Bar Journal - Spring 2006
Lex Loci: A Survey of New Hampshire Supreme Court Decisions
By: Attorney Charles A. DeGrandpre
A seldom encountered issue in New Hampshire [the line between church and state] was before the Court in Berthiaume v. McCormack, The Roman Catholic Bishop of Manchester, A Corporation Sole, opinion issued February 14, 2006. The case before the Court involved a tug of war between the parishioners of a Nashua parish of the Catholic Church, St. Francis Xavier, who petitioned the superior court for a constructive trust upon the Bishop of Manchester, claiming that the Bishop had no authority to close [“ to suppress” in the lingo of Canon Law] the parish because the special legislation in 1901 establishing the Roman Catholic Bishop of Manchester as a corporation sole, obligated the Bishop “to hold St. Francis Xavier property in trust for the use and benefit of its parishioners.” The Bishop cited the First Amendment to the Federal Constitution and argued that Canon Law gave the Bishop the authority to suppress St. Francis Xavier, as well as to sell the parish property in question, and that these actions of the Bishop “may not be reviewed by a civil court.”1
Interestingly, New Hampshire took a different approach then had the United States Supreme Court in an earlier case, Jones v. Wolf,2 which would have approved the test put forth by the petitioners. The New Hampshire Court acknowledged that the Jones Case would have allowed civil courts to examine certain religious documents, such as a church constitution, in making decisions “for settling church property disputes.” Instead, the New Hampshire Supreme Court ruled
In light of these cases and due to the fact that the [U.S.]Supreme Court has left it to the States to ‘adopt any one of various approaches for settling church property disputes so long as it involves no consideration of doctrinal matters,’….we will first consider only secular documents such as trusts, deeds, and statutes. Only if these documents leave it unclear which party should prevail will we consider religious documents, such as church constitutions and by-laws, even when such documents contain provisions governing the use of disposal of church property. We reserve our opinion as to what level of deference should be given to church pronouncements regarding the proper interpretation of those documents.
A unanimous Supreme Court, speaking through Chief Justice Broderick, concluded its lengthy opinion by rejecting the parishioners request for a constructive trust. The Court ruled that the Bishop had authority to suppress the parish in accordance with church law, concluding that it would not “consider religious documents” in deciding religious property issues so as “to avoid any perception of entanglement, where possible.”
The excruciating issue of the rights of parents vs. other family members over the physical custody of minor children was before the Court In The Matter of Jeffrey G. and Janette P., opinion issued January 27, 2006. The parents of the two children were divorced in 2002, after a hotly contested three day hearing in the family division of the superior court at Salem, New Hampshire. The custody battle continued long after the divorce, the Court finding that the “parents’ acrimonious and volatile relationship continued to deteriorate and reportedly had a negative impact on all parties, including the children.” In the October 2004, the family court found that the children were “in grave danger remaining with their parents” and ordered that the children reside with their aunt in Maine, the fourth custodial change in four years. The Supreme Court found that while the best interests of the child guided all custody decisions in New Hampshire, the superior court’s jurisdiction to award custody is purely statutory and the statutory provision is controlling. Looking closely at RSA 458:17, VI, which authorizes custody in a divorce case being awarded to a grandparent or a stepparent in certain circumstances, the Supreme Court ruled that the superior court had no statutory authority to award custody to a family member who did not fit the category of a grandparent or stepparent, as such a person “may not obtain custody of the child over a biological or adoptive parent.”
The result follows inexorably from the statutory provision, and perhaps the legislature should give attention to the matter. However, it appears that the best interests of the child standard is trumped in New Hampshire by the New Hampshire Constitutional provision, as it has been broadly interpreted by our Court: “The right of biological and adoptive parents to raise and care for their children is a fundamental liberty interest protected by Part I, Article 2 of the New Hampshire Constitution.” In the current environment of conservatives, railing against activist judges who find legal principles from vaguely stated constitutional provisions, is the Court’s finding of this “fundamental liberty interest” a liberal, activist approach? To the author, something seems wrong with the result that the children are left “in grave danger” by remaining with their parents.
The recent spate of cases doesn’t seem to get any cheerier. In The Matter of B.T., opinion issued February 15, 2006, a unanimous Supreme Court, speaking through Justice Galway, reversed the order of a probate court authorizing the involuntary admission of the respondent to a hospital because of mental illness. The Supreme Court found that the issue under the involuntary commitment statute, RSA 135-C:34, was not a lack of capacity of the respondent to care for her own welfare, but whether she was “a danger to herself or others.”3 Although it was clear that the respondent suffered from a mental illness, had suffered from an overdose of medication in prior years resulting in her hospitalization, had discontinued her medication multiple times, and had been found on a street confused and complaining of chest pains, the Court concluded that “[t]hough we recognize that [the respondent] might benefit from medical treatment for her illness, she cannot be deprived of her personal liberty by an involuntary commitment without clear and convincing proof of her dangerousness.” A lofty sentiment toward a laudable goal, the practical effect of which is that the respondent will remain wandering the streets with a schizophrenic disorder, untreated, but harmless, no danger to herself or others. Another sad example of the results of our current legislative social concepts leading to nonsensical results.
Therrien v. Sullivan, opinion issued January 27, 2006, confronted the issue of just when a criminal defendant’s cause of legal malpractice accrues against his or her defense counsel based upon ineffective assistance. The New Hampshire Supreme Court unanimously adopted the “bright-line” or “one track” approach to these issues, and ruled that the legal malpractice cause of action accrues only after the defendant’s conviction is overturned:
Accordingly, the policy against allowing a defendant to collaterally attack a valid criminal conviction in a subsequent civil proceeding outweighs the policy of preventing stale claims.
Our holding today is a recognition that as long as a valid criminal conviction is in place, a legal malpractice cause of action based on a defense counsel’s ineffective assistance resulting in that conviction cannot withstand a motion to dismiss.
Several cases can be noted briefly. In The Matter of Rossino and Rossino, opinion issued February 24, 2006, the Supreme Court held that in a divorce case, a party’s alleged wrongdoing which occurs before the filing for divorce cannot be used against him to support an alimony award against him based upon his pre-misconduct wages. The Court distinguished its earlier Noddin Case4 where in a post divorce context, the Court found that where the defendant had engaged in criminal activity at his own peril and his reduced financial ability was due to his own fault, the Court could order a higher alimony payment based upon the defendant’s pre-misconduct income. In the instant case, the defendant husband misconduct occurred before the filing for divorce.
In The Matter of Sculley and Sculley, opinion issued January 18, 2006, the Supreme Court held that a superior court had no jurisdiction to modify or enforce a visitation schedule with respect to the parties’ adult disabled daughter, which the superior court had originally imposed at the time of the divorce, but where the daughter was later placed under a probate court guardianship. The Court ruled that once a guardianship was imposed, “the probate court has exclusive jurisdiction with issues concerning the daughter,” pursuant to the statutory jurisdictional guardianship provisions explicitly set forth in RSA 464-A:3.
Fastrack Crushing Services, Inc. v. Abatement International/Advatex Associates, Inc., opinion issued February 24, 2006, establishes the rule that “giving notice within the ninety-day time period as required by [the mechanic’s lien law] is a condition precedent to any claim against the bond.” The Court held that no relief could be had for the failure to give such notice under the provisions of the statute of limitations savings statute, RSA 508:10, which permits an action to be brought after the general statute of limitation has run where the prior action has seasonably been brought, but has been later dismissed for reasons not barring the right of action or determining it upon its merits.
In Petition of The State of New Hampshire, opinion issued March 15, 2006, the Court, in an extraordinary certiorari petition in a criminal case filed by the prosecution, ruled that a the criminal defendant had broad discovery powers to compel disclosure of evidence of exculpatory information even if it involves a police officer’s personnel file normally held confidential pursuant to the provisions of RSA 105:13-b.
In an insurance coverage case that brings to mind Bill Clinton’s famous deposition response: “it depends upon what the meaning of is is,” D’Amour v. Amica Mutual Insurance Company, opinion issued January 18, 2006, had before it the question of whether a person was injured while “occupying” the insured vehicle. First of all, in insurance jargon it’s clear that one does need to be physically in a vehicle to be “occupying” it. Here, it appeared that the plaintiff had been injured after leaving her parked vehicle in a designated parking space. The plaintiff left the car from the driver’s seat, took materials from the back of the car through the back door, and proceeded to her apartment toward the rear of the vehicle, when she slipped on ice and fell. The Court conceded that the policy provided that “occupying” a motor vehicle was defined to include as “in, upon, getting in, on, out or off,” but held that the injured plaintiff did not occupy the vehicle here since the Court adopted a “vehicle orientation test, which requires claimants to be ‘vehicle oriented,’ rather than ‘highway oriented’ or ‘sidewalk oriented.’” The Court ruled that the plaintiff “had severed her connection to her vehicle” at the time of her injury and was “no longer engaged in activities essential to its use and was thus not ‘occupying’ the vehicle.”
It seems to the author, without a scientific count, that charges of prosecutorial misconduct have become more frequent in recent years. Such an issue was before the Court in State v. Mussey, opinion issued February 24, 2006. It appeared that in his closing argument, the prosecutor argued that the police detectives who had testified did not have a motive to lie and, if they did so, “their careers will be over.” The defendant relied upon a line of federal cases which held that “prosecutors engage in improper argument when they argue that police officers risk their careers by lying to a jury.” Weatherspoon.5 The New Hampshire Supreme Court stated that it generally agreed with the Weatherspoon standard of “holding prosecutors to a high standard by not allowing them to vouch for the credibility of witnesses by citing facts not in evidence.” As when one reads the opinion, page by page, a reader would expect that the Court would reverse the trial court’s ruling on the defendant’s objection to the statement of the prosecutor in his closing argument, but rather the Court established a three-prong rule as follows:
In doing so, we balance the following factors: (1) whether the prosecutor’s misconduct was deliberate; (2) whether the trial court gave a strong and explicit cautionary instruction; and (3) whether any prejudice surviving the court’s instruction likely could have affected the outcome of the case.
Applying the test to the case before it, the Court found that “we can comfortably say that any prejudice the prosecutor’s statement may have caused was minimal.” To the author, the Court’s conclusion seems contrary to the main thrust of the Court’s opinion. Perhaps the defendant got his just desserts because the defendant’s counsel, in her closing argument, had argued inflammatorily that “If you are not a good liar, you’re not a good detective.”!
Colla v. Hanover, opinion issued January 27, 2006, makes clear that in a zoning matter, motions for reconsideration are statutorily required to “set forth fully every ground upon which this claim that the decision or order complained of is unlawful or unreasonable.”6 The statute goes on and specifically provides that no ground not set forth in the motion for rehearing will be allowed to be raised or given consideration in any later court proceedings. The statute seems strict, but the Court in the instant case reversed the lower court and held that the complaining property owner had met the conditions of the statute even in the face of the lower court’s finding that the plaintiff did not comply with RSA 677:4, which requires an appeal to “specify the grounds upon which the zoning board decision or order is claiming to be illegal or unreasonable.” The Supreme Court held that the plaintiffs had met that burden by simply incorporating in their appeal to the superior court their motion for reconsideration before the zoning board. The Supreme Court held that this was sufficient to satisfy the requirements of RSA 677:3.
In a divorce case of interest, In The Matter of Ramadan and Ramadan, opinion issued February 14, 2006, the Court upheld a New Hampshire superior court’s divorce order in favor of the respondent wife in a case where the couple were married in the country of Lebanon in 1986. The respondent wife was, at that time, a resident of the United States and the couple eventually settled in Massachusetts soon after they were married. After several intervening U.S. residences, the parties became domiciled in New Hampshire in 1999. The wife filed for divorce in New Hampshire in 2003, asserting that irreconcilable differences had led to the irremediable breakdown of the marriage. However, the husband claimed that on the day before the petitioner had filed for divorce in New Hampshire, he had initiated “a divorce under Islamic law by declaring ‘I divorce you’ three times in succession in the presence of the petitioner.” [The author, for some reason, likes the simplicity of this procedure]. The husband had then immediately returned to Lebanon and documented his Islamic divorce under Lebanon law. When the husband returned to New Hampshire in late 2003, he was served in hand with the wife’s divorce action and the husband moved to dismiss the petition for divorce in New Hampshire, asserting that the trial court lacked jurisdiction over the divorce because of the Lebanese decree. The New Hampshire Supreme Court would not buy that argument and held that the New Hampshire court had jurisdiction over the cause of a divorce action where it was commenced while both parties were domiciled in the state. The Court held that the term jurisdiction, as used in the context of the divorce statute, RSA 459:1, “is to be construed broadly, encompassing not only jurisdictions within the United States, but those of sovereign states existing outside of our national borders, including Lebanon.” Since the parties had been domiciled in New Hampshire at the time the divorce proceeding was commenced, the Court held that the trial court had jurisdiction over the divorce matter and did not err when it refused to grant the defendant husband’s motion for dismissal.
Finally, in a role reversal, the case of Appeal of Kaplan, opinion issued March 10, 2006, involved an entrepreneur business owner and founder who sought to overturn the Department of Employment Security’s denial of his application for unemployment benefits. The petitioner, who founded the bankrupt corporation, was its salaried president, chief executive officer and its sole director, treasurer and secretary at its demise. The corporation had more than 200 stockholders and the petitioner owned between 40% to 49% of the stock of the corporation. DES denied the petitioner unemployment benefits because, although he was an employee of the corporation, “he was self-employed according to RSA 282-A:32, I(e), and its accompanying Administrative Rule 503.03, which denies unemployment compensation to an employee who is found to have left his self-employment or closed his business. The petitioner argued that he was only a minority stockholder and not a majority or controlling stockholder and, thus, should be entitled to unemployment benefits since he did not control the corporation. In a unanimous opinion by Justice Duggan, the Court upheld the DES ruling and rejected the petitioner’s equal protection claim under the U.S. Constitution. This is truly a case of “man bites dog,” and the author wonders whether Kenneth Lay, only a minority shareholder of Enron, applied for and received unemployment benefits from that corporation after its collapse? It wouldn’t be a surprise if he did.
1. See the hoary line of cases involving disputes regarding church property dating back to New Hampshire’s earliest days: Attorney General ex rel. Abbot v. Town of Dublin, 38 N.H. 459 (1859); Hale v. Everett, 53 N.H. 9, 16 Am.Rep. 82 (1868); Winnepesaukee Camp-Meeting Ass’n v. Gordon, 29 A. 412, 67 N.H. 98 (1892); Akscyn v. Second Nat. Bank, 98 A. 519, 78 N.H. 195 (1916); Trustees of New Hampshire Annual Conference of Methodist Church v. Methodist Church of Greenland, 104 A.2d 204, 98 N.H. 498 (1954); Reardon v. Lemoyne, 454 A.2d 428, 122 N.H. 1042 (1982).
2. 443 U.S. 595 (1979).
3. RSA 135-C:34.
4. 123 N.H. 73 (1983).
5. 410 F.3d at 1142 (9th Circuit 2005).
6. RSA 677:3, I.
Attorney Charles A. DeGrandpre is a director and treasurer in the firm of McLane, Graf, Raulerson & Middleton, P.A., Portsmouth, New Hampshire.