THE STATE OF NEW HAMPSHIRE

SUPREME COURT OF NEW HAMPSHIRE

O R D E R

This order adopts a number of minor technical amendments to court rules. Pursuant to Part II, Article 73-a of the New Hampshire Constitution and Supreme Court Rule 51, the Supreme Court of New Hampshire approves amendments to Supreme Court Rule 4 as set forth in Appendix A; adoption of Supreme Court Rule 12-D on a permanent basis as set forth in Appendix B; amendments to Supreme Court Rule 36(1) as set forth in Appendix C; amendments to Supreme Court Rule 36(5)(d) as set forth in Appendix D; amendments to Supreme Court Rule 38 as set forth in Appendix E; amendments to Supreme Court Rule 47(2) as set forth in Appendix F; amendments to Supreme Court Rule 54(3) as set forth in Appendix G; amendments to Superior Court Rule 118 as set forth in Appendix H; amendments to Superior Court Rule 132 as set forth in Appendix I; amendments to Superior Court Rule 166 as set forth in Appendix J; amendments to Superior Court Administrative Rule 10-1 as set forth in Appendix K; amendments to the District and Municipal Court Rules as set forth in Appendix L; amendments to District Court Rule 1.11 B as set forth in Appendix M; amendments to District Court Rule 1.13 as set forth in Appendix N; amendments to District Court Rule 1.14 as set forth in Appendix O; amendments to District Court Rule 1.20 as set forth in Appendix P; amendments to District Court Rule 4.3(a) as set forth in Appendix Q; amendments to District Court Rule 4.26 as set forth in Appendix R; amendments to District Court Rule 4.27 as set forth in Appendix S; amendments to District Court Rule 4.28 as set forth in Appendix T; amendments to Family Division Pilot Project Rule 1 D as set forth in Appendix U; amendments to Evidence Rule 104(d) as set forth in Appendix V; and amendments to Evidence Rule 1101(a) as set forth in Appendix W.

These amendments shall take effect on November 1, 2004.

October 25, 2004

ATTEST: ___________________________
Eileen Fox, Clerk
Supreme Court of New Hampshire

APPENDIX A

Amend Supreme Court Rule 4 by deleting the words "and municipal" from the first sentence of said rule, so that the first paragraph of said rule as amended shall state:

Cases from the superior court, the probate court, and the district courts shall be entered upon the filing of an interlocutory transfer without ruling, an interlocutory appeal with ruling, or upon the filing of a notice of appeal after a decision on the merits.

APPENDIX B

Supreme Court Rule 12-D was previously adopted in part on a temporary basis. Supreme Court Rule 12-D is now adopted on a permanent basis without change. Rule 12-D provides as follows:

RULE 12-D.  SUMMARY PROCEDURES ON APPEAL 

(1)  Selection of Cases.    

    (a)  By order of the court, consistent with the criteria set out at paragraph (5) below, any case may be set for oral argument before a panel of three justices (3JX panel).    

    (b)  Any party may request or consent that a case be set for oral argument before a 3JX panel.  The court will consider and act upon such request, based upon criteria set out at paragraph (5) below. 

    (c)  The court may direct that the matter be submitted on briefs, without oral argument, to a 3JX panel. See Rule 18(1).

    (d)  Except as noted in this rule, the procedure for cases assigned to a 3JX panel shall be the same as otherwise provided in these rules.  Any motions made in a case assigned to a 3JX panel shall be acted upon by the panel.  The panel may, in its discretion, refer any such motion to the full court for resolution.  

(2)  Disposition after Argument Before Three Justices; Additional Briefing, etc.  

    (a)  Any case which has been heard by a 3JX panel shall be decided by unanimous order of the three justices.  If the panel cannot reach a unanimous decision, it shall direct that the case be decided by the full court.  The panel may order that a case be decided by the full court in such other circumstances as it deems appropriate.  The panel may, prior to determining that a unanimous decision cannot be reached, require additional briefing.  If decision by the full court is ordered, the court may issue an additional order setting forth matters to be reargued or rebriefed.

    (b)  Unless the court orders otherwise, whenever a 3JX panel directs after oral argument that a case be decided by the full court, no further oral argument shall be held and the members of the court who were not on the 3JX panel shall listen to the recording of the 3JX oral argument before deciding the case.   

(3)  Nonprecedential Status of Orders.  An order issued by a 3JX panel shall have no precedential value and shall not be cited in any pleadings or rulings in any court in this state; provided, however, that such order may be cited and shall be controlling with respect to issues of claim preclusion, law of the case and similar issues involving the parties or facts of the case in which the order was issued.  

(4)  [Repealed.]   

(5)  Criteria for Selection of Cases for 3JX Panel.  Cases suitable for oral argument before a 3JX panel include, but are not limited to:  

    (a)  appeals involving claims of error in the application of settled law;  

    (b)  appeals claiming an unsustainable exercise of discretion where the law governing that discretion is settled;  

    (c)  appeals claiming insufficient evidence or a result against the weight of the evidence.  

(6)  Briefing, Argument, etc.    

    (a)  In all cases selected for oral argument before a 3JX panel, briefs shall be limited to 35 pages, exclusive of the table of contents, tables of citations and any addendum containing pertinent texts of constitutions, statutes, rules, regulations and other such matters.  Reply briefs shall be limited to 10 pages. 

    (b)  Oral argument will be limited to five minutes per side. In the event of multiple parties on the same side, the court may determine, either upon its own motion or upon motion of a party, an appropriate amount of time for oral argument.      

(7)  Motion for Rehearing or Reconsideration.  Motions for rehearing or reconsideration of any order assigning a case to a three-justice panel or of any order issued by a three-justice panel shall be governed by Rule 22. 

APPENDIX C

Amend Supreme Court Rule 36(1) by deleting the words "and municipal" from the first sentence of said paragraph, so that Rule 36(1), as amended, shall state:

(1) Notwithstanding the provisions of any superior court rule concerning persons who are not lawyers, of any superior court rule and district court rule concerning lawyers who are not members of the bar of this State, and of any other such court rules, an eligible law student or law graduate acting under a supervising attorney may appear in any court in this State as herein provided, except in this court, in behalf of any indigent person, the State of New Hampshire, a State agency, or a State subdivision.

APPENDIX D

Amend Supreme Court Rule 36(5)(d) by substituting "20___" for "19___" so that said subsection as amended shall state as follows:

    (d) AFFIDAVIT TO BE COMPLETED BY LAW STUDENT/GRADUATE:

    I certify that I have not, except as stated below and except for proceedings (if any) in which a record of conviction and sentence has been annulled by statute, ever been a party to any criminal proceedings which in New Hampshire would be classified as violations, misdemeanors, or felonies.

                    Court Name                          Nature of
Date             and Location                        Proceeding                    Disposition

 


______________________                          __________________________________
        (Date)                                            (Signature of Student or Graduate)

 

 

State of New Hampshire
County of

    On this ________ day of __________, 20____, before me, the undersigned officer, personally appeared __________, to me personally known (or satisfactorily proven) to be the person whose name is affixed to this affidavit, and made oath that the statements therein contained are true to the best of his or her knowledge and belief.


                                                                 _________________________
                                                                         Notary Public
                                                                 (My commission expires
                                                                  _______________________) 

APPENDIX E

Amend Supreme Court Rule 38 by substituting the word "minimis" for "minimus" in the Terminology section (two places), so that said subsection, in pertinent part and as amended, shall state:

TERMINOLOGY

. . . .

"De minimis" denotes an insignificant interest that could not raise reasonable question as to a judge's impartiality in the mind of a reasonable disinterested person fully informed of the facts.

 

"Economic interest" denotes ownership of a more than de minimis legal or equitable interest, or a relationship as officer, director, advisor or other active participant in the affairs of a party, except that:

 

(i) ownership of an interest in a mutual or common investment fund that holds securities is not an economic interest in such securities unless the judge participates in the management of the fund or a proceeding pending or impending before the judge could substantially affect the value of the interest;

 

(ii) service by a judge as an officer, director, advisor or other active participant in an educational, religious, charitable, fraternal or civic organization, or service by a judge's spouse, parent or child as an officer, director, advisor or other active participant in any organization does not create an economic interest in securities held by that organization;

 

(iii) a deposit in a financial institution, the proprietary interest of a policy holder in a mutual insurance company, of a depositor in a mutual savings association or of a member in a credit union, or a similar proprietary interest, is not an economic interest in the organization unless a proceeding pending or impending before the judge could substantially affect the value of the interest;

 

(iv) ownership of government securities is not an economic interest in the issuer unless a proceeding pending or impending before the judge could substantially affect the value of the securities.

APPENDIX F

Amend Supreme Court Rule 47(2) by deleting the words "district or municipal courts" in the next to last paragraph of section (2) and substituting the words "district court" so that the next to last paragraph of section (2), as amended, shall state as follows:

When assigned counsel is appointed in district court, that counsel shall continue as counsel of record for all purposes (such as motions to reduce bail, waiver of indictments, etc.) until and unless new counsel is appointed by superior court. The appointment of counsel shall occur in accordance with RSA 604-A:2, II. The public defender shall be appointed if that office is available. In the event that the public defender program is not available, the appointment of a contract attorney shall occur, if such an attorney is available. Lastly, in the event that neither the public defender nor a contract attorney is available, the appointment of a qualified attorney under RSA 604-A:2, I, shall occur.

APPENDIX G

Amend Supreme Court Rule 54(3) by deleting the words "and municipal" so that section (3), as amended, shall state as follows:

(3) Within each of the superior court, the district court, and the probate court, a policy formulation committee shall be chosen by each of the courts

APPENDIX H

Amend Superior Court Rule 118 by substituting "20___" for "19___" so that said rule as amended shall state as follows:

118. Every bill or petition shall contain, in the introductory part, the names, places of abode, and proper description of all parties to the proceeding. The form in substance shall be as follows:

                                        SUPERIOR COURT


    County of ___________________       _________________ Term, 20 ____

    A. B. of etc., complains against C. D. of etc., and E. F. of etc., and says, etc.

The bill or petition may conclude "and thereupon the plaintiff prays," setting forth the special relief which he seeks, "and for such other relief as may be just". If an injunction or other special order pending the suit is desired, it shall be specifically asked for.


   APPENDIX I

Amend Superior Court Rule 132 by substituting "20___" for "19___" so that said rule as amended shall state as follows:


    132. Answers shall be entitled with the county in the margin, the title of the Court and case, and "The answer of," the party making it, in substance as follows:

SUPERIOR COURT

County of __________________                _________________ Term, 20____

A. B. & a. vs. C. D. & a.

The Answer of C. D., etc.


   APPENDIX J

Amend Superior Court Rule 166(e) by substituting "20___" for "19___" in two places so that said section (e), as amended, shall state as follows:


    (e) A statement of the financial status of the corporation supported by a certificate of the Treasurer as to its assets and liabilities.

    Notice of such petition shall be by publication.

    The petition shall be accompanied by an affidavit stating that the facts alleged therein are true.

    If the petition is by one-fourth of the stockholders, the petition should allege the number of shares of its stock and the cause alleged to make dissolution reasonably necessary.

    Such petition shall be served upon the coloration by registered or certified mail and notice given by publication to all interested parties.

    Prior to the entry of any decree, a certificate from the New Hampshire Tax Commission must be filed, when required, indicating that no taxes and interest imposed are due and unpaid by the corporation. (See RSA 77-A:18.)

    The Court's decree, when the petition is by the corporation, will be in substantially the following form:

        (a) "This petition having been filed on ________________, returnable on __________________________, with publication appearing in __________________, on three successive weeks, the last publication being not less than fourteen (14) days prior to the return day, giving notice to all interested parties to appear, and any required certificate from the New Hampshire Tax Commission showing no taxes due having been filed; and no one appearing to object to the prayer of dissolution being granted, with the Court having considered the contents of said petition and prayer thereof, and it now appears as shown by the pleadings on file that a dissolution of the corporation was legally authorized by vote at a duly constituted meeting of the stockholders.

(b) "It is ordered, adjudged and decreed by the Court on this ____________ day of _____________, 20____________, that the said __________________ be dissolved for all ordinary purposes at the close of business on this __________ day of _____________, 20 ______; that the said corporation shall, nevertheless, continue as a body corporate for the term of three years, for the purpose of prosecuting and defending suits by or against it and of gradually closing and settling its concerns and distributing its assets, and for no other purpose; provided that for the purpose of any suit or action by or against said corporation, pending at the end of said term of three years, said corporation shall continue as a body corporate until ninety days after final judgment or decree in such suits or action, and that a copy of the decree of such dissolution be returned to the Secretary of State."

APPENDIX K

Amend Superior Court Administrative Rule 10-1 by deleting the term "(supp)", so that said rule as amended shall state as follows:

Rule 10-1. Waiver of Filing Costs.

Under RSA 499:18-b, in cases where a litigant has been found qualified as an indigent by New Hampshire Legal Assistance, but referred to an outside attorney because of conflict of interest or other reason, all filing costs shall be waived by the Clerk of Court without the necessity of a Court order. In order for an attorney to secure such waiver, it will be sufficient if the pleadings are signed in the following manner:

                    For: NEW HAMPSHIRE LEGAL ASSISTANCE

                    By: _______________________________
                    Name of Private Attorney
                    Address

APPENDIX L

Amend the "Rules of the District and Municipal Courts of the State of New Hampshire" by deleting the words "and Municipal," so that said rules shall be known as the "Rules of the District Courts of the State of New Hampshire".

APPENDIX M

Amend District Court Rule 1.11 B by deleting the words "or Municipal Court" so that paragraph B, as amended, shall state as follows:

    B. Whenever any question of law is to be transferred by interlocutory appeal from a ruling or by interlocutory transfer without ruling, counsel shall seasonably prepare and file with the Clerk of the District Court the interlocutory appeal statement or interlocutory transfer statement pursuant to Supreme Court Rule 8 and Supreme Court Rule 9, and after the Court has signed the statement, counsel shall mail the number of copies provided for by the rules of the Supreme Court to the Clerk thereof.

APPENDIX N

Amend District Court Rule 1.13 by: (1) deleting the words "Administrative Committee of the District and Municipal Courts" and replacing them with "Administrative Office of the Courts"; and (2) deleting the words "See Note." and the attached Note, so that said rule as amended shall state as follows:

Rule 1.13. Disbursements 

    No Justice or Special Justice shall authorize the spending of, and no Clerk shall disburse, any Court funds not authorized by the Revised Statutes Annotated. Any Justice who wishes to use Court funds for the improvement of courtroom facilities, the employment of additional personnel, or any purpose other than the usual and regular operating expenses of the Court, shall first submit the proposed expenditure for consideration and approval of the Administrative Office of the Courts.

APPENDIX O

Amend District Court Rule 1.14 by deleting the words "and Municipal" and by substituting "Administrative Office of the Courts" for "Administrative Committee", so that said rule as amended shall state as follows:

Rule 1.14. Dockets

       The dockets to be used in all District Courts shall be in the form approved by the Administrative Office of the Courts.

APPENDIX P

Amend District Court Rule 1.20 by deleting the words "and Municipal" from the first and third sentences, so that Rule 1.20, as amended, shall state as follows:

Rule 1.20. Uniform Forms

     All forms approved by the Supreme Court for use in the District Courts shall be used by the courts in all cases. No changes will be made in the text of these forms except by approval of the Supreme Court. Recommendations for changes may be submitted to the District Court Forms Committee for its approval and recommendations to the Supreme Court. The Clerk shall maintain a list of currently approved forms.

APPENDIX Q

Amend District Court Rule 4.3(a) by deleting the words "municipal or" from the first sentence, so that section (a), as amended, shall state as follows:

(a) A claim can be brought by a plaintiff against a defendant in the district court which serves the area in which either resides. The residence address of each (as well as the mailing address, if different) should be shown on the claim form. If the defendant is being sued as an unincorporated business, his trade name and address should also be included.

APPENDIX R

Amend District Court Rule 4.26 by deleting the words "municipal or" from both sentences of the rule, so that Rule 4.26, as amended, shall state as follows:

Rule 4.26. Transfer to Superior Court

      In any small claim case which the defendant has requested the right to a trial by jury and the debt or damages claimed exceeds $1,500, the moving party or party designated by statute as responsible for payment of the superior court transfer fee, shall pay the fee at the district court within 10 days of the court notice of the request by the defendant for a jury trial. Upon payment of the fee, the district court shall immediately transfer the case to the superior court.

APPENDIX S

Amend District Court Rule 4.27 by deleting the words "municipal or" from the first sentence of paragraph I and the second and third sentences of paragraph II, so that said rule, as amended, shall state as follows:

Rule 4.27. Appeals Records Requirement

   I. Any person who is a party to a small claim action may, at least 5 days prior to trial, request the district court that a tape recording be kept of all proceedings in the trial. If such a request is made, the person making the request for the recording shall be responsible for the cost of the tape recording and any associated transcription costs.

II. Any party to a small claim judgment may, at the time judgment is declared or within 30 days of the notice of judgment date, appeal therefrom to the supreme court. On any such appeal, the district court shall provide the tape recording requested under paragraph I. to the supreme court.  The district court shall not grant any requests for extensions of time to file an appeal document in the supreme court or requests for late entry of an appeal document in the supreme court; such requests shall be filed with the supreme court.  See Supreme Court Rule 21(6).

APPENDIX T

Amend District Court Rule 4.28 by deleting the words "municipal or" from the rule, so that Rule 4.28, as amended, shall state as follows:

Rule 4.28. Waiver of Fees

    
    A district court may waive any small claim fee for good cause shown.

APPENDIX U

Amend Family Division Pilot Project Rule 1 D by deleting the words "and municipal" from the rule, so that Rule 1 D, amended, shall state as follows:

        D. Actions under RSA 173-B relating to protection of persons from domestic violence except for concurrent jurisdiction with the superior and district courts to enter temporary protective orders under RSA 173-B:6;

APPENDIX V

Amend Evidence Rule 104(d) by substituting "cross-examination" for "crossexamination" so that paragraph (d), as amended, shall state as follows:

    (d) Testimony by accused. The accused does not, by testifying upon a preliminary matter, subject himself or herself to cross-examination as to other issues in the case.

APPENDIX W

Amend Evidence Rule 1101(a) by deleting the words "and municipal" so that paragraph (a), as amended, shall state as follows:

(a) Courts. - These rules apply to the proceedings in the district courts, probate courts, superior court, and the supreme court