2007 Winter, Pg. 44. Lex Loci: A Survey of New Hampshire Supreme Court Decisions.

AuthorBy Attorney Charles A. DeGrandpre

New Hampshire Bar Journal


2007 Winter, Pg. 44.

Lex Loci: A Survey of New Hampshire Supreme Court Decisions

New Hampshire Bar JournalWinter 2007, Volume 47, No. 4Judicial LegaciesLex Loci: A Survey of New Hampshire Supreme Court DecisionsBy Attorney Charles A. DeGrandpreStarr v. Governor, opinion issued September 26, 2006, is an engrossing case, raising a very ingenious argument that the defendant's conviction in 1987 for second degree murder, with an accompanying sentence of a term of 28 years to life imprisonment in accordance with the "truth in sentencing" law, RSA 651:2, II-e, should be set aside. The defendant claimed that that statute had been illegally adopted and, as a consequence, his sentencing was improper and he sought a declaratory judgment to that effect. The respondent, Governor, through the Attorney General's office, responded with a motion to dismiss which was granted, and the present appealed followed.

The petitioner, apparently now a well-versed "sea lawyer" of his own, made the argument through his creative counsel, that RSA 651:2, II-e, which is known as the "truth in sentencing" law, improperly increased minimum mandatory sentences which had adversely affected the petitioner's sentencing. The law was enacted in a special session of the legislature in 1981, which the then Governor called to address "certain enumerated matters requir[ing] legislative action." The enumerated matters did not include a change in the sentencing law. The Attorney General countered that this appeal raised "a nonjudiciable political question," upon which the court should decline to adjudicate the matter because it encroached upon the powers and functions of a coordinate political branch. The Court agreed. The Court first examined Part II, Article 3, of the State Constitution, which empowers the Governor to call the legislature into session when adjourned "if and when the welfare of the State so requires." The Court pointed out, however, the Constitution does not mandate that the Governor set forth with particularity the business to be taken up by the legislature during such special sessions, nor does it limit the scope of the legislature's power upon being called together by the Governor.

The Court then endorsed a broad definition of the powers of the legislature as it turned to Part II, Article 5, of the Constitution which grants to the legislature the "full power and authority" to make, "from time to time" laws and statutes, "for the benefit and welfare of this State":

Because we believe that the State Constitution empowers the legislature to enact any laws and statutes for the benefit of the State whenever it sits in session, general or special, we disagree with the petitioner's contention that the State Constitution is silent on the issue before us. However, even if we were to agree with the petitioner, we would nonetheless be compelled to conclude that this issue raises a nonjusticiable political question.

Next, addressing the defendant's due process argument that the citizens of New Hampshire must be given particular notice of the particular laws that could be changed or enacted in a special session, the Court rejected that argument also. The Court opined that it was enough that the public proceedings of the legislature were open to the public and that all persons were permitted to attend any meetings of the legislative bodies. The Court noted that the House of Representatives had indeed held a public hearing on the proposed legislation that became the "truth in sentencing" law and rejected the defendant's final argument. Kudos to the petitioner and his counsel for an imaginative argument which, even though not successful, to the author raises very interesting issues.

A very important environmental protection case was decided by the Court in an opinion issued November 2, 2006, Appeal of Town of Bethlehem. It was particularly important to the Town of Bethlehem which sought to overturn the New Hampshire Department of Environmental Services' (DES) granting of the respondent's, North Country Environmental Services (NCES) [a for-profit corporation] application for several tax exemptions under the pollution control property tax exemptions provided for in RSA 72:12-a. The appeal raised several issues about the application of RSA 72:12-a, which provides for an exemption from real estate property taxes of any treatment facility, device, etc., used for the purpose of reducing, controlling or eliminating any source of air or water pollution, even if such facilities are owned by private entities. The issue before the Town was whether a solid waste landfill facility operated by NCES in Bethlehem was entitled to the tax exemptions claimed by NCES for twelve components of the landfill system and granted, in large part, by the DES.

In a unanimous opinion...

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