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Bar Journal - Winter 2008

LEX LOCI: A Survey of New Hampshire Supreme Court Decisions


Attorney Charles A. DeGrandpre

New Hampshire, because of its unique constitutional provisions regarding freedom of the press and the openness of criminal proceedings, has a well deserved reputation for being foremost among the states in allowing public access to court proceedings. This stance can lead to some very difficult appellate questions. State v. Decato, opinion issued December 18, 2007, presented issues raised by two of New Hampshire's leading newspapers, which were denied access to proceedings and records of probable cause hearings initiated by the state against the defendant pursuant to a petition for an Involuntary Civil Commitment of Sexually Violent Predators Act (SVPA), Chapter 135-E. The Supreme Court, speaking unanimously through Justice Dalianias, vacated the order of the trial court which had granted access to the newspapers to only certain parts of the proceedings. The question for the trial court was whether the defendant was a sexually violent predator as defined by the SVPA. The trial court convened a multidisciplinary team of physicians and counselors to advise it as provided by RSA 135-E:4. Upon receiving the petitioners' request for access to the proceedings, the trial court compromised and allowed them access to certain portions of the proceeding but provided only a redacted version of the testimony and report of the multidisciplinary team of treating physicians and counselors.

The Supreme Court first turned to three New Hampshire constitutional provisions relating to the (1) freedom of the press: Part I, Article 8, relating to access to governmental proceedings, (2) Part I, Article 7, relating to the right of the people of the State as having the sole and exclusive right of governing themselves and (3) Part I, Article 22, relating to the right of free speech. Eloquently, the court stated that "[r]ead together, these provisions express the American theory of government that the government is ultimately accountable to the people":

[P]ublic access will play an important positive role in upholding proceedings under the SVPA. The legislature has found that sexually violent predators pose a significant public safety risk and that they often commit further acts of sexual violence after being released from confinement. Thus, it is particularly important that the citizens of New Hampshire be able to hold their government accountable for the integrity of proceedings under the SVPA.

The petitioning newspapers' attorneys1 were even successful in convincing the Supreme Court that its reasoning applied not only to the probable cause hearing but to the entire criminal proceedings under this statute.

Two recent cases involved commonplace, but very important, issues of whether a road is a public road or not. In the first, Hersh v. Plonski, opinion issued December 7, 2007, the question was whether or not a public road had been created under the common law by "dedication and acceptance." The Court reiterated its previously stated position that conveying lots by reference to a recorded plan which shows the subdivision of a tract with proposed streets is one way to dedicate a street to public use. However, such a dedication must be followed by acceptance which "may be by express acts that include adopting an offer of dedication by ordinance or formal resolution, or implied by acts such as opening up or improving the street, repairing it, removing snow from it, or by assigning police patrols to it…. [P]roof of acceptance by the public must be unequivocal, clear and satisfactory and inconsistent with any other construction." (Emphasis added.) The Court went on to unanimously rule that the respondent land owners had failed to show that the 1928 dedication showing the disputed area as a public street had been impliedly accepted as a dedicated street and thus the respondents' petition to quiet title was denied.

In the second case involving public roads, Gill v. Gerrato, opinion issued December 20, 2007, the question before the Court was whether a road, once public, was later abandoned. The Court held that a lane had been created as a public highway by prescription and the question was whether, once a public highway, it had been later abandoned. The defendants argued that the Supreme Court should "create a rule providing for judicial discontinuance of public highways" under certain circumstances. The Court declined to do so, citing the longstanding New Hampshire rule that an established public highway "cannot be discontinued simply by lack of use."

New Hampshire has very little common law relating to the assessment of a surcharge upon a fiduciary who has failed to exercise the requisite standard of care and trust that the office requires. In Re Guardianship of Dorson, opinion issued October 31, 2007, greatly expanded that law where the Hillsborough County probate court had imposed a surcharge upon a guardian for improper withdrawals from the guardianship accounts he held for the ward. Upon appeal, the Supreme Court defined a surcharge as an "equitable remedy imposed upon a trustee when a trustee fails to exercise the requisite standard of care and trust and the trust suffers thereby" and held that a probate court's powers when drafting a remedy for a trustee's breach of trust and breach of loyalty were extremely broad. The probate court may, for example, award direct damages, consequential damages, and even punitive damages where malice or fraud is involved. Here the probate court had made the surcharge award based upon the value of the loss of appreciation of the misappropriated funds. The Supreme Court unanimously held that:

the trial court did not engage in an unsustainable exercise of discretion by awarding the difference in value of the [funds] from the date they were misappropriated to the date that the probate court approved partial settlement. The trial court reasonably could have concluded that such a surcharge was equitable under the circumstances of this case.

State v. Doyle, opinion issued October 17, 2007, presented the adoption of a new doctrine which the author had not previously encountered and which, apparently, the New Hampshire Supreme Court had only once before encountered:2 the de facto officer doctrine. The author, never believing the old adage that an old dog can't learn new tricks, intently perused the opinion to become educated in this rarely considered issue. It appears that the defendant became involved in a fight at a polling place at the town of Windham's annual town election. One Webster was acting as a supervisor of the checklist at the election and, as such, was an elected official as defined by RSA 652:14. However, Webster was also running in the election for the, presumably, hotly contested position of "Trustee of Cemetery." When the defendant became involved in a fight between his own father and a third party [you know how divisive these town elections can be?], Webster ended up being pushed by the defendant when Webster attempted to quell the skirmish between the parties. The State, ever vigilant, then charged the defendant with felonious assault upon a town officer pursuant to RSA 659:41. The defendant moved to dismiss the indictment arguing that Webster was disqualified as acting as a town officer because she was on the ballot as a candidate in violation of RSA 658:24 and thus was not discharging a duty of her office as required by the criminal statute, RSA 659:41. The Supreme Court framed the question as being "[w]hat effect this disqualification has on Webster's status at the time of the election, considering she was nevertheless performing duties customary for a supervisor of the checklist." The Court found that Webster qualified as "a de facto officer" and, as such, "the order and peace of society" required that her authority be respected and obeyed. The Supreme Court concluded by ruling that "the validity of Webster's act and her title cannot be collaterally attacked by the defendant in this criminal case."

Several cases can be noted briefly. State v. Hancock, opinion issued October 16, 2007, established the rule that it is improper for a trial judge to impose an additional sentence of probation where it had already imposed the maximum incarceration time and the maximum fine upon the defendant. The Court held that "[i]n order to impose probation [the trial Court must] retain a portion of its sentencing power as an enforcement mechanism." In Kessler v. Gleich, opinion issued December 16, 2007, the Court ruled that a limited partner of a limited partnership may maintain an action for breach of fiduciary duties by a direct suit against the general partner. The Court held that a derivative action was not required in the context of a small limited partnership made up of a few individuals and held that the trial Court had the discretion to allow the plaintiff as a limited partner to pursue a direct claim against the corporate officers. In the matter of Stapleford and Stapleford, opinion issued September 28, 2007, the Court held that mature children (older but still under the age of majority) in a domestic relations proceeding "have no due process right to intervene in their parents' divorce."

In a case redolent of the immemorial Palsgraf Case3, the New Hampshire Supreme Court case of Macie v. Helms, opinion issued September 21, 2007, involved a negligence action where the defendant, while operating a tractor trailer, struck and damaged a traffic light while negotiating a right hand turn in the city of Lebanon. The plaintiff, an electrician employed by the city of Lebanon, was dispatched on an emergency basis to repair the light. The plaintiff subsequently injured his shoulder during the course of the repairs when the stoplight fell and the plaintiff wrenched his shoulder when he attempted to stop it from falling. The question was whether defendant driver's conduct created a foreseeable risk of harm to the plaintiff sufficient to charge the driver with the duty to avoid his conduct toward him. The Supreme Court concluded that the scope of the duty of the defendant is limited to those risks that are reasonably foreseeable, citing to the Palsgraf Case and concluded that "[t]he defendants did not owe a duty of care to this plaintiff, who was sent by the city to repair the traffic light." Ah, this all brings back memories of the author's first year of law school at Michigan in 1959. The course was Torts I, Marcus Plante, professor, where the author wrestled with the parameters of negligence in the case of a subway passenger who, while carrying a small package of fireworks, fell, as a result of which the fireworks exploded and caused foreseeable or unforeseeable injuries to several different potential plaintiffs, all at different distances from the exploding fireworks. A classic case.4

In Everitt v. General Electric Company, opinion issued September 21, 2007, the Supreme Court for the first time adopted the official immunity doctrine for municipal police officers and identified that the standards for determining whether such immunity protects an officer's particular decision at its commission. The Court's unanimous opinion by Chief Justice Broderick should be studied carefully by litigators for the particular requirements imposed by the Court to involve the doctrine. The concern was expressed to the court that the adoption of this doctrine would allow insurers to hide behind immunity claims. It is enough for the author to point out that the Court particularly cautioned "[t]hat the purpose of immunity is to operate as a bar to a lawsuit, rather than as a mere defense against liability, and is 'effectively lost if a case is erroneously permitted to go to trial'".

State v. Abram, opinion issued January 15, 2008, is a unique opinion. The trial court has sentenced the defendant to an aggregate 50 to 100 years of imprisonment after conviction by a jury of 21 counts of aggravated felonious sexual assault, four counts of endangering the welfare of a child, and one count of indecent exposure and lewdness. It was abundantly manifest that the defendant would not win a "Miss Congeniality" contest. The defendant appealed his convictions to the Supreme Court, arguing that the various charges against him should have been severed for trial. In an earlier opinion, the New Hampshire Supreme Court had agreed with the defendant and "affirmed in part; reversed in part; and remanded" the case to the trial court. The Supreme Court's reversal was of nine of the 21 felonious sexual assault convictions. When the case went back to the trial court, the same trial judge restructured its sentence and accepted the prosecution's argument that the defendant should remain in prison for the same period of time as originally sentenced, that is, a minimum of 50 years to 100 years. The defendant appealed again to the Supreme Court and, in the instant case, the Court found that a "presumption of vindictiveness" arose because the Supreme Court concluded that the second sentence was more severe than the first. The State argued that the Supreme Court should adopt the federal "sentencing package" doctrine which, in brief, states that "when one or more counts of a 'bundled' sentence are vacated, the [f]ederal district court may 'rebundle' the package by resentencing the defendant on the affirmed charges in order to effectuate its original sentencing." The New Hampshire Supreme Court declined to accept the State's invitation, pointing out that the four other states which had been asked to adopt the federal "sentencing package" doctrine had declined to do so.

Finally, it is well known that the author finds Public Employee Labor Relations Board (PELRB) opinions sleep inducing. There are exceptions to the author's capricious response to such cases and the case of State Employees Association of New Hampshire, Inc., opinion issued November 9, 2007, is one such exception. Here the PELRB had a longstanding, published, administrative rule that required a public employer, upon receiving an order for a union election, to immediately forward to the board and to the parties a complete list of the names and home addresses of the employees in the bargaining being agreed to by the parties or previously determined by the board to be eligible for membership as a result of a unit determination hearing. The Board's executive director held that he did not have to follow the rule. The PELRB's highhanded response was to affirm its executive director's decision to ignore the Board's own rule because the director's decision reflected "the position of the Board in this era of elevating the privacy rights of employees over the ability of competing interests in organization activities to obtain the same." In a tart response, the Supreme Court pointed out that the PELRB, if it had changed its position on this matter, could have changed its rule but it had not. The Court then unanimously reversed the ruling of the PELRB. All of which brings to mind to the author a phrase from William Safire's recent column on Language in the New York Times magazine: "Shoulda, woulda, coulda" meaning "too late now—forget it."5


1. Represented in part by New Hampshire's long time freedom of the press champion, Attorney William L. Chapman, to whom kudos belong for his enduring record of service in this regard.

2. State v. Boiselle, 83 N.H. 339, (1928).

3. Palsgraf v. Lang Island R. Co., 162 N.E. 99, (1928).

4. Do you also remember Pierson v. Post, 1805 WL 781, 2 Am. Dec. 264, NY Sup, 1805, in Property I?

5. New York Times Sunday Magazine, p. 14, January 13, 2008.

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

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