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Bar Journal - Fall 2007

LEX LOCI: A Survey of New Hampshire Supreme Court Decisions


The New Hampshire Supreme Court recently handed down two monumental constitutional opinions, in each of which the Court split three to two.  One case involved the Federal Constitution and the other, our New Hampshire Constitution.  In each case, Chief Justice Broderick was in the dissent and both illustrate the best workings of our New Hampshire appellate system.  In the first, State v. O’Maley, opinion issued September 5, 2007, the issue was an alleged Federal Confrontation Clause violation, the claim of the defendant being that the admission of a blood sample collection form and blood tests upon which the state’s medical doctor witness based his testimony, violated the Federal Confrontation Clause.
1 The issue arose in the context of a simple DWI bench trial in the Derry District Court where the court admitted certain out-of-court statements (specifically, documents such as blood sample collection forms and laboratory test results, upon which the state’s expert had based his testimony).  It’s important to note that neither the technician who drew the blood nor the analyst who chemically tested it testified at trial.  As the dissent acknowledged, the consequences of the Court’s ruling “would be of no slight consequence for the prosecution of certain offenses in this State and for expert witnesses.” Indeed, had the dissenters' view prevailed, the prosecution of hundreds, if not thousands, of everyday cases, most in the district courts, would have become more costly, lengthier and more complex. 


The issue was whether the admission of this hearsay evidence was testimonial in nature and thus violated the Confrontation Clause which gives a criminal defendant “the right…to be confronted with the witness against him.”  The three-judge majority, writing through Justice Dalianis, ruled that the blood sample collection form and the blood test result were not testimonial and held that the admission of the form and the professional expert’s testimony did not violate the Federal Constitution’s Confrontation Clause.  A vigorous dissent followed, authored by Justice Duggan, in which Chief Justice Broderick concurred.  While acknowledging the majority’s “thoughtful opinion,” the dissenters argued that the statements and expert opinion were testimonial as they constituted the “use of ex parte affidavits to secure criminal convictions [which] was ‘the principal evil at which the Confrontation Clause was directed.’”


In the second important appellate analysis case, Petition of the State of New Hampshire (State v. Johanson, Jr.),2 the question was whether the New Hampshire Constitution’s venue provision,3 which presently clearly provides, as amended in 1978, that “no crime or offense ought to be tried in any other county…than that which it is committed,” was violated in the present case.  The constitutional provision goes on to provide that, under certain circumstances the defendant may move for a change in venue.  The unusual facts of this case were that the crime was alleged to be committed in Cheshire County, but because of a conflict with available judges, the chief judge of the superior court, on his own motion, moved the trial of the case to a different county.  The defendant did not object until at the close of the state’s case and jeopardy attached, at which point the defendant raised the claim that the constitutional provision was mandatory and could only be waived by his written assent, which he had never given.  The question turned on the question of whether the constitutional prohibition was absolute or could be waived by the defendant by his failure to object when the venue change was made.  The trial court considered the matter at length and dismissed the indictment, ruling that the bench trial violated the constitutional venue provision.


A three-judge majority of the Supreme Court, speaking through Justice Duggan, examined in great detail the venue clause and its history and concluded that venue is not a “material element of every criminal offense and that the defendant could waive the provision and he had done so when he failed to timely object to the change in venue.  The majority then held that the Double Jeopardy Clause of our State Constitution did not bar remand of the case to the county in which it was tried.  The majority specifically found the ruling of the trial court to be erroneous as a matter of law, vacated the trial court’s decision, and sent the case back to the trial court.  Are we confronted by an activist court which does not carry out by their decisions the “original intent” of the drafters of our State Constitution?


The dissents, authored by Chief Justice Broderick and by Justice Galway, separately, provide an intriguing discussion of the venue clause and whether or not the order of the judge of the superior court changing venue was constitutional.  The Broderick dissent pointed out that “both parties agreed that the respondent had a constitutional right to be tried in Cheshire County.”  His dissent would hold with the majority that the defendant may waive his right to be tried in the county in which the crime was committed, but here he did not file a written waiver but took no action after the case was removed to another county.  Clearly of concern to the Court was the fact that “the manner in which [the defendant] requested [a change of venue]—by means of a motion filed at the close of the State’s case in a one-day trial—it would not be unfair to accuse him of trying to ‘game the system’ by attacking venue only after jeopardy had attached.”  The Broderick dissent concluded that the venue was changed unconstitutionally, that all proceedings conducted after the unlawful sua sponte change of venue is void ab initio and the Chief Justice would have required the defendant to be retried in Cheshire county.


      The Galway dissent stressed the unequivocal language of the venue clause:

Because the New Hampshire requires a change in venue to be based upon a motion by the defendant and because the defendant made no such motion here, I would conclude that the decision of the superior court to dismiss the matter for improper venue was correct.

Justice Galway also disagreed with the majority’s conclusion that the double jeopardy clause was not violated by the double jeopardy clause and would conclude “that retrial of the defendant is barred by double jeopardy.”  This is a very curious case made even more curious by the fact that while a motion for rehearing was pending in the Supreme Court, the defendant died, leaving the exact status of the State’s case against him unresolved at the time of the deadline for this column.


An engrossing descent and distribution case, Khabbaz v. Commissioner, Social Security Administration, opinion issued August 9, 2007, on a Rule 34 certification from the United States District Court for the District of New Hampshire, considered and answered in the negative the question:

Is a child conceived after her father’s death via artificial insemination eligible to inherit from her father as his surviving issue under New Hampshire intestacy law?

The facts showed that the Mr. Khabbaz and Ms. Eng were married in 1989 and six years later had a son together.  Approximately seven years later, Mr. Khabbaz was diagnosed with a terminal illness and he subsequently began to bank his sperm so that his wife could conceive a child through artificial insemination.  He also executed a consent form indicating that the sperm could be used by his wife to achieve a pregnancy and he stated in writing that it was his “desire and intent to be recognized as the father of the child to the fullest extent allowable by law.”  Mr. Khabbaz died soon thereafter, but the plaintiff was conceived by artificial insemination after Mr. Khabbaz’s death, using his banked sperm, and was born two years after her father’s death.


The question turned on the issue of whether, under our intestacy distribution statute, RSA 561:1, the plaintiff was “a surviving issue” of Mr. Khabbaz for purposes of inheriting from him under the New Hampshire intestacy law.4  The Court, speaking through Justice Duggan, first made its key ruling that the term used by the intestacy statute, “surviving issue” contained the plain meaning of the word “surviving” as remaining alive or being in existence.  Since the petitioner was not alive or in existence at the time of Mr. Khabbaz’s death, the Court held that she was not a “surviving issue” under the plain meaning of the statute. 


The Court next addressed the question in the petitioner’s alternative argument that under the rules of statutory construction, RSA 21:20, defines “issue” as “includ[ing] all the lawful lineal descendants of the ancestor.”  Upon analysis, the Court concluded that RSA 21:20 does not compel a contrary result since the application of RSA 21:20 as the petitioner argued “would undermine the finality and orderly distribution that the legislature clearly contemplated” by the comprehensive scheme for estate distribution set up by RSA Chapter 561.5


Next, the Court rejected the petitioner’s argument that RSA 561:4, which describes the inheritance rights of children born to unwed parents, gave her the right to inherit from Mr. Khabbaz’s estate under New Hampshire intestacy law.  The Court rejected that argument for the reason that her parents were not “unwed” for the purposes of this statute.


The petitioner then argued that RSA 168-B, which creates a framework governing artificial insemination, in vitro fertilization, etc., gave her the right to inherit from Mr. Khabbaz’s estate.  The Court rejected that argument, stating that RSA 561:1 was the governing statute on inheritance.


Finally, the Court rejected a public policy argument made by the petitioner that the Court’s interpretation “essentially leaves an entire class of posthumous[ly conceived] children unprotected,” but the Court left that for the legislature to grapple with.  With this argument, Chief Justice Broderick agreed.  He concurred specially, arguing that the Court’s holding “leaves an entire class of posthumous children unprotected under the intestacy statute.”  The Chief Justice argued for legislative action:

I write separately to respectfully urge the legislature to examine, within the context of the state’s intestacy statute, the confluence of new, ever-expanding birth technologies and the seemingly arcane language and presumptions attendant to the settlement of decedents’ estates.  I believe that with time and further technological advances, this confluence will engulf more and more of our state’s families and the children produced as a consequence of such advances.

The Chief Justice went on to stress that “it is important to recognize a critical purpose of the intestacy statute; that is, the protection of an intestate decedent’s spouse and issue and the preservation of wealth for them, pursuant to principles of equity and equality.”


In a right to bear arms case, Bleiler v. Chief, Dover Police Department, opinion issued July 18, 2007, the Court had before it the petitioner’s appeal from an order of the Dover District Court upholding the decision of the respondent, the Chief of the Dover Police Department, to revoke the petitioner’s permit to carry a concealed weapon.  This required the Court to construe Part I, Article 2-a of the State Constitution which provides: “All persons have the right to keep and bear arms in defense of themselves, their families, their property and the State,” [which surprisingly, was not added to our Constitution until 1982].  RSA 159:6-b, New Hampshire’s concealed gun statute, requires that a person get a license to carry a concealed weapon and gives the Chief of Police of the municipality involved the power to grant or to revoke concealed gun permits issued under the statute.  The petitioner argued that the statute unconstitutionally took away his fundamental right to bear arms provided by this amendment.  The facts in the case showed that the appellant had been issued a concealed gun permit and while packing heat, went into the office of the Dover City Attorney to discuss the plaintiff’s recently filed lawsuit challenging the contracts of several city employees, including the City Attorney.  During the conversation, the petitioner removed a loaded pistol from his pocket and placed it on the desk as a “prop” in a story he was telling, which involved threats that allegedly had been made upon him several years ago by organized crime members.  The conversation was described by a city employee as “unusual and heated.”  As a result of this action, the police chief revoked the petitioner’s license to carry a concealed weapon because he was “not suitable” at this time to carry one.  The author doesn’t get it.  Aren’t these supposed to be concealed weapons?  For them to be concealed, shouldn’t they not be shown unless to be used?  This brings to mind a recent case in the City of Portsmouth in which a diner at a local restaurant who had a concealed gun permit absent mindedly left on the banquet bench at the table at which he had had dinner a loaded pistol which was found later by an employee of the restaurant!!


The Supreme Court defined the question before it “as whether revoking the petitioner’s license to carry a concealed weapon for just cause impermissibly infringed upon his state constitutional right to bear arms.”  The Court assumed, for purpose of deciding the case, that the state constitutional right to bear arms is a fundamental right, but rejected the petitioner’s argument that such a designation required it to apply a “strict scrutiny” test to a review of the concealed gun law statute, RSA 159:6-b.  The Court instead adopted a balancing test, rejecting the petitioner’s argument that the New Hampshire state constitutional right to bear arms was absolute and may not be subject to restriction or regulation. 

   Applying this test, we now examine whether, in balancing the legislature’s authority to enact legislation for the health, safety and welfare of the public, RSA 159:6-b goes too far and unreasonably impinges upon the constitutional right to bear arms.  We conclude that RSA 159:6-b is a reasonable limitation upon the state constitutional right to bear arms.

In Re Estate of Sharek, opinion issued August 22, 2007, is an interesting case of first impression involving the application of RSA 551:3, II, enacted in 1998, which provides that the subsequent divorce of a testator revokes any disposition of property made by the testator to the testator’s former spouse.6  This statute changed a centuries-old doctrine in New Hampshire that divorce did not work an implied revocation of a testator’s will.  The New Hampshire rule was a minority position among the states.  The new statute was enacted to presumably carry out the testator’s intent in this modern day and age that the testator would have revoked the provision in favor of his former spouse had he thought about it.  The author and many other practitioners have been confronted with many cases during their years of practice in which a former spouse takes insurance proceeds or under a provision under the will or trust where the testator clearly would not have wanted to benefit the former spouse rather than benefit children or a second spouse, etc.  In the present appeal, the former wife of the decedent appealed the decision of the probate court revoking her interest under the decedent’s will under the 1998 statute and mounted a full attack on the underpinnings of the statute, including whether the statute could be applied retrospectively and the Court concluded that it could:

[The statute] merely shifts to the testator the burden of taking the affirmative action to reverse the intent implicit in the law.  The [legislature], in evaluating the advisability of changing the law, undoubtedly concluded that the number of forgetful testators who would be benefited by the stature far exceeded the number of careful testators who might be inconvenienced by its enactment.  We perceive no reason why the beneficial effect of the statute should be denied to those whose divorces have antedated its enactment.

The author recently came across the use of a legal term that delighted him and which will delight those readers who revel in the discovery of cloudy, arcane phrases, often particularly found in the law, which cause a person to go to their dictionary.  One such case is State v. Ulloa, Rockingham County Superior Court Indictment 06-5-3496, dated December 12, 2006.  The author was recently shown an indictment in this case, which involved the alleged sale of a narcotic drug, which described the defendant as follows:




Rockingham County House of Corrections, Brentwood, New Hampshire


The meaning eluded the author until he spoke with both the defendant’s attorney and the Rockingham County Attorney who revealed the meaning of the term “commorant.”  Apparently, it is common procedure in Rockingham County Superior Court, going back many years, to describe a defendant who is indicted and who is then in jail as “Commorant, Rockingham County House of Corrections” meaning that the defendant only temporarily resided at the jail.7  What a wonderful and quaint use of a term.  Presumably, a literate defendant, upon indictment in the Rockingham County Superior Court and described as “commorant” could hope that he will only temporarily reside in the county jail.  Alas, one possibility is that he may be convicted and sent to state prison.


New Hampshire’s historical unreceptivenessness to class actions was on full display in Petition of Bayview Crematory, LLC, opinion issued August 8, 2007.  The lower court had certified as a class action the lawsuits of the respondents who were relatives of family members that had contracted with the petitioner, Bayview Crematory to provide cremation services.  Bayview had provided cremation services itself and also to five other funeral homes and the respondents brought suit against the petitioners and other funeral homes that contracted with Bayview asserting, inter alia, negligence and negligent infliction of emotional distress because of the horrid manner that their family members’ cremains had been handled.  These alleged abominations included the following:

Bayview used the services of medical examiners who were not licensed to practice medicine in New Hampshire.  Bayview was never certified by the New Hampshire Department of Health and Human Services.  Many of the documents used in the day-to-day operations of Bayview were forged, including authorizations to perform cremations, medical examiner cremation certificates, and a death certificate.  A body was left decomposing in an inoperative refrigerator.  ‘Multiple bodies’ were placed in retorts and cremated simultaneously.  Metal tags used to identify bodies were placed in the decedents’ files rather than affixed to their bodies.  Cremations were performed for which the next of kin had signed an authorization form for another crematorium.

The trial court had ruled that “certain negligence issues are appropriate for class treatment,” specifically including: 

(1) the nature and duration of Defendant Bayview’s alleged mishandling of human remains; (2) the standard of care in the funeral industry—alleged to apply to all defendants, and the nature of the defendants—for providing and supervising cremation services; and (3) the nature of defendants’ alleged breach of that standard of care, either by action or inaction.

On appeal, the Court acknowledged that New Hampshire had not yet established a standard for reviewing class certification orders, although the federal courts had done so.  The Court first adopted as its standard the federal abuse of discretion standard with de novo review for purely legal questions, which is the rule in the First Circuit Court of Appeals.8  Interpreting Superior Court Rule 27-A(a), which establishes the guidelines for the requirements for class actions, a unanimous Supreme Court, speaking through Justice Galway, focused on both the commonality and the predominance requirements established by the Federal Rule.  The commonality requirement, the Court found, is easily met in most cases and will be satisfied if the proposed class members share at least one significant question of law or fact in common with each other.  However, the predominance requirement is far more demanding and to satisfy it, “the issues common to the proposed class must outweigh the issues that are particular to the individual class members.”  The Supreme Court concluded that the trial court had erred both on the commonality issue and the predominance issue and reversed the class action certification.


Finally, the author will close with a classic last case, Kelton v. Hollis Ranch, LLC, opinion issued July 17, 2007.  Can you imagine a case in which a horse was sold by the defendant to the plaintiff as a “gelding”9 and turned out to be more of a stud than a gelding?  This gelding had a wonderful name, April Magic.  Soon after the plaintiff’s purchase of the gelding for more than $4,500, when stabled next to a mare, Magic began to display “stud-like qualities”!!!  (Just what could those qualities be?)  It turned out Magic had an undescended right testicle that produced testosterone, causing the “stud-like” behavior.  The plaintiff had the horse examined by a large animal veterinarian at Tufts University Hospital for Large Animals and the vet discovered that although the horse had a surgical scar on its scrotum consistent with a gelding procedure, and even though an ultrasound and palpitation of the area did not indicate a recessed testicle, the evidence of testicular tissue was confirmed by a positive testosterone lab test.  The veterinarian testified that there was no reason for either the seller or the buyer “to question that the horse was a gelding, and no layperson or veterinarian would have any reason to suspect otherwise.”


As the Supreme Court (Hicks, J.) lyrically stated, “Magic, it turned out, had a trick up his sleeve.”  But not for long, since soon after his examination, the veterinarian removed Magic’s undescended testicle.  The petitioner had incurred considerable costs and expense and sued the seller under the Consumer Protection Act, arguing that she was sold a horse represented to be a gelding, but got otherwise.  She argued that regardless of the defendant’s good faith lack of knowledge about the defect, the Consumer Protection Act, RSA 358-A, provided for strict liability.  The Supreme Court, alas, said Magic’s last trick was ultimately on the buyer since legal liability is very strictly imposed in New Hampshire and “has traditionally met with disfavor in this jurisdiction.”  In New Hampshire, “strict liability is available only ‘where the legislature has provided for it or [in] those situations where the common law of the state has imposed such liability and the Legislature has not seen fit to change it.’”  Since the relevant portions of the Consumer Protection Act speaks of deceptive practices, the Court construed the statute “as requiring a degree of knowledge or intent” which it was entirely lacking in the present case.



1.   U.S. Constitution, Article VI, X14.  The appellant did not properly preserve his New Hampshire Constitutional  clauses and as a result, the Supreme Court did not consider them.

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

3.   Part I, Article 17.

4.   An interesting side question is why the decedent did not execute a will providing for a child born after his death.  Could the decedent have done so?

5.   Interestingly, the author in his probate treatise [New Hampshire Practice: Probate Law and Procedure, § 54-9, had concluded to the contrary, reasoning that the statutory definition of RSA 21:20 would act to include all after born children as takers under the intestacy law.  WRONG AGAIN!

6.   The author drafted this statute and testified in support of its passage and, thus, his views on this case may be colored.

7.   See Balantine’s Law Dictionary, Second Student’s Edition, (1953) page 161.

8.   McKenna v. First Horizon Home Loan Corp., 475 F.3d 418 (2007).

9.   Webster’s New Collegiate Dictionary 2nd Edition, page 344, 1948: “gelding: a castrated animal; specif., a castrated horse.



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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