Bar Journal - September 1, 2003
By: Professor Marcus Hurn
This is the Annual Survey, the Bar Journal issue in which Franklin Pierce law students write on recent developments and pending issues of particular local interest. It is the first one for which I have been responsible, and I am truly grateful for the patience and professionalism of those in charge of the Journal, particularly Donna Parker, Dan Wise, Michael DeLucia, and issue editor Peter Gardner.
We have not written about the most dramatic controversies of the past year - school funding, re-apportionment, judicial budgets, or the structure of the bar. They are unsettled, covered elsewhere, and too complex for a manageable article. We offer instead analysis and commentary on six recent decisions or proposed statutes in corporate, criminal, and family law, attorney-client relations, and personal jurisdiction.
Jonas Cutler has written on Corporate Law. The New Hampshire Business Corporations Act is one of the most complex in the country on the subject of shareholders' rights to inspect books and records, yet there is only one relevant Supreme Court opinion, and that was under a predecessor statute. Legislation pending in the N.H. House would shift original jurisdiction over inspection disputes to the Office of the Secretary of State. Mr. Cutler has analyzed current New Hampshire law, compared it with Delaware law, and commented on the merits of the proposed shift.
Frances Whitaker has analyzed a case important to all practicing attorneys although it arose in the context of title examination and will have immediate consequences in that field. For the first time the N.H. Supreme Court has held that some functions performed by attorneys (abstracting land titles in this case) are delegable to independent contractors under some circumstances, and that the attorney in such situations is not vicariously liable for the negligence of the delegate. Ms. Whitaker explores some of the immediate implications of this decision and suggests possible lines of future development.
The constitutional right to appointed counsel in some child custody proceedings is a developing issue in family law. While the rules are not yet entirely clear, the N.H. Supreme Court has recently decided two such cases, ruling once in favor of appointed counsel and once against. Karen Coombs has analyzed these decisions and shown their underlying consistency.
We have two criminal law articles, both by Sigrid Tejo. In one she takes up the matter of post-conviction DNA testing in light of legislation now pending in the N.H. House of Representatives. Comparing New Hampshire's incipient common law method for securing such tests with the proposed bill and the statutes of other states, she urges caution in developing new post-conviction procedures and remedies. The other article summarizes the N.H. Supreme Court's interpretation and partial invalidation of the Vehicular Assault statute.
Personal jurisdiction based on activity over the Internet has been much litigated and written about nationally. We now have a New Hampshire decision, but, as explained by Jocelyn Kennedy, it came in a case with a twist - the Defendant was a seller on e-Bay. This required the Supreme Court to search beyond the developing national consensus on what kinds of Internet sales activity subject one to jurisdiction in the buyer's forum.
The students and I also thank Professors Simon, Scherr, Orcutt, and Landau, and Vice Dean Harrison for their generous help on particular issues.
This issue also includes two contributions from New Hampshire Bar members. Attorney Peter Wolfe, Clerk of Sullivan County Superior Court and coordinator of the court's alternative dispute program, discusses how attorneys sometime overlook the non-monetary motivations of their clients that can be addressed in mediation. Attorney Charles DeGrandpre returns with another roundup of recent New Hampshire Supreme Court decisions in his long-running and popular "Lex Loci" column.
Attorney Marcus B. Hurn, Professor, Franklin Pierce Law Center, Concord, New Hampshire.