Bar Journal - December 1, 1999
Lex Loci: A Survey of New Hampshire Supreme Court Decisions
By: Attorney Charles A. DeGrandpre
In a late breaking development as this column was going to press, the Supreme Court in Claremont V,1 decided October 15, 1999, to overturn the legislature’s 1999 statutory response to the Court’s earlier decisions by creating a statewide property tax with a five year phase-in for property rich towns.
The Court was admittedly between a rock and a hard place since, on the one hand, it was under vociferous attack from the legislature for its earlier rulings in the case, and on the other, the Justices were required to fulfill their constitutional obligations to the towns which had waited patiently for the constitutionally required relief as prescribed in this matter. The Court was confronted with a legislature sorely tried by the Court’s earlier decisions in the Claremont Cases: several members of the legislature had reacted to the Court’s earlier decisions by considering legislation, to pick from several, to remove the Chief Justice, to provide for limited terms of appointment for judges and to provide for legislative review of judicial performance. The majority of the Court, speaking through Chief Justice Brock, was stalwart in facing its daunting task. Acting quickly after oral argument, the majority steadfastly took up its unwanted task, wielding all of its weapons in its judicial arsenal. It first reminded all to hear that it was not the Court’s intention to "establish educational policy, nor to determine the proper way to finance its implementation." The Court, mindful of the tumultuous times confronting it, dutifully bowed to the legislature, stating that it is:
not our role nor indeed within our authority to second-guess the rationale for tax exemptions articulated by the legislature or to substitute our judgment for theirs. Rather, our role is to determine whether, on its face, the justification for disparate tax treatment is rational and supported by appropriate findings and whether the relief granted is reasonably related to the underlying purpose of the proposed exemption.
Here the Court was referring to the heart of the matter, the question whether the five year phase-in of the statewide property tax met the constitutional requirement that such a tax levy meet the constitutional requirement that the tax be proportional, fair and uniform. The Chief Justice also wielded the ultimate weapon, quoting revered Chief Justice Doe (equivalent to dropping the A-Bomb) to support his position. The Chief Justice skillfully grounded his opinion in history:
We should never lose sight of the fact that our language on taxes requiring uniformity and equality is not something invented in the Claremont case, but is the far-reaching language of constitutional mandate which has guided every tax decision of this Court for over two hundred years.
The Court found that the five year phase-in of the property tax violated the constitutional principle of proportionality and fairness found in Part II, Article 5 of the New Hampshire Constitution because "it is neither reasonable nor fair to award automatic tax exemptions to a majority of taxpayers in affected ‘property rich’ communities who do not need them in order to assist those of which who surely qualify."
The Court was referring to the fact that all taxpayers in property rich towns were granted the five year phase-in although the legislature had based the need for the phase-in on the potential bankruptcy or financial emergency crisis that might be faced by some taxpayers in the property rich towns by the unexpectedly new and higher property tax. The Court concluded by finding that the phase-in provision was not severable from the statewide property tax and threw that tax out completely, leaving the rest of the act untouched. Justice Horton, in dissent, agreed with most of the majority conclusions, but would have found that the legislature was within its constitutional parameters in re sponding to the crisis facing it by enacting a limited five year phase-in of the statewide property tax.
The Supreme Court in Purdie v. Attorney General,2 decided June 24, 1999, again waded into the issue of the public’s rights in coastal shorelands and overturned as unconstitutional the legislature’s 1998 sweeping demarcation of the public’s rights in coastal shorelands. The plaintiffs were approximately forty beach-front property owners in Rye who contested the constitutionality of RSA 483-C, enacted in 1998, which established that the public had rights to shoreland subject to the ebb and flow of the tide to the high water mark which the statute exotically defined as the "syzygy" line: "the furthest landward limit reached by the highest tidal flow over the nineteen-year tidal cycle, excluding ‘abnormal storms.’" Although it would have been easy to "go with the flow" in these unprecedented times of legislature criticism of the Court, in a unanimous and courageous opinion authored by Justice Broderick, the Supreme Court concluded that "[a]fter an extensive review, we conclude that New Hampshire common law establishes the high water mark at the level of mean high tide and not the syzygy tide." This is not a distinction without a difference: the distance between the two tides marks can be quite considerable. As the author has previously observed, this is a court which steadfastly guards the principle of property rights embedded in our state constitution.
Having first determined that historically New Hampshire common law limits public ownership of the shorelands to the mean high water mark, the Court went on to
conclude that the legislature went beyond these common law limits by extending public trust rights to the highest high water mark. Although the legislature has the power to change or redefine the common law to conform to current standards and public needs, property rights created by common law may not be taken away legislatively without due process of law….Because RSA Chapter 483-C unilaterally authorizes the taking of private shoreland for public use and provides no compensation for land owners whose property has been appropriated, it violates the prohibition in Part I, Article 12 of the State Constitution and the Fifth Amendment of the Federal Constitution against the taking of property for public use without just compensation….Although it may be desirable for the State to expand public beaches to cope with increasing crowds, the State may not do so without compensating the affected landowners.
While it was out with the syzygy line and in with the mean high water line as the test, the actual location of the mean high water mark was not presented on appeal and the Court remanded the case to the trial court to determine that location.
The Supreme Court’s decision in this matter would have brought a smile to the face of the late Chief Justice Grimes, a leading opponent of the drift toward allowing substantial restrictions on the use of land without compensation and will, the author is sure, provoke an "I told you so" from New Hampshire attorney Al Lynch, a Grimes’ disciple and a leading property rights advocate in our state.
In another case exploring the intent of permissible restrictions on the use of land, Spengler v. Porter, decided September 2, 1999, the issue before the Court was a town’s attempt to limit the use of a landowner’s private land for a landing field for the landowner’s private aircraft. The petitioning plaintiffs were eight property owners whose properties abutted the property of the defendant land owner who used the airfield for takeoffs and landings. The neighbors’ peace and tranquility was first interrupted when in 1991 the defendant land owner constructed an air strip on his property located in the town of Brentwood. Things came to a head two years later following an airplane crash at the air strip. The plaintiffs complained to the selectpersons of the town who ordered the defendant to cease using the property for aircraft takeoffs and landings because "such use was not permitted in a residential/agricultural district under the town zoning ordinance." Brentwood’s ordinance specified which uses were allowed in the zone, listing the permissible uses of the defendant’s land and none allowed land in this zone to be used as an airstrip. The plaintiff neighbors then sought at two successive town meetings to get the zoning ordinance amended to specifically prohibit the use of land in the zone involved for landing strips, but failed.
Meanwhile, the defendant land owner, a veritable Patton outflanking his enemies, went to the legislature and procured the enactment of RSA 674:16, V. This statute, snuck in as a general amendment of the state zoning laws, provided that aircraft takeoffs and landings on private land were valid and permitted uses "unless specifically proscribed by local ordinance." As a consequence, such a use would be allowed as an accessory use unless specifically prohibited. Of course, that was precisely the issue in question here since the Brentwood ordinance did not specifically proscribe the use, but instead specifically listed the uses that were allowed in the defendant’s district under the town zoning ordinance and did not list aircraft use as a permitted use.
This statute turned the usual interpretation of zoning ordinances upside down. Yielding to the legislature, the majority of the Court, speaking through Justice Thayer, ruled that because "the ordinance does not specifically refer to aircraft takeoffs and landings, but generally proscribes all uses not listed [as is true in most town zoning ordinances], the defendants’ use of their property for aircraft takeoffs and landings under RSA 674:16, V is a valid and permitted accessory use." The Court relied upon the New Hampshire Constitution Part I, Articles 2 and 12 and the United States Constitutional Amendments VI and XIV to hold that the "right to use and enjoy one’s property is a fundamental right protected by both the State and Federal Constitutions." In dissent, Chief Justice Brock would have reversed because of procedural defects since the plaintiff neighbors were not given adequate due process in the manner in which the case was presented in the trial court which issued a final judgment in the hearing on the plaintiff’s request for a preliminary injunction: "the record reveals that the trial court gave no indication that it would rule on the merits of the petition prior to issuing its order" as a consequence of which the plaintiffs were "effectively denied…any opportunity to develop [their] evidence and arguments." All in all, in the author’s view, the statute appears to rescind a long history of zoning interpretation that provides that unless a use is specified in the zoning ordinance for a particular district, a use not specified is prohibited.
Petition of Kerry D., decided August 30, 1999, is a Kafka-esque reversal of reality which involves the seldom used writ of habeas corpus (literally: you have the body3) by a mother of a child who challenged the loss of legal and physical custody of her son as a result of allegations of abuse against the child’s father with whom she was not residing. The child, the subject of the petition of the case, was born out of wedlock in August, 1995, and lived with his natural mother for over a year. During this period of time, the natural father visited with the child three times a week. The child’s mother began to have suspicions that the child was being abused by his father and she called the police who in turn contacted the Division of Children, Youth, and Families (DCYF). Upon investigation, the DCYF initiated court proceedings pursuant to RSA Chapter 169-C alleging that the child’s father was abusing his son. The DCYF obtained an ex parte order granting it protective custody and suspending visitation between the child and the father. At the preliminary hearing, the trial court found the allegations against the father were substantiated and left physical custody with the mother but required that the visits with the father be supervised and the court transferred legal custody to the DCYF.
The mother, who was indigent and was not represented by counsel, then entered into a consent order which provided that "the child was ‘abused…with the perpetrator unknown.’" This consent order left legal custody with the DCYF, physical custody with the mother and continued the arrangement of supervised visitation with the father. Unknown to the mother, the effect of the consent order which found the child abused "with the perpetrator unknown" left open the possibility that the child could be taken from her at a later time. One year after the mother’s contact with the police about the father’s alleged child abuse, the DCYF recommended that the child be moved from foster care to the custody of his natural father, granting visitation to the mother twice monthly only. No plan to reunite the child with his mother was presented to the Court by the DCYF, nor was there any allegation of child abuse or neglect against the mother. The district court granted the DCYF’s petition. Long after the period for contesting the consent order had passed, the mother, now represented by court-appointed counsel, filed a petition for a writ of habeas corpus in the Supreme Court.
The case split the Supreme Court. The majority, in an opinion by Justice Broderick, first upheld the use of the extraordinary writ of habeas corpus where, as here, a constitutionally protected interest was involved because the Court had "long recognized the right to raise and care for one’s children as a fundamental liberty interest protected by Part I, Article 2 of the New Hampshire Constitution." Next the majority turned to a question of first impression, whether the parent or the State has the burden to prove compliance with the informed consent requirements of RSA 169-C:17, II, and what degree of proof is necessary. The Court rejected the State’s arguments that the burden was on the parent and concluded that
[t]he State bears the burden of proving by a preponderance of the evidence that the mother understood the consequences of the consent order and voluntarily and intelligently consented to its terms….Although the consent order in this case did not terminate the mother’s rights to her son, it constituted a final determination that her son was abused, which allowed the court to take physical custody from her without any finding that she abused, neglected, or otherwise harmed him. Like the criminal defendant who enters a guilty plea, the parent in an abuse and neglect proceeding who enters into a consent order is waiving critically important constitutional rights. These include the right to a hearing in which the State must prove by a preponderance of the evidence that the child has been abused or neglected.
The Court found that the State failed to prove that the court complied with the requirements of the statute and as a result, the entry of the consent order violated the mother’s due process as protected by Part I, Article 2 of the State Constitution. The minority, speaking through Justice Thayer, with whom Justice Horton concurred, would deny relief to the natural mother because the unusual use of the extraordinary writ of habeas corpus was not appropriate in this case.
Think of it: the child’s natural mother thinks the child is being abused by the child’s father, reports the abuse and ends up losing custody of the child as the State takes over and eventually awards legal custody of the child to the alleged abuser, even though no allegation of child abuse or neglect was ever lodged against the natural mother. It’s mind boggling.
In a follow-up to the author’s comments on these cases in an earlier column, Roberge’s Case, and Feld’s Case, both decided August 30, 1999, represent a setback for the Professional Conduct Committee which sought a six month suspension of the attorney in Roberge’s Case and a disbarment of the attorney in the Feld’s Case. Rather than accepting the PPC’s recommendation, the Supreme Court adopted the recommendation of the judicial referee, retired superior court Judge Temple, that the case against the attorney in the Roberge’s Case be dismissed and in the Feld’s Case, that the petition of the Professional Conduct Committee for disbarment be reduced to a public censure. These cases, with all of their political overtones involving a no-holds barred brawl between three New Hampshire attorneys, one of whom was both the daughter of a member of the New Hampshire Senate and of the New Hampshire Banking Commissioner, have captured the public interest, especially in the new era of full disclosure of Professional Conduct Committee matters. Stay tuned media junkies: the author predicts that the PPC will spawn many more high-interest cases as its hearings are subject to media scrutiny. It’s going to be a frenzy of lawyer bashing.
The Feld Case particularly appears to be a setback to the Professional Conduct Committee’s attempt to hold trial attorneys to certain minimum standards of conduct during hotly contested litigation. Here the New Hampshire attorney admitted to participating in an illegal tape recording by his client (a New Hampshire attorney) of the plaintiff (also a New Hampshire attorney) in the lawsuit at the heart of the case. Furthermore, it was clear (as the attorney himself admitted) that the attorney under charge had not corrected the admittedly false testimony of one of his clients, who, the Court found, testified "to facts and circumstances that he [the attorney] knew to be inaccurate. . .[The attorney’s] actions. . .in the client’s deposition and ensuing interrogatories permitted his client to give nonresponsive answers." The Court agreed with the PPC and the referee which both found that the attorney had violated the New Hampshire Rules of Professional Conduct, Rules 3.4(b)-(d). and Rule 8.4(a). The Court held that "an attorney has an obligation to insure that his professional conduct complies with the Rules, irrespective of a client’s or an opposing party’s conduct." The Court stated that a lawyer always has a duty to correct errors created by his client when the attorney learns of them (See N.H. R. Prof. Conduct 3.4(b)) but the Court unexpectedly agreed with the referee that the sanction of censure rather than disbarment recommended by the referee was appropriate. The Court placed great weight on certain mitigating factors in the case, by concluding "that a public censure in this instance will further the purposes of protecting the public, preserving the integrity of the Bar, and maintaining public confidence in the Bar, and preventing similar occurrences in the future....The absence of a prior disciplinary record and selfish motives are mitigating factors weighing against the Committee’s recommendation of disbarment".
The nettlesome and re-occurring issue of the right of an incarcerated parent to participate in termination of parental rights proceedings over the parent’s child was before the Court again in In Re Brittany L., decided August 30, 1999. The father of the child, whose parental rights were sought to be terminated, had been incarcerated on drug related offenses in various federal penitentiaries across the country since November, 1990. Brittany was nine months old when her father was first incarcerated and she had been mostly under the care of her mother since her birth. In 1996, Brittany’s mother filed a petition to terminate the father’s parental rights alleging that from the time that Brittany was born the father had negligible contact with his daughter and showed no concern for her welfare.
The defendant filed a series of motions in both the superior and probate courts seeking to be transported from an out-of-state prison to attend the termination proceeding but those motions were unsuccessful. However, the probate court with jurisdiction over the termination proceeding allowed the defendant to testify by telephone. At the beginning of the hearing, [because of the prison-imposed time limits as to his phone access], the defendant father testified telephonically in direct, and in cross-examination, as well as in response to questions by the court. However, after his testimony, telephone communication with the father was terminated and the hearing proceeded with live witnesses, at the conclusion of which the probate court terminated the father’s parental rights.
On appeal, the defendant argued that he was improperly deprived of his rights to confront witnesses and the evidence against him by use of this telephone procedure. The Supreme Court dodged this issue, pointing out that the Sixth Amendment of the U.S. Constitution (regarding witness confrontation) is expressly limited to criminal defendants while the New Hampshire Constitution, Part I, Article 15, which states that "[e]very subject shall have a right…to meet the witnesses against him face to face [unlike the Federal Constitution] is not specifically limited to criminal cases." However, the Supreme Court held that the New Hampshire constitutional question not having been briefed by the defendant would not be addressed by the Court and, thus, it left open that issue for future consideration.
On the issue of whether the probate court had properly found that the defendant had abandoned his child under RSA 170-C:5, I, the Supreme Court ruled that "[a]bandonment is a factual issue to be determined by the probate court." The Court found that there was sufficient evidence to support the probate court’s finding of abandonment, pointing out that the defendant had never contributed to his daughter’s financial support and had demonstrated no concern over his daughter’s well being on the few occasions he called her. There was evidence of only five calls to the household during a three and a half year period, and those calls were directed to the mother and not the daughter. Although the defendant occasionally sent cards and gifts to his daughter on her birthday and major holidays, it wasn’t clear when those cards and presents had begun (the unstated assumption being that the presents were sent only after the termination petition was filed). The guardian ad litem recommended termination noting the father’s lack of interest in his daughter until the petition to terminate his parental rights had been filed" and the Supreme Court upheld the probate court’s determination on this issue.
It’s incomprehensible to the author why fathers who show little love for their children, who fail to provide needed parenting services, who fail to support them, who neglect them and who show no interest in them suddenly spring to action to prevent the termination of their parental rights over their child even when the termination is a prelude to a happier life for the child in an adopted home. To the author’s untrained mind in these psychological matters, it somehow must be perceived by such fathers as a threat to one’s manhood to allow a termination proceeding to go forward without strenuous opposition.
The title "sheriff" evokes nostalgic memories of the author’s childhood when Robin Hood and his valiant band fought exciting skirmishes with the Sheriff of Nottingham, with Robin Hood always beating the incompetent sheriff. Historically, the office of sheriff is an ancient common law office going back to the great English King Alfred’s reign (871-901) when the sheriff, as representative of the King, was made by Alfred a required presence at every shire court.4 Originally named "scir-gerefa,"5 the modern office, now transformed to "sheriff" which flows mellifluously off the tongue, is a far cry from its ancient origins. In New Hampshire, New Hampshire sheriffs are elected county officers but they and their departments in the present era are mainly process servers or security guards.
In Appeal of Rockingham County Sheriff’s Department, decided September 13, 1999, the Supreme Court had before it the appeal of the Rockingham County Sheriff’s Department which appealed the decision of the Workers’ Compensation Board finding that the claimant, a deputy sheriff, had suffered a work-related injury. He was granted compensation by the Workers’ Compensation Board, but in a reversal of the usual workers’ compensation appeal where the Board routinely denies benefits and the Supreme Court orders them given, here the Board granted benefits but the Supreme Court took them away.
The issue before the Court was the Board’s ruling in favor of the claimant on the hotly contested issue of whether the injury was work-related or due to a pre-existing condition. In siding with the claimant employee, the Board had "construe[d] all reasonable doubts in favor of the claimant." However, the Court found that that was in error:
By resolving all reasonable doubts in favor of the claimant, however, the board reduced the claimant’s evidentiary burden because preponderance of the evidence, the legal standard applicable in workers’ compensation cases, ‘means such evidence as when weighed with that opposed to it has more convincing force, and from which it results that a greater probability is in favor of the party upon whom the burden rests.’ ….Thus, it is improper for the board, as a matter of law, to automatically favor the claimant’s experts over the employer’s because the board risks improperly shifting the burden of persuasion to the employer…. Indeed, we have often rejected arguments by claimants on appeal that the board was required to construe all reasonable factual doubts in their favor because ‘that directive pertains not to the task of weighing evidence, but to the construction of the workers’ compensation statutes.’
The Court reversed the Board and remanded the case to it for disposition in accordance with its decision.
It’s noteworthy that in keeping with the sheriff’s modern role, we are not dealing here, for example, with a gunshot wound during the course of an attempted arrest, but rather with a back injury sustained when the deputy sheriff was moving a credenza in the sheriff’s office.
The author is both a landowner in a property rich town and a property poor town and, therefore, his views on this case may be completely disregarded!
The author is a coastal shoreland owner and, therefore, his views may be colored.
Bouvier's Law Dictionary, p. 1400 (8th Ed. 1914).
Terry, A History of England, p. 69 (1902).
Attorney Charles A. DeGrandpre is a director and treasurer in the firm of McLane, Graf, Raulerson & Middleton, Portsmouth, New Hampshire.