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Bar News - December 17, 2014

In Memoriam: Associate Justice Sherman D. Horton Jr.: A Remembrance


New Hampshire Supreme Court Associate Justice Sherman D. Horton Jr., who passed away Dec. 4, 2014, embodied the flinty common sense that makes New Hampshire such a wonderful place to practice law.

He was a colorful personality who left a lasting impression on all those he encountered, including me. I was one of several law clerks he mentored during his 10 years on the bench who have stayed in New Hampshire to serve the people of this state with distinction. His decision to remain here influenced my decision to work for the State, first as an assistant attorney general and now as a Superior Court judge. He instilled in me an understanding that New Hampshire is a special place to practice law that needs to be cherished and preserved. It is one of those rare places where personal connections still matter greatly.

Justice Horton was a master storyteller. He once told me a story about his trademark cigar that seems to encapsulate his knack for making personal connections.

It was rare to see him around town without that cigar, and if he had his way he would have been smoking on the bench too. He made this clear the first time I met him during my interview. As we headed out to lunch, he donned his cap and his plaid jacket with a cigar sticking out of his pocket. He told me that one of his biggest concerns when he joined the court was that he would have to give up his cigars at work. He was so concerned about this that it took assurance from his brother-in-law, fellow Associate Justice William Johnson, that Johnson could get enough votes from the other judges to allow Horton to smoke in the building.

The court staff got a whiff of this and took a preemptive strike by bringing in Administrative Services. They conducted an air quality study and determined that the cigar smoke would permeate the building. He claimed that if he had known this he never would have taken the job, but by then he was already sworn in.

He came up with another plan. He took to leaving his half-smoked cigar by the courthouse entrance so that he could sneak out during a break in oral arguments for a smoke. That is often where lawyers who came to the Court in those days found him, eager to bend their ears with a story. In the years since, lawyers have reminisced about what a special treat it was for practitioners to have such a unique connection.

I, like many who had the honor to work with him, will miss Justice Horton greatly. But his example lives on in the way we practice law in New Hampshire: with a personal touch.

Justice Horton’s Lasting Impact on the Law

As an associate justice on the New Hampshire Supreme Court, Sherman D. Horton Jr. was responsible for decisions that helped permanently shape New Hampshire law.

While he was the author of nearly 300 opinions during his 10 years on the bench, his most lasting impact will likely be in the area of land use law. The strength of his opinion has fundamentally changed this area of law in favor of property owners.

Just two years after he joined the Supreme Court, Justice Horton issued a dissent in Grey Rocks Land Trust v. Town of Hebron, 136 NH 239 (1992). A landowner who needed a variance from the zoning ordinance to develop property had to demonstrate application of the zoning ordinance created such a great hardship “to effectively prevent the owner from making any reasonable use of the land.”

In his dissent, Justice Horton urged the Court to completely rethink the approach to the hardship exception, which was created as a “safety valve” to prevent an unconstitutional taking of property by strict application of the zoning provisions. In Justice Horton’s view, the extremely high threshold to satisfy the hardship exception had “stopped off the safety value,” rendering it virtually impossible for landowners to reasonably use their property.

Nearly 10 years later, Justice Horton’s dissent in Grey Rocks was cited by a majority of the justices as the foundation for their decision in Simplex Technologies, Inc. v. Town of Newington, 145 NH 727, 730 (2001), to “temper[]” the unnecessary hardship test for zoning variances.

Justice Horton, who by then was sitting by special designation because he had reached the mandatory retirement age of 70, joined a unanimous court to abandon the old, restrictive test in favor of an approach that was better designed to safeguard the constitutional rights of property owners. This practical concern for fundamental constitutional rights motivated many of his decisions from the bench.

N. William Delker is currently the supervisory judge in Rockingham County Superior Court. He clerked for Justice Horton from 1995-1996 immediately after graduating from American University, Washington College of Law.

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