New Hampshire Supreme Court

May 1, 2002

Oral Argument Case Summaries

Case #1

STATE OF NH v. JOHN D. MCCOOEY, No. 2001-352

Attorney Edward T. Clancy for the appellant, John McCooey

Assistant Attorney General Susan P. McGinnis for the appellee, State of New Hampshire

Issues presented:

First amendment free speech rights; statutory interpretation

Statement of the Case:

The appellant, John D. McCooey, who was a senior at Dover High School, asked his English teacher for a hug one morning. When she refused, he sarcastically said that he might, or that he would, "shoot up the school." The teacher reported the remark to the guidance counselor.

That afternoon two Dover police detectives went to McCooey’s home and asked him about the comment. Although he responded that he had been joking, he conceded that his comment was improper. The officers also spoke with several people at Dover High. Later that day, McCooey was asked to come to the police station where he was arrested on a charge of disorderly conduct. The complaint alleged that McCooey "recklessly create[d] a risk of a breach of the peace, public inconvenience, annoyance or alarm, by disrupting the orderly conduct of business in any public or governmental facility."

Procedural History:

The trial court denied McCooey’s motion to dismiss the charge before trial and found McCooey guilty, imposing a $1000 fine – the maximum allowed – suspended upon the condition that he perform fifty hours of community service.

On appeal to the Supreme Court, McCooey argues that the trial court should have granted his motion to dismiss the case prior to trial, because his comment was both subjectively and objectively understood at the time to be sarcastic and because the incident occurred at Dover High, which he claims is not a "public or governmental facility" but a "public place," as defined by the relevant statutes. McCooey also contends that the State failed to provide any proof that his statement caused a disruption at the school. In addition, he asserts that his statement was entitled to the free speech protection provided by the First Amendment.

The State counters that the evidence was sufficient to support the conviction. Additionally, it asserts that to the extent that the defendant’s arguments raise a First Amendment claim, there was no constitutionally protected speech infringement in this case because threats of violence are outside the First Amendment.


Case #2


Attorney Francis X. Quinn for the appellant, Estate of Laurence Hill; Attorney Anna Barbara Hantz for the New Hampshire Trial Lawyers Association, amicus

Attorney Robert M. Walsh for the appellee, Dr. Benton; Attorney Elizabeth Cazden for the New Hampshire Psychiatric Society, amicus

Issue presented:

Medical malpractice

Statement of the Case:

Laurence Hill was admitted to Hampstead Hospital on a voluntary basis after he experienced problems coping with his girlfriend’s break-up of their relationship. Dr. Christopher Benton, a staff psychiatrist, treated him for depression, alcohol abuse and stress resulting from his family problems.

Several days later, he requested to be discharged, stating that the stay in the hospital had helped him "clear [his] head up." Because Dr. Benton found no basis to commit him involuntarily, he discharged him with medication and instructions to refrain from drinking alcohol and to participate in prescribed follow-up care.

Twelve days later, following an outing with friends in which he drank heavily and an argument with his girlfriend, he took his own life.

Procedural History:

Mr. Hill’s estate sued the hospital and Dr. Benton for medical negligence. During trial, the estate chose to proceed against Dr. Benton only. At the close of the evidence, the trial court instructed the jury on comparative fault -- whether Mr. Hill’s own negligence should be considered in deciding how much if any money damages to be awarded to his estate.

In addition, the trial judge submitted a special verdict form to the jury, which included the following question: "Do you find based upon the evidence that it is more likely than not that Laurence Hill’s conduct in attempting to kill himself is a greater cause of the suicide than any legal fault on the part of the defendant in this case?" The jury answered "yes" and returned a verdict in favor of Dr. Benton and awarded no money damages to Mr. Hill’s estate.

The estate appealed to the Supreme Court, arguing that the special verdict question misled the jury into basing its verdict on a misrepresentation of the law, because it improperly combined Dr. Benton’s alleged negligent conduct with Mr. Hill’s intentional conduct in causation of the suicide. It also maintains that the trial court erred when it charged the jury on comparative negligence, leading the jury to consider Mr. Hill’s conduct in reaching their verdict. Mr. Hill’s lawyers claim there can be no "comparative negligence" in this kind of a case because the psychiatrist’s duties include providing appropriate after-care as well as preventing the self-abusive or self-destructive acts that caused or substantially caused the suicide.

Dr. Benton filed his own appeal in this case, contending that the trial court should have entered a directed verdict, meaning that he claims that the evidence in his favor was so compelling that the court should have decided the case on its own, without submitting the case to the jury. Dr. Benton asserts that Mr. Hill: (1) voluntarily discharged himself thirteen days prior to committing suicide; (2) at the time of discharge, did not meet the criteria for involuntary commitment; (3) did not comply with orders to take medicine, stop drinking and engage in other therapy; and (4) committed suicide following a drinking spree and an explosive argument with his girlfriend.

The New Hampshire Trial Lawyers Association, which supports the position argued by the estate, and the New Hampshire Psychiatric Society, which supports Dr. Benton’s position, will not argue the case before the Supreme Court but did file what is called "friend of the court" briefs raising legal issues they would like the justices to consider. The psychiatric society contends that New Hampshire should not allow any lawsuit against a psychiatrist for negligently failing to predict and prevent a patient’s suicide outside of a hospital or other "custodial" setting. The trial lawyers association counters that a lawsuit alleging such negligent treatment of a suicidal patient is proper.