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.

Trust your transactions to the only payment solution recommended by over 50 bar associations.
New Hampshire Bar Association
Lawyer Referral Service Law Related Education NHBA CLE NHBA Insurance Agency
Member Login
Member Portal

Bar Journal - Spring 2007

Lex Loci: A Survey of New Hampshire Supreme Court Decisions



Duquette v. Warden, opinion issued January 19, 2007, examined the question whether or not New Hampshire superior court judges had the power to impose consecutive sentences in the ordinary criminal case.  Surprisingly, RSA 651:2, which is the general sentencing provision of the New Hampshire Criminal Code, does not explicitly authorize consecutive sentences, although there are crimes in the Criminal Code2 which do provide for imposition of consecutive sentences in certain particular instances.  It is surprising that something as commonly accepted as consecutive sentencing is not explicitly statutorily authorized for use in the general criminal case.  The question is an important one because the superior court judges have supported legislation in the past to give themselves such authority because, in the words of Justice Martin Loughlin, consecutive sentences are “a deterrent for the habitual offender.”  The Supreme Court first reviewed the legislative history and found that the rule, dating back to pre-Revolutionary War cases, is that “the principle that the selection of either concurrent or consecutive sentences rests upon the discretion of sentencing judges…[was] firmly rooted in common law.”  The Court found that the statute had once explicitly empowered judges the discretion to impose consecutive sentences but the law had been repealed in 1975, leaving the sentencing statute unclear as to whether a judge had the power to impose sentences consecutively.  The Supreme Court, in the instant case, held that the common law power of judges to impose consecutive sentences remained in existence under the applicable rule that “[i]t is a general principle that the repeal of a statute which abrogates the common law operates to reinstate the common-law rule, unless it appears that the legislature did not intend such reinstatement.”3


A second case illustrating the workings of our common law, St. Onge v. MacDonald, opinion issued January 26, 2007, was a simple tort case claiming negligent infliction of emotional distress.  It appeared that the plaintiff was driving a motorcycle with his girlfriend as a passenger while the defendant followed them in his car.  The motorcycle left the roadway and crashed causing the passenger’s death which the motorcycle driver witnessed.  He filed a suit claiming that the defendant’s negligent operation of his automobile had caused the crash, including a claim for negligent infliction of emotional distress for the driver’s emotional harm at having observed his passenger’s death.  The trial court had ruled that there was not a sufficient relationship between the girlfriend and the motorcycle driver as set out in the landmark Corso case4 to allow damages for emotional distress.  Under the Corso doctrine, as later interpreted by the Court, the test whether a sufficient relationship exists required the trial court to determine “[w]hether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship.”  The Court framed the question as follows: “whether the undisputed facts demonstrate, as a matter of law, a relationship sufficient to meet the requirements” as set forth in Graves v. Estabrook,5 which set forth a four-part test to determine whether the plaintiff had a relationship with the victim “that is of significant duration and which is deep, lasting and genuinely intimate, i.e., a relationship that is stable, enduring, substantial, and mutually supportive, cemented by strong emotional bonds and providing a deep and pervasive emotional security.”  The Court affirmed the trial court’s ruling that such a close relationship did not exist here, pointing out that the plaintiff and the victim were involved in a relationship for only five or six months, did not live together, had not been married or become engaged, and there was no prospect of them becoming so for sometime.  Both the plaintiff and the victim were unemployed and lived with their respective parents and the Court found that to include a relationship such as this one between the plaintiff (and the injured passenger) “would invite a significant expansion of bystander liability in New Hampshire, a result we have consistently refused to permit.”  The common law [here a case in which the Court refused to extend its earlier common law principles] is a marvel indeed.


Community Resources For Justice, Inc. v. City of Manchester, opinion issued January 24, 2007, is an interpretation of the Simplex6 test restating the requirements for the granting of a variance.  Community Resources For Justice (CRJ) is a for profit corporation that proposed to use a building in Manchester as a halfway house to house federal prisoners before their ultimate release from incarceration.  Under Manchester’s zoning ordinances, a “correctional facility,” such as proposed by the applicant, was not a permitted use in any of the City’s zoning districts.  The trial judge had reversed the zoning board which had denied the variance and ordered the variance granted.  But, on appeal, the Supreme Court reversed.  It addressed the plaintiff’s claims (1) that a zoning classification which prohibits correctional facilities was unconstitutional or (2) that it was ultra vires because it exceeded the powers delegated to municipalities by the zoning enabling legislation.


On the latter argument, the Court relied on its earlier opinion in the Britton Case7 and remanded the issue for further hearings in the trial court to determine whether the ordinance provided for the lawful needs of the community, broadly defined, and therefore complied with the provision of the Zoning Enabling Act, RSA 674:16, I, validating zoning ordinances enacted “[f]or the purpose of promoting the health, safety, or the general welfare of the community.”


On the constitutionality issue, the Court established a new intermediate scrutiny test, to eliminate the confusion presented in its earlier cases and to make the New Hampshire test more consistent with the federal test:

To eliminate the confusion in our intermediate level of review and to make our test more consistent with the federal test, we now hold that intermediate scrutiny under the State Constitution requires that the challenged legislation be substantially related to an important governmental objective….The burden to demonstrate that the challenged legislation meets this test rests with the government (in this case, the City)….To meet this burden, the government may not rely upon justifications that are hypothesized or ‘invented post hoc in response to litigation,’ nor upon ‘overbroad generalizations.’

Accordingly, the Court overruled its previous cases to the extent they did not employ the new standard and remanded the case for further proceedings in the trial court in light of its present decision.


Appeal of Pinkerton Academy, opinion issued February 21, 2007,8 is an unusual public employee labor relations board case that doesn’t instantly benumb the author.  It’s almost like slipping him a Mickey Finn.  Two Pinkerton teachers had filed an unfair labor practice complaint against the Academy before the New Hampshire Public Employee Relations Board (PELRB).  The Academy argued that it was subject to the exclusive jurisdiction of the National Labor Relations Board (NLRB) and that the PELRB lacked jurisdiction over it.  It appeared that Pinkerton Academy was organized in 1814 as a nonprofit organization.9  The Academy operated as an independent day and boarding school until 1948, when it began entering into contractual agreements with various school districts to provide high school education to students from the neighboring towns.  The Academy claimed status as a private, nonprofit, secondary school and, as such, since its income was over the required NLRB jurisdictional amount, it was subject to NLRB’s exclusive jurisdiction.  The Court concluded that “Pinkerton Academy was not created directly by the State of New Hampshire so as to constitute an administrative arm of the State, nor is it administered by individuals who are responsible to public officials, nor do its employees participate in the New Hampshire Retirement System” and, as such, Pinkerton Academy qualifies as a nonprofit, educational institution within the exclusive jurisdiction of the NLRB and not the PELRB.


Several cases can be noted briefly.  In The Matter of Chamberlin, opinion issued February 21, 2007, the Court held that the corpus of an irrevocable charitable trust established by the divorcing parties was not marital property, although the parties rights as settlors to receive income from the trust was subject to division as marital property.  In Appeal of Hardy, opinion issued February 21, 2007, the Court interpreted the provisions of the Whistleblowers’ Protection Act, RSA 275-E.  The question was whether the New Hampshire Department of Labor had the statutory authority to award attorney’s fees and costs under a provision that provided that the Labor Commissioner could order the “reinstatement of the employee, the payment of back pay, fringe benefits and seniority rights, any appropriate injunctive relief, or any combination of these remedies.”  [emphasis supplied].  The Board had found that the complainant had met his initial burden of proof, but ruled that the Labor Board did not have the authority to award attorney’s fees.  The Supreme Court reversed, stating that the broad phrase allowing the DOL to award “any appropriate injunctive relief” was sufficient broad to include the award of attorney’s fees.  Two Justices dissented, stating that the statutory provision was not sufficiently clear to allow the awarding of attorney’s fees, particularly in light of earlier decisions of the Supreme Court involving other administrative bodies.


Plourde Sand & Gravel v. JGI Eastern, Inc., opinion issued February 16, 2007, establishes the principle that in a tort action, damages for purely economic losses are not recoverable, unless there was privity between the plaintiff who sought economic loss damages and the defendant.  The plaintiff was awarded a contract to provide gravel for  purposes of the construction of the base of a roadway on a private construction project.  Before accepting the roadway as a public street, the town hired the defendant engineers to determine whether the roadway base met the town specifications and the engineer reported that the roadway base was not sufficient.  As a result, the plaintiff contractor was required to remove and replace the road base at his own expense.  In turn, it sued the defendant engineer claiming it was negligent in its report that the defendant’s negligence was the proximate cause of the plaintiff’s harm, and the defendant was therefore responsible for the economic losses occurring to the plaintiff.  The Court would not extend the economic loss doctrine as argued by the plaintiff:

The economic loss the plaintiff suffered in removing and replacing the gravel arose ‘solely from disappointed commercial expectations’ in that the plaintiff  ‘lost the anticipated profits of its contract’ with [the developer]….Imposing a tort duty upon the defendant in this case would disrupt the contractual relationships between and among the various parties.  This we are unwilling to do.  Accordingly, we find no ‘special relationship’ between the plaintiff and the defendant such that the defendant owed to the plaintiff an independent duty in tort to prevent economic loss.


In Eldertrust of Florida, Inc. v. Town of Epsom, opinion issued January 18, 2007, the Supreme Court addressed again the growing issue of the real estate tax exempt status of not-for-profit corporations which are owned by for profit corporations.  Cities and towns all over the state are grappling with the issue of whether or not an organization qualifies for a charitable property tax exemption in situations where the charitable organization employs a vast number of people, has income in the millions, and has all the trappings of a profit making corporation.  Not-for-profit hospitals and retirement communities quickly come to mind.


The Court used the case to “synthesize our previous holdings and to delineate a clear, multipartite inquiry, grounded in the statutory language, as to when a charitable tax exemption should be granted under RSA 72:23, V and RSA 72:23-l.  We now take the opportunity to join a number of other courts….in articulating a discrete set of factors against which a charitable tax exemption application must be evaluated.”  A unanimous Court, speaking through Justice Duggan, created a four part test which an institution is required to satisfy in order to become entitled to real estate property tax exempt status under RSA 72:23, V and RSA 72:23-l:

(1) the institution or organization was established and is administered for a charitable purpose; (2) an obligation exists to perform the organization’s stated purpose to the public rather than simply to members of the organization; (3) the land, in addition to being owned by the organization, is occupied by it and used directly for the stated charitable purposes; and (4) any of the organization’s income or profits are user for any purpose other than the purpose for which the organization was established.  Under the fourth factor, the organization’s officers or members may not derive any pecuniary profit or benefit.


After analyzing all of the specific facts involved, the Supreme Court upheld the trial court’s determination that the plaintiff had met its burden with respect to each of the four issues.  Yet, seemingly, the Court acknowledged the heavy burden borne by towns by the tax exempt status of these huge operations and warned, however, “we regard this as a particularly close case….While we are bound to apply the statute as written….the legislature is of course free to amend the statutory scheme, should it disagree with the result we reach today.”


State v. Veale, opinion issued January 19, 2007, is a very interesting opinion by Justice Galway, which the author believes reflects his many years as a litigation attorney in a large law firm, and as a former President of the New Hampshire Bar Association.  The question before the Court was whether the appellate defender, in a case by a defendant who appealed to the Supreme Court claiming ineffective assistance of trial counsel (a public defender) required it [the appellate defender] to withdraw from the case.  The Court posed the question as one of first impression in the State, “whether the appellate defender may represent a client who has raised a claim of ineffective assistance against a public defender.”


The Court’s careful opinion first looked at whether the appellate defender and the public defender were “in essence, a single office or ‘firm.’”  If so, the rules of professional conduct relating to conflicts of interest applicable to the firm would seem to apply to this situation.  The Court, reviewing the close relationship between the appellate defender and the public defender concluded that “they qualify as a single firm for the application of the rules of professional conduct.”  However, the Court disagreed that the conflict of interest rules applied in the same manner as they applied to private firms stating that it would adopt a “hybrid” rule.  The Court held that “when an ineffective assistance of counsel claim is filed against a public defender, the offices of the public defender and the appellate defender are subject to the same conflict rules as are attorneys in private practice.  The Court then adopted a “hybrid approach” which “requires a defendant to weigh the consequences of raising a claim of ineffective assistance against a public defender, e.g., possible delays in the disposition of his direct appeal, against his desire for a prompt resolution obtained with the aid of the specially trained attorneys of the appellate defender’s office.”  Under this approach where a defendant has raised the issue of a claim of ineffective assistance against a public defender, the appeal will be stayed and the trial court must consider the matter of ineffective counsel on its merits.  When the trial court has rendered its decision, the defendant may, if necessary, resume the litigation of his original appeal with the aid of the appellate defender or with independent counsel, whichever is required under the trial court’s decision.  This seems to the author a good common sense approach to a prickly issue.


Finally, in State v. Holmes, opinion issued January 19, 2007, the Court examined in some detail the claim of the defendant who appealed his statutory rape conviction under RSA 632-A:3, II by engaging in sexual penetration10 with a person who was thirteen years of age or older but less than sixteen years of age.  The defendant argued that the trial court had erred by ruling that the State did not have to prove that he knew that the victim was under the age of legal consent.  The trial court’s ruling was based upon a 1979 Supreme Court case, Goodrow v. Perrin,11 which had held that the State did not have to prove beyond a reasonable doubt that the defendant knew the victim was less than sixteen years old.  In the Supreme Court, the defendant made a full scale attack on Goodrow v. Perrin claiming (1) that the case should be overturned because the facts had so changed that the rule had been robbed of its significant application or justification or (2) that related principles of law had so far developed as to have left the old rule no more than a remnant of an abandoned doctrine.  These were two of a four-prong test the Court had previously adopted for abandoning the principle of stare decisis and overturning a prior decision.12


The Court recognized that today, across America fornication13 was no longer a crime and that since the 2003 U.S. Supreme Court’s ruling in Lawrence v. Texas,14 the states could not criminalize private consensual sexual conduct between adults, e.g., sodomy.  The defendant argued that the Goodrow decision was really “no more than a remnant of abandoned doctrine” and, thus, should be overturned.  However, a unanimous Supreme Court, speaking through Justice Dalianis, affirmed the trial court’s ruling, holding that

[s]tatutory rape laws are based upon ‘a policy determination by the legislature that persons under the age of sixteen are not competent to consent to sexual contact or sexual intercourse’….The statutes are designed to impose the risk of criminal penalty on the adult, when the adult engages in sexual behavior with a minor….The reason that mistake of fact as to the [child]’s age constitutes no defense is, not that these crimes like public welfare offenses require no mens rea, but that a contrary result would strip the victims of the protection which the law exists to afford.

Nor would the Court buy into the defendant’s argument that the Goodrow decision was contrary to the modern trend of judicial decisions in the area, the Court noting that the issue was one to be addressed by the legislature in its statutory definition of the crime of statutory rape.  The Court pointed out that since the Goodrow decision, the legislature had amended the statutory rape law numerous times but had not seen fit to add a mens rea requirement or to make reasonable mistake of age a defense.



1.   Holmes, Oliver Wendell. The Common Law. Boston: Little, Brown, and Co., 1881.

2.   RSA 651:2, II-B; RSA 597:14-B; RSA 642-8; RSA 642-9.

3    73 Am. Jur. 2d Statutes § 271 (2d ed. 2001).

4.   119 N.H. 647 (1979).

5.   149 N.H. 202 (2003).

6.   Simplex Technologies v. Town of Newton, 145 N.H. 727 (2001).

7.   Britton v. Town of Chester, 134 N.H. 434 (1991).

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

9.   The author can well remember the days of tedious title work in the Rockingham County Registry of Deeds in 1962 and 1963 searching the title records of the Academy’s multitudinous land holdings built up over the years.  Rockingham County then used the peculiar system of indexing referred to as “initial of last name, initial of first name,” otherwise called by title examiners something unprintable.  This sort of indexing required one to look first under the initial letter of the last name of the grantee [her

e “A”] and then next under the initial of its first name,[in this instance “P”]. Also, an astute examiner would have to search “Associations” and “Corporations,” since all such entities were filed alphabetically by their first initials.  In Pinkerton’s case, one also searched under “T” since some of the deeds to the Academy had been given to the “Trustees of Pinkerton Academy.”  It was a hopeless quagmire and the author finally concluded that he could not establish title in the Academy for all of the property it actually owned and occupied.

10. The author was recently astonished to hear from a friend who is a criminal lawyer [whose advertising motto is “We’ll Fight For You”] that, nowadays, “penetration” does not require insertion of anything into the victim’s body!!  Could this be true?  Is the law an ass?  Is not plain English clear that penetration requires an insertion of something into something else?  Well, wrong, wrong, wrong!  See RSA 632-A:1, V; RSA 632-A:2, II; RSA 632-A:3, III; State v. Zeta Chi Fraternity, 142 N.H. 16 (1997).

11. 119 N.H. 483 (1979).

12. See Jacobs v. Director, New Hampshire Division of Motor Vehicles, 149 N.H. 502 (2003).

13. The author’s ancient law school dictionary by James A. Ballantine defines fornication as follows: “The illicit sexual intercourse between either a married or an unmarried man and an unmarried woman.  It was not, per se, a punishable act at common law [see the author’s earlier comments about the development of our common law] but the ecclesiastical courts punished as fornication an act of sexual intercourse between a man and a woman not married to each other.”  AHA!  As one might suspect, it was the clergy not the common law courts that were worried about the evils of fornication.

14. 539 U.S. 558 (2003).



Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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