2006 Fall, Pg. 78. Lex Loci: A Survey of New Hampshire Supreme Court Decisions.

AuthorBy Attorney Charles A. DeGrandpre

New Hampshire Bar Journal


2006 Fall, Pg. 78.

Lex Loci: A Survey of New Hampshire Supreme Court Decisions

New Hampshire Bar Journal Fall 2006, Volume 47, No. 3Taxes, Trusts, Judicial Review, and more. . .Lex Loci: A Survey of New Hampshire Supreme Court DecisionsBy Attorney Charles A. DeGrandpreTo some, the New Hampshire Constitution, compared to the U.S. Constitution, is a long, wordy and somewhat tautological piece of work. However, within it are often found harmonious phrases and noble sentiments not found in the U.S. Constitution.(fn1) The author suggests to all to reread it, afresh. One such linguistically concise provision is found in our Bill of Rights, Part I, Article 11 of the New Hampshire Constitution which provides, in pertinent part: "Every inhabitant of the state, having the proper qualifications, has an equal right to be elected into office." In Akins v. Secretary of State, opinion issued August 17, 2006, a unanimous Supreme Court, speaking through Justice Galway, stepped up to its self-stated "role . . . .to interpret the State Constitution and to resolve disputes arising under it," and addressed this constitutional phrase. Before the Court was the petition of the New Hampshire Democratic party and individuals who ran as Democratic, or Republican, or Libertarian candidates in the 2004 general election who collectively argued that RSA 656:5, which provides that the first candidate listed for any given office on a ballot shall be a candidate from the party that received the most total votes in the preceding general election was unconstitutional. The petitioners also contested the historical practice of the Secretary of State to list candidates within each party by alphabetical listing. The question turned on the issue whether the "equal right to be elected into office" was a fundamental right and, thus, entitled to review by the Court under strict judicial scrutiny. The Court, equating the equal right to be elected to the closely related Constitutional provision relating to the right to vote [also found in Part I, Article 11, of the Constitution], found that the right to be elected was a fundamental right and, thus, subject to strict judicial scrutiny. The Court then turned to the uncontested evidence presented by the petitioners that there was a "primacy effect" favoring first named candidates and the Court held that RSA 556:5 "denies candidates of minority parties an equal opportunity to enjoy the advantages of the primacy effect, and, thus, an equal right to be elected." The Court went on to find that the alphabetizing of candidates also created a primacy effect which was similarly in violation of the Constitutional provision:

Because neither the provision of RSA 656:5 requiring that the party receiving the most votes in the prior election enjoy first place on the ballot nor the Secretary of State's practice of alphabetizing candidates is necessary to achieve a manageable ballot, we hold that neither restriction survives strict scrutiny, and that both are thus unconstitutional under Part I, Article 11 of the New Hampshire Constitution.

It can't be said much clearer than that but because the opinion was issued so close to the primary election, the Court was subsequently asked to modify its opinion to permit use in the upcoming primary election of the ballots already printed using the old system.

In these gun-toting times, is a hunting license a constitutionally protected right? The Supreme Court, in WMUR Channel Nine v. New Hampshire Department of Fish and Game, opinion issued August 3, 2006, came awfully close to answering that question but avoided an answer since neither party had argued it. The case arose in the context of a hunter who petitioned the Fish and Game Department for the reinstatement of his hunting license after his license had been understandably pulled after he had killed another hunter while deer hunting in 2004. The department denied the petitioner's application for a new license, but the hunter appealed to the department's executive director pursuant to the procedure provided by RSA 214:17. At that hearing, the petitioner hunter requested that the hearing be closed to the public because he was shy and he would not be able to make his case if he had to do so in public?!! A shy hunter - is that an oxymoron? The hearing officer decided to close the hearing to cameras and audio recording devices because "he concluded that the commotion caused by television cameras and lights would effectively deprive [the petitioner] of his opportunity to be heard on his hunting license reinstatement claim." However, despite the hearing officer's good intentions, he contravened the provisions of the Right-to-Know law, RSA chapter 91-A:2, which specifically provides that "[a]ll public proceedings shall be open to the public . . . .[and] Any person shall be permitted to use recording devices, including, but not limited to, tape recorders, cameras and videotape equipment, at such meetings." A unanimous Supreme Court held that the hearing was a public proceeding and it found that the action of the hearing officer violated this provision. In the course of its opinion, however, the Court, in dicta, said that "We have never held, however, that a hunting license is a constitutionally protected right, and such a proposition is questionable, since other jurisdictions have specifically held that a hunting or fishing license is not a property interest for purposes of due process," citing to federal and...

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