2004 Spring, 91. Lex Loci: A Survey of New Hampshire Supreme Court Decisions.

AuthorBy Attorney Charles A. DeGrandpre

New Hampshire Bar Journal


2004 Spring, 91.

Lex Loci: A Survey of New Hampshire Supreme Court Decisions

New Hampshire Bar JournalSpring 2004, Volume 45, Number 1Lex Loci: A Survey of New Hampshire Supreme Court DecisionsBy Attorney Charles A. DeGrandpreA most welcome announcement from the Supreme Court came recently when the Court announced that effective January 1, 2004, it would implement an expanded appellate review process and "begin accepting all direct appeals from the state's trial courts for the first time since 1979." This brings the Court back full circle to its prior practice and gives the citizens of the state an absolute right to have at least one review of a fact finder's decision involving any matter in which the citizen is involved. The 1979 change was a result of the Court's then heavy backload of work, but it was widely criticized and was perhaps constitutionally defective. In any event, the reversion to the old rule will cause a strain on the Court's already tight financial situation. Under the present system, the Court accepts about 40% of all appeals, but under the new system, the Court "will accept virtually all cases from the district, probate and superior courts, and review them following full briefing and submission of a transcript of the lower court proceedings." The Court showed courage to reverse direction when circumstances demonstrated that a wrong direction was first taken.

Also effective January 1, 2004 is the new Supreme Court Attorney Discipline system with the laudable, dual purposes of improving "the effort to protect client's rights and guaranteeing lawyers a full and fair evaluation of complaints against them." See the press release of the Professional Conduct Committee at (http://www.courts.state.nh.us/committees/profconductcomm/index.htm). The Court is seeking participation from lawyers and members of the public since the new procedures create a three tier system of a complaint screening committee (9 members), a hearings committee (20-30 members with 15 alternates), and a professional conduct committee (12 members). Membership of these committees will be approximately two-thirds lawyers and one-third members of the public. The new procedure was designed to reduce the burden on non-paid volunteer members of the old Professional Conduct Committee by streamlining the hearing process and beefing up the staff of the Committee (EN1). Those attorneys who were troubled by the procedures and protections accorded to attorneys under the old procedure will have to wait to see how the new procedure works in practice. Stay tuned.

In New Hampshire, we haven't had many freedom of the press cases but Hippopress, LLC v. SMG, opinion issued December 8, 2003, is one of that rare bird. The issue arose whether the plaintiff, publishers of a newspaper, could distribute its newspaper in the new Verizon Arena in Manchester. The defendant, the City of Manchester, owned the arena and the City and the defendant SMG had entered into an agreement which allowed SMG to manage and operate the arena, including contracts for the use of advertising space in and about the arena. Under this provision, SMG had entered into contract with the defendant Union Leader which provided that the Union Leader would have the exclusive right to sell and distribute newspapers within the arena. Hippopress requested permission to distribute newspapers inside the arena but was refused. It brought an action against the defendants and was successful in the superior court where the trial judge ruled that SMG had violated Hippopress' free press rights under both Part I, Article 22 of the New Hampshire Constitution and of the First Amendment of the United States Constitution by not allowing the plaintiff to distribute its newspaper in the arena.

A unanimous Supreme Court, speaking through Justice Broderick, reversed, holding "the arena is a nonpublic forum" as such, "[r]estrictions on speech in nonpublic fora are subject to a far more limited review and are constitutional if they are reasonable and not an effort to suppress expression based on the speaker's viewpoint."...

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