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Bar Journal - Fall 2006

LEX LOCI: A Survey of New Hampshire Supreme Court Decisions


To some, the New Hampshire Constitution, compared to the U.S. Constitution, is a long, wordy and somewhat tautological piece of work. However, within it are often found harmonious phrases and noble sentiments not found in the U.S. Constitution.1  The author suggests to all to reread it, afresh. One such linguistically concise provision is found in our Bill of Rights, Part I, Article 11 of the New Hampshire Constitution which provides, in pertinent part: “Every inhabitant of the state, having the proper qualifications, has an equal right to be elected into office.”  In Akins v. Secretary of State, opinion issued August 17, 2006, a unanimous Supreme Court, speaking through Justice Galway, stepped up to its self-stated “role….to interpret the State Constitution and to resolve disputes arising under it,” and addressed this constitutional phrase. Before the Court was the petition of the New Hampshire Democratic party and individuals who ran as Democratic, or Republican, or Libertarian candidates in the 2004 general election who collectively argued that RSA 656:5, which provides that the first candidate listed for any given office on a ballot shall be a candidate from the party that received the most total votes in the preceding general election was unconstitutional. The petitioners also contested the historical practice of the Secretary of State to list candidates within each party by alphabetical listing. The question turned on the issue whether the “equal right to be elected into office” was a fundamental right and, thus, entitled to review by the Court under strict judicial scrutiny. The Court, equating the equal right to be elected to the closely related Constitutional provision relating to the right to vote [also found in Part I, Article 11, of the Constitution], found that the right to be elected was a fundamental right and, thus, subject to strict judicial scrutiny. The Court then turned to the uncontested evidence presented by the petitioners that there was a “primacy effect” favoring first named candidates and the Court held that RSA 556:5 “denies candidates of minority parties an equal opportunity to enjoy the advantages of the primacy effect, and, thus, an equal right to be elected.”  The Court went on to find that the alphabetizing of candidates also created a primacy effect which was similarly in violation of the Constitutional provision:

Because neither the provision of RSA 656:5 requiring that the party receiving the most votes in the prior election enjoy first place on the ballot nor the Secretary of State’s practice of alphabetizing candidates is necessary to achieve a manageable ballot, we hold that neither restriction survives strict scrutiny, and that both are thus unconstitutional under Part I, Article 11 of the New Hampshire Constitution.

It can’t be said much clearer than that but because the opinion was issued so close to the primary election, the Court was subsequently asked to modify its opinion to permit use in the upcoming primary election of the ballots already printed using the old system.

In these gun-toting times, is a hunting license a constitutionally protected right?  The Supreme Court, in WMUR Channel Nine v. New Hampshire Department of Fish and Game, opinion issued August 3, 2006, came awfully close to answering that question but avoided an answer since neither party had argued it. The case arose in the context of a hunter who petitioned the Fish and Game Department for the reinstatement of his hunting license after his license had been understandably pulled after he had killed another hunter while deer hunting in 2004. The department denied the petitioner’s application for a new license, but the hunter appealed to the department’s executive director pursuant to the procedure provided by RSA 214:17. At that hearing, the petitioner hunter requested that the hearing be closed to the public because he was shy and he would not be able to make his case if he had to do so in public?!!  A shy hunter—is that an oxymoron?  The hearing officer decided to close the hearing to cameras and audio recording devices because “he concluded that the commotion caused by television cameras and lights would effectively deprive [the petitioner] of his opportunity to be heard on his hunting license reinstatement claim.”  However, despite the hearing officer’s good intentions, he contravened the provisions of the Right-to-Know law, RSA chapter 91-A:2, which specifically provides that “[a]ll public proceedings shall be open to the public….[and] Any person shall be permitted to use recording devices, including, but not limited to, tape recorders, cameras and videotape equipment, at such meetings.”  A unanimous Supreme Court held that the hearing was a public proceeding and it found that the action of the hearing officer violated this provision. In the course of its  opinion, however, the Court, in dicta, said that “We have never held, however, that a hunting license is a constitutionally protected right, and such a proposition is questionable, since other jurisdictions have specifically held that a hunting or fishing license is not a property interest for purposes of due process,” citing to federal and Pennsylvania decisions. Where are the N.R.A. and Charleton Heston [“from my cold, dead hands, etc.,….”] when we need them?

In Petition of Guardarramos-Cepeda, opinion issued August 2, 2006, [less than two months from the date of argument, the author should, with praise, point out] a unanimous Supreme Court upheld the constitutionality of RSA 651-58, I, which permits the State to seek a sentence review after sentencing by the trial judge, over the defendant’s arguments that the statute violated the due process and double jeopardy protections of the New Hampshire Constitution.2  RSA 651:58, I, allows the State, post-appeal, to file an application requesting a review of the petitioner’s sentence by the sentencing review division to increase the defendant’s sentence. The defendant objected and the Court had before it a constitutional question. The Court ruled unanimously that the statute did not violate the due process clause of our State Constitution because the defendant had received actual notice that the review of the sentence could result in its being increased. See Part I, Article 15, of the New Hampshire Constitution.

Turning to the double jeopardy issue raised under Part I, Article 16, of the New Hampshire Constitution, the New Hampshire Supreme Court turned to a federal analysis for assistance. There it relied upon a hotly contested U.S. Supreme Court decision3 where a divided U.S. Supreme Court had upheld a post conviction increase in a sentence. The New Hampshire Supreme Court ruled that our State Constitution is no more protective than the Federal Constitution regarding this issue and the Court adopted the U.S. Supreme Court majority’s opinion in DiFrancesco,4 that the increased sentence did not violate the double jeopardy prohibition.

A significant case involving the misappropriation of trade secrets resulted in an arresting Supreme Court decision in Mortgage Specialists, Inc. v. Davey, IV, opinion issued July 26, 2006. This is a long, somewhat convoluted opinion in a bitterly contested trade secret’s case. It was a real cock fight. What seems to be clear is that the defendants (former employees of the plaintiff) breached the New Hampshire Uniform Trade Secret’s Act, RSA 350-B (NHUTSA), when they used certain customer information of its prior employer, the plaintiff, to originate and close mortgage loans. The Court’s major holding was in its interpretation of the seldom examined Uniform Trade Secret Law. On this issue, the primary question was whether the NHUTSA supplanted all common law trade secret actions and the Court held that while the NHUTSA pre-empts claims that are based upon the unauthorized use of property, regardless of whether that information meets the statutory definition of trade secret, it did not preclude all claims based upon trade secret common law and the Court allowed the plaintiff to pursue one such claim.

It is always difficult for the author to summarize a complex decision such as this in the limited space allotted. The decision is a very important one on the trade secrets issues, but it may be more important to trial practitioners on the issue of the heavy sanctions which a trial judge, reaching the limit of his patience, imposed upon the defendants and its attorneys for conduct during trial, specifically relating to the destruction of documents by the defendants after their deposition and with respect to an alleged violation of the Court’s preliminary injunction. The opinion reads like a battle on the badminton court, with the shuttle cock flying sometimes to one side and sometimes to the other. In essence, the Supreme Court found that the trial court had good reason to impose sanctions, but had subsequently failed to properly handle the sanctions issue. The Supreme Court found that what the trial court had found was a finding of “indirect criminal contempt” and the trial court’s conduct in confronting that contempt did not meet with criminal contempt process requirements. It’s a lot more complicated than that. However, let it be said that this is an important case for trial practitioners to read and the author, a non litigator, concludes that, at a minimum, the following principles can be adduced: (1) It’s not legal (or even proper or nice), to appropriate a former employer’s trade secrets, and (2) in defending a claim of trade secrets appropriation, it’s not smart for the alleged trade secret acquirer to anger the trial judge by engaging in questionable post preliminary injunction behavior which causes the trial judge to impose  criminal sanctions. In summary, after all of the debate, a unanimous Supreme Court, speaking through Judge Dalianis, remanded the case back to the trial court for what the author predicts will be some further hotly contested trial fireworks. All of this brings to the author’s somewhat vacant mind the definition of “litigation” found in Ambrose Bierce’s, The Devil’s Dictionary: “Litigation, n. A machine which you go into as a pig and come out of as a sausage.”

Debenedetto v. CLD Consulting Engineers, Inc., opinion issued July 27, 2006, is “must-reading” for any tort litigator in our state. It’s a big defeat for the tort litigation bar. It is, in the author’s judgment, the most significant constitutional tort case in our state since the 1980 landmark case, Carson v. Maurer,5 where the Supreme Court found unconstitutional, under both the U.S. and the New Hampshire Constitutions, important provisions of the New Hampshire medical malpractice statute. The issue in the instant case was the “[a]pportionment of fault to non parties under our comparative negligence law,” 507-7-C, arising from the Uniform Comparative Fault Act, and enacted in New Hampshire in 1986. This statute overturned the common law contributory negligence rule and required that judgment be entered against “each party liable on the basis of joint and several liability.”  The question in this case was whether that statutory injunction should include entities who are not strictly parties to the litigation, but were entities involved in the factual situation before the Court but which were either immune to suit or who had settled prior to trial. Over the adamant objections of the plaintiff and of the New Hampshire Trial Lawyer’s Association, a unanimous Supreme Court, speaking through Justice Duggan, ruled that the statute allowed a jury to assess the percentage of fault attributable to settling, as well as non-settling tortfeasors, including tortfeasors who are found to be immune from suit. Specifically, the Court held “that for apportionment purposes under RSA 507:7-e, the word ‘party’ refers not only to ‘parties to an action including…settling parties’….but to all  parties contributing to the occurrence giving rise to any action, including those immune from liability or otherwise not before the court.”

The Court then addressed the plaintiff’s objections concerning the constitutionality of the statute. The Court recognized that the constitutionality argument raised “[t]he problem of ‘deep pocket’ suits” and the Court ruled that

[f]rom the inception of comparative negligence in New Hampshire, the legislature has sought to balance of injured plaintiffs and the interest of defendants. It plainly perceived that contribution among tortfeasors did not effectively protect the interest of defendants bearing less than 50% of fault for plaintiff’s injuries, and that those defendants were unfairly prejudiced by the comparative negligent regime enacted in 1986…we believe that the introduction of several liability for tortfeasors less than 50% at fault was rationally related to that object.

The Court found the statute was not violative of that wonderful language found in our New Hampshire Constitution in Part I, Article 14, that “every subject of this state is entitled to a certain remedy, by having recourse to the laws, for all injuries he may receive in his person, property of character,” and did not transgress the principles laid down in Carson6 twenty-five years ago. In an aside, the author, quoting Bob Dylan, notes that “the times they are a-changin’.”

The sometimes difficile issue of an action for malicious prosecution was before the Court in Paul v. Sherburne, opinion issued July 21, 2006. The case arose in the smallest of ways, a small claim action for malicious prosecution brought in the district court. That court had dismissed the plaintiff’s claim for malicious prosecution, but the Supreme Court reversed. The facts showed that the defendant had brought a civil stalking petition against the plaintiff in another district court, which promptly issued an ex parte order of protection against the plaintiff pursuant to RSA 173-B:4, I. However, at the final hearing on the merits on the stalking petition, the defendant (the prosecutor of the stalking petition) failed to appear at the hearing and the stalking petition was dismissed. Soon thereafter, the plaintiff (subject of the stalking) filed a small claim complaint for malicious prosecution against the defendant in the Milford District Court. The plaintiff appealed that court’s decision dismissing his case. The Supreme Court reversed the trial court’s denial of the plaintiff’s claim of malicious prosecution and in a unanimous opinion authored by Justice Galway, reviewed the law of malicious prosecution claims. The issue turned upon whether an ex parte preliminary injunction granted without notice to or a hearing to the other party is “conclusive evidence of probable cause in the context of a subsequent civil malicious prosecution claim.”  The Supreme Court ruled that in the context of the stalking statute, RSA 633:3-a, III-a and RSA 173-B:4, the order was not something that the Court could “conclude that it constitutes conclusive evidence of probable cause.”  Rather, “we hold that an ex parte protective order based only upon information provided by the petitioner constitutes prima facie evidence of probable cause.”  Thus, the Court reversed the trial court and found that the plaintiff should have “an opportunity to present evidence to refute the allegations contained in that protective order and to establish the absence of probable cause for a subsequent malicious prosecution claim.”

Richmond’s Case, opinion issued July 21, 2006, results from a petition by the Professional Conduct Committee against the respondent attorney to suspend him from the practice of law for two concurrent one year periods. A judicial referee found that the respondent had violated several Professional Conduct Rules and recommended the attorney’s disbarment. Upon appeal to the Supreme Court, the Court adopted the referee’s findings and ordered the respondent disbarred.

The case involved a situation where the attorney was in business with his client and when his services were terminated, not only failed to return the client’s file promptly, as the client requested, but acted to liquidate stock of his client in his possession, which he claimed he had a right to do by written agreement of the client. It turned out that this agreement was drafted by the attorney and signed by the client, after disagreement, without benefit of outside counsel. There seemed to be plenty of evidence to sustain the referee’s finding the violation of several Professional Conduct Committee Rules. The consequential ruling involves the Court’s holding that the sanction imposed by the referee and affirmed by the Court, disbarment, was based on a history of prior disciplinary offenses by the respondent attorney. The Court first distinguished between the sanction of suspension and the sanction of disbarment, and found that “courts generally disbar lawyers who intentionally exploit the lawyer-client relationship by acquiring an ownership, possessory, security or other pecuniary interest adverse to a client without the client’s understanding or consent.”7  In that context, the Court upheld the disbarment sanction, finding that the prior disciplinary offenses of the respondent attorney were aggravating factors that, in addition to his selfish motives, a lack of remorse and the attorney’s intentional failure to comply with court rules and orders on multiple occasions relative to the present proceeding, was demanded in this case. The attorney had been earlier reprimanded on one occasion and, on another, had received a six month suspension. The Court found that there were multiple offenses made by the attorney in the present case and concluded:

After considering the respondent’s misconduct, the serious injury to the respondent’s clients, the significant list of serious aggravating factors and the lack of any mitigating factors, we find that disbarment is warranted. This sanction satisfies the goals of the attorney discipline system by protecting the public and preserving the integrity of the legal profession.

All of which leaves the author to wonder what on earth the attorney could have been thinking by refusing to return the property of his client when requested to do so?  He seemed oblivious to the context in which his actions would be judged.

A year doesn’t go by in New Hampshire in recent years without an additional chapter in the ongoing Claremont educational tax matter. This year’s installment is Londonderry School district SAU #12 v. State, [Claremont Nth?], opinion issued September 8, 2006. After reading the opinion, I think it’s fair to say that a majority of the newly constituted Court, not to put too fine a point on it, is growing restless with the legislature’s foot dragging in addressing the issue raised by the Claremont school cases. Four of the five justices concurred that the legislature had failed to define a constitutionally adequate education by its enactment of RSA 193:E:2 (2005), entitled “Criteria For An Equitable Education.”  The majority opinion, authored by Justice Hicks, found that “under the statutory scheme there is no way a citizen or a school district in this State can determine the distinct substantive content of a constitutionally adequate education. Consequently, its cost cannot be isolated. Such a system is also impervious to meaningful judicial review.”  The Court emphasized that it was important to define a constitutionally adequate education because “[w]hatever the State identifies as comprising constitutional adequacy it must pay for. None of that financial obligation can be shifted to local school districts, regardless of their relative wealth or need.” [Emphasis added].

In a show of exasperation, the majority of the Court, referring to the thirteen [yes, thirteen!] years of legislative dodge ball since the first Claremont decision, instead of remanding the case to the lower court, retained jurisdiction:

we stay that portion of the case containing the trial court’s findings that the legislature has failed to determine the cost, failed to satisfy the requirement of accountability and established a non-uniform tax rate. As to the core definitional issues, we will retain jurisdiction with the expectation that the political branches will define with specificity the components of a constitutionally adequate education before the end of fiscal year 2007.

Or else, the Court warned, that its “deference [to the legislature]…has its limits….[T]he judiciary has a responsibility to ensure that constitutional rights not be hollowed out and, in the absence of action by other branches, a judicial remedy is not only appropriate but essential.”

Justice Galway agreed with majority opinion [which had been concurred in by Chief Justice Broderick and Justice Dalianis], but would not have retained jurisdiction at the superior court level.. Justice Duggan, who concurred specially in part and dissented in part, would find that “[f]urther factual development is necessary to determine whether there are municipalities that are not receiving sufficient funding from the State to pay for an adequate education” and, thus, would remand the case to the trial court for further factual development “regarding whether the funding provided in House Bill 616 is sufficient to fund a constitutionally adequate education.”  It appears that there will be more acts to come in this sad melodrama, since our office holders seem not to have the courage to step up to the plate and solve this problem. It is beyond the comprehension of the author that once the Court found a constitutional requirement, the executive and legislature have refused to do the right thing: accept the constitutional finding even if they disagree with it and do what is constitutionally required: Follow the law as interpreted by the Supreme Court.

In a hotly contested marital case, In The Matter of State of New Hampshire and Taylor,8 opinion issued July 19, 2006, the Court had before it an issue of first impression, whether a previously established child support obligation could be increased by a post-litigation lump sum payment received by the defendant. RSA 458-C:2, IV, defining income for purposes of a parent’s child support obligation does not specifically include a lump sum personal injury settlement. The defendant father, who lost a leg in a terrible automobile accident where he was struck by a drunk driver was to be pitied, but the Court, speaking unanimously through Justice Duggan, inexorably reasoned that based on its earlier cases which allowed the inclusion under the child support guidelines of items not specifically included in the statute and based on cases in other jurisdictions to which the court referred, determined that “the legislature intended to include a lump sum personal injury settlement within the definition of ‘gross income’ in RSA 458-C:2, IV.”

The Court next rejected the father’s argument that the trial court exceeded its discretion when it prorated the amount that he received from his personal injury settlement over each month of his remaining expected lifetime to calculate his monthly support obligation. Although New Hampshire does not have a statute specifically authorizing this method, the Supreme Court ruled that a “trial court may calculate an obligor’s income by prorating the proceeds of a personal injury settlement award over a future period of time.”  On one last matter, the father was successful and the Supreme Court reversed the trial court’s refusal and allowed the father a credit, dollar for dollar, for the multi SSDI benefits received directly by the child from the Social Security Administration. In summary, it is the author’s view that the Court’s decision cost the father obligor, if not an arm, at least a leg [that’s s-o-o-o-o bad, isn’t it?].


1.     Many such examples of felicitous phrasing can be found in Part I, Bill of Rights of our Constitution.  For example, Part I, Article 4: “Among the natural rights, some are, in their very nature unalienable, because no equivalent can be given or received for them.  Of this kind are the Rights of Conscience;” Part I, Article 5: “Every individual has a natural and unalienable right to worship God according to the dictator of his own conscience, and reason;” Part I, Article 14: “Every subject of this state is entitled to a certain remedy, by having recourse to the laws, for all injuries he may receive in his person, property, or character; to obtain right injustice freely without being obliged to purchase it; completely, and without any denial; promptly and without delay; conformably to the laws;” Part I, Article 18: “All penalties ought to be proportional to the nature of the offense.  No wise legislator will affix the same punishment to the crimes of theft, forgery, and the like, which they do to those of murder and treason….The true design of all punishments being to reform, not to exterminate mankind;” Part I, Article 35: “It is the right of every citizen to be tried by judges as impartial as the law of humanity will admit;” Part I, Article 37:  “In the government of this state, the three essential powers thereof, to wit, the legislative, executive, and judicial, ought to be kept as separate from, and independent of, each other, as the nature of the free government will admit.”

2.     See the decision thirty days later, Petition of Evans, opinion issued September 6, 2006, where the Court upheld the sentence review statute under the United States Constitution.

3.     United States v. DiFrancesco, 449 U.S. 117 (1980).

4.     Id.

5.     120 N.H. 925 (1980).

6.     Id.

7.     Citing to the ABA Standards For Imposing Lawyer Sanctions (1992).

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


Charles A. DeGrandpreAttorney 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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