records case for years to come.

Prosecutors, commonly thought to have wide and unabridged powers are, in law, subject to standards of prosecutorial overreaching as established by our Supreme Court.  State v. Gubitosi, opinion issued March 2, 2005, answered the question whether it is prosecutorial misconduct and bad faith to obtain phone records through a search warrant issued by a district court after the records had been earlier suppressed by a superior court.  A unanimous Supreme Court, in an opinion by Justice Nadeau, answered the question in the negative.  The Court first defined what would constitute prosecutorial misconduct or bad faith: “To constitute prosecutorial overreaching, the government must, through gross negligence or intentional misconduct, cause aggravated circumstances to develop that seriously prejudice the defendant, causing him reasonably to conclude that continuation of the tainted proceeding would result in his conviction.”  It appeared that the prosecutor had first subpoenaed the defendant’s cellular telephone records through a grand jury subpoena.  The defendant charges against him were pending in two separate counties.  The defendant moved to suppress the phone records in Belknap County arguing that the records had been obtained without a warrant, in violation of constitutional provisions.  That motion was denied, but the Merrimack County Superior Court granted the defendant’s motion to suppress the records.  After a series of motions to reconsider were filed and denied, the prosecutor submitted an application and affidavit to the Franklin District Court to obtain a search warrant for the same records.  The Supreme Court ruled that “[T]he State’s act in obtaining a search warrant for the defendant’s cellular phone records after they were initially suppressed by the superior court did not amount to gross negligence or intentional misconduct” because

[T]here is no requirement that the State must go to the original court to obtain a search warrant after charges have been filed.  There was no ‘intentional misconduct’ or bad faith on the part of the State….Likewise, the State did not act in bad faith by not informing the district court that the records had been suppressed because that fact had no bearing on whether the probable cause existed to obtain them.

In Lorenz v. New Hampshire Administrative Office of the Courts, opinion issued September 29, 2005, the New Hampshire Superior Court stenographers (before a panel of retired Supreme and Superior Court justices) lost their hard fought battle to continue their employment.  Interestingly, the opinion was not unanimous since two retired Superior Court Judges (Pappagianis and Dunn) would have overturned the dismissal of the stenographers’ case and remand it for further discovery as proposed by the plaintiff’s counsel.  That discovery would have included the depositions of former Superior Court Chief Justice Joseph Nadeau and former Superior Court Justice Joseph DeClerico and perhaps even Supreme Court Chief Justice John Broderick.  The majority opinion, written by retired Supreme Court Justice Horton, upheld the dismissal of the stenographers’ petition for declaratory judgment on different grounds than had the lower court; i.e., that the plaintiff’s claims were barred by sovereign immunity and “[p]ursuant to that immunity, neither the superior court nor this Court is vested with subject matter jurisdiction:”

New Hampshire courts lack subject matter jurisdiction to hear an action against the State unless the legislature has ‘prescribe[d] the terms and conditions on which it consents to be sued, and the manner in which the suit shall be conducted’….The doctrine ‘serves two general public policy considerations: the protection of the public against profligate encroachment on the public treasury, and the need for the orderly administration of government, which, in the absence of immunity, would be disrupted if the state could be sued at the instance of every citizen.’

The two dissenting retired superior court justices would remand the case for further discovery as proposed by the plaintiff’s attorney1, based upon alleged written and oral assurances beginning in 1985 made by various chief justices of the superior court, as well as other important officials of the judicial branch.  Does this result mean that the stenographers are without any forum at all?

A bothersome issue, the extent of the constitutional right of parents for the custody of their children, in the context of extent of the custodial rights of third persons; i.e., the right of grandparents or stepparents to custody in the face of a fit parent’s claim, was before the Supreme Court In The Matter of R.A. and J.M., opinion issued December 30, 2005.  The case vexed the Court and three separate opinions were issued in the convoluted factual situation before the Court of a daughter who was conceived during a one-time sexual encounter between the mother and the father.  Only the mother was listed on the daughter’s birth certificate and the mother and father were not married to each other at the time of the daughter’s conception or birth, although the father subsequently married another woman.  At issue were the provisions of RSA 458:17, VI, (since repealed) giving grandparents rights to custody of grandchildren in certain situations, where, in the face of a grandmother’s objections, the trial court had ordered legal custody to the mother and father…and gave final decision-making authority to the father rather than the mother.  The grandmother was given no custodial rights to her granddaughter, even though she had “been a true parent” to the granddaughter.  The issue was whether this statute was unconstitutional on its face about which the trial court had opined.  In the Court’s first opinion written by Chief Justice Broderick and which, because of the concurring opinion of Justices Nadeau and Galway became the majority opinion, the Chief Justice concluded that RSA 458:17, VI was constitutional.  To this ruling, the two concurring justices (Nadeau and Galway) agreed, but they did not agree to the test newly created and as set forth by the Chief Justice to govern such situations:

For Grandmother to have been awarded custody jointly with Father, she and Mother would have had to prevail additionally on various substantive issues: (1) whether Grandmother and Daughter had a substantial parent-child relationship; (2) that failure to award custody to Grandmother would be emotionally harmful to Daughter; and (3) that there was some additional factor justifying intrusion into Father’s parental rights.

The concurring justices argued that the Chief Justice’s test “subordinates the best interests of the child to the fundamental liberty interests of the fit parent.  We believe that this is erroneous….The time has come for courts to stop treating children as the chattel of their parents.  In child custody disputes, the best interests of the child must be paramount.”

That did not satisfy the dissenters, Justice Dalianis and Duggan, who felt that the statute was unconstitutional since the application of “the best interests of the child standard” violated a fit parent’s constitutionally protected status.  The dissenters would overrule New Hampshire cases to the contrary because of the United States Supreme Court’s recent decision in Troxel v. Granville,
2 where the U.S. Supreme Court had found unconstitutional a State of Washington statute which placed the best interest of the child determination solely in the hands of the judge.  The United States Supreme Court had concluded in Troxel “that a state will normally have no reason to interfere with a parent’s ability to make the best child-rearing decision where the parent is deemed fit.”  The unusual split of opinions by our Court continues to highlight the highly emotional question of the extent of the constitutional protection of parental rights.

Several cases can be noted more briefly.  In Wolterbeek’s Case, opinion issued October 31, 2005, the Supreme Court once again raised an attorney’s recommended suspension by the Professional Conduct Committee to the more draconian level of disbarment.  This opinion, as well as recent others, makes clear that disbarment is the probable remedy when an attorney engages in a course of deceitful conduct “with the intent to benefit himself.”  Caparco v. Danville, opinion issued November 15, 2005, validated two different town ordinances that both provided for the imposition of development impact fees as periodically adjusted by the town’s planning board, the Court concluding that “pursuant to its authority to administer an impact fee ordinance, a planning board may adjust the amount of the fee provided it does so in accordance with sufficient standards identified within a town ordinance as required by RSA 674:21.”  In  Pennichuck Corporation v. City of Nashua,
3 opinion issued November 16, 2005, the Supreme Court upheld the provisions of RSA chapter 38 giving municipalities the power to take by eminent domain privately owned electric, gas and water utilities in order to maintain and operate them as publicly owned facilities.  The Supreme Court validated the somewhat clunky provisions of this statute against a charge that the provisions constituted “a per se inverse condemnation in violation of the New Hampshire Constitution.”

In this modern day and age, it is rare when the Supreme Court has an opportunity to opine on the usually strictly construed execution requirements for wills found in our Statute of Wills, RSA 551:2.  Seldom now do testators draft their own wills and, when assisted by attorneys, most lawyers are quite familiar with the execution requirements of the statute.  However, In Re Estate of Catherine Fischer, the Court had before it the issue whether the will was signed by two or more credible witnesses “in the testator’s presence.”  RSA 551:2, IV.  The facts showed that the will had been signed by the bedridden testator in one room where, in the presence of the witnesses, the testator acknowledged the will and asked them to sign as witnesses.  “[H]owever, the witnesses did not sign the will in the room in which the testat[or] lay in bed.”  Rather, the will was then taken by the attorney to another room where the witnesses signed the will in the presence of the drafting attorney.  The Court first reviewed its earlier leading case of Healey v. Bartlett,
4 where it had ruled that a will was valid and the statute was satisfied even though the testator need not “actually see the witnesses for them to be in his presence….It is sufficient that he has knowledge of their presence, and can, if he is so disposed, readily see them write their names,…even if he does not see them do it and could not without some slight physical exertion.”  The Court distinguished that case from the case now before it:

The petitioner bore the burden of proving that the witnesses signed the will in the testatrix’s presence.  Yet there was no evidence in the record that, but for the testatrix’s physical infirmities, she could have ‘readily…seen and heard’ what the witnesses were doing, had she been so disposed….Nor was there evidence that the witnesses were ‘so near’ to the testatrix that she was conscious of where they were and what they were doing when they signed the will….On this record, we are unable to defer to the probate court’s finding that the witnesses signed the will in the testatrix’s presence.

All of which brings to the author’s mind the remarkable will of perhaps our greatest founding father, George Washington, as described in the recent, readily accessible, one-volume, biography of Washington entitled, “His Excellency” by the noted constitutional scholar, Joseph J. Ellis.5  Washington died one of the wealthiest men in America.  He had no direct descendants and his wealth was mainly in land, much of it speculative land west of the Alleghenies in the Ohio Valley, so he was relatively “cash poor.”  A substantial portion of his wealth was made up of slaves which he either owned personally or in which he had a “dower” interest arising from his marriage to Martha Custis, a wealthy Virginia widow when he married her.  Washington’s will is more than twenty pages long and was prepared by him and written in his own hand.  Each page was signed by Washington except for one (which he apparently inadvertently missed) and is a model of a testator’s expression of his noble aspirations in his own words.  For example, in one paragraph, he attempted to carry out his long held and  “cherished” wish for the establishment of a national university:

That as it has always been a source of serious regret with me, to see the youth of these United States sent to foreign Countries for the purpose of Education, often before their minds were formed, or they had imbibed any adequate ideas of the happiness of their own; contracting, too frequently, not only habits of dissipation and extravagance, but principles unfriendly to Republican Government & to the true and genuine liberties of mankind; which, thereafter are rarely overcome.  For these reasons, it has been my ardent wish, to see a plan devised on a liberal scale which would have a tendency to spread systematic ides through all parts of this rising Empire, thereby to do away local attachments and State prejudices, as far as the nature of things would, or indeed ought to admit, from our National Councils.

How extraordinary for a self-educated man who had no formal education beyond the elementary level.

The real significance of Washington’s will was what it did in two particular areas.  First, and most notably, it provided for the freeing of all slaves which he owned upon his death, or his wife’s death, depending upon whether they were dower slaves or not, and for the on-going care of those freed who needed it
6, concluding his “Slave” clause as follows:

I do moreover most pointedly, and most solemnly enjoin it upon my Executors hereafter named, or the Survivors of them, to see that this clause respecting Slaves, and every part thereof be religiously fulfilled at the Epoch at which it is directed to take place; without evasion, neglect or delay….7

The second notable thing about Washington’s will is that, instead of attempting to create a dynastic transfer of accumulated wealth to a few individuals, he divided the rest of his residue in his estate into twenty-five equal parts, thereby assuring that there would be no Washington family fortune created for posterity.  The author remains in awe of the sagacity of this uncommon man.



1.     Plaintiff’s attorney, David L. Nixon, is, in the author’s opinion, deserving of the title “New Hampshire’s Clarence Darrow.”  This attorney has, over his lifetime, consistently taken on unpopular causes from all sides of the political spectrum, never deterred by that fact and always being a vigorous advocate for his clients.

2.     530 U.S. 57 (2000).

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

4.     73 N.H. 110 (1904).

5.     Joseph J. Ellis, His Excellency, (2004).

6.     Because Washington strictly followed the principle that he would not break up slave families by sale of children or of married partners, his holding of slaves included many whom were ill, infirm or infants.  Joseph J. Ellis, His Excellency, (2004)

7.     Compare these actions with those of another founding father, Thomas Jefferson, who not only broke up slave families by sale during his life, but who allegedly engaged in “sexual congress” with at least one domestic slave and who died in debt, never freeing his slaves.  Joseph J. Ellis, American Sphinx, (1998); The New York Times, November 1, 1998, Late Edition, pg. 1.


Charles DeGrandpreAuthor

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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